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Kollanchil Padinhakkara Abdulrahiman and anr. Vs. Kunhimohamad and ors. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 970 of 1972
Reported inAIR1975Ker150
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 4; Muhammadan Law; Transfer of Property Act, 1882 - Sections 123
AppellantKollanchil Padinhakkara Abdulrahiman and anr.
RespondentKunhimohamad and ors.
Appellant Advocate K. Kuttikrishna Menon and; A.P. Chandrasekharan, Advs.
Respondent Advocate T.R.G. Warrier and; K. Ramakumar, Advs.
DispositionAppeal dismissed
Cases ReferredMaqbool Alam Khan v. Mst. Khodaiia
.....of transaction - donee put in possession of property - title deeds of property also passed over to donee - gift completed by donor's act and nothing else to be done by donee - gift valid and donee entitled to get gift property. - - 2. admittedly, the plaintiff was not well at the time of the execution of ext. 1's evidence that she was mentally and intellectually alert ('no defect with her brain') and that her eyesight and hearing capacity were good. (2) that it is bad being gift of 'musha' (undivided part of a property capable of divisional; ganga pro-sad, air 1967 sc 878 =1(1967} 1 scwr 271). in the second case that court said: seventh edition, p- 242). the lower courts concurrently held that the donor was on good terms with the defendants 1 to 3. and that it was on her own accord..........and one of her two sisters, came in on her death as her legal representatives -- executed ext. b-l gift deed on 30-11-1960 in favour of her deceased brother's children, defendants- nos. 1 to 3, and got it registered on 4-12-1960. thereafter on 10-12-1960 she executed ext. a-10 cancellation deed, and on 21-12-1960 filed the suit out of which this appeal arises for cancellation of ext. b-l sift deed. pending trial of the suit she died issue-less on 2-6-1961. the 4th defendant is her other sister- she is neither contesting the suit nor seeking any relief in respect of the suit properties. the trial court decreed the suit but the lower appellate court reversed the same. plaintiffs nos. 2 and 3 have come up in appeal.2. admittedly, the plaintiff was not well at the time of the execution of.....

George Vadakkel, J.

1. In respect of the suit properties the plaintiff -- she was the sole plaintiff; plaintiffs Nos. 2 and 3, her husband and one of her two sisters, came in on her death as her legal representatives -- executed Ext. B-l gift deed on 30-11-1960 in favour of her deceased brother's children, defendants- Nos. 1 to 3, and got it registered on 4-12-1960. Thereafter on 10-12-1960 she executed Ext. A-10 cancellation deed, and on 21-12-1960 filed the suit out of which this appeal arises for cancellation of Ext. B-l sift deed. Pending trial of the suit she died issue-less on 2-6-1961. The 4th defendant is her other sister- She is neither contesting the suit nor seeking any relief in respect of the suit properties. The trial Court decreed the suit but the lower appellate Court reversed the same. Plaintiffs Nos. 2 and 3 have come up in appeal.

2. Admittedly, the plaintiff was not well at the time of the execution of Ext. B-l, and thereafter also. The evidence of P. W. 1, the son of the 3rd plaintiff is to the effect that she was suffering from rheumatism for five or six months previous to her death, and that she was bed-ridden. However, it is also borne out from P. W. 1's evidence that she was mentally and intellectually alert ('no defect with her brain') and that her eyesight and hearing capacity were good. He also says that she could not get up from her bed without the help and assistance of another. It is common case that she was at that time residing at Kottopadam. in a building suit Item No. 17 gifted to her her two sisters -- 3rd plaintiff and 4th defendant -- and P. W. 1 jointly by the mother of the first three persons aforementioned as per Ext. A-4 of 1943 and kept in common as per Ext. A-5 partition deed of the year 1947- The suit properties Items Nos-. 1 to 16 are properties included in Ext. A-4 and allotted to the 1st plaintiff under Ext. A-5. Admittedly, she was removed to the contesting defendants Ambalakattu puthan Veedu about two miles away from Kottooadam house. According to the plaintiffs she was made to believe that she was being, taken to Kottakal for treatment whereas according to the defendants she was removed to their house' since there was no one tolook after and nurse her she having no children, and her husband being about 30 miles away at Cheruthuruthy in his own house, with his children by a former marriage. Whatever be the reason for taking her from Kottopadam house, and wherever was that (according to the plaintiffs on 2-12-1960 and according to the defendants much earlier) both sides are agreed that she was removed from Ambalakattu Puthen Veedu to P. W. 1's house about 10 miles away from Kottopadam house. This was on the 9th December according to the plaintiffs and on the 10th December according to the defendants. Ext. A-10 already referred to was executed thereafter.

3. Ext. B-l gift deed is attacked before me on three grounds: (1) that it is vitiated by undue influence; (2) that it is bad being gift of 'musha' (undivided part of a property capable of divisional; and (3) that it is invalid since it was not accompanied by delivery of possession.

4. I am afraid that I am not called upon, by the pleadings in this case, to examine the first point raised, for under Order VI, Rule 4 of the Code of Civil Procedure. 1908, it is incumbent on the party pleading undue influence to set out full particulars thereof. The Supreme Court emphasised the need for stating full particulars in such cases in Ladli Prasad v. Karnal Distillery Co. Ltd.. AIR 1963 SC 1279 = ((1964) 1 SCR 270) and again in Subhas Chandra v. Ganga Pro-sad, AIR 1967 SC 878 = 1(1967} 1 SCWR 271). In the second case that Court said:--

'Before, however, a Court is called upon to examine whether undue influence was exercised or not it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud.' and quoted in support thereof the following passage from the earlier case :-- 'A vague or general plea can never serve this purpose: the partv pelading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other.'

The averments regarding execution of Ext. B-l are contained in paragraphs 4 and 5 of the plaint. The case set out in these paragraphs is one of successive misrepresentations whereby the 1st plaintiff was made to believe that she was being taken to Kottakal and again, she was made to believe that she was executing only a document to raise funds for her treatment. She also says in that paragraph 4 that she executed Ext. B-l with-out knowing the real purport of it and its contents. There is no averment that the relationship between the 1st defendant (all the allegations are only against him) and the 1st plaintiff was such that the former was in a position to dominate the will of the latter, or in other words, that the former was in a position to influence the latter, and that the former taking advantage of that position used the same so as to render the influence he had over there 'undue'. There is also no issue raised on this point. No evidence is also forthcoming to substantiate such a case. The averments in the immediately preceding paragraph in the plaint, on the other hand lead me to infer that the 1st plaintiff was really on her guard, or at least, would have been on her guard.

5. In view of the decisions of this (Court in Assankutty v. Mohammed Kurik-kal. 1961 Ker LT 959 and Khader v. Kunhamina. 1970 Ker LT 237 the second ;point founded on the doctrine of 'musha' has no force. In the 1st of the aforesaid two cases Velu Pillai, J. held that a gift to joint donees is valid notwithstanding the doctrine of musha. and in the later cases Krishna Iyer. J. said:

'that rule can be virtually removed from the armoury of a desperate Muslim donor (and his heirs) who wants to attack his own gift but has no rational around to do so.'

I fully subscribe to the views expressed in these decisions.

6. The next question for consideration is: Was the gift completed by delivery of possession. On this, the lower Courts expressed divergent views, according to the trial Court there was no delivery of possession but according to the lower appellate Court, there was.

7. I will have here to remind my-self that the case of misrepresentation or misrepresentations pleaded, and sought to be developed in evidence, but which was found against was not raised before me possibly because no such case could be advanced, for:

'A representation does not render a contract voidable unless it was intended to cause and has in fact caused the re-presentee to make the contract. It must have produced a misunderstanding in his mind, and that misunderstanding must have been one of the reasons which induced him to make the contract. A false statement, whether innocent or fraudulent, does not per se give rise to a cause of action.' (Cheshire and Fifpoot on the Law of Contract. Seventh Edition, p- 242).

The lower Courts concurrently held that the donor was on good terms with the defendants 1 to 3. and that it was on her own accord that she went to Ambalakattu Puthen Veedu (sic) it was convenient forher treatment, as there were several persons like the mother of 1st defendant and the wife of the 2nd defendant besides the sisters of defendants 1 to 3 to look after and nurse her. The learned munsiff believed D. W. 3, the 1st attesting witness who deposed that the document Exhibit B-l was read out in the donor before she signed it, that she fully understood that it was a gift deed in respect of her properties and that he had seen her writing her name and signing it. The learned Munsiff also believing D. W. 2, the Sub-Registrar came to the conclusion that the donor fully understood the nature of the document she was executing. Both the Courts, therefore, held that Ext. B-l is not vitiated in any manner, and the same is not liable to be set aside. And as already pointed out, the learned counsel for the appellant fairly and rightly, did not dispute the correctness of the above finding.

8. In Ext. B-l the donor declares: (omitted in this report--Ed.) The above declaration means (roughly translated) that the donor has along with the title deeds completely and absolutely surrendered possession of all her rights and interests in the properties scheduled to that document without receiving any consideration therefor and by way of pift in lieu of her love and affection towards the donees, to be enjoyed by them, and that, they may possess and enjoy the properties (physical) possession of which had been given to them from then onwards, and the properties outstanding on leases, by recovering possession thereof with future and arrears of rent. Ext. B-17 is the sworn statement given upon oath by the donor before D. W. 2, the Sub-Registrar. (There was some controversy at the bar as to the need or necessity in law of such a sworn statement, but there was no dispute as regards the Sub-Registrar's competency to administer oath and take the sworn statement). In Ext. B-17 the donor has deposed that she was laid UP for the past five months due to rheumatism, that she has good eyesight, hearing capacity and memory, that she has by Ext. B-l document presented for registration and read over to her. gifted the properties to her brother's children and that she was agreeable to have it registered. D. W. 2's evidence shows that the document in full including the schedules was read out to the donor and that he was satisfied that she had fully understood the nature and contents of the document. This means, that she affirmed the declaration made in paragraph 3 of Exhibit B-l before the. Sub-Registrar.

9. No significance can be attached to the fact that the title deeds in respect of Items Nos. 1 to 17, Exts. A-4 and A-5.which as per the provision in clause 7 of Ext. A-5 had to be in the custody ^of the 3rd plaintiff or Exts. A-8 and A-9 which on his own admission were with p. W. 1 he having found the former document in some case records collected back from the donor's vakil and having got executed the latter document and kept it with him from thence onwards have not been handed over by the donor to the donees. Exhibit B-11. the COPY of title deed in respect of Items Nos. 18 to 22 (original is admittedly unavailable) applied for and obtained in 1943 along with Exts. B-2 to B-10 and B-12 to B-16 -- original subsequent documents relating to the properties -- were handed over by the donor to the donees. Discarding the theory advanced by the plaintiffs that defendants came by Exts. B-2 to B-16 clandestinely the trial Court as well as the lower appellate Court held that these documents were handed over by the donor to the donees. Therefore, the statement in Ext. B-l that title deeds have been handed over to the donees is true and correct, so far as the title deeds that were in her possession are concerned. Ext. B-l also contains the declaration that the donor has surrendered possession of the sifted properties to the donees. One other fact to be noticed is that Ext. B-l was sot back from the registry by the 1st defendant as per authorisation by the executant. This means that the donor in effect handed over the gift deed to the donees.

10. Section 150 (4) of Mulla's Principles of Mahomedan Law (Seventeenth Edition at Page 143) is as follows:--

'A declaration in a deed of sift that possession has been given binds the heirs of the donor. But such a declaration is not conclusive and a recital in a deed of gift that possession has been given to a minor nephew (without the intervention of a father or guardian--Section 156) was on the facts held to be insufficient to support a gift as against the heirs of the donor.'

To the same effect is Section 421 in Tyabji on Muslim Law (4th Edition, page 393):--

'From the donor's acknowledgement of having made a gift and delivered pos-session it may be presumed against the donor and persons claiming under him. that the gift was completed as acknowledged'.

Note (2) to the above section (at D. 3941 further says:--

'Acknowledgement by the donor that that he has transferred possession (though it has not really been transferred) may. it is stated in the Sharaiu'l-Islam, take the place of actual transfer of (Possession. The declaration of the donor that he has given possession is sufficient to denotereal possession'--Tohfa IV. 59, cited by Kemball, J. in (Mohinudin v. Mancher-shah. (1882) ILR 6 Bom 650. 656. para. 2). A declaration on the deed that Possession was transferred, 'as a declaration of fact, must be regarded as binding on the heirs of the donor.'

The last sentence in the above extract is from Sir Barnes Peacock's judgment delivered on behalf of the Board in Muhammad Mumtaz Ahmad v. Zubaida Jan. (1889) ILR 11 All 460 (PC) at PD. 475-76 where it was said:--

'The lady had merely proprietary, 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 Usman as her heir and all persons claiming, through him were bound) that she had made the donee possessor of all properties seven 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 Husain. 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. If possession were once taken and the deed of gift took effect, no subsequent change of possession would invalidate it.' In Md. Sadie Ali Khan v. Fakr Jahan Begam, AIR 1932 PC 13 at p. 19 the Board reiterated the above principle relyine on Muhammad Mumtazahmad's case. However, if the declaration is to the effect that possession is given to a minor who has not attained discretion direct and not to the guardian these principles are not applicable. In Katheesa Umma v. Kunhamu. AIR 1964 SC 275 = (1964 Ker LJ 57) Hidayatullah. J. (as he then was) delivering the judgment of the Court said :-- 'It is only actual or constructive possession that completes the gift and registration does not cure the defect nor is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the property unless the minor has reached the years of discretion.' (para 11) (underlining by me).

In a subsequent decision. Maabool Alam Khan v. Mst. Khodaiia, (1966) 2 SCWR 170 = (AIR 1966 SC 1194) the Supreme Court said that the view that a property in the possession of an usurper cannot be gifted is too rigid a view, and added :--

'But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and ac-acceptance by the donee. 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', (para 8) (underlining by me).

11. The learned counsel for the respondents submits that in view of the above referred to authorities and decisions, I should deduce that where the donor is in possession of the gifted property--actually, or, constructively through mortgagee or lessee etc.--and the donee is one who has attained the vears of discretion or at any rate, is one who has attained majority and is sui juris a declaration of gift coupled with an admission , in the gift deed that possession is given completes the sift The learned counsel further argues that in any event such a declaration and an admission followed by the overt acts of handing over of the title deeds, and also of the gift deed (by authorising the donee to get it back from, the registry) completes the gift, and that it is not necessary for the donor to go through the formal and conventional method of handing over of the several immovable properties gifted by accompanying the donee to each and every one of the items of the gifted properties-, and by causing usufructs to be gathered and handed over to the donee, or by doing some such other act. The learned counsel also points out that the donor in this case, was at the time of the gift bed-ridden, unable to move about. These submissions. I think, are well founded, but with a rider.

12. In Gani Mia v. Walid Ali, AIR 1935 Cal 393, Mitter. J. has extracted the following passage from Baillie's Digest:--

'Its pillar (i. e.. of a donation) is the declaration of the donor (Wahib), for that constitutes the gift, and it is completed by the act of the owner alone, acceptance being required only for the purpose of establishing the property in the donee (Mowhoob Lechoo): (Baillie's Digest, Book 8. Ch. I, p. 507).' and has also quoted the Prophet's verse:--

'A gift is not valid unless possessed, (Inayah Vol. 4. P. 24)', The donee should therefore, set such possession as the subject-matter of the gift is capable of and the donor should complete the gift by his own act. Shortly put, the donor should transfer or deliver possession of the subject-matter of the gift to the donee. However, . I do not think that the Muslim law requires or insists upon any particular mode of delivery of possession. At any rate, nosuch rule was brought to my notice. The decision of the privy Council in Mohammed Abdul Ghani Khan v. Mt: Fakhr Jahan. AIR 1922 PC 281 is very illuminating on this point. The Judicial Committee said:

'In considering what is the Mohammedan law on the subject of gift, inter vivos their Lordships have to bear in mind that when the old and admittedly authoritative texts of Mohammadan law were promulgated there were not in the contemplation of anyone any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.

The object of the Mohammedan law as to gifts apparently was- to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should Pass from the donor to the donee, and that the handing over by the donor and the acceptance by the donee of the property had been given by the donor and had been accepted by the donee as a sift.'

That this is so is clear from the fact that the rigour of the Rule that delivery of possession can be effected only by the donor physically departing from the property leaving nothing of his own there was gradually toned down in that it came to be recognised that in some circumstances it is sufficient that the character or nature of donor's possession changes by his intention to treat the property as that of the donee and he divests himself of his ownership (See Tvabii on Muslim Law. 4th Edition, Section 417. page 389 and Mulla's Principles of Mahomedan Law. Seventeenth Edition. Section 152 (3). pages 146-47).

13. The Supreme Court in Ka-theesa Umma's case (AIR 1964 SC 275) already referred to has dealt with this aspect of Muslim law on gifts exhaustively. The Supreme Court has also cited with approval some of the decisions which have pointed out that 'the Muham-madan Law of gifts, though strict could not be taken to be made UP of unmeaning technicalities', and has quoted the passage from Md. Abdul Ghani's case (AIR 1922 PC 281) which I have extracted above approvingly.

14. In Jamil Unnissa v. Sheik Mohammad Zia. (AIR 1&37 All 547) Sulaiman. C. J. repelled the contention that the donor should have taken the donee ' to the spot and pointed out the land and informed the donee that possession was delivered' stating that the donee Was a pardanashin lady and a relation ofthe donor, I am of the view that what Muslim law reauires is proof of some recognised act by the owner (donor) which will go to show that the donor has parted with possession of the subject-matter of the gift, and not any specified manner of delivery of possession.

15. According to Mr. Govinda Warrier, the learned counsel for the respondents, every declaration and acknowledgment of transfer of possession to the donees, constitutes the best evidence of transfer of possession, and this principle cannot be confined 'to cases West. J. had in mind when he in Shaik Ibraham v. Shaik Suleman, (1885) ILR 9 Bom 146 said:--

'When a, person is present on the premises proposed to be delivered to him a declaration of the person previously possessed Puts him into possession.'

The Privy Council in Md. Sadig Ali Khan's case (AIR 1932 PC 13) relied on the above passage to hold that in the case of gift by a husband to his wife it is not necessary for the husband actually to vacate the premises, and said that the Board was not deciding whether the above principle was of universal application between Mahomedan donors and donees. An admission, go long as the same is not established to be erroneous or one given under mistake, misapprehension, or duress or on account of undue influence, fraud or misrepresentation, under the ordinary rules of evidence is the best evidence of the fact admitted. Would it make any difference that the admission is contained in a gift deed whereby a Muslim declared a gift I do not think it would, and as I understand the decision of the Privy Council in Muhammad Mumtaz Ahmad's case (1889) ILR 11 All 460 (PC) it is this rule of evidence that the Board expounded when it said: (an admission by which Usman as her heir and all persons claiming through him were bound)'. The learned counsel for the appellants reiving on Aisha Beevi v. Kochu Pillai. 1958 Ker LT 37 submits that this is not so. In that case the mother of the donees (the 5th defendant therein) gifted her properties to them, and thereafter as their guardian sold the property to the father of the 1st defendant therein. The 1st defendant, in a suit by the donees for recovery by way of defence raised the contention that the gift is invalid and that therefore, the plaintiffs have no right to bring the suit. The contention that possession did not pass to the donees, or their guardian the 4th defendant, was upheld by the lower Courts concurrently. This concurrent finding was attacked, relying inter alia on the statement in the gift deed that possession was given to the donees. Joseph, J. referring to the deci-sions of the privy Council in Muhammad Mumtaz Ahmad's case. Musa Miya v. Kadar Bax. AIR 1928 PC 108 and to the Oudh case, Jhumman v. Husain. AIR 1931 Oudh 7 said : 'this does not mean that the declaration is conclusive'. I do not think that this decision in any wav goes against what is stated above. The other case relied on by the learned counsel on this part of the case is Maqbool Alam Khan v. Mst. Khodaiia, AIR 1966 SC 1194 = ((1966) 2 SCWR 170). That was a case where a trespasser was in possession of the gifted property and the gift was an oral one. Necessarily any admission that possession was handed over was erroneous.

16. The plaintiffs have failed to, establish that the admission in Ext. B-l was erroneously made by the 1st plaintiff. or that the real state of affairs was not, as admitted by her in Ext. B-l. No evidence to brush aside the admission was placed before me. So far as the case on hand is concerned, the admission of surrender of possession in Ext. B-l and the handing over of such of the title deeds: the donor was in possession of and of the, gift deed itself (by enabling the donee to collect it from the registry) establish beyond doubt that the donor parted with possession of the gifted properties, and the donee came to be possessed of the same. The sift has been completed by the donor's act, for there remained nothing else to be done by the donor.

17. The second appeal fails. The same is dismissed with costs.

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