Pathak J.
1. This special appeal is directed against the judgment and decree of a learned single Judge of this Court affirming the dismissal of a suit by the trial Court.
2. Rafi Ullah Khan had a son, Rafi-ul-Qadar. Rafi-ul-Qadar had two wives, of whom the appellant, Noor Jehan Begum, is one. The first respondent, Muftkhar Dad Khan, is a son by the other wife.
3. According to the appellant, on September 5, 1916 Rafi Ullah Khan executed a gift deed in favour of the appellant transferring a grove comprised in three plots with a total area of 16.23 acres situated in Mauja Ahmadpur Niazpur, pergana and tehsil Shahjahanpur, district Shahjahanpur. It is alleged that Rafi Ullah Khan put her in proprietary possession of the grove. Admittedly, no mutation proceedings were taken at the time. In September 1942, Rafi Ullah Khan caused a mutation application to be filed by the appellant and conveyed his written consent to the mutation. Before the mutation proceedings could conclude Rafi Ullah Khan died on September 25, 1942. Thereafter, the first respondent opposed the mutation application and it was rejected. Upon a subsequent application, mutation was effected in favour of the first respondent, the third to tenth respondents and one Shirin Begum, who claimed to be another wife of Rafi Ullah Khan. Alleging that she was the rightful owner of the grove under the gift deed, the appellant instituted the present suit praying for declaration and possession in respect of the grove and also for damages on account of two Shisham trees cut down by the first respondent.
4. The suit was contested by the first and second respondents. The defence inthe main was that Rafi Ullah Khan did not execute any gift deed in favour of the appellant, that in any event he never intended to act upon the gift deed and he continued as before in proprietary possession and enjoyment of the grove and possession never passed to the appellant. It was further, alleged that a few days before his death when Rafi Ullah Khan was unconscious the appellant obtained his thumb impression on some blank papers which were later employed in mutation proceedings in her favour. Subsequently, after Rafi Ullah Khan's death the appellant herself made an application on December 20, 1942 as guardian of the minor heirs of Rafi Ullah Khan praying that mutation be effected in their favour and the other heirs. That resulted in the grove being recorded in the names of the respondents.
5. The trial Court dismissed the suit. It found that the gift deed was executed by Rafi Ullah Khan, that the appellant accepted the gift but that Rafi Ullah Khan, never delivered possession of the grove to the appellant, and that the gift deed was never acted upon. It also found that Rafi Ullah Khan was not in his senses from September 20, 1942 to September 25, 1942 and remained in a stupor up to Ms death, in which condition his thumb impression was obtained on blank papers which were later written upon purporting to convey his consent to mutation in favour of the appellant.
6. An appeal by the appellant against the decree of the trial Court has been dismissed by a learned single Judge of this Court, and now this special appeal has been preferred.
7. The contention on behalf of the appellant is that there was a completed gift of the grove by Rafi Ullah Khan in favour of the appellant.
8. According to Mulla's 'Principles of Mahomedan Law' it is essential to the validity of a gift that there should be (a) a declaration of a gift by the donor (b) an acceptance of the gift, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject of the gift by the donor to the donee (16th Ed., Section 149, P. 141). There should be a delivery of such possession as the subject of the gift is susceptible Ibid, Section 150, P. 142. If these conditions are complied with, the gift is complete.
9. The gift deed dated September 5, 1916 recited that the donor, Rafi Ullah Khan, had made a gift of the grove to the appellant and had put her in proprietary-possession and occupation of it, that he had no right left in the property and she was entitled to get her name entered as proprietor of the grove. The gift deed was forwarded by Rafi Ullah Khan, when he was at Shahjahanpur,to his son Rafi-ul-Qadar, Azamgarh with a letter dated September, 14, 1916 requesting the latter to hand over the gift deed to the appellant. There is no dispute that the appellant was residing with her husband at Azamgarh. The case of the appellant is that she read the gift and then wrote a letter to Rafi Ullah Khan accepting the gift. I agree with the learned single Judge that the gift deed was executed by Rafi Ullah Khan and the gift was accepted by the appellant. But the learned single Judge has found, affirming the view taken by the trial Court, that possession of the grove was never delivered by Rafi Ullah Khan to the appellant, and consequently the gift remained incomplete.
According to the appellant on her visit to Shahjahanpur thereafter, her husband and her father-in-law went to the grove. She says that Rafi Ullah Khan told her that he had made her the owner of the grove and put her in possession of it. The submission of the appellant is that this visit to the grove took place in the mango season of 1917 and possession was delivered to her then. I find difficulty in accepting the submission. In the first place, it is not mentioned in the plaint at all that delivery of possession was effected in the manner and at the time alleged before us. The case set up by the appellant does not inspire confidence for other reasons also. In her examination-in-chief, the appellant asserted that she was accompanied by her husband and her father-in-law, but upon cross-examination she stated that she did not know if anybody else was present with her when she went to the grove. An attempt was made to corroborate her testimony by the evidence of Raza Ali Khan. Raza Ali Khan stated that in the mango season of 1917 the appellant accompanied by her father-in-law, her husband and her elder sister went to the grove so that Rafi Ullah Khan could deliver possession of the grove but he admitted that he had not gone to the grove himself. It is also significant that in the letter forwarding the gift deed to Rafi-ul-Qadar Rafi Ullah Khan does not say anywhere that he would deliver possession of the grove to the appellant. There is also the important circumstance that the appellant remained indifferent to matters concerning the grove through all these years, and even after the execution of the gift deed in 1916 there is nothing to show that she took any interest at all in the grove. She was unable to give any particulars about the grove and admitted that she did not know to whom, and the price for which, its produce was sold from 1915 to 1940. It is difficult to conceive that if she had considered herself to be the proprietor of the grove she would have remained so completely unaware of all that concerned it. Then there is the circumstance that ifpossession had indeed been taken by the appellant mutation proceedings would have been taken for recording the change, and this would certainly have been thought of, especially as the appellant's .husband was a Deputy Collector and must have been alive to the significance and desirability of taking mutation proceedings.
If a completed gift had been made by Rafi Ullah Khan, the reason for not taking mutation proceedings shortly thereafter is not readily apparent. As I shall presently show, it was for the first time in September 1942, a few days before Rafi Ullah Khan died, that mutation proceedings were thought of. Further, there is indisputable evidence on the record that in spite of executing the gift deed Rafi Ullah Khan continued to sell the produce of the grove from time to time and appropriate the sale proceeds to his own bank account. I am not satisfied from any thing on the record that the sale proceeds were transferred to the appellant at any time. There are documents which show that Rafi Ullah Khan treated the grove as his own property and referred to its income as belonging to him. If the case of the appellant be true that he had gifted the grove to her, no reason is forthcoming to explain why he continued to treat its profits as his own. These are circumstances which suggest that though he executed the gift deed, it was never intended to be acted upon on its execution. I have grave difficulty in coming to any positive conclusion as to the motive which induced him to execute the gift deed and yet to retain the profits to himself. This apparent contradiction in his conduct remains unreconciled and on the state of the evidence before us his motives remain obscure,
10. The manner in which the grove was dealt with by Rafi Ullah Khan before the execution of the gift deed continued unchanged for long years even thereafter. It was only when Rafi-ul-Qadar died in 1942 leaving the appellant a widow that the scene began to change. Mr. Abdul Hakim Khan, who is a nephew of the appellant and was then President of the Judicial Committee of the State of Gwalior, came to Shahjahanpur and visited Rafi Ullah Khan to condole on the death of his son, the appellant's husband.
The situation obtaining at the time of Mr. Abdul Hakim Khan's visit may be reconstructed. The appellant's husband had just died. Her father-in-law was gravely ill. In the circumstances when Mr. Abdul Hakim Khan met Rafi Ullah Khan the question must have been raised as to whether adequate provision had been made for the appellant. During the course of conversation between the two, the execution of the gift deed was touched upon. Mr. Abdul Hakim Khan says that he enquired from Rafi Ullah Khan whether mutation proceedings had been taken after the execution of the gift deed, and when he was told they had not been, he observed that it was an omission which should be rectified immediately. According to this witness, Rafi Ullah Khan stated that he was unaware that a registered gift deed did not suffice to create an effective gift. It is significant that nowhere does Mr. Abdul Hakim Khan state that Rafi Ullah Khan told him of the delivery of possession to the appellant. It is reasonable to presume that if possession had already been delivered that would have been mentioned by Rafi Ullah Khan.
11. If in fact possession had actually been delivered to the appellant immediately after the execution of the gift deed as is the appellant's case before us, I do not think there would have been so much ado in the matter of mutation proceedings just before Rafi Ullah Khan died. An application for mutation was drawn up in favour of the appellant. But, as the evidence unfolds, very soon after the death of Rafi Ullah Khan the mutation application of the appellant was opposed by the other members of the family. The appellant herself, apparently subdued by misgivings as to the success of her mutation application, made a wholly contrary application on December 20, 1942 for mutation in the name of her minor childdren and the other heirs of Rafi Ullah Khan, including the first respondent. The application was allowed.
It is clear from the record that this mutation application was in respect of the grove in dispute. The order allowing the application refers to the property entered in the Khewat as holding No. 3 comprising 16.64 acres. An extract from the khatauni for 1353 Fasli relating to village Ahmadpur Niazpur, Mohal Aul, pergana and tehsil Shahjahanpur, clearly shows that patti No. 3 included the grove 604/A of area 16.23 acres. There is no acceptable explanation why the appellant, who was anxiously pursuing the mutation in her favour, shortly after assumed a wholly contrary position and deliberately set out to obtain mutation in favour of the respondents. Thereafter, the appellant instituted the present suit.
12. I am satisfied from the record before us that Rafi Ullah Khan executed a gift deed in favour of the appellant and that she conveyed her acceptance of the gift, but I am not convinced that possession of the grove was delivered to her after the execution of the gift deed.
13. It is then urged that the recital in the gift deed that possession had been delivered to the appellant is binding upon tbp respondents as heirs of Rafi Ullah Khan and it is not open to them to question the truth of that statement. We are referred to Sk. Muhummad Mumtaz Ahmad v. Zubadia Jam, (1889) 16 Ind App 205 where the Judicial Committee observed that the admission in the gift deed in that case was binding upon the donor's heirs and all persons claiming through him. It is necessary to recall that in that case the greater portion of the property was in the possession of tenants and the donor had merely proprietary and not actual possession of it, being merely in receipt of the rents and profits. Indeed, the Judicial Committee expressly pointed out that upon the facts there was no doubt that sufficient possession had been taken on behalf of the donee to render the gift effectual. The statement in that case that the recital in the gift deed was binding upon the donor's heirs has been the subject of judicial consideration in a number of cases and the Courts in this country have understood it not as laying down a conclusive test of delivery of possession but merely as raising a rebuttable presumption. What was observed by the Judicial Committee in Sheikh Muhummad Mumtaz Ahmad, (1889) 16 Ind App 205 (Supra) was examined by the Bombay High Court in Nurbai v. Abraham Moham-mad, AIR 1939 Bom 449 the learned Judges said:
'It is true that, in the course of the judgment in that case, their Lordships said that a declaration in the deed of gift by the donor that she had made the donee possessor of all properties given by the deed was an admission by which her heir and all persons claiming through him were bound. Their Lordships however, cannot be supposed to have intended to lay down that the admission was conclusive. They did not by any means rely solely upon this admission as proof of the delivery of possession. The facts there were somewhat peculiar. The donor had merely proprietary and not actual possession of the greater portion of the property. She was merely in receipt of the rents and profits. The gift was by a mother to her daughter, and at the time of the gift the daughter's husband was the general manager of both mother and daughter, and their Lordships said he would doubtless take care that the deed of gift should be carried into effect. Their Lordships had no doubt that sufficient possession was taken on behalf of the daughter to render the gift effectual. On the facts of the case then it seems to have been assumed that there had been an actual handing over of the rents and profits to the donee which was all the delivery of possession which was possible under the circumstances.'
Similarly, the Madras High Court in Johara Bibi v. Subera Bibi : AIR1964Mad373 pointed out:--
'Where a donor makes a statement in the gift deed that he or she was in possession and put the donee in possession, that, of course, is an admission of the donor of the fact of delivery of possession to the donee. The effect of this is only that the person who contends to the contrary, namely, that no possession was delivered should establish the contention.' The learned Judges repelled the contention that in an earlier case decided by the same Court, Mohammad Yusuf Rowther v. Mohamed Yusuf Rowther, AIR 1958 Mad 527, the Court had accepted the proposition stated by the Judicial Committee is laying down an absolute rule. The learned judges observed:--
'Learned counsel relied upon this decision as if it laid down that the admission is conclusive and would not admit of further enquiry by the Court as to the factum of delivery pursuant to the gift. But Rajagopala Aiyangar, J. himself observed in that decision:--
The proper rule to apply here as regards the burden of proof would be to hold that the declaration by the donor of his having parted with possession was an admission binding upon the parties which however they might by cogent evidence disprove but in the absence of independent proof by them the presumption raised by the admission ought to suffice to support the deed.
The recital in the gift deed as to delivery of possession will as an admission operate as conclusive only in the absence of other proof to the contrary.'
The learned Judges, went on to note that the presumption was rebutted among other circumstances by the omission to effect mutation of names or change of Pattas after the execution of the gift deed. And as long ago as Jhumman v. Husain, AIR 1931 Oudh 7, the Oudh Chief Court expressed the same view that the declaration by the donor that possession had been given to the donee could not be regarded as conclusive. This Court in Mt. Jamilunnissa v. Sheikh Mohd. Zia : AIR1937All547 hesitated to accept the proposition as a final statement of the law that the admission by the donor that possession had been delivered was conclusive and binding on him. It was observed that the admission
'Certainly throws a heavy burden on the donor to show that the statement was untrue and was false.'
14. The appellant relies on Sajjad Ahmad Khan v. Kadri Begum, (1895) ILR 18 All 1: but it is of some significance that the learned Judges in that case pointed out that pursuant to the gift deed mutation of names had been effected in favour of the donee and that admittedly he was in possession.
15. There is one case, however, namely Namdar Khan v. Mohmmad Siddiq, (1913) 11 All LJ 726, where a learnedsingle Judge of this Court held that a recital in the gift deed stating that proprietary possession had been given to the donee was sufficient to complete the gift. That decision, however, proceeds upon its own facts and in my opinion cannot serve as authority for the proposition that the recital is conclusive and cannot be rebutted.
16. The appellant also refers to Ashiptel v. Brayan, (1863) 3 B & S 474 and Simm v. Anglo American Telegraph Co., (1879) 5 QBD 188 at page 202 CA. I am not satisfied that those cases assist the appellant having regard to the facts of the case here.
17. It seems to me that under the Mahomedan Law a recital in the gift deed that possession has been delivered to the donee of the property gifted gives rise to a presumption only of such delivery and the presumption may be rebutted by those challenging the gift. The presumption may be rebutted by establishing that the subsequent conduct of the donor is inconsistent with the making of the gift or by demonstrating the patent improbability of what is stated by the recital.
18. The subsequent conduct of the donor has been considered by the Courts in India as of great relevance in determining whether possession had been delivered and a valid gift completed. In Sultan Miya v. Ajibakhatoon Bibi : AIR1932Cal497 Mitter, J., observed:--
'That subsequent conduct of the donor is of great materiality would appear from the remark made by Sir Barnes Peacock in the course of argument in Ammeroonnissa's case (1875) 2 Ind App 87. Sir Barnes Peacock remarked as follows:
'But the mode in which the father dealt with the profits would be important as regards the bona fides and completeness of the gift as throwing light upon the intention.
In the case before their Lordships, the intention to make a gift was manifested in a registered hibanama and yet their Lordships referred to the subsequent conduct of the donor, i.e. his acts and conduct after completion of the gift to judge whether the gift was bona fide or not.'
Adverting to the facts of the case the learned Judge went on to say:--
'But this presumption in favour of the donee is rebutted by the circumstance that the donor, on every conceivable occasion, when change or mutation of names could be effected, acted contrary to the tenor of the deed of gift. There was no mutation of names in the landlord's sherista, and in the Record of Rights, the name of the donor was entered against this property and the rents and profits were appropriated by the donor. If the intention was to make the gift, one could have expected that the rent and profits issued out of the gifted property would be earmarked forthe infant child and would be dealt with apart from the rest of the donor's properties, which would descend after his death to his other heirs. The gift is not valid in the circumstances.
The true rule appears to me to be this. Though a gift might be purported to be made and every overt act appears to have been taken, which this law requires for the completion of the gift, yet, if there is no bona fide intention to make the gift, the transfer will not take effect ....
19. I might also refer to the observations of Tyabji. J. in Ebrahim Alibhai Akujl v. Bai Asi, AIR 1934 Bom 21.
'In all cases in which the question is raised whether a gift governed by Mahomedan law has been completed, the most satisfactory method of dealing with the question is to direct attention to the conduct of the donor and the donee after the time when the gift is said to have been completed.
If, after that time the alleged donor continues to take the benefit of the subject of the gift whether it consists of reaping the harvest, of the recovery of the rents or actual occupation, or of such other benefit, whatever it be, as can accrue to the owner from the ownership of the particular subject of gift then the possession of the subject of the gift has not been transferred. If the donee is permitted, directly or indirectly to receive the benefit, then the possession is transferred.'
20. It is apparent from the manner in which Rafi Ullah Khan continued to deal with the property that he had not transferred possession of it to the appellant. The evidence on the record amply demonstrates that his conduct in relation to the property even after the execution of the gift deed is inconsistent with the assertion that he delivered possession of the property to the appellant. Indeed, the recital in the gift deed that possession had been delivered is evidently improbable because about the time when the gift deed was executed Rafi Ullah Khan was in Shahjahanpur while the appellant was residing with her husband at Azamgarh. According to the appellant herself, delivery of possession did not take place until some months after the execution of the gift deed.
21. The authorities are united on the point that to validate a gift it is essential that the donor should divest himself completely of all ownership and domain over the subject of the gift. Macnaghten in his Principles and Precedents of Moohummadon Law P. 51, Section 8 says:
'The gift cannot be implied. It must be express and unequivocal, and the intention of the donor must be demonstrated by his entire relinquishment of the thinggiven and the gift is null and void when he continues to exercise any act of ownership over it.'
22. The Judicial Commitae in Musa Miyan v. Kadar Bux, 55 Ind App 171 : AIR 1928 PC 108 observed that the relinquishment of control over the subject was necessary to complete the gift. And in Dalpheroo Mian v. Bangali Mali, AIR 1923 Pat 481 the Patna High Court pointed out that where the property was not abandoned by the donor after making the gift but the donor continued to consider himself as its owner there was no valid gift. It is necessary that the donor should do all that is in his possession abdicate his ownership and vest it in the donee. If the possession of the property can be given it is essential that it should be. If the property does not admit of actual transfer of possession, there must be some overt act on the part of the donor evidencing the intention to divest himself of the ownership and transfer it to the donee. The principle is precisely stated in Anwari Begum v. Nizam-ud-din Shah, (1896) ILK 21 All 165 at pp. 170, 171:
'There is no doubt that the principle of Muhammadan Law is that possession is necessary to make a good gift, but the question is, possession of what? If a donor does not transfer to the donee, so far as he can, all the possession which he can transfer, the gift is not a good one. As we have said above, there is, in our judgment, nothing in the Muhammadan law to prevent the gift of a right to property. The donor must, so far as it is possible for him, transfer to the donee that which he gives, namely, such rights as he himself has; but this does not imply where a right to property forms the subject of a gift, the gift will be invalid unless the donor transfers, what he himself does not possess, namely, the corpus of the property. He must evidence the reality of the gift by divesting himself, so far as he can of the whole of what he gives.'
23. It is pointed out by the appellant that what was gifted to her were zamindari rights and it is not possible to make physical delivery of such rights. It is said that as zamindari rights are in the nature of incorporeal rights no delivery is possible in their case. Reference is made to Mullick Abdool Guffoor v. Muleka, (1884) ILR 10 Cal 1112. In that case the property, which was the subject of the gift, consisted of several zamindaries and shares in zamindaries let out to tenants, certain malikana rights and a considerable quantity of house property and garden lands. The Calcutta High Court referred to the Impossibility of a literal application of the plea requiring actual delivery of possession because, it was observed, lands in India were almost all let out on leases of some kind and what is usually called possession in this country was not actual or khas possession, but the receipt of the rents and profits.
The Court was impressed by the circumstance that if lands let on rent or leases could not be made the subject of a gift then many thousands of gifts which had been made over and over again of zamindari properties would be invalidated. In respect of all the properties before the Court, the consideration which determined the opinion of the learned Judges was that the properties had been let out on lease or represented a chose in action. In that sense, the case before us is distinguishable on its facts. It is not a case where the grove had been leased out and the right conveyed to the donee was the right to realise rent from the tenants.
24. It is urged that delivery of possession was not necessary when the gift deed itself authorised the donee to take possession. We are referred to Mahomed Baksh Khan v. Hosseini Bibi, (1888) 15 Ind App 81 (Cal). It is clear, however, from the opinion of the Judicial Committee in that case that the further circumstance which determined the validity of the gift was that in fact the donees did take possession. We have been referred to the observations of the Supreme Court in Macbool Alam v. Khodaija, : [1966]3SCR479 :--
'To validate the gift, there must also be either delivery of possession or failing such delivery, some overt act by the donor to put it within the power of the donee to obtain possession.'
In that case, however, the Supreme Court was concerned with propertv which at the time when the gift was made was in the possession of a trespasser.
25. As I have already said, the evidence on the record amply proves that despite the execution of the gift deed Rafi Ullah Khan continued to exercise proprietary rights in respect of the grove as owner thereof. Not only did the management of the grove continue as before with him, but he continued to enjoy its profits and to appropriate to himself the sale proceeds from its produce. I am fully satisfied that Rafi Ullah Khan did not divest himself of the ownership and domain over the grove.
26. At this stage, reference may usefully be made to the circumstances which persuaded Mitter, J. in : AIR1932Cal497 (Supra) to hold that the gift deed did not take effect. The circumstances were.
(1) There was no mutation of the name of the son in the landlord's sherista,
(2) In the record of rights finally published within three years of the deed of gift, there is no entry in the name of the son but possession was shown with the father.
(3) Appropriation of the rent and profits by the donor.
All these circumstances correspond broadly to what has been found in the case before us.
27. In support of the submission that Rafi Ullah Khan had divested himself of the ownership of the grove by handing over the gift deed to the appellant, the appellant also relied upon Valia Peedikakandi Katheessa Umma v. Pathakkalan Narayanath Kunhamu : [1964]4SCR549 . That, however, is a case where the gift was made by the husband to his minor wife who had attained puberty and discretion. The Supreme Court relied upon the rule that in the case of a gift made by a husband to his wife actual delivery of possession was not necessary to complete the gift. In Mohammed Sadiq All Khan v. Fakr Jahan Begam the Judicial Commitee pointed out:
'In case of a gift by a husband to his wife, their Lordships did not think that Muhammadan Law requires an actual vacation by the husband and an actual taking of the possession by the wife. In our opinion the declaration made fay the husband followed by the handing over of the deed was sufficient to establish the transfer of possession'. So also no transfer of possession Ss necessary in the case of a gift by a father to his minor child or by a guardian to his ward. But there is no warrant for extending the rule to the case of gift made by a donor to his daughter-in-law.
28. There are other cases where the Courts have accepted the proposition that delivery of possession is not a sine qua non to the validity of a gift of immove-able property. But those are cases where the donor and donee were both residing in the property at the tune of the gift. In such a case the gift is 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. The principle was applied in Humera Bibi v. Narim-un-nissa, (1905) ILR 28 All 147 where a Mohammedan lady who had brought up her nephew as her son executed a gift deed, in favour of the nephew, of a house in which they were both residing at the time of the gift. It was also applied in Bibi Khaver v. Bibi Rukhia, (1905) ILR 29 Bom 468 where the gift was made to a daughter-in-law and her children, in Kandath v. Muslium, (1907) ILR 30 Mad 305 where the gift was made by a mother to her daughter, in Baldeo Prasad Bal Govind v. Shubratan, 1936 All LJ 590 where the gift was made by the donor to his daughter-in-law, and in : AIR1937All547 (Supra) where the gift was made by the donor to his relation, a Pardahnashin lady, who was also a co-sharer in the property and was, therefore, in constructive possession of it
29. In the case before us there is nothing to show that at the time when the gift deed was executed by Rafi Ullah Khan the appellant was already in possession of the grove. And, as I have already pointed out, the conduct of Rafi Ullah Khan after the execution of the gift deed establishes that he did not intend to transfer the proprietorship in the grove to the appellant upon the execution of the gift deed.
30. That suffices to dispose of the appeal.
31. I may mention that an application for amendment of the plaint has been made by the appellant. The appellant points out* that as a result of the enactment of the U. P. Zamindari Abolition and Land Reforms Act the appellant has acquired the status of a bhumidhar of the grove. The amendment is opposed principally on the ground that it is belated. I see no reason why the amendment should not be allowed, specially when bhumidhari rights are claimed as a result of the change of the law during the pendency of the case. In the circumstances, I would have allowed an opportunity to the respondents to amend their written statements, but as I am for dismissing the appeal I consider it unnecessary to postpone the disposal of the appeal necessitated by the grant of such opportunity.
32. I may, also point out that the first respondent has urged that if the appeal is not dismissed on the merits the suit and the appeal must be held to have abated by reason of Section 5 (2) (a) of the U. P. Consolidation of Holdings Act. The appellant contends that there is no abatement. In the circumstances that I see no force in the appeal, it is not necessary for me to express any opinion on this point.
33. The appeal fails and is dismissed with costs.
Gulati J.
34. This is a plaintiff's special appeal directed against the judgment and decree of a learned single Judge of this Court.
35. It is not necessary to narrate the facts in detail as they have been set out in the judgment of my brother Pathak, J. In brief, the plaintiff's case is that she is the daughter-in-law of Rafi Ullah Khan who gifted to her in 1916 the grove in dispute. After the death of Rafi Ullah Khan, she filed a suit for the declaration that she was the owner of the grove in dispute and also for damages on the allegation that defendant No. 1 had cut away from the grove the two shesham trees. The suit was resisted by Mukhtar Dad Khan who is son of the plaintiff's husband from another wife and the defendant No. 2 the sister of one Shirin Begam, deceased, who claimed to be the second wife of Rafi Ullah Khan. The suit was dismissed by the trial Court and the judgent of the trial Court has been affirmed by the learned Single Judge of this Court
36. The gift is evidence by a registered deed of gift, which was sent to the donee at Azamgarh where she was residing with her husband Khan Bahadur Mohammad Rafi-ul-Qadar, where he was posted as Deputy Collector. The gift deed was delivered to the plaintiff by her husband which she accepted and was conveyed to the donor by means of a letter.
37. The allegation on behalf of the contesting defendants that the gift deed was a fictitious document, has been disbelieved by the learned Single Judge, and, in my opinion, rightly. The plaintiff's case that a validly executed deed of gift duly registered was sent to her and she conveyed her acceptance thereof, has been proved beyond doubt.
38. The main ground upon which plaintiff has failed is the want of delivery of possession to her of the gifted property. The plaintiff attempted to prove the delivery of possession in two ways. In the first place, she alleged that soon after the receipt by her of the gift-deed, she went to Shahjahanpur where her father-in-law was residing and she along with her husband accompanied Rafi Ullah Khan to the grove where the latter stated that he had made the plaintiff the owner of the grove and put her in possession thereof. According to her she thanked her father-in-law in the grove and said that as she was generally living outside he (father-in-law) should manage the grove. She also stated that she brought some mangoes from the grove.
39. If this part of the story is accepted, the delivery of possession would stand proved but unfortunately for the plaintiff this story of her's has not been accepted by the trial Court nor has it found favour with the learned Single Judge nor indeed with my brother Pathak, J. After giving my anxious consideration, I am also of the opinion that this plea of the plaintiff has not been established. It was not mentioned in the plaint nor is there any evidence in support thereof excepting the plaintiff's own statement. This plea appears to be an afterthought on the part of the plaintiff with a view to making good a serious deficiency in valid gift under the Mohammedan Law which requires not only the acceptance of the gift by the donee but also the delivery of possession of the gifted property by the donor to the donee.
40-41. In the alternative, the plaintiff relied upon the mutation proceedings in her favour initiated just before the death of the donor in September, 1942. According to the plaintiff, Rafi Ullah Khan asked her to file an application for mutation in her favour and he gave his written consent in that behalf but before the mutation could be effected, Rafi Ullah Khandied. In support of this part of the story, the plaintiff has produced a number of witneses. One of the witnesses is Abdul Hakim Khan who was then the President of the Judicial Committee, Gwalior State. He is the nephew of the plaintiff. He stated that shortly after the death of Rafi-ul-Qadar, the plaintiff's husband and Rafi Ullah Khan's son, he visited Shahjahanpur to offer his condolences to Rafi Ullah Khan on the demise of his son. There the witness came to know about the deed of gift which was executed by Rafi Ullah Khan in favour of the plaintiff. There was a discussion between the plaintiff and Rafi Ullah Khan about the mutation. The witness advised Rafi Ullah Khan that it was desirable to get mutation in plaintiff's favour. Rafi Ullah Khan is stated to have remarked that he was not aware that a registered deed was not sufficient to create a valid gift. He however, accepted this suggestion, called Mr. Raza Husain, a pleader and instructed him to have the plaintiff's name mutated. Mr. Raza Hussain has also appeared as a witness. He corroborated the statement of Abdul Hakim Khan to the effect that Rafi Ullah Khan had asked the witness to file an application for mutation on the basis of the gift deed. The witness then wrote out an application and presented it before the Court concerned on September 23, 1942. The application was thumb marked by Rafi Ullah Khan, as according to this witness, Rafi Ullah Khan was very weak and was not in a position to put his signature. The application was also witnessed by Mukhtar Dad Khan, alias Rais Mian who later on was one of the main contesting defendants in the suit.
Mukhtar Dad Khan has not denied his signature on the mutation application. In these circumstances, I am fully satisfied that this part of the story of the plaintiff is also proved. There is no reason to disbelieve the testimony of Abdul Hakim Khan who is a respectable and responsible person and of Raza Hussain, the lawyer. Raza Ali Khan is another witness of this part of the plaintiff's case. He is a nephew of Rafi Ullah Khan deceased. He stated that Rafi Ullah Khan had put his thumb mark on the mutation application in his presence and that Rais Mian and Lalloo Khan had signed the application. Rais Mian, as stated earlier, is defendant No. 1, and Lalloo Khan is the nephew of Rafi Ullah Khan, deceased. Raza Ali Khan indeed is an interested witness as he was the plaintiff's pairokar in the civil suit and was also her mukhtar-i-am. There is evidence of strained relations between him and Rais Mian but since Rais Mian has not denied his signature, I see no reason why Raza Ali Khan should be disbelieved.
From the evidence relating to this aspect of the case, the following things are established.
(i) That Rafi Ullah Khan had genuinely intended to make the gift and his intention remained unimpaired right upto the time of his death.
(ii) That Rafi Ullah Khan was all along under the impression that the execution by him of a registered deed of gift and the delivery of the gift deed to the donee was enough to bring about a valid gift.
(iii) That as soon as he was advised to have the donee's name mutated, he immediately took steps to have the needful done.
(iv) That he conveyed his consent to the mutation being effected in the name of the donee.
42. The question, however, arises as to whether all this is enough to constitute a valid gift according to Mahomedan Law.
43. One of the three essentials of a gift under the Mahomedan Law is the delivery of possession of the subject of the gift by the donor to the donee. The law seems to be extremely rigid on this point. Registration of a deed of gift does not cure the want of delivery of possession nor is the mutation of names a valid substitute for delivery of possession. Indeed, the mutation of name is not necessary to complete the transfer of possession. But the delivery of possession contemplated is not always the physical delivery. The delivery should be such as the subject of the gift is susceptible of. A constructive dell-very, and in some cases a symbolic delivery, has been held to be a good and sufficient compliance with the requirements of the law.
44. It must not be forgotten that at the time when the Mahomedan Law came to be formulated, there did not exist modern laws, like the Transfer of Property Act, the Registration Act and the Revenue Acts. The transfer of physical possession could at that time, be the only mode by which the intention of the donor and the donee could be ascertained beyond dispute. As the society progressed, other modes of achieving the same purpose were evolved. In this contex, it would be appropriate to refer to a decision of the Privy Council in Modh. Abdul Ghani Khan v. Mt. Fakhr Jahan Begam, AIR 1922 PC 281. At page 288 of the report is to be found the following observations:--
'In considering what is Mohammedan Law on the subject of gift inter vivos, their Lordships have to bear in mind that when the old and admittedly authoritative texts of Mohammedan Law were promulgated, there were not in the contemplation of any one any Transfer of Property Acts, any Registration Acts, any revenue Courts to record transfer of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down, for all timewhat should alone be the evidence that titles to lands had passed. The object of the Mahommedan Law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the lime that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift.'
45. The Courts in India have since long, been conscious of this fact and have at numerous occasions departed from the rigid requirement of the law viz. donor's handing over actual and physical possession of the gifted property. In , the Privy Council itself held that at least between husband and wife Mahomedan Law did not require an actual vacation by the husband and an actual taking possession by the wife. In the opinion of the Judicial Committee the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession. This indeed is a departure from the original test of the Mahomedan Law.
46. One of the boldest departures from the strict rule of Mahomedan Law in this regard is to be found in a recent decision of the Supreme Court in : [1964]4SCR549 , That was a case of a gift of certain properties including immoveable property, by the husband to his wife, who was a minor being 15 years and 9 months old. At the time of the gift, the husband was residing with his mother-in-law where also was residing his wife. The husband executed a deed of gift and handed over the deed to his wife's mother. There was no actual handing over of the property to the donee or to someone on her behalf nor was the gift deed handed over to the wife. The gift was held to be invalid bv the Courts below as well as by the High Court but the Supreme Court held the gift to be valid. Hidayatullah, J., fas he then was) observed at page 279;--
'The intention to make the gift was dear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother-in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife the gift would have been complete under Mohammedan Law and it seems impossible to hold that by handing over the deed to his mother-in-law in whose charge his wife was during his illness and afterwards Mammotty did not complete the gift. In our opinion bothin texts and authorities such a gift must be accepted as valid and complete.'
47. In the instant case, there is no doubt about the donor's intention to make the gift and the donee's acceptance thereof. The gift was made by a registered document which was duly delivered to the donee. That it was a genuine gift cannot be doubted for a moment. The gift purports to have been made out of love and affection for the donee and any oblique motive on the part of the donor to defraud his creditors has not been proved. As soon as the donor became aware of the necessity of having the donee's name mutated in the revenue papers, he took immediate steps to bring that about. The property was a zamindari property which was not capable of being physically delivered to the donee like a house or a chattel.
48. It is true that the donor continued to manage the gifted property even after the execution of the gift deed and the donee did not object to it nor did she care to ask for the usufruct; but that circumstance to my mind is not very material. The subsequent conduct of the donor and the donee is relevant only to determine the true intention of the parties. That intention, however, has been proved otherwise. It was open to Rafi Ullah Khan even after handing over the possession of the grove to the donee to have stipulated that the donee shall permit him. to enjoy the usufruct for the rest of his life. Such a gift would have been valid. There is no reason why the gift should be invalidated merely because there was no such express stipulation and the donee did not object to the donor's managing the property and appropriating the sale proceeds of the mangoes of the grove. The real crux of the matter is as to whether the gift had been completed at the time when it was made and that would depend on whether the possession had been delivered to the donee of the gifted property. The gifted property is a Zamindari property of which only a constructive or symbolic possession would have sufficed.
49. In such circumstances, one feels greatly tempted to extend the principle enunciated by the Supreme Court in Valia Peedikakandi Katheessa Umma's case fSupra) and to hold that there was complete transfer of title when the donor handed over to the donee a duly executed and registered gift deed. But all cases where the Courts have shown a departure from the strict Mohamedan Law, are confined to a narrow class of gifts--gifts between husband and wife and gifts to a minor. The present case does not fall in that class. Hidayatullah, C. J. who enunciated the rule in Valia Peedikakkandi Katheessa Umma's case, : [1964]4SCR549 (Supra) has himself administered a warning against the attempts by the Courts to liberalise the application ofIslamic Law. In the preface to the 16th edition of Mulla's Principles of Mahomedan Law', of which he is the author, his Lordship has issued the warning in the following words:--
'These attempts to liberalise the application of Islamic law to concrete cases are commendable but lest this practice becomes the rule, it should be stated that such advances may only be made rarely and only if the Koran, Hadia and Ijmas are not contradicted and when no other course is open to avoid a failure of justice.'
50. It is a pity indeed that a gift which, without hesitation, could have been held valid according to the modern concept of transfer of property should fail because of the rigid tenets of the Islamic Law. The weight of judicial authorities on the point involved in the present case is so overwhelmingly against the appellant that I see no other alternative except to agree with my brother Pathak, J. even though I am doing so most reluctantly.
BY THE COURT
51. For the reasons set out in our respective judgments, the appeal is dismissed with costs.