P.M. UMMUL FAIZA and MOHAMMED AZEEM v. AKBAR QUARASHI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 22ND DAY OF JANUARY 2016/2ND MAGHA, 1937** ## **RSA.No. 1337 of 2014 (A)** **-----------------------AGAINST THE JUDGMENT & DECREE IN AS.NO. 334/2012 OF SUB COURT, KANNUR AGAINST THE JUDGMENT & DECREE IN OS.NO. 64/2011 OF ADDL. MUNSIFF COURT, KANNUR** **------------------** ## **APPELLANTS/APPELLANTS/DEFENDANTS :** **----------------------------------------------------------------** **1. P.M.UMMUL FAIZA, AGED 63 YEARS D/O.LATE SATHAR, NO OCCUPATION, RESIDING AT FABEENA MUZHATHADAM, KANNUR - 670 002.** **2. MOHAMMED AZEEM** - **AGED 44 YEARS, S/O.P.M.UMMUL FAIZA, MEDICAL PRACTITIONER RESIDING AT FABEENA, MUZHATHADAM, KANNUR - 670 002.** **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT/RESPONDENT/PLAINTIFF :** **--------------------------------------------------------------** **AKBAR QUARASHI, AGED 48 YEARS, S/O.K.T.EBRAHIM, ENGINEER RESIDING AT KANNUR - 1 AMSOM, MUZHATHADAM P.O.CIVIL STATION, KANNUR – 670 002.** **BY ADVS. SRI.C.KHALID SRI.V.P.MAHAMMOOD SRI.K.P.MOHAMED SHAFI SRI.PHIJO PRADEESH PHILIP SRI.K.REEHA KHADER SMT.K.S.HASEENA SMT.K.K.NESNA** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-01-2016, THE COURT ON 22-01-2016 DELIVERED THE FOLLOWING:** **Mn** ## **C.R.** **P.B.SURESH KUMAR, J. -----------------------------------------------** **R.S.A. No.1337 of 2014 -----------------------------------------------** ## **Dated 22[nd] January, 2016** ## **J U D G M E N T** The defendants in a suit for mandatory injunction are the appellants. 2. The first defendant is the mother of the plaintiff and the second defendant is the brother of the plaintiff. The suit property belonged to Ebrahim, the father of the plaintiff and the second defendant. Ebrahim divorced the first defendant. After the divorce, the first defendant filed O.S.No.124 of 2007 for a declaration of her right in the suit property and for a prohibitory injunction restraining Ebrahim from evicting her from the building in the suit property. The case set up by the first defendant in O.S.No.124 of 2007 was that the suit property was acquired by Ebrahim making use of her money also. The case of the first defendant that the suit property was purchased making use of her money also was not RSA 1337 of 2014 2 accepted by the court in O.S.No.124 of 2007. Consequently, the declaration of title sought by the first defendant over the suit property was declined. The first defendant was, however, granted a decree in the said suit restraining Ebrahim from evicting her from the suit property otherwise than by due process of law. Later, Ebrahim filed O.S.No.447 of 2007 for recovery of possession of suit property from the first defendant. During the pendency of the said suit, the suit property was transferred by Ebrahim to the plaintiff as per Ext.A6 gift. Since the suit property was gifted to the plaintiff, Ebrahim did not pursue O.S.No.447 of 2007. Consequently, O.S.No.447 of 2007 was dismissed as not pressed. The present suit was filed thereupon by the plaintiff seeking a decree of mandatory injunction directing the defendants to surrender vacant possession of the suit property to the plaintiff. The defendants resisted the suit. The contention raised by the defendants in the written statement was that Ext.A6 gift is invalid as the plaintiff has not obtained possession of the suit property from the donor as per the terms of the gift. The trial court rejected the RSA 1337 of 2014 3 contention raised by the defendants and decreed the suit. Though the matter was taken up in appeal by the defendants, the appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court. The defendants, who are aggrieved by the concurrent decisions against them, have come up in this second appeal. 3. Heard the learned counsel for the appellants as also the learned counsel for the respondent. 4. The learned counsel for the appellants, relying on the decision of the Apex Court in **Rasheeda Khatoon v. Ashiq Ali** [(2014)10 SCC 459], contended that to be a valid gift under the Mohammedan law, three essential features, namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied. According to the learned counsel, it was found in O.S.No.124 of 2007 that the first defendant is in possession of the suit property and as such, the plaintiff cannot be heard to contend that he has obtained possession of the suit property as RSA 1337 of 2014 4 per the terms of the gift relied on by him. The learned counsel also contended, relying on the admission made by the plaintiff while giving evidence as PW1, that the plaintiff did not get possession of the suit property at the time of execution of Ext.A6 gift deed. According to the learned counsel, in so far as the plaintiff has not obtained possession of the suit property, the gift in his favour is invalid and therefore, the suit filed on the strength of the said gift is liable to be dismissed. The learned counsel for the appellants also pleaded that if the contention raised by them as aforesaid is not found acceptable, the defendants may be given a reasonable time to vacate the suit property. 5. The learned counsel for the respondent did not seriously dispute the contention raised by the learned counsel for the appellants that the plaintiff did not obtain possession of the suit property at the time of execution of Ext.A6 gift deed. On the other hand, he contended that the defendants are not entitled to impugn the validity of Ext.A6 gift. According to the learned counsel, the question whether possession has been RSA 1337 of 2014 5 delivered is relevant only when an issue is raised between the donee or those claiming under him on one side and the vendor or those claiming under him on the other. It was pointed out by the learned counsel that when a gift is otherwise proper, a stranger cannot contend that the gift is bad because there has been no delivery of possession. He relied on the decision of the Madras High Court in **Kairum Bi v. Mariam Bi** (AIR 1960 Madras 447) in support of the said contention. 6. In the light of the rival submissions made at the Bar, the question falls for consideration is as to whether persons other than parties have the locus standi to challenge the validity of a Mohammedan gift on the ground that there has been no delivery of possession by the donor to the donee. Paragraph 20 of the judgment in **Kairum Bi v. Mariam Bi** (supra) reads thus : “20. One final observation must be made and it is this. The question whether possession has been delivered is relevant only when an issue is raised between the donee or those claiming under him on the one side and the donor or those claiming under him on the other. Where a gift is otherwise proper a stranger cannot invoke the rule that the gift is bad because there has RSA 1337 of 2014 6 ## been no delivery of possession” The decision in **Kairum Bi v. Mariam Bi** (supra) was rendered following the earlier decisions in **Kalu Beg Afzalbeg v. Gulzarbeg Lal Beg** (AIR 1946 Nagpur 357) and **Halimbi v. Rahmatali** (AIR 1940 Nagpur 70). A close reading of the aforesaid decisions indicates that the view taken therein on the point is perfectly in order, for, upholding of the invalidity of the gift would not confer on the objector any right over the property gifted. As far as the present case is concerned, the defendants are not the donors of the suit property. They are also not claiming under the donor of ExtA6 gift. In the circumstances, they do not have the locus standi to challenge the validity of ExtA6 gift. If the defendants do not have the locus standi to challenge the validity of Ext.A6 gift, the contention raised by the learned counsel for the appellants is only to be rejected. 7. The first defendant is none other than the mother of the plaintiff. As such, having regard to the relationship between the parties, I deem it appropriate to grant RSA 1337 of 2014 7 to the first defendant a period of one year from today to vacate the suit property. In the result, the second appeal is dismissed with the above modification. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)