1. The present First Appeal has been filed by the Appellant – Original Defendant No.2 being aggrieved with the impugned judgment and order passed by the City Civil and Sessions Court, Ahmedabad in Civil Suit No. 3782 of 1987 dated 10.8.1998 on the grounds stated in the memo of Appeal inter alia that the Trial Court has erred in appreciating that the father of the second Defendant had taken all the necessary steps for mutation of the name in the property register as well as in the Municipal records and it should have been taken as sufficient proof of handing over the possession. It is also contended that the Trial Court has erred in not appreciating that the possession of land in respect of the gift is under the Mohmmedan Law. It is therefore contended that the Appeal may be allowed.
2. Heard learned Advocate Shri Hemang Raval for the Appellant and Shri S.K.Bukhari for the Respondents.
3. Learned Advocate Shri Hemang Raval submitted that the Court below has failed to appreciate that the father had made the gift in favour of the Appellant in the year 1980 and he was also put in the possession. However, the Court below has failed to appreciate and has observed that the possession was not handed over to the Appellant – Original Defendant No.2. Learned Advocate Shri Raval submitted that under the Mohmmedan Law, necessary principles / ingredients of the gift are:
(i) Declaration of gift by a donor,
(ii) An acceptance of gift, expressed or implied, by or on behalf of the donee; and
(iii) Delivery of the possession of the property of gift by the donor to the donee.
4. Learned Advocate Shri Raval referred to the impugned judgment and submitted that after referring to these principles, the Court below has failed to appreciate the material and evidence on record. He submitted that the father had made a gift, and thereafter, by abundant caution he has also executed a writing, which cannot be said that the writing is not a gift. For that purpose he referred to the declaration at Exh.46. Learned Advocate Shri Raval submitted that the Court below has failed to appreciate the evidence and has erroneously come to the conclusion that the declaration at Exh.46 is not a declaration with regard to the oral gift and has erroneously come to the conclusion that the recitals or the manner in which it is written, it cannot be said as a declaration of gift. Learned Advocate has also referred to the impugned judgment and order and submitted that the Court below has failed to appreciate and proceeded on the wrong footing that the father was maintaining the house and also the expenses for the flour mill and thereby he has not divested himself nor he has handed over the possession. Learned Advocate Shri Raval submitted that the Court below has failed to appreciate that Mohmmedan Law Rule 178 of Chapter-xv, Law of Gifts (Hiba) provides for exceptions, which is also quoted in the impugned judgment, to which he pointedly referred. He submitted that the actual delivery of the possession of the property is required except in those exceptional cases, which include, where the donor and donee are residing together in the same house it is a subject matter of gift. Therefore, learned Advocate Shri Raval submitted that admittedly the Appellant – Original Defendant No.2 and the deceased father were residing together in the same house, which is a subject of gift, and therefore, there is no question of actual physical handing over the possession. He submitted that therefore the writing exh.46 was executed with a clear recital that the donor hands over the complete possession to the Appellant – Original Defendant No.2, which has not been appreciated.
5. In support of his submission, learned Advocate Shri Raval has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Abdul Rahim v. Sk. Abdul Zabar, 2009 (6) SCC 160. He pointedly referred to the observations:
“The donor may lawfully make a gift of a property in the possession of a lessee or a mortgage. For effecting a valid gift, the delivery of constructive possession of the property to the donee would serve the purpose. Even a gift of a property in possession of trespasser is permissble in law provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession.”
6. Learned Advocate Shri Raval therefore submitted that therefore constructive possession was given, which was sufficient, for which the declaration Exh.46 was executed. Learned Advocate Shri Raval has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Illahi Shamsuddin Nadaf v. Sou. Jaitunbi Makbul Nadaf, 1994 (5) SCC 476. Learned Advocate Shri Raval has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Hafeeza Bibi And Others v. Shaikh Farid (Dead) By Lrs. And Others, 2011 (5) SCC 654 and submitted that in that case it has been observed that the recording of transaction of gift on a plain piece of paper does not render gift invalid. He pointedly referred to the observations and submitted that the gift or Hiba of immovable property or essential ingredients are considered and reiterated. He pointedly emphasized the observations: “The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan Law are (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee; and (3) delivery of possession. Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials makes the gift complete and irrevocable. However, the donor may record the transaction of gift in writing.”
7. Learned Advocate Shri Raval has therefore submitted that the Trial Court has failed to appreciate these aspects that the donor had handed over the properties covered by the gift deed, and as both the father and the son are residing together in the same premises, it would fall in exceptions of Hiba where the constructive delivery of possession would be sufficient.
8. Learned Advocate Shri Raval has also referred to the paper book and submitted that the extract of the property card, the entries are made, to which he pointedly referred. Similarly, he submitted that in the Municipal records also, it has been registered as such. Learned Advocate Shri Raval has pointedly referred to these papers and submitted that the Court below has not even discussed or touched these documents, which were placed on record to suggest about the fact that the gift has been given effect by appropriate transfer in the record in the Government offices or the Municipal Corporation. Learned Advocate Shri Raval has also referred to Exh.46, which is a writing / declaration for the gift and emphasized that it has been specifically handed over in presence of witnesses, and this aspect cannot be over looked. He submitted that it is also clarified that though it is not necessary, this declaration has been made as a caution to avoid any confusion in future. Learned Advocate Shri Raval has referred to the deposition of the witnesses. Therefore, learned Advocate Shri Raval submitted that the possession is transferred and the Court below has failed to appreciate this aspect in observing that the possession is not transferred. He submitted that the possession or transfer has been also established by documentary evidence in the form of entries in the property card or the Municipal records, which has not been considered at all. Again, learned Advocate Shri Raval submitted that as per Rule 178 of the Mohammedan Law, Chapter – xv, when they are residing together, there is no question of actual physical possession, which the law of Hiba also provides as an exception. He therefore submitted that the impugned judgment and order may be quashed and set aside as it is contrary to the provisions of law and material and evidence on record.
9. Learned Advocate Shri S.K.Bukhari for the Respondents has referred to the papers including the evidence and the impugned judgment that as could be seen from the evidence, it is admitted that the deceased father (donor) was running the flour mill till he died and he was in occupation and possession. Further, it is stated that he was managing the affairs. Meaning thereby, he had not divested himself of the possession or interest in the property. He therefore submitted that the gift cannot be said to be valid as the donor has not divested himself of the possession or the interest in the property. Learned Advocate Shri Bukhari submitted that necessary ingredients of gift are not fulfilled. He further emphasized that the possession of the property was also not handed over. Learned Advocate Shri Bukhari has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Mahboob Sahab v. Syed Ismail and others, 1995 (3) SCC 693.
10. In view of the rival submissions, it is required to be considered whether the present Appeal can be entertained or not.
11. The first point for determination is whether the declaration at Exh.46 can be said to be a gift or not. Second, whether the necessary ingredients for the gift are said to have been established making the gift valid or not. Further, if the donor and donee, i.e. the deceased father and the Appellant son were staying together in the same premises, what would be the position as per law of Hiba under Rule 178 of the Mohammedan Law. From the appreciation of material and evidence on record, it is not in dispute that the declaration has been made after the oral gift was made by the father, which he had reduced in writing in the form of declaration of gift at Exh. 46. The recitals in the declaration at Exh.46 make it very clear about the intention of the donor that he has completely handed over to the donee when the recitals clearly state that the vacant and peaceful possession has been handed over in presence of the witnesses. Further, in pursuance thereof, the entries have been made in the property card as well as Municipal records. It is in this background the evidence of the Plaintiff at Exh.32 and the Defendant No.2 are required to be appreciated. In the deposition by the Plaintiff, he has clearly admitted that he was residing separately. It is also admitted that the Appellant – Original Defendant No.2 was looking after the business of the flour mill and the father was also helping. Admittedly, the Plaintiff has also been residing on the first floor of the same premises. He was separately staying there. Therefore, from the evidence, it is clear that the donor – father had gifted the property to the Appellant – Original Defendant No.2. Out of caution he had executed the writing / declaration at Exh.46. Further, the recitals and the evidence including the other documents like entries in the property card of the Municipal Corporation would suggest that such declaration of gift was given effect to and the submission that the possession was not handed over or the donor had not divested himself of the possession or interest in the property is misconceived. It may be noted that both the donor and the Respondent No. 2 – donee, who are father and son have been residing together in the same premises. Therefore, law of Hiba under Mohammedan Law, Rule 178 provides an exception to the actual physical delivery of possession which provide as under:
“Actual delivery of possession of the property (including movable and immovable) is required except in the case (i) where the donor and donee are residing together in the same house which is the subject of the gift, (ii) where the property is in possession of the other person; (iii) where the husband is the donor and wife is a donee or vice versa; (iv) where the Guardian is the donor and the Ward is the donee; (v) where the donee is baillie; and (vi) where the property is not capable of being delivered but, not otherwise.”
12. Thus, it provides that if the father and son both are residing in the same premises, the actual physical possession may not be handed over and constructive possession can be considered. In the facts of the present case, the possession has been handed over to the Appellant – Original Defendant No.2 pursuant to the gift, which has not been disputed. On the contrary the entries are made in the record of the Municipal Corporation as well as the property card. Further, when the father and son are residing together, the constructive possession can take place in the same manner by executing the property documents, and thereafter, giving effect to it by way of entry in the records. Therefore, merely because they are residing together, it cannot be said that the possession has not been handed over. Further, pursuant to the declaration (Exh.46), the deceased had also executed and given in writing to various authorities which are produced on record at Exh.39 as well as entries would make the position clear that the gift was effected and it was valid. The submission made by learned Advocate Shri S.K.Bukhari that the possession has not been handed over as the father was residing there and he was also running the flour mill, and therefore, he had divested himself of any possession or interest, is misconceived in view of the deposition of the Plaintiff himself that the Appellant – Original Defendant No.2 was also looking after the flour mill. Admittedly, the Respondent was residing on the first floor of the premises separately for years. Therefore, considering the entire evidence, it cannot be said that the ingredients for the gift are not established. The Court below has therefore failed to appreciate this aspect though it has noted about the ingredients for the gift, but has failed to appreciate the material and evidence on record that the possession itself was handed over and such a constructive possession would be sufficient as they are residing together. It is also covered by law of Hiba as discussed. Therefore, if the Hiba was considered, the learned Judge could not have come to the conclusion that there is no actual physical possession being handed over or that the donor deceased father had not divested himself of the property. Infact, these findings, which have been arrived at are contrary to the material and evidence on record and has totally misdirected in appreciating the relevant provisions of law and the ingredients for the gift.
13. Therefore, the impugned judgment and order deserves to be quashed and set aside and the present First Appeal deserves to be allowed. The impugned judgment and order passed by the City Civil and Sessions Court, Ahmedabad in Civil Suit No. 3782 of 1987 dated 10.8.1998 is hereby quashed and set aside. Rule is made absolute.
(Rajesh H. Shukla,J) Jayanti*