APHC010007552025

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3397]

WEDNESDAY,THE TWENTY FIFTH DAY OF FEBRUARY

TWO THOUSAND AND TWENTY SIX

PRESENT

THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA

KRISHNA RAO

SECOND APPEAL NO: 199/2025

Between:

J. Ifthakar Hussain and Others ...APPELLANT(S)

AND

Gulla Basha and Others ...RESPONDENT(S)

Counsel for the Appellant(S):

1. M RAMALINGESWARA REDDY

Counsel for the Respondent(S):

1. A SYAM SUNDAR REDDY

The Court made the following:

Reserved on 18.02.2026

Pronounced on 25.02.2026

Uploaded on 25.02.2026

HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO

SECOND APPEAL No. 199 of 2025

JUDGMENT:

This second appeal under Section 100 of the Code of Civil Procedure is

filed aggrieved against the judgment and decree, dated 29.11.2024, in

A.S.No.37 of 2013, on the file of the II Additional District Judge, at Adoni,

Kurnool District, confirming the judgment and decree, dated 03.06.2013, in

O.S.No.111 of 2009, on the file of the Senior Civil Judge, Adoni, Kurnool

District.

2. The plaintiffs initiated action in O.S.No.111 of 2009, on the file of the

Senior Civil Judge, Adoni, Kurnool District, with a prayer for declaration of

their right and title over the plaint schedule property and for recovery of

possession, and for arrears of rent and for costs.

3. The O.S.No.111 of 2009, on the file of the Senior Civil Judge, Adoni,

Kurnool District, partly decreed the suit with proportionate costs. Felt

aggrieved of the same, the unsuccessful defendants in the above said suit

filed the aforesaid appeal before the first appellate Court. The learned II

Additional District Judge, at Adoni, Kurnool District, dismissed the appeal with

costs by confirming the judgment and decree passed by the learned trial

Judge. Aggrieved thereby, the defendants approached this Court by way of

second appeal.

VGKR, J.

SA_199_2025

4. The appellants herein are the defendants, the respondents herein are

the plaintiffs in O.S.No.111 of 2009.

5. For the sake of convenience, both parties in the second appeal will be

referred to as they are arrayed in the suit O.S.No.111 of 2009.

6. The case of the plaintiffs, in brief, as set out in the plaint averments in

O.S.No.111 of 2009, is as follows:

One late Haseena was the wife of Plaintiff No.1, the mother of Plaintiffs

No.2 and No.3, and the daughter of Md.Shareef and the said Md.Shareef died

on 23-10-2005. During his lifetime, he executed a registered gift deed

dated 23-10-2004 in favour of his daughter/late Haseena, in respect of the suit

schedule property and delivered possession of the same to her. The plaintiff

pleaded that pursuant to the execution of the registered gift deed, late

Haseena was put in possession of the suit schedule property from the date of

execution of the gift deed. The plaintiff further pleaded that late Haseena died

on

17-01-2008, leaving behind the plaintiffs as her legal heirs and upon her

death, the title to the suit schedule property devolved upon the plaintiffs by

virtue of succession.

The plaintiffs further pleaded that the defendant Nos.3 to 5 attested the

said registered gift deed which was executed by their father in favour of Late

Haseena. The plaintiffs further pleaded that the defendant Nos.1 to 4 are the

sons of Md.Shareef, defendant No.5 is his daughter, and defendant No.6 is

VGKR, J.

SA_199_2025

his wife and at the time of execution of the registered gift deed, the suit

schedule property had been mortgaged to Sree Mahayogi Lakshmamma Co-

operative Town Bank, Adoni, when late Md.Shareef expressed his intention to

execute the registered gift deed in favour of late Haseena, the plaintiff No.1

discharged the mortgage debt owed to the said Bank, wherein the payment

was made by plaintiff No.1 by way of cheque to the said Bank. The plaintiffs

further pleaded that after the demise of Haseena, plaintiff No.1 got his name

mutated in the municipal revenue records in respect of the suit schedule

property and has been regularly paying the municipal taxes and the plaintiff

No.1 also cleared the arrears of municipal tax for the period from 01-10-2005

to 31-03-2009 and has continued to pay subsequent tax installments.

The plaintiffs further pleaded that except for the property described in

the plaint, late Shareef/the donor, did not possess any other property,

particularly any house property at Adoni or elsewhere and the said late

Md.Shareef requested his daughter, late Haseena, to permit him and the

defendants to remain in possession of the suit schedule property as tenants

and promised to pay rent at the rate of Rs.2,000/- per month. He further

pleaded that during his lifetime, late Md.Shareef paid the rent and after his

death, the defendants, being his legal heirs, failed to pay rent to late Haseena

during her lifetime. Since the defendants were the brothers and sister of late

Haseena, she took a lenient view in collecting rent from them.

The plaintiffs further pleaded that after the death of late Haseena, plaintiff

No.1 requested the defendants to pay rent to him, as the plaintiffs had

VGKR, J.

SA_199_2025

succeeded to the estate of late Haseena, but the plaintiffs refused to pay rent

and the defendants have deliberately denied the title of the plaintiffs to the suit

schedule property with malafide intention and have evaded payment of rent.

As such, the plaintiff is constrained to file the present suit.

7. The case of the defendant No.2 as per the written statement filed by the

defendant No.2, which is adopted by the defendant Nos.1, 3 to 6 is as follows:

The eldest daughter of Md.Shareef by name Haseena was married to

the plaintiff Nos.1 and after their marriage, they resided in the house of

Md.Shareef and the plaintiff Nos.2 and 3 are the children of plaintiff No.1 and

late Haseena. The defendants pleaded that they had taken lot of pain in

getting treatment for Haseena at Putaparthi and the defendant Nos.1 and 2

were lorry drivers and they met with an accident at Raichur and as such the

defendants are in need of money, for which Md.Shareef approached the

plaintiff No.1 for arrangement of amount by obtaining loan from others.

The defendants further pleaded that the plaintiff No.1 obtained

signatures of the defendant Nos.3 to 5 on a blank stamp paper of Rs.100/-

and at that time they were minors and the witness Nos.1 and 2, who attested

the registered mortgage deed were also kept in darkness and they were

informed that it was a mortgage deed. The defendants further pleaded that the

plaint schedule property is in possession and enjoyment of the defendants

and when the possession of the property is not delivered to the plaintiff No.1,

the alleged gift deed has no importance in the eye of law. The defendants

VGKR, J.

SA_199_2025

further pleaded that Md.Shareef died on 23.10.2005 and Haseena also died

on 17.10.2008, and as the plaintiff No.1 wanted to marry the defendant No.5,

and the said defendant No.5 was not given in marriage to the plaintiff No.1,

the plaintiffs filed the present suit with false and vexatious grounds and as

such, he prayed for dismissal of the suit with costs.

8. On the basis of above pleadings, the learned trial Judge framed the

following issues for trial:

1) Whether the plaintiffs are entitled to declaration of their title over plaint

schedule property and for delivery of possession of the same? and

2) To what relief?

9. During the course of trial in the trial Court, on behalf of the plaintiffs,

P.Ws.1 to 4 were examined and Exs.A-1 to A-18 were marked. On behalf of

the defendants, D.Ws.1 to 4 were examined and Exs.B-1 to B-12 were

marked. Ex.X-1 is also marked.

10. The learned trial Judge after conclusion of trial, on hearing the

arguments of both sides and on consideration of oral and documentary

evidence on record, partly decreed the suit with proportionate costs. Felt

aggrieved thereby, the unsuccessful defendants filed the appeal suit in

A.S.No.37 of 2013, wherein the following points came up for consideration:

1) Whether the Judgment and Decree in O.S.No.111 of 2009, dated

03.06.2013, passed by learned Senior Civil Judge, Adoni is sustainable

on facts and Law or it warrants inference in the appeal? and

VGKR, J.

SA_199_2025

2) To what relief?

11. The learned first appellate Judge after hearing the arguments,

answered the points, as above, against the defendants and dismissed the

appeal by confirming the judgment and decree passed by the learned trial

Judge. Felt aggrieved of the same, the unsuccessful defendants in

O.S.No.111 of 2009 filed the present second appeal before this Court.

12. On hearing learned counsel for the appellants at the time of admission of

the second appeal on 02.09.2025, a learned Judge of this Court admitted the

second appeal and framed the following substantial questions of law:

1) Whether the gift deed dated 23.10.2004 is valid in law, if supported by

consideration? and

2) Whether the trial Court and 1

st

appellate Court erred in law declaring the

title of the plaintiffs basing on such gift deed?

13. Heard Sri L.J.Veera Reddy, learned counsel representing

Sri M.Ramalingeswara Reddy, learned counsel for the appellants/defendants

and Sri A.Syam Sundar Reddy, learned counsel for the respondents/plaintiffs.

14. The law is well settled that under Section 100 of CPC, High Court

cannot interfere with findings of fact arrived at by first appellate Court, which is

final Court of facts, except in such cases where such findings were erroneous

being contrary to the mandatory provisions of law, or its settled position on the

basis of the pronouncement made by the Apex Court or based upon

inadmissible evidence or without evidence.

VGKR, J.

SA_199_2025

In the case of Bhagwan Sharma v. Bani Ghosh

1

, the Apex Court held

as follows:

“The High Court was certainly entitled to go into the question as to whether the

findings of fact recorded by the First Appellate Court which was the final Court of fact

were vitiated in the eye of law on account of non-consideration of admissible evidence

of vital nature.”

In the case of Kondira Dagadu Kadam v. Savitribai Sopan Gujar

2

,

the Apex Court held as follows:

“The High Court cannot substitute its opinion for the opinion of the First Appellate

Court unless it is found that the conclusions drawn by the lower appellate Court were

erroneous being contrary to the mandatory provisions of law applicable or its settled

position on the basis of pronouncements made by the Apex Court, or was based upon

inadmissible evidence or arrived at without evidence.”

15. The undisputed facts are that one late Haseena, who is the wife of the

plaintiff No.1 and mother of the plaintiff Nos.2 and 3 and daughter of one

Md.Shareef died on 17.10.2008, and Md.Shareef died on 23.10.2005. The

case of the plaintiffs is that during the lifetime of Md.Shareef, he had executed

a registered gift deed in favour of his daughter late Haseena in respect of the

suit schedule property and delivered the possession of the property to late

Haseena and she was put in possession of the suit schedule property. The

plaintiff further pleaded that ever since the date of execution of registered gift

deed dated 23.10.2004, late Haseena was in possession and enjoyment of

the property and she died on 17.01.2008. The contention of the defendants is

that they have not executed the gift deed and they pleaded that the plaintiff

No.1 obtained signatures of the defendant Nos.3 to 5 on a blank stamp paper

1

AIR 1993 SC 398

2

AIR 1999 SC 471

VGKR, J.

SA_199_2025

of Rs.100/- and at that time, they were minors. The defendants further

contended that the witness Nos.1 and 2, who attested the registered mortgage

deed were also kept in darkness and they were informed that it was a

mortgage deed. The execution of the registered document and the

appearance of Md.Shareef before the Sub-Registrar for registration of the

document is not yet disputed by the defendants. The contention of the

defendants is that Md.Shareef executed the mortgage deed, but not a

registered gift settlement deed. Therefore, the burden is on the defendants to

prove that the said document is a registered mortgage deed, but not a

registered gift settlement deed. Moreover, the defendant Nos.3 to 5 also

attested the registered gift settlement deed while their father was gifting the

suit schedule property to late Haseena and the defendant Nos.1 to 4 are the

sons, defendant No.5 is the daughter and the defendant No.6 is the wife of

Md.Shareef.

16. Learned counsel for the appellants would contend that the gift deed

dated 23.10.2004, is not valid in law, since it is supported by consideration. It

is not at pleaded by the appellants in the written statement that Ex.A-1 gift

deed is an invalid document, since it is supported by consideration. It is not

the case of the appellants that the Md.Shareef received consideration under

Ex.A-1 from the donee. During the lifetime of Md.Shareef, he never disputed

about the execution of registered gift settlement deed in favour of his daughter

Haseena. The registered gift settlement deed is filed and marked as Ex.A-1

before the trial Court. The recitals in Ex.A-1 document clearly go to show that

VGKR, J.

SA_199_2025

the suit schedule property was delivered to the donee from the donor without

any consideration and the possession was also delivered to the donee.

17. As stated supra, there is no pleading in the written statement that the

gift deed is invalid document since it is supported by consideration. For the

first time in the second appeal proceedings it was contended by the learned

counsel for appellant that the gift deed is invalid document since it is

supported by consideration. During the first appeal proceedings also the

appellants have not taken the aforesaid plea that Ex.A-1 is invalid document

since it is supported by consideration. There is no pleading in the written

statement that after receiving consideration, Md.Shareef executed a gift

settlement deed. The law is well settled that the “the second Appellate Court

could not go into questions which had not raised by the defendants in their

pleadings or in the evidence or in the memorandum of the grounds of appeal”.

As seen from the grounds of appeal, the same is not raised by the appellants

in the grounds of appeal.

18. In the absence of pleadings on a point of law or a factual format of the

point of law arising between the parties, such question should not be

permitted to be raised as a substantial question of law in the second appeal.

The law is well settled that “parties to the suit cannot travel beyond the

pleading, so also the Court cannot record any findings on the issues which are

not part of the pleadings”. This Court being a Second Appellate Court cannot

go into the questions which had not raised by the parties either in their

VGKR, J.

SA_199_2025

pleadings or in the evidence or in the memorandum of grounds of second

appeal.

19. In the plaint it was pleaded that on the date of execution of registered

gift deed, the schedule property was mortgaged to the Co-operative Town

Bank, Adoni, when late Md.Shareef expressed his intention to execute a

registered gift deed in favour of late Haseena, the plaintiff No.1, who is the

husband of Haseena discharged the debt on the schedule property. It does

not mean that a consideration was passed under the gift deed. The plaintiff

No.1 is none other than the son-in-law and the donee is none other than the

daughter of donor, it was admitted by the witness of the defendants, who was

the Manager of the Co-operative Bank/D.W.4 that Md.Ghouse borrowed an

amount prior to 23.10.2004, by mortgaging the plaint schedule property and

he availed loan and the plaintiff No.1 had given a cheque of Rs.35,000/- for

adjustment of the loan account of Md.Shareef. It does not mean that the gift is

supported by consideration. Moreover, as per the Sub-Registry value of the

suit schedule house property, its value is Rs.94,000/- on the date of Ex.A-1,

but not Rs.35,000/-. To avoid further litigation, the plaintiff No.1 being the son-

in-law of late Md.Shareef, might have discharged the balance loan amount to

release the mortgage, in view of the relationship with Md.Shareef. It does not

mean that Ex.A-1 gift deed is supported by consideration. Furthermore, the

recitals in Ex.A-1 clearly prove that the schedule property was gifted to

Haseena without any consideration and out of love and affection, under a

registered gift settlement deed in favour of his daughter. The defendant Nos.3

VGKR, J.

SA_199_2025

to 5, who are none other than the children of Md.Shareef attested the said

registered gift deed. In the light of the material on record and upon earnest

consideration, it is manifest that the 1

st

substantial question of law raised in

the course of hearing in the second appeal on behalf of the appellants did not

arouse or remain for consideration.

20. Learned counsel for the appellant would contend that both the trial

Court as well as the First Appellate Court erred in law to declare the title of the

plaintiffs based on the Ex.A-1 gift deed. The respondents/plaintiffs herein

approached the civil Court for seeking relief of declaration of title and recovery

of possession of the plaint schedule property and for arrears of rent of

Rs.72,000/-. The relief of arrears of rents was disallowed by the trial Court and

the same was confirmed by the First Appellate Court. No cross-appeal or no

cross-objections are filed by the plaintiffs. Therefore, the said finding reached

its finality. The law is well settled that “in a suit for declaration of title and

possession, the entire burden is on the plaintiff to prove their right and title in

the plaint schedule house property, but not in favour of the defendants”. The

title of the plaintiffs is based on Ex.A-1 registered gift settlement deed said to

have been executed by Md.Shareef in favour of his daughter wherein the

defendant Nos.3 to 5, who are the children of donor attested the gift deed and

the ownership of Md.Shareef in respect of suit schedule house is undisputed

by both the parties to the suit.

21. As noticed supra, the claim of the plaintiff is based on Ex.A-1 gift

settlement deed and both the parties to the suit are interrelated, the same is

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SA_199_2025

undisputed. The plaintiff relied Ex.A-1 registered gift settlement deed, P.W.1 is

the plaintiff, P.W.2 is the scribe of the document and P.W.3 is one of the

attestor to Ex.A-1. The recitals in Ex.A-1 go to show that the plaint schedule

property was gifted to Haseena by her father and the said Haseena died on

17.01.2008, by leaving the plaintiff No.1/Husband and plaintiff Nos.2 and

3/Children. As noticed supra, the title of Md.Shareef in respect of the plaint

schedule house property is undisputed by the appellants. The recitals in

Ex.A-1 go to show that plaint schedule house property was gifted by donor to

donee without any consideration and out of love and affection and possession

was also delivered on 23.10.2004 i.e. on the date of registered gift deed.

22. The plaintiff to prove Ex.A-1 document examined one of the attestor as

P.W.3, the execution of Ex.A-1 document itself is proved through P.W.3.

Moreover, execution of Ex.A-1 gift deed is not disputed by the defendants.

Md.Shareef never disputed the gift deed during his lifetime. As noticed supra,

the appellants admitted the registered document executed by Md.Shareef in

favour of Haseena, but they contended that Md.Shareed executed a

registered mortgage deed, but not a gift deed. The same is not proved by the

appellants for the reasons best known to them. The recitals in Ex.A-1 gift deed

disclose that the possession was delivered to the donee on the date of gift

settlement deed.

23. The plaintiffs pleaded in the plaint itself that the property shown in the

plaint is the only property of late Md.Shareef and except the said property, he

was not having any other property, particularly the house property at Adoni, at

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SA_199_2025

that juncture, late Md.Shareef requested Haseena/donee to permit him and

defendants to remain in the possession of the property as tenants and

promised to pay rent of Rs.2,000/- per month. The plaintiffs further pleaded

that as long as Md.Shareef was alive, somehow or the other he used to pay

the rent and after the death of Md.Shareef, the defendants, who are the legal

heirs of Md.Shareef failed to pay the rent to Haseena during the lifetime. The

plaintiffs further pleaded that the defendants are the brothers, sisters and

mother of late Haseena and she also taken a lenient view in collecting rents

from her brothers and sisters and the said Haseena died on 17.01.2008. The

plaintiffs further pleaded that after the demise of late Haseena the plaintiff

No.1 requested the defendants to pay the rents to him as they have the

succeeded the estate of Haseena after her death, by taking advantage of the

death of Haseena, the defendants postponed the delivery of possession and

payment of rent to the plaintiffs.

24. The house tax receipts, property tax receipts and demand notices

supports that the plaintiffs are in the plaint schedule property and Ex.A-3 to

Ex.A-5, Ex.A-9 to Ex.A-14 supports the same. On the other hand, the

defendants have not filed any house tax receipts or water tax receipts to prove

their defence. The oral and documentary evidence proves that on the date of

settlement deed itself, the possession of delivered to the donee. The trial

Court by giving reasons rightly held that “the delivery may be constructive

delivery and in cases a symbolic delivery has been held to be a good and

sufficient compliance with the requirements of law”. The oral and documentary

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SA_199_2025

evidence and Ex.A-1 clinchingly establishes that the possession was delivered

to donee and Md.Shareef being the father of the donee is continuing in the

possession of the plaint schedule property at his request as a tenant. As per

the evidence of D.W.1/wife of Md.Shareef, two (02) years prior to the death of

her husband, he informed that he executed a mortgage deed in favour of

Haseena. Md.Shareef died on 23.10.2005, the gift settlement deed is said to

have been executed on 23.10.2004, just one (01) year prior to his death.

Therefore, her statement in the evidence of D.W.1 cannot be taken into

consideration. From the evidences of P.Ws.1 to 3, it is evident that late

Md.Shareef executed a gift settlement deed in favour of his daughter Haseena

and later he died on 23.10.2005, Haseena also died on 17.10.2008 and after

the death of Haseena, the defendants failed to pay the rents to the plaintiffs,

though the plaintiffs demanded and they failed to vacate the premises. The

plaintiffs who are none other than the husband and children of Haseena filed a

suit for seeking the relief of declaration of title and recovery of possession. As

stated supra, the execution of registered document on 23.10.2004, by

Md.Shareef is undisputed by the defendants. But they contended that the

plaintiff No.1 obtained the signatures of defendant Nos.3 to 5 on a blank

stamp papers of Rs.100/- and at that time they were minors and the witness

Nos.1 and 2, who attested the registered mortgage deed were kept in

darkness and they were informed that it was a mortgage deed. Therefore, the

entire burden is casted upon the defendants to prove the same, but they failed

prove the same.

VGKR, J.

SA_199_2025

25. Learned counsel for the appellant placed reliance in Mansoor Saheb

(Dead) & Ors. Vs. Salima (D) by Lrs. & Ors., vide Civil Appeal No.4211 of

2009, wherein the Apex Court held as follows:

“Mohammedan Law, being the personal law, possesses its own legal principles

and regulations which govern family relationships in matters such as marriage,

divorce, inheritance, custody and guardianship. Its distinctive feature sets it apart from

other personal laws on fundamental issues. It is pertinent to examine the legal

principles, if any, governing partition under Mohammedan law.”

26. In a case of Rasheeda Khatoon Vs. Ashiq Ali

3

, the Apex Court held

as follows:

“11. In Mahboob Sahab v. Syed Ismail and Others [MANU/SC/0698/1995:

(1995) 3 SCC 693] a two-Judge Bench referred to Section 147 of the Principles of

Mahomedan Law by Mulla wherein the essentials of valid gift under the Muhammadan

Law have been elucidated and proceeded to explicate the principle. We think the

reproduction of the relevant passage would be seemly:-

“Under Section 147 of the Principles of Mahomedan Law, by Mulla, 19th Edn.,

edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to

the [pic]validity of a gift either of moveable or of immovable property. Section 148

requires that it is essential to the validity of a gift that the donor should divest

himself completely of all ownership and dominion over the subject of the gift.

Under Section 149, three essentials to the validity of the gift should be, (i) a

declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by

or on behalf of the donee, and (iii) delivery of possession of the subject of the gift

by the donor to the donee as mentioned in Section 150. If these conditions are

complied with, the gift is complete. Section 150 specifically mentions that for a

valid gift there should be delivery of possession of the subject of the gift and

taking of possession of the gift by the donee, actually or constructively. Then

only the gift is complete. Section 152 envisages that where the donor is in

possession, a gift of immovable property of which the donor is in actual

possession is not complete unless the donor physically departs from the

3

MANU/SC/0901/2014

VGKR, J.

SA_199_2025

premises with all his goods and chattels, and the donee formally enters into

possession. It would, thus, be clear that though gift by a Mohammedan is not

required to be in writing and consequently need not be registered under the

Registration Act; for a gift to be complete, there should be a declaration of the

gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of

the donee, and delivery of possession of the property, the subject-matter of the

gift by the donor to the donee. The donee should take delivery of the possession

of that property either actually or constructively. On proof of these essential

conditions, the gift becomes complete and valid. In case of immovable property

in the possession of the donor, he should completely divest himself physically of

the subject of the gift.”

27. In a case of Sonia Bhatia Vs. State of U.P. and Ors.

4

, the Apex Court

held as follows:

“From a conspectus, therefore, of the definitions contained in the dictionaries and

the books regarding a gift or an adequate consideration, the inescapable conclusion

that follows is that 'consideration' means a reasonable equivalent or other valuable

benefit passed on by the promisor to the promisee or by the transferor to the

transferee. Similarly, when the word 'consideration' is qualified by the word 'adequate',

it makes consideration stronger so as to make it sufficient and valuable having regard

to the facts, circumstances and necessities of the case. It has also been seen from the

discussions of the various authorities mentioned above that a gift is undoubtedly a

transfer which does not contain any element of consideration in any shape or form. In

fact, where there is any equivalent or benefit measured in terms of money in respect of

a gift the transaction ceases to be a gift and assumes a different colour. It has been

rightly pointed out in one of the books referred to above that we should not try to

confuse the motive or the purpose of making a gift with the consideration which is the

subject matter of the gift. Love, affection, spiritual benefit and many other factors may

enter in the intention of the donor to make a gift but these filial considerations cannot

be called or held to be legal considerations as understood by law. It is manifest,

therefore, that the passing of monetary consideration is completely foreign to the

concept of a gift having regard to the nature, character and the circumstances under

which such a transfer takes place. Furthermore, when the legislature has used the

4

MANU/SC/0363/1981

VGKR, J.

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word 'transfer' it at once invokes the provisions of the Transfer of Property Act. Under

section 122 of the Transfer of Property Act, gift is defined thus:

“'Gift' is the transfer of certain existing movable or immovable property made

voluntarily and without consideration, by one person, called the donor, to

another, called the donee, and accepted by or on behalf of the donee.

Such acceptance must be made during the lifetime of the donor and while he is

still capable of giving.

If the donee dies before acceptance, the gift is void."

28. In the case at hand, it is not at all pleaded by the appellants in the

written statement that Ex.A-1 gift deed is invalid document since it is

supported by consideration. The recitals in Ex.A-1 gift settlement deed clearly

go to show the suit schedule house property was delivered to the donee from

the donor without any consideration and out of love and affection and

possession was delivered to the donee on the date of gift deed itself. The

defendant Nos.3 to 5, who are none other than the children of Md.Shareef

attested the said registered gift deed. There is no pleading in the written

statement that the gift deed is invalid document, since it is supported by

consideration. During the pendency of the first appeal proceedings also the

appellants have not taken any plea that

Ex.A-1 gift deed is invalid document, since it is supported by consideration.

Furthermore, the house tax receipts, the property tax receipts and demand

notices also supports that the plaintiffs are in the possession of the plaint

schedule house property, Ex.A-3 to Ex.A-5 and Ex.A-9 to Ex.A-14 supports

the same. There was a evidence on record to show that after execution of

Ex.A-1 registered gift settlement deed, the donor being the father requested

the donee to permit them to retain in the schedule property as tenant on

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SA_199_2025

payment of rent of Rs.2,000/- and subsequently, after one (01) year from the

date of execution of Ex.A-1 gift deed, Md.Shareef died and later his daughter

Haseena also died and later disputes arouse between both the parties. The

execution of registered gift settlement deed is undisputed by Md.Shareef

during his lifetime and it is not at all the case of Md.Shareef that after receiving

consideration, he had executed Ex.A-1 document in favour of his daughter.

During the lifetime of Md.Shareef, he never challenged the gift deed before

any Court of law. After the death of Md.Shareef, till so far the defendants also

did not challenge the said gift deed before the Court of law.

29. Learned counsel for the respondents placed reliance in Abdul Rahim

and Others Vs. Sk.Abdul Zabar and Others

5

, wherein the Apex Court held

as follows:

“Indisputably, in the present case the deed of gift is a registered one. It contains a

clear and unambiguous declaration of total divestment of property. A registered

document carries with it a presumption that it was validly executed. It is for the party

questioning the genuineness of the transaction to show that in law the transaction was

not valid.”

30. In the case at hand, the gift deed is registered one. As stated supra, the

possession of the property was delivered to the donee by the donor, the same

is a constructive possession which is supported by the documentary evidence,

in view of the relationship with the father, since the donor/father does not have

any alternative accommodation as such, at request of father, the daughter let

out the house on payment of rent of Rs.2,000/- per month. As stated supra,

5

(2009) 6 Supreme Court Cases 160

VGKR, J.

SA_199_2025

immediately after obtaining registered settlement deed, at the request of the

father of the donee, the donee permitted her father/donor to stay in the same

premises as a tenant. Moreover, the gift deed is registered gift settlement

deed dated 23.10.2004, the said registered gift settlement deed is not yet

cancelled by the competent Court till so far. A suit for cancellation of

registered gift settlement deed is not filed by the donor during his lifetime or by

the appellants subsequent to the death of donor till so far. Therefore, unless

and until, the said gift settlement deed in Ex.A-1 is validly cancelled, the

plaintiff s are having valid right and title in the plaint schedule house property.

31. In a case of Bepari Shaik Peeran Vs. Kamalapuram mahaboob Bi

and Others

6

, the Composite High Court of Andhra Pradesh at Hyderabad

held as follows:

“12. ……….when absolute rights had been transferred under a gift by a Mohammadan,

whether such document will be invalid for the mere reason that the right to enjoy the property is

postponed inasmuch as such rights are retained by the donor herself for life ? From the recitals

of Ex.A-1, the intention of the donor is clear and categorical to convey absolute rights in favour

of the appellant/plaintiff. In fact, while retaining the right to enjoy the income for maintenance, a

restriction not to have the right of alienation, also is imposed and this is also suggestive of the

fact that what had been conveyed by the donor to the donee under Ex.A-1 are absolute rights

in the plaint schedule property and hence the mere fact that there was no delivery of

possession in presenti on the date of the document cannot by itself invalidate Ex.A-1. In fact

this is the view expressed even by the Privy Council in the decision referred (2) supra. On a

careful reading of the decisions referred to supra, it can be seen that no contrary opinion had

been expressed in this regard. In the case of passing of absolute rights under a gift by a

Muhammadan, the postponement of enjoyment will definitely fall under an exception and on

that ground it cannot be said that Ex.A-1 is invalid and this view expressed by me also is in

accordance with the view expressed by our High Court in the decision referred to (3) supra and

also a Division Bench of the Madras High Court referred (7) supra. It is needless to point out

that in the light of the view expressed by me relating to the validity of Ex.A-1, the

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2002 SCC OnLine AP 640

VGKR, J.

SA_199_2025

appellant/plaintiff is entitled to the relief prayed for since the validity of Ex.A-2 and Ex.A-3 will

depend upon Ex.A-1 only."

32. In the case at hand, the plaintiffs proved their right and title in the plaint

schedule property and there is an ample evidence to show that the plaintiffs

are having absolute right and title in the plaint schedule property, as such the

plaintiffs are entitled for relief of declaration of title and recovery of possession

of the suit schedule property. In the light of the material on record and upon

earnest consideration now, it is manifest that the substantial questions of law

raised in the course of hearing in the second appeal on behalf of the

appellants did not arise or remain for consideration. This Court is satisfied that

this second appeal did not involve any substantial question of law for

determination.

33. In the result, the second appeal is dismissed, confirming the judgment

and decree passed by the trial Court and the First Appellate Court.

Two (02) months time period is granted to the appellants to deliver the vacant

possession of the plaint schedule property to the respondents.

Pending applications, if any, shall stand closed. Each party do bear

their own costs in the second appeal.

__________________________

V. GOPALA KRISHNA RAO, J.

Date: 25.02.2026

SRT