This appeal arises out of a suit filed by the first respondent herein for a declaration of her title to the suit property and for a permanent injunction restraining the appellants and respondents 2 and 3 herein from interfering with her possession and enjoyment of that property. The first appellant herein (the first defendant) is the mother-in-law of the first respondent herein and the second appellant and respondents 2 and 3 are the sons of the first appellant.

The allegations in the plaint are that the suit property originally belonged absolutely to the first appellant (first defendant). Sometime before the marriage of the first respondent with the son of the first appellant, first appellant executed a gift deed, Ex. A-1, dated 1st June, 1955, in her favour with a direction that the first respondent (daughter-in-law) should discharge the debts to the extent of Rs. 700 and that after the marriage she would be entitled absolutely to the suit property. Accordingly, the marriage took place with the son of the first appellant, who is not a party to the suit. The first respondent entered into possession of the suit property. Ever since her marriage, she has been in continuous and exclusive possession of the suit property, but allowed her mother-in-law and her husband's brothers to remain in the house. Taking advantage of the situation, they began to interfere with her possession and enjoyment, with the result she had to file the suit, out of which the second appeal has arisen, for declaration of title and injunction.

The suit was resisted by the appellants and the second and third respondents (mother-in-law and her sons) that the suit property was originally purchased benami in the name of the first appellant (mother-in-law) the consideration for the sale price being contributed by her sons, that the gift deed was not acted upon, and, in any event, possession was not delivered to the first respondent (daughter-in-law); on the other hand, they continued to be in possession of the suit property. They further contended that the gift deed was invalid and illegal under the Mohammadan Law, that it was not binding on them and that the first respondent had no title to the suit property. On these pleadings, the parties went to trial.

The questions that arose for consideration in the trial Court were, whether the property belonged absolutely to the first defendant or belonged jointly to the defendants 1 to 4 and the husband of the plaintiff, whether the gift deed dated 1st June, 1955 relied on by the plaintiff was true, valid and binding on the defendants, whether possession was not delivered to the plaintiff on the date of gift and if so the gift was not valid, and incidentally whether the plaintiff was in sole possession of the suit property on the date on the suit. The trial Court, after considering the oral and documentary evidence in this case, found that the property had been purchased by the defendants jointly in the name of the first defendant, that the plaintiff had not established possession on the date of the gift deed and that the plaintiff was not entitled to the relief claimed in the plaint. In the end, the District Munsif dismissed the suit of the first respondent. But on appeal, the learned Subordinate Judge on a reconsideration of the evidence on record came to the conclusion that the property was not purchased benami, that the first defendant was the real owner of the property, that the gift in favour of the daughter-in-law was Hiba-bil-iwas and not Hiba and that there was delivery of possession in favour of the plaintiff. In the result, the suit was decreed as prayed for. Now the first defendant (mother-in-law) and one of her sons have filed the present appeal.

Mr. Ahmed Meeran, learned Counsel for the appellants, contended that the suit property belonged to all the defendants, that the defendants were in possession of the property along with the plaintiff, that possession was not delivered to the plaintiff on the alleged gift deed and that the gift deed itself was not valid and that therefore the suit was not maintainable.

I am not going to interfere with the finding of fact, viz., that the sons of the first appellant did not prove that they provided the necessary funds for the purchase of the suit property banami in the name of their mother. When the first appellant executed the gift deed, two of her sons attested it. The lower appellate Court was, therefore, right in coming to the conclusion on overwhelming evidence that there was no benami purchase and that the first defendant (first appellant) was the real owner of the suit property.

Once I come to the conclusion that the first appellant was the real owner and was in absolute possession of the suit property, the only question for consideration is whether the gift deed executed by her is valid according to Mahomedan Law. Learned Counsel for the appellants contended before me that the lower appellate Court erred in setting up a new case and construing the gift as Hiba-bil-iwas as the first respondent never put forward the ease in her plaint that the gift was hiba-bil-iwas, and that therefore it was not necessary for her to prove possession at the time of the gift deed; nor was it necesary for her to prove that the gift deed was accompanied by possession of the suit property. Learned Counsel cited textual authority to prove that the gift deed in question is not hiba-bil-iwas but hiba or simple gift. According to Mulla, a hiba-bil-iwas is a gift for consideration, which is in reality a sale and has all the incidents of a contract of sale and accordingly possession is not required to complete the transfer as it is in the case of a hiba. Learnel Counsel contended that in the instant case, it was a simple gift, hiba, and ih the case of hiba, it was absolutely necessary that possession should accompany the gift deed and once ic was proved that possession was not delivered, tt cannot be treated as a valid gift. There may be some force in the contention urged by learned Counsel, but I am not convinced with the arguments.

In Tajunnisa Bivi Ammal v. Rahmath Bibi Ammal(1), Ramachandra Iyer, J. (as he then was) had to consider, more or less on similar facts, whether the gift deed there was a hiba-bil-iwas or hiba. Now, it is necessary for me to state the facts of that case, as I am entirely relying on that decision as an authority for the disposal of the case before me. The plaintiff in that case filed the suit to recover possession of the suit properties from the defendant, who was her mother's sister. The defendant's son was married to the plaintiff. Just before the marriage, the defendant effected a settlement by way of a gift of the suit properties on the plaintiff, in consideration of the marriage. The document was executed two days prior to the marriage. Subsequently, the husband abandoned tha plaintiff and had taken another wife. The plaintiff, therefore, filed the suit, for recovery of possession of the suit properties, from her mother-in-law. The suit was resisted on the ground that the gift was sham and not intended to be acted upon and that it could not validly convey the properties, as possession of the properties was not given to the plaintiff on the date of the gift. The learned Judge construed the document as a hiba-bil-iwas, and he extracted the definition of hiba-bil-iwas from Mulla's Mahomedau Law, 14th Edn. at page 155 in S. 168. The learned Judge obsered that promise to marry had been recognised as a valid consideration, and that could particularly be so whan under the Mohamedan Law the concept of marriage was that it was only a contract, and that therefore when the plaintiff (in the case cited) agreed to marry the defendant's son, there was sufficient consideration for the defendant to execute a settlement deed. The learned Judge observed :

“Anything which is a valid consideration under the law would be an iwaz, and therefore would constitute proper consideration for a hiba-bil-iwaz. Applying that test I am of opinion that in the present case the settlement deed Ex. B. 1, is only a hiba-bil-iwaz, the consideration thereof being the agreement to marry the defendant's son. In such a case even if there had been no delivery of possession, the gift would be valid and the plaintiff would be entitled to maintain the suit for ejectment.”

In the instant case, the gift deed came into existence just a few days before the marriage. The first appellant really intended to give her property to her brother's daughter. She intended to give away the suit property to her brother's daughter, as she had made the necessary arrangements to marry her to her third son. The marriage took place a few days after the execution of the gift deed. The plaintiff entered into possession of the suit property, by discharging the debts as directed by her mother-in-law, by paying the house-tax, in any event, from 1955, and also by exercising rights of ownership. In regard to possession of the suit property, it is seen that the property, at the time of the gift deed, was already under a usufructuary mortgage to one Nallasivan Chettiar and the donee was directed to discharge the debts. Before the gift deed, the first appellant (mother-in-law) was treated as a tenant under Nallasivan Chetttar. When she discharged the usufructuary mortgage, it must be deemed that she got possession of the property from the othidar through the help of her father. The lower appellate Court came to the right conclusion that the plaintiff was in possession of the suit property at the time of the institution of the suit. Still learned Counsel for the appellants would contend that it was proved beyond doubt that the first appellant and her sons continued to live in the suit house along with the first respondent and that therefore the first respondent was not in exclusive possession of the suit property and hence could not file the suit for an injunction restraining the defendants from interfering with her possession. Here again, I am not able to follow the reasoning of learned Counsel, because once it is proved that the first appellant intended to give away or convey the ownership of the suit property to her daughter-in-law, she is no longer the owner in legal language, The daugter-in-law, on account of the nearness of the relationship, allowed her mother-in-law and her husband's brothers to remain in the house. Because of that, they cannot assert that they are entitled in law to be in possession of the suit property. Their possession is not possession by right but possession by permission only. They are not within their legal rights to be in possession of the house. The lower appellate Court, therefore, came to the right conclusion, when it found that the first respondent herein (plaintiff) had established title and possession and that therefore she was entitled to the relief of declaration and injunction.

In the result the second appeal is dismissed. This is a fit case where each party should bear its costs throughout. No leave.

V.C.S