B.L. Yadav, J.
1. This Second Appeal by the plaintiffs has been preferred under Section 100 of the Code of Civil Procedure, 1908(compendiously the 'Code') against the decree and judgment of the 3rd Additional District Judge, Purnia, setting aside the decree of the Subordinate Judge in a title suit brought by them for declaration that gift deed dated 25-3-1972 executed by Haji Zakiruddin the original Plaintiff No. I in favour of the defendants was a sham and collusive transaction, and it did not create any title in favour of the defendants and the plaintiffs have got till, over the suit land to the extent of -/8/10 paise.
2. Shorn of details the case of the plaintiffs-appellants is that the suit property having an area of 3.49 acres of land mentioned in Schedule A of the Plaint belongs to original Plaintiff No. 1 Haji Zakiruddin and was recorded in his name. Plaintiff Nos. 2 and 3 are daughters of Haji Zakiruddin. The third daugher named Bibi Aliman had pre-deceased Hazi Zakiruddin, Plaintiff No. 1. Hazi Zakiruddin and defendants are descendants of common ancestors Lapatu Mian who had two wives and through his first wife, he has two sons, namely, Late Hazi Zakiruddin and Ajmat Ali, The latter Ajmat AH died leaving behind a son late Masraf Ali and the defendants are the sons of Masaraf Ali. Plaintiff-Hazi Zakiruddin had share only to the extent of 20 bighas of land and on wrong advice of the counsel Hazi Zakiruddin executed the collusive registered deed of gift dated 25-3-1972 in favour of the defendants. But later on he cancelled the registered deed of gift by executing a deed dated 25th July, 1972. In this way the defendants have no right or title, but they started threatening the plaintiff. The plaintiffs accordingly filed a suit for declaration that the said deed pf gift was sham, collusive and also for declaration of title over the suit land.
3. The defendants contested the suit denying the plaintiffs' allegations. It was stated that the suit as filed was not maintainable, the plaintiff had got no cause of action for the suit against the defendants, the suit was barred by the law of limitation, principles of estoppel waiver, acquiescence as well as defect of parties. The original deed of gift executed by the plaintiff on 25-3-1972 was valid and the said deed of gift was executed by Hazi Zakiruddin consulting his daughters in favour of the defendants as they were his grand-sons and they had entered possession over the lands in dispute. They had no knowledge of cancellation of the deed of gift and the suit was liable to be dismissed.
4. The trial court framed the following issues:
I. Is the suit as framed maintainable?
II. Have the plaintiffs valid cause of action
for the suit?
III. Is the suit barred by law of limitation and principles of estoppel, waiver and acquiescence?
IV. Is the court fee paid sufficient?
V. Whether the deed of gift executed by Hazi Zakiruddin on 25-3-1972 in favour of defendants was a sham and collusive transaction created by him to save his properties from the mischief of Bihar Ceiling Act on wrong advice of Advocate or the same is a valid and genuine transaction?
VI. Does it amount to valid revocation of
the gift by the subsequent deed.
VII. Have the plaintiffs subsisting title over the suit land to the extent of 10 annus 8 pies?
VIII. To what relief or reliefs are the plaintiffs entitled?
The trial Court decreed the suit.
5. The defendants filed appeal before the District Judge, Purnia, and on being transferred, the learned Addl. District Judge 3rd, Purnia, heard and allowed the appeal and set aside the judgment and decree of the trial court. Against that decree the present appeal has been filed by the plaintiffs.
6. After the death of Hazi Zakiruddin, his daughters are the present appellants.
7. Learned counsel for the plaintiff-appellants contended that the deed of gift, dated 25-3-1972 was correctly cancelled by the subsequent deed dated 25th July, 1972, before possession could be transferred to the donee. A gift deed under the Mohammedan Law could be cancelled. The judgment of the lower appellate Court being of reversal, the entire evidence ought to have been considered and reasons must be assigned to the findings. Under the Mohammedan Law in order to constitute valid gift there must be four elements, namely, (1) declaration of gift by the donor (2) the relinquishment by donor of ownership and dominion (3) acceptance of gift express or implied by or on behalf of the
donee, and (4) delivery of possession of the, subject of gift by the donor to the donee. In case these conditions are fulfilled, the gift deed would be valid.
8. Learned counsel for the respondents refuted the submissions of the learned counsel for the plaintiffs and contended that the deed of gift dated 25th March, 1972 was legal and valid and all the formalities were complied with. The plaintiffs could not take any advantage that they have obtained the copy of the gift deed from the office of the registration. The findings recorded by the lower appellate Court are findings of fact and based on the appraisal of evidence available on the record and no adverse inference can be drawn by second appellate court under Section 100 of the Code.
9. Having scrutinised the submissions of either side, the questions for determination are whether the deed of gift dated 25th March, 1972 executed by Hazi Zakiruddin in favour of the defendants was legal and valid; whether the deed of gift satisfied the four necessary elements for its validity; whether the plaintiff No. 1 could cancel the registered deed by subsequent deed dated 25-7-1972 and whether the appellate court's findings are based on appraisal of the evidence on the record and whether reasons have been assigned.
10. As regards the first two questions suffice it to say that in my opinion, under the Mohammedan Law for validity of the deed of gift four elements are necessary; (1) declaration of gift by the donor (2) relinquishment by donor of ownership and dominion (3) acceptance of the gift by donee, and (4) delivery of possession of the property by donor. The relinquishment of control and ownership by the donor is necessary to complete the gift (see Most. Bibi v. Sheikh Wahid, ILR (1928) 7 Pat 118: (AIR 1928 Pat 183) Musa Miya v. Kadar Bux, (1928) 55 IA 171). The trial court was conscious about these elements and discussed it by making reference to the statements of P. Ws. and D.Ws. and has come to the conclusion that all the elements were not present. The lower appellate court while reversing those findings and writing judgment of reversal was duty bound in view of the
provisions of Order 41, Rule 31 of the Code, to bear in mind the reasons ascribed by the trial Court. In case the evidence has received the better treatment of the hands of trial court, in that event, even though appellate court would be justified, in taking a different view on question of fact, but that should be done after adverting to the reasons given by the trial Judge in arriving at the finding in question. As pointed out the lower appellate court failed to do it. (See S.V.R. Mudaliar (dead) by L.Rs. v. Mrs. Rajabu Buhari (dead) by L.Rs., AIR 1995 SC 1607 (Paras 14 and 15); Dollar Co. v. Collector of Madras, 1975 (Supp) SCR 403, (AIR 1975 SC 1670), Rani Hemant Kumari v. Maharaja Jegadhindra Nath, (1906) 10 Cal WN 630 (PC) did not consider the validity of gift rather just by implication it has assumed that the deed of gift was valid and set aside the findings of fact recorded by the trial court.
11. The other questions may be taken up together. In the judgment of reversal as provided under Order 41, Rule 3l of the Code, the appellate court is required to refer to all the evidence that have received better treatment by trial court particularly those that have been relied upon by the trial court. After scrutiny of evidence by the First Appellate Court findings must be recorded but the Appellate Court has to bear in mind the reasons ascribed by the trial court. The Appellate Court should interfere with the judgment under appeal not because it is not right, but when it is shown to be wrong. The appraisal of the lower appellate court judgment would indicate that the lower appellate court has just made reference to some of the witnesses examined on behalf of the plaintiffs and defendants. In paragraph 10 of the judgment of lower appellate court reference was made to P.W. 15 (Plaintiff No. 2), P.W. 10, Daud Ansari, P.W. 4, Jahiruddin, P. W. 3, Md. Yakub, P.W. 5 Md. Nooruddin, P.W. 6 Abdul Jalil Ansari, P.W. 7 Md. Sabir, P.W. 8 Sushil Kumar Yadav and similarly it has just referred to the statements of some of the defendants witnesses. The lower appellate court has merely referred the statements of P.Ws. and disbelieved the same without assigning any reason whereas the trial court has considered oral evidence and has assigned
reasons for believing the same, the same was to be considered by the lower appellate Court in matters of appraisal of oral evidence appellate Court must be slow in reversing the findings of trial Court as the trial Court had advantage to watch the demeanour of the witnesses and that advantage the lower appellate Court had not got. (See Madbusudan Das v. Smt. Naraini Bai (AIR 1983 SC 114). The lower appellate Court erred in not keeping in mind the law declared by the Supreme Court in Madhusudan Das's case, where it has been considered that the plaintiff can take advantage of obtaining the gift deed from the office of the Registration and the fact that the defendants were also present at the time of registration the gift deed has been held to be valid. The background of the matter has been considered by the trial Court but the lower appellate Court has failed to appreciate the evidence on record. Why the lower appellate Court did not rely upon the plaintiffs' witnesses has not been stated nor any reasons have been shown.
12. The judgment of the lower appellate Court being a judgment of reversal was not consistent with the provisions of Order 41, Rule 31 of the Code. No reasons have been assigned nor points have been formulated nor discussions have been made with reference to evidence relied upon by trial Court. Such judgments need not be upheld in Second Appeal. Unless the four elements for the validity of gift are proved to be present, the gift could not be held to be valid.
As regards the question whether the donor could cancel the deed of gift by subsequent deed. Suffice it to say that in the Moham-modan Law by Mulla, 19th Edition by M. Hidayatullah Article (Section) 167 indicates circumstances under which a deed of gift could be revoked. In case the donor has not relinquished his control and dominion over the property, and before the donee enters into possession the donor is justified in cancelling the gift. The reason is that before delivery of possession there is no gift under Mohammedan Law. In view of discussions made hereinbefore, the decree of the lower appellate Court could not be sustained.
13. In the result, the appeal succeeds and the same is allowed. The matter is remanded back to the lower appellate Court for decision of the appeal afresh, in accordance with law and in the light of the observations made above. As the matter is dragged on far too long what is required is expedition. The costs, however, shall abide the result.