PICHAKANNU Vs. ALIYARKUNJU LEBBA

JUDGEMENT

(1.) Plaintiffs 1 and 2, who are the daughters of one Hassan Ghani Rowther, and their assignee the third plaintiff, sued for partition of 2/3rd of 7/8th share of the suit properties. The suit was contested mainly by defendants 4 & 8 who are the appellants in this Second Appeal. Hassan Ghani Rowther had made a gift of item 1 and of portions of items 2 & 5 of the suit properties by Ext. I dated the 23rd Meenom, 1099, in favour of the five children of his deceased brother, three of whom are defendants 1 to 3 and the other two, were the predecessors in interest of defendants 4 and 6 and of the 7th defendant. Hassan Ghani Rowther died in the year 1107. In execution of the decree Ext. II, in O. S. 207 of 1113, the 8th defendant purchased a portion of item 2 of the suit properties. The main contention of defendants 4 and 8 in the courts below and in second appeal was founded on Ext. I. This was held to be a valid gift by the Trial Court and on appeal to be invalid, under the Mohammedan Law, there having been no delivery of possession under it.

(2.) The appellate court has found on the oral evidence and on the terms of Ext. I, that there had been no delivery of possession under Ext. I. In this court the terms of Ext. I were relied on. In it the donor recited, that the properties were being gifted in accordance with the provisions thereinafter contained, declared that subject to his possession and enjoyment which was not to be disturbed, the donees may possess and enjoy the properties along with him, undertook that the tax would be paid and receipt taken in their names out of the income, and stipulated that the donees will take the properties absolutely after his lifetime. It is quite clear, that by Ext. I the donor did not divest himself completely of all dominion over the properties gifted, but reserved possession and enjoyment with himself, though perhaps jointly with the donees; in any event, the possession and enjoyment of the latter were to be subject to that of the donor. As I understand it, the tax was to be paid by the donor out of the income of the properties, though in the names of the donees. The donees were entitled to the properties absolutely, only after the lifetime of the donor.

(3.) It is a fundamental rule of Mohamedan Law as regards gifts, that "the donor should divest himself completely of all ownership and dominion over the subject of the gift." Mulla on Mohamedan Law, 15th Edition, page 130, S.141. "It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of." Mulla on Mahomedan Law page 131, S.150. A gift with a reservation of possession by the donor during his life was held to be void in K. S. Mohamed Asian Khan v. Khalilul Rehman Khan, AIR 1947 PC 97 . One thing is clear, that by reserving undisturbed his right to be in possession and enjoyment, the donor did not divest himself. completely of all dominion over the properties, though in a sense, he purported to associate the donees with himself; nor could such associating the donees in the matter of possession and enjoyment with him, be deemed to be delivery of such possession, if at all, as the properties were susceptible of. I am not prepared to hold that a stipulation that the donor and the donees shall be in joint possession, satisfies the requirement of deli very of possession in a gift under the Mahomedan Law. Even where the donee resides with the donor in the property, although no physical departure by the donor or formal entry by the donee, is necessary, the gift has to be completed by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift.