IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2011
THE HONOURABLE MR.JUSTICE G. RAJASURIA
S.A.No.946 of 2010
P.M.Nawabjan … Appellant
Dr.N.Nazeer Ahmed … Respondent
This Second Appeal is focussed as against the judgment and decree dated 16.6.2009 passed by the Principal District Judge, Dharmapuri, reversing the judgment and decree dated 27.8.2008 passed by the Subordinate Judge, Dharmapuri, in O.S.No.59 of 2000.
For appellant : Mr.S.B.Fazluddin
For respondent : Mr.V.Lakshminarasimhan for
This Second appeal is focussed by the defendant, animadverting upon the judgment and decree dated 16.6.2009 passed by the Principal District Judge, Dharmapuri, reversing the judgment and decree dated 27.8.2008 passed by the Subordinate Judge, Dharmapuri, in O.S.No.59 of 2000, which was filed for declaration and permanent injunction.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The respondent herein, as plaintiff, filed the suit seeking the following reliefs:
“To pass a judgement and decree
“a. declaring the title of the suit property in favour of the plaintiff on the basis of the Settlement deed dated 19.6.1972;
b. consequently interdict the defendant from alienating or encumbering the suit property by means of permanent injunction;
c.award costs of the suit.” (extracted as such)
(b) The appellant/defendant filed the written statement resisting the suit.
(c) Whereupon the trial Court framed the issues. The plaintiff examined himself as P.W.1 and Exs.A1 to A4 were marked. The defendant examined himself as D.W.1 and Exs.B1 to B7 were marked.
(d) Ultimately the trial Court dismissed the suit, as against which, the appeal was filed. Whereupon the first appellate Court reversed the judgment and decree of the trial Court and decreed the suit as prayed for.
4. Being aggrieved by and dissatisfied with the said judgment and decree of the first appellate Court, this second appeal has been filed by the defendant on various grounds and also suggesting the following substantial questions of law:
“1.When possession of the suit property was admittedly with the appellant herein whether Muslim law permits him to cancel and revoke the deed of settlement Ex.A1 as the gift itself was void ab initio and in these circumstances whether Section 126 of Transfer of Property Act be applicable against the principles of Muslim law relating the law of Gifts?
2. Whether the provisions of the Transfer of Property Act ware applicable to the Muslims transacting transfer of their properties as per the Muslim law (Shariat Law) when Section 2(d) of Transfer of Property Act itself exempts its application by declaring “nothing in the II chapter of this Act shall be deemed to affect any rule of Muhammadan Law?
3.Whether the suit as filed by the respondent/plaintiff after the statutory period of limitation was not barred by Article 59 of the Limitation Act and whether Article 59 of the Limitation Act is not applicable to the present case as held by the lower appellate Court?
4.Whether the appellant herein who was admitted to be continuously in possession even after execution of the deed of settlement Ex.A1 would take benefit of plea of adverse possession even though it was not claimed in his written statement while the Hon’ble Supreme Court of India was pleased to hold that in those circumstances it was necessary for the court to give finding on title even if the defendant in possession had not pleaded or proved adverse possession? (AIR 1990 SC 717)
5. Whether the appellant having possession of the suit property for more the statutory period of limitation and in view of his long possession for more than 12 years whether the title of the property became an unassailable one.
6. Whether the conclusion of the lower appellate Court that the revocation of the deed of settlement Ex.A1 was not applicable in Muhammadan Law without getting a decree from a court while the Muslim law clearly holds that gift without delivery of possession was void ab initio and as such its revocation was legal.”
(extracted as such)
5. Heard both.
6. At the outset itself I fumigate my mind with the principles as found embodied in the following judgments of the Honourable Apex Court:
(2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL;
“24. ……..(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”
and the other precedents emerged in this regard.
(ii) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus:
“19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression “substantial question of law” is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
(iii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iv) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS
7. A mere poring over and perusal of those excerpts including the whole judgments would reveal that unless there is any perversity or illegality in the findings of the Courts below or or failing to apply correct law or misleading or misreading of the evidence, the question of interference in the second appeal does not arise. As such it is the paramount duty of the Court to find out as to whether any substantial question of law is involved in the matter.
8. I would like to discuss in seriatim the suggested substantial questions of law as found in the memorandum of grounds of second appeal.
9. Pithily and precisely, the indubitable and indisputable or atleast the undeniable facts would run thus:
(i) The appellant/defendant’s first wife is the mother of the respondent/plaintiff. It so happened that at the time of contracting second marriage, the defendant executed Ex.A1-the settlement deed dated 19.6.1972 (Hiba) in favour of his the then minor son-the plaintiff, appointing his mother as the guardian. The subject matter of hiba happened to be a building, comprised of residential portion as well as non-residential portion consisting of several shops.
(ii) The defendant, on 27.7.1987 executed a cancellation deed, annulling the earlier settlement deed-Ex.A1 dated 19.6.1972 and also informed that fact to the plaintiff through his legal notice dated 30.5.1988; however, there was no reply to it, given by the plaintiff.
(iii) The plaintiff subsequently filed the suit on 20.4.2000.
10. The learned counsel for the appellant/defendant would put forth and set forth his arguments, which could tersely and briefly be set out thus:
(a) The first appellate Court failed to take into consideration the fact that the onus of proof was on the plaintiff to prove that Ex.A1-the settlement deed was not followed by delivery of possession, in any manner recognised by the Muslim Law.
(b) Ex.A1-the settlement deed was not acted upon.
(c)Despite informing the plaintiff by the defendant about the cancellation of the settlement deed, there was no response from the plaintiff and he kept quiet for more than 12 years and only during the year 2000, he did choose to file the suit, which was barred by limitation.
(d) These salient features have not been taken into consideration by the first appellate Court.
(e) All standard commentaries on Muslim Law, more specifically, concerning Hiba, would unambiguously and unequivocally highlight and spotlight the fact that to constitute a valid ‘Hiba’ under Muslim Law, there should be delivery of possession; but in this case, neither in the settlement deed nor by evidence aliunde, there is anything to highlight that consequent upon Ex.A1 or under Ex.A1, delivery of possession of the subject matter of ‘Hiba’ was handed over by the donor to the donee.
(f) The first appellate Court simply assumed and presumed the case of the plaintiff as true and upset the discernible and reasoned judgment of the trial Court.
(g) The trial Court went into all aspects of the matter and rendered its judgment; whereas, the first appellate Court failed to consider the plea of limitation raised by the defendant and also rejected the alternative plea of adverse possession, in addition to having totally missed to consider the gamut of the case.
(h) De hors Ex.A1-the settlement deed, the defendant continued to be in possession and enjoyment of the suit property and in such a case, Ex.A1 cannot be taken as one interdicted the possession of the defendant.
(i) The supine indifference on the part of the plaintiff in not challenging the cancellation deed for over 12 years brought forth as against him the limitation and it would not lie in the mouth of the plaintiff to contend that he could simply ignore the validly executed cancellation deed, which is a registered one.
(j) At the earliest point of time, a litigant is expected to object on coming to know of the adverse facts as against him. But in this case, despite the plaintiff having been informed about the cancellation deed, by the legal notice dated 30.5.1988, there was no response at all from the plaintiff, which would connote and denote that the plaintiff accepted the stand of the defendant and in such a case, he was not justified in veering round and filing the suit, after 12 years from the date of the cancellation deed dated 27.7.1987.
(k) The Transfer of Property Act is not at all application to the ‘Hiba’ contemplated under the Muslim Law. No interference of the Court also is required to get the ‘Hiba’ cancelled. In this case, the first appellate Court mis-directed itself by expecting that the defendant should have approached the Court for getting Ex.A1-the settlement deed cancelled.
(l) The recitals in Ex.A1 in no way show that the donor parted with the possession of the subject matter of ‘Hiba’ even in favour of the guardian of the minor donee. Hence, in such a case, the first appellate Court, ignoring the well settled principles enshrined in Muslim Law, decided the lis, by setting aside the judgment and decree of the trial Court and thereby, warranting interference in second appeal.
Accordingly, the learned counsel for the defendant would pray for setting aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial Court in dismissing the original suit.
11. In a bid to make mincemeat of the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would advance his arguments, which could pithily and precisely be set out thus:
(i) The first appellate Court, adhering to the well settled provisions enshrined in the Muslim Law, decided the appeal, warranting no interference in second appeal.
(ii) The donee happened to be the minor son of the donor, hence, as per Muslim Law, the father being the donor appointed the minor’s mother as the guardian for the minor donee and executed Ex.A1-the settlement deed, strictly in accordance with the principles enshrined in Muslim Law relating to ‘Hiba’.
(iii) The recitals in Ex.A1 would unambiguously and unequivocally point out that the donor parted with the possession and all control over the suit property in favour of the guardian of the minor donee, so as to obtain the res on behalf of the minor and preserve the same and hand over delivery of possession of it to the minor donee after he having attained majority. Such recitals themselves would be much more sufficient to constitute a valid ‘Hiba’.
(iv) According to authoritative text on Muslim Law, if the donee happened to be the minor son of the donor, then such delivery of possession itself is not necessary, as it is expected in case of other donees under a ‘Hiba’.
(v) The question of limitation does not arise for the reason that the cancellation deed is non est in the eye of law and it was a void one and in such a case, pressing into service Article 59 of the Limitation Act by the defendant was not tenable and the first appellate Court rightly rejected the same.
(vi) The defendant only as an after thought did choose to execute the cancellation deed on 27.7.1987, so to say, after a decade and half from the date of execution of the settlement deed dated 19.6.1972.
(vii) The admitted case of the defendant himself was that the income derived from the subject matter of ‘Hiba’ was used for bringing up and educating the plaintiff, strictly incommensurate with Ex.A1-the settlement deed.
(viii) Simply because the defendant was collecting rents from the building concerned, that it does not mean that he was owning and enjoying the subject matter of ‘Hiba’ in his capacity as owner of it de hors Ex.A1. What all the defendant did, was only for the welfare of the plaintiff incommensurate with the intention as found embodied in Ex.A1.
(ix) The plea of adverse possession is a misconceived one for the reason that by taking such a plea, impliedly the defendant admitted the ownership of the plaintiff and the onus of proof was on the defendant to prove adverse possession, but he failed to consider discharge his burden. As such, the first appellate Court, taking into consideration all these facts decided the lis, warranting no interference in second appeal.
Accordingly, the learned counsel for the respondent/plaintiff would pray for confirming the judgment and decree of the first appellate Court and for dismissing the second appeal.
12. I recollect and call up the following maxims:
(i) Affirmatis est probare He who affirms must prove.
(ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies.
13. It is the duty of the person who affirms a particular fact to prove it and he cannot call upon the other side to prove the negative aspect.
14. So, at the first instance it has to be seen as to whether on whom the onus of proof lies to prove the validity or otherwise of Ex.A1-the settlement deed.
15. It is a fact that the plaintiff-the donee under Ex.A1 filed the suit, asserting his right as owner over the suit property. In such a case, no doubt initially the burden is on the plaintiff to prove his case; however the burden of proof is ambulatory and not static. At this juncture, it is just and proper to look into the fact as on whom the burden of proof lies to prove anything contrary to the recitals as found in Ex.A1.
16. On the one hand, the learned counsel for the defendant would contend that it is for the plaintiff to prove that delivery of possession of the suit property was given under Ex.A1 by the donor, so to say, the defendant, in favour of the donee/plaintiff and it is not the duty of the defendant to prove non-delivery of it; whereas the learned counsel for the plaintiff would argue that when minor donee is involved in a ‘Hiba’, the burden is on the donor to prove non-delivery and as per him proving delivery itself is not a sine quo non for upholding the validity of ‘Hiba’ given by the father to his minor son.
17. In support of their respective contentions, the learned advocates on both sides would cite various decisions. Hence, it is just and proper to consider all those decisions:
(a) The learned counsel for the appellant/defendant would cite the following decisions:
(i) 2011 (3) SCC 608 HAFEEZA BIBI AND OTHERS V. SHAIKH FARID (DEAD) BY LRS AND OTHERS, certain excerpts from it would run thus:
“29. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by Moshammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law.
30. In considering what is the Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohammad Abdul Ghani stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.”
(ii) 1958(1) M.L.J.14 S.V.S.MUHAMMAD YUSUF ROWTHER AND ANOTHER V. MUHAMMAD YUSUF ROWTHER AND OTHERS, certain excerpts from it would run thus:
” . . . . . . But this apart, there was also the further fact that on the facts proved in the Bombay case those who impugned the gift had been able to establish that possession was not in fact transferred. In my judgment there are no such circumstances in the present case. The proper rule to apply here as regards the burden of proof would be to hold that the declaration by the donor of his having parted with possession was an admission binding upon the plaintiffs and the 3rd defendant which however they might by cogent evidence disprove but that in the absence of independent proof by them the presumption raised by the admission ought to suffice to support the deed.
Both the Courts below have based their decision against the appellants not having discharged the burden of proof thrown upon them to establish the essential condition of law to sustain the validity of the gift. The concurrent finding of both the Courts below merely goes to this length, namely, that the appellants had not proved that the gift was operative. In considering the question in this manner the Courts have committed an error and I cannot therefore accept that finding as binding on me.”
(iii) (2007) 13 SUPREME COURT CASES 210 ASOKAN V. LAKSHMIJKUTTY AND OTHERS, certain excerpts from it would run thus:
“16. While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. It is not a case that the appellant was not aware of the recitals contained in deeds of gift. The very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometimes indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift.
20. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. (See Prem Singh v. Birbal.) When such a presumption is raised coupled with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and not on the donee.
21. In Alavi, Paripoornan, J. (as His Lordship then was) held: (KLT p.61)
It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject-matter of the gift was not delivered over to the donees.
(emphasis in original)
22. Section 91 of the Evidence Act covers both contract as also grant and other types of disposal of property. A distinction may exist in relation to a recital and the terms of a contract but such a question does not arise herein inasmuch as the said deeds of gift were executed out of love and affection as well as on the ground that the donee is the son and successor of the donor and so as to enable him to live a good family life.”
(iv) AIR 1934 ALLAHABAD 179 IFTIKHAR WALI KHAN AND OTHERS VO. SIKANDAR BEGAM AND ANOTHER, certain excerpts from it would run thus:
“. . . . . A the same time, it should not be overlooked that the essential part of a gift, under Mahomedan law, is delivery of possession. It was open to the plaintiff to revoke the gift before delivery of possession. She could, without expressly revoking the gift, practically annul the transaction by withholding possession of the property to the guardian of the minor. If, before delivering possession, she declared certain conditions, subject to which alone the donee could take it, and the latter’s guardian, with full knowledge of those conditions, accepted the gift and took possession of the property, he must be deemed to have accepted the conditions imposed by her. It was open to her to have refused to accept the gift subject to the conditions which she chose to lay down. Unless therefore the conditions mentioned in the registration endorsement are inadmissible in evidence and cannot be proved, the donee is bound by them, though they did not form part of the transaction as originally settled between the parties.” . . . . .
(v) AIR 1924 ALLAHABAD 370 MT.MULANI V. MAULA BAKSH, an excerpt from it would run thus:
” . . . . . Where a deed of gift is executed by a person governed by the Muhammedan law and the possession of the property comprised in the gift has not been delivered, the gift would be void ab initio, and as held in Serajul Hag v. Khaddim Hussain (1) and Meda Bibi v. Imaman Bibi (2) no question of limitation will arise in such circumstances. The right of the plaintiff to impeach such a gift can only accrue from the moment when by receipt of possession the gift becomes operative by law.”
(vi) AIR 1928 PRIVY COUNCIL 108 MUSA MIYA WALAD MAHAMMAD SHAFFI AND ANOTHER V. KADAR BAX WALAD KHAJ BAX AND ANOTHER, certain excerpts from it would run thus:
“. . . . . . . Their Lordships are unable to hold that
those facts are sufficient to constitute Abdul Rasul a guardian within the meaning of the exception, so as to make a it by him to them complete without any delivery of possession or relinquishment of control over the property by him.
Considerable reliance was placed by the learned counsel for the appellants on case 19 Q 2 R.2, in the Precedents of Gifts given by Macnaghten in the 1825 edition.
In that case a reference is made to the Hidaya which runs as follows:
If a father make a gift of something to his infant son, the infant by virtue of the gift becomes proprietor of the same provided, etc. The same rule holds when a mother gives something to her infant son whom she maintains and of whom the father is dead and no guardian provided, and so also with respect to the gift of any other person maintaining a child under these circumstances.
In their Lordships’ opinion this precedent does not support the appellants’ case; on the contrary, it seems to be against their contention.”
(b) On the side of the plaintiff, the learned counsel cited the following decisions:
(i) NAWAB JAN AND OTHERS V. SAFIUR RAHMAN AND OTHERS(judgment dated 18.1.1917 in
“23. As regards the second objection, the contention of the appellant is that the father was the guardian of the infant sons, that he was incompetent to divest himself of his obligations as guardian, that he could not appoint his major son in the one instance and his wife in the other to act as guardian for the purpose of acceptance of the gift on behalf of the respective infants, and that consequently there has been no valid acceptance of the gift in law. No authority has been brought to our notice in support of this ingenious argument and I cannot discover any principle in Muhammadan jurisprudence wherefrom it derives the semblance of support. It is indisputable that where a gift is made by a father to his infant son, no change of possession is necessary; the principle is that the declaration of gift is deemed to change the possession by the father on his own account into possession as guardian on his son’s account, and the law is the3 same in every other case where the donee is a minorh in lawful custody of the donor: Ameeroonmssa Khatoon v. Abadoonissa Khatoon . . . . . ”
(ii) (2009) 4 MLJ 1075(SC) ABDUL RAHIM AND OTHERS V. SK.ABDUL ZABAR AND OTHERS, certain excerpts from it would run thus:
“10. A gift indisputably becomes complete when a person transfers with immediate effect the ownership of his movable or immovable property to another person, and that other person himself or someone else with his consent takes possession of the property gifted. Under Mohammadan law it is a contract which takes effect through offer and acceptance.
14. Indisputably, the deed of gift is a registered one. It contains a clear and unambiguous declaration of total divestment of property. A registered document carries with it a presumption that it was validly executed. It is for the party questioning the genuineness of the transaction to show that in law the transaction was not valid. We have noticed hereinbefore that Razak had been receiving rent from the tenants. In fact, Respondent 1 in his suit claimed a decree for apportionment of rent. We would presume that Razak had been collecting rent from the tenants during the lifetime of his father. The agency to collect rent, however, came to end as soon as an order of mutation was passed in his favour. Apart from the fact that Razak was allowed to continue to collect rent which having regard to the declaration made in the deed of gift must be held to be on his own behalf and not on behalf of the donor.
17. We, therefore, are of the opinion that the High Court committed a serious error in opining that the possession had not been handed over to Razak by the donor.”
(iii) AIR 1966 MADRAS 462 (VOL.53, C.154) AZESHABI AND OTHERS V. SAPRAKARA KATHOONBI AND OTHERS.
(iv) AIR 1971 MADRAS 184(V.58 C 27) ABDUL KAREEM AND ANOTHER V. ZULEIKA BI AND OTHERS;
(c) Certain excerpts from the famous treatise ‘Mulla’s Principles of Mahomedan Law (Nineenth Edition), would run thus:
“138. Hiba or gift A hiba or gift is “a transfer of property, made immediately, and without any exchange,” by one person to another, and accepted by or on behalf of the latter.
Whether a documenth is a gift deed or a will, can be gathered from the recitals in the document. Even the title given to it is not conclusive of its true nature. Therefore, the terms, conditions and recitals alone determine the nature of the disposition. They are to be taken as a whole. Where the disposition of the right, title and interest accrues in praesenti it cannot be treated as will because in a will the disposition is carried into effect after the death of the maker. When once it is clear from the recitals that the ownership has been transferred in praesenti absolute it is a gift and any condition imposed on the enjoyment of the property is invalid. The gift must be accepted and completed by such delivery of possession as the nature of the property admits (a).
Hedaya, 482; Baillie, 515.See Transfer of Property Act, 1882, sec.122, and also sec.129.
148. Relinquishment by donor of ownership and dominion It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift(f)
Relinquishment of control over the subject is necessary to complete the gift (g), and book entries in themselves do not amount to delivery of possession (h). A gift with a reservation of possession of property by the donot during his life is void(i).
The Mahomedan Law requires the gift of corpus itself and if there is anything repugnant to such a gift such a repugnant condition would be invalid. But it is necessary that the gift should be of the corpus. If the donor reserves to himself the right to be in possession of the corpus and the right to enjoy the same, there cannot be a valid gift under the law. A.I.R.1948 P.C.134, A.I.R.1947 P.C.97, 1959 Ker.L.T.624 and 1963 Ker.L.T.226, Ref.
Certain documents of settlement, made by a Mohammedan provided that till the death of the executant he would have no right of alienation of the property or properties mentioned in each of the documents, but he will have the right to possess the said property or properties and enjoy the same by taking usefructs and that after his death the respective property or properties may be possessed and enjoyed by the executee as he likes with right of alienation etc.and in that manner the property is settled upon the executee: It was held that the gifts were bad under the Mahomadan Law and that the same could not confer on the respective executee any right in respect of the property stated to have been gifted thereunder.(Bhaskaran and George Vedakkal,JJ.)
Beepathumma v.Mohamed Nakoor Meera Rowther A.I.R.1977 Ker.54.
“A gift cannot be implied. It must be express and unequivocal, and theh intention of the donor must be demonstrated by his entire relinquishment of the thing given, and the gift is null and void when he continues to exercise any act of ownership over it”: Macnaghten, P.51.sec.8.
The mere fact that a deposit was in the joint names of father and daughter cannot raise a presumption of advancement without proof of intention to make a gift(j).
149. The three essentials of a gift It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Sec.150. If these conditions are complied with, the gift is complete (k).
The three essential requisites for a valid gift are, (1) the offer of the gift (2) acceptance there of (3) delivery of possession in pursuance there under. In this case, it is established as a fact that the appellant made an offer of gift over the plaint schedule property to the respondent as guardian, accepted the offer on behalf of the respondent. She has been in possession and enjoyment ever since the delivery of the plot. Therefore, the gift is complete on talking possession of the plaint schedule property. Therefore, the revocation deed is invalid and not binding on the respondent, (Ramaswamy,J.). Tateef Khan v. Abdul Basifh Khan. (1984) An W.R.72
See The reservation of the usufructs in favour of the donor during his life with authority to collect rents and profits as the agent of the donees did not make the gifts void under Mohammedan Law. M.T.Khalid v. P.M.Sainabi, A.I.R.1981 Ker.230. It must be established that it was accepted by the donee. Wali Mohd.v.Faqir Mohd.A.I.R. 1978 Jammu and Kashmir 92. See:Md.Hesabuddin v. Md.Hesaruddin A.I.R.1984 Gauhati 41.
Baillie, 515, Hedaya, 482.This section should be read subject to what is stated in Sec.140.
150. Delivery of possession (1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of (l). As observed by the Judicial Committee, “the taking of possession of the subject-matter of the gift by the donee, either actually or constructively,” is necessary to complete a gift (n). See Secs.145, 146, 152, 154.
Delivery of possession of a gift may be actual or constructive. When physical delivery of possession is not possible such possession as the property admits may be delivered. The donor must of course divest himself of his possession, to complete the gift. . . .
. . . . .
. . . .
(2) Registration Registration of a deed of gift does not cure the want of delivery of possession.
. . . .
. . .
(3) If it is proved by oral evidence that a gift was completed as required by law (Secs.149 and 150), it is immaterial that the donor had also executed a deed of gift, but the deed has not been registered as required by the Registration Act, Sec.17(a)(o).
(4) A declaration in a deed of gift that possession has been given binds the heirs of the donor (p). But such a declaration is not conclusive and a recital in a deed of gift that possession has been given to a minor nephew (without the intervention of a father or guardian Sec.156) was on the facts held to be insufficient to support a gift as against the heirs of the donor.”
. . . . .
. . . .
155. Gift to a minor by father or other guardian No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give” (emphasis supplied)
. . . .
. . . . . ”
18. A bare perusal of the aforesaid decisions and also the excerpts from the famous treatises would demonstrate and display, convey and portray that the provisions of the Transfer of Property Act are not applicable to ‘Hiba’ contemplated under the Muslim Law. A ‘Hiba’ could even be oral. In the event of a ‘Hiba’ being written in the form of a document, it requires no registration also. However, in this case, Ex.A1 is a registered deed.
19. The learned counsel for the appellant/defendant would stress upon the fact that under Ex.A1 there was no delivery of possession of the subject matter of ‘Hiba’ and when there was no delivery, it was open for the donor to cancel it at any time and that accordingly in this case, he cancelled Ex.A1-the settlement deed, as per Ex.A2-the cancellation deed dated 27.7.1987, by way of ex abundanti cautela and disambiguating the ambiguity.
20. Whereas, the learned counsel for the plaintiff, by inviting the attention of this Court to various recitals in Ex.A1, would develop his argument that those recitals are unambiguously and unequivocally, pellucidly and palpably pointing out that under Ex.A1 delivery of possession of the subject matter of ‘Hiba’ was given by the donor to the minor donee’s mother, who was appointed by the donor himself as the guardian for the minor donee, with the duty to preserve the res and hand it over to the minor donee on attaining majority.
21. It is therefore just and necessary to extract hereunder the relevant portion of Ex.A1.
VERNACULAR (TAMIL) PORTION DELETED
22. The learned counsel for the defendant focussing his attention on those recitals would submit that even by phantasmegorical thoughts or by ones own wildest imagination it cannot be stated that such recitals are sufficient to hold that delivery of possession was given by the donor in favour of the minor donee’s guardian at the time of execution of ‘Hiba’-Ex.A1.
23. Whereas, the learned counsel for the respondent/plaintiff convincingly would submit that the recitals in Ex.A1 are to the effect that the mother of the minor donee should maintain the property; derive income from it and spend the money for the welfare of the minor and on the minor attaining majority, should hand over possession of the subject matter of ‘Hiba’ to the plaintiff.
24. I could see considerable force in the submission made by the learned counsel for the respondent/plaintiff; because, the recitals in Ex.A1 are to the effect that the mother of the minor donee should derive income from the said property and use it for the upliftment of the minor and on the minor attaining majority should hand over possession of the property to him. As such, the recitals pre-suppose that the mother of the minor guardian should be in possession of the res concerned and hand over the same to the minor on his attaining majority. There could not be any handing over of the res by the mother in favour of the son, if she herself is not put in possession of it.
25. The learned counsel for the defendant would submit that unambiguously and unequivocally there is no sentence to the effect that under Ex.A1 the res, which is the subject matter of the ‘Hiba’ was handed over by the donor to the minor donee’s mother; that the mother of the plaintiff was not examined to prove such delivery.
26. In my considered view such an argument fails to carry conviction with this Court. The possession by the guardian of the minor amounts to possession by the minor and separately no evidence aliunde is required to prove that the guardian handed over possession of the property to the minor on his attaining majority.
27. At this juncture, I recollect the following maxims:
(i) ‘Verba ita sunt intelligenda, ut res magis valeat quam pereat The words (of an instrument) are to be so understood, that the subject matter may rather be of force than perish [rather be preserved than destroyed; or, in other words, that the instrument may have effect, if possible]
(ii) ‘Verba generalia generaliter sunt intelligenda General words are to be generally understood.
28. The above sister maxims would connote and denote that while interpreting a document, the object of the document should be taken into account and any interpretation which would nullify the very object of the document should be avoided.
29. Accordingly if it is seen, it is quite obvious and axiomatic that the donor being the father, at the relevant point of time, so to say, when he wanted to marry for the second time, decided to give some financial support in the form of social security to his the then minor son, who is the plaintiff herein, who was born through his first wife and it cannot be visualised that during the year 1972 when the defendant executed Ex.A1, he did not have had really the bona fide intention to part with the property in favour of his minor son. As such, any interpretation other than the one canvassed by the learned counsel for the plaintiff would nullify the very object and intention found embodied in ExA1.
30. Certain excerpts from the deposition of D.W.1 would run thus:
VERNACULAR (TAMIL) PORTION DELETED
31. My mind is reminiscent and redolent of the following legal maxims:
(i) Nul prendra advantage de son tort demesne No one shall take advantage of his own wrong.
(ii) Nullus commodum capere potest de injuria sua propria No one can obtain an advantage by his own wrong.
32. The sum and substance of the above sister maxims would connote and denote that one cannot capitalize his own mistake or try to take advantage of his own wrong.
33.If the plea of the defendant is accepted, it tantamounts to himself pleading that the defendant hoodwinked virtually his first wife as well as the minor son at the time of the defendant getting married for the second time. It is not a case as though the defendant executed the settlement deed-Ex.A1 for the purpose of keeping the property out of the reach of any creditors or his rival claimants. In such a case, the plea of the defendant is totally untenable.
34. Among the decisions cited supra, the decision cited on the side of the plaintiff in Nawab Jan and Others v. Safiur Rahman and others and the decision of the Division Bench of this Court reported in AIR 1966 MADRAS 462 (VOL.53 C.154) AZESHABI AND OTHERS V. SAPRAKARA KATHOONBI ASND OTHERS would clearly indicate and exemplify that if the donee happens to be the donor’s minor child, the approach should be entirely different in understanding and deciding on the validity of ‘Hiba’, if it is called in question.
35. I would like to agree in entirety with the learned counsel for the plaintiff that in this case, the father with the avowed intention to provide virtually maintenance, so to say, financial support in the form of social security to his minor son, executed Ex.A1 and in such a case, the father cannot now be allowed to have a volte face and turn turtle and say that during the year 1972, at the time of execution of Ex.A1, he never intended such document to be implemented or acted upon and such a version on the part of the father as against his son cannot be entertained and that too, in the peculiar facts and circumstances of this case, highlighted supra.
36. The deposition of D.W.1-the defendant, would highlight that from out of his income he only brought up his son-P.W.1, educated him and enabled him to be a doctor, by acquiring expert knowledge in medicine.
37. It is not anywhere stated that the income derived from the res connected with Ex.A1 was not utilised for educating the son. It is therefore obvious that the beneficiary under Ex.A1, in stricto senso even as per the version of D.W.1-the defendant, derived benefit and in such a case, it cannot be stated that the plaintiff was not in any way concerned with the suit property and that he did not enjoy the suit property.
38. No doubt, mutation in the Revenue records or in the public records did not take place. The core question arises as to whether such absence of mutation would prove fatal to the case of the defendant.
39 In my considered opinion that may not be the decisive factor. In fact, the decision rendered by the Honourable Apex Court in 2011 (3) SCC 608 HAFEEZA BIBI AND OTHERS V. SHAIKH FARID (DEAD) BY LRS AND OTHERS 2011, referred to supra, would highlight that even de hors the Revenue records and other written documents, the beneficiary can assert his right and it all depends upon case to case. There could be no hard and fast Rule that if, in pursuance of a donation deed there is no mutation in the public records, then the donation should be deemed to be the one not implemented.
40. The learned counsel for the appellant/defendant would also point out that the original settlement deed-Ex.A1 was not produced by the donee and that shows that at no point of time he was exercising ownership over the suit property.
41. At the time of execution of Ex.A1, no doubt, the donor, his minor son and the minor donee’s mother were all living under one and the same roof and in such a case the delivery of possession of the res could only be symbolic/formal/notional.
42. The decisions cited supra would not expect that the donor should physically absent or detach himself from the suit property concerned. I am fully aware of the fact that the suit property is situated in Pennagaram Village, Dharmapuri District; whereas, at the time of emergence of Ex.A1, the parties were living in Salem.
43. Simply because the father obtained the rents from the tenants and expended it for the donee that it does not mean that he never detached his ownership right over the res.
44. The contention on the side of the plaintiff that the father’s possession and management of the suit property should be treated as one on behalf of his son, is on a sound basis, in view of the fact that Ex.A1 was a document which emerged for the purpose of providing maintenance to the then minor.
45. It is an admitted case that the plaintiff studied M.B.B.S and became a Doctor and started living in Chennai and in such a case, it cannot be expected that physically he should be present all the time in the suit property and possess it.
46. It has to be seen as to whether the management of the suit property by the father would amount to the father having managed it for and on behalf of the son. Certain excerpts from the deposition of D.W.1 would run thus:
VERNACULAR (TAMIL) PORTION DELETED
47. Undoubtedly, from the evidence it could rightly be understood that the income derived from the suit property was used for bringing up the then minor plaintiff and subsequently also for educating him. Hypothetically and imaginarily it cannot be visualised that the father, namely, the defendant, spent money other than the money which he obtained as income from the suit property and that would be amounting to artificially approaching the problem, which is untenable and anathema to justice and fair play.
48. Reverting back to the recitals in Ex.A1, there is also one other sentence in Sheet No.3 of Ex.A1 to the effect that the donor, namely, the defendant as on the date of execution of Ex.A1, detached himself totally from the res. As such, if that sentence is read along with the earlier sentence in Page Nos.1 and 2, it is unambiguously and unequivocally, axiomatically and obviously clear that the defendant from the year 1972 wanted to detach himself out and out from the ownership, which he had in the res, so to say, the subject matter of ‘Hiba’. It is therefore glaringly clear that the onus of proof is on the defendant-the donor to prove that Ex.A1 was not acted upon in view of allegedly no possession was handed over to the minor donee in any manner as per the dicta found laid down in the decisions referred to supra; however, the defendant failed to discharge his burden.
49. No doubt, during the year 1987, Ex.A2, cancelling the settlement deed-Ex.A1 was executed by the defendant. At this juncture, it is just and proper to consider as to whether the donor who validly parted with the said property could cancel the title.
50. The answer is at once clear that such a measure cannot be undertaken by the donor. No doubt, the following paragraphs relating to revocation of gifts from the famous treatise ‘Mulla’s Principles of Mahomedan Law (Nineteenth Edition), which is extracted hereunder:
“167. Revocation of gifts (1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no completed gift at all.
(2) Subject to the provisions of sub-Sec.(4), a gift may be revoked even after delivery of possession except in the following cases-
(a) When the gift is made by a husband to his wife or by wife to her husband;
(b) When the donee is related to the donor within the prohibited degrees;
) When the donee is dead;
(d) When the thing given has passed out of the donee’s possession by sale (e), gift or otherwise;
(e) When the thing given is lost or destroyed;
(f) When the thing given hash increased in value, whatever be the cause of the increase (f);
(g) When the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding (g);
(h) When the donor has received something in exchange (iwaz) for the gift (see secs.168 and 169).
(3) A gift may be revoked by the donor, but not by, his heirs after his death. It is the donor’s law that will apply to a revocation and not that of the donee.
(4) Once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of the subject of the gift.”
. . . .
. . . . .
. . . ”
would highlight that the donor can revoke it under certain circumstances. But here, it is not the case of any one that any one of the circumstances existed for the purpose of cancelling the settlement deed. Once there is valid ‘Hiba’ the question of the donor cancelling it does not arise at all.
51. I recollect the following maxims:
(i) ‘Principiis obsta’ Oppose a thing in its inception in order to have any success against it.
(ii) ‘Quae non negat fatetur’ He who does not deny, admits.
52. The sum total of the two maxims is that at the earliest point of time a person is expected to deny certain acts, which he is expected to deny and in the absence of it inference would be drawn by the Court that he admitted those fats.
53. No doubt the plaintiff did not respond immediately to the legal notice dated 30.5.1988 sent by the defendant. What are the consequence of such non-reply.
54. A party is expected to give reply to a legal notice. In all cases, non-reply or absence of reply would not amount to acceptance. The relationship between the plaintiff and the defendant cannot be forgotten.
55. The father during the year 1987 thought fit to execute such a cancellation deed and consequently he sent the legal notice. Even then, once it is held that the defendant had no right to cancel Ex.A1-the settlement Deed, the absence of reply to the legal notice sent by the defendant cannot be taken as fatal to the case of the plaintiff.
56. Under Ex.A1, there is no clause reserving any control over the res with the donor. In fact, the donor lock stock and barrel, who claims sinker parted with all his rights over the res, i.e. the building, which happens to be the subject matter of ‘Hiba’. In such a case, he cannot contend that delivery did not take place, whereby in the year 1987 he had the right to cancel the settlement deed-Ex.A1.
57. It is therefore crystal clear that the decisions cited on the side of the plaintiff are supporting and buttressing the stand of the plaintiff, whereas, the decisions cited on the side of the defendant are not of any help to the defendant’s case.
58. There could be no quarrel over the propositions as found laid down in the decisions cited on the side of the defendant, but those are all applicable to different set of facts. As such, on factual basis those decisions could be distinguished and the precedents cited on the plaintiff’s side are squarely applicable in the facts of this case.
59. In this factual matrix, it is therefore clear that the question of pressing into service Article 59 of the Limitation Act or any limitation point does not arise at all.
60. I hark back to the following decisions of the Honourable Apex Court relating to adverse possession.
(i) 2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others) certain excerpts from it would run thus:
“5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; City of Rock Springs v. Sturm.)
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off ones right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p.81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
8. Also See Privy Council’s decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) (1997) Ac 38 in this regard.
9. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially wilful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
10. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard.
New consideration in adverse possession law
11. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham made the following reference:
Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.
14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.
21. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Govt. of India in the following terms: (SCC p.785, para 11)
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
22. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.
32. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p.1256, para 5)
Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.”(emphasis supplied)
A bare and plain reading of the above excerpts would indicate and show that the plea of adverse possession cannot be assumed and presumed unless there are clinching evidence to prove the same.
61. It is crystal clear that the party who pleads adverse possession admits that the party as against whom adverse possession is pleaded happens to be the owner of the property, the onus of proof is on the person who tries to press into service the plea of adverse possession.
62. Here there is nothing to indicate that the plaintiff did not in any manner enjoy the suit property. In fact, the deposition of D.W.1 coupled with the deposition of P.W.1-the plaintiff should be understood in such a manner that the father i.e. the defendant was managing the property and he was giving the income to the son i.e. the plaintiff for his own upliftment and in such a case, I am at a loss to understand as to how the concept adverse possession can be pressed into service by the defendant.
63. During the pendency of the second appeal attempts have been made to put forth before this Court additional facts to the effect that the defendant transferred the suit property in favour of his near relatives. It is quite obvious and axiomatic that such facts are totally irrelevant for the purpose of adjudicating this case and no more elaboration in this regard is required in view of the discussion supra.
64. The trial Court without taking into account the salient features as discussed supra, accepting in toto the case of the defendant, dismissed the suit. Whereas, the first appellate Court au fait with law and au courante with facts adverted to the various aspects of the Mahomaden Law and correctly upset the judgment and decree of the trial Court, warranting no interference in second appeal.
65. Hence, in these circumstances, I am of the considered view that no question of law much less substantial question of law is involved and in such a case I could see no merit in the second appeal and accordingly, the second appeal shall stand dismissed. However, there is no order as to costs.
1. The Principal District Judge, Dharmapuri.
2. The Subordinate Judge,