( 446 )
Pwwnt : Ennis A.C.J. and Dalton J.
SEYAMBO NATCHJA r. OSMAN.
9&7—I). <'• Qalfr. til.SW.
Muhammadan latc^-Donation>—Delivery of possession mot/ be actual orconstructive—Dclircry of deed-*—A cceptaucc of deed, constitutesdelivery.
Under the Muhammadan law a necessary eleimnt 10 constitutethe validity of a deed of gift is .delivery of possession, actual orconstructive.
• Delivery of the deed amounts to constructivc delivery of posses-sion for this purpose, and where . sued gift is. to a minor childacceptance bv the father appearing an the face of the , deedconstitutes a deliver}* of the deed.
Qutnr. whether a Muslim down- dml given in consideration oftnarrjnge is a deed of gift.
HIS action was brought by plaintiff, against the. administratorof the estate of her deceased daughter. Zohara. Plaintiff
gifted to her certain lands mentioned in paragraphs 3 and ‘5 of theplaint by deed of gift dated November 7, 1016. She at first marriedurn* Haniffa. He died in 1917. Thereafter she married his brother;the present defendant. Zohara herself (lied on August 22, 1922,and defendant applied for letters of administration to her estate,and included these .lands iu the inventory. Plaintiff then broughtthe present action claiming the lands on the ground that the gifthad not been completed by delivery. The learned District Judge,while holding that there was no delivery, whs of opinion that the deed,being one given in consideration of marriage, did not requiredelivery for its validity.
Driebenj, Ii.C. (with h-ifti Croon Da Brent and Ahlip), for plaintiffappellant.—In the case of a Muslim gift* it is essential thatthere should be seisin. In the present, case no 'possession wasever giyeu. The only exception would be premises No. 109, whereplaintiff permitted her daughter and her husband to take up theirresidence. Even this does not- amount to the delivery of possessioncontemplated in Muhammadan law, vide Tyttbji, />. SOI.
There is also evidence that plaintiff possessed the properties as herown even after the deed of gift.. Plaintiff has mortgaged the wholeof these lands in 1910, vide P 14. Tb<T~defendant was an attestingwitness thereto.
There has been no delivery of the deed even. The deed hasalways been with plaintiff.
( 447 )
[Ennis A.C.J.—Is there no acceptance of the deed on the faceof it?]
Yes. In Muhammadan law such symbolic delivery is insufficient.There must be seisin. '
The finding on possession js against the defendant. Even if therehas been acceptance of the deed, there must be delivery in addition.
The learned Judge has held the deed to be one for valuableconsideration. Deeds of this nature are not for valuable considera-tion', but^deeds of gift.
Counsel cited Mohamada a. Marika r 1 ami Affefuthcu r.Periatamby.3
E. W. Jayewanlcne (with him Soertsz), for defendant, respondent,not called upon.
June 4,1925. Exxis A.C.J.—
This was an action for declaration of title, and for a declarationthat a certain deed of gift did not operate to convey any title infavour of the donee Zohara; and further that the propertymentioned in that deed had been wrongfully included in the estateof Zohara. The learned Judge found* in favour .of the defendant,and the plaintiff appeals.
It appears that, by the document Dl, on November 17, 1916, the .plaintiff gifted to her daughter ii^numbeV of properties described inparagraphs 3 and 5 of the plaint-. The gift was a dowry gift. Thedaughter duly married, and her husband died in February, 1917.Zohara then took a second husband, who is the defendant in thiscase. She died on August 28, 1922, whereupon the defendantapplied for administration of her estate, and included in the estatethe lands gifted in 1916. Later, it appears that the defendantmarried Zohara‘s younger sister. The deed of gift D 1 was notregistered, but it was accepted on behalf of Zohara by her fatherwho duly signed as accepted. It appears that on November 7, 1910.the plaintiff dealt with all the lands gifted, by way of mortgage onthe document P 14, and to that deed the first defendant was awitness. It was contended on appeal that the learned Judge hadfound in favour of the appellant that there had been no delivery ofpossession of the property and no delivery of the deed, and it wasfurther contended that the learned Judge was wrong in holdingthat the deed in this case related to a transaction which took -thedeed out of the category of gifts. I need not deal with tlie learnedJudge's finding in this case, because I am of opinion that the learnedJudge was wrong as regards the first two findings. As to whethera transaction of this sort does not fall within the category of gifts,there seems to be some doubt* inasmuch as the previous cases in this?Court have been dealt with without any such question having beenraised; for instance, Mohcnnadn v. Marikar (xupra) and Affrfttdrritv. Periatambypro).
1 (1919) *7 .V. L. R. S4.2 (1911) 14 X. L. It. 29o.
( 448 )
^ With regard to the question as to whether there had been deliveryBhhis A.C.Jpossession, it would seem that the ordinary rule with regard to
gifts is, to make a valid gift there must, among other things, bea delivery of possession, either actual or constructive. Now it isconceded in the present appeal that the possession of the landmentioned in paragraph 5 of the plaint was in fact given to thedonee who took the rents of the land, and it was further concededas a.fact that with regard to the property mentioned in paragraph8 (a) of the plaint that- the donee lived with her people in this house,and that the defendant on his marriage to Zohara also took uphis quarters there; so that portions of the land gifted have actuallybeen delivered into the possession of the defendant and his wifeZobara.
With regard to the question of delivery of possession, Tyabji’sMuhammadan Law, p. 301, was cited to ys, and there a sentenceappears that the donor must vacate the premises gifted to enablethe donee to take possession. I do not see how this has any bearingoil the present case, because two of the lands gifted consist ofundivided shares, and with regard to one of them, at any rate, itwould seem that only an undivided one-fourth was gifted, whereas thedonor, or possibly the donor and her husband possessed an undividedhalf share. It is difficult to see how in such circumstances the donorcould be expected to vacate the property. Hence I do-not concurwith the conclusion that there could be no valid gift without such a. vacation. On the point as to whether the deed of gift was delivered,it appears that the father of the donee accepted the deed1 on herbehalf. It seems to me that this alone constituted a delivery of thedeed, and this is borne out by the evidence of the plaintiff that herhusband brought the deed after its execution from the notary’soffice. It would seem then that the father of Zohara actually tookdelivery of the deed at the time of its signature, and kept possessionfor some, time afterwards. That being so, there has been in myopinion an actual delivery of the deed. This by itself. I view, is aconstructive delivery of possession of the property, more especiallywhen we find that portions of that property have been withoutquestion delivered to the donee. The question of the mortgage ofthe land by the plaintiff is not really affected by the present case.It is merely mentioned by the appellant as one of the reasons uponwhich to base an argument that there was no delivery of possession.In my view, in the circumstances of the case, the learned Judgehas drawn a wrong conclusion from the facts; on the factsthere has been a constructive delivery of possession of certain*portions of the property gifted and an actual delivery of others.In the circumstances I would dismiss the appeal, with costs.
SeitamboNatch in r.Osintm
Dalton J.—I concur.
. Appeal dismissed.
SEYAMBO NATCHA v. OSMAN