Abdul Latheef S/o Ismail v. Abdul Salam S/o Ismail and Abdul Karim S/o Ismail and Nazer S/o Mythene

R.S.A. No.361 of 2023 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 RSA NO. 361 OF 2023** **AGAINST THE JUDGMENT AND DECREE DATED 04.02.2023 IN AS NO.35 OF 2019 OF SUB COURT,KATTAPPANA ARISING OUT OF JUDGMENT AND DECREE DATED 22.08.2019 IN OS.40/2018 OF MUNSIFF COURT, IDUKKI** ## **APPELLANT/APPELLANT/PLAINTIFF:** **ABDUL LATHEEF S/O. ISMAIL, AGED 50 YEARS, ELAVUMTHADATHIL HOUSE, RAJAMUDY P.O., PATHINARAMKANDOM, VATHIKUDY VILLAGE, IDUKKI TALUK, IDUKKI DISTRICT, PIN - 685604** **BY ADVS.SRI GEORGE MATHEW SMT.ELSA DENNY PINDIS SRI M.D.SASIKUMARAN SRI SUNIL KUMAR A.G SRI MATHEW K.T. SRI GEORGE K.V. SRI STEPHY K REGI SRI ADARSH KURIAN MS.MEDHA B.S.** ## **RESPONDENTS/RESPONDENTS & ADDL.RESPONDENT/DEFENDANTS:** **1 ABDUL SALAM S/O. ISMAIL, AGED 64 YEARS, ELAVUMTHADATHIL HOUSE, KARIKODU P.O., UNDAPLAVU KARA, KARIKODU VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685584 2 ABDUL KARIM S/O. ISMAIL, AGED 68 YEARS, ELAVUMTHADATHIL HOUSE, KARIKODU P.O. UNDAPLAVU KARA, KARIKODU VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685584** R.S.A. No.361 of 2023 2 ## **3 NAZER** **S/O. MYTHENE, AGED ABOUT 53 YEARS, KOCHUKUDIYIL HOUSE, MURICKASSERY KARA, VATHIKUDY VILLAGE, IDUKKI TALUK, IDUKKI DISTRICT, PIN – 685604** **SRI K.R.PRATHISH (FOR CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2023, THE COURT ON 22.5.2024 DELIVERED THE FOLLOWING:** R.S.A. No.361 of 2023 3 ## **T.R. RAVI, J.** **--------------------------------------------** R.S.A. No.361 of 2023 -------------------------------------------Dated this the 22nd day of May, 2024 ## **JUDGMENT** The plaintiff has preferred this second appeal challenging the concurrent findings of the trial court and the first appellate court. The substantial questions of law which have been formulated in the Memorandum of Second Appeal are as follows: 1) Are the Courts below justified in dismissing the suit and appraised when it is specifically pleaded and proved that possession of the property as not been handed over to 1[st] defendant pursuant to Ext.A1? 2) Are the Courts below justification in dismissing the suit and appraised when it has been specifically pleaded and proved that necessary ingredients to constitute a gift is absent in Ext.A1? 3) Are the courts below justified dismissing the suit ignoring the admission made by late Sri.Ismail and 1[st] defendant with regard to Ext.A1? R.S.A. No.361 of 2023 4 2. It can be seen that the only contention of the appellant is that possession has not changed hands and hence Ext.A1 gift deed has not taken effect and is not valid, since it does not comply with the requirements of a valid Muhammadan gift. 3. I have heard the counsel for the appellant in detail and considered the judgments of the trial court and the first appellate court. 4. The plaintiff and defendants are brothers. Their father died on 02/12/2016. Three years prior to the death, the father had executed a registered gift deed document No.2906/2013 dated 07/11/2013, registered with the Sub Registrar’s Office, Rajakumari. It is the above said document, that is contended to be null and void, and not binding upon the paint schedule property. The trial court and the first appellate court have specifically found that the appellant’s father had settled his properties before his death, to his wife and children. The plaint schedule property is one of the properties that were settled in the name of the 1[st] defendant. On the very same day on which Ext.A1 was executed, the R.S.A. No.361 of 2023 5 appellant’s father had settled another 15 cents of land by document No.2905/2013 of SRO, Rajakumari. The appellant does not dispute the said document as one which has been executed by the father without really intending to be a settlement of his properties. The courts found that the appellant’s father had the necessary capacity to execute a document. There is no allegation that any fraud was committed in the Registrar’s office. It is also evident from Ext.A1 that the document was produced before the Registrar by the appellant’s father himself. As such, the validity of the execution of the document cannot be further challenged in this appeal. Then the only question is about the requirement of delivery of possession by the donor to the donee which is an essential element of a Mohammedan gift. 5. As per the renowned author Mulla on the principles of Mahomedan Law, a gift is a transfer of property, made immediately, and without any exchange, by one person to another, and accepted by or on behalf of the latter. It is further stated by the author that in every gift there should be a _bonafide_ intention on the part of the donor to transfer the R.S.A. No.361 of 2023 6 property from the donor to the donee. For the validity of the gift, the donor must divest himself completely of all ownership and dominion over the subject of the gift ( **Musammat Bibi v. Sheik Wahid** (A.I.R (1928) Pat.183). In Clause 149 of his book the author says that the three essentials of a gift are (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee. 6. In paragraph 150, the author says that it is essential to the validity of a gift that there should be a delivery of possession of the subject. The author says that as observed by the Judicial Committee, the taking of possession of the subject matter of the gift by the donee, either actually or constructively, is necessary to complete the gift. The author also says that registration of a deed of gift does not cure the want of delivery of possession. In paragraph 154 the author says that a declaration in a deed of gift that possession has been given binds the heirs of a donor. Reference has been made to the decision in **Muhammad Mumtaz v. Zubaida** R.S.A. No.361 of 2023 7 **Jan** (1889) 16 I.A. 205 and other cases. In **Ismail v. Idrish (A.I.R.1974 Pat.54)** it has been held that a recital in a deed of gift that the donor has divested himself and put the donees in possession binds the donor’s heirs even if one of the heirs is later found in possession. It was held that such a gift is valid. In **Abdul Sattar Ostagar v. Abu Bakkar Ostagar** (A.I.R. 1977 Cal.132) a Division Bench of the Calcutta High Court held that when a father makes a gift of the dwelling house to his sons, and both the father and the donees are residing in the house, there is no need for delivery of possession. Bearing in mind the above legal propositions, I shall examine the case on hand. 7. In the case on hand the courts have specifically found that the mother of the appellant who had given evidence as DW2 and the sister of the appellant who had given evidence as DW5 admit about the gift in favour of the 1[st] defendant. It can thus be seen that when constructive possession alone is required and there has been a properly executed and registered document whereby the property has been gifted to the 1[st] defendant, the gift cannot be nullified at R.S.A. No.361 of 2023 8 the instance of another heir of the donor on a contention that possession has not been handed over to the 1[st] defendant. When the gift deed specifically states about handing over possession, no further proof of delivery of possession is required, as far as another legal heir is concerned. The trial court and the First Appellate Court have considered the issue from the correct legal perspective and the decisions do not warrant any interference No grounds are made out. No substantial questions of law arise. The second appeal fails and is dismissed. Sd/- **T.R. RAVI JUDGE** mpm