NOORU MOHAMED Vs. SULTAN PILLAI

JUDGEMENT

(1.) The 1st defendant is the appellant. The property described in the plaint scheduled belonged to the 3rd defendant and his mother. They had mortgaged the property with possession under Ext. A dated 2.10.1098 and the mortgage right now vests in defendants 1 and 2. After the death of his mother the 3rd defendant executed a gift deed Ext. B dated 9.9.1110 in favour of his daughter Asma Beevi conveying the equity of redemption over the plaint property as well as some other properties which were in his possession. The plaintiff purchased the equity of redemption from Asma Beevi under Ext. D dated 9.8.1123 and sued for redemption. Defendants 1 and 2 who are now in possession of the property are brothers of Asma Beevi. The 1st defendant contended that Ext. B had not come into effect, that the amount due to her as Stridhanam for which Ext. B was executed was subsequently paid by the 3rd defendant, that on 16.3.1111, the 3rd defendant had executed another gift deed, Ext. II to a younger sister of Asma Beevi, and that the latter had sold the equity of redemption to the 1st defendant on 15.2.1117, Ext. III being the sale deed. The plaintiffs title to redeem was thus disputed. The courts below found that Ext. B was a valid gift which had come into effect and that the plaintiff was entitled to redeem. The suit was accordingly decreed.

(2.) It was contended on behalf of the 1st defendant appellant that the gift evidenced by Ext. B was invalid and that it had not come into effect. Delivery of possession of the subject of the gift by the donor to the donee is an essential requisite of a valid gift under Muhammadan Law, and it was argued that in view of the stipulation in Ext. B that the 3rd defendant was to redeem the mortgage and deliver possession within one year of the date of the execution of Ext. B it should be held that there was no delivery of possession. This argument cannot be accepted because the subject of the gift was the equity of redemption. No doubt there is a clause in Ext. B that the third defendant would redeem the mortgage and give possession to Asma Beevi and that in case of default Asma Beevi was to recover from him the mortgage amount and other damages consequent on such default. What is actually gifted under Ext. B is the equity of redemption which can form the subject of a valid gift under Muhammadan Law. The clause containing the undertaking referred to above cannot affect the validity of the gift. That clause may or may not be enforceable against the 3rd defendant. But the subject of the gift being only the equity of redemption delivery of possession need be only of such possession as the property gifted is capable of. The question remains whether there is sufficient evidence to show that a donor did some act to put the donee in constructive possession of the property conveyed. Shri K.S. Rajamony, learned counsel for the appellant, cited the following passage from Tyabijis Principles of Muhammadan Law:-

(3.) No other question arises in this Second Appeal which is dismissed with costs.