E. Padmanabhan, J.@mdashA.S. No. 625 of 1983 has been preferred by Abdul Samod, the first defendant being aggrieved by the judgment and decree dated 27.6.1983 made in O.S. No. 303 of 1978 on the file of the II Additional Sub Judge at Pondicherry. A.S. No. 744 of 1990 has beat preferred by Rahamad Bi Bi, the plaintiff, being aggrieved by the judgment and decree dated 16.3.1989 made in O.S. No. 9 of 1972 on the file of Principal District Judge at Pondicherry.
2. S.A. No. 942 of 1989 has been preferred by Abdul Bazid, the first defendant in O.S. No. 104 of 1975 on the file of the II Additional Sub Judge, Pondicherry being aggrieved by the judgment and decree passed therein as confirmed by the Principal District Court by its judgment and decree dated 21.12.1987 made in A.S. No. 92 of 1979. In this Second Appeal, at the time of admission at the instance of the appellant, the following substantial question of law has been framed:-
"When the gift is by the father in favour of the son/daughter, whether the delivery of actual possession of the property which is in the hands of the tenants is necessary for a valid gift under Mohammedan Law?"
3. S.A. No. 1045 of 1989 has been preferred by Razina Bi, the fourth defendant in O.S. No. 114 of 1975 on the file of the II Additional Sub-Judge, Pondicherry, being aggrieved by the Judgment and decree made therein as confirmed by the judgment and decree dated 21.12.1987 in A.S. No. 91 of 1979 on the file of the Principal District Court Judge, Pondicherry. In this Second Appeal the following substantial question of law has been framed at the time of admission :-
" When the gift is by the lather in favour of the son/daughter, whether the delivery of actual possession of the property which is in the hands of the tenants is necessary for valid gift under the Mohammedan Law?"
4. The counsel for the appellant in the respective appeals, as well as the respondents jointly requested that the two First Appeals as well as the two Second Appeals could be taken up for consideration and disposed of by a common judgment as the suit property is one and the same and the parties to the proceedings are also common. There is no dispute with respect to the relationship between the parties.
5. It is fairly admitted by counsel for either side that the suit property, originally belonged to Haji Mohamed Ibrahim Sahib, who died during the year 1963. Amita Bibi, the first wife of the said Haji Mohamed Ibrahim Sahib died during 1932 leaving behind four sons namely (1) Mohamed Zackaria (2) Abdul Gaffour, (3) Abdul Sattar and (4) Mohamed Ismail. Out of the said four sons, Mohamed Zackaria is no more. Rabia Bibi is the widow of Mohamed Zackaria Out of lawful wed lock between Mohamed Zackaria and Rabia Bibi, Mohideen San, who was the only son and Asmatfaumriza were born. On 1.10.1936 the said Haji Mohamed Ibrahim Sahib married Balkiss Bibi as his second wife, who died during the year 1955. Through his second wife the said Haji Mohamed Ibrahim Sahib had two sons and three daughters namely Abdul Bazid (appellant in S.A. No. 842 of 1989), (2) Abdul Samed (appellant in A.S. No. 625 of 1983) and three daughters namely (1) (name not furnished) (2) Rahmath Bibi (7th respondent in A.S. No. 625 of 1983) and (3) Razima Bi (Appellant in S.A. No. 2045/1989)
6. The said Haji Mohamed Ibrahim Sahib married Ouna Salima Bibi who is the third wife on 20.11.1955 and they had one daughter Fathima, who is no more. As already pointed out the said Haji Mohamed Ibrahim Sahib died during 1963. The three marriages of the said Haji Mohamed Ibrahim Sahib are admitted and so also the relationship between the parties to the proceedings. Further there is no dispute about the number of children born to said Haji Mohamed Ibrahim Sahib through his three wives.
7. It is admitted by either side that the said Haji Mohamed Ibrahim Sahib had executed three separate deeds of donation on 30.3.1956 respectively in favour of Abdul Bazid, Razima Bi and Rahmath Bibi, who are the children of the said Haji Mohamed Ibrahim Sahib, the donor, born through his second wife. The children of the said Haji Mohamed Ibrahim Sahib (hereinafter referred to as Mohamed Ibrahim for brevity) challenged the said three donation deeds as invalid on various grounds.
8. In O.S. No. 303 of 1978 out of which first appeal A.S. No. 625 of 1983 arises, the sons of Mohamed Ibrahim through the first wife prayed for declaration that the donation deed executed by their father Mohamed Ibrahim in favour of the defendants, Abdul Samad (first defendant), Rahmath Bibi alias Rahmathunniza (second defendant) on 30.3.1956 in the office of Notaire Adivaraga Kothandaraman and transcribed on 4.4.1956 as RV 213 No. 80 as null and void and to transcribe the judgment in the margin of the relevant book kept by Conservation des Hyptheque i.e. District Registrar, Pondicherry. In this suit, the father Mohamed Ibrahim was impleaded as the 3rd defendant and pending the suit he died and 4th defendant namely, the 3rd wife of Mohamed Ibrahim was impleaded. The cause of action for the suit arose on 30.3.1956 at Pondicherry and the plaint was presented on 28.10.1978 and it was filed on7.11.1978.
9. Original plaintiffs in O.S. No. 303 of 1978 pleaded that their mother, the first wife of Mohamed Ibrahim came from an affluent family and initially properties were purchased by the said Mohamed Ibrahim in his own name and later, on the instigation of the second wife, he had purchased several properties worth more man Rs. 3.5 lakhs at Valavanur, Cuddalore and Bangalore. According to the plaintiffs, the second wife Balkia Beevi came from a very poor family and caused a great spell on her husband and managed to get several properties purchased in her name. After the death of the second wife during 1955, Mohamed Ibrahim married for the third time, the 3rd defendant in the suit.
10. The plaintiffs got married long back and were living separately from their father since 1950 onwards. As such Mohamed Ibrahim was living with the second wife and the children born through her during the life time of the second wife as well as subsequently, besides living with the third wife in a separate house. According to the plaintiffs one Bailwan Bify mother in-law of Mohamed Ibrahim through his second wife and one Raja Mohamed, his brother-in-law excercised great pressure and influence on Mohamed Ibrahim, after the third marriage and feared that the third wife and the children that might be born to her will claim share in the estate of their father and with a view to deprive the children born through the first wife, the third wife and any children that might be born through the third wife, the said Bailwan Bivy and Raja Mohamed brought about undue influence and by use of fraudulent means and pressure forced Haji Mohamed Ibrahim Sahib to execute several donation deeds in favour of his sons and daughters born through the second wife separately.
11. The said Mohamed Ibrahim executed several donation deeds including the donation deed dated 30.3.1956 in favour of the defendants. 1 and 2 and their brothers and sisters to be enjoyed by them without alienation for a period of 15 years and to be taken thereafter absolutely. According to the plaintiffs, the donees namely the defendants 1 and 2 were minors at the time of the execution of the donation deed and they were represented by their maternal grand mother Bailwan Bivy, who was purported to have been present and accepted the donation deed. The plaintiffs pleaded mat the donation deed dated 30.3.1956 in favour of the defendants 1 and 2 is not valid and it was never acted upon or intended to be acted upon and was never given effect to and the donor retained possession of the suit property, which he had never parted either to the minors or their guardian Bailwan Bivy. According to the plaintiffs, the donation deed is invalid for the following five reasons:-
(a) that the gift by a father in favour of particular son and daughter to the exclusion of other heirs is contrary to the personal Quoranic injunction and therefore is not valid in law.
(b) the said Donation deed was brought about by pressure, fraud and under influence and the donor has not exercised a free Will at the time of the execution of the suit document.
(c) the donor has never delivered possession of the property covered by the gift either to the minors or to the said Bailwan Bivy.
(d) the gift was not properly accepted since Bailwan Bivy was not a proper guardian to accept the gift while the donor''s elder brother, Mohamed Haneef who was alive and is a proper guardian did not either act or accept the gift.
(e) the gift with a condition limiting right of the donees for 15 years is opposed to the provisions of code Civil.
(f) the donor did not indicate the specific shares or portions of the property gifted to the respective donees."
12. It was further pleaded by the plaintiffs that Mohamed Ibrahim realising the injustice caused to his other sons and heirs did not give effect to the donation deed and retained the suit properties and other properties and treated the same as his own and applied the income therefrom for his own benefit and for the benefit of minors. It has been further pleaded that the guardian mentioned in the donation deed did not accept it or had not taken any steps either to collect the income from the suit property or maintain any account or to take any steps to assert the right of the minor donees. It has been further pleaded that there was no mutation of the suit property and the suit property continued to remain in the name of Mohamed Ibrahim the donor. It has been further pleaded that the first defendant Abdul Samad was living a very wayward life and Mohamed Ibrahim was so much irritated by the conduct of the first defendant and had also issued a publication in the Government Gazette of 11.9.1959 stating that the first defendant had absolutely no right to claim any interest in his property and the public were warned not to have any transaction with the first defendant in respect of any property.
13. The plaintiffs on coming to know about the donation deed, instituted suits before the court of 1st instance impleading their father Mohamed Ibrahim, who appeared through his counsel and did not take steps either to support the donation deed or to support the claims of plaintiffs and left the matter to Court. So also Bailwan Bivy guardian of the defendants. The plaintiff pleaded that the deed of donation dated 30.3.1956 is null and void.
14. After the death of Mohamed Ibrahim, the defendants 1 and 2 along with their brothers and sisters got the estate of Haji Mohamed Ibrahim sealed and at their instance a Court Receiver was appointed. The Court Receiver had taken possession of the entire assets of Mohamed Ibrahim including the suit property and began to administer the same by collecting the income therefrom. The Court Receiver has leased out the suit property and other properties and deposited die income in the Court and later distributed the respective shares of the income to the plaintiffs, the defendants and other heirs on the basis of orders of the Court. According to the plaintiffs, the defendants 1 and 2 even after attaining majority had not taken any steps to assert their right over the suit property, which was all along being treated as the estate of the deceased Mohamed Ibrahim, the donor and the property is still in the hands of the Court Receiver. In the circumstances, the plaintiffs seek for a declaration, that the donation deed is null and void.
15. The defendants 1 and 2 filed separate written statements. As already pointed out the 3rd defendant died and the 4th defendant remained ex-parte.
16. The first defendant filed written statement dated 22.3.1980 contending that the plaintiff has already filed assingasium dated 12.2.1958 in which the plaintiffs have pleaded that the donation in favour of the defendants 1 and 2 is void contending that Mohammadan Law does not admit more than what is allotted to him by Islamic Law, mat the donation in favour of the defendants 1 and 2 are valid that the Mohammedan Law does not limit the power of a Muslin from donating the property to whomsoever he likes, that the donation in favour of the defendants 1 and 2 is valid, that as per Mohammedan Law, the transfer of possession is not necessary, where the donor and the donee residing in the same house and also where the father makes a gift to son, mat on facts in the present case no delivery of possession is necessary, mat the gift was accepted on behalf of the defendants 1 and 2 by their grand mother, that the donation is perfectly valid, that the condition imposing restriction in the donation deed as to user and power to dispose are void and the gift is valid, mat there is no fraud in the donation and it is not contrary to law, that the suit was already decreed as against the first defendant and the second defendant, that the first defendant preferred A.S. No. 108 of 1972, which was allowed on 15.12.1975 by the II Additional District Judge, that in the remand order, the first Appellate Court remanded the matter for fresh trial, that after remand, the plaintiffs have not been permitted to file a fresh plaint or raise additional pleas with direction only with regard to the defendants for filing their written statement and to produce oral and documentary evidence and therefore, the present plaint is not at all maintainable and that it is contrary to the directions given by the first appellate court. It has been further pleaded mat the plaintiffs have no right to raise additional pleas. The first defendant prayed for dismissal of the plaint.
17. The second defendant contended that the suit is not maintainable either in law or on facts. Originally, one Mohammed Sali and his 3 other brothers, who are the plaintiffs 5 to 7 in this suit instituted a suit by way of Exploit de Assignation against one Bailwan Bivy alias Zogorbi as the guardian of the defendants 1 and 2 and the said Mohammed Ibrahim for cancellation of donation deed dated 30.3.1956, that the said Bailwan Bivi should have acted in the interest of the minor colluded with the plaintiffs 5 to 7 and did not contest the matter, while the donor Mohammed Ibrahim left the matter for consideration of the Court, that the said Mohammed Ibrahim executed the deed of donation on 30.3.1956 in favour of the first and second defendants giving them the suit house, when they were minors, that the donor had chosen Bailwan Bivi alias Zogorbi, the great grand mother of the donees to represent them for accepting the gift, that the donation came into operation, that when the donor was still alive, the plaintiffs 5 to 7 filed the suit on 1.10.1958, that after remand by the District Court, the plaintiffs have sought to challenge the donation as vitiated by undue influence, invalid under Mohammedan Law, that the donation is void as per the delivery of possession by the donor to the donee, that the donation contains conditional gifts which is void and that the gift deed is only sham and nominal document, that the donation deed was executed by Mohammed Ibrahim with free Will and absolute desire to benefit the first defendant, that after donation, the donor lived for several years without any complaint about the alleged undue influence, fraud or collusion, that the donor did not make any complaint at any stage before any court, that the children of the first wife are very affluent and living comfortably and children of the second wife of the donor are very poor and living on meagre income, that out of spite and jealousy, wild allegations have been invented for the purpose of the suit by the plaintiffs, that the donor being the father and guardian of the donees, there is no requirement or need for handing over physical possession of the property or transfer of possession of the property donated to make a valid gift, that it is sufficient on the facts of the present case the plaintiffs establish the donor''s bona fide intention to give the property to the donee, that the very recital in the deed of donation shows that the donor has given the property by way of donation irrevocably in favour of minor sons, that the donor, who himself is the guardian of the donee by way of abundant caution has chosen to ask the great grand mother of the donee to accept the gift on his behalf, which would show the eagerness of the donor to express the intention to donate irrevocably, that the donation deed is a notarial document, that under the French Law, donation made to the minor should be accepted on behalf of the minor by his guardian or by his father or mother or by one of his ascendants (grand father or grand mother, etc.) even when his father or mother was alive, that there could be obviously no substance or sustainability in the contention that there is no handing over of possession of the property to the minor by the guardian, that the plea that Bailwan Bivi was not residing in the property is neither relevant nor has a bearing as such a plea is frivolous, that the plaintiffs have to strictly prove that the gift is sham and nominal and not acted upon nor intended to be acted upon that the donation has been effected irrevocably, that it is not necessary to effect mutation to validate the donation, that even before mutation could be effected there was a suit which ended in cancelling the deed and subsequent to which proceeding continued and as such there is no substance in the contention, that the condition set out in the donation deed that the donee shall not dispose the property for 15 years but have right only to enjoy the property that the deed of donation cannot be construed as a gift "in future" as contended by the plaintiffs, mat the gift deed is valid and that condition which is contrary to law is void that the donation remains valid, that the donor had not taken steps to cancel the deed at any point of time and he had left the matter for consideration of the Court for adjudication between the two sides namely, the sons through the first wife and the children through the second wife, mat the plaintiffs obviously have no right in the suit property, mat die deed of gift is an absolute one and it is not an inchoate document, that the donation is irrevocable, enforceable and in force, that the donor himself had subsequently executed a Will bequeathing the very same property in favour of the defendants and the defendants 1 and 2 are entitled to the very same property as seen from the Will dated 17.11.1959 and the suit claim is false, devoid of merits and it has to be dismissed with exemplary costs.
18. The plaintiffs examined PW1 and PW2 and produced Exs.A-1 to A-6, while the first defendant examined himself as DW 1 before the Trial Court. The trial Court framed the following two issues:
1. Whether the donation deed dated 30.5.1956 executed by late Haji Mohammed Ibrahim Sahib in favour of defendants 1 and 2 is null and void for the reasons specified in the plaint ?
2. Whether the plaint is not maintainable as contrary to the direction given by the appellate court in Appeal No. 108/72 on 15.12.1975?
The trial Court held that the deed of donation executed by Mohamed Ibrahim in favour of the defendants 1 and 2 is null and void for the reasons specified in the plaint and answered the second issue also in favour of the plaintiffs. Being aggrieved, the first defendant has filed A.S. No. 625 of 1983.
19. Rahamat Bibi ailas Rahamam Unnisa one of the daughters of the said Mohamed Ibrahim instituted O.S. No. 9 of 1972 praying for a judgment and decree to set aside the decree in Affairs No. 289 of 1963 as against the plaintiff in the suit; to declare that the suit house belongs to the plaintiff absolutely and for consequential reliefs. The defendants 1 to 5 in the suit are the sons of the said Mohamed Ibrahim through his first wife and the plaintiff and her brothers and sisters, who were not parties to the suit are the children by the second wife. The defendants 7 to 8 are the children of the first defendant in the suit. According to the plaintiff, during her minority, her father Mohamed Ibrahim donated the suit property to the sons and daughters of the second wife. On the date of the donation deed, the plaintiff was a minor and it was accepted on her behalf by the guardian and the said deed of gift came into effect and operation. The defendants instituted a suit before the erstwhile Tribunal of Framiere Instance and the plaintiff herein was the 4th defendant in the said suit represented by me 6th defendant in the present suit.
20. When the proceedings started, the 6th defendant herein strangely withdrew herself from the guardianship of the plaintiff herein and such withdrawal all of a sudden from the guardianship was only because of the collusion between the first defendant in the said suit and Abdul Samad figuring as 5th defendant in the present suit The plaintiff further pleads that according to Mohammedan Law mere intention to give gift to a minor son or daughter is enough. The plaintiff further pleads on a finding based on that question and in the said collusive suit, the Court had set aside the said donation. But the said judgment and decree is silent about the rights of the plaintiff, who was a minor then; No appeal was preferred because of the 6th defendant in this Suit. When taken on appeal in Special Appeal Suit No. 702 of 1987 (Civil), the Hon''ble High Court observed that a fresh suit could be filed for obtaining any remedy under law, and the cause of action being arisen out of the conduct of the defendant Abdul Samad. It is further pleaded that the 5th defendant colluded with the 6th defendant, which resulted in passing of a decree in Affair No. 289 of 1963 and the collusion is apparent as seen from the very conduct of the 6th defendant. The plaintiff further pleads that the earlier decree in the affair being a collusive decree is not binding on the plaintiff and the plaintiff donee under the deed of donation is entitled to the property.
21. The second defendant filed a written statement as well as the additional written statement contending that the suit is vexatious and not maintainable. The second defendant pleaded that the earlier suit was disposed of after elaborate enquiry and the deed of donation was annulled. On appeal by the plaintiff, the High Court while dismissing the appeal observed that any remedy which the appellant will have under the law arising out the alleged conduct of the co-defendant will not be affected by the decision. The second defendant also put forward the plea of res-judicata and contended that the earlier judgment is binding all parties.
22. The defendants 1 to 4 adopted the written statement filed by the second defendant and they have also filed additional written statement contending that the suit has not been valued properly, that the donation made in 1956 in favour of the plaintiff as well as her brothers and sisters without demarcation was valued at Rs. 20,000/-. The suit house has a part of the property to the estate of Late Haji Mohamed Ibrahim Sahib vested in the hands of the official receiver and that the plaintiff had not prayed for consequential relief, which would be fatal to the present suit filed by plaintiff.
23. A detailed additional written statement has been filed by the second defendant resisting the suit claim and contending that the suit is bad for mis-joinder of parties and also denied the alleged plea of collusion. The plaintiff had filed a reply statement reiterating the claims.
24. The plaintiff marked Exs.A-1 to A-7, both before and after remand, while the defendants marked Exs.B-1 to B-6, both before and after remand and also examined one Mohamed Yasil as PW1 and Abdul Gaffur as DW 1.
25. The learned trial Judge framed the following issues:-
1. Whether the suit is barred by limitation?
2. Whether the suit is barred by resjudicata?
3. Whether the suit is bad for non-joinder of parties?
4. Whether the suit is bad for mis-joinder of parties?
5. Whether the plaintiff has cause of action against defendants 1 to 4?
6. If not, whether the donation of the suit properties, to the plaintiff by Haji Mohamed Ibrahim is valid?
7. Whether the plaintiff has the possession of the suit property and if not, whether the failure of asking for the relief of delivery of possession makes the suit not maintainable as per Section 34 of the Specific Relief Act?
8. What relief the parties are entitled to?
26. The learned trial Judge dismissed the suit holding that the plaintiff had failed to prove mat gift deed evidenced by Ex.A-2 is valid in law, mat the essential requirements with respect to the Donation deed had not been established and the gift cannot be said to be valid. Being aggrieved by the said judgment and decree in O.S. No. 9 of 1972, the plaintiff has preferred this Appeal A.S. No. 744 of 1990.
27. O.S. Nos. 104 and 114 of 1975 were instituted by Mohamed Saly alias Mohamed Zakaria and six others against (1) Abdul Basid and his three sisters. The plaintiffs in both the suits are the same persons. So also the defendants in both the suits. In both the suits, the plaintiffs prayed for a judgment and decree and to annul the gift deed and to mention in the margin of the transcription register maintained by the erstwhile Officer of Conservatour, des Hypotheques of Pondicherry (Sub Registrar, Pondicherry) In this suit also, the plaintiffs mainly pleaded that the deed of donation executed by their father Mohamed Ibrahim is vitiated, the deed of donation is sham and nominal and they were not executed in sound disposing state of mind. The Donation Deed was challenged.
28. The defendants resisted both the suits. The plaintiffs and defendants let in common evidence and the Trial Court by judgment dated 21.4.1979 II Additional Sub-Judge, Pondicherry held that both the gift deeds dated 30.3.1956 made respectively in favour of Abdul Basid and Rasmabi are null and void as sham and nominal and not properly executed and directed the Sub-Registrar to mention the same on the margin of the above Donation deed dated 30.3.1956 and annulled the said Donation deeds. The trial Court further held that the plaintiffs are entitled to their respective shares according to Mohammedan Law.
29. Aggrieved by the judgment and decree, the first defendant in the two suits preferred A.S. Nos. 91 and 92 of 1979 on the file of the Principal District Judge at Pondicherry. The two first Appeals were disposed of by a common judgment holding that both the gift deed were invalid and no oral or documentary evidence have been let in to prove that the suit property has been taken possession after the gift by the donees. The first appellate Court dismissed both the appeal confirming the judgment and decree of the trial Court in O.S. Nos. 104 and 114 of 1975 by judgment and decree dated 21.12.1987.
30. Being aggrieved, the first defendant in both the suits has preferred Second Appeal No. 842 of 1989 and 1044 of 1989 on the file of this Court. At the time of admission in both the appeal, a common substantial question of law was framed by this Court, which has already been extracted above.
31. With the consent of either side, as already set out above, all the appeals were taken up together and common arguments were advanced by Mr. T.R. Rajagopalan, learned Senior Counsel appearing on behalf of the counsel on record in all the appeals and Mr. R. Alagar, learned Senior Counsel appearing for the respondents in all the appeals.
32. The learned Senior Counsel appearing for Respondent admitted that the deceased Mohamed Ibrahim executed all the three deeds of donation. With respect to the execution of three donation deeds by late Mohamed Ibrahim, there is no dispute and the execution is admitted and so also the plea that the three donation deeds came to be executed under vitiating circumstances is not being pressed by the sons and daughters of the said donor through his first wife.
33. The main contentions in these Appeals are as to whether the three deeds of donation are valid in law? and whether the donees are entitled to the properties donated in their favour? Whether the donation had been validly accepted? Whether the possession of the property continued with the donor? or Whether the donation had been given effect?
34. It is fairly conceded that if the deed of donation is upheld, then the donees will be entitled to properties and if the donation is held to be invalid or inoperative, then both parties will be entitled to share the suit properties according to Personal Law of inheritance applicable to the parties.
35. Mr. R. Alagar, learned Senior Counsel had fairly stated that the respondents/ plaintiffs are giving up all other pleas raised in the suits and some of which have already been found in favour of the plaintiffs/ respondents. Mr. R. Alagar, learned senior counsel contended that if there is no valid gift at all, all other questions will not arise. The learned senior counsel further detailed the circumstances or events following the donation deeds.
36. The learned senior counsel further contended that there is no complete gift or donation and none of the essentials for completion of the donation has been completed. Though the intention of the donor might have been established, the delivery of possession, is a must. In the absence of delivery of possession, gift is not complete and hence no right accrued in favour of the donees. It was further pointed out that in the present case, there is not even a recital of delivery of possession by the donor in all the three donation deeds. Further there has been no delivery of possession or any overt act proved or established by the donees and as such all the heirs of late Mohammed Ibrahim are entitled to share the suit property. It was also further pointed out that the original gift deed had not been produced. It was also contended that the third element which is required for valid gift namely handing over of possession had not been established.
37. The learned Senior Counsel further contended that the donor being the owner of undivided interest cannot validly donate his undivided share or interest. At any rate, when single property is gifted in favour of two or more donees, Mohammedan Law requires the specification of the portion, which is being gifted in favour of the particular donee. The learned senior counsel Mr. R. Alagar further pointed out in so far as the erstwhile Union Territory of Pondicherry is concerned, the principles of Moosa is being applied strictly and as such not only the delivery which is incomplete in this case, but also it was pointed out that the division should have been effected before donation.
38. Per contra, Mr. T.R. Rajagopalan, learned senior counsel contended that the deeds of donation have been validly accepted and acted upon. In the present case, there has been a handing over of possession to the donees and the donation was by the father in favour of the minor children and guardian namely, maternal grand mother had been appointed to accept the donation on behalf of the minors and in the present case the donation is complete. So also the intention. These aspects require consideration. Mr. T. Ayyasami the learned counsel for the appellant also advanced separate arguments and relied upon the following decisions in support of his contentions:
1. Kollanchil Padinhakkara Abdulrahiman and another v. Kunhimohamad and others (AIR 1975 Kerala 150).
2. Mohamed Naziruddin v. Govindarajulu Appah and others (83 L.W. 445).
3. Kairum Biwi and others v. Mariam Bi and another (AIR 1950 Madras 447).
39. The Civil Code with respect to "Donations Inter vivos", the formalities required are found in Articles 931, 932, 933, 935, 937 and 938 and they are being relied upon. Hence the Articles are extracted herein for immediate reference:-
" 931. Every instrument purporting to be a donation intervivos must be drawn up by a notary in the ordinary form of a contract, and a record thereof must be kept in the notary''s archives, otherwise such instrument will be null and void. (C. 894, 948, 949, 1339, 1340)
932. A donation intervivos is not binding on the donor and has no effect until it has been accepted expressly. The donation may be accepted at any time during the live time of the donor by a subsequent instrument drawn up by a notary, of which a record shall be kept by the notary in his archives; but in such a case, however, it has no effect, as regards the donor, until he has been given notice of the instrument containing the acceptance. (C.780, 1076, 1087, 1121, 1317)
933. If the donee is of age the donation intervivos must be accepted by him personally, or else in his name by a person authorised, by him to accept the particular donation or by a person having a general authority to accept any donations which had been made, or which might be made. This authority must be drawn up by a notary and a certified copy thereof attached to the record of donation, or to the record of the acceptance, if it is given by a separate instrument.
935. A donation made to a minor, who has not been emancipated or to an interdicted person, must be accepted by his guardian, as provided by Art. 463 in the tide, "Of Majority of Guardianship and of Emancipation". An emancipated minor can accept if his curator joins in the acceptance. But the father and mother of a minor, whether he is emancipated or not, or his other ascendants, can (even during the lifetime of his parents, and though they are neither the guardians nor the curators of the minor) accept a donation in his behalf (m).
937. Donations made to homes for the poor of a commune or institutions of public utility must be accepted by those persons having the management of such communes or of such institutions, after they have been duly authorised by the proper authority to accept the same. (C. 910)
938. A donation accepted in proper form is complete by the consent of the parties alone. The property in the things so given is transferred thereby without any formal handing over being necessary (C.711, 932, 1138)".
40. In Sultan Miya v. Ajibakhatoon Bibi and others ( AIR 1932 Calcutta 497) the learned Judges constituting the Division Bench had laid down the essential requisites for valid gift. The Division Bench held thus:-
" The three requirements under the Mahomedan law for the validity of a gift are:
(1) there must be clear and unambiguous intention of the donor to make a gift (2) there must be acceptance of the gift express or implied on the part of the donee and (3) there must be delivery of possession of the property which is the subject-matter of the gift. As regards the third requirement, the delivery of possession must be such as, according to the nature of the property, would be susceptible. No writing is necessary to validate a gift but it is all essential that the formalities referred to above should be gone through. If any one of these formalities is not gone through although there may be a written instrument of gift, it is nevertheless invalid under the Mahomedan law.
41. The same Division Bench, while discussing further in respect of a gift by father in favour of minor son emphasised that both change of possession or mutation of names could not be insisted and what is required is a real and bona fide intention to make a gift and held thus:-
" To put the matter in another way: According to the Hedaya, p.484, to Bailie (see his Digest of Mahomedan Law, p. 538) and to Macnaghten, no change of possession is necessary in the case of gift by a father to his minor child and that where there is on the part of the father or other guardian a real and bona fide intention to make a gift, the law will be satisfied without change of possession and will presume the subsequent holding of the property to be on behalf of the minor. But this presumption in favour of the donee is rebutted by the circumstance mat 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 mis property and the rents and profits were appropriated by the donor."
42. A Division Bench of the Lahore High Court in Alla Rakha and others v. Alt Muhammad and others (AIR 1929 Lahore 45) while laying down the law relating to the essential conditions for a valid gift in favour of a minor indicated that change of possession is not necessary in case of a minor donee,
" If the donor is in actual possession of the gifted property, the law will be satisfied without change of possession and will presume the subsequent holding of the property to be on behalf of the minor. But this rule does not apply where the donor is not in actual possession. The gift by a father to his infant child is completed by the contract, and it makes no difference whether the subject of the gift be in his own hands or in deposit with another. But if it be in the hands of an usurper or of a pledgee or of a tenant who has hired, the gift is not lawful for want of possession."
43. Their Lordships of the Supreme Court in Valia Peedikakkandi Katheassa Umma and others v. Pathakkalan Narayanath Kunhamu (AIR 1964 SC 275) had occasion to analysis the law relating to a gift of immovable property in favour of a minor, Hindayathullah, J. held thus:-
" In our judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick-person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mother''s house and in her care where the husband was also residing. The intention to make the gift was clear 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 mere 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 Muhammedan law and it sees impossible to hold that by banding 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 both on texts and authorities such a gift must be accepted as valid and complete. The appeal therefore, succeeds. The Judgment of the High Court and of the Courts below are set aside and the suit of the plaintiff is ordered to be dismissed with costs throughout."
44. In Said Hassan v. Shah Hussain (AIR (34) 1947 Lahore 272) Abdul Rahman, J. held that gift of undivided share in a land in favour of a stranger is invalid and merely a recital that possession of such share is delivered to donee does not validate the same. It has been held thus-
" A gift of an undivided share in a plot of land in favour of a person who is not a co-sharer with the donor is invalid. Such a gift could have been validated if the donor had partitioned the land and then delivered possession of half share to the donee. But a mere statement in the gift deed that possession had been delivered of the undivided share does not validate the gift."
45. In Magbool Alam Khan v. Mst. Khodaija and others (AIR 1966 SC 1194), the Apex Court held that there can be a valid gift of property in possession of a lessee or a mortgagee and a gift may be sufficiently made by delivering constructive possession of the property to the donee. Their Lordships held thus:-
" Previously, the rule of law was thought to be so strict that it was said that land in the possession of a usurper (or wrongdoer) or of a lessee or a mortgagee cannot be given away, see Dorrul Mokhtar, Book on Gift, p.635 cited in Mullick Abdool Guffoor v. Muleka, (1884) ILR 10 Cal 1112 at pa. 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 possession 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. The donor may lawfully make a gift of a property in the possession of a trespasser. Such a gift is valid, provided the donor either obtains and gives possession of the property to the donee or does all that he can to put it within the power of the donee to obtain possession. In Mahomed Buksh Khan v. Hosseini Bivi, (1888) 15 Ind App 81 at p.95 (PC). Lord Macnaghten said:
"In this case it appears to their Lordships that the lady did all she could to perfect the contemplated gift, and that nothing more was required from her. The gift was attended with the utmost publicity, the hibbanama itself authorities the donees to take possession, and it appears that in fact they did take possession. Their Lordships hold under these circumstances that there can be no objection to the gift on the ground that Shahzadi had not possession, and that she herself did not give possession at the time."
But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by the donee. To validate the gift, mere 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. If apart from making a declaration, the donor does nothing else, the gift is invalid. In Macnaghten''s Muhammadan Law, Precedents of Gifts, Case No. VI the question was:
" A person executed a deed of gift in favour of his nephew, conferring upon him the proprietary right to certain lands, of which he (the donor) was not in possession, but to recover which he had brought an action, then pending, against his wife.... About a month after executing the deed, the donor died, and the donee, in virtue of the gift, lays claim to the litigated property. Under these circumstances, is his claim, under the deed, allowable?", and the answer was that the gift was null and the claim of the donee was inadmissible. The precedent covers the present case. Najma did nothing after the alleged declaration. She did not even file a petition in Title Suit No. 127 of 1939 mentioning the gift and asking for the substitution of the appellant in her place. Had she filed such a petition and submitted to an order of substitution, she would have placed it within the power of the appellant to obtain possession of the property; but she did nothing. Nor did the appellant obtain possession of the property during her lifetime with her consent. The gift is, therefore, invalid."
46. In Jhumman v. Husain and others (AIR 1931 Oudh 7), Srivastava, J. had occasion to consider the gift made in favour of a minor as well as the gift or declaration as to delivery of possession by donee, if any binds his heirs but held that it is inconclusive.
47. In Mt. Hussaina Bai v. Mt. Zohra Bai (AIR 1960 Madhya Pradesh 60), it has been held that under the Mohammedan Law, mere must be delivery of possession of the property gifted and even in a case of joint possession, there must be some overt act by the donor indicating a clear intention on his part to transfer possession and divest himself of all control over the subject of the gift.
48. The Division Bench of our High Court in Kairum Bi v. Mariam Bi and another (AIR 1960 Madras 447 = 73 L.W. 336) held thus:-
" We would best observe that the rules of Mahomedan Law do not require that to make a gift valid the donor must have physical possession of the property and must hand over that physical possession to the donee. It is enough if he has got legal possession of the property and transfers to the donee such possession as die matter is susceptible of.
One other observation must be made. The reason for the rule that the gift of an undivided share is bad is to be found in the desire to avoid what has been described as confusion. If the property is capable of separate possession but nevertheless the donor does not separate what he intends to give from his other possession, how is one to find out what he intended to give? And if we do not know what he intended to give, but still try to give something there is bound to be confusion. The reason of the rule is wholly absent in a case like the present where the donor gave away the entirety of her interest in the estate. It was held in Zahuran v. Abdus Salem, AIR 1930 Oudh 71;
" A definite share in immovable property zamindari, houses or shops, is a separate estate with separate and defined rents. The rule of musha, therefore, which aims at prohibiting confusion between estates gifted and not gifted is wholly inapplicable to such an estate. We may legitimately ask as was asked by Lord Macnaughten in the case of Mahomed Buksh Khan v. Hossein Bibi, ILR 15 Cal 684; 15 Ind App 81 (PC), what confusion can it introduce if the owner of a definite share in immovable property makes a gift of that share in favour of another person and has himself nothing left in that property after the gift? It seems to us that the only answer that can be given to this question is in the negative."
In Nazir Din v. Mohammad Shah, AIR 1936 Lah 92 at pp. 95, 96, Din Mohammad, J. observed:
" It will be manifest from the above that the original rigidity of the rule of Musha has been considerably relaxed in its application to British India and in almost all cases, which have-come up before the Courts here as well as before the Privy Council an effort has been made to adapt the rule to its new environments and so to interpret it as to make it consistent with the principles of justice, equity and good conscience.
The courts in this country have given effect rather to the spirit of the rule than to its letter and have upheld gifts in all cases in which the intention to give on the part of the donor had been expressed in most unequivocal terms, and had further been attended by all honest efforts on his part to complete the gift by divesting himself of the control over the property in such a manner as would clearly imply his divestiture in the eye of the law of the land.
The raison detre of this rule was the avoidance of gifts that were vague, indefinite or incomplete, and the only test that should be applied in such cases is whether the gift in question is open to any of these objections; or in other words, whether the donor has still reserved to himself a loop-hole of escape or not. If this is not so and if the donor has done to separate himself from the property, a gift of Musha will be as valid as that of property which can be physically handed over to the donee."
49. In AIR 1975 Kerala 150 (Kollanchi Padinhakkara Abdulrahiman and another v. Kunhimohamad and others) it has been held that the gift to joint donees is valid, not withstanding the doctrine of ''Musha'' and the learned Judge held thus:-
" In view of the decisions of this Court in Assankutty v. Mohammed Kurikkal 1961 Ker LT 959 and Khader v. Kunhamina 1970 Ker LT 237 the second point founded on the doctrine of ''musha'' has no force. In the 1st of the aforesaid two capes Velu Pillai, J. held that a gift to joint donees is valid not withstanding the doctrine of musha and in the later cases Krishna Iyer, J. said:
" that rule can be virtually removed from the armoury of a desperate Muslim donor (and his heirs) who wants to attack his own gift but has no rational ground to do so."
50. The Division Bench of our High Court in Mohamed Naziruddin v. Govindarajulu Appah and others (83 L.W. 445) with reference to the conditions or restrictions that have been imposed by the donor after referring to a passage in the Privy Council decision held thus-
" Thus the above passage in the Privy Council decision referred to in Ameer Ali''s Mohamedan law far from supporting the contention of the learned advocate for the appellant really shows that if the donor under the original of Ex. A-1 had imposed a condition restricting alienation by the legal guardian apart from these envisaged under the Mohamadan law, such a condition is void. In the Privy Council case the donee agreed to the stipulation that during the lifetime of the donor he should apply the accruing interest to certain religious and charitable purposes and such a condition is really in the nature of a trust created by an agreement of parties and it did not violate any provisions of Mohamedan law. But as pointed out by Ameer Ali at page 134 of his book, according to the Hanafi Law, any derogation from the completeness of the gift is null; and if the intention to give to the donee the entire subject matter of the gift be clear, subsequent conditions derogating from or limiting the extent of the right would be null and void. When once the donor under the original of Ex. A-1 had given the property covered by it absolutely to his grandsons represented by their legal guardian, it was not open to him to impose further restrictions as regards alienation apart from or in addition to those existing under the Mohamedan Law."
The Division Bench held that it is not open for a donor under Mohammedan Law to curtail the powers of a legal guardian, when he gifts the property in favour of minors and it was not open to the donor to impose further restrictions as regards the alienation apart from or in addition to those existing under the Mohammedan Law.
51. The capacity of Mohamed Ibrahim, who had executed the three deeds of gifts, his ownership and sound mind are not being disputed or challenged at all. The power to make a gift in respect of the subject matter of the three deeds also is not being challenged. The donees were minors and gift has been made in their favour which donations have been accepted by the guardian on behalf of minors. The donations had been declared irrevocably and intervivos. The recital regarding acceptance is specific.
52. The doctrine of Mushaa is intended to prevent confusion arising from failure to separate the divisible shares. This doctrine is in effect connected with the question of delivery of possession which would avoid confusion, where separation is possible. Though the conventional or ancient view was gift of undivided property is invalid however, there had been a change in the view and gift of undivided share, which is capable of a division is held not void. In In re Mohideenshib, (AIR 1957 Madras 436) (Division Bench) this Court while distinguishing Said Hussain v. Shan Hussain held that a gift of an undivided share, which is capable of a division is not void, though the case arose out of an arrangement between two sharers. The Division Bench held thus:-
" The contention was that as the donee was entitled only to undivided share the gift was invalid because of the doctrine of musha, under the Muhammdan law. As the learned Judge observed, the prevailing view is that a gift of an undivided share which is capable of division is not void. In our opinion, if the gift is otherwise valid, in a case like this, there can be no impediment to the Court directing a partition between the donee in the right of the donor and the other sharer, the first defendant in mis case. It certainly cannot be denied that the 2nd defendant himself could have filed a suit for partition against the first defendant. No authority has been cited before us for the position that the Court could not pass a decree for partition at the instance of a donee, of an undivided share against the person entitled to the remaining share."
53. In Masoon Sah v. Madar Sab and others (AIR 1973 Andhra Pradesh 198) and Thakkadi Syed Mohamed v. Ahmed Fathummal and others (AIR 1973 Madras 302 = 76 L.W. 527) it had been held that a gift of Musha property or joint property is not invalid, if the donor divests himself of all his interest therein and puts the donee in such possession of the property as that property is then capable of being given in gift.
54. In Thakkadi Syed Mohamed v. Ahmed Fathummal and others (AIR 1973 Madras 302=76 L.W. 527) it has been held that delivery of possession for a valid gift is such possession as the property is capable of and in the case of a gift of an undivided share in immovable property where the donee is already in possession of the property, there was no farther need to make any further act or taking up of possession. V. Ramaswami, J. as he then held thus:-
"Further, delivery of possession for a valid gift is, such possession as the property is capable of. In the case of a gift of an undivided share in immovable properly where the donee is already in possession of the property, there was no further need to make any further act or taking of possession. From the moment the gift deed was executed, the donee shall be deemed to be in possession of the entire properties to the exclusion of the donor."
55. In Masoon Sab v. Madar Sab and others (AIR 1973 Andhra Pradesh 198), Madhava Reddy, J. after analysing the various test books held that gift of Mushaa property or joint property is not invalid, if the donor divests himself of all his interest therein and puts the donee in such possession of the property as that property is then capable of. It has been held thus:-
" It follows therefore, that a gift of "Musha" property or joint property is not invalid if the donor digests himself of all his interest therein and puts the donee in such possession of the property as that property is then capable of. Having regard to the above discussion, it must be held that the father of the parties having parted with possession and all his right title and interest in the property and put the donees in possession of the property under Ex.A-3 conveyed under a valid gift deed, the title to the plaint schedule property in their favour, merely because the gift was made in favour of his three sons jointly, the gift cannot be deemed void. That being so, the plaintiff is clearly entitled to a decree for partition and separate possession of his l/3rd share in the suit property. The Courts below proceeded upon the footing that unless the donees take possession of their shares in the property gifted to them, the gift is not valid. That view is not supported by the preponderance of authority in Indian Courts regarding gifts made by a Muslim."
56. In the present case under separate three gift deeds, the donor had given undivided share in the very same property in favour of all the donees and thus he divested himself of all his entire interest in the property in question. There is no controversy between the donees under the three documents in question with respect to the property. No confusion had been suggested or alleged either on the side of the donee or on the donor. The donation had been very much accepted and acted upon.
57. The above cited pronouncements would show that the doctrine of Mushaa had been relaxed upon in its favour by Indian Courts especially our Court and the other Courts have from time to time had changed the application of said doctrine and the applicability of the same to the changing scenario in the Society and so to interpret it as to make it consistent with the principles of justice, equity and good conscience. However, so for as mis is concerned it has been held so in ILR 30 Madras 519 (Vahazullah v. Boyapati)
58. In Kairum Bi and others v. Mariam Bi and another (AIR 1960 Madras 447 = 73 L W.336), the Division Bench held mat the delivery of possession of the entire undivided share to two persons jointly by way of gift is not void. This decision of the Division Bench has been referred already in detail. I am abound by this judgment of the Division Bench and earlier judgment of the division Bench of this Court reported in In re Mohideenshib, (AIR 1957 Madras 436).
59. On the facts of the case, and as seen from evidence it could be safely held that without contradiction under the three gifts undivided portions have been gifted in favour of the donees, who are minor children of the donor and by the three gifts the donor had divested himself of the entirety of the property and divested the same on the donees, who were already living along with the donor.
60. With respect to handing over possession a contention has also seen raised that the donor had not validly handed over possession In other words donor had not delivered possession of the suit property to the donees, who were minors then. For the donees, a guardian had been appointed by the donor himself as seen from the recital of the deed of donation. The guardian so appointed is definitely for the purpose of accepting the three deeds of donation. It is further being pointed out that there is not even a recital in the instrument of the donation that the donor had handed over possession to the guardian of the donees. Though there is some force, this Court is unable to sustain the said contention. The intention of the donor is very clear and indicated and the donor had not challenged the donation deed till his death nor he had cancelled the same nor he had come out with a case that the donees have not been put in possession of the property. In the earlier proceedings also the donor had not taken a stand either way nor he had disowned the donation deeds as well as his handing over of possession under the three deeds of donation in favour of the donees.
61. Mohammedan Law does not require actual vacation in the case of a gift by the donor as in the present case or between the close relations, who have been living under the same roof. It is sufficient a declaration is made with some definiteness and the donor had transferred possession in favour of the donee. The donation is an unequivocal and bona fide declaration made with solemnity
62. It has been repeatedly held that under the Mohammedan Law. It is sufficient on the part of the father or guardian, the real and unequivocal intention to make a gift in law, will be satisfied without actual change of possession and yet the very same subsequent holding of the property by the father is on behalf of the minor donee.
63. In the present case, the three deeds of donations have been validly made and it is a declaration in writing of the gift by the donor and it has also been accepted by the guardian of the minor donees and according to the donees, the gift had taken effect from the date, the donor had executed the three deeds of donation. In the present case, the three documents are deeds of donation and evidence as well as conduct of donor to subscribe the valid donation.
64. While delivery of possession is one of the essential conditions for the validity of the gift, it has been held that it is not always necessary that in every case, there should be a physical delivery of possession, the delivery of which would complete a gift may be either actual or constructive. On the facts of the case and on the evidence placed before the Court, this Court holds that the donor had divested himself completely of all his ownership and domain over the property and it can be safely held that the donor had transferred possession to the donees through their guardian and the gift is complete, as it is a valid declaration divesting the donor''s interest in its entirety.
65. It is true that the donor was living along with the donees and it is sufficient if construction possession of the said gift is therefore made out. In the present case, the donees are not strangers and the donor and donees are father and children. Admittedly, the donor had neither cancelled the donation nor he had taken the stand mat the donation had not been given effect or that he had retained the possession of the property right through. As such this Court holds that the donation is complete in the present case. All the formalities required had been complied with and the donees have discharged the burden of proving that the formalities have been complied with.
66. As already pointed out the donees being the minor children of the donor and as they have been living along with their father and it was an exception to the general rule of handing over physical possession by a donor in favour of a donee. Admittedly the donees were living with father-donor and in such a case it can be safely held that the gift is completed by a declaration and acceptance and for all purposes such a bona fide declaration would complete the gift. A gift of a house to a son or grandson or daughter or children or other relations, who are residing in the property along with the donor, the gift becomes complete even without physical departure of the donor from the property provided that there is a clear indication of intention.
66a. On the facts of the case, this Court holds that there has been sufficient material to uphold the intention of the donor and the donor had divested himself of the suit property, besides the donees have been residing on the property in question and the gift is complete as has been held in various pronouncements.
66b. In. K. Veeran Kutty v. Pathumma Kutty (AIR 1956 Madras 514=77 L.W. 65), it has been held that a gift by a natural guardian of a donor does not require delivery of possession. No transfer of possession is necessary where the minor is in the custody of the donor with the express consent of the legal guardian or at any rate with a consent to be implied from the absence of any opposition. So long as it has been established mat the action is bona fide, then it can be safely concluded that a valid gift has been made. A gift may be completed by the manifestation of a bona fide intention to make a gift where the donor stand in lo co parentis to the donee or is in lawful custody of the donees.
67. The general rule is that the donor must divest himself of all control of the property which is the subject matter of donation. However, delivery of possession has got to be a concomitant of the gift. When a father gifts property to his child, the position is peculiar. Delivery of possession by a Mohammedan father to his minor child is for all practical purposes, delivery by right hand to the left hand. This is evidently the reason why the strict requirement of delivery of possession is not strictly insisted upon in the case of bona fide gift by the father to his minor child. In other words, the requirement of valid gift is fulfilled in a different manner. When the father is in possession of the relevant property as his own and on his own behalf, from the date of gift, the father is in possession of the very same property but only on behalf of the minor. As there is definite express declaration of intention, it could be safely held that in the present case, the donation is complete and a valid donation has been made by the father in favour of the minors subsequent act of the father also would support the claims of the donees and the father had nowhere set up the plea that he had not handed over possession nor given effect to the declaration made by him. In fact the father stood by his declaration till his death.
68. In law possession of the gift would be delivered to the donee''s guardian, if the donee is a minor. A gift in favour of the minor would be complete by the delivery of possession to the guardian. In the present case on the date of the deeds of donation by the father, the mother of the minors was not alive. The maternal grandmother of the minors had been appointed as the guardian and an unequivocal declaration had been made by donor himself, which is a bona fide action of the donor and he had stood by the same throughout his life.
69. In this respect the decision of this Court in Ayeeshee Bivi v. K.S. Ashaik Mohammed Alim Sahib (AIR 1964 Madras 309) could be usefully referred to wherein it has been held that mere should be such delivery to the donee as the property is capable of in respect of a gift by father to his minor child no transfer of possession is required and all mat necessary is to establish the bona fide intention to give. This position has been settled in Musha Miya v. Radar Bux (AIR 1928 PC 108=28 L.W. 33).
70. For all the above reasons, this Court holds that there has been a valid divestment by the donor in favour of the donee and the gift is complete on the facts of the present case.
71. As already pointed out the conditions or restrictions with respect to the alienation imposed by the donor is invalid and inoperative. As seen from the deeds of donation, it is not a gift in future nor it is a gift so as to render the same void. Evidence on record established valid donations, it is complete and donor had divested all his interest in favour of the donees.
72. In the circumstances, this Court holds that the deeds of donation are valid. The donor had divested all his title and the action of the donor is bona fide and it is nothing but unequivocal declaration and the donees have become the absolute owners since the date of donation.
73. On the facts of the present case, merely because there is no recital with respect to the handing over or taking over possession of the property donated as is being pointed out by Mr. R. Alagar, learned Senior Counsel. In the present case as already pointed out, the declaration which is unequivocal is obvious and apparent and it is a gift intervivos. The gifts being in presents were also accepted and given effect. They are complete dispositions by the donor with full knowledge and manifest intention to benefit the donees. It cannot be held that the donation is either incomplete or not acted upon. Per contra, the donor had affirmed the donation by subsequent conduct. The donor during the subsequent period had neither disowned the donation nor had supported the contesting claimants during his life time when litigations were brought to which the donor was also a party, though he kept silent. Nothing prevented the donor from expressing himself that the donation is incomplete or invalid nor acted upon nor given effect to or still he is in possession in his own right and not as guardian of the minor donees.
74. It is not necessary to refer to any other contentions as the learned counsel for either side confined themselves to this main contention alone and other pleas and objections have been given up as already set out above.
75. On the facts of the case, this Court holds that there has been valid divestment by the donor and acceptance of the donations and there had been handing over possession as the donor had not claimed during his life time that he is still in possession as the owner of the property. But on the other hand, there are sufficient and cogent materials to show that the donor had acted as the guardian of the donees and they were in enjoyment. The gift of undivided share on the facts on the present case is not invalid as sought to be contended by the learned counsel for the respondent. For the reasons already set out above and on the basis of the pronouncements referred to above, this Court holds that the deed of donation in valid, that the donor had divested himself of all his interest by unequivocal declaration and the donees had been put in possession and the possession after the date of donation was in the capacity of the guardian of the donees and the donees and the donor had been living together in the suit property. This Court holds that the restrictions that the donee shall not alienate the property donated even for a limited period is null and void and donation is valid as it is complete.
75a. In this respect, the Division Bench Judgment of this Court reported in 83 L.W. 445 (Mohamed Naziruddin v. Govindarajulu Appah and others) of this Court held that it was not open to the donor to impose further restrictions as regards the alienation and the restrictions imposed by the donor is void.
76. Thus, on a consideration of entire facts, the evidence, the law as profound by the Apex Court as well as this Court, this Court holds that the deeds of donation are valid as there is manifestation of the intention by execution, which is admitted and there is sufficient material to hold that there has been valid acceptance, followed by delivery of possession and donation being intervivos, mere failure to mention handing in the deed of donation is of little consequence on the facts of the present case.
77. The ancient doctrine of mushaa, as already held above had been relaxed considerably to give effect to the manifest intention of the donor. On a conjoint reading of all the deeds of donation in favour of the respective donees, on the pleadings and evidence, this Court holds that the deeds of donation cannot be held to be in violation of the Doctrine of Mushaa. No material has been placed before the Court to hold that in respect of former French territory the conventional doctrine of mushaa was being followed or strictly applied.
78. It is not necessary to refer to any other plea or contention that was raised or discussed by the Court below in view of the specific stand taken by Mr. R. Alagar, learned Senior Counsel appearing for the contesting respondents, who challenged the deeds of donation and who claims that they are entitled to share the suit properties.
79. In the light of the above discussions, the Second Appeals are to be allowed and the substantial questions of law framed in both the Second Appeals are answered in favour of the appellants. In the foregoing circumstances:
(i) the Appeal A.S. No. 625 of 1983 is allowed and consequently the judgment and decree in O.S. No. 303 of 1978 on the file of the Second Additional Sub-Judge, Pondicherry is set aside and the said suit will stand dismissed.
(ii) the Appeal A.S. No. 744 of 1990 is allowed and the judgment and decree dated 16.3.1989 made in O.S. No. 9 of 1972 on the file of Principal District Judge at Pondicherry are set aside and the said suit is decreed as prayed for.
(iii) S.A. No. 842 of 1989 and S.A. No. 1045 of 1989 are allowed and the judgment and decree of trial Court in O.S. No. 104 of 1975 and 114 of 1975 as confirmed by the first appellate Court in A.S. No. 91 and 92 of 1979 are set aside and the suits O.S. Nos. 104 of 1975 and 114 of 1975 on the file of the Second Additional Sub Judge, Pondicherry will stand dismissed. All the parties will bear their respective costs through out as well as in these Appeals.
