Andhra HC (Pre-Telangana)
Fateh Ali (Died) Per Lrs. And Ors. vs M.A. Aleem And Anr. on 9 September, 2003
Equivalent citations: 2003(6)ALD611, 2003(6)ALT338
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
JUDGMENT P.S. Narayana, J.
1. Respondents 3 to 9, aggrieved by the judgment and decree made in O.P. No. 24/87, dated 16-6-1993 on the file of Subordinate Judge, Nirmal, had preferred the present appeal.
Facts in brief:
2. The registered owner of H.No.6-19 of Narsapur Village was one Mohd. Ali and the same was acquired for Sriramsagar Project by virtue of Section 4(1) notification of the Land Acquisition Act, 1894, in short hereinafter referred to as "Act", published in the Gazette on 3-9-1983. M.A.Aleem, 1st respondent in the appeal and also in O.P.No.24/87, claims to be the owner of the said property, entitled to receive compensation in view the gift made by Mohd. Ali by Ex.B-6 on 19-3-1981, registered on 24-3-1981. The 2nd respondent in the present appeal is the Special Deputy Collector, Land Acquisition-cum-Land Acquisition Officer, SRSP, Pochampad. The appellants herein, Respondents 2 to 5, filed joint claim taking a stand that the 2nd respondent being the real brother of the deceased Mohd.Ali, and Respondents 3 to 5 being the children of the 2nd respondent, by succession, are the owners of the said property, entitled to receive the compensation. The 2nd respondent in the aforesaid O.P. died pending enquiry and his wife and daughters were added as respondents 6 to 10 in the O.P. referred to supra. After settlement of Issues, on behalf of the appellants, the 3rd respondent in the O.P. was examined as RW-1 and another relative of him was examined as RW-2. Exs.B-1 to 5 and B-17 and B-25 were marked. On behalf of the 1st respondent, he had examined himself as RW-3 and also examined RW-4 to RW-7 and Exs.B-6 to B-16 and B-26 and B-27 were marked. The learned Subordinate Judge, Nirmal, vide judgment and decree dated 16-6-1993 answered the reference that the 1st respondent is entitled to withdraw the compensation on the strength of the gift made by Mohd.Ali. Hence, the Respondents 3 to 10 had preferred the present Appeal.
3. U.A. Aleem, the 1st respondent, made the claim Statement with the following averments:
The house property identified by Door No .6-19 (new) corresponding to 6-11 (old) located at Village Narsapur then within Taluk Nirmal was gifted by its owner Sri Mohammad Ali, S/o. Mohammad Wazeer to this claimant through registered Gift Deed document No. 305 of 1981 Bahi No. l, Volume 260, pages 209 and 210 dated 24-3-1981. It was executed by late Mohammad Ali on 19-3-1981. The possession of the house was also delivered to Mohammad Abdul Aleem, i.e., the claimant on 19-3-1981. This claimant in pursuance of the same also collected rents from Sri K. Laxmi Narayan, Sub-Inspector of Excise, whose office was located in it. The said tenant executed rental deed in favour of this claimant regularly paying rent of Rs. 50/ - a month since the date of Gift. The house in dispute is also mutated in the name of this claimant by the concerned Gram Panchayat Office of Narsapur. The late Mohammad Ali executed the registered gift deed in sound state of mind and health and voluntarily. He did on 7-5-1981.
The deceased Mohd. Ali gifted the house to this claimant out of love and affection and also due to Service rendered by him during the former's old age. The mother of this claimant was brought up by late Mohd. Ali as his daughter. The mother of this claimant is the daughter of Smt. Beejan Bee, who is the sister-in-law of the deceased Mohammad Ali. The wife of Mohd. Ali pre-deceased him. He died issueless.
That, the house in dispute herein is the self acquired property of late Mohammad Ali. The claimant herein also spent nearly ten thousand rupees for flooring and other major and minor repairs later on. The deceased Mohd. Ali did not leave any immovable property as Matruka.
That, the claimant Fateh Ali who is the brother of late Mohd. Ali was not in talking terms with the latter for a number of years. The former was inimical towards the latter.
That, the claimant Fateh Ali filed a civil suit against this claimant in O.S.No.27 of 1984 on the file of the District Munsif, Nirmal in connection with the disputed house. He has falsely pleaded therein that late Mohd. Ali was not in a physical and mental position to execute registered gift deed in favour of this claimant before his death. He has also falsely pleaded that the materials of the ancestral house at Temboreni village were used in the construction of the disputed house. He equally falsely pleaded therein that he entered into possession of the house after the death of late Mohd. Ali and that he collected rent of the house from the tenants.
4. The appellants, Respondents 2 to 5, made their claim Statement as referred to hereunder:
That the respondent Nos.3 to 5 are the sons of respondent No. 2. That the respondent No. l has got no right, title or interest whatsoever in the compensation with respect of house bearing No. 6-19 situated at Narsapur Village, which has been acquired by the SRSP authorities (Pochampad). That the respondent No. 2 is real claimant to receive the compensation amount with respect of the said acquired house.
That the true facts are that, that the respondent No. 2 and his brother Mohd. Ali @ Nawab Sahab are the sons of late Mohammed Vazeer. Mohammed Ali is the real brother of Respondent No. 2, died issueless on 7-5-1981, after having suffered for about 7 or 8 years with paralysis. Due to sickness he was bedridden and died almost losing his mental balance.
That the Respondent No. 2 had an ancestral house at Village Temburni Tq. Nirmal which is at a distance of l 1/2 miles from Narsapur village. Late Mohammed Ali purchased house site at Narsapur and shifted the entire building material of the ancestral house situated at Temburni to Narsapur and constructed house bearing No. 6-11/6-19 at Narsapur.
That the wife of late Mohammed Ali pre-deceased him and as such under Mohammedan Law the Respondent No. 2 is only legal heir of late Mohammed Ali who died issueless. The late Mohammed Ali was possessor of house No. 6-11/6-19 situated at Narsapur Village, till his death immediately after his death the property i.e., the said house bearing No. 6-11/6-19 devolved on the Respondent No. 2 as the legitimate heir and he came into possession on the above said house right from his death. That the above said house acquired by the LAO, SRSP. During the enquiry the Respondent No. 2 claimed the compensation amount.
Prior to submergence the said house has been let out to Excise Sub-Inspector for office purpose as well as residential purpose. That the said Excise Sub-Inspector vacated the said portion of house No. 6-11/6-19 when the Respondent No. 2 issued a notice against him as the entire village shifted to new Rehabilitation Centre at the instance of Excise Commissioner. That after vacating the said portion by the Excise Sub-Inspector the 2nd respondent took away all the building materials i.e., wooden frames, wooden Windows, rafters, tiles etc., to new Rehabilitation Centre and disposed of the same to different persons. Therefore the respondent No. l has got no right, title or interest over the compensation amount.
Submissions of Vilas Afzal Purkar:
5. Sri Vilas Afzul Purkar, the learned Counsel representing the appellants while arguing the matter in a systematic way, in all fairness, submitted that the only question involved in the matter is the validity of the gift which was no doubt not specifically put in issue before the reference Court. The learned Counsel further submitted that if the appellants are able to satisfy the Court that the alleged gift by Mohd. Ali was not proved or established in accordance with law, the appellants alone are entitled to receive the compensation, being the natural heirs of the deceased Mohd.Ali. The learned Counsel while elaborating his submissions had explained the essentials of Hiba under Mohammedan Law and had also drawn our attention to the claim Statements of the respective parties. The learned Counsel further pointed out that though oral gift is permissible under Mohammedan Law, there is absolutely no evidence relating to the gift made by Mohd. Ali on 19-3-1981, which was registered on 24-3-1981. The learned Counsel pointed out to certain recitals made in Ex.B-6, the registered gift deed, and had contended that the document is suspicious and the validity of this document is to be considered taking into consideration the facts and circumstances of the case. The learned Counsel further commented that the admissions made by RW-2 in cross-examination clearly go to show that Mohd.Ali, the executant, was not present at all at the time of registration of Ex.B-6. No evidence was let into establish the alleged gift made on 19-3-1981 and in view of the same, the stand taken by the appellants that the document is fabricated or brought, into existence for the purpose of making a false claim, may have to be accepted since the brden of proof on the part of the 1st respondent to prove the validity of the gift, had not been discharged. The learned Counsel very carefully and meticulously had taken us through the evidence of RW-4 the attestor, RW-6 the scribe, and had commented that this evidence definitely is highly insufficient to prove the gift and inasmuch as the 1st respondent miserably failed in proving Ex.B-6, the resultant consequence is that the appellants are automatically bound to succeed as they are the natural heirs of the deceased Mohd, Ali entitled to receive the compensation.
Submissions of Ramakrishna Reddy:
6. The learned Senior Counsel Sri Ramakrishna Reddy, representing the 1st respondent had pointed out that the 2nd respondent, the real brother of Mohd. Ali who died during the pendency of the O.P., in fact filed a suit for declaration and injunction relating to the self-same property O.S. No. 271 /84 on the file of District Munsif Court, Nirmal and the same was withdrawn without reserving any liberty whatsoever either to pursue this litigation or to Institute yet another suit. The learned Counsel would maintain that in view of Exs.B-21, 22 and 23, it is clear that the 1st respondent had acquiesced by virtue of the doctrine of acquiescence and in view of the withdrawal without seeking any liberty, the appellants cannot again agitate the said question relating to the validity of the gift The learned Counsel further elaborating his submissions had drawn our attention to the evidence of RW-3, RW-4 and RW-6 and had contended that all the essentials and ingredients of a gift by a Mohammedan had been clearly established. The learned Counsel also had drawn our attention to the findings recorded in detail by the learned Subordinate Judge, Nirmal in this regard. While continuing his elaborate submissions, the learned Counsel also pointed out that not only Ex.B-6 was proved in accordance with law, but there are several attendant circumstances which clearly go to show that Ex.B-1 in fact was acted upon. The learned Counsel also pointed out to the evidence of RW-5 and also to the evidence of RW-7 and had submitted that the lease in favour of the Excise Department and also the mutation in favour of the 1st respondent, do clearly establish that the gift was acted upon. The learned Counsel also would maintain that the gift was drawn evidencing the past transaction. The learned Counsel further explained the relationship between the deceased MohdAli and the 1st respondent and under what circumstances the Hiba was offered and the same was accepted by the 1st respondent. The learned Counsel had taken us through the evidence of RW-3, RW-4 and RW-6 in detail and also had pointed out to the finding recorded at para 21 of the judgment of the reference Court. The learned Counsel also had explained in detail the nature of the gift under the Mohammedan Law and also the relevant provisions of the Transfer of Property Act, 1882 in this context.
7. Heard both the Counsel at length and also perused the oral and documentary evidence available on record and the fmdings recorded by the learned Subordinate Judge, Nirmal while disposing of O.P. No. 24/87.
8. The Points which arise for consideration in this Appeal are as hereunder:
1. Whether the fmdings recorded and the resultant decision made by the learned Subordinate Judge, Nirmal, that the 1st respondent is entitled to receive compensation in relation to the disputed house on the strength of the gift, suffer from any illegality or legal infirmity, so as to be disturbed in the present Appeal, or are liable to be confirmed?
2. If so, to what relief the parties are entitled to?
Point No. 1: The matter is decided by the reference Court by virtue of the reference made under Sections 30 and 31 of the Act. The dispute pertains to H.No.6-19, corresponding to old H.No.6-11, at Narsapur, which was submerged in Sriramsagar Project. It is not in dispute that the said house stood registered in the name of MohdAli in the records of Gram Panchayat and also in the notification and the declaration published under the Act. MohdAli died on 7-5-1981 leaving behind him no issues and his wife pre-deceased him. It is also not in controversy that Fateh Ali, who is no more, is the blood brother of the deceased Mohd. Ali and the appellants herein are the sons, daughters and wife of the said Fateh Ali. The 1st respondent is daughter's son of Beejan Bee sister-in-law of the deceased Mohd. Ali. The compensation amount was determined at Rs. 61,538-33 and the same was deposited before the reference Court in view of the rival Claims. The claim made by the 1st respondent is that his mother was brought up by Mohd. Ali as his own daughter and out of love and affection and in the light of the Services rendered to Mohd. Ali in his old age, he had gifted the subject house under a registered gift deed which had been accepted and in fact the same was acted upon. Though specifically in the claim Statement the 2nd respondent had not raised a dispute relating to the validity of the gift, specific stand was taken by him that as natural heirs they are alone entitled to the compensation, virtually meaning thereby that the 1st respondent is not entitled to receive compensation on the strength of the alleged gift. In view of the same, the matter was referred to the reference Court and the reference Court on appreciation of the oral and documentary evidence, ultimately came to the conclusion that the 1st respondent is entitled to receive the compensation on the strength of the gift made by Mohd. Ali. The said decision is assailed by the appellants in the present Appeal.
9. The 1st respondent had examined himself as RW-3 and he had also examined RW-4 to RW-7 and on his behalf Exs.B-6 to B-16 and B-26 and B-27 were marked. Ex.B-6 is the registered gift deed dated 19-3-1981, Ex.B-7 is a certified copy of the registered sale deed, Ex.B-8 is a receipt of payment of house tax, Ex.B-9 is the property ownership certificate, Ex.B-10 is the tax receipt, Ex.B-11 is the death certificate, Ex.B-12 is the rental deed, Ex.B-13 is the certificate issued by Excise Sub-Inspector, Narsapur, Ex.B-14 is a certified copy of the voter's list, Ex.B-16 is the unregistered partition list, Ex.B-26 is the notice issued by Land Acquisition Officer to the 1st respondent and Ex.B-27 is the information letter issued by Excise Sub-Inspector, Narsapur. On behalf of the appellants, the 3rd respondent in the O.P. examined himself as RW-1 and RW-2 a relative of him was examined and Exs.B-1 to B-5 and B-17 to B-25 were marked. Ex.B-1 is the notice copy of Excise Superintendent, Adilabad. Ex.B-2 is to the reminder notice, Ex.B-3 is the Certificate issued by Sarpanch, Gram Panchayat Narsapur, Ex.B-4 and Ex.B-5 are receipts, Ex.B-17 is a certified copy of the order of temporary injunction in I.A.No.59/84 in O.S.No.17/84 on the file of District Munsif, Nirmal. Exs.B-18 and B-19 are acknowledgements, Ex.B-20 is a receipt, Ex.B-21 is a certified copy of the Petition and affidavit in I.A.No.320/89 in O.S. No. 27/84. Ex.B-22 is a certified copy of the docket order in I.A.No.36/89 in O.S.No.27/84, Ex.B-23 is a certified copy of the docket order in O.S.No.27/84 on the file of District Munsif, Nirmal, Ex.B-24 is the notice to Fateh Ali issued by the Land Acquisition Officer, Ex.B-25 is another notice issued by Land Acquisition Officer to Fateh Ali:
10. The parties to the dispute are Mohammedans. The Issues framed by the reference Court are as hereunder:
(1) Whether the alleged registered gift of disputed house by Mohd. Ali to claimant No. l is acted upon and Claimant No. l collecting rents frorn tenants?
(2) Whether claimant No. 2 got the disputed house by succession?
(3) Who is entitled for possession and compensation of disputed house? Is it claimant No. l?
(4) To what relief?
Though the registered gift deed was put in issue, it is no doubt true there is no specific Issue framed relating to the validity of the gift. It is pertinent to note that both the parties had let in evidence being conscious of their respective Stands relating to the validity of the gift and clear findings had been recorded on appreciation of the oral and documentary evidence and hence the non-framing of a specific Issue relating to the validity of the gift may not in any way vitiate the Judgment and decree made by the reference Court. The learned Senior Counsel representing the l st respondent had raised on objection invoking the doctrine of acquiescence stating that in view of the fact that no liberty was reserved while withdrawing O.S. No. 27/84 on the file of District Munsif, Nirmal, the question relating to the validity of the gift cannot be reagitated by the appellants. Ex.B-21 is the petition filed under Order 23 Rule l read with Section 151 of the Code of Civil Procedure and the said application LA. No. 320/89 in O.S. No. 27/84, reads as hereunder:
"For the reasons stated in the accompanying affidavit the Hon'ble Court be pleased to grant leave to withdraw the above suit bearing O.S. No. 27/84 in the interest of justice."
It may also be relevant to have a look at the affidavit filed in support of the said application by the deponent- Fateh Ali, and the same reads as hereunder:
" l. That I am the deponent herein and plaintiff in the above suit hence well acquainted with the facts of the case.
2. That I filed the suit against the defendant for Declaration and injunction of the suit house situated at Narsapur (G) Village. That the said house has been acquired by the SRSP, Project and an amount of Rs. 61,000/-has been awarded. At the time of award enquiry the defendant tried to get the compensation award in his name by creating a false gift deed, therefore I filed the objection before the Land Acquisition authority and also filed a suit for declaration and injunction, meanwhile on my objection the Land Acquisition authority referred the matter to Sub-Court Nirmal, under Sections 30, 31 of L.A. Act for objection. That I have also filed our claim Statement in the Sub-Court, Nirmal in O.P. No. 24/1987 which is pending for trial. That to avoid multiplicity of litigation the plaintiff is intending to withdraw the suit and to proceed in the O.P. No. 24/87 as the subject-matter is one and the same."
Ex.B-22 is the order passed in I.A. No. 36/89 in O.S. No. 27/84 and the said order dated 27-9-1989 reads as hereunder:
"Heard. As the suit is dismissed at the stage of trial and advocate for the petitioner represented he is ready with witnesses and proceed with day to day petition is allowed. Without cost."
Ex.B-23 is the docket order dated 27-9-1989 which reads:
"I.A. No. 36/89 allowed. Suit restored. A petition withdrawing the suit filed. Allowed. Suit withdrawn".
It is no doubt true that Ex.B-23 is the judicial order and specifically giving liberty to further agitate the question before the reference Court or giving liberty to institute yet another suit had not been specified. The reference made in view of the claim made by the parties to the reference Court is under Sections 30 and 31 of the Act, which read as hereunder:
30. Dispute as to apportionment:--When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court.
31. Payment of compensation or deposit of same in Court :--(1) On making an award under Section 2, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18, would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.
(3) Notwithstanding anything in this section the Collector may, with the sanction of the appropriate Government instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interest of the parties concemed.
(4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof."
11. If the object and scope of the provisions are carefully scrutinized, these proceedings however cannot be equated with a regular suit since these proceedings will be taken up by the reference Court only on reference and confine to the questions referred to, to be answered. Reasons in fact had been given in the affidavit filed in support of the application by the deponent why he was inclined to withdraw the suit. In the light of this background, the mere fact that specifically it was not mentioned giving liberty to file a fresh suit or to further proceed with the O.P. in the reference Court, the doctrine of acquiescence can be invoked by the 1st respondent cannot be accepted. We are of the considered opinion that the doctrine of acquiescence cannot be stretched too wide so as to engulf a case of this nature, especially in the light of the scope and ambit of the regular suits for declarations and injunctions and the reference proceedings under Sections 30 and 31 of the Act.
12. As already stated supra, the parties to the dispute are Mohammedans. We are called upon to decide the validity of the gift made by Mohd. Ali in favour of the 1st respondent on 19-3-1981, registered on 24-3-1981. The insufficiency of evidence in regard to the gift made by the said Mohd. Ali is the main question and argued elaborately by the learned Counsel for the appellants. The discharge of brden of proof relating to the validity or due execution of a gift may depend upon several attendant circumstances too, and each case may have to be judged on the facts and circumstances of a given case. Let us now see whether the findings recorded by the learned Subordinate Judge, Nirmal are liable to be disturbed.
13. At the outset, we may state that fmdings in detail had been recorded at paras 9 to 21 of the judgment by the learned Subordinate Judge, Nirmal. Each contention and each objection raised by the parties in fact had been answered by the learned Judge. Hiba or gift under Mohammedan Law is defined by Mulla in Principles of Mohammedan Law, 8th Edition, at page 150, as hereunder:
"A Hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter."
Mushin Tayyibji in Muslim Law, 4th Edition, at Chapter IX, Page 288, defmes "Hiba" as:
"When a person governed by Muslim Law signifies his willingness to make to another, an immediate and unconditional transfer, without consideration, of the ownership of existing and specified property, he is said to make "a declaration of Hiba".
In Mohammedan Law, 4th Edition, by Verma, at page 496, while dealing with formalities of gift and gift how made, had stated:
"(1) A gift may be made-
(a) by a declaration made orally or in writing of the gift by the donor or his agent;
(b) by the acceptance of the gift expressly or impliedly by or on behalf of the donee; except in the case of a gift of a debt to the debtor or by a guardian to his ward; and
(c) by the delivery of possession of the subject of the gift to the donee in the manner required by Sections 209 and 210.
(2) A gift shall take effect from the date on which possession is delivered."
Dr. Nishi Purohit, in Mohammedan Law, 2nd Edition, at page 354, defined "Hiba" as:
"A Hiba is an immediate transfer of some property or right by one person to another without any consideration."
14. The house in dispute, H.No.6-90, corresponding to old H.No.6-11, at Narsapur, submerged in Sriramsagar Project and relating to which compensation amount of Rs. 61,538-33 ps. is lying in deposit, stood registered in the name of Mohd. Ali in the Gram Panchayat records and Mohd. Ali died on 7-5-1981 without any issues and his wife also predeceased him. Fateh Ali, who is no more, is the blood brother of the said deceased Mohd. Ali and the appellants are the sons, daughters and the wife of the said Fateh Ali. The 1st respondent -M.A. Aleem, is the daughter's son of Beejan Bee who was the sister-in-law of the deceased Mohd. Ali. The claim of the 1st respondent in nutshell is that his mother was brought up by Mohd. Ali as his own daughter and out of love and affection and in recognition of the Services rendered by him during his old age, Mohd. Ali gifted the said house. The 1st respondent had examined himself as RW-3. RW-3 had deposed all the particulars and all the facts and circumstances under which the gift was made by Mohd.Ali. RW-4 also had supported the case of RW-3 in toto giving all the particulars and details in relation to the gift and he is the second attesting witness to Ex.B-6 and no doubt he is the relative of both MohdAli and also the mother of the 1st respondent. Apart from the evidence of RW-3 and RW-4, the scribe of Ex.B-6 was examined as RW.6. RW-7 is yet another witness who had supported the case of the 1st respondent. RW-5 was examined to establish that a portion of the house was let out by the 1st respondent. Apart from the oral evidence, Ex.B-6 - original gift deed dated 19-3-1981, was marked. Ex.B-7 certified copy of the registered sale deed, Ex.B-8-receipt of payment of house tax, Ex.B-9 - property ownership certificate, Ex.B-10 - tax receipt, Ex.B-11 - death certificate, Ex.B-12- rental deed, Ex.B-13 -certificate issued by Excise Sub-Inspector, Narsapur, Exs.B-14 and Ex.B-15 - voters list, Ex.B-16 - unregistered partition list and Ex.B-26 and Ex.B-27 - notice issued by Land Acquisition Officer to M.A.Aleem, and information letter issued by the Excise Sub-Inspector, Narsapur, also had been marked. As against this evidence, on behalf of the appellants, RW-1 and RW-2 were examined and the documents Exs.B-1 to B-5 and Exs.B-17 to B-25 were marked. Ex.B-1 is the notice copy to the Excise Superintendent, Adilabad, Ex.B-2 is the reminder notice, Ex.B-3 is the certificate issued by Sarpanch, Gram Panchayat, Narsapur, Exs.B-4 and B-5 are the receipts, Ex.B-17 is a certified copy of the temporary injunction order in I.A.No.59/84 in O.S.No.17/84 on the file of District Munsif, Nirmal. Ex.B-18 and Ex. B-19 are acknowledgements, Ex.B-20 is yet another receipt, Ex.B-21, Ex.B-22 and Ex.B-23 are the certified copies of the petition and affidavit in I.A. No. 320/89 and certified copy of the docket order in I.A.No.36/89 and certified copy of the docket order in O.S. No .27/84 respectively. Ex.B-24 and Ex.B-25 are notices issued by the Land Acquisition Officer to Fateh Ali.
15. In Maqbool Alam Khan v. Mst. Khodaija and Ors., , the Apex Court while dealing with the three pillars of a valid gift under Mohammedan Law had stated:
"The appellant must, therefore, establish his title to the land. He Claims that after the preliminary decree Najma orally gave 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 her parents filed petitions in Title Suit No. 127 of 1939 supporting the oral gift of the suit land. This circumstances favours the case of oral gift. The appellant examined himself as a witness in this, case. He said that the gift was made on 10-2-1943 in the presence of his parents. His mother was alive, but she was not examined as a witness. The date of the gift was not mentioned in the plaint or in any earlier document; 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 10-4-1943 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 26-2-1943. 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 evertook 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 the alleged 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, Khodaija 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 Mohammedan Law are declaration, acceptance and delivery of possession. In Mohammad Abdul Ghani v. Fakhr Jahan Begam (49 Ind, App. at p.209 - AIR 1922 P.C. 288) Sir John Edge said:
"For a valid gift inter vivos under the Mohammedan Law applicable in this case, three conditions are necessary, which, their Lordships consider have been correctly stated thus (a) manifestation of the wish to give on 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 construetively (Mohammedan 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:
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)."
In Amjad Khan v. Ashraf Khan and Ors., AIR 1929 PC 149, the view expressed in Abdul Ghani v. Fakir Jahan Begam, AIR 1922 PC 281, was followed and it was held:
"In order to constitute a valid gift inter vivos under the Mohammedan Law, applicable to Hanafis three conditions are necessary: viz., (1) Manifestation of the wish to give on the part of the donor. (2) The acceptance of the donee, either impliedly or expressly. (3) The taking possession of the subject-matter of the gift by the donee, either actually or constructively."
In Ratan Lal v. Mohd. Nabiuddin, AIR 1984 AP 344, the essentials relating to the oral gift of immovable property under Muslim Law had been indicated. In Chota Uddandu v. Masthan Bi, , the essentials of a gift under Mohammedan Law had been dealt with. It was observed in the said decision as follows:
"After the amendment in 1929 in Section 129, the Operation of the provisions of Chapter VII have been excluded in regard to gifts made by persons professing muslim faith and made under that Law. There is also no justification for making any distinction between secular and non-secular gifts. Hence, if all the formalities, as prescribed by Muslim Law, regarding the making of gifts, are satisfied, the gift is valid notwithstanding the fact that it is oral and without any instrument. If there is a contemporaneous document it should be registered. But if the gift is antecedent and the deed is subsequent merely evidencing the past transaction, it does not require registration, because it does not by itself make or complete the gift."
In Gulam Ahmad Sofi v. Mohd. Sidiq Dareel and Ors., AIR 1974 J&K 59, the Full Bench while dealing with Sections 123 and 129 of the Transfer of Property Act, 1882, vis-a-vis the gifts under Mohammedan Law had observed:
"By the amendment in 1929 the words "or to affect any rule of Mohammedan Law, have been deliberately substituted in order to exclude the Operation of Chapter VII in regard to gifts made by persons professing muslim faith and made under that law. This has indeed made all the difference in the case of gifts made under any rule of Mohammedan Law and under any other law. Thus if all the formalities as prescribed by the Mohammedan Law relating to making of gifts are satisfied i.e., there is a declaration by the donor of his intention to make a gift, there is acceptance of the gift by the donee, and delivery of possession of the property is complete, the gift is valid notwithstanding the fact that it is made orally without any instrument. But if there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case instrument must be registered as provided under Section 17 of the Registration Act. If, however, the making of the gift is an antecedent act and a deed is executed afterwards as evidencing the said transaction that does not require registration as it is an instrument made after the gift is made and does not therefore create, make or complete the gift thereby transferring the ownership of the property from the executant to the person in whose favour it is executed."
In P.Kunheema Umma v. P.Ayissa Umma, , the requirements of a gift of immovable property under Mohammedan Law had been dealt with. In E.S. Hajee Abdul Kareem and Son v. Commissioner of Income-Tax, , the Division Bench of Madras High Court held:
"Although the principles of Mohammedan Law requires that, in order to make a goof gift there should be a delivery of possession, a gift cannot always be regarded as invalid merely because there has been no actual delivery of possession. The question as to how far the possession of the thing gifted can be given physically to a donee must depend upon the nature of the subject matter of the gift."
The essentials and the proof required in relation to a gift under Mohammedan Law and the presumption that can be attached in relation to a certified copy of the gift had been dealt with in Sitesh Chandra Choudhnry v. Poziruddin Ahmed and Ors., AIR 1973 Gau. 96. In S.M.S. Hashmi v. S.A. Fateh, , the Division Bench of Patna High Court held:
"Mohammedan Law permits an oral gift, but to make a gift valid the following three essentials must co-exist: (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. Delivery of possession need not in all cases be actual. It should be delivery of such possession as the subject of the gift is susceptible.
Mere fact that the donor continued to live in the house is not enough to hold that there was no delivery of possession.
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 and in such a case the gift may be completed by some overt act by the donor indicating a clear indication on the part to Transfer possession and to divest himself of all control over the subject of the gift."
In Kochu Ahammed Pillai v. Pathummal and Ors., , the validity of the gift under Muslim Law and further condition in the gift deed to the effect that after the death of the donee another person to get the suit property, had been well discussed.
16. In view of the legal position referred to supra, now the evidence on record may have to be scanned while judging the validity of the gift in dispute. It is not in controversy that in the absence of the gift the appellants would have been entitled to the compensation. It is no doubt true that in the claim Statement specifically a dispute was not raised denying the validity qf the gift, but the stand taken by the appellants clearly is evident and the parties had adduced the evidence only on those lines. In the claim Statement of the appellants, it was stated that Mohd. Ali died issueless and he had suffered from paralysis for about 7 or 8 years and due to sickness Mohd. Ali was bedridden and died almost without mental balance, and the respondent No. 2 had "an ancestral house at Village Temburni, - and Late Mohammed Ali purchased house site at Narsapur and shifted the entire building material of the ancestral house situated at Temburni to Narsapur and constructed a house at Narsapur. It was also stated that the house was let out to the Excise Sub-Inspector and he had vacated the same on notice issued by them. The 3rd respondent in the O.P. had examined himself as RW-1 and one Mohd. Nahimuddin was examined as RW-2. RW-1 no doubt had explained his case in detail. Ex.B-16 - unregistered partition list between the brothers, was marked to show that there was partition between these brothers. RW-1 no doubt deposed that his father Fateh Ali and Mohd. Ali together had leased out the house to the Excise Department. Ex.B-1 is the office copy of the legal notice dated 23-11-1986 addressed to the Excise Superintendent, at Adilabad with a copy to the Commissioner of Excise, at Hyderabad. Ex.B-2 is the reminder. These documents do not throw much light on the validity of the gift as such. Apart from the evidence of RW-1, RW-2 - a relative of RW-1, also was examined and his evidence is general in nature. In fact, the learned Subordinate Judge, Nirmal had recorded findings in detail while appreciating both the oral and documentary evidence in this regard at paras 22 to 24 of the judgment. As against this evidence, the evidence let in by the 1st respondent is that he examined himself as RW-3. RW-3 had deposed in detail about his case. No doubt, Ex.B-16-memorandum of partition between Mohd. Ali and Fateh Ali, was marked, subject to objection. In the Chief Examination, RW-3 had deposed as follows:
"I am the claimant No. l in the O.P. H.No.6-11 Naraspur originally belong to Mohd. Ali. My maternal grand-mother and the wife of Mohd. Ali were own sisters. Mohd Ali had no chidren and therefore he brought up my mother and also me and we used to render Services to him. Out of love and affection and keeping in view my Services, said Mohd Ali executed a gift deed, Mohd. Ali offered Hiba to me and I accepted the same and obtained possession of the said house. Subsequently, I let out the same to Excise Office. Thereafter, Mohd. Ali executed registered gift deed in the registration office. Rasheed Sab, Abdul Hakeem, and Hafiz Sab were other persons present at the time of registration. At the time of the Hiba and gift deed, the condition of Mohd. Ali was mentally sound and he was in good health. In March, 81 the gift deed was executed and on 7th May, 81 Mohd. Ali died in Nirmal in my house. Md. Ali used to live in our house from my childhood. Md. Ali was working in 'KARODGIRT' office. He was Government servant. Md. Ali used to draw pension from S.T.O. Nirmal. He himself used to get the pension. 8 days prior to his death. Md. Ali went to S.T.O. in a rickshaw and drew pension. The house was let out to Excise office on a rent of Rs. 50/- p.m. The tenancy was in writing. The house was acquired for SRSP., Pochampad in 1987. The wife of Md. Ali died 10 years prior to the death of Md. Ali. The house was constructed by Md. Ali himself after purchasing the land, from one Gundampally Kishan Rao. I have paid taxes for the said house...............".
RW-3 in detail had deposed relating to the gift. In cross-examination, no doubt, RW-3 deposed:
"............Ex.B-6 was written at about 4.00 or 4.30 p.m., in the registration office. The 3 witnesses and myself were present at that time. Excepting for 4 of us none others were present. It is not true to suggest that Ex.B-6 is a false and forged document and that it is brought in existence to take the house property........."
On the strength of the Submission made by RW-3, the Counsel for the appellants had advanced a contention that from this it is clear that the executant was not present at the time of registration of Ex.B-6 and inasmuch as the evidence of RW-6, the scribe is highly suspicious, the 1st respondent was unable to discharge the brden in establishing the gift and hence he is bound to fail.
17. While appreciating the evidence of a particular witness, it is no doubt true that the whole evidence may have to be looked into. RW-3 also deposed that he had spent Rs. 12,000/- for flooring and digging well and also get the house mutated in his name in the Gram Panchayat records. RW-3 however deposed that Mohd. Ali purchased the land from one Kishan Rao under the original of Ex.B-7 - certified copy of the sale deed. This witness also deposed about Exs.B-8 to B-15 and also regarding memorandum of partition Ex.B-16 between Mohd. Ali and Fateh Ali. In cross-examination, RW-3 had stated that for 8 days Mohd. Ali had paralytic stroke on right hand and subsequent thereto he had recovered. In the lengthy cross-examination, several suggestions were put to RW-3 which were denied by this witness. In re-examination, the following question was put:
"In the chief-exam. You stated that Md. Ali executed gift deed in the registration office and at that time the three witnesses named were present at the time of registration and that at the time of Hiba and gift deed the condition of MdAli was mentally sound and he was in good health. But in the cross-exam. You deposed that Ex.B-6 was written in the registration office, that at that time 3 witnesses and yourself were present and excepting for 4 of you none others were present. How do you explain?"
However, the said question was disallowed.
18. RW-4 is an important and crucial witness who is aged more than 80 years. This witness deposed about all the details about the relationship and also deposed about the gift made by Mohd. Ali and acceptance of gift and delivery of possession. RW-4 further deposed that Ex.B-6 contains his Signatare as the second attesting witness. In cross-examination, RW-4 admitted that he is the maternal uncle of the mother of RW-3. No doubt, this witness speaks about the paralytic strokes of Mohd. Ali, but however states that RW-3 knows about it. RW-4 denied the Suggestion that due to paralysis, the mental condition of Mohd. Ali was affected. This witness also had denied all other suggestions.
19. RW.6 is a licenced document writer and the scribe of Ex.B-6. He deposed that he had scribed the gift/hibanama on 19-3-1981 and it was got written by Mohd. Ali in favour of M.A. Aleem and that he wrote Ex.B-6 at the instance of Mohd. Ali, In cross-examination, RW-6 stated that he does not know Mohd. Ali personally. The other suggestions put to him were specifically denied.
20. RW-7 is yet another witness - a resident of Adilabad and a native of Narsapur, who was working as a Teacher. This witness knows Mohd. Ali and Fateh Ali and they are the sons of his paternal aunt. RW-7 also deposed about the partition between these brothers and further deposed about RW-3 and his parents rendering Service to Mohd. Ali and also about the gift and the leasing out of the property by RW-3. This witness also identified the signature of Mohd. Ali in all pages, of Ex.B-6 and also the signatures in Ex.B-16. This witness, a close relative of the executant, had deposed in detail all the particulars in favour of the 1st respondent i.e., RW-3. In the cross- examination, several suggestions put to this witness were denied.
21. The evidence of these witnesses had been discussed in detail by the learned Subordinate Judge, Nirmal. In Ex.B-6, the donee is described as the real grandson, but in the evidence it is brought to light , that Mohd. Ali had no issues and the mother of RW-3 was brought up as his own daughter.
22. RW-5 is the Inspector of Excise who had deposed about taking the building in question on rent and execut'on of rental deed in favour of the lst respondent, marked as Ex.B-12, and Ex.B-13 is the certificate issued by him. Exs.B-12 and B-13 and also the evidence of RW-5 clearly go to show that it is the 1st respondent who had let out the said house to the Excise Department.
23. We have scanned through the oral and documentary evidence available on record with due care and caution. It is no doubt true that there are certain discrepancies in the evidence of RW-3, RW-4 and RW-6. However, on appreciation of the evidence, we are of the considered opinion these discrepancies are of not such a nature by which the stand taken by the 1st respondent on the strength of the gift by Mohd. Ali either can be disbelieved or the relief be negatived. On overall appreciation of both oral and documentary evidence available on record, we are thoroughly satisfied that all the essentials of a gift by a Mohammedan had been established by the 1st respondent and hence the findings recorded in detail by the learned Subordinate Judge, Nirmal, in this regard deserve no disturbance at our hands and accordingly all the said fmdings are hereby confirmed.
24. Point No. 2: In the result, the Appeal being devoid of merits, the same shall stand dismissed. However, in the facts and circumstances of the case, this Court makes no order as to costs.