PATHU MUTHUMMAL Vs. ASUMA BEEVI

JUDGEMENT

(1.) First defendant in a suit for partition is the appellant. Her husband Mohammed Kannu was the owner of the properties. His father Mythian had two brothers Meeya Pillai and Muhammed Kassim. Plaintiff is the son of Meeya Pillai and defendants 2 and 3 are the children of Muhammed Kassim. Plaintiff claimed 6/20 share. Appellant contended that under Ext. B1 gift deed executed by her deceased husband the entire properties belong to her and they are not partible. Trial Court and appellate court accepted her contention regarding all except plaint schedule item 1. Regarding item 1 Ext. B1 gift was found to be not valid and a preliminary decree for partition of that item alone was passed. It was confirmed in appeal. Whether Ext. B1 is a valid gift or not in relation to this item is the only question that has to be considered in this second appeal.

(2.) The three essentials to the validity of a gift in Mohammedan Law are (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as the subject of gift is susceptible of. No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act 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. This rule applies to gifts of immovable property by a wife to the husband and by a husband to the wife, whether the property is used by them for their joint residence, or is let out to tenants. The fact that the husband continues to live in the house or to receive the rents after the date of the gift will not invalidate the gift, the presumption in such a case being that the rents are collected by the Husband on behalf of the wife and nut on his own account (See Principles of Mahomedan Law, 6th Edition by Mulla).

(3.) In this case gift was by the husband to the wife and item 1 is the property in which there is the residential building occupied jointly by the husband and wife for their residence at the time of the gift and thereafter also. Both the courts below found that there was a declaration of gift by the donor and its acceptance by the donee. These two aspects are not challenged also. Dispute is only regarding compliance of the third essential. The document says that the entire rights are given in presente. The donee was authorised immediately to effect mutation in her name and get patta. She was also authorised to pay tax for all the properties immediately. That she complied with these provisions is not in dispute. She was authorised to effect improvements also. There is a provision which says that she has to take possession of item No. 1 after the death of the donor. Provision for effecting improvements is commonly made even though there is scope for a contention that regarding item No. 1 that provision is also intended to take effect only after the death of the donor. But in the immediate succeeding sentence he made his intention clear. He clearly stated that what be reserved with him was only the enjoyment of the usufructs of item No. 1 and the freedom to reside in the building in item No. 1 and nothing else. That means he did not even retain possession or right to effect improvements in item No. 1 and subject to his right of residence in the building and the right to enjoy the usufructs of that property the entire rights including possession were handed over to the donee. In such circumstances the provision that the donee can possess and enjoy the property after his death could only mean that till his death the wife is not given the right to take usufructs of the property. No other restriction could be inferred from the circumstances. He has further clarified this position by saying that subject to the right to take usufructs and reside in the building at stated above he has relinquished all other rights immediately ia favour of the donee. That is further indication that except the two rights he has relinquished all other rights including possession also. The donee was already residing along with donor and that residence is not disturbed. In such a situation the declaration in the gift without any physical departure or formal entry was sufficient to put the donee who was already in the premises into possession. Along with these facts the explicit intention of the donor to gift the properties and the reasons therefor mentioned in the gift deed are also relevant.