TMI Blog1957 (9) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... g the plaint allegations, was that the gift deed dated 1st February, 1947, marked as Exhibit B-1 in the case did not constitute an effective disposition of Muhammad Ismail's properties with the result that at his death the properties still continued to be his and devolved on the four children who survived him and that on the death of Hamida Bibi a few months after Muhammad Ismail, the plaintiff became entitled to her share as her heirs. 3. I shall have to refer in some detail to the grounds upon which the gift deed was attacked. But at this stage it is sufficient to mention that the main and substantial grounds upon which its validity was impugned were too. The first was that the deed was got up by the exercise of undue influence on the donor by the donees at a time when owing to the advanced age he was not able to take care of himself. The other ground urged was that the donor was seriously ill as a result of which, he was expecting to die with the consequence that the gift became affected by the rule of Marz-ul-Maut and that it could not have effect beyond a third. The learned Subordinate Judge as well as the learned District Judge on appeal have negatived both these groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contention was based on there being no specific issue raised as regards this point. Before the learned Subordinate Judge who tried this suit the issues that had been raised for trial, which are relevant in the present context are those numbered 1 to 3. 1. Whether the settlement deed was brought about by undue influence and is not valid and binding ? 2. Is it void of being a death-bed gift ? 3. To what shares are the parties entitled ? 8. The point in relation to there not having been delivery of possession of gifted properties was discussed by the trial Judge as part of issue 2. Mr. Raghavachari urged that on the terms of the issues as framed the only points that could have been considered were those relating to the gift being invalid by reason of undue influence and Marz-ul-Maut and that when once these were negatived the learned Subordinate Judge was bound to have dismissed the suit. I, however, consider that having regard to the course of the trial and the manner in which the parties understood the case that they had to meet, learned Counsel is not right in the submission which I have set out just now. 9. To start with the pleadings did raise this ground of inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards this requirement of Muslim law not having been satisfied by the gift on which the appellants based their title. 11. Learned Counsel for the appellants made two further alternative submissions : First, that there was a recital in the deed of gift Exhibit B-1 by the donor of having delivered possession of the properties gifted to the donees, that this was an admission binding upon those who claimed under the deceased. This admission he urged would no doubt not be conclusive proof of possession having been delivered but it raised a rebuttable presumption that the donor had accomplished what he stated he had, with the result that the burden of proof that the donor had not delivered possession would be on the plaintiffs and the 3rd defendant who would have to establish that, as a fact, possession had not been delivered and that it was not for the defendants to establish that the recital in the deed was true and represented the facts. The second was that even on the evidence on record the defendants had made out that there was delivery of possession effected by the donor simultaneously with or immediately after the execution of the deed of gift. 12. On the other hand, Mr. Jaga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y decision of the Privy Council reported in Sheikh Muhammad Mumtaz Ahmed v. zubaida Jan.One of the points in controversy in that case related to the validity of a deed of gift and one of the grounds upon which the operative character of the deed was challenged was that possession had not been delivered by the donor in pursuance of the deed. Sir Barnes Peacok who delivered the judgment of the Privy Council said: In the deed of gift she (the donor) declared (an admission by which Usman as her heir and all persons claiming through him were bound) that she had made the donee possessor of all the properties given by the deed ; that she had abandoned all connection with them ; and that the donee was to have complete control of every kind in respect thereof. 14. This is therefore authority for the position that a declaration by the donor of having parted with possession of the property was an admission and one which was binding upon those who claimed under him. This question was again before the Judicial Committee in Mohammad Sadiq Alikhan v. Fakhr Jahan Begam (1931) 62 M.L.J. 320 : L.R. 59 IndAp 1 : I.L.R. 6 Luck. 556 . The opinion of the Council was delivered by Sir George Lowndes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve based their decision against the appellants not having discharged the burden of proof thrown upon them to establish the essential condition of law to sustain the validity of the gift. The concurrent finding of both the Courts below merely goes to this length, namely, that the appellants had not proved that the gift was operative. In considering the question in this manner the Courts have committed an error and I cannot therefore accept that finding as binding on me. 16. The next question I have to consider is whether it is proper in the circumstances of this case to act on the basis of the evidence on record or whether I should send the case back for retrial after the parties had an opportunity of adducing the evidence on the real issue that arises in this part of the case. The facts that over 8 years have elapsed since the suit was filed is certainly a factor which I have to consider in deciding this point. I have however reached the conclusion that notwithstanding this delay I should yield to the request made by learned Counsel for the respondents that the appeal should not be decided on the basis of the evidence already on record. In doing so I have taken into account the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground of Musha did not figure in them ; nor was it the subject of discussion in either of the Courts below. This objection is based upon the description of some of the items, conveyed under Exhibit B-1 as if they were undivided shares belonging to the donor. There is nothing in the evidence of the plaintiffs' witnesses pointing to their reliance on this feature of the gift deed. Nor was there anything suggested during the cross-examination of the defence witnesses indicating such reliance. I have already pointed out that during the course of the argument in the two Courts this was not put forward as an objection to the deed. In these circumstances I am inclined to hold that this objection even if indicated in the pleadings was really not thought to have been put forward seriously and was in any event abandoned during the proceedings anterior to the hearing before me. I am not therefore inclined to include this as a point on which any further evidence should be permitted to be led. 19. Before concluding I must refer to the memorandum of cross-objections filed by the plaintiffs in relation to the residential house which formed one of the items of properties gifted unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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