KADARBHAI GULAMHUSEIN Vs. NANIBIBI

JUDGEMENT

(1.) This second appeal raises an interesting point of Mahomedan law. The question is, whether the deed of gift, Exhibit 55, dated January 9, 1909, by one Ismail in favour of his wife Nanibibi, Defendant No. 7, is a valid gift under Mahomedan Law. That in its turn depends on whether possession, actual or constructive, was given to the donee. Both the lower Courts have upheld the deed of gift, and dismissed the plaintiffs suit, who are claiming against the deed of gift.

(2.) The donor died some eighteen months after the gift, viz., on June 25, 1920. Although his widow, as I have already said, is a defendant to the suit, and. although the defendants have expressly pleaded in their written statement that possession was delivered on the date of the deed, the widow has not gone into the witness-box. Nor has any oral evidence been called by her to testify as to any change of possession, or to the handing over of the title-deeds, or as to any application to change the names of the owners or occupiers in the Municipal looks or otherwise. Accordingly, the defendants solely rely on this deed as the evidence in their favour, and have thus exposed themselves to the presumption under Section 114, Illustration (g), of the Indian Evidence Act, that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.

(3.) In our judgment that presumption ought to be made in the present case. We cannot regard it as any excuse that a certain purshis which was put in during the proceedings Exhibit 40, contained a statement, which it is alleged before us, misled the pleader in the trial Court into not calling any evidence. The case, therefore, in the first instance, depends largely on the true construction of the deed of gift, and in particular on the last two lines, viz., And my right to live in the property till life has been reserved. And you are to take possession of the said property after my death.