N.C. Mukherji, J.
1. This is an appeal against the judgment and decree passed by the 5th Extra Court of the Additional District Judge, Alipore in Title Appeal No. 1137 of 1959 reversing the judgment and decree dated 21st August 1959 passed by the Subordinate Judge of 7th Court, Alipore in Title Suit No. 38 of 1956.
2. The respondents Nos. 1 and 2 filed a suit alleging that Sekander Ostagar, predecessor of the plaintiffs and the defendants Nos. 1 and 2 and Abdul Ostagar, predecessor of the defendants Nos. 3 to 14 were relations. By a registered patta dated 26-11-1909 they took a lease of the disputed property at a rental of Rs. 22/- and had eight annas share each in the property, Abdul Ostagar died first leaving the defendant No. 3 and one Amena Bibi, predecessors of the defendants Nos. 4 to 14 as his daughters. Those heirs began to possess the property in ejmali with Sekandar Ostagar. Then the latter died leaving the defendants Nos. 1 and 2 as sons by his first wife, the plaintiff No. 3 as his daughter, the plaintiff No. 1 as his third wife and the plaintiff No. 2 as his son by the latter. After Sekandar's death Amena Bibi died leaving the defendant no. 16's wife Sayera Bibi, the defendants Nos. 4, 11, 12, 13, 14 and one Golam Kader as his heirs. Subsequently Golam Kader died leaving the defendants Nos. 5 to 10 as his heirs. The plaintiffs requested the defendants to effect an amicable partition. But the defendants Nos. 1 and 2 claimed that they are the 16 annas owners of the property and the C. S. Khatian was prepared accordingly. In fact, Sekandar Ostagar managed the property after Abdul Ostagar died. Later the defendants Nos. 1 and 2 used to manage the property on behalf of their co-sharers. Hence such erronequs entry was made in the C. S. Khatian. The defendants Nos. 1 and 2 gave out that Sekandar Ostagar had gifted the property to them and they alone owned the property to the exclusion of others. The plaintiffs, however, assert that Sekandar Ostagar did not make any gift and the alleged gift was never acted upon. Even if such a deed was executed by Sekandar Ostagar it was obtained from the latter by practising fraud, mis-represen-tation and undue influence. As such the defendants Nos. 1 and 2 acquired no interest on the basis of the alleged gift. The defendants Nos. 1 and 2 denied the plaintiffs' allegations. It has been alleged that Abdul Ostagar had no interest in the property. Abdul Ostagar was at best a tenant who hadno paramount interest. The property belonged to Sekandar Ostagar alone and he gifted the property to the defendants Nos. 1 and 2 by a registered deed dated 29th Kartick 1328 B. S. and since then they are in possession of the property. They permitted the plaintiffs Nos. 1 to 3 to live on the property but that licence was revoked by the registered letter dated 12-6-1956. The C. S. Khatian was correctly prepared in their favour.
3. The learned Subordinate Judge disbelieved the case of the plaintiff and held that Sekandar Ostagar, in fact, executed a deed of gift in favour of the defendants Nos. 1 and 2 and the said deed of gift was acted upon. In that view of his finding the learned Subordinate Judge dismissed the suit Being aggrieved the plaintiffs preferred an appeal. The learned appellate court below was of the opinion that it is true that a deed of gift appears to have been executed by Sekandar Ostagar, but Sekandar Ostagar never parted with the possession of the property and that being so, there was no valid gift and the deed of gift was not acted upon. Such being the finding, the learned appellate court below reversed the judgment and decree passed by the learned Subordinate Judge and decreed the suit. Being aggrieved, the defendants Nos. 1 and 2 have come up before this Court.
4. Mr. Ranjit Kumar Banerjee, learned Advocate appearing on behalf of the appellants, in the first place submits that the plaintiffs being the heirs of Sekandar Ostagar cannot challenge the deed of gift which has been admittedly executed by Sekandar Osta-gar on the ground that possession has not been delivered to the defendants Nos. 1 and 2, the donees. The heirs of the donors are bound by the averments made in the deed of gift. The plaintiffs made out a case in the plaint that the deed of gift was obtained by practising fraud and mis-representation but that case was abandoned by the plaintiffs. Mr. Banerjee next submits that the learned court below failed to see that in this particular case the gift was made by the father to his two sons, qne of whom was minor. Admittedly, the father and the sons were living in the same homestead and in such circumstances it cannot be said that after executing the deed in favour of the sons the father is required to vacate the dwelling house. Moreover, Mr. Banerjee submits on perusal of the deed it will be clear that Sekandar Ostagar very much intended to make a gift of the property in favour of his sons, defendants Nos. 1 and 2, and the recitals are very dear to show that. In fact,Sekandar Ostagar has in an unambiguous expression stated that he has been divested of all right, title and interest of the properties and from the date of the execution of the deed all right, title and interest devolved on the donees. He has further stated that the donees and their heirs and successors will enjoy the property as full owners. In such circumstances Mr. Banerjee submits that simply because Sekandar Ostagar or the plaintiffs were residing in the same dwelling house after the execution of the deed of gift, it cannot be said that the deed of gift is invalid because there was no delivery of possession. In support of his contention Mr. Banerjee draws our attention to the provisions of the Mohamedan Law and refers to us Tyabji's Mohamedan Law, 4th Edition and Hedya Book 30 Vol. 3 Chapter 2 Mr. Banerjee also cites before us several authorities to support his contention. He first refers to a decision reported in 59 Ind App 1 = (AIR 1932 PC 13) (Mohammad Sadiq Ali Khan v. Fakhr Jahan Begam). In this case a Mohamedan executed in favour of his wife a deed of gift of immovable property which declared that he delivered possession over it to her as absolute owner. The deed was handed to and retained by her, but there was no mutation of names. She did not take actual possession until after her husband's death but during his life she frequently resided with him on the premises. It was held that 'Having regard to the declaration in the deed and its handing over to the donee, the gift was valid. In the case of an intended gift by a husband to his wife, Mohamedan law does not require an actual vacation by the husband and an actual taking of separate possession by the wife.' Their Lordships further observed that 'in the facts of the case it was unnecessary to decide whether, as held by High Courts in India, that principles applied universally between a Mohamedan donor and donee in joint occupation of immovable property.' Mr. Banerjee submits that the High Courts in India in several cases have held that this principle applies between a Mohamedan donor and donee in joint occupation of immovable property specially when the donor and the donee are near relations.
5. Mr. Banerjee next relies on a case reported in (1885) ILR 9 Bom 146 (Shaik Ibhram v. Shaik Suleman). In this case it has been observed 'For the purposes of completing a gift of immovable properly by delivery and possession, no formal entry or actual physical departure is necessary: it is sufficient if the donor and donee are present on the premises, and an intention on the part of the donor to transfer has been unequivocallymanifested'. In this case it may be mentioned that the donor and the donee were not related to each other. The donor made a gift stating 'as my wife is dead, and as I have no issue, Ibhram has done and will do service for me as son, and I, therefore, give the property to him.' Mr. Banerjee with much emphasis states that the real point to see in such case is the intention on the part of the donor and that intention can be gathered from the recitals made in the deed, Ext. B.
6. Mr. Banerjee next refers to a case reported in AIR 1958 Mad 527 (S. V. S. Muhammad Yusuf Rowther v. Muhammad Yusuf Rowther) to substantiate his point that the recitals in the deed are binding on the heirs of the donor. It has been laid down '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 where in the deed of gift executed by the deceased, there is a recital that the possession of the property which is the subject-matter of the gift is delivered to the donees, it is an admission binding on the deceased and those claiming under him. Consequently the burden lies on those who claim under the deceased to prove that no delivery of possession was in fact effected in favour of the donees. Burden in such a case is not on the dqnees to prove the delivery of possession to them'. Mr. Banerjee contends that in the present case the onus was wrongly placed by the appellate court below on the donees to establish that the delivery of possession was actually effected. The plaintiffs being the heirs of the donor, they are bound by the recitals and the burden that no delivery of possession was made lies On them. Mr, Banerjee also refers to a decision reported in (1888) 16 Ind App 205 (PC) (Sheikh Muhummad Mumtaz Ahmad v. Zubaida Jan). At page 216 of the said report it has been laid down that if possession was once taken and the deed of gift took effect no subsequent change of possession would invalidate it. Mr. Banerjee submits that in this case there is ample evidence to show that the appellants were in possession of the property, their names were recorded in the C. S. record and that being so, any subsequent change with regard to possession cannot invalidate the deed of gift.
7. The next case referred to by Mr. Banerjee has been reported in : AIR1974Pat54 (Ismail v. Idrish). In this case it was held that 'Where a deed of gift of certain lands contains a clear recital that the donor, hasdivested all his interest in the gifted lands and put the donees in possession treating them as full owner, the gift is valid and binding on the donor's heirs and the fact that subsequently one of the heirs of the donor who is disputing the validity of the gift is found in possession of the gifted lands cannot detract from the completeness of the gift.' This is a Bench decision and their Lordships in order to come to the above conclusion relied on the case reported in : 4SCR549 (Kathessa Umma v. Naravanath Kunhamu (deceased) and after him his legal representatives and others). In the Supreme Court case a Hanif made a gift of properties including immovable property by a registered deed to his minor wife who had attained puberty and discretion, and the gift was accepted on her behalf by her mother in whose house the husband and wife were residing, when the minor's father and father's father were not alive and there was no executor of the one or the other. It was held that such a gift must be accepted as valid and complete although the deed was handed over to the minor's mother and possession of the property was not given to a guardian specially appointed for the purpose by the Civil Court. In this case there was no question that there was a complete intention to divest ownership on the part of the husband, the donor, and to transfer the property to the donee. Mr. Banerjee asserts that in the present case the recitals of the deed and the facts and circumstances clearly show that there was definite intention on the part of the donor to transfer the property in favour of the donees.
8. The next case cited by Mr. Banerjee has been reported in (1905) ILR 29 Bom 468 (Bibi Khaver Sultan v. Bibi Rukhia Sultan). In this case it has been held 'As to the delivery of the house, the principle is to be borne in mind, that when a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession. He occupies certain part, and this occupation becoming actual possession by the will of the parties, extends to the whole which is immediate connection with such part where the possession is rightfully taken. An appropriate intention where two are present on the same premises may put the one out as well as the other into possession without any actual physical departure or formal entry and effect is to be given, as far as possible, to the purpose of an owner whose intention to transfer has been unequivocally manifested'. Mr. Banerjee also cites before us a case reported in (1946) 50 Cal WN 81 (Sk. Golam Gous v. Sk. Raujan). It has been held that'under the Muhammadan law where a property the subject-matter of a gift is in actual possession of the donor and the donee, who are related and the donor declares in unequivocal language that he has divested himself of ownership and authorises the donee to take possession, the character of the donee's possessiqn which already existed is altered and for all formal purposes the gift must be considered to have been perfected by such delivery of possession as is feasible in the circumstances'.
9. Mr. Manindra Nath Ghosh, learned Advocate appearing on behalf of the respondents draws our attention to the deed of gift Ext B. He refers to the recitals in the deed and contends that from the recitals it cannot be said that the donor delivered possession to the donees. The relevant portion of the recitals is quqted below:--
'From this day all my right, title and interest will devolve on you .... you and your successors enjoy the property happily.'
From the recitals at best it can be gathered that the donor gave out that he was divested of right, title and interest of the property and the same devolved on the donees. But from the recitals it cannot be concluded that the possession was also intended to be delivered or in fact delivered to the donees. Mr. Ghosh submits that in order to make a deed of gift valid under the Mohamedan law it is absolutely necessary that the possession should be delivered. Mr. Ghosh refers to several Articles in Tyabji's Mohamedan Law, 4th Edition to support his contention. In this connection Mr. Ghosh submits that the donor must in clear terms state 'I give delivery of possession'. Mr. Ghosh refers to a decision reported in AIR 1935 Bom 34 (Sugrabai v. Mohamedalli Ahmedalli). It has been held in this case that in order to constitute a valid gift by a father in favour of his minor children, it is not necessary to transfer possession, but proof of bona fide intention to give must be established. But where the trust is not merely for the benefit of the minor children of the settlor, but also of others and where the settlor has not constituted himself the sole trustee, but there are other persons appointed trustees, the transfer of possession is necessary under the Mohamedan Law'. Mr. Ghosh submits that in the present case it is true that one of the donees was minor son but the other donee was major, and the major son was described as guardian of the minor son in the deed of gift. This being the position, it was absolutely necessary to transfer possession. But in the present case it must be remembered that both the donorand the donees were residing in the same house which was the subject matter of the deed of gift and that being so, on the authority referred to above it cannot be said that it was necessary for the father after executing the deed to vacate the said dwelling house.
10. Mr. Ghosh next submits that whether possession was delivered or not or what happened after the execution of the deed with regard to possession of the gifted property is a question of fact which has been decided by the final court of facts, and that being so, according to the provisions of Section 100 of the Code of Civil Procedure there is no jurisdiction to entertain the second appeal On the ground of erroneous finding of fact In support of his contention Mr. Ghosh refers to a decision reported in AIR 1959 SC 57 (Deity Pattabhifamaswamy v. S. Hanumayya). We are of the opinion that in the facts of the case whether it was necessary to part with possession on the part of the donor is a question of law and on that point there has been difference of opinion between the courts below. In such circumstances we hold that this point can very much be agitated in the second appeal.
11. With regard to possession the C. S. record of rights is in favour of the appellants. There are also rent receipts and Municipal tax receipts in the name of the appellants. The case of the appellants is that they allowed the plaintiffs Nos. 1 to 3 to occupy the disputed land. The plaintiff No. 3 examined herself as P. W. 1 and she stated in examination-in-chief that her mother plaintiff No. 1 and brother Abu Bakkar, plaintiff No. 3, are too poor and they were permitted by her brothers, defendants Nos. 1 and 2 to live on the disputed land. The plaintiff No. 2 states in cross-examination that he asked his brothers Jabbar and Sattar (defendants Nos. 1 and 2} and they pointed out where his hut would be erected and that thereafter he erected the hut at the place pointed out by the former. These statements very clearly show that the plaintiffs Nos. 1 to 3 were permitted by the defendants Nos. 1 and 2 to live-on the disputed land as licensee. Considering the facts and circumstances of the case and evidence on record we are of the opinion that the learned lower appellate court was wrong in reversing the judgment of the trial court.
12. In the result the appeal is allowed. The Judgment and decree passed by the learned appellate court below are set aside and those of the learned SubordinateJudge are restored. There will be no order as to costs in this appeal.
B.C. Ray, J.
13. I agree.