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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. RAJASURIA, J.
P.M.Nawabjan – Appellant
Vs.
Dr.N.Nazeer Ahmed – Respondent
S.A.No.946 of 2010
Decided On : 28-06-2011
Hiba - Muslim Law - Transfer of Property Act - Adverse Possession - Limitation - Cancellation of Hiba - Revocation of Gift - Delivery of Possession - Burden of Proof - Onus of Proof - Gift - Settlement Deed - Cancellation Deed - Legal Notice - Limitation Act - Article 59 - Adverse Possession - Intention to Dispossess - Open, Continuous and Hostile Possession - Animus Possidendi - Title by Adverse Possession - Burden of Proof.
Fact of the Case:
The respondent/plaintiff filed a suit seeking a declaration and permanent injunction, claiming title to the suit property based on a settlement deed (Hiba) executed by the appellant/defendant in 1972. The defendant resisted the suit, asserting that the Hiba was void ab initio as it lacked delivery of possession and was subsequently cancelled by him in 1987. The trial court dismissed the suit, but the first appellate court reversed the decision and decreed the suit in favor of the plaintiff. The defendant appealed to the High Court, raising substantial questions of law.
Finding of the Court:
The High Court held that the Hiba was valid under Muslim law, as the recitals in the settlement deed indicated that the donor intended to part with possession of the property in favor of the minor donee's guardian. The court found that the onus of proof was on the defendant to prove that the Hiba was not acted upon, and that he failed to discharge this burden. The court also held that the defendant could not unilaterally cancel the Hiba, as it was a valid gift under Muslim law. The court further found that the plaintiff's failure to respond to the defendant's legal notice regarding the cancellation of the Hiba did not amount to acceptance of the cancellation. The court also rejected the defendant's plea of adverse possession, as he failed to prove the necessary elements of open, continuous, and hostile possession.
Issues: 1. Whether the Hiba was valid under Muslim law, considering the absence of express delivery of possession. 2. Whether the defendant could unilaterally cancel the Hiba, given that it was a valid gift under Muslim law. 3. Whether the plaintiff's failure to respond to the defendant's legal notice regarding the cancellation of the Hiba amounted to acceptance of the cancellation. 4. Whether the defendant's possession of the suit property could be considered adverse possession, barring the plaintiff's claim.
Ratio Decidendi: 1. Under Muslim law, a Hiba (gift) is complete upon declaration of the gift, acceptance by the donee, and delivery of possession. However, in the case of a gift by a father to his minor child, delivery of possession is not required, as the father's possession is deemed to be the child's possession. 2. A valid Hiba cannot be unilaterally cancelled by the donor. 3. Failure to respond to a legal notice does not necessarily amount to acceptance of the contents of the notice. 4. Adverse possession requires open, continuous, and hostile possession, which the defendant failed to prove.
Final Decision: The High Court dismissed the defendant's second appeal, upholding the judgment and decree of the first appellate court. The court found that no substantial question of law was involved and that the defendant failed to prove any error in the lower court's decision.
JUDGMENT :-
1. This Second appeal is focussed by the defendant, animadverting upon the judgment and decree dated 16.6.2009 passed by the Principal District Judge, Dharmapuri, reversing the judgment and decree dated 27.8.2008 passed by the Subordinate Judge, Dharmapuri, in O.S.No.59 of 2000, which was filed for declaration and permanent injunction.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The respondent herein, as plaintiff, filed the suit seeking the following reliefs:
"To pass a judgement and decree
"a. declaring the title of the suit property in favour of the plaintiff on the basis of the Settlement deed dated 19.6.1972;
b. consequently interdict the defendant from alienating or encumbering the suit property by means of permanent injunction;
c. award costs of the suit." (extracted as such)
(b) The appellant/defendant filed the written statement resisting the suit.
(c) Whereupon the trial Court framed the issues. The plaintiff examined himself as P.W.1 and Exs.A1 to A4 were marked. The defendant examined himself as D.W.1 and Exs.B1 to B7 were marked.
(d) Ultimately the trial Court dismissed the suit, as against which, the appeal was filed. Whereupon the first appellate Court reversed the judgment and decree of the trial Court and decreed the suit as prayed for.
4. Being aggrieved by and dissatisfied with the said judgment and decree of the first appellate Court, this second appeal has been filed by the defendant on various grounds and also suggesting the following substantial questions of law:
"1.When possession of the suit property was admittedly with the appellant herein whether Muslim law permits him to cancel and revoke the deed of settlement Ex.A1 as the gift itself was void ab initio and in these circumstances whether Section 126 of Transfer of Property Act be applicable against the principles of Muslim law relating the law of Gifts?
2. Whether the provisions of the Transfer of Property Act ware applicable to the Muslims transacting transfer of their properties as per the Muslim law (Shariat Law) when Section 2(d) of Transfer of Property Act itself exempts its application by declaring "nothing in the II chapter of this Act shall be deemed to affect any rule of Muhammadan Law?
3. Whether the suit as filed by the respondent/plaintiff after the statutory period of limitation was not barred by Article 59 of the Limitation Act and whether Article 59 of the Limitation Act is not applicable to the present case as held by the lower appellate Court?
4. Whether the appellant herein who was admitted to be continuously in possession even after execution of the deed of settlement Ex.A1 would take benefit of plea of adverse possession even though it was not claimed in his written statement while the Hon'ble Supreme Court of India was pleased to hold that in those circumstances it was necessary for the court to give finding on title even if the defendant in possession had not pleaded or proved adverse possession? (AIR 1990 SC 717)
5. Whether the appellant having possession of the suit property for more the statutory period of limitation and in view of his long possession for more than 12 years whether the title of the property became an unassailable one.
6. Whether the conclusion of the lower appellate Court that the revocation of the deed of settlement Ex.A1 was not applicable in Muhammadan Law without getting a decree from a court while the Muslim law clearly holds that gift without delivery of possession was void ab initio and as such its revocation was legal."
(extracted as such)
5. Heard both.
6. At the outset itself I fumigate my mind with the principles as found embodied in the following judgments of the Honourable Apex Court: (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHA
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