POCKER Vs. KATHIYA

JUDGEMENT

(1.) Plaintiff sued for an injunction restraining the defendants not to alienate the property covered by Ext. A1 and not take any possession thereof. Defendant No. 1 gifted the property concerned to the plaintiff. Later by Ext. B3 she revoked it. It is in the above circumstances the suit was filed. According to the plaintiff there was a complete gift in terms of Ext. A1 by the donor expressing intention to make the gift to the plaintiff donee, the latter accepting the same and a change of possession of the property concerned. Therefore, there was no reason at all to revoke the gift and the revocation is illegal and the plaintiff continued to be the owner of the property in terms of the said gift. But, both the Courts below concurrently dismissed the suit finding that there was no delivery of the possession of the property gifted in favour of the donee to complete the last among three essentials of a Mohammedan gift. That concurrent finding is under challenge in this Second Appeal.

(2.) Relying on the decision reported in Mahboob Sahab v. Syed Ismail ( 1995 (3) SCC 693 ) it is contended that as both the donor and donee were residing together, no separate parting away of the property was essential and it could be presumed that there was a complete Mohammedan gift on execution of Ext. A1 itself. It is also contended, relying on Mulla on Mohammedan Law that the said position shall always be accepted when both donor and donee are living together in the same premises.

(3.) Whatever that be, residence of the donor and donee in the same building will not take away any of the three essential ingredients of a Mohammedan gift being complied with. A declaration of the gift by the donor is of course there in Ext. A1. It also can be said that the plaintiff had accepted the gift in Ext. A1. But these two essentials alone will not make Mohammedan gift complete unless there is delivery of the possession of the property gifted. In this case, Ext. A1 deed specifically mentions that the plaintiff donee shall change the mutation and pay the taxes. The only evidence to show that he had paid the tax was Ext. A2 a document made just before the institution of the suit; whereas Ext. B1, extract of the land revenue register shows that far later to the execution of Ext. A1 gift deed itself, on 23.1.81, 29.3.83, 1.9.83 and 30.3.84. The donor herself had paid the land revenue in respect of the plaint schedule property. Had the gift been accepted and if there was delivery of possession of the property gifted, there was no reason at all, when there was a document like Ext. A1, for the plaintiff not to pay the basic tax. Thus, it was based on evidence that the lower appellate Court has found as follows: