Avadh Behari, J.
(1) On December 15, 1952, one Hafiz Abdul Basit instituted a suit for possession by partition, rendition of accounts of the rents and mesne profits and recovery of the amount found due on rendition of accounts. The suit was filed against 13 defendants.
(2) There was a common ancestor of the plaintiff and defendants 1 to 8. His name was Hafiz Karim Baksh. He died in the year 1904. One of his sons was Sheikh Abdul Haq who died in 1922 possessed of an undivided 1/6th share in the estate which he held as tenant in common with the other heirs of his father. On his death this undivided share was inherited by his widow Mst. Kulsum-un-Nisa and his son Sheikh Mohd. Daud in moiety of 1/8th and 7/8th respectively. There was another son of Hafiz Karim Baksh, Sheikh Hafiz Abdul Khaliq by name. The plaintiff and defendants 1 to 9 are the sons, daughters and the widow of Hafiz Abdul Khaliq. In 1916, a suit was instituted for partition of the estate of the common ancestor Hafiz Karim Baksh which was decided by the Senior Sub Judge, Delhi on August 26, 1926. A partition decree was passed and under this decree the property detailed in Schedule 1 Column 'A' attached to the plaint fell to share of Kulsum-un-Nisa and Sheikh Mohd. Daud jointly in proportion of one-eighth and seven-eighth share respectively. This property was separately allotted to the widow and the son of Abdul Haq as their exclusive share on partition.
(3) On April 17, 1952, Sheikh Mohd. Daud died leaving behind four heirs, viz., his paternal uncle Hafiz Abdul Khaliq, two widows Mst. Khatija Bi (defendant No. 10) and Mst. Mahmud-un-Nisa (defendant No. 11), and his mother Mst. Kulsum-un-Nisa (defendant No. 12). Hafiz Abdul Khaliq died on September 25, 1952 leaving behind five sons, four daughters and one widow. Mohd. Daud made a gift of his seven-eighth share to his mother Kulsum-un-Nisa. She was already the owner of one-eighth share in the property left by her husband. After the gift she became the full owner of the property. She made a gift of the entire property to Sheikh Mohd. Amil who was the grand son of her sister.
(4) The suit out of which the present appeal has arisen was instituted by Hafiz Abdul Basit, one of the sons of Abdul Khaliq, against Kulsum-un-Nisa and Sheikh Mohd. Amil, defendants 12 and 13. To the suit the remaining four sons, four daughters and the widow of Abdul Khaliq were also made party-defendants. The two widows of Sheikh Mohd. Daud were also made parties. The contesting defendants were, however, Kulsum-un-Nisa and Mohd. Amil. The main ground taken by the plaintiff and defendants 1 to 9 was that they were the heirs of Sheikh Mohd. Daud and they were entitled to his share in the property to the extent of seven-eighth. In substance the gifts stated to have been made to Mohd. Amil by Kulsum-un-Nisa and by Sheikh Mohd. Daud to his mother Kuslum-un-Nisa of his seven-eighth share were denied and it was asserted that on the death of Sheikh Mohd. Daud on April 17, 1952, his seven-eighth undivided share in the property devolved on the heirs of Abdul Khaliq and the two widows of Mohd. Daud.
(5) During the pendency of the suit Hafiz Abdul Basit died. By order dated September 11, 1968, one of his brothers Bashir Ahmad who was already a party to the suit as respondent No. 3 was substituted as appellant. Subsequently, Bashir Ahmad also died and his two sons Tanzeem Ahmad and Shabbir Ahmad were brought on the record as appellants on August 7, 1970. During the hearing of the appeal, defendant No. 1 Hafiz Mohd. Said, an Advocate of this court, made an application to the effect that he may be transposed to the array of the appellants and by order dated July 31, 1972 we allowed his application.
(6) In short the dispute in the suit relates to the seven-eighth share in the property which was owned by Mohd. Daud who died childless. The heirs of Abdul Khaliq claim to be entitled to this share on inheritance. Similarly, the two widows of Sheikh Mohd. Daud also claim their share in the property of Sheikh Mohd. Daud. The contesting defendants as stated above to the suit were Kulsum-un-Nisa, the mother of Sheikh Mohd. Daud and Mohd. Amil. Mohd. Amil claimed to be the donee both of the share of Kulsum-un-Nisa as well as Mohd. Daud. Shortly after the institution of the suit Kulsum-un-Nisa also died. Mohd. Amil, defendant No. 12, is the only contesting respondent.
(7) Defendants 1 to 9, namely, the heirs of Abdul Khaliq-his sons, daughters and widow-filed one written statement supporting the claim of the plaintiff. Defendants 10 and 11, the widows of Mohd. Daud filed their separate written statement claiming share in the property of Sheikh Mohd. Daud in addition to the dower debt. Kulsum-un-Nisa (defendant No. 12) filed her written statement on January 7, 1953. She pleaded that Mohd. Daud in his life time made an oral gift of his entire share of the property (which was seven-eighth) left by his father in her favor in 1935 and that the possession thereof was also delivered to her. She further stated that she in her turn had made an oral gift of the major portion of the property (namely, property on inheritance she acquired from her husband in which her share was one-eighth and out of the property which she received on gift made by Mohd. Daud in 1943), in favor of Sheikh Mohd. Amil (defendant No. 13) who was brought up by her since his childhood and for whom both, she and her deceased son Mohd. Daud, had great affection. Possession of the property was also delivered to Mohd. Amil. Defendant No. 13, Mohd. Amil, also filed a separate written statement which was on the same lines as the written statement of Kulsum-un-Nisa. He claimed that Sheikh Mohd. Daud gifted the whole of his property in favor of his mother Kulsum-un-Nisa in 1935 and 1943 and got the name of his mother mutated in the Municipal registers and got rent deeds executed by the tenants exclusively in her favor and managed the property as her Mukhtiar. On account of great love and affection which Kulsum-un-Nisa had for Mohd. Amil she (Kulsum-un-Nisa) made a gift of a major portion of her property in his favor in 1943 and gave possession of these properties to him. It was further pleaded that in the year 1946, she executed aregular gift of deed acknowledging the previous gift and gifting other properties to Mohd. Amil. This deed of gift was attested among others by Hafiz Abdul Manan, the husband of defendant No. 6, daughter of Abdul Khaliq and cousin of the original plaintiff Hafiz Abdul Basit and by Sheikh Mohd. Daud, deceased, and Hafiz Zain-ul-Abdin another cousin of the original plaintiff. The sole defense to the suit was that Mohd. Amil was the donee of the entire property of Mohd. Daud and Kulsum-un-Nisa and that neither the heirs of Abdul Khaliq nor the two widows of Mohd. Daud were entitled to any share in the property which had come to Mohd. Amil by reason of the gift in his favor.
(8) On the pleadings of the parties, the trial Court framed the following issues:
1. Whether this suit as framed is competent against Mohd. Amil, defendant No. 13, who alleges to be in possession of the property in suit in his own right? 2. Whether the suit for possession bypartition against defendant No. 13 is not competent as defendant No. 13 is not a co-sharer in the entire property? 3. Whether Hafiz Mohd. Daud deceased left any property at the time of his death, if so what? 4. Whether Mohd. Daud deceased created a valid gift of his share in the property in favor of Mst.Kulsum-un-Nisa? 5. Whether the plaintiff is estopped from challenging the gift on account of the admissions of Mohd. Daud and Hafiz Khaliq in respect of this gift? 6. Is the plaintiff estopped from bringing this suit? 7. Whether this suit is in respect of a part of the property? 8. If issue No. 1 is affirmed, whether the suit for the partition is competent? 9. Whether the suit has been properly valued for the purpose of court fees and jusisdiction? 10. Whether the suit is within time? 11. What is effect of withdrawal and dismissal of the suit brought by Mst. Mahmood-ul-Nisa, defendant No. 11 on the present suit? 12. Whether defendant No. 13 is entitled to special costs under section 35A Civil Procedure Code if so, how much? 13. To what relief is the plaintiff entitled and against whom? 14. Whether defendant No. 11 is widow of Sheikh Mohd. Daud? 15. Whether the present suit is barred by the rule of rest judicata?. 16. Whether the point raised in issue No. 15 can be raised
(9) The parties examined a large number of witnesses. 41 witnesses were examined by the plaintiff and 35 witnesses by the defendant. A large number of documents were produced by the parties. The trial of the suit lasted nearly eight years. On July 18, 1960, the learned Subordinate Judge dismissed the suit with costs. On issues 1, 2, 8, and 9 the trial Court held that the suit as framed was competent. On issues 3, 4, 5 and 6 the trial court recorded the finding that (1) Mohd. Daud gifted his entire property except a residential house No. 356 situated in Gali Jootewali, Mohalla Chooriwallan, Delhi to his mother Mst. Kulsum-un-Nisa in 1935. The said residential house was also gifted later on in 1943; (2) Mohd. Daud transferred symbolic possession to his mother of the gifted properties; (3) On numerous occasions Mohd. Daud declared that he had made the gift in favor of his mother and by her assent Kulsum-un-Nisa had accepted the gift; (4) That Mohd. Daud managed the properties of his mother as Mukhtiar; (5) That Mohd. Daud encouraged and helped Kulsum-un-Nisa in transferring the possession to Mohd. Amil as donee from her and that Mohd. Amil is now in possession of the property as a donee. On this aspect, the trial Court said in its judgment :
THErecord of this case is replete with documentary and oral evidence making it abundantly clear that Sheikh Mohd. Daud gifted the bulk of his property in favor of his mother at the end of 1935 and the remainder-a residential house at the end of 1942 or the beginning of 1943. It may not be possible within the limits of this judgment to discuss the whole of the voluminous evidence, and in fact it is not even necessary to do so, for the evidence which I am going to discuss presently will itself be sufficient to show the alleged gift by Daud in favor of his mother Kulsum-un-Nisa stands fully proved.
(10) In other words, the trial Court recorded the finding that on his death on April 17, 1952. Hafiz Mohd. Daud did not leave behind any property which could be the subject matter of inheritance by his heirs. It was found as a fact that Mohd. Daud made a gift of his share in the property in favor of Mst. Kulsum-un-Nisa and the latter made a gift of her own share as well as of the share which she got by reason of the gift from Mohd. Daud to Mohd. Amil. On issue No. 7, the trial Court held that the suit was not had for partial partition. On issue No. 10 it was held that the suit was within-time. On issue No. 11 it was held that though Mahmood-un-Nisa (defendant No. 11) previous to the present suit had filed a suit for partition and possession and then withdrew the same without leave of the court to bring a fresh suit on the same cause of action, yet this did not preclude the present plaintiff from bringing the suit. On issue No. 12 it was held that defendant No. 13 was not entitled to compensatory costs under Section 35A of Code of Civil Procedure. On issue No. 14, the trial Court reached the conclusion that Mohd. Daud had left behind two widows (defendants 10 and 11) and that he had been validly married to Mahmood-un-Nisa and, thereforee, defendant No. 11 is the widow of Sheikh Mohd. Daud. Issues 15 and 17 were not pressed by defendant No. 13. In the result, the suit was dismissed in view of the findings of the trial Court on issues 3 and 4.
(11) From the above discussion it will be noticed that the principal points of controversy are covered by issues 3 and 4. The questions for decision are whether Hafiz Mohd. Daud made a valid gift in favor of Kulsum-un-Nisa and whether Kulsum-un-Nisa made a valid gift in favor of Mohd. Amil (defendant No. 13) both of her own share in the properties and of the share which she got by reason of gift from Mohd. Daud.
(12) Hafiz Mohd. Said (defendant No. 1) who we permitted to be transposed to the array of the appellants argued the case in person. The appellants claim their share of inheritance only in the share of Hafiz Mohd. Daud, viz., seven-eighth. The appellants did not claim to be the heirs of Kulsum-un-Nisa and did not claim any share in her one- eighth share. It may be mentioned at this stage that one Mohd. Yaha a brother of Kulsum-un-Nisa claiming to be the heir of Kulsum-un-Nisa had instituted a separate suit against Mohd. Amil in which it was claimed that one-eighth share of Kulsum-un-Nisa on her death devolved on him (Mohd. Yaha) and that he was entitled to the said share on inheritance. In that suit also the gift made by Kulsum-un-Nisa of her one-eighth share in the property to Mohd. Amil was disputed. This suit was dismissed by the trial Court and a regular second appeal was also dismissed on April 28, 1972 by B.C. Misra, J. (R.S.A. No. 354 of 1962- Mohd. Yaha v. Mohd. Amil etc.) It is true that the present plaintiffs are in no way bound by the judgment in that suit. We shall, thereforee, say no more about the decision given in that suit and shall confine ourselves to the evidence brough on the record of the present suit.
(13) The legal position in this case admits of no doubt. Under Mohammedan Law a gift may be made :
(A)by a declaration made orally or in writing of the gift by the donor; (b) by the acceptance of the gift expressly or impliedly by or on behalf of the donee; and (c) by the delivery of the possession of the subject of the gift.
In Mohd. Abdul Gani v. Fakkar Juhan Begum, (49 Indian Appeals 195)(2), Sir John Edge, speaking for the Board said :
FOR a valid gift inter vivos under the Mohammedan Law applicable in this case, three conditions are necessary, which their Lordships consider have been correctly stated thus : (a) manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively.' (Aslo see Ajmad Khan v. Ashraf Khan and others, Air 1929 Privy Council 149 The prophet has said : 'A gift is not valid without seisin'. The rule of law is stated in Islamic Law thus : GIFTSare rendered valid by tender, acceptance and seisin. Tender and acceptance are necessary 'because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts', and seisin is necessary in order to establish a right of property in the gift, because a right of property according to our doctors, is not established in the thing given merely by means of the contract, without seisin.
(14) While delivery of possession is an essential condition for the validity of the gift, it is not necessary that in every case there should be a physical delivery of possession. Possession, the delivery of which would complete a gift, may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the gift (Mohd. Baksh v. Hossaini Bibi, I.L.R. 15 Cal 684. The relinquishment of control is thus necessary to complete the gift. Constructive possession of the subject of the gift is, thereforee, sufficient. Delivery of possession can be made in such a manner as the subject of the gift is susceptible of, (Sadik Hussain Khan v. Hashim Ah Khan, 43 Indian Appeals 212). If the property is in possession of the tenants then the donor may put the donee in possession by asking the tenants to attorn tothe donee.
(15) In view of the above requirements what has to be considered is whether the gift in this case fulfills all the requirements of Mohammedan law. '
(16) There is an overwhelming evidence both oral and dosum^ntary to prove that Sheikh Mohd. Daud gifted the major portion of his property in favor of his mother at the end of 1935 and the remainder consisting of a residential house at the end of 1942 orthe beginning of 1943. Hafiz Mohd. Daud was the owner of considerable property. He had no issue as none of the two wives bore him any child. His relations with his two wives were rather indifferent, It appears that Daud was aware of the fact that if he does not make any disposition of the property in his life time then nearly half of his estate would go to his uncle Hafiz Abdul Khaliq. Daud's relations with Abdul Khaliq were strained after the decision of the partition suit in 1926. The plaintiff Abdul Basit admitted this fact in evidence. In fact it is in evidence that Abdul Khaliq owed a sum of Rs. 3000.00 to Daud which he did not pay. Daud took out execution of the decree against Abiul Khaliq. This was admitted by Hafiz Abdul Manan, Dw, (D/3W 25).the object of D and, it seems, in making a gift of his entire property to his mother was obviously to deprive Abdul Khaliq from getting any share in his property by inheritance.
(17) As already observed, Mst. Kulsum-un-Nisa (defendant No. 12) died after filing her written statement in the suit. To prove the gift two witnesses were produced. They were Mohd. Yakub and Mussaraf Ali. Mohd. Yakub was in the service of Mohd. Daud and his mother Kulsum-un-Nisa from 1933 to 1940. Again he joined their service in 1947 and continued to remain in service till he made his statement in court on July 6, 1956. This witness stated that in 1935 Mohd. Daud gifted his property in favor of his mother. It was in the month of November or December. The witness stated that he was present at that time. Mohd. Daud said to his mother that he wanted to gift the property to her. She in reply stated that she accepted it. Most of the property was in the possession of the tenants. By a power of attorney executed in 1937, Kulsum-un-Nisa appointed Daud as her general attorney. This witness also deposed that Kulsum-un-Nisa gifted her property in favor of Mohd. Amil in July, 1952. On this occasion also this witness was present. Kulsum-un-Nisa stated at that time, 'I hereby gift my whole property situated in Sarai Hafiz Bana and house No. 598 adjacent to our residential house to you (Mohd. Amil)'. Mohd. Amil stated, 'I accept'. The other witness Mussaraf Ali was an employee of Kuslum-un-Nisa from 1927 to 1945. He used to recover rent on her behalf and maintained accounts of the properties. This witness also deposed that in 1935 Daud gifted the properly in favor of his mother. It was an oral gift and was made in the presence of this witness. Hafiz Mohd. Daud is stated to have said : 'Mother, I hereby give this property in your favor. I do not want to give it to my family members.' Immediately after the gift was made Mohd. Daud went along with Mussaraf Ali to the tenants and asked them to pay rent to his mother and to execute rent notes in her favor. The tenants executed rent notes in favor of Kulsum-un-Nisa. Receipts of rent were issued in the name of Kulsum-un-Nisa and her name was printed on the receipts as owner of the property. This witness used to realise rent and he produced counter-foils of receipts relating to the year 1939 which were in his hand. Mohd. Daud gifted his share in the residential house in favor of his mother in 1942. The trial Court accepted the testimony of these witnesses and we see no reason to disbelieve them. As will be seen presently there is a large volume of documentary evidence on the record in support of the gift by Mohd. Daud to Kulsum-un-Nisa and by Kulsum-un-Nisa to Mohd. Amil and the examination of the documentary evidence leaves no doubt in the mind that both these witnesses were witnesses of truth.
(18) We shall now consider documentary evidence on the record relating to the gift. The first document to which attention may be invited is Ex. D-23. This is a power of attorney executed by Kulsum-un-Nisa in favor of Mohd. Daud on October 18, 1937 after the gift had been made by the latter in favor of the former authorising Mohd. Daud to manage the property on her behalf. In this document in the recital portion it is stated that some time earlier Mohd. Daud made a hiba to Kulsum-un-Nisa of his own share of the property and besides this he has also given in hiba to her a residential house situated in Mohalla Choorigaran and two residential plots situated at Sadar Bazar etc. The document further says that the attorney shall have absolute powers to manage the entire property as he wished. It then goes on to say 'in future none of the relatives of me-the executant, distant or near- whether they maybe from mother's side or from father's side or husband's side, shall have right to ask the aforesaid Attorney for the rendition of the accounts.' And 'Neither shall they be having any right to interfere in the dealing of the aforesaid Attorney. All the acts performed by the said general attorney are acceptable to me and shall be so in future'. From this document, it will appear that Kulsum-un-Nisa was conscious of the fact that her husband's relations may create trouble and, thereforee, she expressly said that her husband's relations will not be entitled to ask her son to render accounts. This document was witnessed by Hafiz Abdul Manan who was very closely related to the family. Mohd. Daud continued to act as the general attorney of Kulsum-un-Nisa under this deed till his death. The second document to which a reference may be made is an application (D13 W21/613) dated November 6, 1937 which was made by Hafiz Mohd. Daud to the Secretary of Municipal Committee, Delhi. In this application there is a clear admission by Mohd. Daud that he had gifted his entire property except the residential house No. 356 situated in Mohalla Churgaran, Gali Jootewali, Delhi and the two plots of land at Sadar Bazar in favor of his mother. In this application Daud requested that the name of his mother may bs entered in the records of the Municipal Committee and Kulsum-un-Nisa be treated as the exclusive owner. Third document in this regard is the copy of the plaint (Ex. D13W27/1) dated November 20, 1937. Both Kulsum-un-Nisa and Daud instituted a suit against the Municipal Committee and in paragraph I of the plaint it was stated that Hafiz Mohd. Daud had gifted his share in the entire property except the residential house in favor of his mother and, thereforee, his mother is the absolute owner and occupier of the entire property.
(19) On April 22, 1943, Kulsum-un-Nisa instituted a suit for pre-emption against Hafiz Abdul Khaliq (the father of the present plaintiffs 1 to 8) in respect of a property which the latter had purchased. In this suit the plaintiff Kulsum-un-Nisa filed her replication (D13W21/617) on August 14, 1943. Kulsum-un-Nisa claimed in this replication that she was the exclusive owner of the house on the basis whereof the claim for pre-emption was made as her son had orally gifted his share in the house in her favor.
(20) Another document of considerable importance is Ex. D13/3. This is the statement made by Mohd. Daud on solemn affirmation in the office of the Custodian of Evacuee Property on February 28, 1952, This statement is signed by Mohd. Daud. In this statement Mohd. Daud said that he had orally gifted his share in the property to his mother and in 1937 his mother had appointed him as her attorney. He produced the general power of attorney. These proceedings before the Custodian of Evacuee property seem to have been taken as a part of the property which Mohd. Amil got by gift from Kulsum-un-Nisa was declared evacuee property. It may be mentioned here that Hafiz Mohd. Said, the appellant before us, appeared as Mohd. Amil's counsel before the Custodian of Evacuee Property. It may also reasonably be inferred that Hafiz Mohd. Said had no doubt about the factum and validity of this gift, for otherwise he would not have agreed to appear as a counsel in the said case.
(21) There are two sale deeds on the record of the suit which were executed by Mst. Kulsum-un-Nisa. The first sale deed is dated August 28, 1942 (Ex. D13W29/2) executed by Kulsum-un-Nisa in favor of Inder Sain. In this sale deed there is a specific mention of an oral gift by Hafiz Mohd. Daud to Kulsum-un-Nisa. Kulsum-un-Nisa styled herself as the absolute owner of the property and stated that her name had been entered in the Municipal record and that she enjoyed all rights as an exclusive owner and that there was no other share-holder or claimant in the property sought to be sold. This sale deed was attested by Mohd. Daud as one of the witnesses. If there had been no oral gift by Daud in favor of his mother then Daud would not have attested the sale deed. The second sale deed is Ex. D13/8 dated December 30, 1945. This was executed by Kulsum-un-Nisa in favor of Lala Kunj lal. In this sals deed also Kulsum-un-Nisa stated that Mohd. Daud had gifted orally his share in her favor and made her the owner of the entire property and also that of the other properties and that after the oral gift the vendor was in exclusive possession of the property and that she was the sole owner. This sale deed was witnessed by Hafiz Mohd. Daud and Abdul Manan. Abdul Manan came in the witness box and though he tried to help the plaintiff's in the course of his statement yet he had to admit his signatures on this document as well as on the power of attorney dated October 18, 1937 (D-23).
(22) Next we come to the gift made by Kulsum-un-Nisa in favor of Mohd. Amil. Here fortunately there is a written document of gift. Ex. D1 is the gift-deed executed by Kulsum-un-Nisa in favor of Mohd. Amil dated December 20, 1946. In the recital portion of this document Mst. Kulsum-un-Nisa stated that her son Daud of his own accord had orally gifted in her favor his share of the property in entirety which had come to him by virtue of the decree dated August 26, 1926 passed by the Court of Senior Sub Judge in the partition suit. She further said that she was 'the owner and occupier of the entire immovable property on the basis of the gift.' Her name was entered as owner in the record of the house tax and income-tax departments and that rent deeds have been executed in which her name was entered as the owner and that she issued rent receipts in her name. The donor then stated that Mohd. Amil is her nawasa (daughter's son) and he is her near relation and has been living with her since his childhood and both she and her son Daud had great love and affection for him and they treated him as their son. In the operative portion it is stated that three years ago, that is, in 1943 the executant had gifted the entire property owned by her in favor of Mohd. Amil and the value of this property was estimated at Rs. 3,50,000. It was also stated that besides this immovable property of the value of Rs. 3,50,000 which Kulsum-un-Nisa had already gifted in favor of Mohd. Amil she had also made a gift of property of the value of Rs. 50,000 in favor of Mohd. Amil. This document was attested by Hafiz Abdul Manan and Mohd. Daud. Here again, Abdul Manan admitted his signatures as an attesting witness. Mohd. Amil also signed this document and accepted the gift in writing.
(23) A reference may not be made to another document which is a power of attorney dated August 9, 1945 executed by Mohd. Amil in favor of Daud (D13/20). By this document Mohd. Amil appointed Mohd. Daud as his general attorney. It was recited in this document that Kulsum-un-Nisa who is 'my grand mother (mother's mother) in relation, orally gifted, transferred and made me, the executant, an absolute owner and occupier of a considerable portion of the property....
(24) Hence I appointed Hafiz Mohd. Daud as my Mukhtiar-i-am.' This document was attested by Abdul Manan and Kulsum-un-Nisa. These documents, namely, the deed of gift and the power of attorney show beyond any manner of doubt that Mohd. Daud had gifted the property in favor of his mother and that is why he attested both these documents. If Mohd. Daud had not made the gift in favor of his mother he would not have agreed to attest the said documents. This clearly shows that the gift by Mohd. Daud in favor of his mother was an accomplished fact and was considered as a settled thing by both of them and members of the family as is evidenced by the attestation of Hafiz Abdul Manan.
(25) A large number of rent deeds executed by various tenants both before and after the gift by Mohd. Daud in favor of Kulsum-un-Nisa were produced on the record. For the period prior to the gift the rent notes were executed by the tenants in favor of both Mohd. Daud and Kulsum-un-Nisa. The rent deeds for the period after the gift were executed in favor of Kulsum-un-Nisa and the name of Mohd. Daud in these rent notes is conspicuously absent. Mohd. Daud's name is mentioned in the rent deeds, but he is described there as the attorney and manager of Kulsum-un-Nisa who was empowered to accept the rent on her behalf. These rent notes were proved by Mussaraf Ali in whose presence they were executed. Mussaraf Ali was the clerk and was the best person to prove the execution.
(26) The appellant argued that the rent notes which were held by the trial Court to have been proved by the evidence of the witness, Mussaraf Ali, were not properly proved as neither the tenant nor the scribe of the rent deeds was produced in the court below. Sir Mohammed Yusuf and another v.D and another, : AIR1968Bom112 was cited in support of this submission. In our opinion, there is no merit in this contention, for a document may be proved either by direct or circumstantial evidence. Direct evidence may consist of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or the signature by one of the modes provided in Sections 45 and 47 of the Indian Evidence Act (See - Mobarik Ali Ahmed V. The State of Bombay, : 1957CriLJ1346 ).
(27) In our opinion, the documents were properly proved as was held by the trial Court, for Mussaraf Ali was competent to depose as to their execution because the rent notes were executed in his presence by the tenants. The trial Court examined these rent notes and rent receipts with care and prepared two catalogues of these documents, one of the pre-gift period and the other or the post-gift period. The trial Court came to the conclusion on the basis of the lease deeds and the rent receipts that Mohd. Daud had gifted the property to Kulsum-un-Nisa some time before October 29, 1935 after which he dealt with the property not as an owner, but as the attorney and manager of Kulsum-un-Nisa. We see no reason to differ from this conclusion.
(28) In order to prove delivery of possession a large number of counterfoils of receipts marked D13W 21/1 to D13W21/580 covering the period from 1938 to 1943 were produced. These payments were made on account of Kulsum-un-Nisa's property managed by Mohd. Daud. The counter-foils of the receipts clearly established that Mohd. Daud had completely divested himself and was acting merely as the agent of his mother Kulsum-un-Nisa, the donee.
(29) On February 25, 1952, an application was made to the Secretary, Municipal Committee by the owners of Sarai Hafiz Banna in which it was stated that proposal of the Municipal Committee to declare it as a public road or street should not be implemented and the notice given in respect of this proposed action should be cancelled. This letter is Ex. D25. It was signed among others by Hafiz Abdul Khaliq, Mst. Kulsum-un-Nisa through Sheikh Mohd. Daud, and Mohd. Amil. From this document it appears that Abdul Khaliq was fully aware of the gift made by Mohd. Daud in favor of his mother and further by Kulsum-un-Nisa in favor of Mohd. Amil, for he is a signatory to this application.
(30) Exhibits D2 and D3 are the copies of the demand and collection register and in 1946 the entry shows that Municipal tax was paid by Kulsum-un-Nisa through Mohd. Daud and in Ex. D3 the name of Mohd. Amil is entered in the column of tax payer. The receipts obtained in token of payment of these taxes (D57 to D96) also show that Kulsum-un-Nisa alone was assessed on the rental income derived from this property from 1937 to 1951. In this connection the statement of Parduman Kumar. Advocate (D13W20) may also be read. This witness stated that he knew both Kulsum-un-Nisa and Mohd. Amil and that he was their income tax advisor. Mohd. Daud had told this witness that he had gifted his share to his mother in 1935 and that he was net being assessed and that only Kulsum-un-Nisa was being assessed in respect of his share which he previously owned. Mohd. Daud also told this witness that Kulsum-un-Nisa had gifted that property in favor of Mohd. Amil in 1943 and a gift deed was executed in 1946. This evidence also shows that Mohd. Daud completely divested himself of the property and Kulsum-un-Nisa received rent and profits, paid house tax and income tax and that she was an assessed of income tax and that her name was duly entered as the owner of the properties in the house tax records etc.
(31) The evidence of Hafiz Abdul Manan who was the attesting witness of the following documents:
1.Power of Attorney, Ex. D23, dated 18-10-37 executed by Kulsum-un-Nisa in favor of Mohd. Daud, 2. Sale deeds executed by Kulsum-un-Nisa in 1942 (Exhibits D13W29/2 and D13/B), 3. Power of Attorney (Ex. D13/20) executed by Mohd. Amil in favor of Mohd. Daud dated 9-8-45, and 4. Gift deed (Ex. Dl) executed by Kulsum-un-Nisa in favor of Mohd. Amil on 20-12-46, was commented upon by the trial Court in rather unfavorable terms. Hafiz Abdul Manan was produced by the defendant, Mohd. Amil as he was an attesting witness to the above documents. This witness tried to favor the plaintiffs in the course of his statement and the trial Court was of the view that he was not speaking the truth when he said that he did not know about the gift. The above documents which were duly attested by Hafiz Abdul Manan clearly show that he had full knowledge of the gift. Hafiz Abdul Manan, as we have already seen, is the husband of defendant No. 6, a daughter of Abdul Khaliq. It will, thereforee, appear that the gift was never questioned by the members of the family of Abdul Khaliq as they regarded it as an accompalished thing.
(32) The appellant submitted that though there are a number of documents in which the fact of making of the gift was referred to, but the possession of the property was never given by the donor to the donee. For this submission he placed reliance on some sale deeds which were executed both by Mohd. Daud and Kulsum-un-Nisa. It was sought to be argued that these sale deeds. Exhibits P63 dated 13-6-37, P53 dated 13-1-1939, P65 dated 6-2-40, P4 dated 29-2-40, P3 dated 15-6-40, P2 dated 5-3-41 and P52 dated 18-5-41 were executed in favor of persons who were on the date of the sale tenants on the sites and were carrying on business there. The tenants had built their houses at their own cost. The income from these tenants was very small. Kulsum-un-Nisa thought of selling the sites to the tenants who were in occupation. It seems that at the instance of the purchasers both Mohd. Daud and Kulsum-un-Nisa agreed to execute the sale deeds as vender. The execution of these documents by both of them can properly be explained on this basis. For merely because Hafiz Mohd. Daud also agreed to execute the sale deed in favor of the purchasers it cannot be said that he continued to remain the owner in possession of the property. A purchaser will naturally insist regardless of any transfer which may have been made by 'he son in favor of the mother that both of them should execute the sale deeds so that no objection is later on raised to the title of the purchaser.
(33) The appellant also relied on two plaints [Exhibits P67 and P70) filed in Suits Nos 157 of 1936 and 7 of 1940 instituted by Mohd. Daud against the Municipal Committee seeking permanent injunction to restrain the Committee from demolishing certain constructions. In the plaints of there two suits, Mohd. Daud described himself as joint owner of the property regarding which notice had been served by the Municipal Committee requiring him to demolish the structure within a specified period. Similarly, in the written statement in Suit No. 851 of 1955 Mohd. Daud pleaded that he was the owner of the property in dispute. On the basis of these documents the appellant argued that the ownership and possession of the property remained vested in Mohd. Daud and that the gift was a fictitious affair. The reason for describing himself as the owner of the property in these three litigations by Mohd. Daud is that in the two suits notice of demolition was served on him and he decided to prosecute the suits in his own nams. In the third suit in which the written statement was filed by Mohd. Daud claiming himself to be owner of the property one Mohd. Raffi had instituted a suit claiming that he was a permanent tenant under Mohd. Daud and that he was net liable to be dispossessed. This suit of Mohd. Raffi was dismissed on the ground that he had failed to establish that he was a permanent tenant and an appeal from the order of the Sub Judge was also dismissed by the District Judge on August 24, 1938 vide judgment Ex. P66. During the pendency of the suit, Kulsum-un-Nisa made an application that she may be imp leaded as a party to the suit. This application of Kulsum-un-Nisa was rejected by the trial Court. It is not possible to say what was at the back cf Daud's mind at the time he submitted the written statement in the suit, but two plaints and the written statement alone cannot dislodge the fact of the gift which has been established on the record by overwhelming evidence. Mohd. Daud seems to have made these statements in those suits as it suited him in the exigencies of the situation, but it does not mean that he denied that he made the gift. On the whole, thereforee, we think that no inference sufficient to overturn the strong case which has been made on the part of the respondent in favor of the gift arises from the above proceedings. It is further to be observed that there is nothing improbable in the fact that Mohd. Daud should make a gift of his property to his mother in his life time. Moreover it was natural that Mohd. Daud should prefer that his property should go to his mother rather than to his uncle with whom he does not appear to have good relations. Finally it may be remembered that both his mother and Daud had great affection for the respondent and it must have been their natural wish that in the end the property should pass to the respondent.
(34) On a consideration of the entire evidence which we have discussed above, the trial Court recorded the findings that (1) Mohd. Daud gifted his entire property except a residential house to his mother Kulsum-un-Nisa in the year 1935,2 hou No. 356 situated in Mohalla Churi-garan, Delhi was gifted in 1943, (3) Kulsum-un-Nisa accepted the gift, (4) Mohd. Daud transferred symbolic possession to his mother, and (5) Kulsum-un-Nisa made the gift to Mohd. Amil.
(35) In our opinion, the conclusions reached by the trial Court are correct and we affirm the findings of the trial Court on issues Nos. 3 and 4.
(36) The appellant argued in the main that it had not been satisfactorily proved that possession of the property was delivered to Kulsum-un-Nisa by Mohd. Daud and without delivery of possession the gift cannot be said to have been completed. The appellant relied on Ahmed Hussain and others v. Qamar-ul-Zeman, (AIR 1927 Lahore 413). In that case the plaintiff, a donor, sued for a declaration that the gift made by him was invalid and that he had invoked it. It was argued on behalf of the donees that the plaintiff should be deemed to have delivered possession because he admitted that he had done so, firstly in the deed of gift itself, secondly before the Sub-Registrar, thirdly in the mutation proceedings and fourthly in the written statement filed by him in a subsequent suit between the co-shares of the holding. It was held that these admissions could not nave had the effect of putting the donees in actual possession. It was found by all the courts that as a matter of fact the donor was in possession on the date of the institution of the suit. It was, thereforee, held that the gift was invalid and the plaintiff was entitled to a declaration. The principle laid down in this authority is unexceptionable, for delivery of possession is one of the essential requirements of a valid gift.
(37) The appellant argued that the gift was a device to deprive the lawful heirs of their shares in the property and, thereforee, it was illegal. Reliance was placed on Ahmad Khan and others v. Mt. Zamroot Jan (AIR 1950 Peshawar 11) and in particular on the following passage in the judgment:
ANintelligent study of the Muslim law regarding the testamentary disposition possessed by a Muslim will show that it is the policy of the Muslim Jurists to prevent any interference with the course of devolution of property amongst the testator's heirs as laid down in the Holy Quran. The law would be the same if a certain transaction, though on the face of it, a gift, is in fact a device to deprive a lawful heir of his share in the property. No person can be permitted to defeat the object of Muslim law by entering into such colourable transactions. It is an admitted principle of law that a gift intended to defeat or defraud the creditor is voidable. On the same principle, a gift intended to disinherit an heir would be a sham transaction, and, thereforee, nugatory. The gift in order to be effective should be a genuine transaction and not merely a plan to achieve some ulterior object. It is true that the necessary effect of almost all the gifts will be disinheritance of one or the other of the heirs of the donors, but then it should be the effect and not the real object of the gift. If the real object of the gift is disinheritance of an heir, it will be, in my opinion, had in law.'
(38) We find ourselves unable to agree with this submission. A man may lawfully make a gift of his property to another during his life time, or he may give it away to some one after his death by will. The first is called a disposition inter vivos and the second a testamentary disposition. Mohammodan law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum, the testamentary disposition is limited to one-third of the net estate. Mohammedan law allows a man to give away the whole of his property during his life time, but only one-third of it can be bequeathed by will (A.A.A. Fyzee-Outlines of Mohammedan law, 3rd Edition, at page 208).
(39) Their Lordships of the Privy Council in Ranee Khujooroonissa v. Mussarut Raushun Jehan (3 Indian Appeal 291) held that :
THEpolicy of the Mohammedan law appears to be to prevent a testator interfering by will with the course of the devolution of property according to law among his heirs, although he may give a specified portion, as much as a third, to a stranger. But it also appears that a holder of property may, to a certain extent, defeat the policy of the law by giving in his life time the whole or any part of his property to one of his sons, provided he complies with certain forms.
(40) In view of this clear pronouncement, we cannot uphold the contention advanced before us, for in our opinion the dictum of the learned Judge in Ahmed Khan's case (supra) does not lay down the law correctly.
(41) The learned counsel for the respondent submitted that the fact that Daud had made a gift in favor of his mother was also proved by the power of attorney by which Mst. Kulsum-un-Nisa appointed Mohd. Daud as her general attorney. The power of attorney afforded clear proof, according to the counsel, of the gift made by Daud. The learned counsel relied on Kamar-un-nisa Bibi v. Hussaini Bibi (1881) 3 Al26 In this case one Mehdi Ali made a verbal gift of his property in favor of his wife. The fact of the gift was denied by the appellant and it was contended that if it had been intended by Mehdi Ali to give what is, no doubt, a considerable portion of his property to his wife, he would have taken the ordinary precaution of having some document in writing as evidence of the gift and that the fact that there was no such instrument was in itself a strong circumstance against the possibility of the gift having been made. Mehdi Ali in that case had executed a power of attorney in which reference to the gift was made by Mehdi Ali in some detail. The Privy Council rejected the submission that there was no proof of oral gift and observed as follows:
THEIRLordships are quite prepared to agree with the Subordinate Judge that the Court is bound to watch with the greatest care, perhaps even with suspicion, the case of a verbal gift set up after the alleged donor's death; and if the case had rested upon the oral testimony, alone, their Lordships probably might not have had this appeal before them. It may have been that, in that case, the High Court would not have dissented from the view of the oral evidence which had been taken by the Subordinate Judge. But the case does not rest on this evidence alone, and it is not a case where an oral gift is set up, after a man's death, which had not been heard of in his life time. An instrument was executed by Mehdi Ali, a Mukhtar-nama, to carry the gift into effect and publicity was given to the fact of the gift having been made, which drew forth, from the present appellant and others, opposition in the life time of the donor. The gift was made on the 1st May, 1870, and about six weeks afterwards a Mukhtar-nama was executed which contains a reference to the gift, and appoints a mukhtar to effect a mutation of names. The terms of the Mukhtar-nama and the way in which the gift is referred to, are worthy of great consideration. The gift is not cursorily mentioned, but is described so much in detail, that If the document was read to Mehdi Ali, and if he had intelligence enough to comprehend it, it is impossible that he should not have known that it was intended to carry into effect the gift which it alleged that he had made a short time before.
(42) The learned counsel for the respondent cited Ma Mi and another v. Kallander ammal (1927) 2 5 RaJ 7. In that case, a Mohammedan conveyed immovable property in the Pegy District to his wife by a registered deed and he effected mutation in her name, but continued to manage the property himself. On behalf of the defendants it was pleaded that the gift was invalid according to Mohammedan law as the donor has never put the done in possession, but had remained in possession till his death. The Privy Council held that the acts of the husband after the mutation in reference to the property must be regarded as being on his wife's behalf and that there had been delivery of possession and that consequently the gift was valid under Mohammedan law.
(43) In Ebrahim Alibhai Akuji v. Bai Asi and others, Air 1934 Bom 21 it was held that in all cases in which the question is raised whether a gift governed by Mohammedan Law has been completed, the most satisfactory method of dealing with the question is to direct attention to the conduct of the donor and the donee after the time when the gift is said to have been completed. If after that time the alleged donor continues to take the benefit of the subject of the gift whether it consists of reaping the harvest or the recovery of the rents or profits, or actual occupation or such other benefit, whatever it be, as can accrue to the owner from the ownership of the particular subject of gift, then the possession of the subject of the gift has not been transferred. If the donee is permitted directly or indirectly to receive the benefit then the possession is transferred.
(44) In Mohammad Mumtaz Ahmad and others v. Zubaida Jan and others I.L.R (1889) 11 All 460, the subject of the gift was share in revenue paying villages with land, houses and moveables. Of the greater portion of this property, the donor, a mother giving them to her daughter, had only so far possession that she was in receipt of the rents and profits. In the deed of gift she declared that she had made the donee, her daughter, possessor of all the properties, and she directed that the gift should be carried into effect by the daughter's husband who was manager of estates on behalf of both mother and daughter before then. The question arose whether sufficient possession had been taken on behalf of the daughter to render the gift effectual. The Privy Council held that sufficient possession was taken on behalf of the daughter to render the gift effectual. Sir Barnes Peacock speaking for the Board said :
THElady had merely proprietory, not actual, possession of the greater portion of the property, that is to say, she was merely in receipt of the rents and profits. In the deed of gift she declared (an admission by which Usmana as her heir and all persons claiming through were bound) that she had made the donee possessor of all properties given by the deed that she had abandoned all connection with them and that the donee was to have complete control of every kind in respect thereof. Ahmad Hussain, the daughter's husband, was the general manager of both mother and daughter, and would doubtless take care that the deed of gift should be carried into effect. Their Lordships have no doubt that sufficient possession was taken on behalf of the daughter to render the gift effectual.
(45) In Jamil-un-Nissa v. Muhammed Zia : AIR1937All547 the donor was one of the co-sharers in a village. He was in exclusive possession of a piece of open land, and he executed a deed of gift whereby he made a gift of the land to another co-sharer in the village, and declared in the deed that he had delivered possession to the donee. It was held that there was sufficient delivery of possession to the donee to complete the gift. Sir Shah Muhammad Sulaiman C.J. observed :.ALTHOUGHin order to make the gift complete, delivery of possession is necessary under the Mohammedan law, actual possession is not necessary. All that is required is that steps should be taken to place the donee in a position to take possession effectively and invest her with authority for that purpose. Actual possession is not necessary where the property gifted is not capable of being possessed physically.'
'MOHAMMEDANlaw rightly understood does not insist on delivery of physical possession in every case.' In the case of incorporeal property, 'where the property is not susceptible of physical possession, the donor must do everything in his power to show a clear intention of transferring the property effectively to the donee and of relinquishing entirely his own dominion over the property.'
(Asaf A.A. Fyzee Outlines of Mahommedan Law, 3rd Edition, at page 227). If the property is in the possession of the tenants, it is sufficient if the donor requires the tenants to attorn to the donee. As is stated in Mulla's Mahommedan Law, 17th Edition, paragraph 152 :
'GIFTof immoveable property which is in the occupation of tenants may be completed by a request of the donor to the tenants to attorn to the donee or by delivery of the title deed or by mutation in the revenue register or the landlord shersta.'
(46) On the whole case we are of the opinion that there was a valid gift by Mohd. Daud in favor of his mother Kulsum-un-Nisa. Mohd. Daud transferred the possession of the property to Kulsum-un-Nisa by asking t he tenants to attorn to the donee. Mohd. Daud completely divested himself of his rights in it. Finally Kulsum-un-Nisa made a valid gift in favor of Mohd. Amil. In our opinion, issues Nos. 3 and 4 were correctly decided by the trial Court. No other point was urged before us.
(47) As a result, the appeal fails and is dismissed with costs.