NASIB ALI Vs. WAJED ALI

JUDGEMENT

(1.) The plaintiff-respondent brought the present suit for khas possession basing his title upon a gift by the admitted owner of the property, Etim Meah, in favour of the plaintiff's vendors. The defendant denied the gift and claimed title under purchase from some of the heirs of Etim. The trial Court, on the evidence, found that the gift was not proved and dismissed the plaintiff's suit. On appeal the learned Subordinate Judge found upon the evidence on the record that the oral gift coupled with delivery of possession as alleged by the plaintiff, was satisfactorily proved and made a decree in his favour. This gift was made by Etim Miah on the eve of his departure for Mecca, where he subsequently died. The donees were the daughter's son of Etim. They were fatherless and were brought up from their childhood by him. Etim had a son to inherit his properties; and before he left for Mecca he made a gift of some of his properties in favour of his grandsons. About that time Etim also executed a deed of gift in favour of his grandsons, viz., on the day before his departure; but for some reason or other it was not registered. The learned Subordinate Judge is of opinion that the gift was complete as soon as there was delivery of possession by Etim and that the unregistered deed of gift should be left out of consideration as it could not he received in evidence under Section 49 of the Registration Act. I think that the view taken by the lower appellate Court is substantially correct and in perfect accord with the Mahomedan Law.

(2.) It is argued before us on behalf of the appellant that the deed of gift, not being registered under the Registration Act, is not admissible in evidence and no other evidence of the fact of the gift can be admitted under Section 92 of the Evidence Act. This argument is based upon the fallacious assumption that the gift was created by the deed. Under Section 123 of the Transfer of Property Act a gift must be made by an attested, registered instrument. But that section is not applicable to Mahomedans. That being so, the law that we have to follow in the present case is the Mahomedan Law. The essentials of a gift under the Mahomedan Law are a declaration of heba by the donor, an acceptance, express or implied, of the gift by the donee, and delivery of possession of the property, the subject-matter of the gift, according to its nature. A simple gift can only be made by going through the above formalities and no written instrument is required. In fact no writing is necessary to validate a gift; and if a gift is made by a written instrument without delivery of possession, it is invalid in law : see the case of Sudik Husain Khan V/s. Hashim Ali Khan and Ors. [1916] 38 All. 627. The position under the Mahomedan Law is this : that a gift in order to be valid must be made in accordance with the forms stated above; and even if it is evidenced by writing, unless all the essential forms are observed, it is not valid according to law. That being so, a deed of gift executed by a Mahomedan is not the instrument effecting, creating or making the gift but a mere piece of evidence. It may so happen after a lapse of time that the evidence of the observance of the above forms might not be forthcoming, so it is sometimes thought prudent; to reduce the fact that a gift has been made into writing. Such writing is not a document of title but is a piece of evidence.

(3.) The law with regard to the gift being complete by declaration and delivery of possession is so clear that in a case before their Lordships of the Judicial Committee Kamarunnissa Bibi v. Hussaini Bibi [1880] 3 All. 266, where a gift was said to have been made in lieu of dower, their Lordships held that the requisite forms having been observed it was not necessary to enquire whether there was any consideration for the gift or whether there was any dower due. The case of Karam Ilahi V/s. Sharfuddin [1916] 38 All. 212 is similar in principle to the present case. There also a deed relating to the gift was executed. The learned Judge held that if the gift was valid under the Mahomedan Law it was none the less valid because there was a deed of gift which, owing to some defect, was invalid under Section 123, Transfer of Property Act, and could not be used in evidence.