JAYANABIBI Vs. JAYARABI

JUDGEMENT

(1.) This second appeal raises the question whether there was delivery of possession as required by the Muhammadan law under or pursuant to EX. D.-8, a deed of settlement in favour of the defendant by her deceased husband, dated 4th April 1944. The plaintiff though originally a Hindu became a Muslim by conversion and afterwards also a wife of the executant of Ex. D.-8. Both the parties to the present suit ace Muhammadans, even as the executant of EX. D.- 8 was. The suit has been decreed by the Courts below on the ground that Ex. D.-8 is of no avail to the defendant for want of delivery of possession.

(2.) The property was in the hands of tenants at the time of Ex. D-8, Under it, firstly the settlor reserves to himself the right to receive rents during his lifetime, and secondly he also undertakes to pay municipal taxes. It is contended by Mr. Suryanarayana, learned counsel for the appellant, that notwithstanding these two undisputed facts there was sufficient delivery of possession as required by the Muhammadan law by the mere declaration to that effect in the document. It is said that the intention to deliver which is unequivocally manifested by the clause of the document "I have delivered possession of the property to you even now" need not be followed up by any attornment of the tenants to the donee or by any reception of rents and profits by her. Reliance is placed by the learned counsel on the ruling of the Privy Council in Mohamed Sadiq Ali Khan v. Fakr Jehan Begum, A. I. R. (19) 1932 P. C. 13 : (6 Luck. 556) and in particular on the observation at P. 19 which is in these terms:

(3.) The question whether or not possession was delivered is in essence a question of fact on which both the Courts below have concurred adversely to the appellant. The second appeal is therefore devoid of substance and must be and is hereby dismissed with costs.