1. The only question in this. second appeal is whether there was a valid gift of the A schedule property in favour of the first defendant-appellant. The gift was by her mother, the first plaintiff by a deed dated 7-9-1949. The first plaintiff had three daughters, the first defendant, one Fathima and another Sharfunnissa Begum. She by that document purported to make a gift of several schedules of properties to each of the donees of whom the first defendant was one subject to a provision that each of the donees will have to secure maintenance to the donor in a certain form. The recital in the document was to the effect that the donor was in possession and that she put the donee, in this case, the first defendant, in possession of the A schedule property. Apparently due to misunderstanding the first plaintiff purported to cancel the gift, in so far as it related to the first defendant, on 23.6.1958, and later gave away the A schedule property for charities under another document dated 25-6-1958. Having done that, the first plaintiff came to court for a declaration of title and permanent injunction restraining the first defendant from interference. Both the courts below were agreed in decreeing the suit on the ground that the gift was not completed by delivery of possession.
2. It is argued, rather strenuously, by Mr. Sharfuddin, for the first defendant-appellant, that the finding, though concurrent it is, of the courts below, as to delivery of possession is not binding on this court and is vitiated on account of the fact that they misdirected themselves on the correct principles of Mohammedan law relating to gifts. The contention is that the recital that the first defendant was put in possession of the A schedule property was an admission on the part of the first plaintiff, and that it was binding on her and every one claiming under her. The contention so urged is unexceptionable if other circumstances did not intervene.
The law is not that in order for a Muslim to make a valid gift there should in every case be a physical delivery. All that the law requires is that the donor should put the donee in such possession as the former was in a position to do. That has been pointed out by this court in Kairum Bi v. Mariam Bi, : AIR1960Mad447 . Where a donor makes a statement in the gift deed that he or she was in possession and put the donee in possession, that, of course, is an admission of the donor of the fact of delivery of possession to the donee. The effect of this is only that the person who contends to the contrary, namely, that no possession was delivered should establish the contention. The admission is not irrebuttable or conclusive on the question of delivery of possession. I do not agree with the learned counsel for the appellant that Mohamed Yusuf Rowther v. Mohamed Yusuf Rowther, 70 Mad LW 995 : AIR 1958 Mad 527 laid down to the contrary. Learned counsel relied upon this decision as if it laid down that the admission is conclusive and would not admit of further enquiry by the court as to the factum of delivery pursuant to the gift. But Rajagopala Aiyangar J. himself observed in that decision:
'The proper rule to apply here as regards the burden of proof would be to hold that the declaration by the donor of his having parted with possession was an admission binding upon the parties which however they might by cogent evidence disprove but in the absence of independent proof by them the presumption raised by the admission ought to suffice to support the deed'.
The recital in the gift deed as to delivery of possession will as an admission operate as conclusive only in the absence of other proof to the contrary.
3. In this case the lower appellate court has referred to a number of circumstances which led it to the factual conclusion that no delivery was given to the first defendant. The first of such circumstances is that there was no mutation of names or change of patta for the A schedule to the first defendant. Learned counsel for the appellant presses that under Mohamedan Law for a gift to be valid mutation of names is not in every case a requisite. In support of this proposition reference is made to the Principles of Mohammedan Law, 15th Edn. page 132. That may be so. It does not, however, help the appellant to succeed for there are other more important circumstances relied upon by the lower appellate court. One of them is the first defendant's father, Subhan, who apparently was managing the properties on behalf of his wife, the donor, leased out of the very A schedule property to the second defendant. Another circumstance is that the first defendant did not follow up the gift by remittance of the maintenance provided for in the deed. I consider, therefore, that the finding of the lower appellate court that the donor did not deliver possession of the A schedule property to the first defendant is founded on evidence. A factual finding like that supported by evidence cannot be interfered with in second appeal, especially when there is no misdirection by the lower appellate court on the correct principles of law applicable.
4. The second appeal is dismissed; but having regard to the relationship between the parties, I do not order costs. No leave.