ARIYAKKANDY MUSTHAFA v. LAMBETH PUTHIYAPURAYIL RASIYA & ORS

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 19TH DAY OF JANUARY 2018 / 29TH POUSHA, 1939** **Mat.Appeal.No. 501 of 2010** **AGAINST THE JUDGMENT DATED 12-05-2010 IN OP 480/2006 of FAMILY COURT, KANNUR** ## **APPELLANT/RESPONDENT:** **---------------------** ## **ARIYAKKANDY MUSTHAFA,** **S/O.MOIDU,AGED 56 YEARS,"RUBY VILLA", LOADAKKUNNU, AZHIKODE,KANNUR.** **BY ADVS.SRI.P.M.PAREETH** **SRI.MOHAMMED SHAMEEL** ## **RESPONDENTS/PETITIONERS:** **------------------------** **1. LAMBETH PUTHIYAPURAYIL RASIYA & OTHERS, W/O.MUSTHAFA, AGED 48 YEARS, "THAVAKKAL"NEAR** - **KATTALANGARA PALLI, VALAPATTANAM P.O., KANNUR.** **2. ASHITHA, D/O.RASIYA,AGED 29 YEARS,** - **"THAVAKKAL" NEAR KATTALANGARA PALLI, VALAPATTANAM P.O., KANNUR.** **3. ANEESA,D/O.RASIYA, AGED 25 YEARS,** - **THAVAKKAL,NEAR KATTALANGARA PALLI, VALAPATTANAM P.O.,KANNUR.** **4. AFSHIN,D/O.RASIYA,AGED 21 YEARS,** - **"THAVAKKAL", NEAR KATTALANGARA PILLAI, VALAPATTANAM P.O., KANNUR.** **5. ARSHAD, S/O.RASIYIA, AGED 18 YEARS, THAVAKKAL",NEAR KATTLANGARA PILLAI, VALAPATTANAM P.O., KANNUR.** **6. RUBEENA, D/O.RASIYA, AGED 17 YEARS,(MINOR), THAVAKKAL, NEAR KATTALANGARA PALLI, VALAPATTANAM P.O., KANNUR.** **7. AFTHAB,S/O.RASIYA,AGED 15 YEARS,(MINOR)** - **THAVAKKAL,NEAR KATTALANGARA PALLI, VALAPATTANAM P.O., KANNUR.** ***ADDL. 8TH RESPONDENT IMPLEADED:** **--------------------------------** **T.P. VASUDEVAN, AGED 46 YEARS, S/O. NARAYANAN, THAZHEPADIKKAL HOUSE, KALARIVATHUKAL, VALAPATANAM, KANNUR IS IMPLEADED AS ADDL. RESPONDENT NO.8 AS PER ORDER DATED 18.08.2017 IN I.A. NO.2971 OF 2017.** **R1-4,6,7 BY ADV. SRI.N.M.MADHU** **R1-R4,R6,R7,R5 BY ADV. SRI.V.R.KESAVA KAIMAL ADDL.R8 BY ADV. SRI.K.ANAND** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **K. HARILAL & A.M. BABU,JJ.** **= = = = = = = = = = = = = = = = =** **Mat.Appeal No.501 of 2010** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 19[th] day of January, 2018_ ## **J U D G M E N T** ## **A.M. Babu,J.** Appellant is the respondent in O.P. No.480/2006 on the file of the family court, Kannur. Petitioners therein are respondents 1 to 7 herein. A third party to the proceedings got himself impleaded in the appeal as the additional 8[th] respondent. The original petition before the family court was one for partition of a property. The parties are referred to in this judgment as they are shown in the memorandum of appeal. 2. The case of respondents 1 to 7 is stated briefly as follows: The first among them is the wife of the appellant. The children of the couple are respondents 2 to 7. Parties are muslims. The marriage was on 04.11.1976. The appellant and respondents 1 to **Mat.Appeal No.501 of 2010** **-: 2 :-** 7 were residing under one roof. The appellant was cruel to the 1[st] respondent. The former was funded by the brother of the latter to discharge a debt. Therefore the appellant gifted his[7] /8 shares in the petition schedule property to respondents 1 to 7. A gift deed was executed on 24.07.1996. The donor retained[1] /8 share in the property with him. The original gift deed was handed over to the 1[st] respondent. The donor as well as the donees continued their residence in the petition schedule property. While so, the appellant wanted respondents 1 to 7 to vacate the house in the property. When that was refused, the appellant had taken the original gift deed by force. On 16.07.2006 respondents 1 to 7 were ousted from the house. The petition schedule property is liable to be partitioned to separate one out of eight shares of respondents 1 to 7. **Mat.Appeal No.501 of 2010** **-: 3 :-** 3. The appellant filed a counter-statement. His contentions go as under. All the allegations against him including cruelty are false. The spouse who was cruel to the other spouse was not the appellant, but the 1[st] respondent. The allegation that the petition schedule property was purchased with the funds provided by the brother of the 1[st] respondent is false. Equally false is the allegation that the said brother had funded the appellant to discharge debts. He himself raised funds and discharged his debts. The petition schedule property was always in the possession of the appellant. It was acquired by him with his own funds. A gift deed was executed by him as he was compelled to do so by the 1[st] respondent and her people. None of the alleged donees did accept the gift. They were not in possession of the petition schedule property at any point of time. Taxes and **Mat.Appeal No.501 of 2010** **-: 4 :-** cesses have been paid always by the appellant only. He is still in ownership and possession of the property. Respondents 1 to 7 have no manner of right in it. After the execution of the gift deed the 1[st] respondent and her relatives behaved cruelly towards the appellant and insulted him oft. He cancelled the gift deed by executing a deed of cancellation. 4. The appellant later amended his counterstatement to have the following contentions: The liability of the appellant to the Kannur district co-operative bank was closed by him and got released the petition schedule property from mortgage. The 1[st] respondent and her brother with the intention of defeating the claim of the bank over the property compelled and forced the appellant to execute a deed of gift in favour of respondents 1 to 7. They took him to the **Mat.Appeal No.501 of 2010** **-: 5 :-** sub-registry office and forced him to execute the gift deed. But he did not hand over the original gift deed to respondents 1 to 7. Later, the appellant cancelled the gift deed and burnt the original. The petition schedule property is the asset of the appellant alone. 5. The parties to the suit adduced evidence before the family court. AWs1 and 2 were examined and Exts A1 to A4 were marked on the side of respondents 1 to 7. RW1 was examined and Exts B1 to B8 were marked on the side of the appellant. 6. The learned judge of the family court went deep into the mahomedan law on gift and came to the conclusion that the disputed gift was valid and complete. Therefore a preliminary decree was passed directing division of the petition schedule property into eight equal shares for allotment of seven such shares to respondents 1 to 7 and the **Mat.Appeal No.501 of 2010** **-: 6 :-** remaining one share to the appellant. 7. We heard Sri P.M. Pareeth, the learned counsel for the appellant, Sri V.R.Kesava Kaimal, the learned counsel for respondents 1 to 7 and Sri K.Anand, the learned counsel for the additional 8[th] respondent. 8. The parties to the original petition are muslims. The appellant is the husband. The 1[st] respondent is the wife. Their marriage took place on 04.11.1976. Six children were born in the wedlock. They are respondents 2 to 7. There are a few allegations between the parties which the family court did not advert to rightly. As is stated by the family court, whether the appellant acquired the petition schedule property with his own funds or with the funds provided by the brother of the 1[st] respondent is quite irrelevant. Respondents 1 to 7 do not and cannot dispute the **Mat.Appeal No.501 of 2010** **-: 7 :-** fact that the property belonged to the appellant. Respondents 1 to 7 cannot set up the gift without admitting the title of the appellant to the property. We are also therefore not supposed to go into the question as to how could the appellant purchase the petition schedule property. 9. Only two questions are involved in the appeal. One, the validity of the gift allegedly made by the appellant in favour of respondents 1 to 7. Two, the effect of revocation pleaded by the appellant. 10. Ext A1 is the certified copy of the gift deed in question. Going by the contention of the appellant, he destroyed the original by burning it. Execution of Ext A1 gift deed is not a disputed fact. Its execution is admitted by the appellant in his pleadings. He amended his pleadings to contend that he was taken to the sub-registry office by **Mat.Appeal No.501 of 2010** **-: 8 :-** force to get Ext A1 executed and registered. But he did not carry his said contention to the witness box to depose. In cross-examination he admitted in black and white that he did execute Ext A1 gift deed. The evidence of the 1[st] respondent as RW1 proves the execution of the gift deed. Thus, execution of Ext A1 gift deed is an admitted as well as a proved fact. 11. The prime question is whether Ext A1 is a completed gift. The learned judge of the family court had gone through the different provisions of the mohamedan law on the subject. In this judgment we are referring to the book entitled 'MullaPrinciples of Mahomedan Law', 20[th] edition by Sir Dinshah Fardunji Mulla. Different numbered paragraphs are referred to in the book as sections. Sec.138 defines gift. 'Hiba' or gift as defined in Sec.138 is a transfer of property made **Mat.Appeal No.501 of 2010** **-: 9 :-** immediately and without any exchange by one person to another, and accepted by or on behalf of the latter. Sec.149 states that there should be three essentials for a muslim gift. They are (i) a declaration of the gift by the donor, (ii) an acceptance of the gift, express or implied, by or on behalf of the donee and (iii) delivery of possession of the subject of the gift by the donor to the donee. If these conditions are satisfied, the gift is complete. It is true that execution of gift deed or its registration may not, by itself, be sufficient to hold a muslim gift valid and complete. But, when a document is executed, it cannot be completely ignored also. The recitals in Ext A1 would show that there was an intention in the shape of a declaration to gift the property. The evidence of the 1[st] respondent as AW1 also proves the said fact. We are satisfied that one of **Mat.Appeal No.501 of 2010** **-: 10 :-** the three ingredients of a muslim gift is established. 12. The next ingredient is acceptance of the gift either expressly or impliedly by or on behalf of the donee. Going by the case of respondents 1 to 7, the gift was accepted by the 1[st] respondent for herself and also on behalf of her minor children. The learned counsel for the appellant submits that since the father of the minors was alive at the time of the gift, the mother of the minors was totally incompetent to accept the gift on behalf of the minors. Even if that argument is accepted, the gift in favour of the wife is not affected as she is competent to accept the gift for herself. 13. The next question is the competence of the 1[st] respondent to accept the gift on behalf of her minor children. The learned counsel for the **Mat.Appeal No.501 of 2010** **-: 11 :-** appellant has relied on the Supreme Court in _**Gulamhussain v. Abdulrashid**_ [(2000) 8 SCC 507]. It was held that a gift to a minor son accepted by the mother while the father was alive was not valid. The said decision is distinguishable on facts. That was a case where the donor was the grandfather, the donee was the grandson, the person who accepted the gift on behalf of the donee was the mother and the father was alive at that time. In the present case too the father of the minors was alive at the time of the gift. But, here, the father himself was the donor. It being so, he cannot accept the gift made by him. The mother of the minors was therefore competent to accept the gift. The decision of the Supreme Court referred to above which came in an altogether different fact situation and context would not come to the aid of the appellant. In an identical fact situation a learned single judge of **Mat.Appeal No.501 of 2010** **-: 12 :-** this court in _**Laila Beevi @ Laila Buhari v. N. Sumina @ Summayya**_ [2009(3) KHC 661] held that the mother was competent to accept the gift on behalf of her minor children. We are in agreement with the learned single judge. We hold that the 1[st] respondent was competent to accept the gift made in favour of her minor children on their behalf. 14. Now the question is whether the gift was accepted at all. Normally, when a gift is made, it is accepted. The reasons given by the appellant to contend that there was no acceptance were that the gift deed was in his possession, he was paying different taxes for the property, absence of mutation in favour of the alleged donees et cetera. In this connection one should keep in mind that the donor was the head of the family and as such he was doing everything for his family members. It should also be noted that the gift in question was a gift **Mat.Appeal No.501 of 2010** **-: 13 :-** where the donor himself retained a right in him in the property gifted. He retained[1] /8 right and gifted the remaining[7] /8 . The evidence of the appellant as RW1 suggests that he was doing everything for his wife and children. He stated that he was paying the tax at all times. Considering the close relationship between the donor and the donees and also considering the fact that the donor himself had retained a right in the gifted property, payment of tax by the donor and retention of the original gift deed with him are not sufficient to exclude the acceptance of the gift. In these circumstances, there is no room to suspect the evidence of PW1 that she accepted the gift for herself and on behalf of her children. 15. The last ingredient for completion of a muslim gift is delivery of possession of the subject of the gift by the donor to the donee. **Mat.Appeal No.501 of 2010** **-: 14 :-** Sec.150(1) of the book 'Mulla-Principles of Mahomedan Law' states that it is essential to a valid gift that there should be delivery of such possession as the subject of the gift is susceptible of. That means that the delivery of possession could be actual or even constructive. Therefore where physical delivery of possession is not possible, such possession as the property admits may be delivered. The donor must of course divest himself of his possession to complete the gift. But the position is slightly different when the gift is in favour of the wife by the husband or vice versa or by the father to his children. It should also be noted that the donor as well as the donees were residing in the property which was the subject-matter of the gift. Sec.152(3) of the aforesaid book states that no physical departure or formal entry is necessary in the case of a gift of **Mat.Appeal No.501 of 2010** **-: 15 :-** immovable property in which the donor and the donee are both residing at the time of the gift. It is also stated that in such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. Those aspects are proved in the present case by the admission of the donor himself. He spoke as RW1 that as per the gift deed[7] /8 shares of his were transferred to his wife and children. He spoke that one of the shares was retained by him. It was also his evidence that the bank to which the property was encumbered was not able to proceed against the property after the gift. That was a wrong understanding of law, but that was his belief. His such belief does suggest that even according to him the gift was complete. RW1 went on to say that he believed so since the **Mat.Appeal No.501 of 2010** **-: 16 :-** property was not his alone. According to RW1, after the gift the property was his, his wife's and his children's. RW1 added that it was a property in co-ownership. It was also his evidence that the factum of co-ownership was known to his wife and children. The evidence of RW1 discussed above would prove that there was constructive delivery of possession of the property to the extent of[1] /8 shares gifted. It is therefore futile to contend that there was no delivery of possession. 16. Sec.153 of Mulla's book states that the rule laid down in Sec.152(3) applies to a gift by a husband to his wife. We have already seen that there need be only a delivery of possession constructively. We have also said that constructive delivery of possession has been established. Sec.155 of the aforesaid book states about a gift to a minor by his father or guardian. The rule is **Mat.Appeal No.501 of 2010** **-: 17 :-** that no transfer of possession is required in the case of a gift by a father to his minor child or a guardian to his ward. It is also stated that all that is necessary is to establish a bonafide intention to give. We have discussed the evidence of RW1 which suggests compliance of Secs152(3), 153 and 155. As beautifully expressed by the Bombay High Court in _**Kaddeernbi v. Fatimabi**_ [AIR 1981 Bom.406] delivery of possession by father to his minor son is practically a delivery by the right hand to the left. The evidence satisfies us of delivery of possession of the property to the extent of the undivided[7] /8 interest of the donor constructively. 17. We are in complete agreement with the family court that there was a gift by the appellant in favour of his wife and children, that the gift was accepted by the wife for herself and on behalf **Mat.Appeal No.501 of 2010** **-: 18 :-** of the minor children and that possession was delivered constructively. We uphold the contention of respondents 1 to 7 that the gift was valid. We concur with and confirm the conclusion of the learned judge of the family court. 18. What was gifted was the undivided interest in a property. That is what is called 'mushaa' in muslim law. A valid gift may be made of 'mushaa' in a property which is not capable of partition (Sec.159 of the book). A gift of 'mushaa' in a property which is capable of division is irregular. It is only irregular (fasid) and not void (batil). Sec.160 of the book states that a gift of 'mushaa' in a divisible property being only irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. The irregularity goes when partition is effected. The suit of respondents 1 to **Mat.Appeal No.501 of 2010** **-: 19 :-** ## 7 is for partition. 19. The appellant raised a contention that he revoked the gift. Ext B2 is the document executed by him to cancel Ext A1 gift deed. Sec. 167 of Mulla's book is the relevant commentary to be looked into. Sec.167(1) states that a gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery of possession there is no completed gift. Sub-sec(2) of Sec.167 states that subject to sub-sec(4), a gift may be revoked even after delivery of possession except in eight cases enumerated thereunder. If the case falls under any of those eight cases, as seen from sub-sec(4) of sec.167, once possession is delivered, nothing short of a decree of a court is sufficient to revoke the gift. Sub-sec(2) states that when the gift is made by a husband to his wife or by a wife to her husband, it **Mat.Appeal No.501 of 2010** **-: 20 :-** cannot at all be revoked. Another instance is when the donee is related to the donor within the prohibited degrees of relationship. The completed gift cannot be revoked in such a case. The children are certainly within the prohibited degrees of relationship of the father under all personal laws including the muslim law. Ext B2 document of cancellation of gift is of no consequence. The same is liable to be ignored. 20. A stranger to the suit got himself impleaded in the appeal as additional 8[th] respondent. His learned counsel has submitted that a suit has been filed against his vendor for return of the sale consideration with compensation. We do not say anything about the said suit as we are not supposed to say anything. Let that suit be decided by the court in which it is pending. We only say that if the additional 8[th] respondent so chooses, he **Mat.Appeal No.501 of 2010** **-: 21 :-** may get himself impleaded in the application for passing final decree so as to get the[1] /7 share of the donor allowed to the former. 21. Having considered the pleadings and evidence in the case, we find little scope for interference with the decree granted by the family court. The appeal is without any merit. It deserves only a dismissal. However, we do not tax the appellant with costs considering his close relationship with respondents 1 to 7. 22. Dismissed. No costs. Sd/- **K. HARILAL,** **JUDGE** Sd/- **A.M. BABU, JUDGE** DST //True copy// P.A. To Judge