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SUPREME COURT OF INDIA
Dipak Misra, Vikramajit Sen, JJ.
Rasheeda Khatoon (D)Through LRs. - Appellants
Versus
Ashiq Ali s/o of Lt. Abu Mohd (D) Through LRs. - Respondents
CIVIL APPEAL NO. 603, 564 OF 2009
Decided on: 10-10-2014
(B) Mohammedan Law—Gift—Prerequisites—Gift under Mohammmedan Law can be an oral gift and need not be registered—To be a valid gift under Mohammmedan Law three essential features namely, (i) declaration of gift by donor, (ii) acceptance of gift by donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied—Solely because writing is contemporaneous of making of gift deed, it does not warrant registration under Section 17 of Registration Act—Deed of gift solely because it is a written instrument does not require registration—It can always be treated as a piece of evidence evidencing gift itself. (Paras 16 and 19)
AIR 1916 All 351 ; AIR 1927 Cal 197 ; AIR 1968 Pat 481 ; AIR 1976 SC 1541; (1921-22) 49 IA 195 : AIR 1932 PC 13; AIR 1972 Ker 27; AIR 1973 Gauhati 105; AIR 1962 AP 199; AIR 1974 J&K 59; AIR 1975 AP 271; (1985) 2 MLJ 136; (1954) 2 MLJ 113 (AP)—Referred.
(1880) 3 All 266 ; (1995) 3 SCC 693 ; (2011) 5 SCC 654; AIR 1964 SC 275—Relied.
(C) Tenancy—Eviction—Gift of property—Suit decreed by Trial Court holding that plaintiff had proved oral gift executed by donor in her favour and that gift deed did not require registration—Possession can be shown not only by enjoyment of land or premises in question but also by asserting who has actual control over property—Plea of actual physical possession by appellant does not deserve acceptance—There is no proof that land was mutated in her favour by revenue authorities—She was also not in possession of title deeds—One of elements of valid gift has not been satisfied—As plaintiff could not prove either actual or constructive possession, gift was not complete and issue of registration does not arise—Judgment and decree of High Court affirmed and suit of plaintiff dismissed. (Paras 24 and 25)
(2011) 2 SCC 385 ; (2012) 5 SCC 443 ; (2012) 7 SCC 288—Relied.
Facts of Case—
Suit instituted for recovery of possession. During pendency of suit, as alleged, defendants took over possession in pursuance of the release order passed by the SDM on 12.4.1975 and thereafter plaintiff amended the plaint and sought the relief of recovery of possession. Single Judge taking note substantial question of law opined that core issue was whether the document in question is a deed of gift or it evidences oral gift. Single Judge was of view that if it was accepted as an evidence of the oral gift it did not require registration and if it is interpreted otherwise, it required registration and allowed appeal.
Findings of Court—
Conclusion that gift deed dated 9.10.1970 evidences such a gift, is absolutely unacceptable. Case of the plaintiff is that she resided with Abdul Haq and, therefore, principle of donor getting fully divested or handing over of physical possession is not attracted. Though, such a finding has been recorded, we find it wholly contrary to the evidence on record. we, though for different reasons, affirm judgment and decree of High Court and dismiss appeal as a consequence of which suit of plaintiff stands dismissed.
JUDGMENT
Dipak Misra, J.
1. Rasheeda Khatoon, the predecessor-in-interest of present appellants, instituted regular suit No. 31 of 1975 in the Court of Civil Judge, Faizabad, seeking recovery of possession from the original defendants. The case of original plaintiff before the trial Court was that one Abdul Haq was the owner of the house No. 2868 situated in Mohalla Hayat Ganj in Tanda, District Faizabad. The only son of Abdul Haq had shifted to Pakistan at the time of Partition and there was no one to look after him. The father of Rasheeda Khatoon, Hazi Madari, was a close friend of Abdul Haq, and being a neighbour, she was looking after him for last 20 years till 24.01.1972 when he breathed his last at the ripe age of ninety. Regard being had to various aspects and further being pleased with her services, 7 years prior to the institution of the suit he made an oral gift of the suit house in her favour which was accepted by her and possession of the house was also handed over. Pursuant to the oral gift she lived in the premises in question and looked after him. The tenants who had been staying in the southern portion of the house, accepted her status and started paying rent to her. Prior to a year of his death being apprehensive that some others might disturb in her possession, he executed a deed of gift in writing evidencing the oral gift made earlier in favour of the plaintiff. As pleaded, within one month from the death of Abdul Haq, the defendants dishonestly moved an application under Section 145 CrPC before the SDM, Tanda with an intention to evict the plaintiff and in the said proceeding the property in question was attached, and all these circumstances constrained the plaintiff to file the civil suit for declaration that she was the owner in possession of the house in question. During the pendency of the suit, as alleged, the defendants took over possession in pursuance of the release order passed by the SDM on 12.4.1975 and thereafter the plaintiff amended the plaint and sought the relief of recovery of possession.
2. The defendants entered contest and took various pleas to the effect that the suit was under-valued and the court fee that was paid was not sufficient; that Abdul Haq was in possession of the house till his death and never parted possession; that there was no oral gift as asserted by the plaintiff; that Khairulnisha, Kamrulnisha alias Kumul and Janharulnisha were the daughters of Abdul Haq; that Khairulnisha died during the life time of Abdul Haq and her sons Mohd. Ayub, Moyuddin, Mohd. Yasin, Sagir Ahmad and Bashir Ahmad were alive; that the defendant No.1 is the son of Jauharulnisha; that Abdul Haq died leaving behind Kamarulnisha, Jauharulnisha and sons of Khairulnisha as his legal heirs and they had become the owners; that during life time Abdul Haq had given certain properties to the son of the defendant No.2; and that after the death of Abdul Haq defendant No.2 had constructed a shop with the permission of the defendant No.1 on the condition that the shop shall be let-out to him. It was also asseverated that Jauhirulnissa had executed a sale deed on 8.3.1972 and Usman and Rauf executed a sale deed on 31.3.1972 in respect of the suit house in favour of the defendant Nos. 2 and 3 and since then the defendants no.2 and 3 had become the owners in possession; that the proceeding initiated under Section 145, CrPC was eventually decided in favour of the defendants; and that the plaintiff had no right, title and interest over the suit house; and that the defendants are the owners in possession of the suit property.
3. On the basis of the aforesaid pleadings, the learned trial Judge framed the following issues:-
“1. Whether plaintiff is owner of the disputed house as claimed in plaint?
2. Whether defendant Nos. 1 to 3 are the owners of the disputed house as claimed in their written statement?
3. Whether there has been an oral gift and subsequent writing evidencing this gift in favour of the plaintiff by Abdul
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