Mr.Syed Ahamed v. Sabiya Natchial

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 15.06.2012CORAMTHE HON'BLE MR.JUSTICE S.PALANIVELUA.S.No.466 of 20081.Mr.Syed Ahamed2.Mr.Syed Haja3.Mr.Abdul Azeez... Appellants/Defendants in Trial CourtVs.Sabiya Natchial ... Respondent/Plaintiff in Trial CourtFirst Appeal filed under Section 96 of C.P.C. against theJudgment and decree, dated 28.09.2007, in O.S.No.32 of 2006, on thefile of the Additional District Court, Puducherry, Karaikal. For Appellants : Mr.S.SountharFor Respondent: Mr.Sai Krishnan for M/s. Sai Bharath IlanJUDGMENT The suit is filed for a suit for partition of ¼ share inthe suit property in favour of the plaintiff. The defendants arethe appellants herein. The present appeal is filed against thejudgment and decree passed by the learned Additional DistrictJudge, Puducherry, wherein the learned Judge has directed thedefendants to divide the suit property into four equal shares andallot one such share to the plaintiff.2. Following are contents contained in the plaint:The plaintiff is the legally wedded wife of the 1stdefendant as per Islamic rites and terms. The marriage contractbetween the plaintiff and the 1st defendant was entered intobetween them on 18.1.2001 under a registered "Kalyana Kaditham"before the Assistant Regional Kajiar Haji S.M.Basheer Maricar ofKaraikal. The 1st defendant gifted 1/4th share of the undividedproperty entitled by him from his deceased first wife Hariunnisa,which was in joint possession of him with other defendants anddelivered joint possession to the plaintiff and put her inpossession of the same in pursuance of the gift deed mentioned asKalyana Kaditham. There is an entry in the Kalyana Kaditham that https://hcservices.ecourts.gov.in/hcservices/ the 1st defendant has to enjoy the property till his life time andthe plaintiff files the copy of the said Marriage Kaditham. Theplaintiff is entitled to the absolute rights on the propertiesgifted to her by the 1st defendant. The suit properties are coveredby the sale deeds dated 22.10.1982 vide document No.680/1982,681/1982 registered with Sub Registrar, Karaikal and the documentNo.345/1978 registered with Sub Registrar, Thirunallar in relationto the suit properties standing in the name of the 1st wife of the1st defendant viz., Hairunnissa. There were minor misunderstandingsbetween the defendants 2 and 3 and they instigated 1st defendant tocreate a problem in the matrimonial living and enjoyment of thesuit properties. A notice demanding partition and division of theproperties to the defendants was issued on 17.3.2006 which was dulyacknowledged by them. Hence the plaintiff is constrained to filethe suit for partition of 1/4th share. 3. The averments in the written statement by the defendants 1and 3 are as follows:-The alleged gift had been made for Mahr. In her pre-suitnotice the plaintiff has stated that by virtue of her KalyanaKaditham, the 1st defendant gifted his 1/4th share in the undividedproperty inherited by him from his deceased first wife anddelivered possession. The gift purported to have been made underthe Kalyana Kaditham is not valid in law. Under the Mohammedan law,three essentials are required to make a valid gift. They are 1)Declaration of gift by the donor(IJab), 2) Acceptance of the giftby the donee (Qabul); and 3) Delivery of possession (Qabda). Theplaintiff had never in joint possession and enjoyment of the suitproperties with the defendants as co-owners. The alleged gift deedis also hit by the doctrine of Mushaa. The plaintiff has no locusstandi to file the suit. There is no cause of action for the suit.The description of the suit properties are not correct. The suit isnot properly valued and proper court fee is not paid. Hence theypray for dismissal of the suit.4. The learned Trial Judge has passed a preliminary decree forpartition, as prayed for. Hence, the appellants/defendants arebefore this Court with this Appeal. 5. Heard the learned counsel for the appellants and thelearned counsel for the respondent.6. The following points have arisen for consideration in thisAppeal:-i) Whether Ex.A1 Kalyana Kaditham viz., thegift deed made by the first defendant in favour ofthe plaintiff, at the time of their marriage isconforming to the principles of Muslim Law and https://hcservices.ecourts.gov.in/hcservices/ whether it is a valid one ?ii) Whether the plaintiff is entitled topartition, as prayed for?iii) To what relief is the parties are entitledto?Points No.1 to 3:7. The plaintiff is the second wife of the first defendant,whose marriage contract was entered into between them, by means ofa Kalyana Kaditham, dated 18.1.2001, before the Assistant RegionalKajiar of Karaikkal. By means of this document, which is an un-registered gift deed, the first defendant in lieu of mahr giftedaway his undivided 1/4th share in the immovable propertiesmentioned in the document in favour of plaintiff. One Hairunnissawas first wife of the first defendant. The suit properties belongedto her. After her death, the first defendant married the plaintiff.It is profitable to have extraction of the recitals in Ex.A1, andits English translation which are as follows:-"fhiuf;fhy; tz;of;fhu tPjp vz;.7/ tPl;oypUf;Fk;mg;Jy; m$P!; b$hfuh gPtp Mfpnahu;fspd; Fkhuu; Ik;gJ taJcwdgp kjcwigr; nru;e;j \d;whk; tpthf khg;gps;is bra;aJmcwkJ kzhsUf;Ffhiuf;fhy; ju;kg[uk; bjw;F bjU 246k; vz;tPl;oypUf;Fk; my;yhgpr;ir ryhk;j ehr;rpahu; Mfpnahupd;Fkhuj;jp ,Ugj;jpvl;L taJ cwdgp kjcwigr; nru;e;j ,uz;lhk; tpthfg; bgz; rgpah ehr;rpahs; kzhspia tpthfk;Kof;f fhiu ju;kg[uk; kzhspapd; ,y;yj;jpy; Toa Cu;cwtpd; rig Kd;Df;F khg;gps;isa[k; bgz;Qqk; bgz;zpd; jfg;gDk;Xu;kpj;Jf; bfhz;L fh$pahuhfpa ek;ik vGjr;brhd;d fypahzfojkhtJ khg;gps;isg; bgz;Qqf;F kcwuhf fhy";brd;wjdJ Kjy; kidtp ,g[whk; rh Fkhuj;jp icwUd;dpdrht[f;Fbrhe;jkhf ,Ue;J mtu; kuzj;jpw;Fg; gpd; vdf;Fk; vdJkfd;fs; ,UtUf;Fk; bghJtpy; brhe;jkhf ,Ue;J tUfpd;wfPH;fz;l brhj;Jf;fspy; vdf;F khu;f;fg;go fpilf;Fk;fhy;ghf brhj;Jf;fis ,e;j bgz;Qqf;F khw;wf;Tlhj kcwu;ed;bfhilahff; bfhLj;J mtuplk; mitfis ,g;nghnjxg;gilj;Jtpl;nld; vd;Wk; ed;bfhilg; bgw;Wf;bfhz;ltu;ed;bfhil bgw;Wf;bfhz;l brhj;Jf;fis ,d;WKjy; jdf;Fbrhe;jkhd bghUisg;nghy; ru;t Rje;jpu ghf;fpaj;Jld;jhdhjp tpdpka tpw;fpua';fSf;F nahf;fpakha; Mz;LmDgtpj;Jf; bfhs;fpwbjd;Wk; Twp jhd; jd; Ma[s;tiu https://hcservices.ecourts.gov.in/hcservices/ nkw;fz;l brhj;Jf;fis mDgtpj;J tUfpwbjd;Wk; Twpdhu;."7.(a) The English translation of the above said Tamil versionis as follows:"For the bridegroom by name Syed Ahmed, aged50 years belonging to Hanafi Madhhab, S/o AbdulAziz and Jaharaa Beevi, residing at No.7,Vandikkara Street, Karikal,In the presence of gathering of the peopleof the Village, convened at the house of thebride at Door No.246, South Street, Dharmapuram,Karaikal, it is proposed to give in marriageSafia Nachiyal, aged 28 years, belonging toHanafi Madhhab, second daughter of Allah Pitchaiand Salamath Nachiyal, residing at the aforesaidaddress.The bridegroom, the bride and the father ofthe bride expressed their unanimous consensus andasked myself (Assistant Regional Kajiyar), towrite the Marriage Letter (Kalyana Kaditham). The bridegroom told that he inherited theproperties after the death of his first wifeHairunnisa, daughter of Iburam Sha, and the sameis in joint possession of the bridegroom and histwo sons who were born through his first wife andhe has given the properties as Mahr to his secondwife for the marriage which is non-transferrablein nature and the donee from today shall enjoythe properties absolutely with all powers ofalienation and he would enjoy the properties tillhis life time." 8. On the strength of abovesaid document, the plaintiff seekspartition in respect of her 1/4th share in the suit properties.9. The defendants 2 and 3, are sons of the first defendant,through his first wife/Hairunnisa. 10. Ex.A1, receives a scathing attack from the side of thedefendants on the ground that it does not satisfy the legalrequirements, as codified in the Mahomedan Law. Section 285 of theMahomedan Law defines the term "dower" as Mahr or dower a sum ofmoney or other property, which the wife is entitled to receive fromthe husband in consideration of the marriage. It clarified that the https://hcservices.ecourts.gov.in/hcservices/ dower or mahr may be given in specified sum of money or any kind ofproperty, whether movable or immovable property. Section 149contemplates three essential ingredients of a gift, which areextracted hereunder:-" i) A declaration of gift by the donor, ii) An acceptance of the gift, express, or implied, by or on behalf of the donee,andiii) Delivery of possession of the subject of the gift by the donor to the donee." If the said conditions are complied with, the gift is complete.11. Mr.S.Sounthar, the learned counsel for the appellantswould contend that, by reading of the recitals in Ex.A1, eventhough, it appears that the first two conditions are satisfied, thethird condition, viz., delivery of possession was not effected,that in fact, it could not be effected, since the property is anundivided share of the first defendant and the plaintiff could notbe put into physical possession of the property. 12. The next limb of the contention of the learned counsel forthe appellants is that, Ex.A1, is a gift of immovable property inlieu of mahr and if delivery is intended to be effected, it shouldhave been registered under Section 17 of the Indian RegistrationAct and Section 54 of the Transfer of Property Act and since, it isan unregistered document, it is not valid in the eye of law. 13. Repelling the contentions of the learned counsel for theappellants, Mr.Sai Krishnan, the learned counsel for the respondentwould argue that the parties to the document, an husband and wifeand since they are residing in the house mentioned in the giftdeed, constructive delivery would be sufficient to satisfy therequirements of law, that, a mere reading of recitals wouldcandidly reveal that the share of the first defendant wastransferred to the plaintiff and that, as per the settled positionof law, a Muslim Gift, even though, it is a mahr with respect toimmovable property, it does not call for registration as per theMahomedan Law.14. The learned counsel for the appellants, in support of hiscontention garners support from a decision of this Court, reportedin 89 Law Weekly 378, in the case of [Muthuirulan Servai Vs. ChanBibi and others] wherein, this Court has dealt with a circumstance,wherein, a registered deed is required for a Muslim gift. It isanswered by this Court that, Mahr as a valid consideration for a"sale" has been recognized under Mahomedan Law; such transaction isa "sale" within the meaning of Section 54 of the Transfer ofProperty Act and will not be valid, unless, accompanied by a https://hcservices.ecourts.gov.in/hcservices/ registered document, and that, it has to be held that the gift isinadmissible in the absence of registration. 15. In the judgment reported in A.I.R. 1978 Patna 197 [TheCommissioner of Income Tax, Bihar, Patna Vs. Sayed Saddique Imamand others] it has been observed by the Full Bench as follows:-"As a result of the aforesaid discussions,it is manifest that a gift in lieu of dower debtis not a true hiba-bil-ewaz, but, really a saleand has to be by a registered instrument, asrequired under Section 54 of the Transfer ofProperty Act, if the immovable propertytransferred is valued more than Rs.100/- . Thisis in consonance with the decisions of the otherHigh Courts as well. I would accordingly hold, in all respect tothe learned Judges, that Tax case No.10 of 1968has not been correctly decided and the decisionin Mahomedan Usman Khan's case (AIR 1949 Pat 2370has correctly laid down the law"16. In the judgment reported in A.I.R.1991 Patna 183 ( Mosst.Saimunissa Vs. Sk.Mohiuddin and others] also the same view has beenreiterated.17. The learned counsel for the respondent placed relianceupon a latest decision of the Hon'ble Supreme Court reported in2011 4 C.T.C. 675 [Hafeeza Bibi and others Vs. Shaikh Farid (dead)by LRs and others] in which, it has been held that, it is not therequirement that in all cases, where the gift deed iscontemporaneous to the making of the gift, then such deed must beregistered under Section 17 of the Registration Act and each casewould depend on its own facts. Their Lordships have expressedagreement with the following proposition of Mahomedan Law and heldthat, it is not necessary in every case that it is sine quo nonfor a Muslim gift of property, there must be a registration underSection 17 of the Registration Act. Following is the legalposition contained in the principles of Mahomedan Law, as extractedby the Hon'ble Apex Court in the said decision in paragraph No.28:-"Mulla's Principles of Mahomedan Law (19thEdition) Page120, states the legal position in thefollowing words;-"Under the Mahomedan law the three essentialrequisites to make a gift valid: (1) declaration ofthe gift by the donor; (2) acceptance of the giftby the donee expressly or implicitly; and (3)delivery of possession to and taking possessionthereof by the donee actually or constructively. Nowritten document is required in such a case. https://hcservices.ecourts.gov.in/hcservices/ Section 129, Transfer of Properly Act, excludes therule of Mahomedan law from the purview of Section123 which mandates that the gift of immovableproperty must be effected by registered instrumentas stated therein. But it cannot be taken as a sinequa non in all cases that whenever there is awriting about a Mahomedan gift of immovableproperty there must be registration thereof.Whether the writing requires registration or notdepends on the facts and circumstances of eachcase" 18. Taking advantage of all these observations, the learnedcounsel for the appellants would contend that, as far as the factsprevailing in this case are concerned, registration is warrantedfor Ex.A1 gift. But, in view of the law contained in the abovesaid principles of Mahomedan Law, as accepted by the Hon'ble ApexCourt, this Court holds that Ex.A1 is not compulsorily registrableand even without registration, it is valid. This Court is of theopinion that in the facts available, there is no need forregistration.19. Much was argued about the validity of the gift as regardsdelivery of possession. It is also contended on the appellants'side that in Ex.A1, the first defendant has retained life interestin his share of property to be enjoyed by him till his life timeand after his life time, the plaintiff had to take absolutely, andhence, it is not practicable to hand over possession to theplaintiff, even though, it is recited in the document that he hastransferred his share to the plaintiff. 20. In this context, the Court has to have an indepth studyinto the relevant provisions contained in the principles ofMahomedan Law. Section 150 deals with the delivery of possession,which provides that the taking of possession of the subject matterof the gift by the donee, either actually or constructively" isnecessary to complete a gift. Further, excerpts to the provisionscontained in 19th Edition of the principles of Mahomedan Law byMulla would go to show that delivery of possession of a gift may beactual or constructive. When physical delivery of possession is notpossible, constructive possession in the property may be effected.The donor must, of course, divest himself of his possession tocomplete the gift. The document, embodying a declaration that theproperty gifted has been delivered, if given and accepted by thedonee is tantamount to accepting delivery of the gifted property. 21. Section 152 deals with the delivery of possession ofimmovable property which reads as follows:-"A gift of immovable property of which the https://hcservices.ecourts.gov.in/hcservices/ donor is in actual possession is not complete,unless, the donor physically departs from thepremises with all his goods and chattels and thedonee formally enters into possession. Section152 (3) contemplates that " where donor anddonee both reside in the property, no physicaldeparture or formal entry is necessary in thecase of a gift of immovable property in whichthe donor and the donee are both residing at thetime of the gift. In such a case, the gift maybe completed by some overt act by the donorindicating a clear intention on his part totransfer possession and to divest himself of allcontrol over the subject of the gift. (i) Theprinciple for the determination of question ofthis nature was thus stated by West J., in aBombay case that "when a person is present onthe premises proposed to be delivered to him, adeclaration of the person previously possessedputs him into possession without any physicaldeparture or formal entry."22. Adverting to the oral evidence on record, relating to thedelivery of possession of the property, D.W.1, the first defendantwould say in his cross examination that the contents in KalyanaKaditham are genuine and they are acting as per the recitals, thatas per the recitals, he delivered his 1/4th share in the propertyas gift to his wife/plaintiff and that he did not pay usufructs toher when she was with him. 23. The above said evidence on the part of the firstdefendant divulges a fact that he had intention to deliver hisshare to his wife and accordingly, he transferred the same andthat, the parties are acting as per the stipulations mentioned inthe gift deed. The Trial Court has referred and followed a FullBench decision of Privy Council reported in A.I.R. 35 1948 PrivyCouncil 134 in the case of [ Nawazish Ali Khan Vs. Ali Raza Khan]wherein, Their Lordships have observed that English Law recognizesownership of land limited in duration, Muslim law admits onlyownership unlimited in duration, but recognizes interests oflimited duration in the use of property. Further observations ofTheir Lordships in the said decision are as follows; "What Muslim Law does recognize and insistupon, is the distinction between the corpus of theproperty itself ( ayn) and the usufruct in theproperty (manafit). Over the corpus of property thelaw recognizes only absolute dominion, heritable andunrestricted in point of time; and where a gift ofthe corpus seeks to impose a condition inconsistent https://hcservices.ecourts.gov.in/hcservices/ with such absolute dominion the condition isrejected as repugnant; but interest limited in pointof time can be created in the usufruct of theproperty and the dominion over the course takeseffect subject to any such limited interests "24. In A.I.R. 1979 Madras 193 [ Jameela Beevi Vs. Sheik Ismail] principles of law have been formulated as follows:-'' A life estate does not militateagainst the validity of the gift because thecorpus of it is absolutely given over to anamed individual and the condition whereby theincome should be enjoyed either by the donor orhis nominee does not detract from or violatethe essence of a valid gift. It in a givenillustration the subject matter of the gift issliced away by the donor, or the condition orrestriction contemporaneously imposed by thedonor is so obvious that one would not acceptit as a valid gift. The reason is obvious. Byimposing such a restriction as above, theentirety of the property which is the subjectmatter of the gift is not given away but only aportion thereto. This is not possible to makeit a valid gift. If however the restriction orthe condition is such whereby a right to enjoythe income from the gifted property iscontemplated, and whether such enjoyment is bythe donor or by his nominee, it would not betantamount to the taking away of a portion ofthe corpus of the property, but, it is only atemporary right to enjoy the usufructtherefrom."25. In view of the above said illuminating judicialpronouncements and the salient features in Muslim personal law, itcomes to light that life estate could be created in gift and it isonly temporary right to enjoy the usufruct, which would not betantamount to the taking away of a portion of the corpus of theproperty, where creation of limited interest in a gift by theMuslim is legally permissible.26. In the above circumstances, in the light of the legalposition holding the field, it is held that delivery of possessionof 1/4th share in the suit property was delivered to the plaintiffby the first defendant and that, only for the purpose of enjoyingthe usufructs, the first defendant retained corpus of the propertyand it is only a temporary right to enjoy the usufructs, which isrecognised by Mahomedan Law. It transpires that the first https://hcservices.ecourts.gov.in/hcservices/ defendant intended to make the plaintiff to become absolute ownerof his 1/4th share in the properties and hence the gift in herfavour is completed. In such view of this matter, I do not findany infirmity either legally or factually in the judgment of theCourt below which deserves to be confirmed and it is accordinglyconfirmed. I answer this point as above.27. In the result, the Appeal Suit is dismissed without costs.Connected M.P.is closed.dp/ggsSd/-Asst. Registrar(W)//True Copy//Sub Asst. RegistrarToThe Additional District Judge,Puducherry, Karaikal. Copy to:The Section Officer,VR Section, High Court,Madras 104.+ 1 cc to Mr. Sai Bharath Ilan, Advocate SR No.33841+ 1 cc to Mr. S. Sounthar, Advocate SR No.34155JP(CO)SR/3.8.2012.judgment inA.S.No.466 of 2008