R. Ganesan & R. Vijayakumar v. Kasi Rama Iyer Harihara Sundaram Iyer & others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 17TH DAY OF NOVEMBER 2017/26TH KARTHIKA, 1939 AS.NO. 217 OF 1996 ( ) --------------------- AGAINST THE JUDGMENT IN O.S. NO.249 OF 1988 OF PRINCIPAL SUB COURT, KOLLAM DATED 09-02-1996 APPELLANTS/DEFENDANTS 6 AND 7: ----------------------------- 1. R.GANESAN, LEKSHMI BHAVAN, RESIDENCY ROAD, ASRAMAM, KOLLAM - 2. 2. R. VIJAYAKUMAR, LEKSHMI BHAVAN, RESIDENCY ROAD, ASRAMAM, KOLLAM - 2. BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.H.JAWHAR SRI.V.SUNIL KUMAR (PANACHAMOODU) RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 TO 5, 8 & 9: ------------------------------------------------- 1. KASI RAMA IYER HARIHARA SUNDARAM IYER, MERCHANT, KASI IYYER, COMPOUND, LEKSHMI NADA, BEACH WARD, KOLLAM (DIED). 2. PONNAPPAN ACHARI THANKAPPAN ACHARI, MERCHANT, HOUSE NO.M.C.228, DO. DO. 3. A.M. RASHEED, GOVERNMENT EMPLOYEE, REGILA MANZIL VEEDU, NEDUMANGAD, THIRUVANANTHAPURAM. 4. PICHAKKANI RAWTHER SHAJAHAD BEEVI, MUSLIM, THUMBAYIL VEEDU, VELOORKARA, KOTTAYAM. 5. VENUGOPALAN, HINDU, M.C. NO.2265, ANDAMUKKAM WARD, CHINNAKKADA, KOLLAM. 6. N. SUDHAKARAN, UDAYAGIRI, THATTAMALA CHERRY, VADAKKEVILA P.O., KOLLAM. 7. PICHAKKANI RAWTHER AHAMMED KHAN, VALAYIL PURAYIDAM, VADAKKEVILA P.O., POLAYATHODU, KOLLAM. A.S. No.217 of 1996 ------------------- 8. PICHAKKANI RAWTHER YUSUF, ROSAMMA BHAVAN, KOCHUPILAMMOODU, BEACH ROAD, KOLLAM. ADDITIONAL RESPONDENTS IMPLEADED: --------------------------------- 9. BHAGAVATHY AMMAL, W/O.HARIHARA SUNDARAM IYER, KASHY IYER COMPOUND, LEKSHMI NADA, KOLLAM. 10. NARAYANAN, S/O.HARIHARA SUNDARAM IYER, KASHY IYER COMPOUND, LEKSHMI NADA, KOLLAM. 11. LEKSHMI, D/O.HARIHARA SUNDARAM IYER, KASHY IYER COMPOUND, LEKSHMI NADA, KOLLAM. LEGAL HEIRS O DECEASED 1[ST] RESPONDENT ARE IMPLEDED AS ADDITIONAL RESPONDENTS 9 TO 11 AS PER ORDER DATED 26.08.2013 IN I.A. NO.3938 OF 2010. R BY ADV. SRI.B.KRISHNA MANI R2 BY SHRI K.P. SREEKUMAR R BY ADV. SRI.K.K.MOHAMED RAVUF, SAJAN VARGHESE R BY ADV. SRI.P.G.PARAMESWARA PANICKER,P.GOPAL RADDL.9 TO 11 BY ADV. SRI.LEO GEORGE THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ALONG WITH A.S. NOS.148 & 149/1997 ON 09.11.2017, THE COURT ON 17.11.2017 DELIVERED THE FOLLOWING: ## **V. CHITAMBARESH** & ## **SATHISH NINAN, JJ** . = = = = = = = = = = = = = = = = = = ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** = = = = = = = = = = = = = = = = = = Dated this the 17[th] day of November, 2017 J U D G M E N T ## **SATHISH NINAN, J** . Three suits, O.S. No.249 of 1988, O.S. No.357 of 1991 and O.S. No.359 of 1991 of the Subordinate Judge's Court, Kollam were disposed of by a common judgment. All the three suits relate to title over the same property. The rival claim of title is between the plaintiffs in O.S. No.249 of 1988 on the one hand and the plaintiffs in the other two suits at the other. The court below decreed O.S. No.249 of 1988 and dismissed the other two suits. The defeated plaintiffs in O.S. Nos.357 and 359 of 1991 who were defendants 6 and 7 in O.S. No.249 of 1988, are in appeal. ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 2 :- 2. For the sake of convenience, the parties are referred to according to their status in O.S. No.249 of 1988. The subject matter of the suits is one and 5/8 cents with building situated thereon. The property in dispute originally belonged to Pareed Beevi (1[st] defendant) and her brother Mytheen. On the death of Mytheen, the entire property devolved on Pareed Beevi as the sole legal heir. The plaintiffs and defendants 4 and 5 are the tenants of the building. On 09.09.1982, Ext B1 gift deed was executed by Pareed Beevi (D1) to her grand son Rasheed (D2) (son of a predeceased son). Basing title upon Ext B1 gift, the said Rasheed (D2) sold the property to Sundaram Iyer (1[st] plaintiff) and Thankappan Achari (2[nd] plaintiff) as per Ext A11 sale deed dated 19.06.1985 and Ext A30 sale deed dated 20.06.1985, respectively. However, prior to the execution of the said sale deeds, the original owner Pareed Beevi (D1) had cancelled Ext B1 gift as per Ext A13 = Ext B3 cancellation deed dated 25.04.1984. Thereafter, Pareed Beevi as per Ext B2 ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 3 :- gift deed dated 06.08.1984 gifted the property to her daughter Shajahad Beevi (D3). On the strength of the said gift deed, Shajahad Beevi (D3) executed Exts B7 to B9 sale deeds dated 16.05.1985 and 17.05.1985 in favour of Ganesan and Vijayakumar (D6 & D7), respectively. Thus there is rival claim of title between Sundaram Iyer (P1) and Thankappan Achari (P2) on the one side, basing their title on Ext B1 Gift and Exts A11 and A30 Sale Deeds, as against the claim of Ganesan and Vijayakumar (D6 and D7) basing their title on Ext B2 Gift, and Exts B7 to B9 Sale Deeds. If Ext B1 Gift is valid, then the cancellation deed, Ext B3, is invalid, Ext B2 gift fails and so does the title claimed by Ganesan and Vijayakumar (D6 and D7). The court below upheld Ext B1 gift and thus Exts A11 and A30 were found to be valid and it was held that the plaintiffs in O.S. No.249 of 1988, viz., Sundaram Iyer and Thankappan Achari have title over the property. The said decree and judgment are under challenge by defendants 6 and 7, viz., Ganesan and Vijayakumar. ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 4 :- 3. Heard learned counsel on either sides. 4. For the sake of convenience, we would refer to certain dates and events. 09.09.1982 - Ext B1 gift by D1 to D3. 25.04.1984 - Ext B3 cancellation deed by D1 regarding Ext B1 gift. 06.08.1984 - Ext B2 gift by D1 to D3. 16.05.1985 and 17.05.1985 - Exts B7 to B9 sale deeds by D3 to D6 and D7. 19.06.1985 and 20.6.1985 - Exts A11 and A30 sale deeds by D2 to P1 & P2. 5. From the chronology of events as shown above, it is evident that the sale deeds in favour of the plaintiffs were subsequent to Ext B3 cancellation deed and Exts B7 to B9 sale deeds in favour of D6 and D7. However, if Ext B1 gift in favour of D2 is found to be valid, the subsequent cancellation by Ext B3, the Gift Ext B2 and sale deeds, Exts B7 to B9 fall to the ground and the ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 5 :- plaintiffs who had assignment under Exts A11 and A30 sale deeds get a valid title. 6. As noticed supra, the outcome of the suits depend upon the validity of Ext B1 gift deed. Law is too well settled that under Mohammedan Law, to constitute a valid gift there are three essentials: (1) declaration of gift by the owner; (2) 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. The gift becomes complete only on fulfillment of these conditions. The delivery of possession contemplated, could be delivery of such possession as the subject of the gift is susceptible of, and it could be either actual or constructive. Unlike ordinary gifts, under Mohammedan Law it is essential that the subject matter of the gift should be delivered over actually or constructively to the donee, failing which the gift will not be valid. It would be ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 6 :- pertinent to refer to a three Judge Bench decision of the Apex Court in Valia Peedikakkandi Katheessa Umma and Ors. v. Pathakkalan Narayanath Kunhamu (deceased) and after him his legal representatives and Ors. (AIR 1964 SC 275) wherein it was observed thus: “...Muhammadan Law of gifts attaches great importance to possession or seisin of the property gifted (Kabs-ul-Kami) especially of immovable property. The Hedaya says that seisin in the case of gifts is expressly ordained and Baillie (Dg.P.508) quoting from the Inayah refers to a Hadis of the Prophet - “a gift is not valid unless possessed.” In the Hedaya it is stated - “Gifts are rendered valid by tender, acceptance and seisin” (p.482) and in the Vikayah “gifts are perfected by complete seisin” Macnaghten (202).” In M.M. Khan v. S.A. Khan ([1971] 3 SCC 810) the Apex Court held that it is essential for the validity of a gift under Mahomedan Law that there should be delivery of such possession as the subject of the gift is susceptible of. Here it would be beneficial to refer to Section 167 of ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 7 :- Mahomedan Law by Mulla; “167. **Revocation of gifts.** (1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that _before_ delivery there is no completed gift at all.” Therefore it admits of no doubt that delivery of possession is a sine qua non for a valid gift under the Muslim law. Taking of possession of the subject mater of the gift by the donee is necessary to complete a gift. 7. Section 152(2) of the Mahomedan Law by Mulla deals with the contingency of, how to deliver possession where the property which is the subject of the gift is in occupation of tenants. Section 152(2) reads thus: 152. **Delivery of possession of immovable property** . (1)................................................................................... (2) **Where property is in the occupation of tenants** .- A gift of immovable property which is in the occupation of tenants may be completed by a request by the ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 8 :- donor to the tenants to attorn to the donee, or by delivery of the title deed or by mutation in the Revenue Register or the landlord's _sherista_ . But if the husband reserves to himself the right to receive rents during his life time and also undertakes to pay Municipal dues, a mere recital in the deed that delivery of possession has been given to the donee will not make the gift complete.” Therefore, when the subject matter of the gift is in the occupation of tenants, delivery of possession could be effected by (1) attornment by the tenants to the donee or (2) delivery of the title deed by the donor to the donee or (3) by effecting mutation in the revenue register in the name of the donee. In Khursida Begum (Dead) by Legal Representatives and Others v. Mohammad Farooq (dead) by legal representatives and Another ([2016] 4 SCC 549), the Apex Court held thus: “.....while gift of immovable property is not complete unless the donor parts with the possession and donee enters into possession but if the property is in occupation of tenants, gift can be completed by delivery of title deed or by request to tenants to attorn to the donee or by mutation.....” ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 9 :- Thus, three situations as enumerated above are postulated by which the law presumes constructive delivery of possession of the subject matter of the gift in favour of the donee. 8. Now, analysing if Ext B1 gift satisfies the above elements, it could not be disputed that Ext B1 gift deed evidences a valid declaration of gift by the donor. The second essential being the acceptance of the gift, either express or implied, if a gift is not an onerus one, the mere fact that the donee has knowledge about the gift by itself would be sufficient to presume that the gift has been accepted since any person would only be interested in promoting his own interest. Coming to the third essential for the completeness of Ext B1 gift, namely delivery of possession, it is to be noticed that admittedly, at the time of execution of Ext B1, the building in question is in the possession of tenants, viz., plaintiffs and defendants 4 and 5. So it has to be considered as ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 10 :- to whether there has been a constructive or actual delivery of possession as required under section 152(2) referred to above. There is no case that pursuant to Ext B1 gift the tenants had attorned to the donee (i.e., the 2[nd] defendant). Exhibit B1 reserves with the donor the right to collect the rent from the tenants. There is also no case that mutation has been effected in the name of donee (D2) pursuant to Ext B1 gift. It has also not been attempted to establish so, before this Court. What remains is the question as to whether there has been handing over of the gift deed (Ext B1) to the donee. There is variance on this between the parties. The best persons to speak about the same are defendants 1 and 2 who are the donor and donee. Curiously, they have not filed any written statement nor have they stepped into the witness box. The original of Ext B1 gift deed is produced before the court by defendants 6 and 7 who are the assignees under the subsequent gift deed Ext B2. There is no explanation by the plaintiff regarding ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 11 :- the same. Though in Exts A11 sale deed in favour of the plaintiffs it is stated that the gift deed (Ext B1) has been handed over along with the sale deed, the same has not been produced by them. The explanation offered by them is that subsequent to the handing over of Ext B1 along with the sale deeds in their favour, as requested to by the 2[nd] defendant the same was given to him on obtaining photostat copies (Exts A8 and A41) of the same. When the property has been purchased by them there is no reason why the original prior title deed should be returned to the vendor. No explanation is forthcoming. There is no reason why, if at all the document was handed over to the 2[nd] defendant, the same was not got back. There is no case that in spite of demand by the plaintiffs the 2[nd] defendant refused to hand over Ext B1 gift deed. There is no case that they took any steps against him to get back Ext B1. Apart from all that, it is to be noticed that Exts A11 and A30 sale deeds in favour of the plaintiffs were subsequent to Ext B3 ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 12 :- Cancellation, Ext B2 Gift in favour of the 3[rd] defendants and even subsequent to Exts B7 to B 9 sale deeds in favour of defendants 6 and 7. In the said back ground, the contention of the plaintiffs that the original of Ext B1, which is their basic title, was handed over to them and got back by the 2[nd] defendant after handing over photostat copy etc., as goes the saying, cannot be swallowed without a pinch of salt. By no stretch of imagination could such a story be accepted. The mere production of the photostat copy of Ext B1 by the plaintiffs by itself would not enable the court to arrive at a conclusion that there has been delivery of Ext B1 to the 2[nd] defendant especially when, as found above, the contention of the plaintiffs that the original of Ext B1 was handed over to them at the time of sale, but was taken back by the 2[nd] defendant, is unbelievable. In the absence of proof of delivery of possession, it could not be held that Ext B1 is valid and complete. Exhibit B1 gift was cancelled as per Ext ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 13 :- B3 cancellation deed. As noticed supra a Mahomedan gift can be cancelled at any time before delivery of possession. On the evidence, we are unable to agree with the finding of the court below regarding validity of Ext B1 gift. Exhibit B1 was cancelled before delivery of possession. Therefore Exts A11 and A30 sale deeds could not convey title to the plaintiffs. The decree in O.S. No.249 of 1988 is liable to be interfered with. 9. Coming to the suits O.S. Nos.357 and 359 of 1991, the plaintiffs therein are defendants 6 and 7 in O.S. No.249 of 1988. As found above, the challenge against their title is banking upon Exts B1 gift deed and Exts A11 and A30 sale deeds. Since it has been found that the said documents have not conveyed title, there is no reason to hold against the conveyance of title under Ext B2 gift and B7 to B9 sale deeds. It is to be held that defendants 6 and 7 in O.S. No.249 of 1988, who are the plaintiffs in these suits respectively, have ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 14 :- obtained title over respective portions of the property in question. They had filed Rent Control Petitions before the Rent Control Court as R.C.P. Nos.1 and 3 of 1987 claiming eviction as against the plaintiffs and defendants 4 and 5 (in O.S. No.249 of 1988). Since their title was denied by the tenants relying upon Ext B1 gift and Exts A11 and A30 sale deeds, the Rent Control Court, finding that denial of title is bona fide, relegated the parties to the civil court, and it is thereupon that these two suits have been filed. In terms of the second proviso to Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, where the Rent Control Court has relegated the parties to the civil court consequent on a bona fide dispute on title, eviction could be ordered only on proof of the grounds enumerated under the said Act of 1965. Since the same has not been considered, the matter has to be remitted to the court below. Needless to state that the tenants are entitled to the statutory protection, if any, extended to them ## **A.S. No.217 of 1996, A.S. No.148 of 1997 & A.S. No.149 of 1997** -: 15 :- under the said Act. In the result, the appeals are allowed. The decree and judgment in the suits are set side. The suit O.S. No.249 of 1988 will stand dismissed. The suits O.S. Nos.357 and 359 of 1991 will stand remanded to the trial court for consideration of the respective plaint claims in the light of the findings and observations made above. Parties shall appear before the Principal Sub Court, Kollam on 20.12.2017. Sd/- **V. CHITAMBARESH, JUDGE.** Sd/- **SATHISH NINAN, JUDGE.** Vsv /true copy/ P.S. to Judge