whether the plaintiff is able to establish her possession over the schedule property despite execution of Ex.B7 gift deed as there was a recital of delivery of possession ?
held that
Considering the relationship between the parties, this Court views that merely because the tenants of the building were permitted to use the toilets that any stretch of imagination as a matter of fact, it cannot be held that the possession of the property was not delivered to the 1st defendant by virtue of Ex.B7 gift deed and that the gift deed was not acted upon.
It is the contention of the plaintiff that in pursuance of the gift deed, there is no mutation of names in the Municipal registers. The 1st defendant/appellant has placed relevant record to show that he secured the loan amount from the bank on the strength of the Ex.B7 gift deed and he exercised the right over the schedule property by securing loans from the bank and subsequently discharged the same. As it is a vacant site, the 1st defendant is not expected to place record to show his exclusive or absolute 2023:APHC:4243 19 AS_1951_2000 possession over the schedule property. Simply because, plaintiff collected the rents from the tenant, it cannot be concluded that she has not lost right over the property by virtue of the gift deed. In the cross examination DW.1 stated that in the year 1979 he joined in service and he married in the year 1983. Around 1987 for one year he lived separately in Morrispet, till such time he lived with his parents. The material on record shows that by virtue of his employment, the 1st defendant used to reside somewhere else and in the said facts of the case, the collection of rent by the plaintiff does not defeat the rights of the 1st defendant over the schedule property. Each case would depend upon its circumstances. The evidence of DW.1 goes to show that he used to stay in different places by virtue of his employment. It must be noted that simply because the plaintiff was entrusted for collection of the rents from the tenants it cannot be said that the property was not delivered to first defendant by virtue of the gift deed. The mere fact that donee who happens to live in the house abutting to the site and manages the site in absence of her son because of his employment. At the cost of repetition it is not 2023:APHC:4243 20 AS_1951_2000 sufficient enough to hold that possession had not passed and the possession remained with the donor.
HON’BLE SRI JUSTICE T.MALLIKARJUNA RAO
APPEAL SUIT No.1951 OF 2000
JUDGMENT:
1. Feeling aggrieved and dissatisfied with the Judgment and Decree
dt.22.06.2000 in O.S. No.95 of 1995 passed by the Principal Senior
Civil Judge, Tenali (for short “the trial court”) by which the suit is
decreed for recovery of possession and mesne profits, the defendants
therein have preferred the present appeal.
2. For convenience, the parties will hereinafter be referred to as arrayed
in the suit.
3. The plaintiff filed a suit seeking recovery of possession and mesne
profits. In the nutshell, the averments in the plaint are to the affect
that, the plaintiff is the absolute owner of the plant schedule property;
on 27.08.1984 (in the plaint, the date of the gift deed is mistakenly
mentioned as 27.08.1994), she executed a gift deed in respect of the
plaint schedule property in favour of her son i.e. the first defendant,
to facilitate him to take the loan from the Government. Even after the
gift, the plaintiff continued in possession and enjoyment of the plaint
schedule property by paying taxes. Among Muslims the gift becomes
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AS_1951_2000
invalid if possession of property under gift deed is not delivered. The
first defendant acquired no title to the plaint schedule property
(a) On 15.01.1993 the first defendant executed a gift deed styled as
Hiba-bil-iwaz in respect of plaint schedule property in favour of his
sister i.e., the 2nd defendant. On 28.08.1994 the plaintiff got issued a
registered notice to the first defendant through her advocate, but he
did not give reply to the said notice. On 28.09.1994 the plaintiff
executed a revocation deed cancelling the gift deed dt.27.08.1984. In
the year 1994, the plaintiff authorized her second son to carry on the
construction in the schedule site and provided the necessary funds as
she has to go to Chandigarh. The building was got constructed by the
second son. After the construction, the second defendant requested
her brother Sayyad Shabbir allow her to reside in the scheduled
house until the plaintiff arrived from Chandigarh, and she was
permitted to reside therein. After returning from Chandigarh, the
plaintiff required the second defendant to vacate and deliver
possession of plaint schedule premises. But, she refused to vacate,
setting up false claims to the same. The possession of the second
defendant in respect of the plaint schedule property is illegal and she
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AS_1951_2000
is a trespasser and she is liable to vacate and deliver the possession of
the same.
4. The sum and substance of the written statement filed by the first
defendant is as follows :- His mother, the plaintiff, transferred the
vacant site in his name by way of a registered gift deed dated
29.08.1984 by giving possession out of love and affection and he was
in possession and enjoyment till he made a gift to the second
defendant on 15.01.1993. When the first defendant approached the
Municipal Authorities, they informed him that there was no system of
imposing taxes for vacant lands in the area. The only vacant site that
lies on the northern side of the dwelling house was gifted and the
southern boundary to the gifted site is the dwelling house. The
plaintiff was not paid any taxes for the first defendant’s vacant site.
She may have paid taxes on her house only. All the essentials of the
gift as per Section 126 of the Transfer of Property Act were duly
fulfilled, and the gift was completed after the delivery of possession.
The revocation made after possession has been passed to the donee
by the donor is void and carries no legal validity. When the first
defendant approached the plaintiff in the presence of family members,
after receipt of the legal notice the plaintiff orally accepted that she
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AS_1951_2000
had done a foolish thing by sending a legal notice. As such the
plaintiff thought that there was no need to send a reply to the
registered notice. His parents expressed their desire to give this suit
schedule property to the 2nd defendant. As a pious son, this
defendant agreed to retransfer as a gift to the second defendant. As
such, the first defendant has gifted the same to the second defendant,
along with the possession. The second defendant constructed the
house with her own funds.
5. The second defendant filed a written statement in the same lines of
the written statement of the first defendant. It is the case of the
second defendant that the plaintiff’s husband purchased the plaint
schedule site in the name of the plaintiff. The plaintiff has no source
of income to purchase the plaint schedule site. The second defendant
is the elder sister of the first defendant and she is a handicapped
woman. On account of love and affection towards the second
defendant, the first defendant gifted the plaint schedule site and
delivered the possession according to Muslim law.
(a) Subsequently, the first defendant confirmed the gift by executing a
gift deed dt.15.01.1993 styled as Hiba-bil-iwaz. Thus, on account
of Hiba-bil-iwz, the second defendant who became the absolute
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AS_1951_2000
owner of the plaint schedule property, constructed a terrace house
from October 1993 to December 1993 and entered into the new
house on 01.01.1994. At the function of the foundation stone
(sankusthapana) of the building in the month of October 1993, the
plaintiff and her husband were present. Even at the time of house
warming ceremony (gruhapravesham), the plaintiff and other
relatives were present, and new clothes were also present, so also
photographs were taken on the auspicious occasion. The plaintiff
has never gone to Chandigarh. The house tax was also levied in
the name of the second defendant by the municipality. The second
defendant obtained electricity supply also for the plaint schedule
property.
6. As seen from the trial court record, the issues are recast on
19.04.2000, which are as follows:
i. Whether the gift by plaintiff in favour of D1 is
nominal?
ii.Whether the plaintiff is entitled for recovery of
possession of suit property?
iii. Whether the plaintiff is entitled for profits as
prayed for?
iv. To what relief?
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AS_1951_2000
7. On behalf of the plaintiff, P.Ws.1 to 3 got examined and marked
Exs.A.1 to A.9. On behalf of the defendant, D.Ws.1 to 3 got
examined and marked Exs.B.1 to B.14.
8. The trial court, after analyzing the evidence on record, answered
issue No.1 by holding that one of the essential ingredients i.e.,
delivery of possession under Mohammadan law is not complied with
and the gift in favour of the first defendant by the plaintiff is not a
valid one.
(a) While answering issue No.2, the trial court held that in view of the
finding given on issue No.1 that the gift executed by the plaintiff
in favour of the first defendant under Ex.B.7 is not valid one and
consequently, Hiba-bil-iwaz under Ex.B.6 is of no use and the
plaintiff is entitled to recover the possession of the property.
(b) While answering issue No.3 the trial court held that the plaintiff is
entitled to mesne profits at Rs.600/- per month. While answering
issue No.4, the tribunal decreed the suit by directing the second
defendant to deliver possession of the plaint schedule property to
the plaintiff.
9. I have given my thoughtful consideration to rival submissions and
perused the material on record.
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AS_1951_2000
10. Now the points that arise for determination are,
Whether the plaintiff is entitled for possession of
the schedule property and mesne profits on the
ground that the Ex.B7 gift deed was void and
revoked ?
POINT :
11. The 1st defendant is the 2nd son ; 2nd defendant is the daughter of
the plaintiff; the plaintiff’s husband Abdul Hazeez worked as Town
Planning Supervisor and retired in the year 1973; the 2nd
defendant is a handicapped woman.
12. It is equally an admitted case of both parties that; on 27.08.1984,
the plaintiff executed Ex.B7 Gift deed (i.e., the original of Ex.A1) in
respect of the suit schedule property in favour of 1st defendant; on
15.01.1993 the 1st defendant executed gift deed as Hiba-bil-iwaz
vide Ex.B6 in respect of plaint schedule property in favour of 2nd
defendant. On 22.08.1984, the plaintiff got issued registered notice
(i.e., the original of Ex.A3 office copy) calling upon the 1st
defendant to advise 2nd defendant not to set up any claims to the
plaint schedule property as the gift deed executed in her favour is
invalid and does not convey any title. Admittedly, the first
defendant has not sent any reply to the said notice. On 28.09.1994
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AS_1951_2000
the plaintiff executed Ex.A-2 Revocation deed, revoking gift deed
executed by her in favour of D.1.
13. The plaintiff examined as PW.1, it is her evidence that she
executed Ex.B7 gift deed to facilitate 1st defendant to take loan
from the Government. Though it is recited in gift deed, in fact she
has not delivered the possession of schedule property to the 1st
defendant as she was instructed to write accordingly, otherwise the
document is not valid.
14. It is the version of the PW.1 that as first defendant executed Ex.B6
in favour of 2nd defendant, she executed gift revocation deed vide
Ex.A2. According to her evidence, she herself constructed the
building in the schedule property while she was in Chandigarh
through her son by sending money to him. The plaint cleverly does
not disclose that the son as referred to in the plaint is no other
than the first defendant. But 2nd defendant entered into the house
under the pretext that she would resides therein for two days and
the 1st defendant allowed her into the building. When she
demanded defendant No.2 to vacate the building, but she did not
vacate. The 2nd defendant has no capacity to construct building.
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AS_1951_2000
2nd defendant has no employment, but in the cross examination
PW.1 stated that the 2nd defendant is working in Leprosy
Department and her husband is working in Health Department
and their marriage took place about 30 years back.
15. It is the evidence of PW.1 that by the date of gift deed, she was
residing in the daba house and defendant No.1 was residing in
Municipeta in a rented house ; PW.1 deposed that two years after
execution of the gift deed, she let out her dhaba house to one Yella
Rao (PW.3), he continued as a tenant for a period of six years by
paying rent of Rs.600/- per month. PW.3 used to enjoy the toilets
and water tap situated in the schedule site. She further deposed
that she let out schedule site to one Sambi Reddy (PW.2), a
mechanic, two years after the execution of the gift deed. 1st
defendant never collected rents from PW.2 or from any other
person.
16. At the outset it is required to be noted that the gist of contention
put forth by the plaintiff is that she has not delivered the schedule
site to the 1st defendant despite execution of Ex.A1 deed. The trial
court had proceed on the assumption that schedule property was
2023:APHC:4243
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AS_1951_2000
not delivered. She got constructed the building in the schedule site
through the 1st defendant. The 2nd defendant has no capacity to
construct the building. Whereas, the case of the defendants is that
1st defendant got possession of the schedule property through
Ex.B7 gift deed. The 1st defendant executed the Ex.B6 gift deed in
favour of 2nd defendant in respect of plaint schedule property. The
2nd defendant constructed the building in the schedule site. Ex.A2-
revocation deed executed by the plaintiff is void.
17. Sri.Shafiullah Baig, the learned counsel for the
appellants/defendants assiduously urged that in Ex.B7 gift deed
executed, there is a recital that the possession of the property
which is subject matter of the gift is delivered to the donee, it is an
admission binding on the plaintiff. The burden lies on the plaintiff
being executant of the document to establish that possession was
in fact not affected in favour of the donee as per the recitals of the
gift deed and the onus was wrongly placed by the trial court on the
donee to establish that delivery of possession was actually affected.
18. Sri.S.Syam Sundar, the learned counsel for the respondent /
plaintiff submits that the transfer of possession is essential
2023:APHC:4243
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AS_1951_2000
ingredient for completing and validating a gift deed under the
Mohammadian Law and without such a transfer of possession, the
gift deed is invalid. The trial court has correctly assessed the
evidence on record and came to a correct conclusion that the
property was not delivered to first defendant despite the execution
of gift deed.
19. As already observed, the plaintiff has executed a deed of gift i..e,
Ex.B7 in favour of the first defendant, the document was registered
as required under law. There is a clear recital to the effect that
possession of the property is delivered in favour of the first
defendant. The procedure prescribed under the transfer of Property
Act in relation to the gifts doesn’t apply to the gifts made by
persons professing Islam. However, there is no prohibition for them
to adopt the procedure prescribed under the Act. In India they
have the option either to follow their Personal Law, in the matter of
making the gifts or to follow the law contained in the Act. In the
light of above facts now it is to be seen whether the plaintiff is able
to establish her possession over the schedule property despite
execution of Ex.B7 gift deed.
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AS_1951_2000
20. In support of his submissions, learned counsel appearing for
plaintiff relied on the following citations;
(a) Revappa Vs. Madhava Rao and another1, wherein the High
Court of Karnataka held that:
Under the Mohammadan Law, however, transfer
of possession of the property which is the subject
matter of the gift is an essential condition to
validate the gift. In the absence of such a transfer,
the gift becomes invalid.
(b) Moti Vs. Roshan and others2
, wherein the High Court of
Himachal Pradesh held that:
In any case, the plaintiff-appellant had not been
able to prove that, as a result of some gift to him,
a delivery of possession of any part of the plots in
dispute took place at all. Under the ordinary
Hindu Law delivery of possession is essential to
complete a gift, and even registration of a deed of
gift has been held to be insufficient to overcome
the defect of want of delivery of possession.
(c) Shaik Mahaboob Saheb Vs. Sk.Fareed Rahib3, wherein this
Court held that:
delivery of possession is essential in order to
complete a gift under the Muslim Law
notwithstanding the fact that the gift deed is
1 AIR 1960 MYSORE 97
2 AIR 1971 Himachal Pradesh 5
3 1975 (1) (H.C)
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AS_1951_2000
executed and registered under section 123 of the
Transfer of Property Act. Even though a gift deed
is registered, if delivery of possession of the gifted
property which is an essential ingredient in a gift
made by a Muslim has not been made over to the
done, the gift is incomplete and consequently no
title passes to the done.
Essential Ingredients of gift by a Muslim under
the Muslim Law are:
1) There must be a declaration of the gift by
the donor showing his intention to divest
ownership in the property and transfer the
property to the done.
2) There must be acceptance, either express or
implied, of the gift by or on behalf of the done.
3) There must be delivery of possession of the
gifted property to the done.
(d) Musa Miya Walad Mahamad Shaffi and anr., Vs. Kadar Bax
Walad Khaj Bax, since deceased and anr.,4 wherein the
Bombay High Court held that:
There is no doubt that the case has to be decided
according to Mohamedan law, and that the
chapter on gifts in the Transfer of Property Act,
1882, is not applicable.
Their lordships are of opinion that a correct
statement of the law on the question under
consideration is to be found in the material
clauses of Chap.V of Macnaghten’s “Principles and
Precedents of Mohammedan Law”, published in
1825. They are as follows:
4 Vol.XXXII of the Calcutta Weekly Notes
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AS_1951_2000
1. A gift is defined to be the conferring of property
without a consideration.
2. Acceptance and seizin, on the part of the
donee, are as necessary as relinquishment on
the part of the donor.
4. It is necessary that a gift should be
accompanied by delivery of possession and that
seizin should take effect immediately or at a
subsequent period by desire of the donor.
8. A gift cannot be implied. It must be express and
unequivocal, and the intention of the donor
must be demonstrated by his entire
relinquishment of the thing given, and the gift
is null and void where he continues to exercise
any act of ownership over it.
9. The case of a house given to a husband by a
wife and of property given by a father to his
minor child form exceptions to the above rule.
10. Formal delivery and seizin are not necessary
in the case of a gift to a trustee having the
custody of the article given, nor in the case of a
gift to a minor. The seizin of the guardian in
the latter case is sufficient.
(e) K.Maqbool Alam Khan Vs. Khodaija5
, wherein the Apex
Court held that:
To validate the gift, there must also be either
delivery of possession or failing such delivery,
some overt act by the donor to put it within the
power of the donee to obtain possession. If apart
from making a declaration, the donor does
nothing else, the gift is invalid. In Macnaghten’s
Muhammadan Law, Precedents of Gifts, Case
No.VI.
5 AIR 1996 sc 1194
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AS_1951_2000
The ratiocinations extracted supra propound with clarity
the position of law that under the Mohammedan Law the delivery
of possession is essential in order to complete the gift.
21.Plaintiff has placed much reliance on the evidence of PWs.2 and 3.
The evidence of PW.2, he took the schedule property on lease from
1985 to 1990 for manufacturing business i.e., moulding purpose,
on payment of rent of Rs.100/- per month and by that time one
Yellarao (PW.3) was also residing in the schedule building as a
tenant is not disputed in his cross examination. The evidence of
PW.3 that he resided in the house situated to the southern side of
the schedule property for a period of four or five years and vacated
the same in the year 1989 or 1990 by paying rent at Rs.600/- per
month is not disputed.
22.The evidence of PWs.2 and 3 coupled with the evidence of 1st
defendant as DW.1 shows that there is no demarcation or
separation of the vacant site and building and both the house and
site are in one compound. In the cross examination DW.3, he
deposed that he doesn’t know the names of tenants in the building
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AS_1951_2000
situated in the south of the schedule property and the tenants
have been using bathroom and lavatory with his consent. It
supports the version of plaintiff that the schedule property and
adjacent building were let out.
23.It is not the first defendant’s case that he collected rents from the
tenant it would be apposite to refer that DW.1, admitted that both
the vacant site and the building bear one assessment number; his
mother has been paying the tax; he never filed any petition before
Municipality to assess the tax separately to the vacant site belongs
to him. There is no separate assessment number to the site for
which he applied the building plan. Basing on the said evidence of
DW.1 it is contended that despite execution of Ex.B7 gift deed,
plaintiff remains in possession of the schedule property. The
material on record would indicate that the building which is
situated on southern side of the schedule property does not have
toilet facilities. One thing remains certain that in the said building,
plaintiff and his family members including the 1st defendant used
to reside as on the date of execution of the gift deed. Considering
the relationship between the parties, this Court views that merely
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AS_1951_2000
because the tenants of the building were permitted to use the
toilets that any stretch of imagination as a matter of fact, it cannot
be held that the possession of the property was not delivered to the
1st defendant by virtue of Ex.B7 gift deed and that the gift deed
was not acted upon.
24. However, the 1st defendant who is examined as DW.1 deposed
that in the year 1987 he obtained a loan from the urban bank by
mortgaging the suit schedule property. To establish that, he relied
on Ex.B3 hypothecation agreement with bank and also Ex.B4
security bond with bank ; to establish that, he discharged the
said loan taken from the Urban Bank; he relied on Ex.B5
clearance certificate. To show that he obtained approved plan
from the Municipality in the year 1989 to construct a building in
the schedule property, he relied on Ex.B1 approved plan. It is his
evidence that due to lack of sufficient funds he could not
construct the house, thereafter he settled the property to 2nd
defendant.
25. In this regard, PW.1 stated in cross examination that, she doesn’t
know whether the first defendant mortgaged the plaint schedule
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AS_1951_2000
property in a bank and obtained a loan. She never enquired about
the said loan in cooperative bank. She did not enquire with the
first defendant about the loan. She had no dispute with the 1st
defendant till the date of her giving evidence in the court.
Therefore, there is no manner of doubt that PW.1 has not at all
disputed DW.1’s evidence regarding the loan transactions. It
seems that the plaintiff had not made any effort to know about
those transactions even after filing of the written statement. The
evidence of DW.1, the documents relied on by him manifestly
indicate that DW.1 has taken loan from the bank by mortgaging
the schedule property and discharged the loans.
26. It is the contention of the plaintiff that in pursuance of the gift
deed, there is no mutation of names in the Municipal registers.
The 1st defendant/appellant has placed relevant record to show
that he secured the loan amount from the bank on the strength of
the Ex.B7 gift deed and he exercised the right over the schedule
property by securing loans from the bank and subsequently
discharged the same. As it is a vacant site, the 1st defendant is
not expected to place record to show his exclusive or absolute
2023:APHC:4243
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AS_1951_2000
possession over the schedule property. Simply because, plaintiff
collected the rents from the tenant, it cannot be concluded that
she has not lost right over the property by virtue of the gift deed.
In the cross examination DW.1 stated that in the year 1979 he
joined in service and he married in the year 1983. Around 1987
for one year he lived separately in Morrispet, till such time he
lived with his parents. The material on record shows that by
virtue of his employment, the 1st defendant used to reside
somewhere else and in the said facts of the case, the collection of
rent by the plaintiff does not defeat the rights of the 1st defendant
over the schedule property. Each case would depend upon its
circumstances. The evidence of DW.1 goes to show that he used
to stay in different places by virtue of his employment. It must be
noted that simply because the plaintiff was entrusted for
collection of the rents from the tenants it cannot be said that the
property was not delivered to first defendant by virtue of the gift
deed. The mere fact that donee who happens to live in the house
abutting to the site and manages the site in absence of her son
because of his employment. At the cost of repetition it is not
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AS_1951_2000
sufficient enough to hold that possession had not passed and the
possession remained with the donor.
27. According to the evidence of DW.1, his parents asked him to
exchange the property covered under gift deed to 2nd defendant
with a view to enable both the sisters to live at same place; as
such he was given a vacant site at Gandhi Chowk and till
execution of gift deed the property was in his possession and
enjoyment with full rights, later 2nd defendant raised house in the
suit schedule property. His mother never gave any amount to him
to construct a house in the schedule property. At the time of
settlement of the property in favour of 2nd defendant in the year
1993, his father purchased a vacant site in his name at Gandhi
Chowk, wherein he constructed a house with his funds. The daba
house adjacent to the suit schedule site is in the name of another
sister since 1992 onwards. The 2nd defendant examined as DW.2,
the father of defendants 1 and 2 examined as DW.3. The said
evidence of DW.1 is supported by the evidence of DWs.2 and 3.
DW.3 stated in his evidence, he attested Exs.B6 and B7
documents. The evidence of DWs.1 to 3 is consistent that as 1st
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AS_1951_2000
defendant was asked to execute the gift deed in favour of the 2nd
defendant, DW.3 has given the house site situated at Gandhi
Chowk, which belongs to him and therein 1st defendant
constructed the house. The said evidence of DWs.1 to 3 has not
seriously disputed in cross examination. Nothing is elicited in the
cross examination to discredit the evidence. The plaintiff has not
chosen to examine any of other family members to disprove the
said version given by DWs.1 to 3. This court finds no reason for
DW.3 to give evidence against the interest of plaintiff. Otherwise,
there is no compelling reason for the first defendant also to
execute deed against the wishes of her mother.
28. In support of the evidence of DW.1, the 2nd defendant and also
DW.3/father of the defendants 1 and 2 are examined. The 2nd
defendant examined as DW.2, she deposed that her father
purchased the schedule property in the name of her mother. In
the year 1993 her father called upon all the family members and
expressed his intention to partition all the properties and
obtained their opinion. In the said partition the suit schedule site
was given to her and his father asked 1st defendant to convey the
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AS_1951_2000
same in her favour and accordingly Ex.B6 document was
executed in their joint family house at Gandhi chowk.
29. The evidence of DW.3 – Syed Abdul Azeem, that he attested Ex.B7
document is not disputed. His evidence shows that in pursuance
of Ex.B7, the possession was delivered on 27.08.1984 to the 1st
defendant, in the morning itself in the presence of family
members including his wife. The document was executed on the
same day at their house at about 09.00AM. When the process of
drafting document was in progress, his son left for his duty in the
midst and later the document was registered. He was also present
at the time of registration.
30. At this stage, it must be referred to that it is the plaintiff’s case
only to facilitate the 1st defendant to get a loan from the bank, she
executed Ex.B7 gift deed. This court views that to obtain a loan
one need not transfer the property. The plaintiff herself can
secure the loan amount and give it to the first defendant. The
reason offered by the plaintiff for execution of the gift deed in
favour of her son is not convincing. No doubt it is clearly
mentioned in Ex.B7 the property was delivered to the first
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AS_1951_2000
defendant at the time of execution of the document. The recitals
of the document also supports the first defendant’s case. By the
time of execution of Ex.B7- Gift deed he was doing job at Ponnur
and he did not attend at the time of registration and on that day
property was not handed over to him, later the property was
handed over to him and he did not make application for mutation
of property in his name. However, the evidence of DW.1 in cross
examination shows that, he had not taken delivery of the property
on that day. However DWs.2 and 3 stated in their evidence that
the property was delivered to the first defendant on execution of
gift deed. Though the said evidence of DW.1 goes to show that the
property was not delivered as recited in the document, but the
first defendant has placed documentary evidence before the court
to show that he obtained the loan from the bank by mortgaging
the schedule property and discharged the same. The reading of
the evidence of DW.1 in cross examination shows that she has
not at all disputed the said case of the first defendant. The
evidence adduced on behalf of both parties shows that the
plaintiff’s another son used to reside at Chandigarh for some time
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AS_1951_2000
and plaintiff used to visit him. It is her evidence that while she
was going to Chandigarh she handed over the necessary funds to
1st defendant to construct house in schedule property. The said
evidence of PW.1 is not supported by the evidence of her husband
(DW.3). The evidence of PW.1 and DW.3 shows that there were no
serious dispute between them, however they are living separately
from the year 1993 onwards. Though the second defendant
contends that all the properties which stand in the name of
plaintiff were purchased by DW.3 in support of the said case, no
evidence is let in. DW.3 also stated in his evidence he purchased
the properties in the name of his wife because of his employment.
As seen from the written statement the first defendant has not
taken such plea. However first defendant has not disputed the
right of the plaintiff over the schedule property covered under
Ex.B7. Basing on the evidence of DW.1 it is the prime contention
of plaintiff that the schedule property was delivered to the first
defendant at the time of execution of the gift deed and therefore,
the gift deed was void. The evidence of DW.3 goes to show that he
partitioned the properties in the year 1993. It is clear from the
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record that after execution of Ex.B6 gift deed in favour of second
defendant by first defendant, the plaintiff has executed gift
revocation deed and she also stated clearly in her evidence. It is
clear from the evidence of PW.1 that she executed revocation deed
as she did not like the execution of gift deed in favour of second
defendant by first defendant. It seems that there are differences
between plaintiff and second defendant which prompted the
plaintiff to execute revocation deed.
31. It is the evidence of DWs.1 to 3 that in the circumstances stated
deposed by them Ex.B6 document was executed in favour of the
second defendant at the joint family house at Gandhi Chowk.
DW.2 stated in her evidence, her father and her third brother
attested the document and handed over the possession of
schedule property to her along with Ex.B7 document. Her
constructing the building in the schedule site is known to all her
family members. The evidence of DW.2 shows that she obtained
electricity connection vide Ex.B12 and paid the electricity
charges; to show the payment of municipal taxes she relied on
Exs.B13 and B14 tax receipts. The evidence of DW.2 that she
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AS_1951_2000
constructed the house after selling away the house site belongs to
her house site at Mangaligiri is not disputed. The evidence of
DW.3 also shows that he and his another son attested the Ex.B6
gift deed. DWs.1 to 3 stated in their evidence that all the family
members including the plaintiff were present at the time of
housewarming ceremony and Exs.B8 to B11 photographs were
taken at that time, the said evidence of DWs.1 to 3 is not
disputed. The normal course of events that can be visualized
basing on the evidence that the plaintiff attended the
housewarming ceremony knowing fully well that the 2nd
defendant constructed house in the schedule property. The 2nd
defendant spent an amount of Rs.80,000/- for construction of
building besides giving amount by his youngest daughter. The
other contention of the plaintiff is that the 2nd defendant has no
source of income to construct the building. The evidence of DWs.1
to 3 is clear enough as to how she secured the amount. The
unchallenged evidence of DWs.1 to 3 goes to show that the
second defendant has got house property, she and her husband
are in the employment; the evidence of DWs.1 to 3 also goes to
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AS_1951_2000
show that younger daughter of plaintiff who was allotted house
property has given Rs.60,000/- for construction of house by the
second defendant in pursuance of family arrangements. It is
pertinent to note that though the plaintiff is blessed with five sons
and two daughters, she did not examine any one of her children
to support her case. Admittedly, she is residing with her elder
son. He also has not come forward to support her mother. The
plaintiff has not examined her second daughter to disprove the
case of second defendant with regard to giving of Rs.60,000/- to
her. If really plaintiff given the amount to 1st defendant to
construct house, her version is expected to be supported by
atleast some of the family members. Her evidence is not
supported by any independent evidence. In the said facts of the
case the Trial Court is not supposed to have accepted the
evidence of PW.1 in this regard. The material on record shows
that she attended to the all the ceremonies held by the 2nd
defendant in respect of the plaint schedule property, but she has
given inconsistent pleas. On one hand she contends that the first
defendant trespassed into the property and on the other hand the
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AS_1951_2000
plaintiff contended that the second defendant entered into the
possession of the property with permission. She executed
revocation deed though the plaintiff claims that the 2nd defendant
entered to the possession of the schedule property as trespasser.
The evidence of DWs.1 to 3 coupled with the photographs relied
on by the 2nd defendant shows that he has not taken the
possession of the schedule property as a trespasser.
32. The material on record goes to show that the second defendant
constructed the house in the schedule property. She is paying
electricity and house taxes.
33. The learned counsel for the appellant submits that Ex.B7 is a
registered gift deed and hence in terms of proviso 4 of Section 92
of the Evidence Act, it is not permissible for the defendant to lead
oral evidence contradicting, varying, adding or subtracting to form
the terms of the document and the oral evidence was not
permissible and The trial court has committed error in taking into
consideration of oral evidence. Section 91 of the Evidence Act
prohibits any oral plea, contrary to the recitals in a written
document.
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AS_1951_2000
34. The whole thrust of arguments of the learned counsel for
respondent/plaintiff is that Ex.B7 gift deed was never intended to
be acted upon.
35. In this regard, it would be profitable to refer a case of Gangabai
Vs. Chhabubai6
, wherein the Hon’ble Apex Court held that ;
Section 91 of the Indian Evidence Act deals with the
terms of contracts or of grants or of any other
disposition of the property, which are in fact reduced
to the form of a document, though not required by
law to be so reduced, and those which are required
by law to be reduced in the form of documents. It
mandates that no evidence shall be given in proof of
the terms of any contract, grant or other disposition
of property or of such matter, except the document
itself, or the secondary evidence of its contents, as is
admissible under the provisions of the said Act.
Section 91 is thus based on the best evidence
principle and it excludes extrinsic evidence of the
terms.
36. Section 92 of the Indian Evidence Act mandates that no evidence
of any oral agreement or statement shall be admitted, as between
the parties to any such instrument or their representatives in
interest, for the purpose of contradicting, varying, adding to or
subtracting from, its terms. Thus, the parties to any such
instruments or their representatives in interest are prevented
6 AIR 1982 SC 20
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AS_1951_2000
from leading parol evidence of any oral agreement or statement
for the purpose of contradicting, varying, adding to or subtracting
from, the terms of contract which are required by law to be
reduced to a form of a document. There are, however, certain
exceptions contained in proviso (1) to (6) to the aforesaid principle
under Section 92 of the said Act. The present case is concerned,
only with provisos (1) and (4) therein and hence the same are
considered.
37.In terms of proviso (1) Section 92 of the said Act, any fact may be
proved which would invalidate any document, or which would
entitle any person to any decree or order relating thereto; such a
fraud, intimidation, illegality, want of due execution, want of
capacity in any contracting party, want or failure of consideration,
or mistake in fact or law. Thus a plea to invalidate any document
proved in accordance with Section 91 is available, where a case is
made out of fraud, intimidation, illegality, want of due execution,
want of capacity in any contracting party, want or failure of
consideration, or mistake in fact or law.
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AS_1951_2000
38.Proviso (4) to Section 92 of the said Act provides that where a
contract or disposition not required by law to be reduced in writing
has been arrived at orally, then existence of any distinct
subsequent oral agreement, modifying or rescinding the said
contract or disposition can be substantiated by parol evidence and
such evidence is admissible. There is however, proviso to this
proviso, contained in the second part of proviso (4) itself, which
does not permit leading of parol evidence for proving a subsequent
oral agreement modifying or rescinding the registered instrument.
It means that if initial document is registered, the modification or
substitution of its terms can only be by another registered
document.
39.As seen from the Paragraph No.34 of the Judgment of Trial Court,
the same contention is raised by relying on the decision in
M.Saireddy Vs. Balaiah @ Baburao and others7. The trial court
has not upheld the contentions of the counsel for the appellant
that by observing that in this case on hand, the plaintiff
specifically pleaded and proved that possession was not delivered.
7 1997(6) ALT 321
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AS_1951_2000
Thus the embargo placed by Section 92 cannot be made applicable
to the facts of the case on hand.
40.It is palpably evident that the plaintiff has not disputed the
execution of the Ex.B7 gift deed. It is not the case of the plaintiff
that the document is to be invalidated because of fraud,
intimidation, illegality, want of due execution, want of capacity in
any contracting party, want or failure of consideration, or mistake
in fact or law. It is the case of the plaintiff that she was aware that
a recital mentioned regarding the delivery of property and the gift
deed is executed to facilitate the 1st defendant to obtain a loan. The
said reason stated by the plaintiff is not acceptable for the reasons
stated supra. As such, it cannot be considered as a case of mistake
of fact. Even otherwise, if the evidence of DW.1 that the property
was not delivered on the date of execution of the gift deed is
considered, it cannot be interpreted in such a way that he deposed
that the property was not at all delivered subsequently also. In the
said facts of the case, the trial court should not have given
importance to the evidence of DW.1 as pointed out above.
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AS_1951_2000
41.There can be no controversy that the plaintiff executed revocation
deed of gift, ten years after its execution. From the version given in
cross examination of PW.1, it is clear that as the 1st defendant
executed gift deed in favour of 2nd defendant, the 1st defendant
revoked the Gift. The evidence on record shows that even by the
time of revocation of the deed, the donee under Ex.B7 executed gift
deed vide Ex.B6 in favour of 2nd defendant in respect of the
schedule property and she constructed a house therein. But that it
is not the end of the matter, having knowledge about the
construction of house by 2nd defendant in the schedule property
the plaintiff participated in the ceremonies relating to the house,
the plaintiff revoked the gift executed in favour of 1st defendant. By
the time of revocation of Ex.B7 gift deed vide Ex.A2 third party
interest is created and third party took possession of the property.
The execution of Ex.A2 deed certainly effects the rights of the third
parties.
42.The question as to whether a document which is validly executed
can be cancelled at a subsequent point of time considered in a
decision in case of Fazal Ullah Khan Vs. The State of A.P and
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AS_1951_2000
Ors.,8 this Court held by referring to a decision of full bench of this
that in Yanala Maheswari Vs. Ananthula Sayamma9
, the Full
Bench took the view that the remedy for an aggrieved party is only
to file a suit and the Registering Authority cannot be said to have
committed any illegality by registering a deed of cancellation
without participation of both the parties. That view, however, was
found fault with the Hon’ble Supreme Court in Civil Appeal No.317
of 2007, their Lordships took the view that once the title in respect
of the property is transferred through a transaction, the same
cannot be cancelled without the participation of both the parties.
Reference was made to Rule 26 (i) (k) (i) of the Rules framed by the
Government.
43. In the context of the law laid down, which has been extracted
above, this court views that the plaintiff is not supposed to cancel
the gift deed unilaterally. A perusal of the rule 26(1)(k)(i) shows
that it covers not only the sale deeds, but also to the deeds of the
gift also. On such unilateral cancellation of the gift deed, the
8 Manu/AP/0195/2012
9 MANU/AP/0686/2006 : 2006 (6) ALT 523 (F.B)
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AS_1951_2000
plaintiff is not entitled to seek possession of the schedule
property. I would like to consider the facts of the case by
assuming that schedule property was not delivered to first
defendant on the day of Ex.B7 by adverting to some decisions
which clinch the issue.
44.In a case Sk.Golam Gous Vs. Sk. Raujan10, the High Court of
Calcutta held that:
“Under the Muhammadan law, where a property
the subject matter of a gift is in actual possession
of the donor and the done, who are related and
the donor declares in unequivocal language that
he has divested himself of ownership and
authorises the done to take possession, the
character of the donee’s possession which already
existed is altered and for all formal purposes the
gift must be considered to have been perfected by
such delivery of possession as is feasible in the
circumstances”.
In a case Shaik Ibhram Vs. Shaik Suleman11, the High Court of
Bombay held that:
For the purposes of completing a gift of immovable
property by delivery and possession, no formal
entry or actual physical departure is necessary: it
is sufficient if the donor and done are present on
the premises, and an intention on the part of the
10 (1946) 50 Cal WN 81
11 (1885) ILR 9 Bom 146
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AS_1951_2000
donor to transfer has been unequivocally
manifested”.
45.The case of Muhammad Abdul Ghani V. Fakhr Jahan Begam12
was decided by the Privy Council on the footing that the mere fact
that the donor continued to remain in possession of part of the gifted
property did not necessarily mean that the gift in respect of that
part, or any other part, was invalid. Reliance was placed on the
principle that where everything reasonable had been done to perfect
a contemplated gift, nothing more is required.
46.The decision of their Lordships of the Privy Council in Nawab Mira
Mohammad Sadiq Ali Khan Vs. Nawab Fakr Jahan Begum13. In
that case also the deed contained the recital “I deliver possession of
the gifted property to my said wife” and the deed of gift was handed
over to the wife. It was held that the declaration in the deed of gift
must be regarded as binding on the heirs of the donor and that
actual vacation by the husband and an actual taking of separate
possession by the wife was not necessary. It was also held that the
12 I.L.R 44 Alld. 301
13 AIR 1932 PC 13
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AS_1951_2000
declaration made by the husband, followed by the handing over of
the deed, was amply sufficient to establish a transfer of possession.
47.Keeping in mind the above principles, have evolved over a period of
time and emanates from the decisions cited supra that the delivery
of possession can be taken effect at a subsequent period by the
desire of the donor. When once the first defendant is able to
establish that his possession over the schedule property in
pursuance of Ex.B7 gift deed, the non taking of delivery of
possession of property on the day of execution of Ex.B7 gift deed
does not defeat the rights of the first defendant in any way. It is
not the case of the plaintiff that the documents relating to the
schedule property are not handed over to the first defendant it is
an established fact by mortgaging the schedule property, the first
defendant secured the loan and its original is also marked on his
behalf.
48.It is pertinent to note that, the execution of the gift deed by the
plaintiff in favour of 1st defendant is not challenged on the ground
that it was hit by fraud or undue influence or misrepresentation. It
is not her case that the execution of the gift deed was not a free
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AS_1951_2000
and voluntary act. There is a clear recital in the gift deed that
there was a declaration of gift by the donor and the execution of
the gift deed and acceptance of gift by the 1st defendant and also
delivery of possession of property and PW.1 admitted in her
evidence, the said recitals of Ex.B7 gift deed. There is a clear
recital in the gift deed to the effect that the donor had divested all
her interest in the site and transferred the same to the appellants.
49.The sum and substance of the gift deed and the facts and
circumstances clearly show that there was definite intention on the
part of the donor to transfer the property in favour of the done i.e.,
1st defendant.
50.It is worth mentioning that Ex.B7, the gift deed did not reserve any
right for the donor. After the execution of the gift deed the plaintiff
had no locus standi to file a suit for possession of the property, as
possession was already delivered to first defendant and later it was
delivered to second defendant by virtue of Ex.B6 document. Ex.B7
gift deed had no condition, wherein it could be cancelled by the
donor. The plaintiff divested herself any right of title in the suit
property which was passed to the donee. Once the registered gift
2023:APHC:4243
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AS_1951_2000
deed had been executed without reserving any right in the suit
property, it could not be revoked. There is one further
circumstance which is a bar against the plaintiff succeeding in the
suit. From the narration of the facts stated supra, it could be seen
that the plaintiff revoked Ex.B7 gift deed dt.27.08.1984
unilaterally by executing Ex.A2 revocation deed dt.28.09.1994. It
transpires from the record that Ex.B7 gift deed was cancelled by
the plaintiff ten years after its execution. Under Article 59 of the
Indian Limitation Act the prescribed period of limitation is three
years from the date of execution of first become knowledge to the
plaintiff. It is not in dispute that Ex.B7 gift deed dt.27.08.1984 is
very well in the knowledge of the plaintiff right from the day of its
execution and therefore, the suit for cancellation of the document
if any she intends to file a suit it is supposed to be filed within
three years from this date. The suit has been filed in the year
1995. What needs to be stated here is that as on the date of filing
of the suit or as on the date of Ex.A2 revocation deed, the plaintiff
could not have filed the suit for the relief seeking cancellation of
document. In such is a case it is highly difficult to accept the
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AS_1951_2000
contention of the plaintiff that she can revoke the gift deed
unilaterally ten years after its execution without filing the suit for
cancellation of the document. Under such circumstances, the
cancellation of gift deed made by plaintiff vide Ex.A2 document is
not valid in the eye of law. As on the date of execution of the
document, she had no right over the property and she had already
lost her rights in the suit schedule property. The upshot of the
aforementioned discussion is that the Ex.B7 – Gift Deed executed in
favour of the first defendant is valid and schedule property was delivered
in pursuance of the gift deed to the first defendant and Ex.A2 revocation
of the gift deed by the plaintiff vide Ex.A2 is not valid and the plaintiff is
not entitled to the relief claimed.
51.The conclusion which can be reached is that the trial court is not
justified in upholding that the case of the plaintiff that the plaint
schedule property was not delivered to the plaintiff in pursuance of
Ex.B7 gift deed. The Trial court was, therefore, apparently wrong
in coming to the conclusion that Ex.B7 gift deed was ineffectual
merely because the donor had collected the rent from the tenants
having regard to the relationship of the parties and the tenants
2023:APHC:4243
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AS_1951_2000
were allowed to use the toilets and so it cannot be said that there
was no transfer of possession. Applying the principles laid down
the cases referred to above I am of opinion that there was sufficient
evidence to show the delivery of possession by the donor to the
donee in this case, to validate the gift according to Mohammedan
Law.
52.For the reasons stated above and having regard to the facts of the
case, this court is of view that plaintiff has failed to establish her
case. The findings and conclusion recorded by the trial court are
not based on proper appreciation of evidence on record. The
Judgment of the trial court is erroneous and cannot be sustained
and is liable to be set aside and the appeal deserves to be allowed
with costs.
53.In the result,
(a) The Appeal is allowed, with costs.
(b) The Judgment and Decree passed by the Trial Court in
OS.No.95 of 1995, dt.22.06.2000 are set aside.
(c) The suit is dismissed with costs.
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AS_1951_2000
(d) Miscellaneous petitions, if any, pending in this appeal shall
stand closed.
___________________________
T.MALLIKARJUNA RAO, J
Dt.16.02.2023.
BV/KGM
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