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Firm Baldeo Prasad-balgovind Vs. Musammat Shubratan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in164Ind.Cas.720
AppellantFirm Baldeo Prasad-balgovind
RespondentMusammat Shubratan and ors.
Excerpt:
muhammadan law - gift--delivery of possession--essentials of--mode of delivery required--donor not exercising any act of ownership after deed--mere fact of mutation not being effected--whether affects the case. - - the trial court dismissed the suit, holding that the plaintiff failed to show her right to the southern half of the house. 3. the rule of muhammadan law as regards delivery of possession in cases of gift is well settled. all that is required is that the donor should clearly divest himself of his ownership in the subject-matter of the gift and should deliver such possession as the subject-matter of the gift admits of. the latter was in possession precisely in the same manner as the donor in respect of her half of the house......to the attachment, alleging that she was the owner of the southern half of the house under a deed of gift executed in her favour by zahur muhammad's father suddhu. her objection was dismissed, and she instituted the suit which has given rise to this appeal. she impleaded the judgment-debtor zahur muhammad, her husband wazir muhammad and the appellant, who had attached half of the house in execution of his decree. the plaintiff's case, as laid down in her plaint, was that a defined half of the house had been given to her by suddhu and that zahur ahmad and wazir muhammad had no interest in that half. in support of her claim she produced a registered deed of gift, dated november 11, 1919, executed by suddhu. it is not disputed that the house originally belonged to suddhu, who died.....
Judgment:

Niamat Ullah, J.

1. The appellant obtained a simple money decree against one Zahur Muhammad, and in execution thereof attached half of a house situate in Allahabad. Musammat Shubratan, the wife of his brother Wazir Muhammad, objected to the attachment, alleging that she was the owner of the southern half of the house under a deed of gift executed in her favour by Zahur Muhammad's father Suddhu. Her objection was dismissed, and she instituted the suit which has given rise to this appeal. She impleaded the judgment-debtor Zahur Muhammad, her husband Wazir Muhammad and the appellant, who had attached half of the house in execution of his decree. The plaintiff's case, as laid down in her plaint, was that a defined half of the house had been given to her by Suddhu and that Zahur Ahmad and Wazir Muhammad had no interest in that half. In support of her claim she produced a registered deed of gift, dated November 11, 1919, executed by Suddhu. It is not disputed that the house originally belonged to Suddhu, who died sometime after 1919. The suit was contested by the appellant only. The trial Court dismissed the suit, holding that the plaintiff failed to show her right to the southern half of the house. On appeal the lower Appellate Court upheld her title so far that she became the owner of an undivided half of the house under the deed of gift executed by Suddhu. The learned Subordinate Judge has found, on evidence, that the deed of gift was duly executed by Suddhu and that he did everything he could to deliver possession. The learned Subordinate Judge arrived at a definite finding that the donee and the donor both lived in the house at the time when the deed of gift was executed. He also held that a declaration by the donor in suitable words that he had divested himself of proprietary rights and placed the donee in possession was enough to complete the gift.

2. The only contention put forward in second appeal that the donor did no 'overt act' in delivering possession and, therefore, the mere execution and registration of the deed of gift was not sufficient to transfer the house from one to the other. The deed of gift recites that the donor had a great regard for his daughter-in-law, and to avoid disputes in future he made a gift of half of the house, valued at Rs. 300, to her in lieu of her services, and empowered the donee to take possession of half of the house and have her name entered in the registers of the Municipal Board. It is contended that, if the donor had obtained mutation of names in the registers of Municipal Board, such overt act would have been sufficient to effect delivery of possession, and that as the donor did nothing more than the bare execution of the deed of gift, title did not pass from him to the donee.

3. The rule of Muhammadan Law as regards delivery of possession in cases of gift is well settled. All that is required is that the donor should clearly divest himself of his ownership in the subject-matter of the gift and should deliver such possession as the subject-matter of the gift admits of. Where a house is in actual occupation of the donor and the donee, who are related as father-in-law and daughter-in-law, and the donor declares, in unequivocal language, that he has divested himself of ownership of half of it, retaining the other half and authorised the donee 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 was feasible in the circumstances. It is significant that in this case the donor did not exercise any act of ownership after executing the deed of gift. The donor, who retained ownership of half the house, remained in joint possession with the donee. The latter was in possession precisely in the same manner as the donor in respect of her half of the house. The mere fact that the donor did not have mutation of names effected in the Municipal registers does not affect the case. For these reasons, the view of the learned Subordinate Judge is right. The appeal has no force, and is dismissed with costs.


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