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Sulfalla Sahib Vs. VajihuddIn Sahib and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported inAIR1915Mad1056; 31Ind.Cas.281
AppellantSulfalla Sahib
RespondentVajihuddIn Sahib and ors.
Cases Referred and Chaudhri Mehdi Hasan v. Muhammad Hasan
Excerpt:
muhammadan law - gift--possession--mutation, effect of. - .....that the rents of house no. 3 were received by the plaintiff even after the date of the gift-deed for his own benefit;(b) that neither the gift-deed (exhibit a) nor any of the title-deeds (exhibits b and c series), was given to the 1st defendant; and(c) that the plaintiff continued to live in the house no.2/2 with all the obedient members of his family (including, ho doubt, the 1st defendant so long as he was obedient).3. these facts seem to us to indicate that the plaintiff continued to exercise rights of ownership over the properties for his own benefit, and he cannot be treated as having divested himself of his possession of the properties in any degree. he could, of course, by making himself a trustee or agent of the donee, or as his guardian (if the donee was a minor), or.....
Judgment:

1. We are unable to accept the finding of the learned City Civil Judge that possession was given by the plaintiff to his donee (1st defendant) of the properties mentioned in Exhibit A.

2. The admission in the deed A and the admission or conduct in connection with the Collector's certificate proceedings are, no doubt, strong items of evidence against the plaintiff's contention that no possession passed, but on the other hand there are the following facts (proved by clear and tin-contradicted evidence)

(a) that the rents of house No. 3 were received by the plaintiff even after the date of the gift-deed for his own benefit;

(b) that neither the gift-deed (Exhibit A) nor any of the title-deeds (Exhibits B and C series), was given to the 1st defendant; and

(c) that the plaintiff continued to live in the house No.2/2 with all the obedient members of his family (including, ho doubt, the 1st defendant so long as he was obedient).

3. These facts seem to us to indicate that the plaintiff continued to exercise rights of ownership over the properties for his own benefit, and he cannot be treated as having divested himself of his possession of the properties in any degree. He could, of course, by making himself a trustee or agent of the donee, or as his guardian (if the donee was a minor), or expressing an intention to treat his own possession as the donee's possession, unequivocally transfer legally effectual possession to the donee while himself remaining in actual possession, but there is no evidence of any such intention on plaintiff's part to treat his own possession as possession on behalf of 1st defendant, the defendants having let in no evidence whatever to contradict the evidence on the plaintiff's side.

4. The gift under Exhibit A being thus invalid under Muhammadan Law for want of delivery of possession see Vahazullah Sahib v. Boyapati Nagayya 17 M.L.J. 562, and Chaudhri Mehdi Hasan v. Muhammad Hasan 20 C.W.N. 706 : 3 A.L.J. 405 : 4 C.L.J. 295, we reverse the judgment of the lower Court and give the plaintiff a decree declaring his title as prayed for in the plaint. The parties will bear their respective costs in both Courts, as it was the plaintiff's own fault in executing the deed, Exhibit A, which led to the 1st defendant's creditor's attempts to proceed against the properties covered by the deed.


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