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Madathil Thattantavita Khalid Vs. Palott Moothammantakath Sainabi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 257 of 1975 and 302 and 303 of 1978
Judge
Reported inAIR1981Ker230
ActsMohammedan Law
AppellantMadathil Thattantavita Khalid
RespondentPalott Moothammantakath Sainabi and ors.
Appellant Advocate V. Bhaskaran Nambiar,; R. Bhaskaran,; C.R. Natarajan
Respondent Advocate T.R. Govinda Warrier,; K. Ramakumar and; Sebastian Davis
DispositionAppeal dismissed
Cases Referred and Beepathumma v. Mohammed Nakoor Mesra Rewther
Excerpt:
.....sahib, rejected his contentions concerning items 2 to 4 which are the properties covered by the gift deeds exts, e2 and b3. b2 and b3 clearly indicate that the donor transferred to the donees all his rights in the properties including whatever possession the properties were susceptible of. the donees were authorised to possess and enjoy the properties, collect rent from the tenants, get the necessary documents from the jenai, and obtain mutations of names in their favour. the donor was allowed by the donees to enjoy the usufructs of the properties and, for this purpose, they authorised him to collect the rent from the tenants for and on behalf of the donees as their agent, all prior documents respecting the properties gifted were handed over by the donor to the donees along with the..........the properties gifted were handed over by the donor to the donees along with the deeds of gift. the donees were thus admittedto whatever possession the properties were susceptible of. although the donees did not give evidence before the trial court, their husbands d.ws. 1 and 2 who were present at the time of execution of the gift deeds (exts. b2 and b3) deposed on their behalf. they stated that the properties were put into the possession of the donees when the documents were handed over to them, and that the donees exercised absolute dominion over the properties. exts. b4 to b9, b32 to b34, b41 and b48 to b50 show that defendants 2 and 3 clearly asserted their rights as donees and got the necessary changes made in their favour in the relevant corporation records and other.....
Judgment:

Kochu Thommen, J.

1. A. S. Nos. 257 of 1975, 302 of 1978 and 303 of 1978 arise from O. S. Nos. 57 of 1971, 152 of 1971 and 153 of 1971 respectively on the file of the Sub. Judge, Kozhikode. The suits were jointly tried.

2. The main question which arose in 'the suits was as to the validity of Exts, B2 and B3 deeds of gift dated 4-4-1953 executed by late Hussain Sahib (hereinafter referred to as the donor) respectively in favour of his wife's sisters, Sai-nabi and Kadeeja, who figure as defendants 2 and 3 in O. S. No. 57/1971 (hereinafter referred to as the donees). The parties shall be referred to in the order in which they appear in O. S. No. 57 of 1971. It was contended by the plaintiff that being the donor's brother's son andheir, he was entitled to 3/4 share of the plaint schedule properties together with mesne profits. Accordingly O. S. No. 57/ 1971 was instituted by the plaintiff for partition and separate possession of his 3/4 share. The plaintiff is the 2nd defendant in both O. S. Nos. 152 and 153 of 1971 which are instituted by Sainabi, one of the donees and the 2nd defendant in O. S. No. 57 of 1971, for arrears of rent in respect of shop rooms in Item 2 scheduled to O. S. No. 57 of 1971 and covered by Ext. B2.

3. The learned Judge while accepting the plaintiff's claim regarding Item 1 of the plaint schedule properties as well as the amount received by the 1st defendant under the insurance policy on the life of Hussain Sahib, rejected his contentions concerning Items 2 to 4 which are the properties covered by the gift deeds Exts, E2 and B3. A preliminary decree was accordingly passed in O. S. No. 57 of 1971 only in respect of Item 1 and the insurance amount. O. S. Nos. 152 of 1971 and 153 of 1971 were decreed.

4. The plaintiff has filed the present appeals against the judgment and decrees in so far as his contentions concerning Items 2 to 4 of the properties scheduled to O. S. No. 57 of 1971 have been rejected by the trial Court.

5. The short question therefore is whether the plaintiff, as one of the heirs of the donor has any right to claim a share in the properties covered by Exts. B2 and B3. If these two documents are valid deeds of gift executed by the donor in favour of the donees, the plaintiff has no right in regard to them and it was right-ly so held by the learned Judge.

6. The relevant recitals in Exts. B2 and B3 clearly indicate that the donor transferred to the donees all his rights in the properties including whatever possession the properties were susceptible of. The donees were authorised to possess and enjoy the properties, collect rent from the tenants, get the necessary documents from the jenai, and obtain mutations of names in their favour. However, the donees were not to alienate the properties during the life of the donor. The donor was allowed by the donees to enjoy the usufructs of the properties and, for this purpose, they authorised him to collect the rent from the tenants for and on behalf of the donees as their agent, All prior documents respecting the properties gifted were handed over by the donor to the donees along with the deeds of gift. The donees were thus admittedto whatever possession the properties were susceptible of. Although the donees did not give evidence before the trial court, their husbands D.Ws. 1 and 2 who were present at the time of execution of the gift deeds (Exts. B2 and B3) deposed on their behalf. They stated that the properties were put into the possession of the donees when the documents were handed over to them, and that the donees exercised absolute dominion over the properties. Exts. B4 to B9, B32 to B34, B41 and B48 to B50 show that defendants 2 and 3 clearly asserted their rights as donees and got the necessary changes made in their favour in the relevant Corporation records and other documents. In this connection reference may be made to Ext. A 59 which contains a re-affirmation by the donor of what he has stated in Ext. B3. In the light of these documents we are of the view that the learned Judge was perfectly justified in coming to the conclusion that all rights which the donor had in the properties had been transferred to the donees on execution of Exts. B2 and B3 and that the donees were admitted to whatever possession that the properties were susceptible of. We are also of the view that the learned Judge was right in finding that the fact that some of the documents produced by the plaintiff showed that the usufructs of the properties had been collected by the donor even subsequent to the deeds of gift was consistent with the right to collect usufructs granted to him by the donees and that it did not in any manner negative or derogate from the validity of the gifts made under Exts. B2 and B3,

7. Mohammedan Law does not recognise a gift as valid unless three essential elements are found to co-exist. (1) manifestation of the donor's wish to give; (2) acceptance of the gift by 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. (Munni Bai v. Abdul Gani. AIR 1959 MP 225). Delivery of possession need not necessarily be physical or actual, but it should be delivery of such possession as the subject-matter of the gift is susceptible of. (See Syed Md. Saleem Nashmi v. Syed Abdul Fateh AIR 1972 Pat 279; Shahalam Khatoon v. Amir Ali Khan AIR 1972 Andh Pra 241; Johara Bibi v. Subera Bibi AIR 1964 Mad 373).

8. In Mohammedan law there is a clear distinction between a gift of the surplus and a gift of the usufructs. Overthe former the law recognises only absolute dominion and admits of no condition which seeks to limit that dominion; whereas in the case of the latter a limited interest can be created in which event the dominion over the corpus takes effect subject to that limited interest. Mohammedan law known of no ownership which is limited in duration but it recognises interests of limited duration in the use of the property. In Nawazish Ali Khan v. Ali Raza Khan (AIR 1948 PC 134) the Privy Council observed:

'In general, Muslim law draws no distinction between real and personal property..... What Muslim law does recognise and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafi). Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests..... TheirLordships feel no doubt that in dealing with a gift under Muslim Law, the first duty of the Court is to construe the gift If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest.'

We are of the view that Exts. B2 and B3 were intended to be, and did operate, as an immediate and irrevocable disposition of the properties in question in favour of the donees. The reservation of the usufructs in favour of the donor during his life with authority to collect rents and profits as the agent of the donees did not make the gifts void under Mohammedan Law. (See; Moham-mad Abdul Ghani Khan v. Mt. Fakhr Jahan Begam, AIR 1922 PC 281; Ismail v. Idrish, AIR 1974 Pat 54; Kollanchil Padinhakkana Abdulrahiman v. Kunhi-mohamad, AIR 1975 Ker 150),

9. A number of decisions were cited by the appellant's counsel Mr. Bhaskaran. He referred to Mohammed Aslam Khanv. Khalilul Rehman Khan (AIR 1947 PC 97) to contend that mere entry in the register of mutation or other records did not establish an out and out gift. That was a case in which it was categorically found that there was no transfer of possession to the donee. The same was the position in Mohammed Pathummal Kadija Beevi v. Maria Ummal Mohammed Pathummal (AIR 1958 Ker 264); Piche-kannu v. Aliyarkunju Lebba (1963 Ker LT 226); Veevi Kunju Ashia Beevi v. Kali Kochu Pillai (1958 Ker LT 37); Maitheen Beevi Umma v. Ithappiri Varkey (1956 Ker LT 444) : (AIR 1956 Trav-Co 268) and Beepathumma v. Mohammed Nakoor Mesra Rewther (ILR (1976) 2 Ker 137 : AIR 1977 Ker 54). In none of these cases had possession been transferred by the donor and it was for that reason, that the gift was held to be not valid. These cases cited on behalf of the plaintiff are not applicable to the facts of this case where no possession was retained by the donor and whatever possession that the properties were susceptible of had been transferred to the donees. The reservation of the limited interrest in favour of the donor in the usufructs of the properties did not derogate from the validity of the gifts themselves.

10. In the circumstances we find no substance in the challenge against the findings of the learned Judge. A. S. No. 257 of 1975, A. S. No. 302 of 1978 and A. S. No. 303 of 1978 are dismissed. Respondents 1 and 2 in A. S. No. 257 of 1975 and respondents 1 and 5 in A. S. Nos. 302 and 303/1973 are entitled to get their costs in these appeals.


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