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  • Devadoss, J.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The opinion arises from an appeal in which the appellants challenged aspects of a suit brought by the plaintiff concerning property and alleged trespass. The plaintiff had previously been the recipient of a deed of gift (referred to as Ex. B) from a Muhammadan donor and had at some point executed another document (Ex. II). The plaintiff remained in possession of the property until 1914, when she complained of trespass by Defendants Nos. 1 to 3. The appellants raised several points in the appeal, some of which were not pressed in the court of first instance. The District Judge had earlier held that appellants could not raise points in appeal that were not put forward in the lower Court. The appeal considered (inter alia) whether the plaintiff's title or possession was affected by these documents and whether, under Muhammadan law, the gift was revocable.

Legal Issues Presented

  1. Whether the plaintiff had parted with her right to the property under Ex. II such that she lacked standing to bring the suit.
  2. Whether Ex. B (a deed described as a gift from a Muhammadan) conferred full and irrevocable title on the plaintiff or was merely a deed of management and therefore did not give the plaintiff entitlement to the property.
  3. Whether, under Muhammadan law, a gift that is alleged to be revocable becomes irrevocable when the donee performs the condition(s) attached to the gift (e.g., maintaining the donor, paying debts).
  4. Whether delivery of possession — including in circumstances where parts of the property were mortgaged or occupied by tenants — was sufficient to perfect the gift (including gifts of the equity of redemption).
  5. Whether the fact that the donee belonged to a different religion (a non-Muhammadan recipient of a Muhammadan's gift) takes the transaction outside the ordinary incidents of Muhammadan law relating to gifts.

Arguments of the Parties

Arguments Presented by Mr. Chenchiah (for the appellants, as described)

  • The plaintiff had executed Ex. II and thereby parted with her right to the property, so she had no right to bring the suit; this point was not specifically raised in the first Court but appeared in grounds of appeal to the lower appellate Court.
  • The gift under Ex. B was only a deed of management and did not confer full title on the plaintiff.
  • The general principle of Muhammadan law is that a gift by a Muhammadan is revocable; in this case the donor purported to cancel the gift by documents (Ex. III and later Ex. IV), and thus the gift was revoked.
  • No effective delivery of possession was given to the plaintiff; specifically, because the donor continued to live in the house, there was no delivery of possession to the donee.
  • A further contention: a mortgagor out of possession cannot give possession of the equity of redemption, so gift of equity of redemption is not possible where the mortgagee is in possession.

Arguments Presented by Mr. Ghenchiah

  • Addressed a "very elaborate and learned argument" on the revocability point — i.e., that a gift by a Muhammadan is generally revocable and that the donor had purported to revoke in this case (by Ex. III and Ex. IV).

Arguments Presented by Mr. Somayya

  • Urged that when a Muhammadan makes a gift to a person governed by a non-Muhammadan personal law, the incidents of Muhammadan law might not continue to apply to the gift after completion; relied on Mr. Tyabji's text for this proposition.
  • Contended (in relation to the debts) that the plaintiff may have used her own funds to pay off the donor's debts (in contrast to the suggestion that debts were paid out of the gifted property).
  • Argued that where one of several gifted items is actually delivered, the whole gift should be treated as valid.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Casamally Jairajbhoy v. Currimbhoy Ebrahim Beaman, J.'s observation that the general rule of revocability in Muhammadan law is open to numerous exceptions. The court used this to support the proposition that the general rule of revocability admits exceptions relevant to the present gift.
Abirjan Bewa v. Sheikh Kabil (abbreviated) Fulfilment of the terms of a gift brings the case within an exception to the general rule of revocability. The court cited it to show that performance of the donee's obligations can render a Muhammadan gift irrevocable.
Authorities quoted from Mr. Ameer Ali (book on Muhammadan Law) Where a gift is made on express stipulation (e.g., donee to maintain donor), the stipulation operates as consideration and the contract is valid in its entirety; the grantee obtaining possession enables enforcement of the covenant. The court relied on the principle to hold that where the donee performed the stipulated obligations, the gift became irrevocable.
Cases cited in support of the proposition that donee from a different personal law might change incidents (Tyabji cited) Passage in Tyabji's Principles of Muhammadan Law: where a Musalman makes a gift to a donee governed by non-Muhammadan law, the subject may not continue to be subject to incidents of Muhammadan law after completion. The court considered but declined to accept the view that mere difference of religion alone displaces ordinary incidents of Muhammadan law; held that after gift takes effect the devolution would be governed by personal law of the donee but would not automatically remove the gift from Muhammadan incidents at the outset.
Bava Saib v. Mahomed Held that the mere fact that a gift was made by a registered instrument does not of itself make it valid. The court cited the case as supporting the appellants' contention that formality alone (registration) does not validate a gift; but the court ultimately distinguished and did not adopt this as decisive here.
Randath Veettil Bava v. Musoliam Veettil Pakrukutti Held that the donor's continued residence with the donee does not necessarily indicate non-delivery of possession. Applied to support the conclusion that the donor's living with the plaintiff after the gift did not preclude delivery of possession where intention and other acts showed transfer.
Mandy Abdul Rahiman Saheb v. Hussain Saheb The question whether there has been complete delivery of possession is one of fact to be determined by intention and contract; formal departure by donor is not necessary. The court used this to support its factual finding that possession had passed to the plaintiff despite donor's continued presence.
Alla Pichai Tharaganar v. Mahomed Moideen Held that donor's mere living in the gifted house does not suffice to make possession remain with donor. Applied as authority consistent with the court's finding that possession had passed to the plaintiff.
Fakir Nynar Mahamed Rowther v. Kandasawmy Kulathu Vandan Possession required for a gift need only be such as the nature of the subject admits of. The court cited this to justify that where physical delivery is impracticable (mortgage, tenants), such possession as the property admits (e.g., collection of rents, eventual redemption) suffices.
Muhammad Mumtaz Ahmad v. Zubaida Jan (Privy Council) Land in possession of tenants may be the subject of a valid gift; the donor need give such possession as the property is capable of; if donee cannot receive rents at that time gift may still be good; redemption by donee suffices to validate gift. The court relied on this Privy Council holding to support the validity of a gift where parts of the property were in tenants' or mortgagee's possession and where the donee redeemed the property.
Tara Prasanna Sen v. Shaudi Bibi Gift considered a voluntary contract which, without consideration, is not enforceable unless accompanied by possession; possession means such possession as the nature of the subject admits of. The court cited this case to reinforce the principle that possession adequate to the nature of the property is sufficient to perfect a Muhammadan gift even when a mortgagee was in possession of part of the land.
Chandsaheb Kashimsaheb v. Gangabai Vishnu Deed of gift must be looked at as a whole; gift of equity of redemption together with completed gift of remaining lands can be valid. The court adopted the principle to hold that where some items could be delivered and others were mortgaged but later redeemed, the gift overall should be regarded as valid.
Mohammad Abdul Ghani Khan v. Fakir Jahan Begam Similar judicial view to uphold gifts that include mortgaged lands when looked at as whole. Used to support the same line of authority adopted by the court to sustain the gift.
Hashimbi Yakubsaheb Beg… v. Ajamatbi Maktumsaheb… Donee got possession of one item through the mortgagee after donor's death but was given other items on or soon after date of gift; gift of all items including mortgaged one was held valid. Applied as consistent authority that redemption after the gift (and subsequent possession) can validate the portion that was mortgaged at the time of the gift.

Court's Reasoning and Analysis

The court proceeded through a sequence of reasoned determinations strictly tied to the facts and the textual authorities cited:

  1. On the Ex. II contention: the court noted that the point that the plaintiff had parted with her right under Ex. II was not specifically raised in the court of first instance. The District Judge had held that appellants could not raise that point in appeal because they had not advanced it earlier. The court observed that this contention would depend on facts that should have been proved in the first instance and therefore refused to allow the appellants to raise it at the appeal stage.
  2. Possessory standing and trespass: the court accepted that even if Ex. II had been executed with intention to convey, the plaintiff had remained in possession of the property until 1914 and thus could maintain the suit on a possessory title; Defendants Nos. 1 to 3 were trespassers and could not rely on the title of the true owner to defeat a possessory suit.
  3. Nature and effect of Ex. B (the gift): the court examined the recitals of Ex. B and concluded the donor intended the donee to have full title, subject to the donee maintaining and protecting the donor during his lifetime. The most important legal question was whether, under Muhammadan law, the gift—allegedly subsequently revoked by the donor—was irrevocable because the donee had fulfilled the conditions.
  4. Revocability principle and exception: relying on authorities and doctrinal exposition (including Mr. Ameer Ali), the court set out the legal principle that while a gift by a Muhammadan is generally revocable, an exception exists where the gift is made on express stipulation (consideration) and the donee performs the stipulated obligations. In that case the gift becomes irrevocable.
  5. Application to the present facts: the court found credible evidence that the plaintiff attended to the donor's creature comforts, maintained him, and discharged debts for "at least for 10 or 12 years"; also evidence indicated she was able to pay off his debts and, importantly, that she redeemed property before 1908. On these facts the court concluded the plaintiff had acted up to the terms of Ex. B and so the gift became irrevocable.
  6. Payment of debts: the court held it was immaterial whether the debts were discharged out of the gifted property or out of the plaintiff's own funds; the operative fact was that she discharged the debts as required by the donor under Ex. B, satisfying the condition.
  7. Possession: the court rejected the appellants' argument that no delivery of possession occurred merely because the donor continued to reside in the house. The court emphasized that the test is the donor's intention and the facts; where the donor intended to divest himself of property and the donee took possession (including transfer of pattah, collecting produce), the mere co-residence did not negate transfer of possession.
  8. Equity of redemption and mortgaged items: recognising that some items were in the possession of a mortgagee or tenants, the court applied the principle that possession required for a gift is such as the nature of the subject admits of. The court cited authorities (including the Privy Council) that a gift of land in the possession of tenants or of a mortgaged estate can be valid if the donee is given such possession as the property admits of — for instance, by collecting rents or redeeming the property — and noted there was evidence the plaintiff redeemed the property before 1908.
  9. Aggregated gifts where some items are deliverable and others not: the court accepted the view that the deed should be looked at as a whole and that where the donor intended the whole gift to be valid, the court should avoid declaring part of the gift invalid merely because some items were not immediately deliverable; it applied recent Bombay High Court authority to this effect.
  10. Overall conclusion of analysis: taking the deed, the recitals, the conduct of the plaintiff (performance of the stipulated obligations and acts of possession), and the relevant authorities together, the court concluded that the gift under Ex. B had become irrevocable and that the plaintiff had sufficient possession and title to sustain the suit.

Holding and Implications

Holding: The appeal is dismissed (in the result the appeal fails and is dismissed with costs).

Implications:

  • The direct effect is that the judgment below (which upheld the plaintiff's entitlement to maintain the suit on the basis of possessory title and the validity/irrevocability of the gift under Ex. B) is affirmed by dismissal of the appeal.
  • The court found that the plaintiff's performance of the conditions attached to the gift (maintenance of the donor and payment of debts, and redemption of mortgaged items) rendered the gift irrevocable under the applicable principles of Muhammadan law.
  • The opinion does not purport to create a new legal precedent beyond applying existing authorities and principles to the facts; it affirms the applicability of the exceptions to the general rule of revocability and the principle that possession adequate to the nature of the property suffices to perfect a gift.

This summary is confined to and derived exclusively from the material contained in the provided opinion.

Show full summary ...

    Ajagar Hazar Saheb v. Chedalavada Annammah

    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 thedonor 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. 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. Ghenchiah. 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.

    3. In this case the grantor purported to cancel the gift by a document Ex. Ill, dated 21st April 1908. In that, he did not specifically complain that he was not maintained, and by another document, dated 30th September, 1908, he cancelled the so-called cancellation deed, and by Ex. IV, dated 3rd August, 1912, he purported finally to cancel the gift deed. The question is, did the plaintiff act up to the terms of the gift deed Ex. B? If so the gift became irrevocable and the donor was not justified after the donee had fulfilled her part of the contract in revoking the gift made by him in consideration of the donee looking after him and attending to his creature comforts and maintaining him. In this view, I do not think it necessary to consider in detail the various cases quoted by Mr. Ghenchiah as well as by Mr. Somayya.

    4. With regard to payment of debts the contention of Mr. Ghenchiah is that they were paid out of the property gifted to the plaintiff. Whether that was so or not and whether as contended by Mr. Somayya the plaintiff put in her own funds for the purpose of discharging the debts is immaterial, she was asked to discharge the debts and she did what she was required to do. It is immaterial wherefrom the fund came, for it was not stipulated that she should pay the debts out of her separate property.

    5. With regard to the general power of a Muhammadan to revoke a gift, Beaman, J., in Casamally Jairajbhoy v. Currimbhoy Ebrahim(1) observes:

    It is true that this general rule like everything else in the Muhammadan Law which has yet come under my analysis, is open to innumerable exceptions many of which appear to conflict in principle with the main rule.

    6. And fulfilment of one of the terms of the gift deed by the douse brings the case within one of the exceptions to the general rule: see Abirjan Bewa…Plaintiff v. Sheikh Kabil…Defendant .(2).

    7. It is urged by Mr. Somayya that when the gift is made by a Muhammadan to a follower of another persuasion, the Muhammadan Law relating to gifts is not applicable to such a case, and he relies upon a passage in Mr. Tyabji's book on Principles of Muhammadan Law, S. 354 at page 388. There the learned writer lays down:

    Where a Musaalman makes a gift to a donee who is governed by a law of property other than Muhammadan Law the subject of gift… may not continue to be subject to the incidents of Muhammadan Law after the completion of the gift.

    8. He relies upon three cases in support of this position; if the learned author meant to say that the moment a Muhammadan makes a gift to a non-Muhammadan the ordinary principles governing gifts by Muhammadans do not apply to such a gift, I am not prepared to hold that the authorities relied upon by him do support him. After the gift takes effect and the donee gets possession of the property given, the law that governs the devolution of the property would be the personal law of the donee, but I am not prepared to hold at this stage that the mere fact that the donee is a person belonging to a different persuasion, by itself, is sufficient to take the gift out of the ordinary incidents of the Muhammadan Law relating to gifts.

    9. The next contention urged by Mr. Chenchiah is that no possession was given in this case and, therefore, the gift did not become a valid gift. No doubt, under the Muhammadan Law delivery of possession is necessary in order to make a gift valid. In this case the evidence is that the plaintiff was living with the donor for a number of years and she was, no doubt, his mistress. She was a married woman with children and she evidently forsook her husband and children and lived with a Muhammadan who was an old man in consideration of his giving something to her and after she lived with him for a number of years he made a gift of his property to her. After making the gift he, no doubt, lived with her in the house. Mr. Chenchiah's argument is that inasmuch as he lived with her, it must be held that he did not deliver possession to her. We have to see what the intention of the donor is. From Ex. B it is quite clear that he divested himself of all his property and that he wanted to be maintained by the plaintiff. That being so, can it be reasonably contended that his mere living in the house meant that she had no possession of the house? When a man makes a gift of property to a near relation who is living with him the mere fact that he happens to live with him after the gift is made is not a sufficient circumstance to hold that possession did not pass. Each case would depend upon its circumstances. If the intention of the donor is clear that the donee should have possession of the property, the mere fact that the donor happens to live after the date of the gift with the donee in the house which is the subject of the gift would not by itself entitle the Court to hold that possession had not passed and that possession remained with the donor. As I have said, from the facts of this case and from the nature of Ex. B, and from the subsequent documents to which the donor was a party such as Exs. III and F, possession of the house as well as other properties was given to the plaintiff and the continued to be in posaeasion and pattah for the lands was transferred in her name. From the evidence it is clear that she collected and took the produce to the house. In this view of the facts it is not necessary to consider in detail the cases quoted on both sides.

    10. Mr. Chenchiah relies upon Bava Saib v. Mahomed(3) and Vahazullah Sahib v. B. Nagayya(4), as supporting his contention. In Bava Saib v. Mahomed the gift was by a woman to her nephew and it was held that the mere fact that a gift was made by a registered instrument would not make it valid. In Randath Veettil Bava v. Musoliam Veettil Pakrukutti(5) a Muhammadan mother gave to her daughter house and lands and put her in possession of the lands and got the name changed in the register. It was held that the mere fact that the mother continued to reside with her daughter was not sufficient to constitute a non-delivery of possession so as to invalidate the gift. In Mandy Abdul Rahiman Saheb v. Hussain Saheb(6), it was held that the question whether there has been a complete delivery or not in a particular case is a question of fact to be determined with regard to the intention and contract of the parties and the nature of the property concerned in each case. It is not necessary in every case that the donor should formally depart from the premises which is the subject of the gift and that there should be a formal entry on the part of the donee. In Alla Pichai Tharaganar v. Mahomed Moideen(7) it was held the mere fact that the donor happened to live in the house which was the subject of the gift would not be sufficient to make the possession of the house that of the donor.

    11. The next contention is that there cannot be a gift of the equity of redemption, as for a valid gift by a Muhammadan there must be actual and physical delivery of possession of the property which is the subject of the gift. A mortgagor out of possession cannot deliver possession to the donee. In this case only two items (1 and 2) were in the possession of the donor. With regard to possession of these two items, it is urged that it was not possible for the donor to give possession because the mortgagee was in possession and, therefore, the gift did not take effect with regard to them. In Fakir Nynar Mahamed Rowther v. Kandasawmy Kulathu Vandan(8), Abdur Eahim, J., observes at page 130 (35M):

    It is, however, to be observed that so far as the text already referred to is concerned, its requirement would be satisfied if such possession is given to the donee as the nature of the subject of the gift admits of.

    12. Where the estate is gifted by a Muhammadan and it is not possible to give physical possession, if the donee is allowed to collect the rents and profits, that would be sufficient delivery of possession under the Muhammadan Law. It was held by the Privy Council in Muhammad Mumtaz Ahmad v. Zubaida Jan(9) that the land in the possession of the tenants could be the subject of a valid gift and all that is required by the donor in order to perfect the gift is to give such possession as the property is capable of. If the property is in the possession of tenants and if the donee is unable to receive the rents and profits of the property even then the gift would be good; and in the case of a mortgage when the term expires or when the time for redemption accrues, if the property is redeemed by the donee I think that would be sufficient in order to validate the gift; under the Muhammadan Law. In this case there is evidence that the plaintiff redeemed the property before 1908.

    13. In Tara Prasanna Sen v. Shaudi Bibi(10) a Muhammadan mortgaged some of the lands to a third person putting the mortgagee in possession, and while the mortgagee was in possession he made an oral gift to a person and got that person's name recorded in the Settlement Record, and also put him in physical possession of one of the properties, namely, the homestead. A Bench of the Calcutta High Court held that the gift was valid in law and that in order to properly appreciate the judicial idea of gift as conceived by Muhammadan jurists, it is to be borne in mind that the gift is considered a class of contract, but as it is a voluntary contract without consideration, it is not enforceable unless accompanied by possession in which case the devolution or transfer of right to the property becomes complete. By possession in connexion with the law of gift is meant such possession as the nature of the subject of the gift is capable of.

    14. A further argument is put forward by Mr. Somayya to meet this contention, namely, that when one of several items is delivered the whole gift becomes valid. The answer to that by Mr. Chenchiah is that the Court must distinguish between that portion of the gift which is valid and the portion of the gift which cannot be valid under Muhammadan Law. But in all these cases the Court should take such a view as would be consonant with the condition and state of society existing. Where a person makes gift of certain items some of which he cannot at once deliver into the hands of the donee, it would not be right to hold that the whole gift is invalid or that portion of gift relating to the property which could not be delivered into the hands of the donee is invalid. It would be against; the clear intention of the donor to declare that a portion of the gift is invalid when he intended that the whole of it should be valid. I think this is the principle of the recent decisions of the Bombay High Court in Chandsaheb Kashimsaheb v. Gangabai Vishnu(11), where it was held that the deed of gift must be looked at as a whole, and that so viewed the gift of the equity of redemption coupled with the completed gift of the remaining lands was a valid gift in law. In that case a Muhamadan female who owned five lands made a gift of them to the plaintiff's father. At the date of the gift she had possession of only two lands and a moiety of the third land. These were immediately put in possession of the donee. The remaining lands had been mortgaged by her to the defendants who retained their possession under the mortgage. The same view was held in Mohammad Abdul Ghani Khan v. Fakir Jahan Begam(12). In Hashimbi Yakubsaheb Beg… v. Ajamatbi Maktumsaheb….(13) the donee got possession of one item through the mortgagee after the donor's death. But he was given possession of the other items of property on the date or soon after the date of the gift. It was held that the gift of all the items is valid including that over which there was a mortgage at the time of the gift and which was redeemed after the donor's death. In this case the redemption was in the lifetime of the donor and I think the principle of these decisions is applicable to the present case and, therefore, this contention on behalf of the appellants must fail. In the result the appeal fails and is dismissed with costs.

    15. Appeal dismissed.

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    Ajagar Hazar Saheb v. Chedalavada Annammah
    (May 4, 1926)