1. This appeal by the defendants is directed against the judgment and decree of the learned Subordinate Judge Adoni in A. S. 12 of 1970 reversing the judgment and decree of the learned Munsif Magistrate in O. S. 66 of 1968.
2. The suit is for recovering of possession of a house bearing No. 7/125 in Bathamcherla Panchayat. That house belonged to one Ali Khan, the father of the plaintiff. Ali Khan had put one Dasari Subbana in possession of the said those by way of usufructuary mortgage till a loan of R. 50/- taken by him was discharged. This house was the subject-matter of a partition suit. O. S. 76/59 on the file of the Sub-Court, Kurnool, Under the file decree I that suit, the plaint schedule property fell to the share of Nabi Khan/ Nabi Khan executed a gift deed dated 2/6/1067 in favour of the first defendant is the husband of the first defendant. The said gift-deed is marked as Ex. B-1 Nabi Khan who was the resident of Kurnool died on 9-6-1967. The plaintiffs who are the heirs of Nabi Khan have session present suit for recovery of possession of the suit house contending, interalia, that the gift-deed executed by Nabi Khan in favour of the first defendant was not valid in law, as possession was not delivered to the donee. The defendants pleaded that possession was delivered. The trial Court held that the gift was valid in as much as possession was delivered and dismissed the suit. On appeal, the learned Subordinate Judge held that there was not actual delivery of possession, in an much, admittedly the house was in the physical possession and enjoyment of P. w. 2 Maddaiah. In the appellate court, the other issues decided by the trial court observed in paragraph 5 of the judgment that 'both the advocates admit that they do not contest the findings of the learned Munsif on other issues.'
3. The main question, therefore that falls for consideration in this appeal. is whether the gift-deed is valid and whether the donee could be said to have been in possession of the house when it was under usufructuary mortgage with P. W. 2.
4. It may be necessary to note at the outset that the defendants evicted P. W. 2 and entered into possession forcibly. The gift-deed itself recites that possession was delivered. It is contended on behalf of the defendants-appellants that Nabi Khan who became entitled to the plaint-Schedule property was residing at Kurnool and when executing the gift-deed on 2-6-1967 he declared that possession was delivered and as on the date of execution of the gift-deed the plaint schedule property was in possession of the usufructuary mortgage. all that the donor could do was to make a declaration of delivery of possession and that he did it. In those circumstances the donee must be deemed to have been put in possession of the property. It was also contended that in any event, as the defendants had been in possession of the property the gift-deed should be deemed to have been completed and valid so as to clothe them with title to the property. On the other hand, it is contended by the plaintiffs-respondents that there was no physical delivery of possession at any time by the donor to the donee. The donor died at Kurnool. There was no attornment of P. W. 2 so as to hold that the donee was put in possession. Without delivery of possession the gift was not valid. Any subsequent taking of wrongful possession by the donee would not make the gift valid.
5. It is not in dispute that on 9-1 -1968, that is, even before the suit was filed, the suit having been filed on 22-4-1968, the defendants took forcible possession of the plaint schedule house. When it s not disputed that on the date when the gift deed was executed the house was in possession of the usufructuary mortgage. the donor had right only to equity of redemption which is not capable of being physically delivered to the donee. That could only be conveyed by a registered document. P. W. 1 was in physical possession of the house as a mortgage. The possession of the property. the property which was the subject-matter of the gift-deed was not capable of being put in physical possession of the donee. The door could only authorise him to take possession by executing a recital in the gift-deed that possession was delivered , from which it could be inferred that the donee should take possession from P. W. 2 on the liquidation of the debt. In other words, he authorised the donee to take possession of the property. That in my opinion is sufficient to complete the gift. In Kasam Umar v. Gulab, AIR 1956 Sau 20, Sahah, Chief Justice (as he then was) speaking on behalf of the Bench held that equity of redemption of mortgaged property can be subject of valid gift under the Mahomedan Law and it the mortgage is in possession, then the gift need not be accompanied by then the gift need not be accompanied by immediate delivery of possession, but the donor should divest himself of all his rights and should put the donee in a position to recover possession and should invest him with authority for that purpose. This would be equally so even when the donor mortgagor is in possession of the mortgaged property at the time of the gift, as the tenant of the usufructuary mortgagee. It the door has divested himself of all the rights in the property and put the donee in a position to redeem the mortgage by making the mortgage to agree to a redemption by the donee that would be sufficient to make the gift valid.:'
Hidyatullah, Chief Justice (as he then was) speaking for the Bench in Munni Bai v. Abdul Gani, : AIR1959MP225 , while observing that the three conditions which are necessary for a valid gift under the Muhammadan Law are (1) manifestation of the wish to give on the part of the donor; (2) acceptance of the donee, either expressly or impliedly; and (3) taking of possession of the subject-matter of the gift by the donee, either actually or constructively, held that delivery of possession can be made in such manner as the subject of the gift is susceptible of. In a case of gift of the equity of redemption when he mortgage is usufructuary, there can be no delivery of physical possession of the property. In such circumstances execution of deed by the donor by which after making an oral declaration of gift. she recognised the respondent as owner of him in token thereof, is sufficient delivery of possession. The Supreme Court dealing with a case where the subject-matter of gift was in possession of a trespasser SC 1194, held that a gift of a property in possessions of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, there must also be either 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, he gift is invalid. In this judgment the observation of the Privy Council, in Mahomed Bukh Khan v. Hosseini Bibi, in (1888) 15 Ind App authorises the donee to take possession, which is in fact taken subsequently the gift is not invalidated because the donor was not at that time in possession, ad did not therefore, at the time transfer it, was referred with approval.
6. The Allahabad High Court in Mirza Medi v. Sikandar Nawab, : AIR1955All255 , dealing with the question of delivery of possession of property which is subject to a usufructuary mortgage held 'that a distinction haw to be made between a gift of the entire property and a gift of a parcel of it. A property which is made and the subject of a usufrustuary mortgage is split up into two parcels, the equity of redemption and the mortgage's rights. The equity of redemption is as much property as mortgagee's rights in the mortgage and there is no Bar to a person owning only the equity of redemption, making a valid gift of the same. The requirements of Muhammedan Law in the matter of a valid gift will be complied with sufficiently if the donor does all that lies in his power to complete a transfer of the property rights and such rights of possession as he has over that property in favour of the donee. All that is required in such cases is to delivery to the donee such possession as the donor himself has and as the donor has no tangible physical possession, an unequivocal declaration would be a sufficient delivery of possession.'
Though the broad proposition that a mere declaration would be sufficient is no longer good law, the proposition that where the property gifted is subject to a usufrustuary mortgage, the delivery of such possession as the property is capable of makes the gift valid, receives the approval of the Supreme Court in : 3SCR479 .
7. Having regard to the above decisions it must be held that where the property gifted is subject to a usufructuary mortgage, what is gifted is merely the equity of redemption and not physical possession of the property itself. The equity of redemption is not capable of being physical delivered and the donee cannot be put in actual possession. Authorising the donee to redeem the mortgage and take possession of the property, by incorporating a declaration to that effect in the gift deed, t could be spelled out that such possession as the property was capable of was delivered and therefore, there was a valid gift of the property.
8. In Jhumman v. Husain, AIR 1931 Oudh 7, it was held that a mere declaration of delivery of possession is not sufficient. No exception could be taken to this proposition, for a declaration with respect to property which can be put in physical possession of the donee, would not be sufficient. No exception could be taken to this proposition, for a declaration with respect to property which can be put in physical possession of the donee, would not be sufficient. It is significant to note that even in that decision it was observed that possession obtained by the donee later with the consent. of the donor would render the gift valid.
9. In a very exhaustive judgment in Noorjahan v. Mufkthar Dad Khan, : AIR1970All170 , in which several rulings bearing on the question were discussed. Gulati. J., observed:
'But all cases where the Courts have shown a departure from the strict Mohammadan Law, are confined to a narrow class of gifts-gifts between husband and wife and gifts to a minor.'
In that case the gift was not in favour of either the wife or the minor child of the donor and therefore, the gift was held to be not valid. Hidayatullah, C. J. (as he then was) observed in Katheessa Umma v. Narrayanath Kunhamu, : 4SCR549
'the intention to make the gift was clear and manifest because it was made by a deed which was registered an handed over by Mammotty to his mother-in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife he gift would have been complete under Mohammadan Law and it seems impossible to hold that by handing over the deed to his mother-in-law in whose charge his wife was during his illness and afterwards, Mummotty did not complete the gift. In our opinion both in text and authorities such a gift must be accepted as valid and complete.'
10. In the instant case it is not in dispute that apart from the declaration in the document itself, the document after having been executed was handed over by having been Nabi Khan to the first defendant and Nabi Khan thereafter took possession of the property. Thus, there was symbolic delivery of possession though not constructive or actual delivery. The findings of fact were not challenged in the lower Court and cannot therefore be allowed to be challenged in Second Appeal. The plaint schedule house, as already observed was subject to a usufructuary mortgage on the date o the gift and therefore was not capable of being put in physical possession of the donee, What all the donor had in his power was to authorise the donee to take possession and in fact, he took possession of the property thereafter. That being so, in my opinion the gift must be held to be valid and complete. Once the gift is held to be valid, the plaintiffs have no right to recover possession of the house from the defendants.
11. The Second Appeal therefore, succeeds and is accordingly allowed with cots.
12. Leave granted.
13. Appeal allowed.