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Vali Mohd. and ors. Vs. Mst. Vahidan and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtRajasthan High Court
Decided On
Case NumberS.B. C.S.A. No. 292/1970
Judge
Reported in1982WLN381
AppellantVali Mohd. and ors.
RespondentMst. Vahidan and anr.
DispositionAppeal dismissed
Cases Referred and Zahuran v. Abus Salim
Excerpt:
.....if the donor upholds the gift then it is not open to strangers like the present defendants to question it on the ground of want of delivery of possession. 14. as the contentions raised by shri singh fail, in the result, the appeal fails and is dismissed with costs......have the valid gift, there should have been declaration, acceptance delivery of possession, argued shri singh. according to him, acceptance & delivery of possession of the gifted property has not been proved. it was then pointed out that there are more than one donee and the entire share could not have been gifted to only one as per the mohammedan law. shri singh, lastly, argued that daughters are residuary under the mohammedan laws and sons are sharers. since kadarbux had five sons he should not have gifted the entire property.5. mr. r.s. purohit, the learned counsel for the respondents, has controverted the above submissions of shri singh. shri purohit has submitted that the question, whether the possession was given, and, whether the gift was made and acceptance is made, all are.....
Judgment:

Guman Mal Lodha, J.

1. This civil second appeal is directed against the judgment & decree passed by the Senior Civil & Assistant Sessions Judge Jaipur District, Jaipur confirming the judgment & decree passed by the Munsif Magistrate, Jaipur District, Jaipur in a civil suit for declaration and permanent injunction.

2. Mst. Vahidan and Sakuran, the plaintiffs-respondents, daughters of Kadar bux filed the suit on the allegation that their share in the property mentioned in para 1 of the plaint was gifted orally to them by their father Kadarbux about 14 years prior to the institution of the suit. The plaintiffs in pursuance to this gift took possession of the property. Now, defendants-appellants want to dispossess the plaintiffs from their possession. The gift was denied by the defendants. The case of the defendants was that Kadarbux had left for Pakistan and could not have gifted the property. The possession of the plaintiffs over one 'Tibara' and 'Sal' was alleged to be illegal having been taken forcible two months prior to the filing of the written statement. On the pleading of the parties, the following issues were framed:

1- vk;k fookn xzLr 2 x`g dk frokjk o lky o ml ij pkSckjk ij eqn~nbZ;ku dk dCtk gS vkSj og ekfyd gS A bl vej dk gLrk{kj ikus ds vf/kdkjh gS A

2- vk;k oknh gqDe bErukbZ nokeh ikus dk vf/kdkjh gS A

3- vk;k izfroknh ua- 5 o 6 Qjhd xSj t:jh gS A

4- nknjlh

3. After the suit was decreed on 28th February, 1961, the first appellate court remanded the case for adding words, in issue No. 4. The suit was again decreed for the second time on 13th April, 1963. The appeal filed against the above decree by the defendant was dismissed.

4 Shri Dalip Singh, the learned Counsel for the appellant, has raised manifold grounds for challenging the finding of the appellate court. In order to have the valid gift, there should have been declaration, acceptance delivery of possession, argued Shri Singh. According to him, acceptance & delivery of possession of the gifted property has not been proved. It was then pointed out that there are more than one donee and the entire share could not have been gifted to only one as per the Mohammedan Law. Shri Singh, lastly, argued that daughters are residuary under the Mohammedan laws and sons are sharers. Since Kadarbux had five sons he should not have gifted the entire property.

5. Mr. R.S. Purohit, the learned Counsel for the respondents, has controverted the above submissions of Shri Singh. Shri Purohit has submitted that the question, whether the possession was given, and, whether the gift was made and acceptance is made, all are questions of fact. On such questions of fact no second appeal can be entertained.

6. It was then pointed out that both the courts, on a very comprehensive discussion of the evidence, have come to the conclusion that Kadar Bux gifted the property, the daughters accepted it and the possession was given to the daughters. It is was pointed out that even if these findings are erroneous on the appreciation of evidence, the same cannot be interfered with in second appeal. It was also pointed out that it is established law that, in case of joint property, a gift can be made jointly. It was again pointed out that the defendants are busy bodies and they have got no right to raise any objection so far as the gift is concerned, because the sons who are concerned persons never raised any objection.

7. I have carefully considered the submissions of the parties and have gone through the record, including material parts of the evidence, which have been read over by the parties. A gift in Mohammadan law is called as 'Hiba' Undoubtedly, Shri Singh pointed out that there are three ingredients of a valid 'Hiba', viz. (i) declaration for gift by donor, (ii) acceptance by the donee, and (iii) the delivery of possession. Equally, Shri Purohit is correct, when he asserts that all these three are questions of fact.

8. Shri Singh pointed out that there is no exactness about the time of gift as some one says, 15 years, and some other persons have said 14 years or so on. Similarly, it was pointed out that there is no such acceptance, as such, it is not proved. On the question of delivery of possession, it was pointed out that there are variance and diversions between the evidence produced by the plaintiffs.

9. It may be pointed out that this gift was alleged to have been effected prior to 5-6 years to the partition of the country and Kadar Bux went to Pakistan some 8 years ago after the gift. There is minor variances between the statements of Saffiullah (PW2), Abdul Karim (PW3) and Jagannath (P.W.4). These discrepancies have already been rightly held to be immaterial by the first appellate court. After all, in the absence of the registered or written deed, the witnesses from their own memory, witnessed In any case, the property is delivered as gift by father to daughter which more or less is their inter family matter. It is too much expected that there should be exactness about the date and time. The first appellate court has extracted some portions of the statements of the witnesses and I am convinced that there is no material discrepancy in the evidence either on point of declaration or on the point of taking possession. The acceptance can always be express as well as implied and when in pursuance of the gift, the possession is taken and kept for sufficient long time, that is best evidence of acceptance. There is no ritual of acceptance prescribed in law which is required to be followed in a particular form or by a particular ceremony. In the very nature of possession of the family property when the father gives a gift to the daughters and, the daughters took possession of the property and live in it, the acceptance is implied.

10. So far as the second branch of submission about the invalidity of gift is concerned, Shri Purohit placed reliance upon the judgment of Madras High Court in Kairum Bi v. Mariam Bi : AIR1960Mad447 . In this case, the gift was made to two persons jointly. Relying upon the principles Said down in Ebrahim v. Bai Asi AIR 1934 Bom 21 (2) & Kanti Fotima v. Jai Narain AIR 1944 Pat. 341 (3) the Madras High Court held that, where the donor gives away by way of gift the entirety of her undivided shares in an estate to two persons jointly, the gift is not bad'. It has been further observed as under:

The rules of Mohammedan law do not require that to make a gift valid the donor must have physical possession of the property and must hand over that physical possession to the done. It is enough if he has not legal possession of the property and transfers to the donee such possession as the matter is susceptible of.

The possession of one heir is possession on behalf of other heirs also, and it can properly be said that the other heir is actually in possession of the estate.

Again, in Kalu Beg v. Gulzer Beg AIR 1946 Nag. 357 (4), it has been held that a joint gift in favour of two donees is valid. The relevant observations were as under:

The reason for the rule that the 'gift of an undivided share (musha) is bad is to be found in the desire to avoid what has been described as confusion. If the property is capable of separate possession but nevertheless the donor does not separate what he intends to give from his other possessions, one cannot find out what he intended to give and there is bound to be confusion. The reason of the rule is wholly absent in a case where the donor gave away the entirety of her interest in the estate.

11. In the above judgment, Kalu Beg's case Bose J. was also of the view that the question of delivery of possession is only relevant as between the donor and these who claim under him or her and the donee. If the donor upholds the gift then it is not open to strangers like the present defendants to question it on the ground of want of delivery of possession.' Reliance was placed on Halimbi v. Rahmatali AIR 1940 Nag. 701 (5).

12. I find from the judgment of the first appellate court that this question had been discussed at length. It was held that the donor was living in the distinct portion for quite some time and, therefore, there was presumption of partition. It was also held in the above Madras case, Kairum Bi v. Mariam Bi that the possession of one donee is a possession of other and actual possession need not be there. This view was also taken in Nazir Din v. Mohammad Shah AIR 1936 Lah. 92) (6) and Zahuran v. Abus Salim AIR 1930 Oudh 71 (7).

13. I am of the firm view that the gift between father and the daughters which has been proved in this case, hardly requires microscopic examination of validity at the instance of the defendants who have not been able to show that they have got any right in the property under the Mohammedan law. For all these reasons, I have got no hesitation in upholding the judgment of the first appellate court and confirming the decree passed by the trial Court.

14. As the contentions raised by Shri Singh fail, in the result, the appeal fails and is dismissed with costs.


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