Question regarding delivery of possession to be raised between donor and donee or persons claiming under them.

The defendants in O.S. No.419 of 1981 on the file of the District Munsif Court, Nagapattinam, are the appellants in the above second appeal. The respondent herein filed the suit for declaration of his title to the suit property and for a direction to the defendants to remove the superstructure put up by them on the land and deliver vacant possession of the land and for mesne profits for the immediate past three years.

2. The case of the plaintiff was that the first defendant was his brother and the second defendant was the first defendant’s wife, that the plaintiff and the first defendant are the brothers and the sons of Syed Mohammed, that the property originally belonged to the grandfather Hammed Sultan, who settled the same in favour of the plaintiff’s father Syed Mohammed under a registered settlement deed dated 7. 1968 and subsequently, under a settlement deed dated 23. 1972 an extent of 42 cents in R.S. No.69/1 and his share in the house came to be settled in favour of the plaintiff out of love and affection, and that the said deed of settlement was duly registered and therefore, the plaintiff is the owner of the property. It is the further case of the plaintiff that the first defendant’s brother used to often go to Singapore on business purposes and he requested in the end of 1969 the plaintiff to provide a small portion of suit property for temporarily putting up a small shed for his residence undertaking to vacate and though in an extent of about 3 cents such superstructure was put up, wherein the first defendant and the second defendant (first defendant’s wife) were living, the defendants have not made any arrangement to remove the superstructure and deliver vacant possession. Since the defendants started denying thereafter the right of the plaintiff, after exchange of notices, the suit come to be filed for the relief referred to supra.

3. The second defendant alone filed a written statement, which was adopted by the first defendant, denying the various allegations in the plaint. The settlement deed dated 1. 1968 was admitted, but it was contended that the subsequent settlement deed dated 23. 1972 was not valid in law and that the plaintiff was never in the possession of the suit at any point of time and since the property in question is in the occupation of the defendants, particularly the second defendant, there could not have been any proper delivery of possession to complete the gift and consequently, the plaintiff cannot claim any rights whatsoever under the gift deed dated 23. 1972. The first defendant also claimed to be a co-sharer entitled to be in possession of the suit property and the claim for mesne profits therefore was not said to be sustainable.

4. On the above claims and counter claims, the suit came to be tried and both the parties adduced oral and documentary evidence. The learned trial Judge by his judgment and decree dated 11. 1982 decreed the suit as prayed for. Aggrieved the defendants filed A.S. No.6 of 1983 on the file of Sub Court, Nagapattinam. The learned Subordinate Judge also concurred with the findings and conclusions arrived at by the learned trial Judge and dismissed the appeal. Hence the above second appeal.

5. Mr.Vijayakumar, learned counsel appearing for the appellants, while elaborating the substantial question of law formulated for consideration in the above second appeal at the time of admission, contended that the gift of immovable property, which was in the possession of trespasser cannot be said to be valid under the Mohammedan Law, particularly when the actual delivery of possession of the property gifted was not possible. The learned counsel in support of his claim placed reliance upon the decisions reported in M.A, Khan v. Khodaija, A.I.R. 1966 S.C. 1194: (1966)3 S.C.R. 479: 1966 S.C.D. 1016 and Johara Bibi v. Subera Bibi, (1964)2 M.L.J. 237.

6. In the decision reported in M.A. Khan v. Khodaija, A.I.R. 1966 S.C. 1194, the Apex Court held that the three require