1. We are constrained to hold that the Lower Appellate Court has not satisfactorily determined the two main questions raised in the suit. The first question is whether the sale by the second defendant to the third defendant was nominal. That is the subject-matter of the first issue. On this there is no finding by the District Judge. The question involved in the second issue is whether the gift in favour of the plaintiff by the third defendant is valid. As to this what the Judge says is that having regard to the previous transactions between the parties it is clear that the gift was fraudulent. It is difficult to understand what the exact significance of the finding is. Supposing the sale to the third defendant was valid and effectual the property passed to her from the moment of the sale and any gift subsequently made by her of the property would be valid if it were in accordance with the provisions of the law. It does not appear to have been alleged that the third defendant made the gift in order to defraud any creditors of hers, if she had in fact any creditors to defraud. We must therefore ask the District Judge to submit fresh findings on issues Nos. 1 and 2 upon the evidence on the record.
2. The findings should be submitted in eight weeks, and seven days will be allowed for filing objections.
3. In compliance with 'the order contained in the above judgment, the District Judge of Coimbatore submitted the following
Finding--It is difficulty to ascertain the facts accurately. But as far as I can make out they are as follows: One Fakir Nina Rowther died about 1880. He left one son who is the second defendant, a widow who is the third defendant, and 5 daughters; three of whom were born to different wives who are dead. Thus his property goes into eight shares, of which the son is entitled to two and each of the females to one.
2. On 13th June 1883, by exhibit IV, two of the daughters sold their shares to the son, and on 15 th October 1884, by exhibit V, the son and his mother sold the same two shares to the wife of the son. Another daughter seams to have sold her one share to the son; but there is not any document filed for this transaction. Thus second defendant's wife had two shares, and the second defendant himself had three shares; the widow and her daughters had three shares among them. The shares were never ascertained.
3. On 24th July 1891, by exhibit A, second defendant sold his three shares to his mother, third defendant. A month later, he executed exhibit II, dated 21st August 1891 by which he hypothecated all the property except the two shares of his wife. A suit was filed on this hypothecation, Original Suit No. 863 of 1902, The property was brought to sale and first defendant purchased something Exactly what ha got is not clear. For the decree is not clear. Apparently he got the three undivided shares belonging to second defendant; the sale certificate is dated 3rd March 1904. Meantime, third defendant; had executed exhibit VIII, dated 20th July 1899. This purports to be a deed of gift;, for three shares, to the son of second defendant. These are apparently the three shares, which were transferred under exhibit A. The grandson now sues to recover the undivided shares.
4 The High Court asks me to find whether the sale, exhibit is nominal; and whether the gift, exhibit VIII, is valid.
5. Exhibit A recites that 'the sale amount Rs. 500 has been received in cash this day.' The second defendant examined as defence first witness says that ha executed exhibit A to his mother for three shares and she paid him Rs. 500 at the time of the registration, Third defendant examined as defence second witness says that her son did not sell her any land and she did not pay Rs. 500; she says that the second defendant had the sale-deed in his possession and gave it to her only two months before she was examined in Court. She does not explain for what purpose the sale-deed was got up nominally. Defence third witness is the writer of exhibit A. He says that money was not paid in his presence. It does not follow, that money was never paid. Defence fourth witness is an attestor of exhibit) A. Ha says that money was not paid in his presence, but ha adds, that when he questioned second defendant why the price was low, second defendant replied that he was charging a low price because the sale was to his own anther. I think this goes to show that the transaction was real, There is no other evidence on the, point,
6. The District Munsif found that exhibit A was a genuine transaction. I see no reason to differ People wishing to sat aside a registered document must show claarly, for what reason it was got up nominally. Such evidence is entirely absent in this case. I find that the sale, exhibit A, is valid and not nominal.
7. With regard to the so-called deed of gift, I have no doubt that the third defendant registered it. Plaintiff's first witness is the karnam of the village; he attested the document and he says that the third defendant touched the pen. Third defendant now says that she executed the document under the influence of her son. Except her own statement, there is nothing to show that the son used any improper influence. He was not cross-examined on the point. If the parties had not been Muhatnmadans, I should hold that the gift was valid and binding.
8. But to make a valid gift under Muhammadan Law, it is essential that the donee should be at once put in possession. In the present case, as far as I can see, the donee had never any possession. Plaintiff's first witness the karnam, speaks of possession by defendants Nos. 3, 2 and 1, but makes no reference to any possession by plaintiff, The Munsif has referred to this matter in paragraphs 16, 17 and 18 in his judgment. I agree with him that the dead of gift is not valid under the Muhammadan law,
4. The learned District Judge finds that the sale fey the second defendant to the third defendant was a valid transaction and he also finds that the third defendant made a gift of the property to the plaintiff, but he says that the gift is invalid in Muhammadan law inasmuch as possession was not given to the plaintiff. But the plaintiff was a minor at the time of the gift and the donor, the third defendant, who is grandmother of the plaintiff, states in the deed of gift that she would remain in possession of the property as guardian of the plaintiff and on his behalf. That being so there can be no doubt that the objection to the gift on the ground mentioned by the District Judge is not a valid objection in Muhammadan law.
5. But it appears that the first defendant raised another question in paragraph 3 of his written statement. It is alleged therein that the third defendant never obtained possession of the property nor the deed of sale, and it is argued before us that if the third defendant was not in possession at the time of the gift the gift would be invalid according to Muhammadan law. There is no finding by the District Judge on this point and we think that before we dispose of the question of law raised before us we must ask the Lower Appellate Court to return a finding as to whether the third defendant at the time of the gift to the plaintiff had possession of the property. The finding should be returned within one month after the re opening of the District Court, and seven days will be allowed for filing objections.
6. In compliance with the order contained in the above judgment, the District Judge of Coimbatore submitted the following
FINDING --Plaintiff, a minor, sued for plaint property on the strength of a gift (exhibit VIII), from third defendant, his grandmother.
2. First defendant was assignee of a mortgage from second defendant.
3. Third defendant derived her title from a sale-deed to her by second defendant dated about a month before his mortgage to first defendant's assignor.
4. The Munsif found the deed of gift was a fraud to cheat the mortgagee, Third defendant had no possession which she could give, and no intention of giving it. He dismissed the suit. Plaintiff appealed, but this Court held the gift was fraudulent, and he appealed in vain. Plaintiff went on second appeal. The Sigh Court called for certain findings and this Court found that the sale-deed by the second defendant to third defendant was real; that third defendant apparently got possession under the sale-deed but did not in fact hand it on to the donee at the time of the gift. Hence the gift was not valid
5. On this the High Court have called for a further tinding from this Court as to whether third defendant at the time of the gift to plaintiff had possession of plaint property since this Court had not in express terms found that point one way or the other; and all I can say is that apparently it accepted the evidence of the karnam that third defendant had possession.
6. It is not possible to make up one's mind on this question without considering the whole matter.--
7. Second defendant is son of third defendant. Plaintiff is Son of second defendant. The property belonged to the father of second defendant and husband of there defendant On his death, second defendant inherited two-eighths of his property, third defendant inherited one-eighth, and five-eighths went to five daughters.
8. The family then played about with these shares in the most puzzling way. Second defendant bought two shares from two of his sisters Then he sold to his wife in l884 tide exhibits IV and V. So his wife has two shares. One sister bought two shares from her mother and one sister, so has three-eighths.
9. Second defendant had his own two-eighths and is said to have bought the one-eighth of his remaining sister. So he had three-eighths. Now in July 1891 the son purports to have sold to his mother three-eighths of the property for Rs 500. This three-eighths was assessed at 28. It was good wet land and must have been worth nearly Rs. 2,000 instead of Rs. 500. Good wet land paid four times its revenue as rent, or three times the revenue as net income or 84 a year. This, at twenty years' purchase, gives Rs. 1,684, and this was I consider the value of the lands in 1891. Having sold his three eighths to his mother in July 1891, second defendant who, if that sale be genuine, possessed then no further interest in the property, actually mortgaged for Rs. 800 in August 1891, no less than six-eighths of the property to first defendant's assignor. It is contended for first defendant that though the sale to third defendant was a month prior to the mortgage, yet the mortgage began before the sale and Rs. 100 was actually advanced and that the sale was therefore a mere family nominal transaction to cheat the mortgagee.
7. Fifth defence witness, the monigar of Kadathur wrote the mortgage deed, exhibit II, and he swears that Rs. 100 was in fact paid one and a half months before the document was written; this then seems to be a fact and we thus find a motive for second defendant's nominal sale to his mother; seeing that we have a motive for a nominal sale and seeing also that the price Rs. 500 was wholly inadequate, I am of opinion that the sale was not real. One has Jo have a clear view of these undoubted facts in order to judge the meagre direct evidence.
8. It is clear that no shares of his property were ever divided off by mates and bounds. The mother and son, defendants Nos. 2 and 3, continued to live and ocoupy the property as they had done in the father' life-time, and I do not see-bow any grangers could possibly say which member of the family actually enjoyed what piece of land. Plaintiff's only witness is the karnarn who wrote the gift-deed. He swears that third defendant was in possession. He means apparently of the lands in the gift-deed. But as mother and son, defendants Nos. 3 and 2, cultivated and possessed jointly and as the son of a Mussalman mother must have done all the actual work, and as the mother had merely some sort of claim to one-eighth, three-eighths, I do not sea how the karnain can say the mother ever possessed actually the particular shares given by the gift-deed.
9. Second defendant says he gave his mother possession of her separated shares. Third defendant, however, says she never bought anything from second defendant and never paid him Rs. 500 at all. Second defendant gave her one kani of land, and she gave that away in turn to plaintiff who is second defendant's heir.
10. The lands were always kept intact and enjoyed together by her son and heir, This woman in another deposition on 15th August 1903, in Original Suit No. 1244 of 1902 supported both the sale and gift-deeds. So the only evidence we have of third defendant's possession is bar statement on 15th August 1903, which is now contradicted by her statament in this suit; the evidence of second defendant who of course supports the documents which the mortgagee says ware intended by second defendant merely to cheat him; and the karnam's evidence that third defendant had possession, and the monigars evidence that she paid revenue; this does not satisfy me that she ever had exclusive possession under the sale-deed. She and her son kept the property together as in the father's life-time. She probably did pay the revenue. The son probably cultivated. The produce they divided according to their shares. The karnam cannot be in a position to know whether the son's sale-deed took effect or not; and when I find the sale-dead is for almost a nominal value to the vendor's mother; and the transaction is followed by no apparent change of ownership, but is followed a month later by a mortgage begun before the sale deed of six-eighths of the property, three-eighths of which anyhow did not belong to the mortgagor, the only conclusion I can come to is that the whole transaction was nominal. Third defendant got no special possession under the sale-deed, but retained merely the joint possession wish her son that had obtained in her husband's life-time, and that having no special possession under the sale-deed she had none to give, and therefore I the gift was not valid.
11. This second appeal coming on for further hearing before Abdoe Rahim and Krishnaswami Ayyar, JJ., after the return of the finding of the Lower Appellate Court upon the further issue referred by the order of this Court, and the case having stood over for consideration the Court delivered the following:
Abdur Rahim, J.
12. In response to our order of the 6th of May, the District Judge has submitted his finding on the question remitted to him, namely, whether the third defendant in the suit at the time of the gift to the plaintiff had possession of the property. Objection is taken to the manner in which the learned Judge has dealt with the matter and we have also heard the question argued at the Bar whether the gift would be invalid under the Mubammadan Law even if the donor, the third defendant, was not in possession of the property at the time she made the gift.
13. We shall first of all dispose of the question of law, and the facts on which it arises appear to be these: One Fakir Nynar Rowther died about 1880, leaving as his heirs, his wife, the third defendant, the second defendant, his son, and three daughters. There appear to have been certain dealings among the different heirs in respect of their respective shares. But all that we need mention is that in 1884 the second defendant sold a certain share to his wife and in July 1891 he sold the property in question which consists of three-eighths share in certain land to his mother, the third defendant, and in August 1891 he mortgaged the very same property to one Kabundan Selathi Rowther, uncle of the second defendant's wife; the third defendant on the 30th July 1899 made a gift of the property to the plaintiff in the present suit, the third defendant's grandson, and son of the second defendant. The first defendant is the assignee of Kabuodan Selathi Rowthor and obtained a decree against defendants Nos. 2 and 3 in suit No. 863 of 1902 and obtained possession of the property in execution of the decree. This suit is instituted by the plaintiff who is a minor for recovery of the property by establishment of his title on the basis of the gift of 1899. It has been found on a previous remand by this Court that the sale by the second defendant to the third defendant was bond fide and valid and we accept that finding; and we also held that the gift being to a minor and the third defendant purporting to retain possession of the property as guardian of the minor, the requirements of Muhammadan law as to the necessity for delivering possession of property, the subject of the gift, to the donee would be satisfied if in fact the third defendant was in possession of the property. Now proceeding on the basis that the third defendant at the time of the gift was not in possession of the property, the position would be this: the subject-matter of the gift is a certain undivided share in immoveable property which the third defendant had bought from the second defendant, but of which she did not obtain possession from the second defendant. But in the deed of gift it is stated--and for the present purpose we will assume incorrectly--that she was in possession of the undivided share, the subject of the gift. It is now settled that under the Muhammadan law as applied in India, a gift of an undivided share in property capable of division is not invalid. See Mullick Abdool Guffoor v. Muleka I.L.R. (1884) Calc. 1112, Muhammai Mumtaz Ahmad v. Zubaida Jan I.L.R. (1889) All. 460 Mahomed Buksh Khan v. Hosseini Bibt I.L.R. (1898) Calc 684 and Ibrahim Goolam Ariff v. Saiboo I.L.R. (1908) Calc. 1.
14. As regards the necessity for delivery of seisin in order to make a gift valid and effective we think that the authorities on Hanafi law leave no room for doubt on the question. It is stated in Grady's ' Hedaya', p. 482, second column: Gifts are rendered 'valid by tender, acceptance and seisin. Tender and acceptanee 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 (meaning Hanafi doctors) is not established in the thing given merely by 'means of contract without seisin,' and their Lordships of the Privy Council have also laid down the general rule of law on the point to be as stated in this passage [see Mahomed Buksh Khan v. Hosseini Bibi I.L.R. (1898) Calc 684: The reason for the rule requiring delivery of seisin in order to complete the gift is that such a disposition of property being without consideration, the donor if he has failed to divest himself completely of every interest in the property he cannot be called upon to do any act in order to give effect to his intention. This is the juristic ground on which the condition as to delivery of position is based and is stated as the second argument of the Hanafi doctors, at page 482 of Hamilton's ' Hedaya' (Grady's edition)' Secondly gifts are voluntary deeds and if the ''right of property were established in them previous to the seisin it would follow that the delivery would be incumbent on the 'voluntary agent before he had voluntarily engaged for it,' and this is what is alluded to by the Privy Council in Mahomed Buksh Khan v. Hosseini Bibi I.L.R. (1884) Calc. 684 where they refer to a passage in their judgment in Kali has Mullick v. Kanhaya Lal Pundit I.L.R. (l885) Calc. 121. The other authority for the rule in question is a reported precept of the Prophet where he says 'a gift is not valid without seisin, see Grady's ' Hedaya,' p. 482. It is true that Imam Malik, the founder of one of the four Sunni schools holds on the analogy of n sale that a gift is effective without seisin, and although it may be a matter for argument whether on a question of this character it is not open to the Courts according to the theory of Sunni Jurisprudence, in a case where the parties are Hanafis, to adopt a rule of law laid down by jurists of one of the others of the four Sunni schools if that rule is more in consonance with substantial justice than the rule laid down by the Hanafi doctors themselves, the question is concluded by the authority of the Privy Council.
15. But it is however argued that the rule should not be applied in a case where the donor himself is not in possession of the property, because the result of that would be to unduly hamper free disposition of property. On this point also it seems to us that the view of the Hanafi authorities is clearly opposed to the appellant's contention. The law as laid down by them is that unless the subject-matter of the gift is in the possession of a trustee or agent of the donor whose custody is regarded in law as the custody of the donor, the owner of a property, if not in possession, cannot make a valid gift of it or rather a gift made by him will not pass the ownership of the property to the donee until the donee takes possession by the donor's consent For instance, if the thing is in the hands of a pledgee or a hirer or lessee or any other person whose possession is attributable to the existence of some right or interest of his own in the property, or in the hands of a ghasib, that is, a person who has obtained possession of the property without the consent of the owner, the owner in all such cases cannot make a valid gift. The possession of the second defendant in this case, if after sale he refused to give possession of the property sold by him to the third defendant but continued to enjoy it adversely to the third defendant, would be that of a ghasib or trespasser by implication of law. The present ease is therefore exactly covered by the rule enunciated by Mubammadan Jurists of the Hanafi school. We have however been referred to the well-known judgment of the Privy Council on the question of gifts of musha or an undivided share in the property which lay down the principle that the prohibition of gifis of undivided shares is inapplicable to modern conditions of societies and ought to be confined within the narrowest limits or rather be disregarded altogether, and we have been asked to extend that principle of interpretation to this case. The Privy Council oases referred to are those reported in Muhammad Mumtaz Ahmad v. Zubaida Jan I.L.R. (1889) All. 460 Mahomed Buksh Khan v. Hosseini Bibi I.L.R. (1888) Calc. 684 and Ibrahim Goolam Ariff v. Saiboo I.L R.,(l908) Calc. 1and it may be that in the eye of the modern law relating to dispositions of property the two oases stand on substantially the same footing. It is however to be observed that so far as the text already referred to is concerned, its requirement would be satisfied if such possession is given to the donee as the nature of the subject of the gift admits of. Wore we however to hold a gift of property to be valid without any seisin at all it would be a direct violation of the precept of the Prophet. The Hanafi doctors no doubt construed the nature of possession to be given as 'complete seisin' as they call it and this according to them would not be possible in respect of an undivided share of a property because the right of all co-sharers extends to each particle of the thing and there is hence a confusion or mixing up of rights although the law provides modes of enjoyment of an undivided share. The Judicial Committee of the Privy Council however held that this interpretation of the law was narrow and in fact unintelligible, Mahomed Buksh Khan v. Hosseini Bibi I.L.R. (1898) Calc 684; but if we were to hold that where an owner is not in possession the property being in the hands of a trespasser, ha could make a valid gift we should be making a further breach in the rule of Muhammadan law in a case in which the reason given by the Privy Council for not applying the doctrine of musha in the circumstances of modern life in India do not hold good to the same extent. And this we should not be justified in doing. In this case there is all the less reason for giving effect to such a contention if the fact be as it is found at present that the third defendant allowed about eight years to elapse from the date of the sale to her without attempting to take possession of the property and falsely stated in her deed of gift that she was in possession. In Khajooroonissa v. Rowshan Jehan I.L.R. (1877) Calc 181 Sir Robart Collier delivering the judgment of the Privy Council lays down that the forms of Muhammadan law relating to dispositions of property by gift should be complied with before such an alienation can be upheld by the Court [see also Chaudhri Mehdi Hasan v. Muhammad Hasan I.L.R. (1906) All. 439. And we cannot uphold the contention of the learned advocate for the appellant without violating this principle.
16. The next question is whether the finding of the learned District Judge should be accepted. We find it impossible to accept his finding. The only question he was asked to determine was whether at the time of the gift to the plaintiff the third defendant had possession of the property. We had accepted the finding on the previous remind that the sale was a valid transaction and it was not competent to the learned Judge to treat the validity of the sale as a matter still open for enquiry. The finding of the District Judge that the third defendant was not in possession is entirely the result, as his report shows, of his conclusion that the sale itself was a colourable and nominal transaction. Mr. Harding says that it was not possible for him to make up his mind on the question of possession without considering the whole metter. But we fail to understand why he should find it impossible or difficult to arrive at a decision on the question whether the third defendant was in possession on the date of the gift, proceeding on the hypothesis that the sale itself was bond fide and valid. We must therefore ask the learned District Judge to return a fresh finding on the question whether the third defendant at the time of the gift to the plaintiff had possession of the property in dispute. Six weeks for the finding and seven days for objections.
Krishnaswami Ayyar, J.
17. I concur.
18. In compliance with the order contained in the above judgment, the District Judge of Coimbatore submitted the following fresh finding on the issue referred to him:
19. Finding--In this case I am asked by the High Court to return a finding on the point whether the third defendant was in possession of the plaint properties at the time she is alleged to have gifted them to the plaintiff.
20. The plaintiff who is a minor happens to be her grandson. It is said she got these lands by right of purchase from the second defendant, her son and the father of plaintiff, The sale to her has been held to be genuine; but did she get possession of the lands covered by it I think she did not, for within a month of the sale (exhibit A) we find the son mortgaging these lands and others to his wife's maternal uncle for consideration, Rs. 700 of the mortgage amount being paid by the mortgagee before the Sub-Registrar. This document seems to me to be genuine, and the second defendant executed it, because he did not give possession of the plaint lands to the third defendant, his mother, nor had ha any intention of doing so Third defendant herself says that she never purchased and never got possession.
21. It is recited in the dead of gift (exhibit VIII) that the lands ware in her possession at the time, but the document was written for her and such recitals are not evidence of actual possession without independent testimony to confirm them In that deed of gift she constitutes herself guardian of the minor grandson and administratrix of the very lands she is giving him. She herself says in her evidence that second defendant and his wife were in possession of the lands at the time of her sale (of other lands) to Asanammal and are in possession still. The sale to Asanammal is on the same day as the deed of gift and refer to other lands. The District Munsif found that the sale to Asanammal and the deed of gift to the minor grandson were both executed with the intention of defrauding first defendant who had obtained an assignment of the mortgage to the maternal uncle. I agree with him.
22. The High Court in second appeal first called on Mr. Broadfoot for a finding as to (a) whether the sale to the grandmother was genuine and (b) whether the gift was valid. Mr. Broadfoot found that the sale, exhibit A, was genuine and that the gift was not valid. Mr. Hording was then asked to find if the grandmother was in possession of the lands at the time of the gift deed eight years after the son's sale to her. Ha found that the grandmother had no special possession under the Sale-dead, that the gift was not valid and that the sale itself was nominal. The High Court has asked me to accept the genuineness of the sale and find whether third defendant was in possession at the time of the gift.
23. As regards the possession the onus is on the plaintiff to prove it. Ha relies on the recital in the dead of gift and on the evidence of the karnam who attested it. The karnam says that the grandmother was in possession before the gift-deed and even after it for two or three years. It is not clear if he means that the grandmother was in possession of the properties she gifted; and ha does not say how ha knows that the third defendant was in such possession Ha produces no cultivation accounts or revenue collection account to prove it. Ha simply says orally that she was in possession, but cannot say for how many years it was and whether she was in exclusive possession of the plaint lands. The monigar whose duty it is to collect kist says that the grandmother paid Government tax for ten years twenty years ago; subsequently she and second defendant paid together. That is to say that she paid kist up till 1835 alone and than jointly with her son, second defendant. When second defendant was a minor, the grandmother paid all the kist and afterwards she pud kist jointly because she herself had a natural share in the property as widow of the last holder. The monigar also says that he heard that for ten years the grandmother does not live with her son, that is, after 1395 Kandasami first defendant, says that for the last four or five years the grandmother lives with her daughter (Asanammal) and not with her son.
24. That is all the evidence as to possession which can be gathered from the record. As already observed by me above, the mare recital in the gift-deed of possession is not proof of possession without other independent testimony to corroborate it. Every document, whether nominal or real, will contain such a recital-Plaintiff, on whom lay the burden of proving possession of the grandmother at the time of the gift-deed in 1899, has not proved the point. Besides I do not believe that the grandmother was given possession by the second defendant under the sale-deed. Exclusive possession of the plaint lands she had not; and the plaintiff has not established that she had even joint possession with her son at the time of the gift. I therefore find that there is no proof that the third defendant, the grandmother, was in possession of the lands at the time she gifted them to her minor grandson.
25. This second appeal coming on for final hearing after the return of the finding called for by the order of this Court, the Court delivered the following
26. Accepting the finding we dismiss the second appeal with costs.