AJAGAR HAZAR SAHEB Vs. CHEDALAVADA ANNAMMAH

JUDGEMENT

(1.) The first point raised by Mr. Chenchiah for the appellants is that the plaintiff had parted with her right to the property under Ex. II and, therefore, she had no right to bring the suit. This point was not specifically raised in the first Court but was raised in a way in the grounds of appeal to the lower appellate Court. The learned District Judge held that the appellants were not entitled to raise this point in appeal as they did not put forward this case in the lower Court. The defendants did not rely upon want of title in the plaintiff in their defence to the suit. During the examination of the witnesses this point was brought out and the plaintiff was asked whether she had executed Ex. II to which she replied she did and that it did not take effect. It is not proper for the appellants now to raise this contention at this stage, for that would depend upon facts which should have been proved in the Court of first instance. Granting that Ex. II was executed by the plaintiff with the intention to convey title, yet, inasmuch as she continued to be in possession of the property till 1914 when she complained of trespass by the Defendants Nos. 1 to 3 in this suit, it cannot be said that the suit is unsustainable, for she is entitled to bring the suit merely on a possessory title and the Defendants Nos. 1 to 3 who were only trespassers could not plead the title of the true owner and the other defendants are persons who obstructed the delivery of possession and, therefore, I hold that the suit is not incompetent by virtue of the execution of Ex. II. The plaintiff's contention, no doubt, was that it was a nominal transaction and was never given effect to. Defendant's own witness D. W. No. 2 says that the document was not acted upon. I, therefore, disallow this contention.

(2.) The next point urged is that Ex. B, the deed under which the plaintiff got a gift of the property from a Muhammadan, was only a deed of management and, therefore, the plaintiff is not entitled to the property. From the recitals in Ex. B it is quite clear that the donor did intend that the donee should have full title to the property and that the property should be hers and not the donor s. Under Ex. B the donor stipulated that the donee should protect him during his lifetime and maintain him and the recital in the document is that she is to have absolute right over the property subject to her maintaining him. This contention is not seriously pressed and it is not sustainable.

(3.) The most important contention in the case is that a gift under the Muhammadan Law is always revocable and that the donor in this case revoked the gift by a document Ex. IV nearly 8 years after the date of Ex. B. A very elaborate and learned argument was addressed to me on this point by Mr. Chenchiah. The principle deducible from the authorities is that if the gift is one made by a Muhammadan on account of natural love and affection he may revoke it. But, where the gift is burdened with something to be done by the donee, and if the donee does that which is required by the donor to be done, the gift becomes irrevocable. In this case the donee was asked to pay off the debts and look after the donor and maintaiu him and the evidence is that at least for 10 or 12 years the plaintiffs looked after him attending to his creature comforts and maintaining him. It is also in evidence that she was able to pay off his debts. In these circumstances, the question is whether the gift is revocable or irrevocable. Mr. Ameer Ali in his book on Muhammadan Law, Vol. I, page 165, discusses the question and observes: Where the condition has not that effect, where it forms in fact, the consideration for the grant and the gift is made on the express stipulation that the donee should do something or abstain from doing something or should give something in return for the gift, the contract is valid in its entirety. For example, if A were to convey B a property in consideration of B maintaining him during his lifetime or paying him, and after his death to his heirs, a fixed allowance, there is absolutely nothing illegal in the contract as the condition does not make the contract nugatory; and if the grantee obtains possession of the property upon that contract, the grantor or his heirs would have the right to enforce the performance of the covenant relating to the consideration against the grantee and all persons deriving title under him.