Topic: Ziauddin Ahmed vs M.A. Raoof (Died)

Ziauddin Ahmed vs M.A. Raoof (Died)
Equivalent citations: 2002 (5) ALD 830, 2003 (4) ALT 43 - Bench: T C Rao – Andra High Court

Judgment


T. Ch. Surya Rao, J.

1. Inasmuch as both the appeals arise out of the judgment and decree dated 21-11-1994 in OS No. 1123 of 1985 on the file of the I Additional Judge, City Civil Court, Hyderabad, they can be disposed of together.

2. The unsuccessful second defendant is the appellant in CCCA No. 65 of 1995. The plaintiff in the suit is the appellant in CCCA No. 93 of 1995. To avoid confusion, it is expedient to refer the parties as they are originally arrayed in the suit.

3. The plaintiff laid the suit for partition and separate possession of the plaint A, B and C schedule properties. The case of the plaintiff in brief may be stated thus:

4. The plaintiff and the second defendant are the son and daughter of the 1st defendant. They belong to Sunni sect. Late Akbari Begum was the mother of the plaintiff and the second defendant and the wife of the first defendant. She owned and possessed a house bearing No. 12-2-332/1 more fully described in schedule A, appended to the plaint and the movable properties mentioned in plaint B and C schedules and they are her matruka properties. There are no other heirs, except the plaintiff and defendants 1 and 2 of late Akbari Begum. She died on 12.5.1984 at Hyderabad leaving the plaintiff and defendants 1 and 2 behind her. As per Muslim Personal law, the plaintiff is entitled to 1/2 share and defendants 1 and 2 are each entitled to 1/4th share. The plaintiff requested the defendants several times to partition the suit schedule properties. The defendants used to make false promises and that ultimately on 15.2.1985, the second defendant denied the status of the suit properties as the matruka properties. The first defendant in his individual capacity as the father obtained signature as a plaintiff on a stamp paper representing that it was required for The purpose of running the School. The plaintiff apprehends that the said paper might be used against the interest of the plaintiff by both the defendants. Hence the suit.

5. The defendants resisted the suit by filing separate written statements. The case of the first defendant was that late Akbari Begum did not leave any estate at the time of her death. During her life time she gifted the entire property covered by plaint. A-schedule to the second defendant in the year 1978 and it was accepted by the second defendant. The possession was also delivered to the second defendant In the Municipal records, necessary mutation was carried out in the name of the second defendant. Since then the second defendant became the absolute owner arid that late Akbari Begum gave an affidavit about the gift made in favour of the second defendant before the Municipal authority for effecting necessary mutation proceedings and therefore, the suit schedule properties are not the matruka properties of late Akbari Begum. Late Akbari Begum used to run a School in the plaint A schedule property under the name and style 'Sun Rise'. The second defendant is the Head Mistress of the School since 1981 onwards and she has been managing the affairs of the school. The plaintiff was addicted to all bad habits and only to harass the defendants, he laid the false suit.

6. The case of the second defendant inter alia in the written statement was also the same. It is her specific case that the plaintiff knew about the oral gift made by late Akbari Begum in her favour.

7. The plaintiff filed a rejoinder denying the oral gift particularly when no date of the alleged gift was given in the written statement. It is his further case that he continued to be in possession and enjoyment of the properties along with his father and mother and after the death of late Akbari Begum. And he has been in possession till 14-10-1986 when he was dispossessed by defendants 1 and 2 by taking the law in to their own hands.

8. During the pendency of the suit, the 1st defendant died. After his death the plaintiff got the plaint amended claiming 2/3rd share. The second defendant filed additional written statement denying the right of the plaintiff.

9. Basing on the above pleadings, the following issues were framed at the time of settlement of issues:

(1) Whether late Akbari Begum died possessed of A, B and C schedule properties?

(2) Whether late Akbari Begum gifted A to C schedule properties to the 2nd defendant during her life time, and if so, is it valid?

(3) What is the value of B and C schedule properties?

(4) Whether the Court fee paid is correct?

(5) Whether the plaintiff is entitled for 1/2 share, in the schedule properties?

(6) Whether the defendants are entitled for any compensatory costs, if so, to what amount'?

(7) To what relief?

On 18.3.1994, the following additional issues were framed:

(1) Whether the plaintiff is entitled for 2/3rd share?

(2) Whether plaintiff is entitled for relief of declaration without seeking cancellation of gift in favour of D2?

(3) Whether deceased had any share or title or interest in plaint A, B, C schedule?

(4) To what relief?

10. At the time of trial, two witnesses were examined on the side of the plaintiff including himself as PW1 and documents Ex.A1 to Ex.A12 were got marked. The second defendant examined herself as DW1 and besides her she examined another witness as DW1 and got marked Ex.B1 to Ex.B 8 and also XI to Ex.X5.

11. Considering the evidence on record both oral and documentary, the learned I Additional Judge, City Civil Court, Hyderabad decreed the suit preliminarily declaring that the plaintiff is entitled for 2/3 share in the value of the plaint schedule properties and also 2/3 share in the value of movable properties as listed by the Court Commissioner in his report. Defendant No. 2 was given an option and preference to pay 2/3rd value to the plaintiff in paint A schedule and also in the movables as listed by the Court Commissioner, while dismissing the suit of the plaintiff for separate possession of his 2/3 share in plaint A, B and C schedule properties.

12. As aforesaid, the second defendant filed one appeal against the decree in favour of the plaintiff for 2/3 share and the plaintiff filed other appeal against that part of the judgment denying separate possession and giving the second defendant her option to pay the value of the 2/3 share of the plaintiff.

13. The learned Counsel appearing for the appellant-second defendant contends that there is ample evidence to prove the oral gift made by late Akbari Begum in favour of the second defendant and the Court below wrongly disbelieved the evidence. The learned Counsel further contends that Ex.B1 Gift deed made by the father of the plaintiff and second defendant in favour of the plaintiff does contain the recital about the oral gift made by late Akbari Begum and the plaintiff being the Donee under the gift is precluded from contending that there has been no oral gift.

14. The learned Counsel appearing for the plaintiff on the other hand while repelling the contentions on the side of the second defendant-appellant contends that it is not open to the Court while granting a decree for partition in favour of the plaintiff to direct the second defendant to pay the value of the share of the plaintiff and therefore, that pat of the decree denying separate possession of the plaintiff is not correct. The learned Counsel further contends that there is no sufficient evidence to prove the oral gift.

15. Having regard to the respective contentions, the. points that arise for my determination in these appeals are:

(1) Whether late Akbari Begum made the Oral Gift of the properties in favour of the second defendant in the year 1978?

(2) Whether the plaintiff being a party to Ex.B1 Gift Deed is precluded from contending that there has been no oral gift?

(3) Whether passing a preliminary decree for 2/3rd share in favour of the plaintiff and directing the value thereof to be paid to him by the second defendant by the Court below is correct?

16. Points 1 and 2 :--The relationship between the parties is not in dispute. Similarly it is not in dispute that the plaint 'A' schedule property was the property of late Akbari Begum. The plaint 'C' schedule movables are the items mentioned in 'A' schedule mentioned properties. As regards the movables mentioned in plaint 'B' schedule, the claim of the plaintiff has been denied by the Court below. The plaintiff who filed the appeal in CCCA No. 93 of 1995 has not assailed that finding whereunder he has been denied of having any share in plaint 'B schedule movables and the controversy therefore, centers round the plaint 'A' and 'C' schedule properties of which as aforesaid plaint 'A' schedule mentioned property is the immovable property and 'C' schedule mentioned movables are the furniture contained in 'A' schedule mentioned property.

17. While the plaintiff claims that these properties are the matruka properties of late Akbari Begum and therefore, he has a share along with defendants 1 and 2; both the defendants deny the same and claim that these properties were not the matruka properties of late Akbari Begum, she having gifted the same orally in favour of defendant No. 2 in the year 1978. It is obvious therefore; the defendant has set-up the oral gift by late Akbari Begum in favour of her daughter defendant No. 2 and defendant No. 2 accepted the same and the consequent delivery of possession by late Akbari Begum to defendant No. 2. The plaintiff in his re-joinder denied the oral gift. The sheet anchor of the case of the defendant is the oral gift. Obviously, the burden lies on the second defendant-appellant to prove the said oral gift.

18. The Gift need not necessarily be in writing as per the principles of Mohammedan law. Section 147 of the Principles of Mohammedan Law by Mulla, 19th Ed., envisages that writing is not essential to the validity of a gift either of movable 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 the possession of the gift by the donee, actually or constructively. Then only gift is complete. Section 152 envisages that, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters in to possession.

19. In Maqbool Alam v. Khodaija, , the Apex Court held as under:

"Three pillars of a valid gift under the Mohammedan law are declaration, acceptance and delivery of possession. There can be a valid gift of property in the possession of lessee or a mortgagor and a gift may be sufficiently made by delivering constructive possession of a 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 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 o'btains 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.......... But a gift of a property in the possession of a trespasser is not established, by mere declaration of donor and by acceptance of the donee. To validate the gift there must also be either 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. If apart from making a declaration, the donor does nothing else the gift is invalid." [Emphasis is mine]

In Mahboob v. Syed Ismail, , the Apex Court held as under:

"Though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; 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."

20. It is appropriate here to consider Section 150 of the Mulla's Principles of Mohammedan Law. The Section ordains that it is essential to the validity of gift that there should be a delivery of such possession as the subject of the gift is susceptible of. Section 152 deals with delivery of possession. Sub-section (1) thereof reads that if gift of immovable property of which donor is in actual possession is not complete unless the donor physically departs from the premises with all his/her goods and chattels and the donee formally enters into possession. Sub-section (3) thereof, however, reads that no physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case, the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift.

21. 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; a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, express 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 which the property is susceptible of. The donee should take delivery of the possession of this property either actually or constructively. In case no physical possession can be delivered on account of the constraints some overt act by the donor like handing over of the title deed should be made. Where both the donor and donee both reside in the property, no physical departure or formal entry is necessary. In such a case, the gift is complete if some overt act by the donor indicating a clear intention of transfer of possession and to divest himself or herself of all the control over the subject of the gift is sufficient. Keeping in view the above principles, let us now appreciate the evidence on the point both oral and documentary adduced on either side.

22. DW1 in her evidence stated that her mother gifted the property orally in her favour on 1.1.1978 on the birthday of her husband. She further deposed that her cousin by name Mahmood Moinuddin (DW3) was present when her mother made the necessary declaration and she accepted the same. She further claims that since the date of the marriage in the year 1970, she and her husband has been residing in a portion of the 'A' schedule house. It is further stated in her evidence that the original sale deed, under which the 'A' schedule mentioned property was purchased, was given to her by her mother. This specific statement made by her in the chief-examination that the title deed of the suit house was given to her on the date of declaration of the oral gift has not been controverted in the whole cross examination made. The delivery of title deed is a crucial circumstance, which if proved, would go in support of the claim of oral gift. When such a significant circumstance spoken to in the chief-examination by DW1 has not been controverted in the cross-examination, it is deemed therefore, under law that the same has been accepted. The suit house has been mutated in the name of the second defendant in the Municipal records. The mutation has been done, no doubt after the death of late Akbari Begum. As things stand, the plaint "A' schedule mentioned house property stands in the name of the second defendant in the Municipal records. There is no gain saying that she has been working as Head Mistress in the said school.

23. In proof of declaration, DW2 has been examined. DW2 is no other than the brother of late Akbari Begum. DW2 deposed that he was not present when the declaration was made by his sister. However, DW2 deposed in his evidence that in the first week of January 1978, when he visited his sister's house, she informed him about the oral gift. Even then his evidence cannot be brushed aside. His evidence has not been shaken in any way in the cross-examination. He being the brother of late Akbari Begum is equally related to the plaintiff as well as the second defendant. There is no reason for him to prefer one qua the other among them. His evidence was sought to be avoided on the premise that his presence was not spoken to by DW1. No malice or motive has been suggested to him in the cross-examination for speaking falsehood, except suggesting that he is speaking falsehood. Therefore, there is no reason to disbelieve the testimony of this witness. His evidence establishes that late Akbari Begum informed him that she made an oral gift in favour of her daughter, the second defendant. Therefore, the evidence of DW2 bears-out the testimony of DW1.

24. DW3 is another witness examined to prove the oral gift. He is closely related to the plaintiff and the second defendant, they being his paternal cousins. He deposed that on 1.1.1978 being the birthday of the husband of the second defendant, late Akbari Begum gifted 'A' schedule property in favour of defendant No. 2 and he was present along with the first and second defendants and second defendant's late husband. No ill Will or motive has been attributed to him to speak falsehood against the plaintiff. There is no compelling reason to disbelieve the testimony of this witness. The evidence of this witnesses therefore, buttresses the evidence of DW1 on the point of oral gift.

25. The mutation proceedings effected in the assessment registers of the Municipality would show the follow-up action. This evidence both oral and documentary on the side of the second defendant is sought to be assailed on two grounds; viz., that the date of gift has not been mentioned in the written statement specifically and that the mutation proceedings have been effected only after the death of late Akbari Begum, but not so soon after the alleged gift.

26. It is no doubt true that it has been averred in the written statement that late Akbari Begum made an oral gift in the year 1978. The date and month have not been specifically averred. The learned Counsel for the second defendant contends that a counter has been filed in the interlocutory application filed in the suit wherein the date and month of the oral gift have been specifically mentioned in the counter and that the written statement has been filed far subsequent to that counter. In this connection, the learned Counsel for the plaintiff seeks to contend that the oral evidence on the point in the absence of the specific plea in the written statement cannot be accepted. It may be mentioned here that it is not a case where there has been total absence of plea. It is a case where the date and month of the oral gift have not been mentioned, but deed of oral gift has been mentioned. Under the circumstances, I am afraid, 1 cannot countenance the contention of the learned Counsel for the plaintiff that in the absence of plea, the evidence cannot be accepted.

27. Not only that there are other inherent circumstances emanating from the record which go in favour of the oral gift. It is appropriate to consider Ex.B1. Ex.B1, no doubt is the Xerox copy of the Memorandum of a Gift. The first defendant seems to have gifted the house property bearing No. 10-2-317/34 in favour of the minor son of the plaintiff and evidencing the same, this Memorandum of Gift the original of Ex.B1 was executed and notarised. PW1 in his evidence unequivocally admitted Ex.B1. It bears his signature along with the signature of the Donor and other witnesses. Not only that in the cross-examination, he categorically admitted that he accepted the gift as a guardian of his minor son and pursuant thereof necessary mutation proceedings were effected in the Municipal records. Further more, he admitted in his-cross examination that the contents of Ex.B1 were true. Therefore, in view of this evidence of PW1 himself, Ex.B1 is not in doubt This document shows that the first defendant who was the Donor was the exclusive owner of the house bearing No. 10-2-317/34, 10-2-317/34/1, and 10-2-317/34/A and his wife late Akbari Begum was the exclusive owner of the house bearing Municipal No. 4-2-332/1 and that his wife late Akbari Begum gifted the house bearing No. 12-2-332/1 in favour, of the second defendant who was in full enjoyment of the same and that since his son, the plaintiff has not been assigned any share in the school, the donor out of natural love and affection orally gifted the house bearing Municipal numbers referred to herein-above. The purpose of making the gift has been specifically mentioned in this document. It may be mentioned here that the first defendant was the owner of one house property and his late wife Akbari Begum was the owner of another house property. In both the properties as per Muslim personal law, the plaintiff and the second defendant are entitled to specified shares. Now in view of the oral gift said to have been made by late Akbari Begum in favour of the second defendant to the exclusion of the plaintiff, as a compensatory measure, the first defendant gifted orally the other house property stood in his name in favour of his son, the plaintiff to the exclusion of his daughter, the second defendant. The plaintiff having been a signatory to this document and having categorically and unequivocally admitted the contents mentioned therein as true is now precluded from contending otherwise.

28. This document Ex.B1 is dated 24-12-1984. By that date at least the plaintiff knew pretty well that there was oral gift made by late Akbari Begum in favour of his sister, the second defendant in respect of the plaint 'A' schedule mentioned house. The Court below sought to avoid this document on the premise that it was a post litem motem document, oblivious of the specific date mentioned therein. Ex.B1 clearly establishes that there has been oral gift made by late Akbari Begum in favour of the second defendant.

29. Obviously the name of the second defendant stands mutated in the Municipal records in substitution of the name of the original owner late Akbari Begum. It is stated that for the purpose of mutation late Akbari Begum gave an affidavit engrossed on a stamp paper and duly notarised. The said document has been summoned by the plaintiff himself through Court from the office of the" Municipal Corporation and that document is Ex.X4. If it is proved, this document clinches the issue inasmuch as it contains the unequivocal admission made on the part of late Akbari Begum of having orally gifted the plaint 'A' and 'B' schedule mentioned properties in favour of the second defendant, her daughter. This document is now sought to be assailed on the ground that it is a forged document. To establish the same, the plaintiff has taken steps in summoning the record of the Stamp Vendor and also the necessary registers of the Notary to show that there have been no entries made duly by them in the respective registers. The absence of necessary names in the respective registers of the Notary as well as the Stamp vendor would namely cast a cloud of doubt on the veracity of this document. But they cannot rule out conclusively the bringing out of such a document. The signature appearing on the affidavit Ex.X4 is forged one according to the plaintiff. The Notary advocate who notarized this document is obviously no more. The plaintiff has further taken pains in summoning Ex.X3 the specimen signatures of late Akbari Begum from A.P. State Co-operative Bank Limited, Hyderabad. The Court below in exercise of its power conferred under Section 73 of the Evidence Act made a comparison of the specimen signatures and the disputed signatures on Ex.X4 and came to the conclusion that they were not identical without assigning any reasons in support thereof. It is no doubt true under Section 73 of the Evidence Act: the Court has got power to compare the disputed writings with the admitted specimen writings, so as to come to a just conclusion. In the process, the Court is not expected to play the role of an Expert. Such a power can be exercised only when there is other material either in the shape of an opinion of the Expert or other direct or the circumstantial evidence. In the absence of any such evidence, by mere comparison of the disputed as well as admitted specimen signatures, the Court cannot come to a just conclusion. Therefore, the way in which the Court below sought to avoid Ex.X4 by resorting to the process of comparison by itself cannot be accepted.

30. It is for the second defendant to prove that Ex.X4 contains the signature of late Akbari Begum. There is no other evidence in proof thereof. The fact remains that the necessary mutation has been effected in the records of the Municipal Corporation way back in the year 1984. The document Ex.X4 emanated from the records of the Municipal Corporation having been summoned at the behest of the plaintiff. The plaintiff, who knows pretty well about the mutation, has not taken any steps to seek the said proceedings cancelled. Conveniently at the time of trial when he was examined on 20.8.1993, he denied the signature on Ex.X4 as not that of late Akbari Begum. Having regard to the passage of time i.e., nearly a decade and the enjoyment of the property by the second defendant by paying the house tax payable to the Corporation over the 'A' schedule mentioned property and regard being had to the fact that the oral gift has been proved otherwise, and other circumstances discussed hereinabove, it cannot be said that Ex.X4 is a forged document for the reasons sought to be contended by the plaintiff. As afore discussed Ex.B1 document amply supports the case of the second defendant that there has been oral gift. The mutation proceedings in the records of the Municipal Corporation is nothing but a necessary sequel thereof. In that view of the matter, it cannot be doubted that in consequence of that gift, necessary proceedings have been effected in the Municipal record. According to PW1 his mother died on 12.4.1984. Ex.A1 Certificate of Death establishes the same, whereas Ex.X4 affidavit was notarized on 1.2.1984. Obviously it was during the lifetime of late Akbari Begum. Necessary mutation was effected in the registers in the year 1984 itself. The fact that as to why mutation was not effected in the registers of Municipal Corporation so soon after the gift and the delay from 1978 to 1984 cannot be a conclusive ground about the bona fides of the mutation proceedings. Till the date of filing of the suit by the plaintiff has not taken any steps to cancel the said proceedings. At any rate steps for mutating the name of the second defendant in the registers have been long prior to the filing of the suit in this case not in anticipation of filing of the suit. There is nothing to doubt the mutation proceedings.

31. Ex.B5 to Ex.B7 show the name of the second defendant as one of the staff members. It is not in dispute that she was the Head Mistress at the relevant time. At least after the death of late Akbari Begum, it is the second defendant who has been running the school till today. That shows her effective possession over the plaint 'A' schedule house and plaint 'C' schedule movable for the purpose of this suit. This clinching evidence of possession would prove incidentally the acceptance of the gift made by Akbari Begum apart from her own statement made on oath. For the foregoing reasons, I am of the considered view that the evidence available on record would amply support the case of the second defendant that there has been an oral gift made by her late mother late Akbari Begum in her favour in respect of plaint 'A' schedule immovable property and plaint 'C' schedule movable existing therein. Therefore, the judgment and decree passed by the trial Court cannot be sustained and are liable to be set aside.

32. Point No. 3:--Obviously the Court below has fallen in to a palpable error by declaring that the properties are not partible and by directing the second defendant to pay the value of the 2/3 share of the plaintiff. Whether the property is divisible or not shall have to be seen only by the person who seeks to effect the division. Sitting in the Court Hall, the Court cannot decide the same in the absence of any such evidence. That apart, when the plaintiff is held to be entitled to 2/3 share and second defendant is entitled to 1/3 share, directing the second defendant to pay the value of the 2/3 share to the plaintiff is yet another error committed by the Court below. These things will be taken care of in the final decree proceedings initiated pursuant to the preliminary decree. However, all this is not germane in view of my findings on points 1 and 2.

33. In the result, CCCA No. 65 of 1995 is allowed and CCCA No. 93 of 1995 is dismissed. In view of the propinquity of the relationship between the plaintiff and the second defendant, there shall be no order as to costs.