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High Court Of Delhi
HAFIZ ABDUL BASIT - Appellant
Versus
HAFIZ MOHAMMND SAID - Respondent
REGULAR FIRST APPEAL 118D of 1960
Decided On : 10/13/1972
GIFT - MOHAMMEDAN LAW - VALIDITY - ESSENTIAL CONDITIONS - MANIFESTATION OF WISH TO GIVE, ACCEPTANCE BY DONEE, DELIVERY OF POSSESSION - GIFT OF SHARE IN PROPERTY BY MOHAMMEDAN DONOR TO HIS MOTHER - EVIDENCE OF GIFT - ADMISSIONS BY DONOR AND DONEE - EXECUTION OF POWER OF ATTORNEY BY DONEE IN FAVOUR OF DONOR - MUTATION OF NAMES IN MUNICIPAL RECORDS - PAYMENT OF RENT TO DONEE - EXECUTION OF RENT NOTES IN FAVOUR OF DONEE - GIFT HELD VALID.
Fact of the Case:
Hafiz Abdul Basit instituted a suit for possession by partition, rendition of accounts of the rents and mesne profits and recovery of the amount found due on rendition of accounts. The suit was filed against 13 defendants. There was a common ancestor of the plaintiff and defendants 1 to 8. His name was Hafiz Karim Baksh. He died in the year 1904. One of his sons was Sheikh Abdul Haq who died in 1922 possessed of an undivided 1/6th share in the estate which he held as tenant in common with the other heirs of his father. On his death this undivided share was inherited by his widow Mst. Kulsum-un-Nisa and his son Sheikh Mohd. Daud in moiety of 1/8th and 7/8th respectively. There was another son of Hafiz Karim Baksh, Sheikh Hafiz Abdul Khaliq by name. The plaintiff and defendants 1 to 9 are the sons, daughters and the widow of Hafiz Abdul Khaliq. In 1916, a suit was instituted for partition of the estate of the common ancestor Hafiz Karim Baksh which was decided by the Senior Sub Judge, Delhi on August 26, 1926. A partition decree was passed and under this decree the property detailed in Schedule 1 Column a attached to the plaint fell to share of Kulsum-un-Nisa and Sheikh Mohd. Daud jointly in proportion of one-eighth and seven-eighth share respectively. This property was separately allotted to the widow and the son of Abdul Haq as their exclusive share on partition. On April 17, 1952, Sheikh Mohd. Daud died leaving behind four heirs, viz., his paternal uncle Hafiz Abdul Khaliq, two widows Mst. Khatija Bi (defendant No. 10) and Mst. Mahmud-un-Nisa (defendant No. 11), and his mother Mst. Kulsum-un-Nisa (defendant No. 12 ). Hafiz Abdul Khaliq died on September 25, 1952 leaving behind five sons, four daughters and one widow. Mohd. Daud made a gift of his seven-eighth share to his mother Kulsum-un-Nisa. She was already the owner of one-eighth share in the property left by her husband. After the gift she became the full owner of the property. She made a gift of the entire property to Sheikh Mohd. Amil who was the grand son of her sister.
Finding of the Court:
The trial Court recorded the findings that (1) Mohd. Daud gifted his entire property except a residential house to his mother Kulsum-un-Nisa in the year 1935, (2) the house No. 356 situated in Mohalla Churi-garan, Delhi was gifted in 1943, (3) Kulsum-un-Nisa accepted the gift, (4) Mohd. Daud transferred symbolic possession to his mother, and (5) Kulsum-un-Nisa made the gift to Mohd. Amil.
Issues: 1. Whether this suit as framed is competent against Mohd. Amil, defendant No. 13, who alleges to be in possession of the property in suit in his own right? 2. Whether the suit for possession bypartition against defendant No. 13 is not competent as defendant No. 13 is not a co-sharer in the entire property? 3. Whether Hafiz Mohd. Daud deceased left any property at the time of his death, if so what? 4. Whether Mohd. Daud deceased created a valid gift of his share in the property in favour of Mst. Kulsum-un-Nisa? 5. Whether the plaintiff is estopped from challenging the gift on account of the admissions of Mohd. Daud and Hafiz Khaliq in respect of this gift? 6. Is the plaintiff estopped from bringing this suit? 7. Whether this suit is in respect of a part of the property? 8. If issue No. 1 is affirmed, whether the suit for the partition is competent? 9. Whether the suit has been properly valued for the purpose of court fees and jusisdiction? 10. Whether the suit is within-time? 11. What is effect of withdrawal and dismissal of the suit brought by Mst. Mahmood-ul-Nisa, defendant No. 11 on the present suit? 12. Whether defendant No. 13 is entitled to special costs under section 35a Civil Procedure Code if so, how much? 13. To what relief is the plaintiff entitled and against whom? 14. Whether defendant No. 11 is widow of Sheikh Mohd. Daud? 15. Whether the present suit is barred by the rule of res judicata?. 16. Whether the point raised in issue No. 15 can be raised?
Ratio Decidendi: For a valid gift inter vivos under the Mohammedan Law applicable in this case, three conditions are necessary, which their Lordships consider have been correctly stated thus : (a) manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively.
Final Decision: Appeal dismissed with costs.
( 1 ) ON December 15, 1952, one Hafiz Abdul Basit instituted a suit for possession by partition, rendition of accounts of the rents and mesne profits and recovery of the amount found due on rendition of accounts. The suit was filed against 13 defendants.
( 2 ) THERE was a common ancestor of the plaintiff and defendants 1 to 8. His name was Hafiz Karim Baksh. He died in the year 1904. One of his sons was Sheikh Abdul Haq who died in 1922 possessed of an undivided 1/6th share in the estate which he held as tenant in common with the other heirs of his father. On his death this undivided share was inherited by his widow Mst. Kulsum-un-Nisa and his son Sheikh Mohd. Daud in moiety of 1/8th and 7/8th respectively. There was another son of Hafiz Karim Baksh, Sheikh Hafiz Abdul Khaliq by name. The plaintiff and defendants 1 to 9 are the sons, daughters and the widow of Hafiz Abdul Khaliq. In 1916, a suit was instituted for partition of the estate of the common ancestor Hafiz Karim Baksh which was decided by the Senior Sub Judge, Delhi on August 26, 1926. A partition decree was passed and under this decree the property detailed in Schedule 1 Column a attached to the plaint fell to share of Kulsum-un-Nisa and Sheikh Mohd. Daud jointly in proportion of one-eighth and seven-eighth share respectively. This property was separately allotted to the widow and the son of Abdul Haq as their exclusive share on partition.
( 3 ) ON April 17, 1952, Sheikh Mohd. Daud died leaving behind four heirs, viz. , his paternal uncle Hafiz Abdul Khaliq, two widows Mst. Khatija Bi (defendant No. 10) and Mst. Mahmud-un-Nisa (defendant No. 11), and his mother Mst. Kulsum-un-Nisa (defendant No. 12 ). Hafiz Abdul Khaliq died on September 25, 1952 leaving behind five sons, four daughters and one widow. Mohd. Daud made a gift of his seven-eighth share to his mother Kulsum-un-Nisa. She was already the owner of one-eighth share in the property left by her husband. After the gift she became the full owner of the property. She made a gift of the entire property to Sheikh Mohd. Amil who was the grand son of her sister.
( 4 ) THE suit out of which the present appeal has arisen was instituted by Hafiz Abdul Basit, one of the sons of Abdul Khaliq, against Kulsum-un-Nisa and Sheikh Mohd. Amil, defendants 12 and 13. To the suit the remaining four sons, four daughters and the widow of Abdul Khaliq were also made party-defendants. The two widows of Sheikh Mohd. Daud were also made parties. The contesting defendants were, however, Kulsum-un-Nisa and Mohd. Amil. The main ground taken by the plaintiff and defendants 1 to 9 was that they were the heirs of Sheikh Mohd. Daud and they were entitled to his share in the property to the extent of seven-eighth. In substance the gifts stated to have been made to Mohd. Amil by Kulsum-un-Nisa and by Sheikh Mohd. Daud to his mother Kuslum-un-Nisa of his seven-eighth share were denied and it was asserted that on the death of Sheikh Mohd. Daud on April 17, 1952, his seven-eighth undivided share in the property devolved on the heirs of Abdul Khaliq and the two widows of Mohd. Daud.
( 5 ) DURING the pendency of the suit Hafiz Abdul Basit died. By order dated September 11, 1968, one of his brothers Bashir Ahmad who was already a party to the suit as respondent No. 3 was substituted as appellant. Subsequently, Bashir Ahmad also died and his two sons Tanzeem Ahmad and Shabbir Ahmad were brought on the record as appellants on August 7, 1970. During the hearing of the appeal, defendant No. 1 Hafiz Mohd. Said, an Advocate of this court, made an application to the effect that he may be transposed to the array of the appellants and by order dated July 31, 1972 we allowed his application.
( 6 ) IN short the dispute in the suit relates to the seven-eighth share in the property which was owned by Mohd. Daud who died childless. The heirs of Abdul Khaliq claim to be entitled to this share on inheritance. Similarly, the two widows of Sheikh Mo
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