Second appeal by plaintiff challenging concurrent findings that a registered gift deed by his father in favour of the first defendant was valid. The court held a recital of delivery of possession in the gift deed binds the heirs and dismissed the appeal, finding no substantial question of law.
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R.S.A. No.361 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946 RSA NO. 361 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 04.02.2023 IN AS NO.35 OF 2019 OF SUB COURT,KATTAPPANA ARISING OUT OF JUDGMENT AND DECREE DATED 22.08.2019 IN OS.40/2018 OF MUNSIFF COURT, IDUKKI
APPELLANT/APPELLANT/PLAINTIFF:
ABDUL LATHEEF
S/O. ISMAIL, AGED 50 YEARS, ELAVUMTHADATHIL HOUSE, RAJAMUDY P.O., PATHINARAMKANDOM, VATHIKUDY VILLAGE, IDUKKI TALUK, IDUKKI DISTRICT, PIN - 685604
BY ADVS.SRI GEORGE MATHEW SMT.ELSA DENNY PINDIS SRI M.D.SASIKUMARAN SRI SUNIL KUMAR A.G SRI MATHEW K.T. SRI GEORGE K.V. SRI STEPHY K REGI SRI ADARSH KURIAN MS.MEDHA B.S.
RESPONDENTS/RESPONDENTS & ADDL.RESPONDENT/DEFENDANTS:
1 ABDUL SALAM
S/O. ISMAIL, AGED 64 YEARS, ELAVUMTHADATHIL HOUSE, KARIKODU P.O., UNDAPLAVU KARA, KARIKODU VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685584
2 ABDUL KARIM
S/O. ISMAIL, AGED 68 YEARS, ELAVUMTHADATHIL HOUSE, KARIKODU P.O. UNDAPLAVU KARA, KARIKODU VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT, PIN - 685584
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3 NAZER S/O. MYTHENE, AGED ABOUT 53 YEARS, KOCHUKUDIYIL HOUSE, MURICKASSERY KARA, VATHIKUDY VILLAGE, IDUKKI TALUK, IDUKKI DISTRICT, PIN – 685604
SRI K.R.PRATHISH (FOR CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18.12.2023, THE COURT ON 22.5.2024 DELIVERED THE FOLLOWING:
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T.R. RAVI, J.
R.S.A. No.361 of 2023
Dated this the 22 nd day of May, 2024
JUDGMENT
The plaintiff has preferred this second appeal challenging the concurrent findings of the trial court and the first appellate court. The substantial questions of law which have been formulated in the Memorandum of Second Appeal are as follows:
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appellant’s father had settled another 15 cents of land by document No.2905/2013 of SRO, Rajakumari. The appellant does not dispute the said document as one which has been executed by the father without really intending to be a settlement of his properties. The courts found that the appellant’s father had the necessary capacity to execute a document. There is no allegation that any fraud was committed in the Registrar’s office. It is also evident from Ext.A1 that the document was produced before the Registrar by the appellant’s father himself. As such, the validity of the execution of the document cannot be further challenged in this appeal. Then the only question is about the requirement of delivery of possession by the donor to the donee which is an essential element of a Mohammedan gift.
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property from the donor to the donee. For the validity of the gift, the donor must divest himself completely of all ownership and dominion over the subject of the gift ( Musammat Bibi v. Sheik Wahid (A.I.R (1928) Pat.183). In Clause 149 of his book the author says that the three essentials of a gift are (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee.
6 . In paragraph 150, the author says that it is essential to the validity of a gift that there should be a delivery of possession of the subject. The author says that as observed by the Judicial Committee, the taking of possession of the subject matter of the gift by the donee, either actually or constructively, is necessary to complete the gift. The author also says that registration of a deed of gift does not cure the want of delivery of possession. In paragraph 154 the author says that a declaration in a deed of gift that possession has been given binds the heirs of a donor. Reference has been made to the decision in Muhamm ad Mumtaz v. Zubaida
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Jan (1889) 16 I.A. 205 and other cases. In Ismail v. Idrish (A.I.R.1974 Pat.54) it has been held that a recital in a deed of gift that the donor has divested himself and put the donees in possession binds the donor’s heirs even if one of the heirs is later found in possession. It was held that such a gift is valid. In Abdul Sattar Ostagar v. Abu Bakkar Ostagar (A.I.R. 1977 Cal.132) a Division Bench of the Calcutta High Court held that when a father makes a gift of the dwelling house to his sons, and both the father and the donees are residing in the house, there is no need for delivery of possession. Bearing in mind the above legal propositions, I shall examine the case on hand.
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the instance of another heir of the donor on a contention that possession has not been handed over to the 1st defendant. When the gift deed specifically states about handing over possession, no further proof of delivery of possession is required, as far as another legal heir is concerned. The trial court and the First Appellate Court have considered the issue from the correct legal perspective and the decisions do not warrant any interference
No grounds are made out. No substantial questions of law arise. The second appeal fails and is dismissed.
Sd/-
T.R. RAVI
JUDGE
mpm
1 issue framed by the court
Whether a registered Muhammadan gift deed is invalid for want of proof of delivery of possession when challenged by another heir of the donor.
Colour shows how this judgement treated each authority
Musammat Bibi v. Sheik WahidReferred¶5
A.I.R (1928) Pat.183 · Who else cites this
Muhammad Mumtaz v. Zubaida JanReferred¶6
(1889) 16 I.A. 205
Ismail v. IdrishRelied on¶6
A.I.R.1974 Pat.54 · Who else cites this
Abdul Sattar Ostagar v. Abu Bakkar OstagarApplied¶6
A.I.R. 1977 Cal.132 · Who else cites this
Abdul Latheef
Abdul Salam
Abdul Karim
Nazer
T.R. Ravi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
