1983 PLP 749 (SCMR)

(1) Whether the plaintiff is out of possession; and if so, whether the suit for a declaration as brought is maintainable ? (Onus objec ted to). (2) What is the proper court‑fee? (3) Whether the disputed gift deed was made as a result of fraud, undue influence and misrepresentation; and if so, what is its effect? (4) Whether the plaintiff can revoke the disputed deed of gift? (5) Whether the plaintiff did not make any valid gift (Onus objec ted to) (6) Whether the disputed gift amounted to Hiba‑bil‑iwaz ; and if so what is its effect 7 (7) Relief. The trial Court decreed the suit on 9th March, 1957 holding on merits that the gift had been validly made and completed and that it had also been validly and properly revoked. The appellate Court reversed the later finding on the ground that the gift made in favour of the two sons who were related within the prohibited degree could not revoked at all. The second appeal of Ghulam Muhammad was accepted on the ground that the land gifted happened to be under a usufructuary mortgage and in the face of it the land could not be gifted free of all encumbrances and, in any case, such a gift could not be complete without a notice to the mortgagee. The Letters Patent Appeal Bench however, on the facts of the case, came to the conclusion that the donor had done all that he could do in the circumstances of the case to divest himself of the property and to deliver it to donees. In this manner this gift was complete in all respects and validly made and could not be revoked. So far as the factual aspect of the case is concerned all the Courts have taken it to be a fact that the entire gifted area was under a usufructuary mortgage at the time when the gift was made. It has also been taken to a fact by all the Courts that Ghulam Muhammad, the donor, was in physical possession of the gifted land as a cultivator under the usufructuary mortgagee. It has also been held by all the Courts dealing with the case that the physical possession enjoyed by the donor as a tenant of the usufructuary mortgagee was not transferred nor was a notice of the gift served on the usufructuary mortgagee. In this factual background and the findings the two questions of law arising for determination in this appeal are whether land under usufructuary mortgage could at all be the subject‑matter of gift, and if so, whether the requirements for completing such a gift were in fact satisfied. The mainstay of the case of the appellant, as the order granting leave to appeal shows, was the controversial decision' of the Bombay High Court in the case of Mohiuddln v. Mancher Shah ((1882)1 L R 6 Born. 650 ). Not only then the law laid down therein was not followed by other High Courts e.g. Rahim Bakhsh v. Muhammad Hasan ((1888) I L R 11 AIL‑ 1); Anwari Begum v. Nizamuddin Shah ((1898) 1 L R 21 All. 165) and (1896) I L R 21 Cal. 170 it was adversely commented upon in text books .on Mohammadan Law of Amir Ali, Mulls and Tyabji. The comments of Tyabji deserve mention in extenso because the learned counsel for the appellant has made it the basis for contending that a notice to mortgagee was in any case necessary. The relevant portion reads as under :‑ . "It would therefore appear that Mohiuddin's case is the only (and it is not a direct) authority, for the proposition that an equity of redemp tion cannot be the subject of gift when the mortgagee is in possession. But with reference to this case it was remarked by Mahmood J., "I may respectfully say that it probably carries the rule of seisin too far." Mr. Ameer Ali says with reference to the case of Mohinuddin v. Mancher Shah : `The view taken by the majority of. the Judges is founded upon an erroneous impression of Hanafi law, under which seisin is requisite for hypothecation. According to the correct view of the Hanafi doctrine on the subject, there is nothing to preclude the mortgagor from granting his equity of redemption to another." The opinions are, it is submitted, directly supported by the extract from the `Fatwa Alamgiri' which is given in the comment to r. 403, pp. 308‑309 (Hiba, Chapter XI. last sentence), and it would appear more in accordance with the trend of the more recent cases to say that when the property is in the possession of a mortgagee it can form the subject of gift, and the same kind of possession is required to complete the gift, as is given in cases where the. property is in the occupancy of tenants, or of any other person not holding adversely to the donor i.e., that the gift may be completed by the donor conveying the equity of redemp tion to the donee, giving notice to the mortgagee that the legal estate had been transferred by him, and letting the donee exercise all the rights of the legal owner." The gift, of a property in possession of a lessee or mortgagee and the transfer of only constructive possession by the donor to the donee was recog nized by Privy Council in Ch. Mahdi Hasan v. Muhammad Hasan (1905‑06) 319 A 68). Even the Bombay High Court in Chandsaheb Kashimsaheb v. Gangabai (1912) L R 45 Bow. 1926) and in Hashimbi v. Ajamarbi (A I R 1924 Bom. 410) did not follow the strict law laid down in Mohiud din's case. Ultimately for the Indian Courts, the controversy stood resolved by the Indian Supreme Court decision in Magbool Alam v. Khodaija (A I R 1966 S C 1194). It was held that‑ Previously, the rule .of law was thought ‑to be‑ so‑strict that it was said that land in the possession of a usurper (or wrong doer) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar. Book on Gift, p. 635 cited in Mulik Abdul Ghaffoor v. Muleka (1884) 10 1 L R Cal. 112 at p. 1123). But the view now prevails that there can be a valid gift of property in the possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive posses sion of the property to the donee. Some authorities still take the view that a property in the possession of a usurper cannot be given away, but this view appears to us to be too rigid." It follows that the correct view of the law with regard to gift is that land under usufructuary mortgage, even one in adverse possession, can be validly made the subject‑matter of gift. The acceptance and delivery of possession being essential ingredients of a gift the Court must be satisfied that all such steps as were reasonably .and legitimately permissible and possible as between the donor and the donee for completing the delivery of possession were taken. The learned Single Judge while dealing with the case in the High Court found the gift decent in two respects. Firstly the donor showed the land, which was the subject‑matter of gift to be his exclusive ownership, free of all encumbrances. He showed no awareness of the existence of a usufructuary mortgage, of the fact that he was possessed of and owned only the equity of redemption and that was all that he could gift. If it was his full owner ship, free of all encumbrances ‑which he was gifting then on his own words he was bound to deliver physically the possession of it as well. His failure to do so would impair the validity and the legal effect of the gift. If on the other hand he was gifting the equity of redemption, he should have in order to complete the gift given notice to the mortgagee of the gift. His own possession under the mortgagee was not in that capacity capable of being transferred to donee following the gift. The donor's description of the property sought to be gifted as one free of all encumbrances when in fact it was mortgaged with possession does not in any manner impair or taint the gift itself, for the donor was possessed of the equity of redemption and equity of redemption could, as already demonstrated be a subject‑matter of a valid gift. It is not a legal requirement, not a sine qua non of every gift of equity of redemption that a notice must be given by the donor of the equity redemption, to the mortgagee. The gift in this case was not only of the equity of redemption but by a father in favour of his sons. The donor took the somewhat unusual step of getting the gift com pleted by a registered deed though it was not compulsory for him. , In this manner the donor had done ail that he could possibly do to fulfil the require ments of law in situation where physical possession of the property was not transferable to the donees. The gift having been so perfected it could not be revoked, the donees being related within the prohibited degrees. Its the circumstances and for the foregoing reasons this appeal fails and is hereby dismissed leaving the parties to their own costs. Appeal dismissed.