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PETITIONER: MAQBOOL ALAM KHAN

       Vs.

RESPONDENT: MST.  KHODAIJA & ORS.

DATE OF JUDGMENT: 04/02/1966

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SUBBARAO, K. HIDAYATULLAH, M.

CITATION:  1966 AIR 1194            1966 SCR  (3) 479

ACT: Lis  pendens-Respondent’s name expunged from title  suit  by compromise  decree  in  another  suit Whether   respondent constructively   bound  by  final  decree  in  title   suit. Mohamedan law- Essential requirements of valid gift.

HEADNOTE: The  Maharaja of Dumraon filed a rent suit against  some  of the sharers in a tenure held under him of certain lands  and at the sale in execution the tenure was purchased by one  L. N, the widow of one of the original co-sharers instituted  a title suit. (No. 127 of 1939) for a dad that  her  share  in the tenure was not affected by the execution sale During the pendency of this suit the Maharaja instituted a second  rent suit  against L and at the sale in execution of  the  decree the respondent purchased the tenure and obtained possession. The respondent was also impleaded as a party in N’s suit and a preliminary decree was passed.  Thereafter N died- and the appellant was substituted as the plaintiff in place of N  on the ground that before her death N had made an oral gift  of her  share to him.  A final decree was then passed  and  the appellant obtained possession of the land dispossessing  the respondent.   The respondent then instituted title suit  No. 126  of  1944  against  the  appellant  and  others  for   a declaration  that the decree passed in suit No. 127 of  1939 was  not  binding upon her.  The case was disposed of  by  a compromise  de  whereby the respondent’s name  was  expunged from  the category of defendants in suit No. 127 though  the decree was to stand in other respects.  The respondent  then applied for restitution of the land under s. 144 of the Code of Civil Procedure and obtained possession. The appellant thereafter filed the present suit against  the respondent and others for a declaration of his title to  the land and contended, inter alia, (i) that by the doctrine  of lis  pendens the respondent was constructively bound by  the final decree in suit No. 127 of 1939 in the presence of  her predecessor-in-title  L;  and (ii) the  decree  conclusively declared his title to the land on the basis of the oral gift a to him by N. The trial court decreed the appellants suit but on appeal to the High Court the decree was set aside.  On appeal to  this

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Court, HELD:  The appellant had no title to the suit  property  and the High Court had rightly dismissed the suit. The  purpose  of the compromise decree in ’suit No.  126  of 1944 was that the  respondent’s name should be expunged from the  array  of parties in suit No. 127 of 1939 so  that  she should  not  be  bound by the decree  in  that  suit  either actually    or constructively. An  application  for restitution under s. 144 C.P.C.  is  an application  for  execution of a decree  and  therefore  the principle  of  res-judicata  applies  to  such  proceedings. Accordingly,  in  view of the restitution  obtained  by  the respondent, she, was not bound by the decree in suit No. 127 of 1939. [482 G-H] 480 Mahijibhai v. Manibhai [1965] 2 S.C.R. 436 applied. The High Court had rightly held that the appellant failed to prove  the alleged oral gift and furthermore, the  gift  was also invalid. The  three requirements of a valid gift under Mohamedan  Law are  declaration,  acceptance and livery of  possession.   A gift of property in the possession of a lessee or  mortgagee or  a trespasser is not established by mere  declaration  of the donor and acceptance by the donee.  To validat the  gift there  must also be 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.  On the facts N had done  nothing  after  the alleged declaration  to  place  it within  the power of the appellant to obtain  possess  sion. [483 G; 484 G; 485 B] Case law referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 629 of 1963. Appeal  from the judgment and decree dated April 3, 1961  of the Patna High Court in Appeal from Original Decree No.  327 of 1955. Sarjoo  Prasad,  R.  S. Sinha, and R.  C.  Prasad,  for  the appellant. S.   C.  Agarwal,  R.  K.  Garg,  D.  P.  Singh  and  M.  K. Ramamurthi for respondent No. 1. K. R. Sinha, for respondents Nos. 16, 24 and 25. The Judgment of the Court was delivered by Bachawat,  J:  Shaik Ahmad Ali was the holder  of  a  tenure recorded  in Khewat No. 4, tauzi No. 3309,  Mouza  Babhnaul, comprising  an  area of 83 82 acres under  the  Maharaja  of Dumraon.  He died in 1910 leaving as his heirs,  his  mother Waziran,  his  second  wife  Elahijan,  three  sons  Amanat, Ashghar  and Ashraf and two daughters born of Elahijan,  and two  sons  Hamid and Mahmud and four daughters born  of  his first wife Nabiban.  Though all the heirs of Shaik Ahmad Ali Were cosharers of the tenure, the names of Hamid and  Mahmud only  were recorded as the tenure’holders in the  record  of rights published in 1911. The Maharaja of Dumraon instituted Rent  Suit No. 13 of 1915 against Hamid and Mahmud only  and obtained  a  decree for rent.  The other  cosharers  of  the tenure  including  Amanat  were not  parties  to  the  suit. Amanat  died  in  1924.  Before and after  1924  there  were several  litigations concerning the rights of the  cosharers in  the tenure.  Eventually, under a compromise,  Najma  the wife  of  Amanat got 2 annas 8 pies 10 krant  share  in  the tenure.   Subsequently,  the  Maharaja of  Dumraon  put  the decree  in  Rent Suit No. 13 of 191.5  into  execution,  and

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Latafat, son of Ashgar by his first wife Safidan,  purchased the tenure at the execution sale.  In "October 1928, Latafat obtained  possession  of the tenure through Court.   In  May 1939, Najma instituted Title Suit No. 127 of 481. 1939  against  Latafat, the Maharaja of Dumraon  and  others asking  for a declaration that her share in the  tenure  was not affected by the sale and for partition and possession of her  share and mesne profits.  During the pendency  of  this suit, the Maharaja of Dumraon instituted Rent Suit No.  1077 of 1939 against Latafat, obtained a decree for rent and  put the  decree  into  execution.   At  the  execution  sale  in November   1940,  Khodaija,  the  second  wife  of   Ashgar, purchased the tenure.  Thereupon, Khodaija was impleaded as, a  party in Title Suit No. 127 of 1939.  On July 9, 1942,  a decree  declaring  the title of Najma to her  share  in  the tenure and a preliminary decree for partition were passed in that suit.  On August 9, 1942, Khodaija obtained delivery of possession  of the tenure through Court on the basis of  her purchase  in  November 1940.  On February  26,  1943,  Najma died.  On April 10, 1943, the appellant filed a petition  in Title Suit No. 127 of 1939 praying for substitution in place of Najma on the ground that before her death Najma had  made an  oral gift of her share to him.  On April 21,  1943,  the Court   passed  an  order  substituting  the  appellant   as plaintiff in the suit in place of Najma.  On June 14,  1943, a  final decree was passed in the suit.  The  appellant  was allotted 19.54 acres of Ian out of the tenure.  On June  25, 1943,   the  appellant  obtained  possession  of  the   land dispossessing  Khodaija.   Thereafter,  Khodaija  instituted Title Suit No. 126 of 1944 against the appellant and  others for  a declaration that the decree passed in Title Suit  No. 127 of’ 1939 were fraudulently obtained and were not binding upon  her.. The trial Court dismissed the suit,  on  appeal, the  first  appellate Court decreed the suit  and  a  second appeal was disposed of by a compromise in these terms :               "1. That the name of the plaintiff No. 1 (that               is  Khodaija) from the category of  defendants               in  Title  Suit  No.  127  of  1939  shall  be               expunged.               2.    That  the decree (in Title Suit No.  127               of 1939) wilt stand in other respects.               3.    That  the suit (that is, Title Suit  No.               126 of 1944) wilt stand dismissed." In 1948, Khodaija applied for restitution of the land  under s  144 of the Code of Civil Procedure.  The  Munsif  allowed the  application;  on  appeal,  the  first  Appellate  Court dismissed it; and on second appeal, the High Court passed an order  on  January  24, 1949  declaring  that  Khodaija  was entitled to restitution and remanded the case to the Munsif. On  June 28, 1949, the Munsif directed restitution of  19.54 acres  of  land  to Khodaija.  On  July  1,  1949,  Khodaija obtained possession of the land through Court.. Thereafter,  the  appellant  instituted  the  present   suit against Khodaija and others praying for a declaration of his title to the- lll482 aforesaid  land.  His case is that the suits  instituted  by the Maharaja of Dumraon were not rent suits and the sales in execution of those decrees were not rent sales, inasmuch  as all the sharers of the tenure were not impleaded as  parties to  those  suits,  the  share of Najma  in  the  tenure  now represented by the suit land-was not affected by the  sales, and by an oral gift she gave the land to the appellant.  The trial  Court  decreed the suit.  On first appeal,  the  High

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Court dismissed  the suit.  The appellant now  appeals  to this Court by .special leave. The  appellant rests his claim of title to the land upon  an alleged oral gift by Najma.  Khodaija disputes the  factum and  validity of the gift.  In  rejoinder,  the  appellant contends  that  by the doctrine of lis pendens  Khodaija  is constructively  bound  by the final decree passed  in  Title Suit No. 127 of 1939 in the presence of her  predecessor-in- title, Latafat and that the decree conclusively declared his title  to the land on the basis of the oral gift  by  Najma. Khodaija  gives  a twofold answer to this  contention.   She says  that (1) by the decree in Title Suit No. 126 of  1944 she was held not to be a party to Title Suit No. 127 of 1939 and she is therefore not bound by the decree passed in  that suit, and (2) by the order of the High ,Court dated  January 24,  1949 and the final order of the Munsif dated  June  28, 1949 passed in the proceedings for restitution under s.  144 of the Code of Civil Procedure it was finally declared  that she  was  not bound by the decree in Title Suit No.  127  of 1939.   These contentions of Khodaija are sound and  should be  accepted.  The ,compromise decree in Title Suit No.  126 of  1944 provided that Khodaija’s name be expunged from  the category of defendants in Title Suit No. 127 of 1939, and in other  respects  the decree in that Suit would  stand.   The purpose  of the compromise decree was that  Khodaija’s  name should  be expunged from the array of parties in Title  Suit No.  127  of 1939, so that she  would not be  bound  by  the decree in that suit either actually or constructively.  On a const ruction of this decree, the High Court held on January 24., 1949 in the proceedings for restitution that Khodaija’s claim  for restitution fell within the purview of S. 144  of the  Code  of Civil ’Procedure and that "as a  result  of  a compromise,  the decree was set aside as against  her."  By his  final  order dated June 28, 1949  the  Munsif  directed restitution  on the basis of this finding.  In Mahjibhai  v. Manibhai  (1),  this  Court  by a  majority  held  that  an’ :application  for  restitution under s. 144 of the  code  of Civil Procedure is an application for execution of a decree. The   principle  of  res  judicata  applies   to   execution proceedings.  it follows that Khodaija is not bound  by  the decree in Title Suit No. 127 of 1939 :and is entitled to re- agitate all the questions in issue in that suit. The  appellant must, therefore, establish his title  to  the land.  He  claims that after the  preliminary  decree  Najma orally gave (1)  [1965] 2 S. C. R. 436.                             483 him  her entire movable and immovable  properties  including the tenure, and she died after making over possession of the same.  She died leaving her father and mother as her  heirs. Both  herparents  filed petitions in Title Suit No.  127  of 1939  supporting  the  oral gift of  the  suit  land.   This circumstance  favours the case of oral gift.  The  appellant examined  himself as a witness in this, case.  He said  that the  gift was made on  February 10, 1943 in the presence  of his parents.  His mother was alive, but she was not  exmined as a witness.  The date of the gift was not mentioned in the plaint  or in any earlier document; 1 it was  disclosed  for the first time in the witness-box, and even then, it was not made clear how he remembered the date in the absence of  any record.   In the petition filed by him on April 10, 1943  in Title Suit No. 127 of 1939 he had made a different case  and had  stated that the gift was made a few months  before  her death on February 26, 1943.  His case now is that Najma made a gift of her entire movable and immovable properties.  This

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case  was not made in the petitions filed in Title Suit  No. 127  of 1939.  The particulars of the other  properties  are not disclosed, nor is it shown that he ever took  possession of  those properties.  In the plaint, he made the case  that Najma  died  after making over possession of the  tenure  to him.   This  statement is, untrue, because  Najma  had  been dispossessed  of  the tenure in August 1942 and was  not  in possession   of   it  at  the  time  of   thealleged   gift. Considering all the circumstances, the High Court held, and, in  our opinion, rightly that the appellant failed to  prove the alleged oral gift. We  also  think  that  the alleged  gift  was  invalid.   In February  1943,  Yhodaija was in possession  of  the  tenure claiming  it  adversely to Najma.  After the  alleged  gift, Najma  neither  gave  possession of the  property,  nor  did anything  to  put it within the power of them  appellant  to obtain possession.  The three pillars of a valid gift  under the  Mahomedan law are declaration, acceptance and  delivery of possession.  In Mohammad Abdul Ghani v. Fakhr Jahan Begam Sir John Edge said :                "For  a  valid  gift inter  vivos  under  the               Mahomedan  law applicable in this case,  three               conditions   are   necessary,   which,   their               Lordships consider have been correctly  stated               thus  (a) manifestation of the wish to  giveon               the part of the donor; (b)     the  acceptance               of  the donee either impliedly  or  expressly;               and  (c)  the  taking  of  possession  of  the               subject-matter  of  the  gift  by  the  donee,               either actually or constructively’  (Mahomedan               Law,  by  Syed Ameer Ali, 4th ed. vol.  i,  p.               41)."                The  Prophet has said : "A gift is not  valid               without seisin."                The rule of law is :                (1)  (1922) L. R. 49 1. A,, 195,209.               484               "Gifts   are   rendered   valid   by   tender,               acceptance and’ seisin.-Tender and  acceptance               are  necessary because a gift is  a  contract,               and tender and acceptance are requisite in the               formation  of  all contracts;  and  seisin  is               necessary  in  order to establish a  right  of               property  in  the  gift, because  a  right  of               property,  according  to our doctors,  is  not               established in the thing given merely by means               of   the  contract,  without   seisin."   [See               Hamilton’s Hedaya (Grady’s Edn), p. 482] 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 Mullic  Abdool  Guffoor  V. Muleka (1).  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 Bibi(2), Lord Macnaghten

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-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               authorises the donees to take possession,  and               it   appears  that  in  fact  they  did   take                             possession.   Their Lordships hold und er  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, there  must also  be  either deli-very 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               (1) (1884) I.L.R. IO Cal. 1112., 1123.               (2) ( 898) L. R. 15 T. A 81, 95.               485               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  life  time  with her  consent.   The  gift  is, therefore, invalid. It  follows  that  the appellant has no title  to  the  suit property  and  the High Court rightly  dismissed  the  suit. During the pendency of this appeal, one Babulal, an heir  of a co-lessee from Khodaija in respect of plot No. 1400, died, and  the  appeal  has abated against  him.   The  respondent contended  that in the circumstances the entire  appeal  has become  defective for non-joinder of necessary  parties  and must  be dismissed.  We think that the appeal, so far as  it concerns  plot  No. 1400, is defective for,  non-joinder  of necessary  parties,  but  the  rest of  the  appeal  is  not defective  on  this  ground-.  But  for  the  other  reasons already stated, the entire appeal is liable to be dismissed. The appeal is dismissed with costs.  Appeal dismissed. 486

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