Case Summary
| Citation | Hayatuddin v. Abdul GaniAIR 1976 Bom. 23 |
| Keywords | |
| Facts | The case dealt with the validity of the gift of Musha (undivided share) where the property was divisible. Lamiya (Husband) had admittedly two wives, Rashidbi and Makboolbi. And, he also had a sister named Amnabi. He died in 1948 leaving behind the house property in dispute. His two widows and the sister admittedly succeeded over his estate. Amnabi got 12 annas share and the two widows, Rashidbi and Makboolbi, got 2 annas share each. Amnabi and Rashidbi through a gift deed gifted their house property valued at Rs. 1,000/- to a person named Hayatuddin. The share of Makboolbi was already separated from the property before executing the gift deed. As per the gift deed, the property was already in possession of donee, which was later handed over to him properly and the gift deed also permitted the donee to use the property in the manner he wants to use it. The donors gifted their shares of the value of 14 annas in the property to the donee and mentioned that none of the heirs of the donors would have any interest in the gifted property. In 1955 the two donors as plaintiffs Nos. 1 and 2 and donee filed a civil suit to declare Hayatuddin (donee) as the owner of the property, and an alternative relief of partition and separate possession was also claimed in the plaint. Makboolbi who was a defendant, stated in the court that the gift in favour of the present plaintiffs was not binding on her two annas share in the property.The two tenants who were in physical possession of the property were also added as defendants. The suit was decreed by the trial Court in favour of plaintiffs. The suit for which this appeal arose was filed to declare Hayatuddin the owner of the property where the defendant who was plaintiff in the former suit contended that the former suit applies as res judicata upon this suit and the gift is void. Issue Involved |
| Issues | Whether the gift of an undivided share in a property which was divisible valid or not |
| Contentions | |
| Law Points | Observations The case dealt with the gift of Musha (undivided share) where the property was divisible. The property was partly in occupation of donee and partly of the tenant. The donor intimated orally and subsequently by the notices to the tenant about the gift and delivery of possession to donee. The donors also joined as co-plaintiff in the suit filed by the donee for declaration that he was in possession of the property gifted. It was held that the donors had done everything possible to hand over possession of the premises which they wanted to gift to the donee. It was further held that it could not be said that the possession of undivided share was not transferred by the donors to the donee therefore, the gift was valid. |
| Judgement | The court restored the decree passed by the trial court. |
| Ratio Decidendi & Case Authority |
Full Case Details
CHANDURKAR, J. – This is a plaintiff’s appeal challenging the dismissal of his suit for a
declaration and injunction that he was lawfully in possession of house property in suit in
pursuance of a gift deed dated 10-6-1952 executed in his favour by one Rashidbi and Amnabi.
The suit was decreed by the trial Court but was dismissed by the first appellate Court. One
Lalmiya had admittedly two wives, Rashidbi and Makboolbi. One Mahaboolbi also claimed to be
Lalmiya’s wife. Lalmiya had a sister Amnabi. He died in 1948 leaving behind the house property
in dispute. Amnabi, Rashidbi and Makbolbi admittedly succeeded to the estate of Lalmiya.
Amnabi got 12 annas share and the two widows. Rashidbi and Makpoolbi got 2 annas share each.
Amnabi and Rashidbi executed a gift deed in favour of Hayatuddin on 10-6-1952. The recitals in
the said gift deed show that they were gifting their house property valued at Rs. 1,000/- to
Hayatuddin. The description of the property recited in the gift deed shows that according to the
donors a part of this property was already separated and handed over to Makboolbi on account of
her share in the estate of Lalmiya. The gift deed also recites that the property gifted was in
possession of the donee and that possession was handed over to the donee and the donee being
the owner was entitled to make use of the property in any manner he liked. It was further recited
in the gift deed that Makboolbi’s 2 annas share had been separated, that the donors were gifting in
favour of the donee their interest in the property of the value of 14 annas and that none of the
heirs of the donors would have any interest in the gifted property.
2. In 1955 the two donors as plaintiffs Nos. 1 and 2 and doneeHayatuddin filed Civil Suit No.
227 of 1955 for a declaration that Hayatuddinwas the owner of the property and an alternative
relief of partition and separate possession was also claimed in the plaint. The main contestants in
that suit were Makboolbi who claimed that the gift in favour of the present plaintiff was not
binding on her two annas share in the property of deccasedLalmiya and Mahabolbi who also
claimed to be the widow of deceased Lalmiya. The two tenants who were in physical possession
of the property in dispute. Sk. Chhotu and Mohd. Gulab, were defendants Nos. 3 and 4 in the suit.
The Civil Judge, Class II, Nagpur who decided that suit by his judgment dated 25-1-1956 held
that there was no partition in 1950 as alleged by the plaintiff and the house property which was
mentioned in the gift deed was not allotted to the plaintiffs Nos. 1 and 2. It however, found that in
fact the gift had been made of the portion A B C X Y H I J by the plaintiffs Nos. 1 and 2 to the
plaintiff No. 3 on 10-6-1952 but that the said gift did not bind Makboolbi who had 2 annas share
in the suit property. It was also found that the plaintiff No. 3 i.e.Hayatuddin was not placed in
possession of the property said to have been gifted under the gift deed. The claim of Makboolbi
that she was the window of Lalmiya was negatived. Makboolbi’s share to the extent of 2 annas
having been upheld in that suit, the trial Court passed a decree in favour of the plaintiffs Nos. 1
and 2 defendant No. 1 who were found entitled to get 12 annas, 2 annas and 2 annas share
respectively in the suit house and the plaintiffs Nos. 1 and 2 were jointly held entitled to get 7/8th
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share in the said house which was directed to be separated by metes and bounds subject to their
payment of the proportionate amount of dower debt within three months’ time from the date of
decree to the defendant No. 1. A commissioner was appointed. It is not now in dispute that after
Makboolbi’s appeal negativing her status as a widow of Lalmiya came to be dismissed, a final
decree for partition was passed allotting to the share of the original plaintiffs Nos. 1 and 2
Amnabi and Rashidbi, the same part of the house property which was gited by them to
Hayatuddin. One intervening event which must be referred to is that during the pendency of the
appeal filed by Makboolbi, Amnabi died on 18-11-1956 and the present defendants Nos. 1 to 6
were brought on record as her legal representatives in the appeal. While disposing of the civil
suit, the trial Court had declined to pass a decree in favour of the plaintiff No. 3 without giving
any reasons but the observation made was “rest of the Plff.’s claim seems to me misconceived in
view of the facts pleaded by them and as made clear in my discussion above.”
3. The suit out of which this appeal arises then came to be filed by Hayatuddin along with
Rashidbi who was original plaintiff No. 2 in the earlier suit for a declaration that Hayatuddin was
the exclusive owner of the property described in the schedule which, according to him was gifted
to him on 10-6-1952 by Rashidbi and Amnabi. The plaintiff alleged that since the date of the gift
he has been in possession of the said property and has also introduced tenants therein but that on
the strength of the decree passed in Civil Suit No. 277-A of 1955 the defendants who were earlier
suit brought on record in the earlier suit as legal representative of Amnabi tried to dispossess
him. The present defendants raised a twofold defence to the suit. They firstly relied on the fact
that the claim of the present plaintiff who was plaintiff No.3 in the earlier suit was rejected and
secondly, they contended that the gift was void and the judgment in the earlier suit operated as res
judicata. The trial Court found that the gift deed dated 10-6-1952 would operate in respect of the
separate share in the suit property which is represented by the letters A B C X Y H I J in the
plaint map, and that the donors Amnabi and Rashidbi admitted to have gifted the said house
property to the plaintiff. It also found that the present defendants did not inherit any property
from Amnabi and they were not entitled to possession of the suit property. It further found that
the decree in Civil Suit No. 227-A of 1955 did not operate as res judicata and the suit field by the
plaintiff was competent. In view of this finding a declaration was granted to the plaintiff
Hayatuddin that he was the exclusive owner of the suit house as described in the plaint map and
the defendants were restrained permanently from disturbing the plaintiff’s possession and
eniovment of the suit house.
4. In the appeal filed by the defendants the lower appellate Court took the view that the
decision of the earlier suit operated as res judicata and there was no partition between Rashidbi
and Amnabi on the one hand and Makboolbi on the other until the decree in Civil Suit No. 227-A
of 1955 was passed. It held that the two principal findings in the suit were that there was no
partition before the gift deed and Hayatuddin was not placed in possession of the property
mentioned in the gift deed. Even according to the lower appellate Court, there was no finding
about the validity of the gift deed, and one of the questions posed for consideration by the lower
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appellate Court was whether the gift deed in favour of Hayatuddin was valid. It, however, took
the view that since delivery of possession was one of the two prerequisites of a valid gift and
properties which were enjoyed by tenants-in-common were incapable of being placed in
possession and it held that the property which was gifted to Hayatuddin not having been divided
at the time when the gift was made it could not be valid. The question whether the present gift
could be considered as one of undivided share was disposed of by the learned Judge by
observing:
“A portion of an undivided property may be gifted to a co-owner also under certain
circumstances but that is not the case here.”
It is therefore apparent from the judgment that the validity of the gift considered by the lower
appellate Court was only with reference to the fact that the property not having been partitioned
prior to the suit of 1955 there could not be delivery of possession by Rashidbi and Amnabi in
favour of Hayatuddin. The present appeal has been filed by the plaintiff challenging the judgment
of the lower appellate Court
5. Now, the learned counsel appearing on behalf of the defendants was not in a position to
dispute the fact that there was no finding by the Court which decided the earlier suit with regard
to the validity of the gift. When it was contended on behalf of the appellant that the gift made by
the two donors in favour of the present plaintiff was in respect of an undivided portion i.e. 7/8ths
share owned by Rashidbi and Amnabi, it was urged on behalf of the defendants that the trial
Court had in the earlier suit found that there was no partition at which the property was divided
into two shares, one belonging jointly to Rashidbi and Amnabi and the other to Makboolbi, and
that the trial Court had also found that possessionwas not given and the logical inference from
these two findings therefore would be that the gift was invalid and even though expressly no
finding was arrived at by the learned Judge of the trial Court in the earlier suit, such a finding
must be read in the judgment with the result that the validity of the gift deed could not again be
adjudicated upon in the present suit. It is difficult to accept the contention that though no finding
has been reached by the trial Court in the earlier suit that the gift was invalid the judgment in that
suit must be read as leading to that inference and it must be assumed that that finding was given
and consequently the validity of the gift could not be put in issue in the present suit. Such a
course would be contrary to the established principles under S. 11 of the Code of Civil Procedure
which contemplates primarily an issue which is decided in the earlier suit and an issue on which
parties have gone to trial putting certain matters directly and substantially in issue. A reference to
Explanation IV to Section 11 would also not be of any assistance to the defendants because
Explanation IV refers to a plea which might or ought to have been taken as a ground of defence
of attack in the former suit and which has not been raised. What the learned counsel, however,
wants to be done is that the finding is to be read as having been given because that is the natural
inference which, according to him follows from the two findings recorded with regard to partition
and possession.
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6. There is another difficulty which it will be difficult for the defendants to get over. The
finding with regard to the validity of the gift was not a finding which was necessary in order to
give relief to any of the three plaintiffs in the earlier suit against the defendants in that suit. The
present defendants were the legal representatives of one of the plaintiffs in the earlier suit. If the
finding was to be res judicata between the present defendants and the plaintiffs in the earlier suit,
namely Hayatuddin and Rashidbi then it would have to be shown that there was a conflict of
interests between the plaintiffs in the earlier suit and that it was necessary to decide that conflict
in order to give relief against the defendants. The pleadings in the earlier suit do not leave anyone
in doubt that the plaintiff No. 1 Hayatuddin was wholly supported by the original plaintiffs Nos. 1
and 2. In fact their whole object in joining as plaintiffs Nos. 1 and 2 in the earlier suit was to
indicate that they have acted on the gift made in favour of the plaintiff No. 3 and that they wanted
to reiterate the fact that their 7/8ths joint interest in the property left by Lalmiya has been gifted
by them to the plaintiff No. 3. In other words, they completely stood by the gift they made in
1952 and that is why they firstly prayed for a declaration with regard to the ownership of the
plaintiff No. 3 and alternatively claimed a relief for partition and possession. There was, therefore
no conflict of interest between the plaintiffs Nos. 1 and 2 in the earlier suit and the plaintiff No. 3.
The fact that the trial Court did not grant a decree in favour of the plaintiff No. 3 but granted a
decree in favour of the first two plaintiffs was wholly immaterial. In any case the question about
the validity of the gift was a question inter se between the three plaintiffs and was not required to
be decided for giving any relief to any one of them inter se because the prayer made by all the
three of them was common. There was therefore to be no question of any finding on the validity
of the gift being res judicata even assuming that there was any implied adjucication about the gift
between the plaintiffs inter se. The learned Judge of the lower appellate Court was right in going
into the question of the validity of the gift though it will not be possible to agree with the
conclusion which he has reached on the issue.
7. The learned counsel appearing on behalf of the respondents has referred to two decisions.
In Mohammed Hassan v. Mehdi. Hasan [(AIR 1946 All 399)] the question was whether a
finding with regard to the validity of a will between codefendants who were all interested in
having the will upheld would be res judicata between them in later suit and it was observed that
where in a suit to challenge the validity of a will the question of the validity of the will is not one
between the plaintiff and one of the defendant but is one in which all the defendants who are
beneficiaries under the will are interested the decision in the suit operates as res judicata between
the (parties and) decision is more or less, like a decision in a partition suit. The main ground on
which this decision was reached was that all the defendants were beneficiaries under the will and
each one of them was interested in having the will upheld and that finding would bind them. In
the second decision in AyyaPillad. vAvyadurai [(AIR 1935 Mad 81)] the learned single Judge of
the Madras High Court referred to the three elements which were required to constitute a decision
res judicate between co-defendants. These were: (1) There must be conflict of interest between
the defendants concerned ; (2) it must be necessary to decide the conflict in order to give plaintiff
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the relief he claims and (3) the question between the defendants must have been finally decided.
The learned Judge further took the view that there need not be any active contest between the codefendants and a conflict may exist notwithstanding that one of the concerned defendants does
not contest at all. It is difficult to see how this decision is of any assistance to the defendants.
What was sought to be emphasized by the learned Judge was that what was necessary was not a
contest by the co-defendants but a conflict of interest and the very fact that one of defendants did
not raise any contest did not prevent a decision being res judicata between the co-defendants if
there was a conflict of interest between them.
8. It is, therefore, necessary to decide in this case whether the gift is to operate with regard to
the 7/8ths interest of Amnabi and Rashidbi, and when in lieu of the interest certain house property
has been allotted to the plaintiff in the earlier suit, the plaintiff was entitled to a declaration of
ownership in respect of the property which was already in his possession. It is true that the gift
deed initially proceeds on the footing that Makboolbi’s share has been separated and the property
described therein is stated to be belonging wholly to the two donors. But at the same time the gift
deed unequivocally transfers in favour of Hayatuddin the 14 annas joint interest of the two donors
Rashidbi and Amnabi. The finding that there was no partition earlier before the gift was made
must be accepted for the purposes of the present litigation. But merely on that account it is not
possible to hold that there was no transfer of interest of the two donors in favour of the present
plaintiff. There is a clear intention on the part of the donors to divest themselves of their 14 annas
interest in the property of Lalmiya and vest that property in the donee. It is also not in dispute that
the interest which they purported to transfer was in the house left behind by Lalmiya, and in my
view notwithstanding the finding that there was ne earlier partition and the partition came to be
made for the first time as a result of the decision of the 1955 suit, the gift must operate in respect
of the 14 annas share of the two donors in the house in dispute. It is not disupted that there can be
a gift of an undivided share under Mohamadan Law. It will not be correct to say that this is not
the claim of the plaintiff. In the earlier suit the plaintiff had no doubt claimed primarily a relief of
declaration that the present plaintiff was the owner of the suit property but there was also a claim
for an alternative relief of partition and separate possession in the earlier suit itself. The
alternative claim could not have been made except on the hypothesis that they had an undivided
interest which they wanted to be separated and placed in possession of. It is this alternative prayer
which has been granted in the earlier suit. The argument therefore, that at no stage was any claim
made that an undivided interest was being transferred cannot be sustained. Even in the present
suit the plaintiff’s case is that he was the donee of 7/8th interest of Rashidbi and Amnabi and that
the house property which is mentioned in the gift deed formed 7/8th interest; it is that of which he
is in possession, and that possession is under the gift deed, now and, therefore, he was entitled to
peaceful possession and enjoyment of that property. There was hardly anydefence to such a suit
in the face of the gift deed except the validity of the gift and the technical plea of res judicata.
Now, the learned Judge of the lower appellate Court has merely considered the case of the
plaintiff on the footing that the gifted property could not be put in possession as separate
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property. The law relating to the gift of undivided property under Mohammedan Law is put in
two parts in paragraphs 159 and 160 of the Principles of Mahammedan Law by Mulla 17th
Edition. It is stated;
“159. Gift of mushaawhere property indivisible. A valid gift may be made of an
undivided share (mushaa) in property which is not capable of partition.
160.Gift of mushaawhere property divisible. A gift of an undivided share (mushaa)
in property which is capable of division is irregular (fasid) but not void (batil). The gift
being irregular, and not void, it may be perfected and rendered valid by subsequent
partition and delivery to the donee of the share given to him. If possession is once taken
the gift is validated”.
How delivery of possession of immovable property can be given is explained in paragraph
152. It countemplates three kinds of cases (1) where donor is in possession (2) where property is
in the occupation of tenants: and (3) where donor and donee both reside in the property. There is
evidence in this case to show that part of the property was in the occupation of tenants and
plaintiff Hayatuddin was already residing in a part of the property. A gift of immovable property
which is in the occupation of tenants may be completed by a request by the donor to the tenants to
attorn to the donee; and where the donor and the donees both reside in the property no physical
departure or formal entry is necessary in the case of a gift of immovable property in which the
donor and the donee are both residing at the time of the gift and in such a case, according to
Mulla the gift may be completed by some overt act by the donor indicating a clear intention on
his part to transfer possession and to divest himself of all control over the subject of the gift. We
have in this case three documents Exts. P-1, P-2 and P-3 which indicate the steps taken by the two
donors to divest themselves of this property after they had made a gift in favour of Hayatuddin.
All these three notices have been issued by Shri Munwarbhai. Advocate, on behalf of the two
donors and the donee. Shri Munawarbhai has been examined as P.W. 1 and he has proved these
three notices. Ex. P-1 is a notice given by Makboolbi and Makboolbi and it clearly stated that
Amnabi and Rashidbi, vide registered gift deed dated 10-6-1952 has gifted their shares in the suit
house to Havatuddin and also delivered possession thereof. This notice is dated 8-2-1954 and it is
also stated therein that the donors and the donee desired 1/7th share of Makboolbi to be separated
by metes and bounds and the remaining portion of the house to be allotted to Hayatuddin
exclusively. Exhibit P-2 is a notice dated 19-2-1954 again from the donors and the donee of
Makboolbi whose status was in dispute. She had been intimated about the gift deed and delivery
of possession to the donee and an allegation was made that in December 1953 she had wrongfully
and unauthorisedly entered the house on the western side and forcibly and illegally occupied a
portion of the suit house in which she had no interest. Damages were, therefore, claimed by
Hayatuddin alone. Ex. P-3 is a notice dated 8-3-1954 on behalf of Hayatuddin alone to the two
tenants and they have been intimated that the property which they were occupying had come to
Hayatuddin by way of gift from Amnabi and Rashidbi. It appears that these two tenants were put
in possession of two parts of property by Makboolbi. They were, therefore asked to vacate and
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damages were claimed. There is then the evidence of Yakubmiya (P.W.3) who was one of the
tenants and who admitted that he had been living in the house for the last ten to eleven years. He
was paying rent to plaintiff Hayatuddin and he says that Amnabi and Rashidbi had told him that
they had made the plaintiff the owner of the house, and the rent was to be paid to him. According
to him, there were two other tenants. Chhotumiya and Gulabbhai. They were also called and told
similarly. This part of the evidence does not seem to have been seriously challenged in crossexamination. The defendant No. 1 examined himself as D.W. 2 and he has to admit that plaintiff
Hayatuddin had been residing in the suit property since his childhood and according to him, there
were tenants in the suit house. This evndence, therefore, shows that in a part of the suit property
that plaintiff was living and the recitals in the gift deed also show that it was deceased Lalmiya
who had brought up the plaintiff as a child and he was looking after Rashidbi. The property was
thus in possession of the tenants and partly in possession of the donee himself. The declaration in
the gift deed that possession was handed over to the donee and the intimations given to the
tenants orally and subsequently by notices through counsel were sufficient evidence to show that
the donors have done everything that was possible in the circumstances to hand over possession
of the premises which they wanted to gift to the present plaintiff. In addition to this there is their
conduct in joining with Hayatuddin as co-plaintiffs to have their share separated and delivered
possession of. This conduct also shows that the donors had done everything possible to make the
gift effective and to divest themselves of possession and to transfer to Hayatuddin said possession
of the undivided portion of the property as the donors themselves had. What was necessary to
make a gift of an undivided portion capable of partition valid was discussed at some length by a
Division Bench of the Allahabad High Court in Hamid Ullah v. Ahmad Ullah. [(AIR 1936 All
473)]. In that case the property consisted of six houses and three parcels of land and the donor
who was not in physical but constructive possession of the property executed a deed of gift and
git it registered. The document recited that the donor was in proprietary possession of the
property and was conveying to the donee the same sort of possession which she possessed, that
she had given up all proprietary rights in the subject-matter of the gift and that donee was at
liberty to make transfers of the property in any way he chose. The Division Bench held that the
gift was valid as the donor had done practically all that she was able to do in the way of divesting
herself of possession and giving to the donees the same possession as she had herself. In view of
the speaking conduct of the donors it is difficult to hold in this case that possession of undivided
share of the donors was not transferred by them to the present plaintiff.
9. I might refer with advantage to the observations made by the Privy Council indicating how
the doctrine relating to invalidity of gift of mushaa was unadapted to a progressive state of
society. In Sheikh Muhammad Mumtaz Ahmad v.Zubaida Jan. [(1888-1889) 16 Ind App 205)
(PC)] Sir Barnes Peacock, speaking on behalf of the Board, has observed:
“The authorities relating to gifts of mushaa have been collected and commented upon
with great ability by Syed Ameer Ali in his Tagore Lectures of 1884. Their Lordships do
not refer to those lectures as an authority, but the authorities referred to show that
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possession taken under an invalid gift of mushaa transfers the property according to the
doctrine of both the Shiah and Soonee Schools, see pages 79 and 85. The doctrine
relating to the invalidity of gifts of mushaa is wholly unadapted to a progressive state of
society and ought to be confined within the strictest rules”.
Unless therefore, there are compelling reasons it will not be possible for me to invalidate a
gift as in the instance case, a gift which has been reiterated by the donors at all possible times
whenever occasion arose. In any case it is difficult to entertain a challenge to the gift deed by
Amnabi and Rashidbi at the instance of the heirs of Amnabi who really had no estate to inherit as
Amnabi had clearly divested herself of her 3/4th share in the estate of Lalmiya by making a gift in
favour of the present plaintiff. In my view, the learned Judge of the lower appellate Court was in
error in dismissing the plaintiff’s suit on the ground that the gift was invalid.
10. In the result the judgment and decree of the lower appellate Court are set aside and the
decree passed by the trial Court restored. The plaintiff’s appeal is allowed with costs.
