Sulfalla Sahib vs Vajihuddin Sahib and Others

We are unable to accept the finding of the learned City Civil Judge that possession was given by the plaintiff to his donee (1st defendant) of the

properties mentioned in Exhibit A.

The admission in the deed A and the admission or conduct in connection with the Collector''s certificate proceedings are, no doubt, strong items

of evidence against the plaintiff''s contention that no possession passed, but on the other hand there are the following facts (proved by clear and tin-

contradicted evidence)

(a) that the rents of house No. 3 were received by the plaintiff even after the date of the gift-deed for his own benefit;

(b) that neither the gift-deed (Exhibit A) nor any of the title-deeds (Exhibits B and C series), was given to the 1st defendant; and

(c) that the plaintiff continued to live in the house No.2/2 with all the obedient members of his family (including, ho doubt, the 1st defendant so long

as he was obedient).

These facts seem to us to indicate that the plaintiff continued to exercise rights of ownership over the properties for his own benefit, and he

cannot be treated as having divested himself of his possession of the properties in any degree. He could, of course, by making himself a trustee or

agent of the donee, or as his guardian (if the donee was a minor), or expressing an intention to treat his own possession as the donee''s possession,

unequivocally transfer legally effectual possession to the donee while himself remaining in actual possession, but there is no evidence of any such

intention on plaintiff''s part to treat his own possession as possession on behalf of 1st defendant, the defendants having let in no evidence whatever

to contradict the evidence on the plaintiff''s side.

The gift under Exhibit A being thus invalid under Muhammadan Law for want of delivery of possession see Vahazullah Sahib v. Boyapati

Nagayya 17 M.L.J. 562, and Chaudhri Mehdi Hasan v. Muhammad Hasan 20 C.W.N. 706 : 3 A.L.J. 405 : 4 C.L.J. 295, we reverse the

judgment of the lower Court and give the plaintiff a decree declaring his title as prayed for in the plaint. The parties will bear their respective costs

in both Courts, as it was the plaintiff''s own fault in executing the deed, Exhibit A, which led to the 1st defendant''s creditor''s attempts to proceed

against the properties covered by the deed.