ABDUL RAZAK SAIB Vs. ZAINAB BI

JUDGEMENT

(1.) The defendant is the appellant. This second appeal arises out of a suit instituted by the plaintiff, his mother, for the possession of a house on the ground that she was driven out of it by him and that the gift-deed executed by her in respect of it in his favour is not valid and binding. The subject-matter of the gift is a dwelling-house which the plaintiff, the donor, got from her second husband. The appellant, the donee, is her son by her first husband. Some time after the death of the appellant's father, the respondent was married by her second husband. He also died. The appellant lived with his mother in the suit house before the date of the gift. At the time of the gift and subsequently also they lived in the same house. On account of differences between her and her daughter-in-law, the plaintiff was forced to leave the house. In the pleadings and as shown by the issues, her case was that the suit document was brought about by fraud and undue influence, but it was also urged during the course of the trial, as may be seen from paragraph 15 of the Munsif's judgment, "that it had not been proved that possession had been duly given to the defendant at the time of the gift and that therefore the transaction has become incomplete and is void". On both the points the learned District Munsif found against the plaintiff and dismissed her suit. On appeal the learned Subordinate Judge first dealt with the question "Is the gift invalid for nondelivery of possession" and as on this point he found in favour of the plaintiff he did not consider the other question arising in the suit and consequently allowed the appeal and gave her a decree. The learned Judge based his decision on Shed Ahamad V/s. Ibrahim (1919) 52 I C. 314 in which Newbould, J., of the Calcutta High Court, stated that in cases where the donor and the donee reside on the property, a gift of the property tinder the Mahomedan Law may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject-matter of the gift.

(2.) In this case the learned Judge pointed out that there was no overt act to indicate that the plaintiff has transferred possession of the property to the donee.

(3.) The facts relating to the transfer of possession which are borne out by the evidence are these: in the gift-deed there is a recital to the effect that the property has been delivered to the donee. At the time the deed of gift was executed the plaintiff is said to have stated that the donee was already in possession. The learned Judge stated that these facts do not show that there was a change of possession, as the donee and the donor lived together in the house at the time of the gift. Subsequent to the gift the house tax was being paid by the appellant. The learned Judge held that this fact also was of no importance as even before the gift he used to pay the tax and as nothing was produced by the appellant to show there was mutation of names in the house tax register subsequent to the date of the gift to indicate that possession has been delivered over to the donee.