NAHA HAJI Vs. KARIKUTTY

JUDGEMENT

(1.) THE plaintiff has executed a Panayam deed (Ext. B-1)and the 1st defendant in return a Panayakaichit (Ext. A-1) on April 18,1953. THE advance under the transaction is Rs. 100/- and the rental payable to the plaintiff Rs. 11 per annum. THE 1st defendant contended that, though two items of properties were mentioned in the deeds, they really concerned the 1st item alone, that the 2nd item had not been given possession to him and that till he received the suit notice be was even unaware of the mention of the 2nd item in the deeds. THE Munsiff found that item No. 2 did not belong to the plaintiff and that the rental stipulated in the deeds was for the 1st item only; and that has been upheld by the Subordinate Judge. THE Courts below have accordingly decreed the arrears of rent claimed. In this second appeal the plaintiff challenges the negation of his title to plaint item No. 2.

(2.) IT is conceded that suit item No. 2 belonged originally to the 2nd defendant. On September 26,1945, he had executed a deed of gift, ext. B-6, in favour of the 8th defendant, his daughter, who was then 2 months old, expressly stating therein that thereafter he would be holding the property as her guardian. IT appears that subsequently the donor had changed his mind, and executed Ext. A-5 on November 6,1950, assigning the property to the plaintiff and delivering his document of title along with it. Defendants 3 and 8 mother and daughter contend that the assignment to plaintiff is incompetent and void. The Courts below have found Ext. B-6 valid and Ext. A-5 incompetent. The correctness of those findings is canvassed in this second appeal by the plaintiff.

(3.) IT is unnecessary in this case to decide if the parties concerned are Shafeis or Hanafis; for, even if they are Shafeis, the gift under Ext. B-6 has, in the circumstances of this case, to be held operative. The law of gifts according to the Shafei doctrine has been detailed in Chapter VI of Mahomedan Law by Syed Ameer Ali thue: "a father has the right of revoking a gift made by him to his children, provided the donee has not irrecoverably disposed of the object received. So also other ascendants with respect to gifts made to grandchildren and their descendants. . . . A revocation may be made in the following terms: "i revoke my gift," or "i reclaim the object," or "i wish the object to become my property again," or "i wish to break my gift," but it cannot be made impliedly by a subsequent disposition of the thing given, such as by sale, wakf, gift to another person or enfranchisement. " No express revocation of the gift under Ext. B-6 is in proof in this case; nor does a revocation as such recorded in Ext. A-5. Counsel read S. 42 of the Transfer of Property Act, thus: "where a person transfers any immovable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of the power. " I should think that this Section renders no help to the appellant. Under it the revocation implied by a transfer is subject to any condition attached to the exercise of the power of revocation; and it is a rule of Shafei law (see supra) that the revocation of a gift to a child by the father must be express and cannot be by implication of a subsequent dealing of the property by the donor. Further, S. 2 of the Transfer of Property Act says "nothing in the second Chapter of this Act (which includes S. 42) shall be deemed to affect any rule of Muhammadan law". IT must then follow that the gift under Ext. B-6 has not been affected by the subsequent assignment of the property by the 2nd defendant to the plaintiff. The courts below were right in holding that the suit item No. 2 belongs to the 8th defendant and not to the plaintiff. The second appeal fails and is dismissed with costs. Dismissed.