TARA PRASANNA SEN Vs. SHAUDI BIBI

JUDGEMENT

(1.) This appeal arises out of a suit for the recovery of the disputed land on establishment of the plaintiff's title thereto. The facts of the case as found by the Courts below are that the lands in suit belonged to one Asrabi Bibi, She made a gift of a portion of them to one Gendu by a registered instrument and a verbal gift of the rest to defendant No. 1 and "caused the same to be recorded in her (defendant No. 1 s) name." At the time of the settlement, they were so recorded. It appears that before Asrabi made a gift of the lands in dispute to Gendu and defendant No. 1, she had mortgaged them to some persons who were in possession of the lands at the time of the verbal gift to defendant No. 1.

(2.) The validity of the gift to Gendu was conceded by the plaintiff in the Court below and is not questioned before us, The plaintiff, however, contends that the oral gift to defendant No. 1 is invalid according to Muhammadan Law, inasmuch as the lands were in the possession of the mortgagees at the time of the gift and so there was, and could be, no delivery of possession as is required by law to constitute a valid gift.

(3.) The findings, as we have indicated, are that the donor caused the name of the donee to be recorded as tenant in respect of the disputed jote and that the donee, the defendant No.), was in physical possession of the homestead, one of the properties included in the gift. The Court of Appeal below has further held that Asrabi Bibi was in constructive possession of the lands and is of opinion, though not expressed in explicit terms, that Asrabi did all she could to put defendant No. 1 in possession of the mortgaged lands. The said Court concludes its finding by observing: "It appears that there was clear intention on her (Asrabi s) part to make the gift and that she gave up the property to defendant No. l; so the gift is valid."