Patna High Court
Mosst. Saimunissa vs Sk. Mohiuddin And Ors. on 1 March, 1990
Equivalent citations: AIR1991PAT183, AIR 1991 PATNA 183
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This First Appeal arises out of a judgment and decree dated 15th September, 1983 passed by Sri D. N. Pathak, Special Subordinate Judge, Ranchi in Partition Suit No. 201 of 1982, whereby and whereunder the said learned court dismissed the plaintiff-appellant's suit for partition.
2. The facts of the case lie in a very narrow compass.
3. Admittedly the properties in question belonged to one Maksud AH, the father of the parties. He died in the year 1966 leaving behind his wife Mosst. Raufan, who was originally impleaded as defendant No. 6 (since deceased) and the plaintiff-defendant Nos. 1 to 5 as his daughter and sons respectively.
4. According to the plaintiff, in a riot which broke in the year 1967, her husband was killed and she began to stay with the defendants. According to the plaintiff, she constructed a house over a portion of plot No. 2645 of Mauja Bargain P.S. Bariatu, Distt. Ranchi and continued to stay there.
5. The plaintiff in the aforementioned suit prayed for the following reliefs :--
"(a) That a decree for partition of the share over the property in suit of the plaintiff be passed and confirmation of possession adjudicating the right, title and interest over the house constructed by the plaintiff along with the land appertaining thereto be passed.
(b) That in the alternative if the plaintiff is not found in possession over the land in suit a decree for recovery of possession be passed."
6. The case of the defendants, on the other hand is that the aforementioned Maksud All, during his lifetime made an oral gift in favour of defendant No. 6 in lieu of dower debt. According to the said defendant, in view of the aforementioned oral gift, defendant No. 6 became absolute owner of the properties in question and had been in exclusive possession thereof.
7. The further case of the defendant is that by virtue of a registered deed of sale dated 10-4-1971, the defendant No. 6 transferred her right, title and interest in the properties in suit in favour of her sons the defendant Nos. 1 to 5, the defendants, therefore, contended that the plaintiff did not acquire any interest whatsoever in the properties in suit by inheritance or otherwise.
8. In view of the pleadings of the parties aforementioned, the learned trial court framed the following issues :--
"1. Is the suit as framed maintainable?
2. Has the plaintiff got any valid cause of action or right to sue?
3. Is the suit barred by limitation and adverse possession?
4. Is there existence of unity of title and possession between the parties of this suit in respect of the suit properties?
5. Is the plaintiff entitled to get a decree for partition along with other reliefs in respect of the suit properties, if so, to what extent and in respect of which of the properties?
6. To what other relief or reliefs, if any, is that plaintiff entitled?"
9. The learned trial court while deciding issues Nos. 3, 4 and 5 held that in view of the fact that the defendant No. 6 transferred the properties in suit in favour of the defendant Nos. 1 to 5, there being no unity of title and unity of possession amongst the parties, the suit for partition was not maintainable.
10. The learned trial court further held that a simple suit for partition also is not maintainable.
11. Mr. V. Shivnath, the learned counsel appearing on behalf of the appellant drew my attention to the fact that in this Court, the appellant had paid the ad valorem court-fee to the extent of her share on the plaint as also on the Memo of Appeal.
12. The learned counsel further submitted that an oral gift in lieu of dower debt is not valid, and in support of this proposition, the learned counsel relied upon a decision of this Court in Mohhamed Usman Khan v. Amir Milan (AIR 1949 Patna 237).
13. The learned counsel, therefore, submitted that in law, the defendant No. 6 did not acquire any right, title and interest in relation to the properties in suit by reason of the said purported oral gift and thus the defendant Nos. 1 to 5 also did not derive any right, title and interest by reason of the deed of sale dated 10-4-1971 executed by the defendant No. 6 in favour of the defendant Nos. 1 to 5.
14. According to the learned counsel, therefore, the status of the parties being that of co-owners, the possession of one co-owner shall be possession of all the co-owners and thus the suit filed by the plaintiff for partition as also for the other relief/reliefs was maintainable.
15. Mr. Prasad, the learned counsel appearing on behalf of the respondents, on the other hand, submitted that the suit was not maintainable as the plaintiff did not pay the requisite court-fees and the court-fees were paid as if the suit was a simple suit for partition. The learned counsel drew my attention to the prayer made by the plaintiff in the plaint and submitted that plaintiff ought to have paid ad valorem court-fees on the market value of the properties in suit.
16. The learned counsel further submitted that in view of the fact that admittedly, Maksud Ali died in the year 1966, it must be held that as he made the oral gift in favour of his wife during his lifetime, and in view of the fact that the suit was instituted in the year 1982, the defendant Nos. 1 to 5 must be held to have acquired title by prescription, even if it be held that the said oral gift by Maksud Ali in favour of his wife was not a valid one.
17. In this view of the matter, the following questions arise for consideration in this appeal :--
A. Whether the suit filed by the plaintiff was maintainable?
B. Whether the oral gift made by Maksud Ali in favour of his wife Mosst. Raufan was valid in law? C. Whether the plaintiff was entitled to a decree as prayed for?
18. Re : Question-A It is true that at the time of the filing of the suit the plaintiff although claimed a relief for declaration of title and confirmation of possession or in the alternative recovery of possession filed the suit paying the court-fee of Rs. 15/- only. However, in this Court, the appellant filed the deficit court-fee stamps both on plaint and also on memo of appeal, when the aforementioned defect was pointed out by the Stamp Reporter of this Court.
19. It is now well known that as the plaintiff had been claiming moiety of share she was bound to pay court-fee only on the market value of the property to the extent of her own share and not on the market value of the entire property.
Reference, in this connection may be made to Abinash Chandra Chakravarty v. Smt. Kamla Devi (AIR 1950 Patna 317).
20. Although, the court-fee having not been paid, the suit of the plaintiff was not maintainable, in my opinion, the said defect having been removed by the plaintiff-appellant by paying court-fee in this Court both on plaint as also on the memo of appeal, now no exception can be taken with regard to the maintainability of the suit.
21. Re-question - B In the written statement, the defendant did not plead as to when Maksud Ali gifted the properties to his wife.
Under the Mohammedan Law, an oral gift is permissible. A gift is a transfer of property or right by one person to another made voluntarily and without consideration.
22. In order to constitute a valid gift; (a) declaration must be made orally or in writing of the gift by the doner or his agent; (b) by the acceptance of the gift expressly or impliedly by or on behalf of donee and (c) by the delivery of possession of the subject of the gift to the donee.
23. Therefore, it is clear that one of the essential ingredients of a gift is voluntarily transfer of a property by one person in favour of another without any consideration.
24. A dower debt being a debt payable by husband to his wife, a gift in lieu of dower debt cannot be held to be valid, inasmuch as.
repayment of a dower debt being a consideration, no property can be transferred by way of a gift in lieu thereof.
This aspect of the matter has been considered by a Division Bench of this Court in Md. Usman Khan v. Amir Mian (AIR 1949 Patna 237).
25. In the aforementioned decision, it has been held that oral gift of immoveable property by a Mohammedan in favour of his wife in lieu of dower debt is not valid, inasmuch as, such a transaction is not a true Hiba-bil-Ewaz but a sale and so the same cannot be done only by virtue of execution of a registered deed.
26. In this view of the matter, it must be held that the purported oral gift made by the plaintiff in favour of the original defendant No. 6 was not valid.
27. In this view of the matter, upon the death of Maksud AH, the property devolved upon the parties to the suit and original defendant No. 6, since deceased. If by reason of the said purported oral gift, Mosst. Raufan did not derive any right title and interest of Maksud AH, she also could not have transferred the interest of Maksud AH, by reason of the purported deed of sale dated 10-4-1971 in favour of the defendant Nos. 1 to 5. But, as in the meanwhile, she had also derived some inteiest by reason of inheritance upon the death of Maksud AH, the deed of sale dated 10-4-1971 is void to the extent of her share which devolved upon her by reason of inheritance on the death of Maksud AH.
28. In this view of the matter, it must be held that the purported oral gift by Maksud AH in favour of Mosst. Raufan was not valid.
29. Re Question - C It is now well settled that possession of a co-owner enures to the benefit of all unless a co-owner proves that he has ousted the other co-owners so as to acquire title by prescription.
30. In Paragraph-8 of the written statement the defendants have merely made a bold statement that the suit was barred by limita-
tion and adverse possession.
31. In fact, in the written statement, a case of ouster of the plaintiff has not been made out at all.
32. Further, from a perusal of paragraph- 15 of the judgment of the learned trial court, it appears that the defendant-respondents did not press the issue of limitation and adverse possession at the time of argument.
33. In this view of the matter, in my opinion, it is not open to the respondent to raise the question of acquisition of title of the defendant Nos. 1 to 5 by prescription, in this appeal.
34. Thus, the judgment and decree passed by the learned court below cannot be sustained. Evidently, the share of the plaintiff in the suit properties would be 1/12th.
35. Thus, the plaintiff would be entitled to a declaration of her title in respect of her 1/12th share in the properties in the suit along with defendant Nos. 1 to 5.
36. Let a preliminary decree be prepared declaring the plaintiffs 1/12th share in the suit property.
37. In the result, the appeal is allowed and the suit of the plaintiff is decreed to the aforementioned extent.
However, in the facts and circumstances of the case, the parties are directed to bear their own costs throughout.