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Andhra Pradesh High Court
Judges : VISWANATHA SASTRY
Chota Uddandu Sahib - Appellant
Versus
Masthan Bi (Died) - Respondent
Decided On : 11-01-74
GIFT - MUSLIM LAW - ORAL GIFT - VALIDITY - REQUIREMENTS - DECLARATION, ACCEPTANCE AND POSSESSION - EVIDENCE - SUFFICIENCY - CONFIRMATORY DEED - REGISTRATION - NECESSITY - TRANSFER OF PROPERTY ACT, 1882, SECTION 129 - SHARIAT ACT, 1937 (CENTRAL ACT 26 OF 1937).
Fact of the Case:
Plaintiff filed a suit for partition and separate possession of his 3/8th share in the properties of Pullu Saheb, his deceased brother. The defendants, including the 4th defendant, who claimed the entire estate under an oral gift from Pullu Saheb, resisted the suit. The lower court dismissed the suit, holding that the oral gift was valid and binding on the plaintiff.
Finding of the Court:
The High Court held that the oral gift pleaded by the defendants was not valid under Muslim law, as the essential requirements of declaration, acceptance, and delivery of possession were not satisfied. The court also held that the confirmatory deed executed by Pullu Saheb was not registered and therefore did not convey any title to the 4th defendant. The court further held that Section 129 of the Transfer of Property Act, 1882, which exempts gifts of movable property made in contemplation of death from the operation of Chapter VII of the Act, does not apply to gifts made under Muslim law. The court also held that the Shariat Act, 1937 (Central Act 26 of 1937), which applies Muslim personal law in matters of gifts, does not affect the provisions of Section 129 of the Transfer of Property Act, 1882.
Issues: 1. Whether the oral gift pleaded by the defendants was valid under Muslim law? 2. Whether the confirmatory deed executed by Pullu Saheb was registered and therefore conveyed any title to the 4th defendant? 3. Whether Section 129 of the Transfer of Property Act, 1882, which exempts gifts of movable property made in contemplation of death from the operation of Chapter VII of the Act, applies to gifts made under Muslim law? 4. Whether the Shariat Act, 1937 (Central Act 26 of 1937), which applies Muslim personal law in matters of gifts, affects the provisions of Section 129 of the Transfer of Property Act, 1882?
Ratio Decidendi: 1. Under Muslim law, a valid gift requires three essential elements: (a) declaration of the gift by the donor, (b) acceptance of the gift by the donee, and (c) delivery of possession of the subject matter of the gift by the donor to the donee. In the present case, the court found that these essential elements were not satisfied, as there was no clear evidence of declaration, acceptance, and delivery of possession. 2. A confirmatory deed executed by the donor after an oral gift is not effective to convey title to the donee unless it is registered. In the present case, the confirmatory deed was not registered and therefore did not convey any title to the 4th defendant. 3. Section 129 of the Transfer of Property Act, 1882, which exempts gifts of movable property made in contemplation of death from the operation of Chapter VII of the Act, does not apply to gifts made under Muslim law. This is because Section 129 is a general provision that applies to all gifts, while Muslim law is a specific law that governs gifts made by Muslims. 4. The Shariat Act, 1937 (Central Act 26 of 1937), which applies Muslim personal law in matters of gifts, does not affect the provisions of Section 129 of the Transfer of Property Act, 1882. This is because the Shariat Act is a general law that applies to all Muslims, while Section 129 is a specific provision that applies to gifts of movable property made in contemplation of death.
Final Decision: The High Court allowed the appeal, set aside the decree of the lower court, and granted the plaintiff a preliminary decree for partition and separate possession of his share in the properties of Pullu Saheb, together with profits from the date of the suit.
( 1 ) PLAINTIFF is the appellant herein. This appeal arises out of the suit, for partition and separate possession of his 3/8th share filed by the appellant. The few facts, which are necessary for considering the respective contentions in this case are the following:--
( 2 ) PLAINTIFF, the third defendant and one Pullu Saheb were brothers. Pullu Saheb married first defendant. As she bore no children he married the second defendant, who is no other than the brothers daughter of the first defendant 4th defendant is the son of the third defendant.
( 3 ) PULLU Saheb died on 17-6-1957, within three years after his second marriage with the second defendant without any issues. He left behind A and B Schedule properties. Plaintiff and the 3rd defendant are entitled to 3/8th share each in the properties of Pullu Saheb, while his widows defendants 1 and 2 are entitled to 1/8th share each in his estate.
( 4 ) PLAINTIFF issued the notice on 13-6-68 to the defendants to partition the properties according to the above shares. The third defendant gave a reply on 25-6-68 stating that his son the 4th defendant was adopted by Pullu Saheb and therefore the plaintiff cannot have any share. Defendants 1 and 2 sent a reply on 9-7-1968 stating that the properties were gifted by Pullu Saheb before his death to the 4th defendant. The plaintiff attacks the said gift as a false and fraudulent one, resorted to by the defendants in collusion in order to deprive the plaintiff of his just rights in the properties. Hence he has filed the suit for partition of the suit properties on 7-8-1968.
( 5 ) THIRD defendant remained ex parte. Defendants 1, 2 and 4 filed a common written statement. According to them late Pullu Saheb gifted, before his death, his properties to the 4th defendant in the presence of V. Komarayya, G. Seetharamulu, Shaik Abdul Shakoor and other elders and ever since the 4th defendant alone has been in exclusive possession and enjoyment of the properties in his own rights as a donee. As per one of the conditions of the said gift, the defendants 1 and 2 are each entitled to be provided with 1/3rd share of the net income of the properties during their lifetime. The fourth defendant discharged the debts of late Pullu Saheb and is enjoying the properties subject to the conditions in the gift. They therefore denied the plaintiffs right to a partition.
( 6 ) THIS written statement was filed on 12-10-1968. Issues were framed on 26-10-1968 giving one months time for filing documents. No documents were filed during that given time. On 8-8-1969 the defendants 1, 2 and 4 filed several documents, of which Ex. B-29 is said to be the gift confirmation deed dated 5-6-1967, said to have been executed by late Pullu Saheb, in favour of the 4th defendant. On 30-9-1969 the defendants filed I. A. 2881 of 1969 to amend their written statement. The 4th defendant who filed the affidavit in support of that application stated that the gift in his favour was made at the time of his marriage in the presence of V. Komarayya, G. Seetharamulu and Shaik Abdul Shukoor and other elders He therefore wanted to amend paragraph 2 of his written statement by adding the words "at the time of the marriage of the 4th defendant" after the words "other elders". He has also asked for amendment of paragraph 3 of the written statement by introducing the words as follows:--"late Shaik Pullu Saheb has confirmed the above fact of gifting the suit properties by executing a confirmation deed on 5-6-1967 in the presence of the said persons. "this petition was allowed and the suit was tried.
( 7 ) PLAINTIFF examined himself as P. W. 1 and five other witnesses as P. Ws. 2 to 6. According to them there was no oral gift announced by Pullu Saheb at the time of the marriage of 4th defendant Exs. A-1 to A-28 have been marked on behalf of the plaintiff. The defendants examined D. Ws. 1 to 12 and marked Exs. B-1 to B-35 on their behalf. 4th defendant gave evidence as D. W. 1 while th
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