B.K. Mehta, J.
1. This second appeal, at the instance of the original defendant, arises out of the suit filed by the respondent-plaintiff in the Court of Civil Judge (S.D.) Godhra for possession and mesne profits of a residential building which, she claimed, had been gifted to her by her father in July, 1968, and also for possession of moveables lying in the said house and, in the alternative, for a sum of Rs. 3799/- being the damages on account of the said moveables.
2. The suit was resisted by the defendant, who happens to be the brother of the plaintiff, contending, inter alia, that the gift in question was neither valid nor legal.
3. The trial Court dismissed the suit of the plaintiff on the ground that the gift was not legal and valid, because the conditions required under the Mohmedan law for completion of the said gift were wanting.
4. In appeal, at the instance of the respondent-plaintiff, the learned Assistant Judge, Panchmahals at Godhra, reversed the order of dismissal of the suit, as in his opinion all the three essential conditions for making a valid gift under the Mohmedan law, namely, (i) a declaration of gift by donor; (ii) acceptance, express or implied, by and on behalf of the donee, and (iii) delivery of the subject matter of the gift by donor to donee, have been established by the evidence. He, therefore, granted a decree as prayed for by his judgment and order of October 22, 1974 which is the subject matter of this second appeal before me.
5. Mr. Mehta, learned Advocate, appearing for the appellant-defendant, raised the following three contentions:
(1) The gift in question was void inasmuch as there was admittedly reservation of the possession of the property by the donor during his life time.
(2) The essential-condition for making a gift under the Mahomedan law, namely, relinguishment of the control, has not been established by the evidence and the inference drawn, from the facts proved by the parties, by the lower Appellate Court is absolutely unwarranted and, therefore, he has committed an error in law in holding that the gift is valid and legal.
(3) In any case, the subsequent conduct, clearly admitted by the donee in her evidence, rebuts the presumption sought to be raised by the declaration of the donor before the Land Records Officer that he has delivered the possession.
6. In my opinion, none of these contentions has any merit in it. I will deal with the contentions in the same order in which they have been raised.
7. It is no doubt correct that it is essential for the validity of a gift under the Mahomedan law that the donor should divest himself completely of all ownership and dominion over the subject of the gift. It is also, however, an established principle of law that a gift with a reservation of possession of property by the donor during his life time is void (vide K.S. Mahomed Aslam Khan v. Khalilul Rehman Khan and Ors. A.I.R. 1947 P.C. 97). However, there is no evidence worth its name in the present case before me that there was any reservation of possession of the property by the donor during his life time. Mr. Mehta in this connection invited my attention to the statement made by the donee before the land Records Officer when the do nor sought the mutation of the property gifted from his name to the name of the donee. In that statement, which is produced at Ex. 50, the donee has stated that her father has given her share in the property and its possession has also been handed over to her. She further stated that her father could stay in the property till his life time and I maintained him during the remaining years of his life. Mr. Mehta tried to rely on this statement for purposes of spelling out that there was a reservation of possession of the property. I do not think that Mr. Mehta was right in the way in which he was reading this statement. What he has lost sight of is that it was only that reservation of possession of the property by the donor which made the gift void. As a matter of fact, no question has been put to the donor or to the donee in the evidence that the donor had made reservation of possession of the property during his life time and in accordance with that reservation the donee has made this statement before the Land Records Officer. At the most, the statement of the donee indicates she was conscious about her moral responsibility to maintain her father during the remaining years of his life and with that anxiety she stated that her father would stay in the property for his life time. In the circumstances, therefore, the first contention is not at all well founded and should be rejected.
8. The second contention about the want of relinquishment of the control is also rightly rejected by the learned Assistant Judge. It has been clearly admitted by the donor before the Land Records Officer in his statement, which has been produced at Ex. 49 on the record of the trial Court, since he has died by that time when the statement was brought on the record in the evidence of the donee, whose evidence is recorded at Ex. 41, that he had of his own volition gifted away the house bearing City Survey No. 9 of lot No. 316, which was standing in his name, to his daughter by an oral gift since she was a widow and he had handed over the possession thereof on the very day on which he made the statement before the Land Records Officer, and, therefore, he prayed that his name be deleted from the land records and the name of his daughter be entered into. Mr. Mehta submitted that even though he claimed to have handed over the possession of the property in question to his daughter, he continued to reside in the premises and the requisite condition of the delivery of possession of the immovable property, where the donor is in possession, by physically departing from the premises with all the goods and chattels and the donee formally entering a to possession has not been complied with. In principles of Mahomedan Law, Eighteenth Edition, paragraph 152(3) what is the principle for the determination of the question whether the possession has been delivered or not, has been digested from the decision of the Bombay High Court in Shaik Ibrahim v. Shaik Suleman (1884) 9 Bom. 146 where West J held as under :
When a person on the premises proposed to be delivered to him, a declaration of the .person previously possessed puts him into possession... without any physical departure or formal entry.
(vide p. 163 Mulla's Principles of Mahomedan Law)
It has been clearly established and found by both the Courts below that the donee had been staying with the donor since about two months immediately prior to the date of the gift. In the circumstances, therefore, when both the donor and donee reside in the property at the relevant time when the gift was declared, it is not necessary, as held by the Bombay High Court in Shaik Ibrahim's case (supra), that for purposes of effecting delivery of possession, the donor must physically depart from the premises with all his goods and chattels and a formal entry be effected by the donee on the premises. In such circumstances mere declaration of the person previously possessed puts the donee into possession without any physical act or departure or formal entry. In that view of the matter, therefore, the second contention of Mr. Mehta should also fail that there was no relinquishment of the control by the donor inasmuch as he did not depart physically with all his goods and chattels from the property.
9. Mr. Majmudar, in this connection, has invited my attention to the evidence of the donor which was recorded on commission before he died during the pendency of the suit that after making the gift of the property in question and getting his name mutated from the record of records, he left for Dohad where his second daughter was residing to stay with her. Now this evidence of the donor has not been seriously challenged in the cross-examination and, therefore, even on the strict compliance of the condition of delivery of possession that the donor must physically depart with all his goods and chattels and the donee must make a formal entry in the property is also satisfied. The second contention of Mr. Mehta therefore fails and is rejected.
10. The third contention about the relevance and importance of the subsequent conduct and the payment of the municipal taxes and electrical energy consumption bills to rebut the presumption arising as a result of the declaration by the donor in the statement recorded before the Land Records Officer that he had handed over the possession of the property which he had gifted to his widowed daughter is also not well founded. In Mst. Noor Jahan Begum v. Mufthar Dad Khan and Ors. : AIR1970All170 , the Allahabad High Court stated the principle of relevance of subsequent conduct in the following terms:
Under the Mahomedan Law a recital in the gift deed that possession has been delivered to the donee of the property gifted gives rise to a presumption, only of such delivery and the presumption may be rebutted by those challenging the gift. The presumption may be rebutted by establishing that the subsequent conduct of the donor is inconsistent with the making of the gift or by demonstrating the patent Improbability of what is stated by the recital. The subsequent conduct of the donor has been considered by the Courts in India as of great relevance in determining whether possession bad been delivered and a valid gift completed.
Now, in the first instance, here this principle cannot be strictly pressed into service since there is no written gift deed reciting the factum of the delivery of possession to the donee, which presumption can, of course, be rebutted by the evidence of subsequent conduct Which makes the factum of delivery of possession improbable. Mr. Mehta however invited my attention to a decision of Lahore High Court in Qamaruddin v. Mt. Hassan Jan A.I.R. 1935 Lahore 795 where donor and donee were living in same house which was the subject matter of the gift deed and where it was established that neither the deed was delivered to the donee nor the mutation of the name effected nor even a declaration was made in the deed transferring the possession to the donee, nor had the donor divested herself of either the ownership or the possession of the property in any other manner and further the house tax also used to be paid by her, it was held by the High Court of Lahore that the requirement of Mahomedan law about the delivery of possession had not been fulfilled and the gift remained incomplete. I have not been able to appreciate how this decision of Lahore High Court can advance the cause which Mr. Mehta is representing since the said decision as to whether the condition about the delivery of possession which is one of the requisite conditions for making a valid gift under the Mahomedan law had been completed or not can be of real assistance in the present case, since in the case before has me it been established beyond doubt that after the declaration of the gift and handing over of the possession by the donor to the donee, an application was made on the same day to the Land Records Authority for mutation of the property from the name of the donor to the name of the donee and that the statements of both the parties were recorded in which the factum of delivery of possession was admitted and in pursuance of which the Land Records Authority actually mutated the property from the name of the donor to the donee. In my opinion this overt act by the donor and the donee establishes the compliance of the requisite condition of the delivery of possession of the property. In that state of affairs, therefore, the third contention of Mr. Mehta should also fail and is rejected.
11. No other contention has been advanced by Mr. Mehta and, there fore, I do not find any other question of law on which I can interfere with the judgment and order of the lower Appellate Court. The second appeal, therefore, fails and is dismissed but having regard to the relationship of the parties there should be no order as to costs.
11.1. The companion matter. Criminal Revision Application No. 427 of 1977 is at the instance of son-in-law of the respondent-plaintiff in the Second Appeal against the order of the learned Sessions Judge, Panchmahals at Godhra in Criminal Revision Application No. 13 of 1976 filed by the heirs of the appellant-defendant herein against the order of Sub-Divisional Magistrate, Godbra in Case No. 2 of 1975 under Section 145 of the Criminal Procedure Code, at the instance of the respondent-plaintiff where the Sub-Divisional Magistrate has directed the removal of the obstruction of the appellant-defendant. The learned Sessions Judge allowed the Revision Application since the Sub-Divisional Magistrate reached the conclusion relying on the evidence of one bailiff Umiyashanker Pandya without opportunity to the heirs of the appellant-defendant before me to cross-examine. The learned Sessions Judge therefore directed the Sub-Divisional Magistrate to give an opportunity to the heirs of the appellant-defendant to cross-examine the bailiff and lead their evidence after hearing the arguments to dispose of the case according to the correct principles of law. This order of the learned Sessions Judge, Panchmahals of 16th June, 1977 is the subject matter of this revision before me.
12. I do not find any grounds to interfere with this order since this is merely an order of remand which has been rightly made because some evidence has sought to be relied upon by the Sub-Divisional Magistrate without opportunity to the opposite party to cross-examine the witness. The order of remand will, therefore, stand but the Sub-Divisional Magistrate is directed to dispose of the Criminal case according to the findings made, as to the title, in this second appeal. Criminal Revision Application, therefore, fails and is dismissed with the above clarification.