Maqbool Alam Khan Vs. Mst. Khodaija
& Ors  INSC 29 (4 February 1966)
04/02/1966 BACHAWAT, R.S.
CITATION: 1966 AIR 1194 1966 SCR (3) 479
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
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
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 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  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
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
[483 G; 484 G; 485 B] Case law referred to.
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
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
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 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 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)  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 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
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 -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,
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.