RATANLAL BORA Vs. MOHD NABIADDIN

JUDGEMENT

(1.) This Appeal is directed against the judgment of the learned Additional District Judge, Karimnagar in Appeal Suit No. 20 of 1978 dated 15th September, 1980. Defendants in O. S. No. 66 of 1973 on the file of the District Munsif, Sultanabad are the appellants herein. The respondent/ plaintiff filed a suit in the Court of the District Munsif at Sultanabad for declaration of title over the suit wall and the suit Chenna and for the issuance of mandatory injunction for the removal of the structure raised by the defendants on the suit wall and for perpetual injunction restraining the defendants from encroaching on the suit wall. The trial Court after framing the necessary issues and examining the relevant evidence, decreed the suit in the terms prayed for by the respondent. Against the judgment of the trial Court, an appeal was carried to the Additional District Judge, Karimnagar who dismissed the appeal. This appeal is filed against the judgment of he lower appellate Court.

(2.) During the course of the trial, the appellants questioned the locus standi of the respondent/plaintiff to file the suit in question. An issue was framed in this regard by the trial Court. The contention of appellant was that there was no evidence to establish that the respondent/plaintiff was the owner of the suit wall and suit Chenna and consequently, he has no locs standi to file this suit. The respondent's claims was that his father was the owner of the house including the suit wall, that the suit property was the subject-matter of an oral gift in his favour and that pursuant to this gift, he acquired title to the property including the suit wall and, therefore, he had the competency to file the suit as the owner of the suit wall Inasmuch as the gift was claimed to be an oral gift by the father of the respondent plaintiff, there was no documentary evidence forthcoming. It is not in dispute that there was also no contemporaneous evidence to establish the gift. The father of the respondent/plaintiff was examined as P. W. 2. There is no reference relating to the actual date of the gift either in the plaint or in any other evidence that was placed before the Court. There is no specific mention of the date when the gift was allegedly made P. W. 2 stated in his deposition that the gift was made about six years ago (implying thereby that the gift was made sometime in 1969). P. W. 2 further stated that none was present at the time when he made the gift. The trial Court, on the basis of the evidence before it, came to the conclusion that the plaintiff had let in unimpeachable evidence to show that his predecessors-in-title were the owners of the suit wall. The trial Court also noticed that when the suit wall fell down, the plaintiff's father constructed a new wall in the year 1960 pursuant to the permission taken by him from the municipality. Having referred to the above facts, the trial Court recorded the finding that the above evidence clearly showed that the suit wall belonged to the plaintiff. It may be mentioned that there was no dispute that the house belonged to the respondent/Plaintiff's father. There is some dispute about the ownership of the suit wall. The appellants contended that the suit wall was part of the adjoining premises which they purchased in 1962 and that it was borne out by the plan accompanying the registered sale deed in which the suit wall was shown as part of the premises purchased by the appellants. There is, on the other hand, evidence to show that this suit wall was constructed in the year 1960 by the plaintiff's father. There is also evidence to show that when the building was gifted by the plaintiff's grand-mother, the suit wall was shown as part of the gifted premises. On this conflicting evidence, the trial Court as well as the lower appellate Court came to the conclusion that the suit wall belonged to the plaintiff's father and not to the appellants. This finding however did not carry the matter any further so far as the question relating to the locus s tandi of the plaintiff to file the suit is concerned. Having held that there is evidence to establish that the building in question belonged to the plaintiff's father, the trial Court as well as the lower appellate Court drew the inference that the gift in favour of the plaintiff must be taken to have been established and, therefore, the plaintiffs had the locus standi to file the suit in question.

(3.) Before me the learned Counsel for the appellants Sri Bankatlal Mandhana contended that the suit filed by the plaintiff ought to fail on the main question relating to the locus standi because there is no evidence whatsoever that the plaintiff's father had gifted the property in favour of the plaintiff and that such gifted property included the suit wall. As already pointed out above, there is no independent evidence of the gift apart from what has been stated by the plaintiff's father in his oral evidence before the Court. Obviously, there is no evidence by way of intimation to the municipal Corporation contemporaneously after the alleged gift was made. It is no doubt true that under the Personal Law a mohammadan can gift an immovable property by making an oral gift provided three ingredients are satisfied. These ingredients are (a) there must be a declaration of gift, (b) there must be acceptance of. the gift by the donee, and (c) the possession of the property which is the subject-matter of the gift must have been delivered to the donee. For the purpose of law, even if actual possession is not given, possession which the property is capable of being given would satisfy the requirement Unless these three valid requirements of declaration, acceptance and possession are satisfied, an oral gift under Mohammadan law is not valid. Before going into the question of acceptance by the donee and the delivery of possession by the donor to the donee, there is absolutely no evidence in the present case to show that there was any valid declaration of gift by the plaintiff's father in favour of the plaintiff. All matters relating to this gift are delightfully vague in the sense that there is no reference to the actual date of gift, no reference to the acceptance by the donee and no reference to the possession. On the contrary, the plaintiff's father who is the doonor stated on oath before the court that when he made the gift, there was nobody present This statement is destructive of the valid requirement of declaration. 'In order that a declaration of gift is established, it must be shown that the donor either in the presence of witnesses or otherwise made a public statement that he gifted the property in favour of the donee and that he divested himself of the ownership of the property by delivering such possession as the property it capable or to the donee who accepted the gift. It is inconceivable to think that a declaration of gift can be made unilaterally by a Mohammadan, without making a public statement of the gift. On the own showing of the donor, if nobody was present at the time when the alleged gift was made, it is not clear how the important requirement of declaration of gift is satisfied. The learned Counsel for the respondent-plaintiff Sri Ananda Reddy contends that the law does not prescribe any particular mode of declaration and that in order to make an oral gift, it is not necessary that there must be witnesses or that any particular form of declaration must be followed by the donor. According to the learned Counsel, the statement made by the plaintiff's father before the court that he made a gift of the property orally itself constitutes sufficient declaration in order to make the gift valid or at any rate such a declaration ratifies the earlier gift even if any doubt subsists regarding the declaration at the time of making the gift It is difficult to contribute to this argument of the learned Counsel for the respondent. Declaration of a gift for the purpose of law has a definite connotation in the sense that a person making a gift, called the donor, must declare by some means to give public notice that he gifted the property to the donee and divested himself of the ownership of the property. It is unknown to law that a Mohammadan can make an oral gift within the confines of his house and without the presence of anybody else and canvass the plea that by making such a declaration allegedly of the gift, the valid requirements of a gift are satisfied. It must be remembered that unlike the personal law of Hindus, the personal law of Mchammadaos permits the making of a gift orally and the relevant provisions of the Transfer of Property Act relating to trapsfer of the immovable property of the value of one hundred rupees and upwards are not attracted to the oral gifts because of the personal law. When claims of oral gift are made, the law requires strict evidence to establish that an oral gift had in fact been made and that there is some contemporaneous evidence to establish such an oral gift. It is true that no special set of rules are prescribed under the law of evidence to establish an oral gift and the evidence can take aay form. But it must point out unquestionably to the fulfilment of the three requirements of a valid gift under the Mohammadan Law. If evidence is lacking on any of the requirements of a valid gift, law cannot presume that a valid gift has been orally made by a Mohammadan in favour of a donee. That is precisely what has happened in this case. The evidence is totally absent. In the plaint filed there is no reference to the alleged gift and much less to the date of the gift. There is no reference to the acceptance of the gift and if so when and much less regarding the date on which the possession was delivered. Even if there are any circumstances existing to infer the acceptance and possession because of the relationship of the donor and donee (being father and son), evidence is lacking on the more imporant and formidable requirements of valid declaration of gift. In the absence of evidence that a gift has validly been made, the inference of acceptance and possession does not advance the case further and the gift still remains invalid.