VEEVI KUNJU ASHIA BEEVI Vs. KALI KOCHU PILLAI

JUDGEMENT

(1.) THE appellants who are plaintiffs in the suit sued for cancellation of a sale deed Ext. A or I executed by their mother, the 5 defendant, when they were minors and for recovery of possession of the property with mesne profits. THE property in dispute, a plot of land 34 cents in extent, belonged to the 5th defendant who gifted the same to the plaintiffs under Ext. V dated 15-8-1114. On 28-5-1115 , the 5th defendant, purporting to act as guardian of the plaintiffs sold the property to one Gopalan deceased son of the 1st defendant. THE 2nd defendant is the widow of Gopalan and the 3rd defendant is his minor son. THE plaintiffs' case is that the 5th defendant was not competent to execute the sale deed and that it was not supported by consideration or necessity binding on them. THE 2nd defendant contended inter alia that the gift was invalid and inoperative as it was not followed by delivery of possession and that the plaintiffs were therefore not entitled to any relief. THE trial court as well as the lower appellate court upheld this contention and dismissed the suit.

(2.) THE only question for decision is whether the plaintiffs became entitled to the property or in other words whether the gift under which they claim is valid. THE plaintiffs and defendants 3 and 4 are mohomedans. It is not disputed that delivery of possession of property is an essential condition of a valid gift under Mohomedan Law. A peculiar feature of this case is that the 5th defendant sold the property as though it belonged to the plaintiffs. It has been found by the trial court that the sale deed is not supported by necessity binding on the minors. THE 5th defendant who has acted as guardian of the plaintiffs was not their guardian according to Mohomedan law. THE plaintiffs are therefore entitled to succeed if there is a valid gift in their favour. THE question is whether the gift was followed by possession. THE concurrent finding of the courts below on this point is that possession was not given to the donees or to their guardian, the 4th defendant. It was urged by the learned counsel for the appellants that the courts below have not taken into consideration several relevant facts and circumstances and that the concurrent finding should therefore be set aside. THEse facts are that the 4th defendant who was the guardian of the donees attested the gift deed Ext. V thereby indicating acceptance on behalf of the minors, that there was a clear declaration in Ext. V that possession was surrendered, that mutation of names was effected following the gift, and that the donor and donees were living together in the property gifted, before & after the gift. THEse are insufficient to disturb the concurrent findings. Though the 4th defendant attested Ext. V, there is no statement in the deed that possession was given to him on behalf of the minor donees. THE fact that the 5th defendant acted as guardian in executing the sale deed shows that it is unlikely that possession was given to the 4th defendant. THE declaration in ext. V that possession was given is by itself insufficient to prove delivery of possession. THE exception to the rule regarding delivery of possession in the case of a gift by the father or guardian to his child or ward as the case may be cannot apply to this case, as the donor was only the mother of the donees. Such declaration not followed by possession has been held by the Privy Council as insufficient to make the gift valid. Musa Miya Walad Shaffi v. Kadar Bax walad Khai Box (A. I. R. 1928 P. C. 108) is a case of a gift by the maternal grand-father to his grand-son when their father was alive. THE donor continued in possession notwithstanding the declaration and the Privy Council held that the gift was inoperative. Learned counsel for the appellants relied on the decision of the Privy Council in Muhammed Mimtaz Ahmad v. Zubaida Jan (11 All. 460) for the position that such a declaration binds the heirs of the donor. As pointed by Srivastava, J. in Jhumman v. Husain (A. I R. 1931 Oudh. 7) this does not been that the declaration is conclusive on the question whether possession was given. THE latter decision is also authority for the position that mutation of names following the gift is inconclusive. Mytheen Beevi Umma v. Varkey (1956 k. L. T. 444) also cannot help the appellants. THE question of delivery of possession to the guardian when the donees are minors did not arise there. As regards the argument that the donor and donees were living together in the property gifted it has to be observed that there is no pleading or reliable evidence on the point. It may also be stated that the 2nd defendant raised a definite plea in the written statement that the gift was not followed by delivery of possession and though the plaintiffs filed a replication in answer to the written statement, they did not say who took possession on their behalf. THE plaintiffs also did not care to examine either the 4th or the 5th defendant. As held in Mytheen Beevi Umma v. Varkey the onus is on the donees to prove that possession was given. Such onus has not been discharged in this case. THE concurrent decrees must therefore be confirmed.