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1995 Supreme(All) 1247
HIGH COURT OF ALLAHABAD
B.K.Sharma
CHANDA BAI
Versus
SAIDA JAN
Decided On : 08 December 1995
Second Appeal No. 1616 of 1976
R.K.Pandey, S.K.Shukla, V.K.S.CHAUDHARY, YATINDRA SINGH,
A gift under Mohammedan Law is complete and valid upon delivery of possession to the donee, and a subsequent revocation of the gift deed is invalid unless made by a decree of court.
Headnote:
GIFT - MOHAMMEDAN LAW - DELIVERY OF POSSESSION - RECITAL IN GIFT DEED - BURDEN OF PROOF - REVOCATION OF GIFT - MORTGAGE BY DONOR - VALIDITY.
Fact of the Case:
Zahir Uddin executed a gift deed in favor of Smt. Saida Jan, which was registered. Later, he executed a registered deed purporting to revoke the gift deed and gave notice to Smt. Saida Jan. He also executed a mortgage deed in favor of Mohan Das Sindhi and Smt. Chanda Bai for a sum of Rs. 5,000/-. Smt. Saida Jan filed a suit for recovery of possession over a portion of the house and permanent injunction restraining interference with her possession over the remaining part of the house.
Finding of the Court:
The trial court found that the gift deed was duly executed and registered, that possession was delivered to the donee, and that the subsequent revocation of the gift deed was invalid. The lower appellate court upheld the findings of the trial court.
Issues: 1. Whether the gift deed was valid and complete under Mohammedan Law? 2. Whether the subsequent revocation of the gift deed was valid? 3. Whether the mortgage deed executed by the donor was valid?
Ratio Decidendi: 1. The court held that the gift deed was valid and complete under Mohammedan Law. It relied on the recital in the gift deed stating that possession had been delivered to the donee, the handing over of the original title deed and the gift deed to the donee, and the fact that the donee had been paying municipal tax for the house. The court also held that the burden of proof was on the defendants to show that no delivery of possession was in fact effected, and they had failed to discharge this burden. 2. The court held that the subsequent revocation of the gift deed was invalid. It held that a gift under Mohammedan Law could not be revoked except by a decree of court, and that a mere declaration by the donor that he had revoked the gift deed was of no avail. 3. The court held that the mortgage deed executed by the donor was invalid. It held that the donor had divested himself of all rights in respect of the house by making a valid gift in favor of the donee, and therefore he had no authority to execute a mortgage deed in respect of it.
Final Decision: The court dismissed the appeal and upheld the judgment and decree of the lower appellate court.
This is an appeal against the judgment and decree dated 12. 8. 1976 passed by Sri Chandra Mohan, District Judge, Banda in Civil Appeal No. 63 of 1971, Mohan Das and others v. Smt. Saida Jan, whereby he dismissed it and confirmed the judgment and decree passed by IIIrd Additional Civil and Sessions Judge, Banda in Original Suit No. 10 of 1970, Smt. Saida Jan v. Mohan Das and another.
2. Smt. Hasmat Jan had executed a gift-deed (Ex. 4) on 23. 4. 1938 in favour of Zahir Uddin. Sri Zahir Uddin executed a gift-deed dated 8. 7. 1957 (Ex. 1) in favour of Smt. Saida Jan, present plaintiff- respondent, which was registered on 5. 8. 1957. On 26. 4. 1960 Zahir Uddin executed a registered deed Ex. A-5 purporting to revoke the aforesaid gift-deed dated 8. 7. 1957 in respect of the disputed house. He also gave a notice (Ex. 6) on 30. 4. 60 to Smt. Saida Jan informing her of his said revocation deed. On 1. 7. 68 Zahir Uddin executed a mortgage deed with possession in respect of the said house in favour of original defendants-appellants Mohan Das Sindhi and Smt. Chanda Bai for a sum of Rs. 5,000/ -.
3. The suit had been brought by Smt. Saida Jan against Mohan Das and wife Smt. Chanda Bai in respect of the house in dispute claiming decree for recovery of possession over a portion of it (and also seeking damages in respect of it) and also seeking permanent prohibitary injunction restraining in terference with her possession over the remaining part of the house. She claimed that she was owner in possession by virtue of the registered gift-deed dated 8. 7. 57, that she was given actual possession over the house and the title of deceased Zahir Uddin had come to an end on the execution of the gift-deed ; that she had brought Original Suit No. 416 of 68 seeking permanent injunction against Mohan Das Sindhi on 19. 8. 68 and interim prohibitary in junction was granted therein and served on him restraining interference with her possession, but despite the injunction order he took forcible possession over a part of the house specified in the plaint and in the site plan by break ing open lock in the night between 21st and 22nd August, 1968.
4. The original defendant-appellants took various pleas. Some of the pleas were that the gift was obtained by playing fraud ; that the gift was incomplete and so was invalid ; that it was not followed up by actual possession by donor to Smt. Saida Jan and that there was a valid revocation of the gift deed
and further that the mortgage deed was valid one and in pursuance of the said mortgage deed Smt. Chanda Bai entered into possession of the disputed house.
5. The said defendant-appellants pleaded that Zahir Uddin was in posses sion all along uptil the time of the mortgage deed and thereafter the mortgagee Smt. Chanda Bai was in actual possession over the entire disputed property. Numerous other pleas were also taken but the same need no details,
6. The trial court found that the execution of the gift deed dated 8. 7. 1957 by Zahir Uddin in favour of Saida Jan plaintiff and its attestation was not disputed, that before the gift-deed she (the plaintiff i. e. the donee) was living separate from Zahir Uddin in separate house along with her parents and other relations but on the day following the date of execution of the gift-deed she actually shifted to the house in suit with her all belongings and she had been living in it since then and Zahir Uddin continued to live in the house with her (plaintiff) till his death, that she used to cook and provide food to Zahir Uddin, that he had actually become dependent on her (plain tiff) since he had no means of his livelihood, that the wife of Zahir Uddin had died long ago, that Zahir Uddin had no issue of his own ; that the gift-deed itself contained the recital that from the date of the gift deed the donee has been put in proprietary possession and occupation of the premises and was free to let it out on rent or to transfer it in any other mode and that the don
