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2018 Supreme(Mad) 3045
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M.V. Muralidaran, J.
T.M. Hyder Ali (Died) – Appellant
Vs.
Thondi Muslim Education Society – Respondent
Second Appeal No. 236 of 2018, Civil Miscellaneous Petition No. 6367, 6368 of 2018
Decided On : 24-09-2018
A. Abdul Rahim, Adv., M.V. Venkataseshan, Adv.
Under Mohammedan Law, for a valid gift, there must be a clear declaration of the gift by the donor, acceptance by the donee, and delivery of possession. The burden of proof lies on the person claiming the gift.
Headnote:
Oral Gift - Property Dispute - Mohammedan Law - - 129 of the Transfer of Property Act - 123 of the Transfer of Property Act - Hiba - Oral Gift - Delivery of Possession
Fact of the Case:
The plaintiff society filed a suit for declaration of ownership of properties and permanent injunction against the defendant. The plaintiff claimed that the defendant had orally gifted the properties to the society, while the defendant denied the gift and asserted his ownership.
Finding of the Court:
The trial court dismissed the suit, finding that the plaintiff failed to prove the oral gift and possession of the properties. The first appellate court reversed the decision, holding that the plaintiff had proved the oral gift and possession. The second appellate court set aside the first appellate court's decision and restored the trial court's judgment.
Issues: The main issues were whether the plaintiff proved the oral gift and possession of the properties, and whether the first appellate court erred in its findings.
Ratio Decidendi: The court held that under Mohammedan Law, for a valid gift, there must be a clear declaration of the gift by the donor, acceptance by the donee, and delivery of possession. The burden of proof lies on the person claiming the gift, and in this case, the plaintiff failed to establish the oral gift and possession.
Final Decision: The second appellate court allowed the appeal, set aside the first appellate court's judgment, and restored the trial court's decision, dismissing the plaintiff's suit.
M.V.Muralidaran, J.
This Second Appeal arises out of the judgment and decree in A.S.No.2 of 2017, dated 26.4.2018 on the file of the Principal District Judge, Ramanathapuram, reversing the findings of the trial Court in O.S.No.24 of 2006, dated 5.2.2013.
2. The respondent herein is the plaintiff. The plaintiff has filed the suit for declaration to declare that the plaintiff is the lawful owner of the suit properties and for permanent injunction restraining the defendant, his men, rowdy elements from in anyway interfering with the plaintiff's peaceful possession and enjoyment of the suit properties and for costs of the suit.
3. Pending first appeal, the sole defendant Hyder Ali died and his heirs were brought on record as respondents/defendants 2 to 6 in the first appeal.
4. For the sake of convenience, the "plaintiff" is referred to as "plaintiff society" and the sole defendant is referred to as "deceased defendant".
5. The case of the plaintiff society is that the plaintiff society was formed and administered by the natives of Thondi town and was functioning for development of minority people of Muslim residing in and around Thondi town. The plaintiff society was promoting education, culture etc. The plaintiff society has given authorization to Abdul Rawoof Nisthar to look after the properties of the society and to manage the same for an on behalf of the plaintiff society. On 3.3.1988, the plaintiff society has purchased Nanja and Punja lands measuring 7.87 acres (3 acres 7 + cents nanja and 4 acres 79, cents punja) at Thiruvadanai Taluk, Tondi from Nathira Barveen and Others. The plaintiff society has also purchased 59 + cents of Nanja land and 1 acre 46s cents of Punja lands under registered sale deed dated 6.7.1988 from S.M.M.Mohamed Salim. From the date of purchase, the plaintiff society was in possession and enjoyment of the same.
6. According to the plaintiff society, it has purchased the above said property for construction of educational Institution and also community halls for the benefit of the minority people. Since the above said properties were not enough for construction of Colleges, the plaintiff society approached the northern and western side lands owners by way of letters requesting them to alienate their properties. Accordingly, the adjacent land owner S.M.Ajmal Hussain has given consent to alienate his land to the plaintiff society. Thereafter, plaintiff society searched for the donors to purchase the said lands. Finally, the sole defendant Hyder Ali had given consent to purchase the land in his name and to donate the same to the plaintiff society. Accordingly, the deceased defendant purchased the adjacent Nanja lands measuring 7 acres 87 cents and 6 acres 76 cents Punja lands from Kasabar Alikhan and Others under a registered sale deed dated 29.12.1989, which was shown as item No.1 in the suit schedule.
7. The deceased defendant had also purchased the adjacent land from Mohamed Saleem to an extent of 1 acres 52 cents Nanja land and 90 cents Punja under a registered sale deed 29.12.1989 and 30.12.1989 respectively. The deceased defendant had also purchased another 2 acres 30 cents Punja land from one Sulaikabeevi under a registered sale deed dated 29.12.1989 and 30.12.1989. The said lands were shown as item Nos.2 and 3 of the suit schedule.
8. According to the plaintiff society, after purchase, on 13.7.1991, the deceased defendant orally bequeathed the said properties to the plaintiff society before the members of the society as well as before W.P.Abdul Razak of Ex.Thondi Municipal Charman and on M.S.Abdul Solan of Thondi. The plaintiff society took possession of the above lands and was in peaceful possession and enjoyment of the same by paying kist. The oral gift given by the deceased defendant was recorded in the plaintiff's society Minutes book on 1.6.1992 and the oral gift given by the Hyder Ali was valid under Mohammedan Law. While so, the deceased defendant was trying to alienate the suit properties
