1. The 1st defendant in O.S No. 208 of 1970 on the file of the Munsiff of Manjeri is the appellant in the second appeal. The suit was one for partition and separate possession of plaintiff's 2/9 share in the plaint schedule property by declaring that the plaint schedule property belonged to the plaintiff and defendants jointly and that the alleged gift deed in favour of the 1st defendant and sale deed in favour of defendants 4 and 5 were invalid in law. The trial Court has passed a preliminary decree for partition as prayed for with respect to items 1 to 9 in the plaint schedule. Though the 1st defendant carried the matter in appeal, by the judment in A.S No. 39 of 1974 the Subordinate Judge of Manjeri has confirmed the preliminary decree passed by the trial Court; hence this second appeal.
2. It is not in dispute that plaint schedule Items 1 to 9 belonged to Mammad, the father of the plaintiff and defendants 1 and 2. Item 10 also admittedly belonged to the said Mammad, and the challenge in the suit was that the alienation in favour of the defendants 4 and 5 ought to be set aside and that item also should be made available for partition. The trial Court has upheld the validity of the document under which the alienation in respect of Item 10 was effected by the said Mammad in favour of defendants 4 and 5. That finding is not under challenge in this second appeal, and herein we are concerned only with Items 1 to 9.
3. The said Mammad who admittedly was a widower died on 5-6-1970 leaving behind the plaintiff and defendants 1 and 2 who were his daughters and the 3rd defendant, the son of his brother as his legal heirs. The suit is seen to have been filed on 8-7-1970, nearly one month after the death of the said Mammad, the plaintiff claiming a share in Items 1 to 10 ignoring Ext. B-1 gift deed alleged to have been executed on 9-3-1970 in favour of the 1st defendant by her father and the said deed executed in favour of defendants 4 and 5 in respect of Item 10.
4. Sri Mohankumar, the counsel for the appellant submitted that the plaint proceeded on the footing that Ext. B-1 gift deed executed by Mammad, now deceased, was vitiated by the fact that the execution was during Merz-ul-Maut. This contention has been rejected by both the courts below. However, the preliminary decree has been passed by the trial Court, confirmed by the 1st appellate Court, on the sole ground that the gift was not complete in the sense that delivery of possession was not given by the donor to the donee.
5. Sri Mohankumar contended that the approach made by the courts below is evidently wrong. It is his submission that the evidence shows that Mammad and his daughter the 1st defendant were staying together for a considerable time. According to D.W 3 (1st defendant) for about 15 years, while P.W 2 would say that even for 40 years, the 1st defendant was staying with Mammad who had lost his wife about 45 years prior to the time when the witnesses were examined in court. He also submitted that the evidence shows that none among the daughters of Mammad other than the 1st defendant had been evincing any interest in his welfare so much so that none of them attended even the 1st defendant's wedding which took place some 15 years prior to the date of the suit. He also pointed out that it is in evidence that none among the daughters of Mammad cared to look after him during his old age and it was only the 1st defendant who had been attending on him and looking after him till his last days including when he was unwell towards the fag end of his life.
6. Sri Mohankumar submitted that there is intrinsic evidence in this case to show that actually possession had passed to the donee along with the execution of Ext. B-1 gift deed. D.W 3 had in her evidence spoken that she was in possession of the property. Exts. B-5 and B-6 revenue receipts both dated 28-3-1970 are also relied on to prove that possession had passed to the donee soon after the execution of Ext. B-1 gift deed. He would, therefore, contend that all the requirements of a gift under the Mahomedan Law, namely, declaration by the donor, acceptance by the donee and delivery of possession by the donor to the donee have been complete in the present case and therefore, the courts below were in error in decreeing the suit for partition. It is contended by him that the courts below have overlooked the fact that the 1st defendant the donee and Mammad the donor were staying together in the same house for a considerable time and as a matter of fact in such situation it was not strictly necessary to undergo any particular formality regarding the delivery of possession of the property gifted. In this context reliance was placed by him on what has been stated by Mulla on Mahomedan Law (Section 152, cl. (3)), which reads as follows:—
“(3) Where donor and donee both reside in the property.— No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating 3 clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift.”
The dictum laid down by Madhavan Nair J. in AIR 1933 Mad 86 and the observations of the Supreme Court in Katheessa Umma v. Narayanathu Kunhamu, (AIR 1964 SC 275) have also been relied on by him. On a careful consideration of the provision of law as enunciated in Mulla's Mohammedan Law and the decisions referred to me I am of the opinion that what has been stated in clause (3) of Section 152 of the Mohammedan Law would be applicable only to cases where the subject matter of the gift was the immovable property in which the donor and the donee were residing at the time of making the gift. I do not think that the principle laid down therein could be extended to cases where the subject-matter of the gift was something other than the immovable propery in which the donor and the donee were residing.
7. On behalf of the respondents Sri P.N Krishnankutty Achan has argued that the requirements of a gift under the Mohommedan Law are rigid in nature with respect to declaration, acceptance and delivery, and if any one of them is lacking the gift deed fails. In this case, according to him, the 1st defendant's case was that there was an oral gift earlier followed by Ext. B-1 which is in the nature of a ratification document and, therefore, the plea is inconsistent; the property having been already given possession to the donee, nothing remained to be given to her following the execution of the document. It is also submitted by him that in the cross-examination of the 1st defendant (D.W 3) she had admitted that till his death the properties were in the possession of Mammad himself. In this case there is no dispute regarding the execution or genuineness of Ext. B-1 gift deed. With respect to its validity the sole contention raised by the plaintiff and the 2nd defendant was that it was hit by Merz-ul-Maut which plea has been rejected by the courts below. The only surviving question for consideration is whether the gift deed is vitiated by the non-fulfilment of any one of the requirements, namely, declaration, acceptance and delivery. The stress of the argument on behalf of the respondents is that there had not been delivery of possession by the donor to the donee as required under the provisions of the Mohammedan Law. The courts below took the view that delivery was not effected following the execution of Ext. B-1 or in pursuance thereto because the 1st defendant's case was that an oral gift had already taken place under which she was put in possession of the property. If as a matter of fact, even prior to the execution of the document, the 1st defendant was in possession of the property as allowed by the donor, it was only the nominal right that the donor was retaining with him that was required to be delivered to the donee. In other words, if the khas possession was already with the donee, what was required to be given by the donor was only the remaining rights. That could be done by mere declaration and by the execution of the document, as no other overt act is necessary. No doubt, the document Ext. B-1 does not refer to the oral gift or giving possession of the property earlier; but the document is categorical that possession has passed to the donee and that the donor had not retained any right whatsoever in the property. That apart, P.W 1 who is the son-in-law of the plaintiff and D.W 1 the 2nd defendant who supported the case of the plaintiff, would say that the 1st defendant was in possession and management of the property even before the death of Mammad. This lends support to the case of the 1st defendant that she was actually in possession and enjoyment of the property, taking income therefrom and with which income she was looking after Mammad. Exts. B-5 and B-6 tax receipts in the name of the 1st defendant soon after the date of execution of Ext. B-1 and before the death of Mammad also would strengthen the case of the 1st defendant that the property was actually given possession to her. Her stating in the cross-examination that her father was in possession of the properties till his death cannot be taken in its literal sense considering the fact that she is only a house wife with very little or no formal education. It has also to be remembered that an item of property was actually disposed of by Mammad a few days prior to his death and it might as well be that it was with reference to that item or such items, if any, that the answer was given by the 1st defendant as D.W 3.
Taking all these facts and circumstances into account I am of the view that the gift deed Ext. B-1 was a valid one made in favour of the 1st defendant by her father Mammad, and the courts below were in error in concluding that it was invalid for the reason that it was not complete in the sense that delivery did not follow the execution of the document. I, therefore, allow the second appeal setting aside the judgments and decree of the courts below, and direct the parties to bear their respective costs throughout. The suit shall stand dismissed.
Appeal allowed.