2020 Supreme(All) 1308

IN THE HIGH COURT OF ALLAHABAD
Jaspreet Singh, J.
Nafees Ahmad - Appellant
Vs.
Ghulam Mohd. - Respondent
Second Appeal No. 77 of 2016
Decided On: 16-04-2020

The three essential requisites to make a gift valid under the Muhammadan law are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee expressly or impliedly, and (3) delivery of possession either actually or constructively to the donee.

Headnote:

GIFT - MOHAMMEDAN LAW - ORAL GIFT - ESSENTIALS - BURDEN OF PROOF - POSSESSION - MUTATION OF NAME IN NAZUL AND NAGAR PALIKA RECORDS - CONCURRENT FINDINGS OF FACT - INTERFERENCE IN SECOND APPEAL.

Fact of the Case:

Plaintiff Smt. Shah Jahan Begum instituted a suit against Defendant Nafees Ahmad for declaration and mandatory injunction in the Court of Civil Judge (Senior Division) Faizabad which was registered as Original Suit No. 428/1993. The suit was instituted on the ground that the property bearing House No. 9/12/247, situate in Mohalla Fatehgarh, Pargana Haveli Awadh, Tehsil and District Faizabad, situated on Nazul Plot Nos. 1598 and 1599, Chak No. 12, Faizabad, was the property of one Shri Nabi Ahmad (husband of Smt. Shah Jahan Begum). It was pleaded that Shri Nabi Ahmad had orally gifted the aforesaid house to his wife Smt. Shah Jahan Begum who became its owner in possession. However, after the death of Shri Nabi Ahmad, his mother and sister had instituted a suit for partition, which was decided in terms of a compromise decree dated 28.09.1986 wherein Smt. Majira (mother of Nabi Ahmad) and Smt. Mahsar Jahan (sister of Nabi Ahmad) acknowledged the exclusive rights and possession of Smt. Shah Jahan Begum in respect of the aforesaid property while a sum of Rs. 68,000/- was to be paid by Smt. Shah Jahan Begum, out of which a sum of Rs. 60,000/- was paid at the time of the compromise whereas a sum of Rs. 8,000/- was to be paid in monthly installments of Rs. 1,000/- each commencing from November, 1986. Since, Smt. Majira expired in May, 1987, accordingly, the last installment of Rs. 1,000/- was paid to Smt. Mahsar Jahan in June, 1987 and the property came in the exclusive ownership and possession of the plaintiff Smt. Shah Jahan Begum. It was further pleaded that after the death of her husband, she faced difficulties in running a flour mill and a general store which was situate on the ground floor of the aforesaid property and in order to tide over the crisis, she took the assistance of the defendant i.e. Nafees Ahmad, to look after the business for the plaintiff. It was also pleaded that the defendant Nafees Ahmad was a known acquaintance of her late husband and initially he carried out his duties with full earnestness. Since, the plaintiff was the sole legal heir of her father, who had some properties, situate in District Lucknow, hence, the plaintiff had to visit Lucknow to look after the properties that she inherited from her father, apart from the properties as well as the business, she inherited through oral gift from her late husband. It was also pleaded that the defendant expressed his difficulties regarding accommodation and the plaintiff taking a lenient view allowed the defendant Nafees Ahmad to stay in the house in question along with his family. However, the mess of the defendant was separate than of the plaintiff. It was stated that the plaintiff heard some rumours that the defendant had started claiming ownership rights in respect of the property in question on the basis of some gift. Thereafter, she made inquiries and it revealed that the defendant had got his name mutated in the Nazul record as well as in the Nagar Palika in respect of the house in question. The plaintiff stated that she was an illiterate, pardanashi widow, who could only sign her name in Urdu and as such she had not made any oral gift in favour of the defendant nor she had even given her consent for mutating the name of the defendant in respect of the property in question and it is in this backdrop that she had made an application for cancelling the mutation order in the Nazul Department. However, the same was rejected and thereafter she preferred the instant suit seeking a decree for declaration that the alleged oral gift claimed by the defendant be declared as null and void as well as the decree for mandatory injunction seeking the possession of the premises in question from the defendant as he was merely a licencee.

Finding of the Court:

The Court found that the defendant could not establish that he arranged and gave the payment to the plaintiff, a sum of Rs. 68,000/- which was paid by the plaintiff to Smt. Majira and Smt. Mahsar Jahan. It also concluded that the alleged gift which is said to have been made in the month of January, 1987 whereas in terms of the compromise arrived at between the Smt. Shah Jahan Begum, Smt. Majira and Smt. Mahsar Jahan, the payment in terms of the compromise ended in the month of June, 1987, hence, it did not find favour with the fact that the oral gift was made by Smt. Shah Jahan Begum in January, 1987 when she did not herself had full rights in respect of the property. The Court also found that the financial status of the plaintiff and the defendant was hugely at variance which also did not support the case as set up by the defendant. The Court also noticed that the defendant did not indicate any date on which the oral gift was made and only an assertion was made by the witness of the defendant that it was made in the month of January, 1987 but found that once the registered will was executed in January, 1987, the making of the oral gift in the month of January, 1987 was suspicious. Moreover, it found that during evidence the defendant-witness, Mohd. Kaleem, stated that the gift was made on the last Friday in the month of January, 1987 whereas the name of the said witness was never mentioned in the pleadings coupled with the fact that the signatures of the plaintiff and her alleged statement made before the Nazul Department also raised a suspicion and consequently for all the reasons the factum of oral gift made by the plaintiff in favour of the defendant did not find favour with the trial court.

Issues: 1. Whether the plaintiff is the owner of the property in question; 2. Whether the defendant has illegally occupied the property and if so its effect; 3. Whether the plaintiff is entitled to the decree of mandatory injunction; 4. Whether the defendant is the owner of the property in question and if so its effect.

Ratio Decidendi: The three important ingredients as discerned from the aforesaid propositions are (i) the donor must make a declaration of the gift; (ii) the oral gift should be accepted by the donee which may be express or implied; and (iii) the possession of the property, subject matter of the gift, should be transferred from donor to the donee and the delivery of possession may be either actual or constructive.

Final Decision: The second appeal is dismissed.