Rajagopala Ayyangar, J.
1. This second appeal arises out of a suit filed by respondents 1 and 2 as plaintiffs for partition and possession of their share of the properties left by one Muhammad Ismail Rowther who died on 3rd January, 1948, at an advanced age. Nearly a year before his death on 1st February, 1947, Muhammad Ismail executed a deed of gift conveying his properties to his two sons who were defendants. in 'the suit. Besides these two sons Muhammad Ismail had two other daughters, Hamida Bi and Ayisha. The elder of these daughters Hamida Bi died on 28th September, 1948, leaving besides her husband a daughter. Hamida Bi's husband is the plaintiff in the suit while his minor daughter by Hamida Bibi is the 2nd plaintiff. The other daughter of Muhammad Ismail Ayisha Bibi has been impleaded as the 3rd defendant.
2. Substantially the case of the plaintiffs and the 3rd defendant, who naturally supported the plaintiffs by filing a statement accepting the plaint allegations, was. that the gift deed dated 1st February, 1947, marked as Exhibit B-1 in the case did not constitute an effective disposition of Muhammad Ismail's properties with the result that at his death the properties still continued to be his and devolved on the four children who survived him and that on the death of Hamida Bibi a few months after Muhammad Ismail, the plaintiff became entitled to her share as her heirs.
3. I shall have to refer in some detail to the grounds upon which the gift deed was attacked. But at this stage it is sufficient to mention that the main and substantial grounds upon which its validity was impugned were too. The first was that the deed was got up by the exercise of undue influence on the donor by the donees at a time when owing to the advanced age he was not able to take care of himself. The other ground urged was that the donor was seriously ill as a result of which, he was expecting to die with the consequence that the gift became affected by the rule of Marz-ul-Maut and that it could not have effect beyond a third. The learned Subordinate Judge as well as the learned District Judge on appeal have negatived both these grounds of attack and as the finding in relation to both is one of pure fact it is no longer open to challenge in the second appeal.
4. Having negatived these two grounds of the invalidity of the gift deed, however, the Courts below proceeded to afford relief to the plaintiff son the following basis.
5. The trial Court decreed the suit in its entirety for the reason that the contesting defendants--donees under the deed--had not positively established that possession of the gifted properties was delivered to them by the deceased after the execution of the deed and that this essential requirement of a valid donation under the Muslim Law had not been established. Defendants 1 and 2 filed an appeal to the learned District Judge, and while upholding the deed to the extent of the residential house which formed one of the items of donation, he confirmed the decree of the Subordinate Judge in regard to the rest of the properties which consisted of lands, etc. The reason for this distinction in regard to the items covered by the deed was that the father, the donor and his sons, the donees, were at the time of the donation jointly living in the house, and certain decisions had laid down that where the donor and the donee were closely related and were jointly residing in or in physical possession of the property gifted, the donor need not remove himself from the property in order to validly effect delivery of possession, to satisfy this requirement of Muslim Law. It is from this decision of the learned District Judge that the second appeal has been filed.
6. Defendants 1 and 2 who challenge the correctness of the decision of the Courts below that the requirements of Muslim Law as to the delivery of possession to perfect a gift had not been complied with, have filed the appeal in relation to the lands regarding which a decree for partition has been passed in favour of the plaintiffs. The plaintiffs have filed a memorandum of objections challenging the correctness of the distinction drawn between the situation in relation to the house and the rest of the gifted properties.
7. Mr. Raghavachariar learned Counsel for the appellants urged before me two grounds in support of the appeal. The first was that the Courts below were in error in Considering the question as to whether the requirement of the Muslim Law as to delivery of possession had been satisfied or not. This contention was based on there being no specific issue raised as regards this point. Before the learned Subordinate Judge who tried this suit the issues that had been raised for trial, which are relevant in the present context are those numbered 1 to 3.
1. Whether the settlement deed was brought about by undue influence and is not valid and binding ?
2. Is it void of being a death-bed gift ?
3. To what shares are the parties entitled ?
8. The point in relation to there not having been delivery of possession of gifted properties was discussed by the trial Judge as part of issue 2. Mr. Raghavachari urged that on the terms of the issues as framed the only points that could have been considered were those relating to the gift being invalid by reason of undue influence and Marz-ul-Maut and that when once these were negatived the learned Subordinate Judge was bound to have dismissed the suit. I, however, consider that having regard to the course of the trial and the manner in which the parties understood the case that they had to meet, learned Counsel is not right in the submission which I have set out just now.
9. To start with the pleadings did raise this ground of invalidity of the deed. In paragraph 7 of the plaint it was stated:
The deed recites that the settlor gave possession on the date of the deed to the settlees which however is not true.
10. The 1st defendant whose statement was adopted by the 2nd defendant stated in paragraph 5:
The said properties were also placed in possession of the defendants 1 and 2 and they have been in exclusive and undisputed possession of the same from the date of the settlement deed. The said deed was duly accepted by these defendants and acted upon.
The same allegation was repeated at the end of paragraph 6. On the basis of these pleadings there is no doubt that the proper course for the trial Judge was to have framed a specific issue relating to the delivery of possession by the donor after the execution of the deed. Learned Counsel for the appellants is also justified in drawing my attention to the facts that when the plaintiff's witnesses were examined and they examined three witnesses, the only point upon which their evidence was directed was in relation to issues 1 and 2 as framed, namely, undue influence and Marz-ul-Maut. When, however, the 1st defendant was examined, he gave evidence in chief-examination as regards the transfer of possession and he was cross-examined on these answers. When the matter was taken up for argument before the trial Judge, this point as regards delivery of possession is seen to have been stressed by learned Counsel for the plaintiffs apparently without any objection or complaint by the other side on the score of their being taken by surprise. Again when the learned Subordinate Judge found against the donees on this point and when they filed an appeal to the District Judge there was no complaint by them that they were taken by surprise by the absence of any formal issue framed at the trial. The contentions put forward by them in regard to this point were the same as had been urged at the trial, that is, on the merits of the plea. It was only when they filed a further appeal to this Court that any argument based upon the absence of formal issue and the prejudice suffered thereby was put forward. In the circumstances, I consider that this pled of surprise is an afterthought and that I should not accede to the submission of learned Counsel for the appellants that I should allow the appeal and reject the point raised by the plaintiffs as regards this requirement of Muslim law not having been satisfied by the gift on which the appellants based their title.
11. Learned Counsel for the appellants made two further alternative submissions : First, that there was a recital in the deed of gift Exhibit B-1 by the donor of having delivered possession of the properties gifted to the donees, that this was an admission binding upon those who claimed under the deceased. This admission he urged would no doubt not be conclusive proof of possession having been delivered but it raised a rebuttable presumption that the donor had accomplished what he stated he had, with the result that the burden of proof that the donor had not delivered possession would be on the plaintiffs and the 3rd defendant who would have to establish that, as a fact, possession had not been delivered and that it was not for the defendants to establish that the recital in the deed was true and represented the facts. The second was that even on the evidence on record the defendants had made out that there was delivery of possession effected by the donor simultaneously with or immediately after the execution of the deed of gift.
12. On the other hand, Mr. Jagadisa Ayyar, learned Counsel for the respondents argued (1) that as the Courts below had concurrently found that the delivery of possession had not been effected by the donor as required by the Muslim law I would not be justified in interfering with the finding in second appeal ; (2) that in the circumstances of this case and regard being had to the nature of the property, several items of which were in the possession of the tenants, the burden was properly cast upon the defendants to prove delivery of possession, (3) that the recital in the deed was only a piece of evidence and was not sufficient to shift the onus to those attacking the effectiveness of the deed and (4) lastly that in any event as both the parties were misled by the absence of a formal issue and by a correct understanding of the burden of proof in regard to delivery of possession I should send the case back for re-trial after framing the proper issue to be tried and that I should not act on the basis of the evidence on record which may not be sufficient to hold that possession had not been delivered if the onus was upon the plaintiffs to prove that fact.
13. In my judgment, learned Counsel for the appellants is justified in his complaint that the Courts below have wrongly thrown the onus of proving that this requirement as to delivery of possession had been complied with on the contesting defendants. It is no doubt true that delivery of possession of gifted properties is an essential condition of the validity of the gift and its operative nature under the Muslim law and it would be for the donees to establish it. But the Courts below have failed to appreciate the evidentiary value of the declaration by the donor which constitutes an admission as against him and those claiming under him. In Exhibit B-1 the donor said:
I have by means of this document settled on you the immovable properties.... which are described hereunder which belong to me absolutely and which are in my possession and enjoyment and left them in your possession. Both of you shall from this day onwards hold and enjoy in peace the gift properties with absolute right and with powers of alienation.... You shall if you so desire enjoy the settlement property jointly in 'common or enjoy the same by dividing by metes and bounds.
The effect of a recital of this type by a donor was the subject of consideration in an early decision of the Privy Council reported in Sheikh Muhammad Mumtaz Ahmed v. zubaida Jan
In the deed of gift she (the donor) declared (an admission by which Usman as her heir and all persons claiming through him were bound) that she had made the donee possessor of all the properties given by the deed ; that she had abandoned all connection with them ; and that the donee was to have complete control of every kind in respect thereof.
14. This is therefore authority for the position that a declaration by the donor of having parted with possession of the property was an admission and one which was binding upon those who claimed under him. This question was again before the Judicial Committee in Mohammad Sadiq Alikhan v. Fakhr Jahan Begam (1931) 62 M.L.J. 320 : L.R. 59 IndAp 1 : I.L.R. 6 Luck. 556 . The opinion of the Council was delivered by Sir George Lowndes who said in dealing with the conditions necessary to be satisfied before a gift by a Muslim could be upheld:
The second objection involves some consideration of the Mohamedan law. It is not disputed that a gift of immovable property must ordinarily be completed by a transfer of possession and there seems to be no difference on this point between Hanafi and Shia Law. The Chief Court thought it was clear that Kakhr Jahan had taken actual possession but it is pointed out that this was only after her husband's death. So long as Baquar Ali was alive she merely resided there with him and no change seems to have been made in the method of their joint occupation. But in the first place the deed contains the statement ; ' I deliver possession of the gifted property to my said wife ' and this as a declaration of fact must be regarded as binding on the heirs of the donor. (See Sheik Muhammad Mumtaz v. Zubaida Jan In their opinion the declaration made by the husband, followed by the handing over of the deed, are amply sufficient to establish a transfer of possession.
These two decisions were cited to the Courts below but they held that their effect was somewhat modified and that the law as laid down by them was dependent upon the special circumstances of each of those cases, relying on a decision of the Bombay High Court in Nurbai v. Abhram Muhmad : AIR1939Bom449 . I am unable to concur in this view. The learned Judges of the Bombay High Court distinguished the observations of the Privy Council which I have extracted earlier on the specific ground that in the case before them the person who challenged the deed was not claiming under the donor, but under an independent title. But this apart, there was also the further fact that on the facts proved in the Bombay case those who impugned the gift had been able to establish that possession was not in fact transferred. In my judgment there are no such circumstances in the present case. 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 plaintiffs and the 3rd defendant which however they might by cogent evidence disprove but that in the absence of independent proof by them the presumption raised by the admission ought to suffice to support the deed.
15. Both the Courts below have based their decision against the appellants not having discharged the burden of proof thrown upon them to establish the essential condition of law to sustain the validity of the gift. The concurrent finding of both the Courts below merely goes to this length, namely, that the appellants had not proved that the gift was operative. In considering the question in this manner the Courts have committed an error and I cannot therefore accept that finding as binding on me.
16. The next question I have to consider is whether it is proper in the circumstances of this case to act on the basis of the evidence on record or whether I should send the case back for retrial after the parties had an opportunity of adducing the evidence on the real issue that arises in this part of the case. The facts that over 8 years have elapsed since the suit was filed is certainly a factor which I have to consider in deciding this point. I have however reached the conclusion that notwithstanding this delay I should yield to the request made by learned Counsel for the respondents that the appeal should not be decided on the basis of the evidence already on record. In doing so I have taken into account the facts that owing to the absence of a specific issue on this point the attention of both the parties was not focused upon the requirement as to delivery of possession. The plaintiffs and those impugning the deed had, under the law as laid down, to prove that the deed was inoperative because there had been no delivery of possession and I have already adverted to the fact that none of the witnesses on the plaintiff's side said anything about this point. It is for this reason primarily that I have considered it unfair that an inference should' be drawn against the plaintiffs because they possibly misled themselves as to the law on the point. But now that this has been cleared, it is proper that they should be given an opportunity to prove what they have to prove if they have to succeed in this litigation.
17. The choice for me is as between remanding the entire proceedings under Order 41, Rule 23, for a re-trial or calling for a finding on fresh evidence under Order 41, Rule 25, Civil Procedure Code. I have, after full consideration of the propriety of each of these courses, come to the conclusion that I should call for a finding on fresh evidence under Order 41, Rule 25, Civil Procedure Code and in doing so I have taken into account mainly the long delay that has elapsed since the institution of these proceedings.
18. I have upto now considered the only question which has been debated in the Courts below whether the gift was invalid by reason of the donor not having delivered possession of the gifted properties during his lifetime. Learned Counsel for the respondents drew my attention to another point which had been raised in the plaint and which was contradicted by the defendant but had not figured in the issues framed, nor even in the discussion in the judgments of the Courts below. This was in relation to a plea that the gift was bad because of Musha. In paragraph 7 of the plaint it was stated: 'The deed is of undivided shares which is invalid in law'. This was answered by the defendants in paragraph 6 where they stated:
All the properties dealt with in the settlement deed are specific divided portions of properties and were in the enjoyment of the settlor till the date of the settlement and they were as per enjoyment delivered over to defendants 1 and 2.
I have already set out the issues and it would be seen that this objection to the gift on the ground of Musha did not figure in them ; nor was it the subject of discussion in either of the Courts below. This objection is based upon the description of some of the items, conveyed under Exhibit B-1 as if they were undivided shares belonging to the donor. There is nothing in the evidence of the plaintiffs' witnesses pointing to their reliance on this feature of the gift deed. Nor was there anything suggested during the cross-examination of the defence witnesses indicating such reliance. I have already pointed out that during the course of the argument in the two Courts this was not put forward as an objection to the deed. In these circumstances I am inclined to hold that this objection even if indicated in the pleadings was really not thought to have been put forward seriously and was in any event abandoned during the proceedings anterior to the hearing before me. I am not therefore inclined to include this as a point on which any further evidence should be permitted to be led.
19. Before concluding I must refer to the memorandum of cross-objections filed by the plaintiffs in relation to the residential house which formed one of the items of properties gifted under Exhibit B-1. Though the trial Court upheld the plaintiffs' case as regards this item also, the learned District Judge on appeal took into account the relationship between the donor and the donees as well as the fact that they were jointly residing in the premises and basing himself on the authorities including decisions of the Privy Council, held that there was no necessity for the donor to remove himself from the premises in order that the gift might be operative. Learned Counsel for the plaintiffs-respondents could not persuade me that this portion of the judgment was wrong or that the proposition of law on which it was rested was erroneous. The decree dismissing the plaintiff's claim in relation to the house was therefore proper and the memorandum of cross-objections is dismissed with costs of defendants 1 and 2. The further proceedings in this appeal will therefore be confined to the dispute in relation to the other items of property covered by Exhibit B-1.
20. As I have already indicated it will not be possible to decide this appeal properly in relation to the items other than the residential house covered by the memorandum of cross-objections without a finding on the question as to whether the plaintiffs and those impugning the deed of gift Exhibit B-1 had proved that there had been no delivery of possession to satisfy the requirement of Muhammadan law. The learned Subordinate Judge will submit a finding on the point just now indicated after recording such further evidence as the parties might adduce in proof of their respective cases. The finding will be submitted to this Court within three months of the receipt of the records by the Trial Court. Time for objections 10 days. The second appeal will be posted for final disposal after the receipt of the finding.