LAWS(MAD)-1992-9-32

ABDUL SATHAR Vs. MUHAMMAD ALI

Decided On September 04, 1992
ABDUL SATHAR Appellant
V/S
MUHAMMAD ALI Respondents

JUDGEMENT

(1.) DEFENDANTS 2, 4 and 6 in a suit for declaration of title to 26/35 shares in the plaint schedule properties by the plaintiff/respondent have preferred this appeal against the judgment of this Court, by which the learned single Judge has confirmed the trial court's judgment and decree based on a deed of gift. The original plaintiff who is the second wife of the alleged donee (eighth defendant in the suit) filed the suit stating that defendants 1 to 3 were the sons and defendants 4 and 6 were the daughters of the eighth defendant through his predeceased first wife. After the death of his first wife, the eighth defendant married the plaintiff as his second wife, who herself was the widow of another through whom she had four children. She did not beget any child for the eighth defendant. The seventh defendant was the brother of the eighth defendant. The plaintiff claimed that the eighth defendant was entitled to 26/35 shares in the schedule mentioned properties On 14. 10. 1965 he executed a registered deed of gift in favour of the plaintiff in respect of his 26. 35 shares in the schedule mentioned properties and handed over the deed of gift to her, who accepted it and accordingly, the plaintiff was put in possession of the schedule mentioned properties. According to the original plaintiff, she continued to be in possession of the 26/35 shares in the schedule mentioned properties, but found that the defendants enraged by the execution of the deed of gift attempted to trespass into the suit properties. DEFENDANTS 9 to 18 were added as party/defendants as the heirs and legal representatives of the seventh defendant, who died during the pendency of the suit. The eighth defendant also died pending suit and the plaintiff and defendants 1 to 6 were recorded as his legal representatives.

(2.) IN a common written statement, defendants 1 to 6 admitted the relationship set out in the plaint, but contended that the suit houses were purchased by their mother, the first wife of the eighth defendant from out of her moneys in the name of the eighth defendant, his brother, the seventh defendant, their another brother, their sister and mother, all benami for her. The eighth defendant, therefore, had no right in the suit properties. He had executed a letter of undertaking on 11. 4. 1958 admitting that the suit house was purchased out of consideration provided by his first wife and mother of defendants 1 to 6. As he had no right in the suit properties, the gift deed executed by him in favour of the plaintiff was void in law. The defendants 1 to 6 disputed the plaintiff s claim that she was in possession of the suit properties and alleged that they also resided in the suit house where the plaintiff lived as the second wife of the eighth defendant and not in her independent right. They also maintained that the gift deed had been procured by the plaintiff by coercing the eighth defendant which was as a result of the undue influence of the plaintiff upon him and not out of his own free will and volition.

(3.) IN one of the earliest judgments on the subject in the beginning of the present century in the case of Alabi Koya v. Mussa Koya, i. L. R. 24 Mad. 513: 11 M. L. J. 227, there had been certain observations which created a doubt as to whether law of Musha applied in the State of Madras (now tamil Nadu) but soon thereafter a Bench of this Court in case of Vahzullah sahib v. Boyapati Nagayya, I. L. R. 30 Mad. 519: 17 M. L. J. 562, entered into this question and made a candid study in the light of the pronouncements of the courts on the subject available until then. It was a case in which the issue contested was whether, when the donor did not part with the possession of the property comprised in the deed of gift and later he himself alienated the property to another, any right could be claimed under the gift or not. The judgment proceeded to consider the case stating as follows: "both the lower Courts have held the Moham-madan Law inapplicable to gifts by registered instrument on the authority of certain observations of Benson, J. in the case of Alabi Koya v. Mussa Koya, I. L. R. 24 mad. 513: 11 M. L. J. 227. It was held by that learned Judge that Sec. 16 of the madras Civil Court Act did not expressly make the Mohammadan Law applicable to gifts, that gifts of Mohammedans must be governed by justice, equity and good conscience, and that it was open to doubt whether the Mohammadan rule as to delivery of possession being necessary to validate the gift, was adapted to modern requirements, and whether the mode of transfer laid down as obligatory on Europeans and Hindus by Sec. 123 of the Transfer of Property Act and adopted by the parties in that case, viz. , by registered instrument attested by two witnesses and signed by the donor, ought not, in equity and good conscience, to be held as efficacious as delivery of possession in the case of Mohammadans. These observations were not necessary for the decision, as the learned Judge proceeded to hold that the requirements of Mohammadan Law as to delivery of possession had been sufficiently complied with in that case, nor were they concurred in by Mr. Justice Shephard who held that, assuming the Mohammadan Law to apply, the gift was good. On the other hand we have been referred to Bawa saib v. Mahomed, I. L. R. 19 Mad. 343, in which the Mohammadan Law was held applicable to gifts in this Presidency, a case which does not appear to have been cited in the case of Alabi Koya v. Mussa Koya, I. L. R. 24 Mad. 513: 11 m. L. J. 227. IN that case the gift was made orally, but this fact cannot in our opinion make any difference, as if a gift is bad by Mohammadan Law for want of possession when made orally, there is nothing in the provisions of the registration Act III of 1877 or the Transfer of Property Act IV of 1882 to render such gift valid when made by registered instrument. There are also earlier cases in which gifts between Mohammadan Law ,vi z. ,hussain v. Shaik Mira, I. L. R. 13mad. 46, Nabob Amiruddaula Muhammad Kakya Hussain Khan bahadur Amirjung v. Nateri Srini-vasan Charlu, 6 M. H. C. R. 356. Under Sec. 24of the Bengal Civil Courts Act, 1871, the terms of which for the present purpose are substantially identical with those of Sec. 16 of the Madras Civil Court Act iii of 1873, the Mohammadan Law has been applied by the Privy Council to gifts between Mohammadans vide Mohamed Buksh Khan v. Hosseini Bibi, I. L. R. 15 Cal. 684, and in the North-West Provinces the same section has been expressly construed as rendering Mohammadan Law applicable to such gifts, see North-West province High Court Reports, 1874, page 2, and ibid. , page 28, cited in the case of Gobind Dayal v. INayarullah, I. L. R. 7 All. 775. IN these two cases the courts were unanimous that Mohammadan Law was applicable, but there was a difference of opinion as to the grounds on which it was applicable, the majority holding that in the circumstances it was applicable as a rule of justice, equity and good conscience, while the minority were of opinion that questions as to gift, between Mohammadans were covered by the express provisions as to questions regarding succession, inheritance, marriage or caste or any religious usage or institution. Lastly in Bombay it has been expressly held that gifts between Mohammadans by registered instrument are invalid unless the requirements of Mohammadan Law as to possession are complied with-vide Mogulsha v. Mohammed Sahib, I. L. R. 11 Bom. 517 and Ismal v. Ranji Sambhaji, I. L. R. 28 Bom. 682. We are therefore of opinion that Mohammadan Law is applicable to gifts between Mohammadans even when effected by registered instrument and that the lower Courts were wrong in deciding otherwise. It must however, be borne in mind that the task of discovering and applying the rules of Mohammadan Law to the circumstances of this country is often one of great difficulty as pointed out by Garth, C. J. , in the case of Mullick Abdool Gaffoor v. Muleka, I. L. R 10 Cal. 1112 at p. 1123, and that in choosing between conflicting authorities the principles of justice, equity and good conscience must be regarded vide Sheikh Muhammad Mumtaz Ahmad v. Zubaida Jan, L. R. 16 I. A. 205, and Bibi Khaver Sultan v. Bibi Bukha Sultan, 6bom. L. R. 983. Assuming Mohammadan Law to be applicable, as laid down in chaudhri Mehdi Hasan v. Mohammed Hasan, L. R. 33 I. A. 68 at p. 75, it is incumbent on a party claiming under a gift to show very clearly that the requirements of Muhammdan Law have been met, and consequently, if he relies on a gift without consideration, to show that there has been delivery of the thing given, so far as it is capable of delivery. The appellant has also contended on the authority of Bawa Saib v. Mohomed, I. L. R. 19 Mad. 343, tha t the fact of the donor of the house continuing to live in it would invalidate the gift, while on the other side we have been referred to the cases of'shaik Ibrahim v. Shaik Suleman, I. L. R. 9 Bom. 146, humera Bibi v. Najmun-nissa Bibi, I. L. R. 28 All. 147, to which may be added the case of Bibi Khaver Sultan v. Bibi Bukha Sultan, 6 bom. L. R. 983.'