Execution of gift deed by mother in favour of daughter held valid.

The first defendant is the appellant. The first respondent herein filed suit O.S.No. 140 of 1984 before the District Munsif’s Court, Melur, against the appellant and the second respondent for declaration and permanent injunction on the following averments: The suit property of an extent of 60 cents cents in R.S.No.293/2 out of total extent of 3 acres, 22 cents in Nadumandalam Village, Natham Vattam, originally belonged to her father Kattuvan Rowther and on his death there was a partition under a registered deed Ex.A-1 on 12th April, 1956. Under the partition, the suit property was allotted to the first respondent’s mother Ayesha Beevi Ammal. Since the first respondent was not allotted any share in the properties of her father, the mother Ayesha Beevi executed a gift deed Ex.A-2, dated 5. 1964 in favour of the first respondent in respect of the property allotted to Ayesha Beevi. The first respondent in her turn, executed a registered deed of maintenance under Ex.A-3 dated 5. 1984 in favour of her mother Ayesha Beevi, under which Ayesha Beevi was given a right to enjoy the income from the properties without powers of alienation during her life time and thereafter the property was to be taken by the first respondent. Ayesha Beevi was in enjoyment till she died on 111. 1982 and since her death the first respondent to be disturbed by the appellant on or about 20.4.1984,.the suit came to be filed.

2. The appellant resisted the suit contending inter alia as follows:

The suit property was purchased by the appellant under Ex.B-1, dated 28. 1950 and under Ex.B-2, dated 15. 1951 and the patta for the suit property also stood in his name. He had been possession and enjoyment of the suit property as would be evident from the various kist receipts Exs.B-5 to B-23. The gift deed Ex.A-2 in favour of the first respondent was not true and valid. The mother Ayesha Beevi had made a hiba, as early as 7. 1963 and therefore the first respondent could not claim title to possession. The suit was therefore liable to be dismissed. The second respondent did not contest the suit and remained ex parte.

3. The trial court framed as many as five issues and on an appreciation of the materials available, upheld the first respondent’s claim and granted her a decree as prayed for by its judgment and decree dated 24. 1985. The trial court found that Ex.A-2 gift deed was true and given effect to. It also negatived the plea of adverse possession and prescriptive title set up by the appellant.

4. The appellant filed appeal A.S.No.234 of 1985 before the Subordinate Judge’s Court, Madurai. The learned Subordinate Judge by his judgment and decree dated 310. 1986 confirmed the decision of the trial court and dismissed the appeal. Aggrieved the present second appeal has been filed.

5. At the time of admission the following substantial questions of law were raised for decision in the second appeal:

.(1) Whether the courts below erred in holding that there was a valid operative and legally enforceable hiba or gift under Ex.A-2 in favour of the plaintiff?

.(2) Whether the courts below erred in ignoring the appellant’s title to the suit property under Exs.B-1 and B-2 and in overlooking the fact that Ex.A-1 and the other evidence on record do not clothe Ayesha Beevi with any title to the suit property? and

.(3) Whether the courts below erred in holding that the appellant cannot sustain hiba in his favour and his plea of prescriptive title by adverse possession was not made out under law on the evidence on record?

6. Mr.A.Ramanathan, learned counsel for the appellant, contended that on a reading of Ex.A-2 it would be clear that pursuant to the gift, no possession was given to the first respondent and under Mohamedan Law gift without parting with possession would be invalid. The learned counsel also contended that even in the year 1963 long before the execution of Ex.A-2, the mother had given the suit property to the appellant by an oral hiba and if that oral h