Karnataka High Court
Mr. Khaja Moinuddin Ameer vs Mrs. Zulekha Begum on 29 September, 2020
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29th DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR FIRST APPEAL No.200112/2018
BETWEEN:
01. MR. KHAJA MOINUDDIN AMEER
S/O. LATE ABDUL JABBARSAB
AGED ABOUT 59 YEARS, OCC: AGRICULTURE,
RESIDING AT NEAR JAM-E-MASJID
CHINCHOLI TOWN - 585 307.
TQ. CHINCHOLI, DIST. KALABURAGI.
02. MR. MOHAMMED ZAINUL ABEDIN
S/O. LATE ABDUL JABBARSAB
AGED ABOUT 61 YEARS, OCC: AGRICULTURE,
RESIDING AT NEAR JAM-E-MASJID
CHINCHOLI TOWN - 585 307.
TQ. CHINCHOLI, DIST. KALABURAGI.
03. MRS. ZAIBUNNISSA BEGUM
S/O. LATE MOHAMMAD ZAKIR HUSSAIN
AGED ABOUT 61 YEARS, OCC: HOUSEHOLD,
RESIDING AT NEAR JAM-E-SALEHEEN
MUSLIM CHOWK, KALABURAGI - 585 103.
04. MR. ABDUL QAYYUM
S/O. LATE ABDUL JABBARSAB
AGED ABOUT 63 YEARS, OCC: AGRICULTURE,
RESIDING AT NEAR JAM-E-MASJID
2
CHINCHOLI TOWN - 585 307.
TQ. CHINCHOLI, DIST. KALABURAGI.
.... APPELLANTS
(BY SRI ABDUL MUKHTADIR ADVOCATE)
AND:
1. MRS. ZULEKHA BEGUM
W/O. LATE M.A.KHADER JEELANI
AGED 63 YEARS, OCC: HOUSEHOLD
2. MRS. ZEENATH BEGUM @ GHOUSIA BEGUM
W/O. MOHAMMED GHOUSE
AGED ABOUT 41 YEARS,
OCC: HOUSEHOLD
BOTH ARE RESIDING AT NEAR JAM-E-MASJID
CHINCHOLI TOWN - 585 307.
TQ. CHINCHOLI, DIST. KALABURAGI.
... RESPONDENTS
(BY SRI AMEET KUMAR DESHPANDE, ADVOCATE
FOR RESPONDENTS)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 R/W ORDER 41 RULE OF CODE OF CIVIL
PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT AND PRELIMINARY DECREE PASSED BY
THE SENIOR CIVIL JUDGE CHINCHOLI BY ITS
JUDGMENT DATED:21.06.2018 IN O.S.NO.36/2012 BY
ALLOWING THIS APPEAL AND ALLOWING THE SUIT
O.S.NO.36/2012 AND ETC.
THIS REGULAR FIRST APPEAL HAVING BEEN
HEARD, RESERVED FOR JUDGMENT COMING ON
FOR JUDGMENT THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
3
JUDGMENT
1. This Appeal arises out of the Judgment and decree passed by the Senior Civil Judge Chincholi in O.S No.36/2012 dated: 21-06-2018 partly decreeing the suit of the plaintiffs.
2. Aggrieved by the same, the plaintiffs have preferred this Regular Appeal. The appellants are the plaintiffs Nos.1 to 4 and the respondents are the defendants No.1 & 2 before the trial court.
3. For the purpose of easy understanding and convenience and to avoid repetition, parties will be referred as per their respective ranks before the Trial Court.
4. The plaintiffs have filed suit for partition and separate possession of their share in the suit schedule properties. It is the contention of the plaintiffs that, the plaintiff Nos.1, 2 & 4 and one late M.A Khadeer Jeelani 4 are the brothers and plaintiff No.3 is their sister. The defendant No.1 is the wife of late M.A Khadeer Jeelani and the defendant No.2 is the daughter of M.A.Khadeer Jeelani. So for better appreciation the family tree is given.
FAMILY TREE
Late. Abdul Jabbar Late. Ameena Bee
Mr.Khaja Mr.Mohammed Mrs.Zaibunnisa Mr.Abdul Qayyum
Moinuddin Ameer Zainual Abedin Begum Plaintiff No.4
Plaintiff No.1 Plaintiff No.2 Plaintiff No.3
Late. M.A. Khader Mrs.Zuleka Begum
Jeelani Defendant No.1
Propositus
Mrs.Zeenath
Begum
Defendant No.2
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It is further case of the plaintiffs that, they are common ancestors of one Abdul Jabbar Sab S/o Abdul Rahim who died intestate about 12 years back and his wife Ameena bee also died intestate during the year 2009. They have left four sons and one daughter. The husband of defendant No.1 M.A Khadeer Jeelani died on 20-06-2012 leaving behind defendant Nos.1 & 2. Therefore defendants No.1 & 2 being wife and daughter have succeeded to the suit properties. It is contended that there was no partition in the suit schedule 'E' property taken place between the plaintiffs and the propositus after the death of their parents.
It is further contended that, on 29-08-2012 a panchayat was conveyed and the memo of settlement is entered into between the plaintiffs and defendants, but the defendants failed to act on the settlement arrived between the parties and withdrawn the Fixed Deposit kept in Gulbarga Co-oprative Bank without the 6 knowledge of the plaintiffs and did not share the same with the plaintiffs as per the settlement. Due to non co- operation among the parties to the suit plaintiffs demanded their share as a residuaries in the suit 'A' to 'D' & 'F' to 'I' properties. On 10-10-2012 defendants denied to give share of the plaintiffs. The defendant No.1 is having 1/8th share in the entire suit properties as sharer, defendant No.2 is entitled for first half share of remaining 7/8th share after deducting 1/8th share of defendant No.1 as residuary in the suit properties. Similarly the plaintiffs will receive double of female i.e. plaintiff Nos.1, 2 & 4 each 2/7th share and plaintiff No.3 1/7th of remaining half of 7/8 share as per Mohammedan Law. With these main contentions the plaintiffs have prayed to decree the suit.
5. The defendants No.1 & 2 appeared before the trial court and defendant No.1 filed written statement. The defendant No.2 adopted the written statement filed 7 by defendant No.1 by filing Memo. In the written statement defendants have admitted the relationship between the parties to the suit and stated that no partition had taken place after death of M.A.Jabbar in the suit schedule 'E' properties. It is contended that, the suit schedule item No.'E' is only land belongs to the parties to the suit, the remaining suit properties are in no way concerned to the deceased Abdul Jabbar Sab and also to plaintiffs. In fact during the lifetime of Abdul Jabbar Sab his all four sons were residing separately. M.A.Khadar Jeelani who is the husband of defendant No.1 was also residing separately and was doing business as stamp vendor. Out of his own income he purchased suit schedule properties which are standing in his name. During the life time Abdul Khadeer Jeelani Sab was owner and possessor of all the suit schedule properties except 'E' schedule property as they are all his self acquired properties.
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It is the defense of the defendants that, Sri.M.A.Khadeer Jeelani Sab one year prior to his death, in order to avoid future complications in respect of suit properties which are standing in his name has orally gifted all the suit schedule properties except suit schedule item No.'E' to his wife and daughter. The oral gift was made in the presence of Abdul Salim, Mohammed Khashim, Abdul Sattar, Shamanna Ghali and Khaji Gouse Ahmad. The said oral gift is accepted by defendant Nos.1 & 2. M.A.Khadeer Jeelani handed over possession of all the suit properties except suit schedule 'E' property to the defendants in the presence of above witnesses. Since the date of oral gift the defendants are owners in possession of suit schedule 'A' to 'D' and 'F' to 'I' properties. The plaintiffs are not the legal heirs of M.A.Khadeer Jeelani. The suit schedule 'E' property is only property which is used as a tenants in common as the said property is inherited by the parties to the suit from Abdul Jabbar Sab. In fact the 9 plaintiffs have not included the properties which are standing in their name situated at Chincholi in the name of plaintiff No.2 and plaintiff No.4. The plaintiff No.1 went abroad and he is also having fixed deposits in the banks. The plaintiffs No.1, 2 & 4 also having separate house properties in their names at Asra colony Chincholi. The deceased M.A. Khadeer Jeelani out of his own stamp vending business earned income, has kept his self acquired amount in the Banks shown in the suit schedule 'K' property. To avoid any future complication he has shown his daughter and son-in-law as a nominee to the said Fixed Deposit amount and they are only entitled to receive the said amount. The defendant No.2 was residing at Hyderabad. After death of M.A Khadeer Jeelani defendant No.1 also went to Hyderabad. In fact the plaintiffs have taken signature of the defendants on the blank papers after one week of death of M.A. Khadeer Jeelani. The plaintiff Nos.1, 2 & 4 and deceased M.A Khadeer Jeelani are residing 10 separately since 35 years. The plaintiffs are having knowledge about self acquisition of husband of defendant No.1 and those properties are not Matruka properties. The plaintiffs colluding with each other have filed this false suit only to harass the defendants. In fact the defendants are also entitled to share of deceased M.A.Khadeer Jeelani in 'E' schedule property also. With these main contentions the defendants have prayed to dismiss the suit with costs.
6. On the basis of the above pleadings, the Trial Court has framed the following issues:
i. Whether plaintiffs prove that they are entitled for partition and separate possession of their share in the suit properties?
ii. Whether the defendants prove that the suit properties are their exclusive properties as they are gifted away by the husband of defendant No.1 and father of defendant No.2 in their favour?11
iii. Whether the plaintiffs are entitled to the relief as sought for?
iv. What decree or order?
7. The plaintiff No.1 got examined himself as PW.1, one witness as PW.2 and got marked twenty-one documents Exs.P.1 to P.21. Defendant No.1 examined herself as DW.1, five witness were examined on her behalf as DW.2 to DW.6 and got marked fifteen documents Exs.D1 to D15.
8. The Trial Court after hearing both sides partly decreed the suit of the plaintiffs allotting 2/9th share to plaintiff Nos.1, 2 & 4 and 1/9th share to plaintiff No.3 in 'E' suit schedule property. The suit in respect of 'A to D' and 'F to K' property is dismissed.
9. Being aggrieved by the said judgment, the plaintiffs have preferred this First Appeal on the following grounds:12
a) That under the Mohammedan Law there is no distinction between movable and immovable property or between ancestral or self acquired property.
b) As per Mohammedan Law every property is self property of the propositus irrespective of the fact that the same is inherited from his/her ancestors.
c) There is no concept of joint family as it exist under Hindu Law. Every property left behind by the propositus devolve on his/her legal heirs at the moment of his/her death and the legal heirs succeed to the properties left behind by the propositus as tenant-in-
commons in specific shares.
d) As per Mohammdan Law there are three classes of legal heirs namely 1) Sharers, 2) Residuary and 3) Distant Kindred. The first step in the distribution of the properties of the propositus after payment of his funeral expenses, debts and legacies is to allot their respective share to such of the relations as belong to the class of sharers and are entitled to a share. The next step is to 13 divide the residue (if any) among such of the residuaries as are entitled to the residue. In this case both plaintiffs and defendants are legal heirs of the propositus M.A Khadeer Jeelani have right of inheritance in all properties. In the suit properties 'A' to 'D' and 'F' to 'K' properties and 2/9th undivided share in suit 'E' property left behind by the propositus. These defendants are the sharers and plaintiffs are the residuaries.
e) As per Mohammedan Law the share of sharers is fixed. The defendant No.1 being the wife of propositus the share defendant No.1 when there is a child is 1/8th. The defendant No.2 being a single daughter of the propositus when no son is 1/2. If there is son then daughter along with son would become the residuary otherwise the daughter shall be considered as the sharer who shall have fix share. The remaining residue left after satisfying the claims of the defendant No.1 and 2 shall be a residue and the same shall be distributed among the residuaries i.e. 3/8th share. So each plaintiff 14 Nos.1, 2 & 4 will get 6/56th share and plaintiff No.3 will take 3/56th share and total plaintiffs share will be 3/8th share and defendant No.1 will get 1/8th share and defendant No.2 will be get 1/2 share.
e) It is further contended that, the trial court has committed wrong in dismissing the suit in respect of suit 'A' to 'D' and 'F' to 'K' properties and not allotting any share in the 2/9th undivided share in suit 'E' property to which the propositus is entitled in the said properties. So they have prayed to set aside the Judgment and decree and allow the appeal as prayed for.
10. I have heard Sri.Abdul Muqhtadir learned counsel for appellants and Sri.Ameet Kumar Deshpande learned counsel for respondents.
11. Sri.Abdul Mukhtadir, learned counsel for appellants orally and also filed memo of brief submission regarding share calculation. Learned 15 counsel for the appellants argued that, though the trial court has granted relief to the plaintiffs and allotted share in 'E' schedule property but denied relief in respect of other suit schedule property. Learned counsel has contended that, the trial court has answered Issue No.2 in negative which is to the effect that the defendants are exclusive owner of the property as said schedule 'A' to 'D' and 'F' to 'K' properties are gifted by husband of defendant No.1 and father of defendant No.2 in their favour. The defendants have not preferred any appeal against finding against them on Issue No.2. No cross objection or appeal is filed. The learned counsel further argued that so many witnesses were examined by the defendants, but they have failed to prove the gift. He relied upon decision of this court reported in ILR 2014 Karnataka Page No.3599 in case of Smt.Ashabi Vs Smt. Faziyabi and others wherein at paragraph No.10 this court has considered the right of the widow of predeceased son who is excluded from claiming any 16 share in view of death of her husband prior to the death of his mother. The learned counsel argued that, when the trial court has answered Issue No.2 against the defendants it should have also allotted share to the plaintiffs as per Mohammedan Law in suit schedule 'A"
to 'D' and 'F' to 'K' properties.
12. Per contra, Sri.Ameet Kumar Deshpande learned counsel for respondents would submit that, the plaintiffs have not filed any rejoinder or replica under Order 8 Rule 9 of Code of Civil Procedure to written statement contention about oral Gift. So mere denial in the examination in chief of the defendants will not help them without filing rejoinder to the contention of the defendant regarding oral gift. In fact the oral evidence about gift is valid and established by the contention of defendants. The learned counsel further contended that, though the trial court has rejected the shares to the plaintiff in 'A' to 'D" & 'F' to 'K' schedule properties but 17 held that, defendants are the owners in possessors of suit properties except 'E' schedule property but answered Issue No.2 in the negative inspite of the evidence led by defendants about oral gift. The learned counsel further argued that, the defendants have examined the witness to the oral gift but the trial court has not properly appreciated the evidence of defendants side regarding gift considering the principles of Mohammedan Law regarding oral gift but wrongly answered that issue in negative. Nevertheless this court as first appellate court having power to re-appreciate the evidence can reconsider that issue without their being any cross appeal by defendants. Learned counsel further argued that, the evidence of witness is adduced in the year 2018 that long period will have to be considered in appreciating the evidence of those witnesses. In support of his contention the learned counsel has relied upon decision of Hon'ble Supreme Court reported in AIR 2011 SC 1695 in case of Hafeeza 18 Bibi & Ors Vs Shaikh Farid (dead) by L.Rs and Ors. The learned counsel further argued that, when the oral gift is proved these plaintiffs cannot now claim the share as a residuaries. With these main contentions the learned counsel has prayed to dismiss this Appeal.
13. I have perused the pleadings evidence of the parties and Judgment of the trial court. From the said pleading, evidence materials and the above arguments, the following points arise for my consideration :
1) Whether the defendants /respondents without challenging the finding of the trial court on Issue No.2 are entitled to argue before this first appellate court in respect of oral gift stated to have been made in their favour by deceased M.A Khader Jeelani which issue is answered in negative by the trial court.
2) Whether the appellants prove that they are having share in suit schedule 'A' to 'D' and 'F' to 'K' properties as a residuaries, to the properties of deceased M.A.Khader Jeelani, if so what is their share?19
3) Whether the Judgment and decree passed by the trial court is illegal, perverse and needs interference by this court?
14. The undisputed contentions in this case are the relationship of the plaintiffs and defendants. It is also not in dispute that, the said M.A.Khader Jeelani and all his brothers were residing separately since more than 35 years. The death of parents of plaintiffs 12 years back is also not disputed. The trial court dismissed the suit of the plaintiffs in respect of properties of M.A.Khader Jeelani holding that the defendants No.1 & 2 are the owners and in possession of the said property.
15. Admittedly the defendants have not filed any cross appeal/cross objection in respect of finding of trial court on issue No.2 which is answered against them. But the trial court has indirectly given relief to them holding that, they are the owners in possession of the schedule 'A' to 'D' and 'F' to 'K'. Therefore, the Judgment 20 and decree passed in this case has not given any relief to the plaintiffs in respect of those properties but the possession and ownership of the defendants in respect of the above said properties is conferred on the defendants though for a different reasons. Therefore, when the defendants have not filed cross appeal whether they can be denied hearing them in respect of issue No.2 is to be considered. In this regard it is useful to refer power of 1st appellate court. The provisions of Order 41 Rule 22 and Order 41 Rule 33 of C.P.C. empowers the court to consider the said aspect. They reads as under:
ORDER 41 RULE 22 CPC - Upon hearing, respondent may object to decree as if he had preferred separate appeal. - (1) Any respondent, through he may not have appealed from any part of the decree, may not only support the decree, [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.21
[Explanation. - A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
ORDER 41 RULE 33. Power of Court of Appeal. - The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [and may, where there have been decree in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:
Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order].
16. Further in this regard the Hon'ble Supreme Court in a decision reported in 2007 (2) KCCR SN 49 in case of S. Nazeer Ahmed Vs State Bank of Mysore and others wherein it is held as under:
B. CODE OF CIVIL PROCEDURE - Order 41, Rule 22 - Respondents right in appeal - Cross objections not filed - The High Court, was clearly in error in holding that the appellant not having filed a 22 memorandum of cross-objections in terms of Order XLI, Rule 22 of the Code, could not challenge the finding of the trial Court that the suit was not barred by Order II, Rule 2 of the Code. The respondent in an appeal is entitled to support the decree of the trial Court even by challenging any of the findings that might have been rendered by the trial Court against himself. For supporting the decree passed by the trial Court, it is not necessary for a respondent in the appeal, to file a memorandum of cross-objections challenging a particular finding that is rendered by the trial Court against him when the ultimate decree itself is in his favour. A memorandum of cross-objections is needed only if the respondent claims any relief which had been negatived to him by the trial Court and in addition to what he has already been given by the decree under challenge.
C. CODE OF CIVIL PROCEDURE - Order XLI, Rule 33 Invoking of - This is a case where the suit filed by the plaintiff - Bank had been dismissed by the trial Court. The plaintiff - Bank had come up in appeal. It was entitled to challenge all the findings rendered against it by the trial Court and seek a decree as prayed for in the plaint, from the appellate Court. Once it is found entitled to a decree on the basis of the reasoning of the appellate Court, the suit could be decreed by reversing the appropriate findings of the trial Court on which the dismissal of the suit was based. For this, no recourse to Order XLI, Rule 33 is necessary. Order XLI, Rule 33 enables the appellate Court to pass any decree that ought to have been passed by the trial Court or grant any further decree as the case may require and the power could be exercised notwithstanding that the appeal was only against a part of the decree and could even be exercised in favour of the respondents, though the respondents might not have filed any appeal or objection against what has been decreed. There is no need to have recourse to Order XLI, Rule 33 of the Code, in a case where the suit of the a plaintiff has 23 been dismissed and the plaintiff has come up in appeal claiming a decree as prayed for by him in the suit. Then, it will be a question of entertaining the appeal considering the relevant questions and granting the plaintiff the relief he had sought for if he is found entitled to it. In the case on hand therefore there was no occasion for applying Order XLI, Rule 33 of the Code. If the view of the High Court was that the suit was barred by Order II, Rule 2 of the Code, it is difficult to see how it could have resorted to Order XLI, Rule 33 of the Code to grant a decree to the plaintiff in such a suit. In that case, a decree has to be declined. That part of the reasoning of the High Court is therefore unsustainable.
17. Further this court in 2005 (4) KCCR 2545 in case of Tippanna Vs Jalal Sab and Another, the learned single Judge of this Court has considered the power of court to hear respondent without there being any cross appeal and it is held in the decision at para Nos.10 & 11 it is held as under:
10. Substantial Question Of Law No.1: It is clear from the material on record that the Trial Court while answering issue No.1 as to whether plaintiff No.2 has proved that plaintiff No.1 has bequeathed suit land in his favour by executing the Will dated 23.10.1973, in the negative.
However, the trial Court held that plaintiff No.2 has succeeded to the property under Section 15(2) of the Hindu Succession Act and wherefore the plaintiff is entitled to relief of declaration and possession as sought for in the suit. The appeal was filed by the unsuccessful defendant against the decree passed in favour of the plaintiffs and since suit had 24 been decreed, the second plaintiff did not prefer any cross appeal or objection. However, in view of the provisions of Order 41 Rule 22 CPC., it is clear that it was open for him to support the decree passed by the trial Court on the ground that issue No.1 also ought to have been answered in his favour by holding that he had proved due execution of the Will by plaintiff No.1 in his favour and mere fact that no cross appeal or consideration had been filed would not debar him from contending in that behalf as held by the Hon'ble Supreme Court in Ravinder Kumar Sharma Vs State of Assam (AIR 1999 SC 3571) as follows:
"22. In our view, the opinion expressed by Mookerjee, J., of the Calcutta High Court on behalf of the Division Bench in Nishambhu Jenas case (1985(89) Cal WN 685) and the view expressed by U.N. Bachawat J., in Tej Kumars case (AIR 1981 Madh pra 55) in the Madhya Pradesh High Court reflect the correct legal position after the 1976 amendment. We hold that the respondent-defendant in an appeal can, without filing cross objections attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose sustaining the decree to the extent the lower Court had dismissed the suit against the defendants- respondents. The filing of cross objection, after the 1976 Amendment is purely optional and not mandatory. In other words, the law as stated in Venkat Raos case (AIR 1943 Mad 698) by the Madras Full Bench and Chandra Prabhujis case (AIR 1973 SC 2565) by this Court is merely clarified by the 1976 Amendment and there is no change in the law after the Amendment".
11. The First Appellate Court has negatived the contention of the appellant herein plaintiff No.2 by holding that in view of the fact that he has not filed any cross appeal or cross objection, it is not open to him to contend against 25 the finding given on issue No.1 regarding the execution of the Will which is answered against him by the Trial Court and wherefore, it is clear that the finding of the First Appellate Court is contrary to Order 41 Rule 22 CPC., and accordingly I answer substantial question of law No.1 in the affirmative.
18. This court in ILR 2007 KAR 2395 in case of Sri.Annasaheb Balesha Waghe and Others Vs Sri. Appasaheb Dada Promai & others wherein at para Nos.15 & 16 it is held as under:
15. Rule 22 is a special provision which gives a respondent, who being satisfied with partial success has not appealed within limitation, another opportunity of challenging the part of the decree which has gone against him upon his opponent preferring an appeal by filing a cross-objection.
However, respondent can challenge adverse findings without filing appeal or cross objection. If no cross-objections are filed at all by a respondent, the appellate court has no power to grant any relief to him in a case where the granting of such relief is not necessarily incidental to the relief granted to the appellant; nor has the appellate court the power, in the absence of cross-objections to disturb so much of the original decree as is favourable to the appellant so as to place him in a worst position. However, now as the law stands, even against the finding, a cross objection is permitted. But it is left to the choice of the party. Even without filing such cross-objection, it is open to the respondent to challenge the finding which is held against him though the decree is in his favour. But on the ground that he has not preferred cross-objections, as contemplated in the explanation, the appellate Court hearing the appeal cannot refuse to hear the respondent on the finding against his interest. However in spite of all these amendments, still no appeal lies against a finding.
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16. Therefore, what emerges from the aforesaid discussion is:
An appeal lies only against the decree and no append lies against a finding. A party who has not preferred on appeal against a portion of the decree of which he is aggrieved may prefer a cross objection which is in the nature of a cross appeal, in an appeal preferred by the opposite party against the decree, which is partly in his favour and partly against him. However, in an appeal against a decree, the respondent can challenge a finding which is against him though decree is in his favour, without filing a cross objections. He can also file cross objection challenging the said adverse finding. The difference is when the respondent challenges an adverse finding, without filing a cross objection and if the appellant withdraws the appeal or the appeal is dismissed for default, then the right of the respondent to get that adverse finding set aside is lost. But if he has filed a cross objection challenging the said adverse finding, notwithstanding the appellant withdrawing the appeal or the appeal is dismissed for default he can independently prosecute this cross objection and the Court is under on obligation to consider the said cross objection and pass order on merits.
19. So in view of the principles stated in the above decision the defendants/respondents are entitled to argue before this Court to reconsider issue No.2 based on the evidence led before the trial court when the Judgment and decree is indirectly in their favour.27
20. In view of the above, let me consider whether the defendants have adduced legally admissible evidence under the Mahomedan Law to prove the WILL.
In this regard it is necessary to refer the Text Books, Mulla Principles of Mahomedan Law, and outlines of Mahomedan Law by Asaf A.A. Fyzee. The text book Mulla's principles of Mahomedan Law 22nd Edition chapter XI deals with provisions regarding 'Gifts'. Section 138 reads as under:
138. Hiba or Gift 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.
Further section 139 states as to the persons who are capable of making gift. It reads as under:
139. Persons capable of making gifs Every Mahomedan of sound mind and not a minor may dispose of his property by gift.
Section 147 states writing not necessary to validate a 'Gift' either of movable or immovable property it reads as under:
28
Section 149 states three essential of Gift.
It is essential to validity of 'Gift', that there should be
i) A declaration of Gift by donor
ii) An acceptance of Gift, express or implied, by or on behalf of donee, and
iii) Delivery of possession of the subject or 'Gift' by donor to the donee as mentioned in Section 150. If these conditions are complied with the Gift is complete.
21. Further the learned Author in the said Book in commentaries to section 150 at page No.168 has mentioned that no mutation of names is necessary to complete the transfer of possession in case of 'Gift' nor is mutation of names a valid substitute for delivery of possession.
22. Under the Mahomedan law the three essential requisites to make a gift valid are: (1) declaration of the gift by the donor: (2) acceptance of the gift by the donee expressly or impliedly and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is 29 required in such a case. Section 129 of the Transfer of Property Act, excludes the rule of Mahomedan law from the purview of Sec.123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein.
Section 152 (3) states no physical departure or formal entry is necessary in case of 'Gift of immovable property in which the donor or donee are both residing together at the time of 'Gift'.
Section 153 Gift of immovable property by husband to wife The rule laid down in 152(3) applies to gifts of immovable property by a wife to the husband, and by a husband to the wife, whether the property is used by them for their joint residence, or is let out to tenants. The fact that the husband continues to live in the house or to receive the rents after the date of the gift will not invalidate the gift, the presumption in such a case being that the rents are collected by the husband on behalf of the wife and not on his own account.
23. Further in a Book by learned Author Asaf A.A. Fyzee outlines of Mahomedan Law 5th Edition while 30 discussing the chapter 'Gift' under Mahomedan Law stated when actual transfer of possession is not necessary. At page 191 it is stated:
The general principle is that possession must be handed over. To this rule there are certain qualifications and exceptions. Transfer of possession is not necessary:
(a) Where the donor and the donee reside in the same house;
(b) Where the gift is from the husband to the wife or vice versa;
(c) Where a father or the mother makes a gift to a child;
(d) Where a guardian makes a gift to the ward;
(e) Where a gift is made to a bailee in
possession;
(f) Where the Fatimi law is applicable.
Where the donor and the donee reside in the same house the donor can complete the gift without physical transfer of possession;
Where a married couple live in a house which belongs to the husband, the husband may make a gift of the house to the wife without physical delivery of possession. A strict adherence to formalities would necessitate that the husband and wife should leave the premises, the husband should formally hand over vacant possession to the wife, the wife should accept such possession and enter into the house as an 31 undisputed monarch. Such a tamasha is not required by the law.
24. So in the light of these principles let me consider the finding of the trial court in respect of Issue No.2. Because if the issue No.2 is answered in negative then automatically the shares of the plaintiffs will have to be worked out. If the said issue is answered in the affirmative the plaintiffs will not get any share in the property of deceased M.A.Khader Jeelani. Admittedly defendants No.1 & 2 are the wife and daughters of the said M.A.Khader Jeelani they were residing with him. The trial court has also at paragraph No.29 held that the defendants are in possession of suit schedule properties 'A' to 'D' and 'F' to 'K'. It is evident from the evidence of the plaintiffs side that, there was a settlement arrived between the plaintiffs and defendants but the said settlement deed is not produced. PW.1 never stated anything about the possession of the suit properties. On the other hand, it is admitted by the 32 PW.1 that, the husband of the defendant No.1 was a stamp vendor and after the marriage he was residing separately along with his wife and daughter. It is also admitted that, the properties in question before this suit are all purchased by the husband of the first defendant out of his own earning. It is clearly admitted in the cross-examination of PW.1 that, the defendants No.1 & 2 were residing with deceased M.A.Khader Jeelani during his life time. It is also clearly admitted that, the said M.A.Khader Jeelani is having love and affection towards the defendants. He has also admitted that, during the life time of said M.A.Khader Jeelani they are all residing separately. He has also admitted that item 'I' of the suit schedule properties is a shop and plaintiff is taking rent of it.
25. PW.2 Syed Kalemuddin is stated to be a witness for alleged panchayat held between plaintiffs & defendants. But no settlement deed is produced in this 33 case. Therefore his oral evidence will not help the plaintiffs in any way. Even his cross-examination reveals that, he is not having information about the suit properties.
26. Against this to prove the 'Gift' the defendant No.1 has given her evidence. In her examination in chief she has reiterated the contention of written statement and denied the plaintiffs case. She has clearly stated that, the said M.A.Khader Jeelani prior to his death in order to avoid complication in respect of suit properties which are standing in his name orally gifted the suit properties in the presence of witnesses and it was accepted by defendant Nos.1 & 2 and the possession of all the suit properties except 'E' properties was handed over the defendants. In token of respect to the said M.A.Khader Jeelani the defendants did not take steps to change the mutation of the suit properties in their name. Though this witness is cross-examined at length, 34 but nothing is elicited so as to disbelieve her evidence. On the other hand, contrary to the admission made by PW.1 a suggestion was made that, there was no love and affection between them. Some suggestions were made which are all denied. In the cross-examination she has stated that, one Shamanna Ghali, Kazisab and her brothers were present and Khaji Gouse Mohammed was also present. She has also stated that, now they are dead except the two witness's DW.2 Manjalesab and DW.6 Mohammed Saleem
27. The DW.2 Manjalesab has stated in his examination in chief that one year prior to his death the said M.A.Khader Jeelani has orally gifted his self acquired properties to defendants. They have accepted it and the possession was also delivered to them. He has further stated that, he is cultivating the suit lands on crop share basis from the year 2011. Though he was cross-examined there is nothing in his cross- 35 examination to disbelieve his evidence. Simply because he has no document to show about he cultivating the suit land, his evidence cannot be disbelieved.
28. DW.3 Mohammed Khasim is the witness to the said oral gift who is alive. The others are admittedly dead. In his examination chief the said DW.3 has stated that, defendant No.1 is his elder sister and he has also stated that, in the presence of his brother Abdul Salim, Adbul Sattar, Shamanna Ghali and Khaji Gouse Ahmed the said M.A.Abdul Khader Jeelani has orally gifted the said properties one year prior to his death. The defendants have accepted it. The possession was also handed over to them. He was also cross- examined at length. He has stated that, the said M.A.Khader Jeelani has gifted the properties in April 2011, but he could not say exact date. He has also stated that, no document was written on that day. Admittedly the said M.A.Khader Jeelani died on 20-06- 36 2012. So the evidence of DW.3 that gift was made one year prior to his death appears to be probable. Because this witness has given evidence on 22-03-2018 practically seven years after the said gift and six years after the death of said M.A.Khader Jeelani. When it is a oral gift it will be difficult for the parties that too who are working as coolies to remember the exact date. Therefore, his evidence corroborates the defense of the defendants.
29. DW.4 Mohammed Sajid the another brother of defendant No.1 has also stated about the oral gift made in favour of defendants by M.A.Khader Jeelani. Ofcourse he is not a witness to the said gift but he being a relative his evidence assumes importance. Nothing is elicited in the cross-examination.
30. DW.5 Raju is a tenant in the shop of M.A.Khader Jeelani. He has also stated that, the said M.A.Khader Jeelani one year prior to death has stated 37 to him that, he has made a oral gift to the defendants and they have taken possession, so he is giving rent to the defendants from the year 2011. So his evidence also supports defendants contention about oral 'Gift'. There is nothing in his cross-examination to disbelieve his evidence.
31. DW.6 Mohammed Saleem is another witness to the said oral gift. He has also stated that the said M.A.Khader Jeelani prior to one year of his death had gifted the properties to the defendants No.1 & 2 and handed over the possession to them in his presence and in the presence of his brother DW.3 Mohammed Khasimsab, Abdul Sattar, Shammana Ghali and Khaji Gouse Ahmed. In the cross-examination the plaintiffs themselves have elicited that he was a 'D' group employee and in service register and school register his name is mentioned as Abdul Saleem. Even he has stated that, he has informed the advocate who has prepared his examination affidavit, that his name is 38 Mohammed Abdul Saleem. He has also stated that, though he has informed the advocate to change it but the advocate has confused himself about the name. So it is evident that, he is the same Abdul Saleem who was present at the time of oral gift as stated by PW.1. Simply because he could not state whose houses situated behind the first plaintiff's house his evidence cannot be disbelieved. His evidence also corroborates the evidence of DW.1 about oral Gift.
32. Therefore, from the evidence of the defendants side it is evident that, the deceased M.A.Khader Jeelani was residing with the defendants till his death. It is also admitted by plaintiffs that, the said M.A.Khader Jeelani was having love and affection towards defendants. It is also evident that, the defendants are in possession of the suit properties. The properties gifted are admittedly acquired by said M.A.Khader Jeelani out of his own earnings. The plaintiffs are residing 39 separately from said M.A.Khader Jeelani since 35 years. They have also acquired some properties which are admittedly standing in their name.
33. As per the principles referred above the writing is not essential to the validity of the 'Gift'. Only conditions essential are declaration of the Gift acceptance of Gift either express or implied and delivery of the possession. If these things are there Gift is complete. The evidence of DW.1 which is corroborated by DW.3 & DW.6 who were admittedly present at the time of declaration made by the deceased regarding the 'Gift'. Simply because the names of defendants were not mutated it cannot be presumed that, there is no transfer or delivery of possession. Mutation of name is not essential for delivery of possession for valid 'Gift'. No written document is required in such case. Therefore the finding of the trial court that, defendant No.1 and her witnesses have not stated the date of the 'Gift' so 40 the 'Gift' is not proved cannot be accepted. In fact there is nothing to show that the defendant No.1 is highly educated woman. The witnesses have given evidence in the year 2018 i.e., practically seven years after the said 'Gift'.
34. When witnesses are rustic persons, their behavioural patterns, perceptions and habits must be taken into consideration and appreciated. Approaches that are too sophisticated, based on assumptions about human conduct cannot be applied to people accustomed to ways of village, as they may not have keep sense of time. Fringe variations, discrepancies in details, contradictions in narration, and embellishments in non essential parts cannot militate against veracity of the core of testimony, if there is an impress of truth and conformity to probability in substantial fabric of plaintiffs case.
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35. The second ground for rejecting defendants case about oral Gift is that the properties were not transferred in the name of defendants which is also not tenable as they were residing with the said M.A.Khader Jeelani till his death. There cannot be any separate possession by them as they were all residing together. The other ground for rejection of the 'Gift' by the trial court is that, the M.A.Khader Jeelani being a stamp vendor could have reduced it into writing the said 'Gift'. Such a presumption is also not tenable as Mohammedan Law itself provides for making oral 'Gift' provided the conditions stated above are fulfilled. Though the trial court has found the defendants No.1 & 2 owners in possession of the suit property but has wrongly appreciated the law regarding 'Gift' under Mohammedan Law this has resulted in answering Issue No.2 against the defendants. On the other hand, the defendants have adduced legally admissible evidence to prove the oral 'Gift'. The pleadings and evidence of both 42 the parties clearly indicates that there are no reasons to disbelieve the evidence of defendants regarding oral 'Gift'. The joint residence of the defendants with M.A.Khader Jeelani, the love and affection towards them by said M.A.Khader Jeelani were all indicative that, the said M.A.Khader Jeelani out of love and affection has made oral 'Gift' in favour of defendants which is accepted by them and proved by them by evidence of witnesses DW.2 and DW.5 before whom declaration about Gift is made.
Therefore, when once 'Gift' is proved and issue No.2 is answered in favour of the defendants then plaintiffs will not get any share in the suit schedule properties 'A' to 'D' & 'F' to 'K' as they remains no residue in the properties of M.A.Khader Jeelani. Though the Trial Court has not given relief to the plaintiff in respect of property gifted to the defendants, but it has answered Issue No.2 in the Negative by not properly appreciating the principles of Mohammedan Law 43 regarding oral gift which are stated above. Accordingly, issue No.2 of Trial court will have to be answered in the affirmative holding that the defendants have proved the oral Gift in their favour. In view of the above discussion, the dismissal of the suit by the Trial Court cannot be interfered.
Accordingly I pass the following:
ORDER The Regular First Appeal is dismissed.
The Judgment and decree in O.S. No.152/1996 dated: 21-06-2018 passed by Senior Civil Judge Chincholi is hereby confirmed.
The parties are directed to bear their own costs.
Send back the secured records to the concerned court forthwith.
Sd/-
JUDGE MNS.
CT/VK