IMPORTANT POINTS
(1) Gift deed – Validity - To be valid gift under Muhammadan Law three essential features declaration of gift by donor ,acceptance of gift by donee expressly or impliedly and delivery of possession either actually or constructively to donee, are to be satisfied
(2) Gift deed – Validity - Relinquishment by donor of ownership and dominion – Right to take usufructs –Condition in gift deed that whole of usufructs shall be taken by donor during his lifetime would not make gift deed invalid, if possession of subject matter of gift was given to donee.

JUDGMENT

The judgment and decree dated 17.06.2004 of the Additional Munsiff-II, Neyyattinkara in O.S.No.516 of 2003 were reversed in appeal, A.S.No.99 of 2004 by the Sub Judge, Neyyattinkara as per the judgment dated 18.09.2010. The Appellate Court on setting aside the decree granted by the Munsiff in favour of the plaintiff, dismissed the suit. The plaintiff is therefore in appeal before this Court under Section 100 of the Code of Civil Procedure, 1908.

2. On 17.02.2011, this Court formulated the following substantial question of law, on which, this appeal was admitted,—

“When Ext.A1 gift deed provides for taking usufructs from the property gifted by the donor during his life time, whether the finding of the courts below that the donor did not part with possession is sustainable and if so, whether Ext.A1 gift deed is not valid.”

3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents.

4. The facts relevant for the appreciation of the question of law are stated thus:

The appellant is the son of Sri.Mohammed Kannu. He had executed Ext.A1 settlement dated 18.10.1989 in favour of the appellant. The appellant claims that he had accepted the gift and taken over possession of the property. He effected mutation and paid tax. While so, Sri.Mohammed Kannu executed Ext.B1 cancellation deed on 02.03.1995. That followed Exts.B2 and B3 sale deeds. The appellant alleging that his possession was tried to be interfered with by the respondents, who are his sister-in-law and sisters, instituted the suit for a decree of declaration of his title and injunction.

5. Respondents No.1 and 2 contended that Ext.A1 settlement deed did not come into effect for want of delivery of the property by the donor. The recital in Ext.A1 that the donor retained possession of 2½ cents, out of the total 3 cents and also retention of right of enjoyment of whole of the property are highlighted by respondents No.1 and 2 and took the stand that the gift as per Ext.A1 is not a valid one. The trial court after appreciating the aforesaid documents and also the oral testimonies of DW1 and also the Commissioner, held that the gift as per Ext.A1 was a valid one and that resulted in granting a decree as prayed.

6. The First Appellate Court considered in detail the recital in Ext.A1 in the light of the law governing a Mohammedan Gift and held that, possession of the property was not delivered over to the appellant in terms of Ext.A1, and therefore the same remained as an unenforced gift. The First Appellate Court held that, not only possession of 2½ cents of property was not handed over, but also the right to take usufructs was retained by the donor. The court took the view that retention of right to take usufructs on its own, may not invalidate a Mohammedan gift, however, the recitals in Ext.A1 enable only one interference that possession of 2½ cents of property was not delivered over to the donee, and therefore, a valid gift was not constituted as per the deed.

7. The learned counsel appearing for the appellant would submit that other than the right to take usufructs, nothing has been retained by the donor and the view taken by the First Appellate Court is inconsistent with the true intendment of the recitals in Ext.A1. The learned counsel for the appellant by placing reliance on Sections 148 and 149 of Mulla’s Mahomedan Law, 20th Edition, contended that all the ingredients insisted therein for valid gift are satisfied by the gift as per Ext.A1.

8. Per contra, the learned counsel appearing for respondent Nos.1 and 2 placing reliance in Pichakannu v. Aliyarkunju Lebba [1963 KLT 226], Kunhayissu v. Chirukandan [1971 KLJ 796], Ibrahim Kunju Shahul Hameed and others v. Pakkeer Muhammed Kunju and others [1984 KLJ 890], Mahboob Sahab v. Syed Ismail and others [(1995) 3 SCC 683], Hafeeza Bibi and others v. Shaikh Farid (dead) by LRs. and others AIR 2011 SC 1695] and Rasheeda Khatoon (dead) through LRs. v. Ashiq Ali (dead) throu