Karnataka High Court
Abdur Rahman And Ors. vs Athifa Begum And Ors. on 11 April, 1997
Equivalent citations: ILR1998KAR1284, 1997(3)KARLJ570, AIR 1998 KARNATAKA 39, (1998) ILR (KANT) 1284, (1997) 3 KANT LJ 570, (1997) 4 CURCC 453
JUDGMENT Chidananda Ullal, J.
1.This R.F.A. is directed against the Judgment and Decree dt. 30.6.92 in O.S.No. 3879/84 on the file of the Additional City Civil Judge, Bangalore, whereby the said City Civil Judge had dismissed the suit of the Appellants.
2. I heard the learned Counsel for the appellants Sri Ilyas Hussain and Sri Anand appearing for M/s. Rego and Rego for the respondent No. 1 Respondents No. 2 to 4 are served with notice but they remained absent.
3. The facts in brief of the case are as follows :
The appellants herein had originally filed O.S.No. 3879/84 on the file of the Additional City Civil Judge, Bangalore (hereinafter for convenience referred to as the City Civil Judge), for partition and separate possession of the suit schedule 'A' movable properties and suit schedule 'B' immovable property. In the plaint of the appellants the suit schedule 'A' movable and suit schedule 'B' immovable properties are described as follows :
SCHEDULE - 'A' Movables
1. Wooden and Iron Furniture worth about Rs. 2,000/-
2. Teak wood boxes containing antique utensils worth about Rs. 5,000/-
3. Bank account in the State Bank of Mysore, Branch Lady Curzon Road, Bangalore to be ascertained from the Bank authorities."
"SCHEDULE - -B' Immovables All that the piece and parcel of land and building Corporation old No. 11, New No. 20, Victoria Road, Civil Station, Bangalore, situated behind two properties facing Victoria Road, bounded to the North by passage 10 feet wide, to be provided leading to old No. 11/2, New No. 22, Victoria Road, on the South by Old No. 11/1, New No. 21, Victoria Road, on the East by 30 feet approach road, leading to Victoria Road, and on the West by premises No. 11/2 New No. 22, Victoria Road, measuring 85 feet on the east and 85 feet in the west and 90 feet in the north and about 85 feet in the south. Building is about 60 years old and in dilapidated condition."
4. The appellants' case is that the original plaintiff No. 1 (since dead) the father of the appellant No. 2 to 5 herein are the sons and daughters of one Amatus Samad, the eldest sister of the respondent No. 1 herein and the said Amatus Samad died on 19.11.82. That the original plaintiff No. 1 and the appellant No. 2 to 5 are the only heirs and successors of the said Amatus Samad. The said Amatus Samad and one Amathul Hadi and one Abdul Aleem were the true sisters and true brother and they were the daughters and son of late Mohammad Isahaq Saheb from his second wife. That Amathul Hadi with whom the respondent No. 1 herein lived remained in exclusive possession of the said property till her death on 23.12.80 at Bangalore. That Amathul Hadi was a spinster during her lifetime and she had no issues. That at the time of her death, the wife of the original plaintiff No. 1 before the learned City Civil Judge (since dead and represented by appellants 2 to 5 herein) by name Smt. Amatus Samad and the appellants No. 2 to 4 herein being the sons of late Abdul Aleem, the predeceased true brother of Amathul Hadi were alive to succeed to her properties as heirs and successors as per Mohammedan law of Inheritance.
5. That the respondent No. 1 is the daughter of one Mariam B1 who died in the year 1940 and as such predeceased her sister the above said Amathul Hadi. That Amathul Hadi left movables and immovable properties at the time of her death more fully shown above. The appellants claim in their plaint that the above said properties both movables and immovables are the joint properties of themselves and their father (since dead) and further of the respondent No. 2 to 4. According to them, with the demise of Amathul Hadi in the year 1980, her surviving sister, Amatus Samad, the mother of the appellants who died in the year 1982 succeeded to one half of the properties. Hence, according to them, the father of the appellants and the appellants herein were entitled to for one half of the share in the suit schedule 'A' and 'B' properties. They further averred that the respondents No. 2 to 4 are also entitled to for the other one half share in the suit schedule 'A' and 'B' properties. That the appellants and their father (during his lifetime) demanded the partition and separate possession of the suit schedule properties from the respondent No. 1 in view of the fact that the same are now in her hands, that the respondent No. 1 since did not oblige them, the appellants herein and their father, plaintiff No. 1 in the suit resorted to the above suit before the learned City Civil Judge for partition and separate possession by meets and bounds of one half of their share in the suit schedule properties.
6. That the respondents No. 2 to 4 being the defendants Nos. 2 to 4 before the learned City Civil Judge having been served with the summons remained absent and it is the respondent No. 1 herein being the defendant No. 1 before the learned City Civil Judge had contested the suit of the appellants and their father.
7. The respondent No. 1 had filed a detailed written statement as against the plaint averments contending interalia that late Amathul Hadi was her maternal aunt and she died in the year 1980 as a spinster. That the said Amathul Hadi was the step sister of one M.A. Wasi, her maternal uncle. The said M.A. Wasi was employed as a draughtsman in Survey of India and he had acquired number of immovable properties including the suit schedule 'B' Immovable property and he also died as a bachelor in the year 1980. That during his lifetime, M.A. Wasi supported all his sisters, particularly Amathul Hadi who was a spinster. Amathul Hadi also looked after M.A. Wasi with great love and devotion and it is for that reason, M.A. Wasi out of love and affection towards Amathul Hadi gifted the suit schedule 'B' immovable property to her by way of gift deed dated 24.3.54 and that Amathul Hadi and the respondent No. 1 herein were living together as members of one family. That the respondent No. 1 also remained as a spinster and for "some time she was employed in K.S.R.T.C. as a clerk and was getting a salary of Rs. 10000/- per month and she also maintained both M.A. Wasi and Amathul Hadi, during their life time. That the respondent No. 1 being the daughter of Mariam B1, the sister of late Amathul Hadi and that the respondent No. 1 having lost her mother at her tender age of 6 years, she was brought up by Amathul Hadi as her own daughter and it is because of that, out of love and affection Amathul Hadi. and further in consideration of the services rendered by respondent No. 1 to her and in view of R.1 being a spinster and further to provide for her maintenance, settled the suit schedule 'B' immovable property in her name and favour by a deed of settlement dated 7.11.75 duly registered before the jurisdictional sub-Registrar. That therefore, the respondent No. 1 claimed that she was the absolute owner in possession of the suit schedule 'B' immovable property and that the said property stands in her name and she had since paid taxes in respect of the same to the Corporation, City of Bangalore.
8. At the outset, she contended in her written statement that neither the appellants herein nor their father, the original plaintiff No. 1 (since dead and represented by the appellants herein before the learned City Civil Judge as his L.Rs.) had any right, title and interest over the suit schedule properties. She further denied that she was managing the properties of late Amathul Hadi. It is her further contention that the suit filed by the appellants and their father before the learned City Civil Judge was belated and filed with a malicious intention to harass her and that there was no cause of action for institution of the suit. In the written statement, the respondent No. 1 herein had also contended that the Court fee was insufficient as the appellants were not in joint possession of the suit property as claimed by them in their plaint.
9. In addition to the above, by filing an additional written statement, the respondent No. 1 had further contended that the suit schedule 'B' immovable property originally given to Amathul Hadi by way of gift by M.A. Wasi in 1954 was a building site and that thereafter Amathul Hadi put up a construction after obtaining sanctioned plan from the Corporation, City of Bangalore and while putting up building, certain land was taken away by the Corporation for providing for road and access to the surrounding building. That an extent of 30' x 25' was thus taken away by the Corporation out of the original extent. That the land measuring 10' x 90' in the suit schedule immovable property on the northern side was also taken away for providing passage from the approach road to premises No. 11/2, New No. 22 and similarly, land measuring 10'x85' was taken away on the southern side for providing passage. That the suit schedule 'B' property therefore was correctly marked in the settlement deed dated 7.11.75 executed by Amathul Hadi in the name of the respondent No. 1.
10. On completion of the pleadings by the parties, the learned City Civil Judge had framed the following five issues and further an additional issue as below :
"1. Whether the plaintiffs prove the relationship with late Sri Amathul Hadi alias Aiman Bi daughter of Sri Mohammed Isahaq Saheb as shown in para 4 of the plaint?
2. Whether the 1st defendant proves that the said Amathul Hadi has validly settled the suit property in her favour by a settlement deed dated 7.11.75 and the plaintiffs cannot claim anything in the same?
3. Whether the vacation of the suit is correct and the court fee paid is sufficient?
4. Whether the plaintiffs prove that they are entitled to partition or separate possession of the suit scheduled property?
5. What decree or order?
Additional Issue :
Whether the plaintiff proves that the 'B' schedule property measures in all 90'x85' and that the entire area is available for partition?"
11. As the burden of proving Issue No. 2 was on the respondent No. 1, she had examined herself as D.W.1 and she further examined one S.M. Ahmed a practicing Advocate of Civil Station as D.W.2 and marked 8 documents as Exs.D.1 to D.8. On that issue, the plaintiffs have examined one Abdul Rahim plaintiff No. 1 as P.W.1 and further got appointed a Court Commissioner Sri J.M. Lobo, an Advocate and he was examined as P.W.2.
12. On hearing the parties and on appreciation of evidence on record on Issue No. 2, the learned City Civil Judge had recorded his findings on the issues in para No. 10 of the impugned Judgment as follows :
"Issue No. 2 : In the affirmative, Issue No. 3 : In the affirmative, Issue No. 4 : In the negative, Issue No. 5 : As per final order, Addl. Issue : Finding is not necessary."
13. Finally, the learned City Civil Judge in recording his findings as above, dismissed the suit of the appellants for partition and it is as against that judgment and decree, the appellants herein are before this Court with the instant appeal to challenge the same.
14. The learned Counsel for the appellants while taking me through the facts of the case, the evidence on record and further the impugned Judgment and the decree, argued at the outset that the settlement deed marked at Ex.D.2 executed by Amathul Hadi in favour of respondent No. 1 is a document totally unknown to Mahammedan Law, for according to him, it was neither a gift deed nor a will and therefore his submission is that the settlement deed is of no consequence and relief to the respondent No. 1 to base her claim that the suit schedule 'B' immovable property had devolved upon her thereunder.
15. He further submitted that there is no dispute as to the relationship of the parties. As set out as to the relationship of the parties, Sri Ilyas Hussain submitted that originally one Mohammed Isahaq Saheb who died in 1935 had two wives. The suit schedule 'B' immovable property belonged to one M.A. Wasi who was the son of the said Mohammed Isahaq Saheb born to his first wife. The said M.A. Wasi had gifted the suit schedule 'B' immovable property to one Amathul Hadi. The said Amathul Hadi was one of the daughters of the second wife of Mohammed Isahaq Saheb. Mohammed Isahaq Saheb had in all five children born to his second wife and they are Amathul Hadi, Amathul Musawir, Mariam B1 - the mother of the respondent No. 1 and Amatul Samad - the mother of the appellants herein and husband of the plaintiff No. 1 before the learned City Civil Judge and Abdul Aleem - the father of the defendants No. 2 to 4 before the Court below and the Respondents herein. Or in other words to say that the parties herein are the grand children of Mohammed Isahaq Saheb. Sri Ilyas Hussain argued that under Section 149 of the Mohammedan Law, for a valid gift deed the three conditions must be present. The three conditions are, firstly that there should be a declaration of the gift by the donor, secondly that the gift so made had to be accepted by the donee and thirdly that there should be delivery of possession of the subject property gifted by the donor to the donee either physical or implied.
16. In this regard, Sri Hussain drew my attention to Sections 149, 150 and 152 of the Mohammedan Law. Section 149 deals with the above three essentials of the gift, whereas Section 150 deals with delivery of possession and Section 152 deals with delivery of possession in respect of the immovable property. While adverting to Ex.D.2 - Settlement Deed executed by Amathul Hadi in favour of the respondent No. 1 herein, Sri Hussain submitted that all the ingredients as set out in Section 149 of the Mohammedan Law with regard to the gift are totally absent. He further submitted that there was no delivery of possession by Amathul Hadi in favour of the respondent No. 1 in pursuance of Ex.D.2 - Settlement Deed, for according to him, in no part of Ex.D.2 it had been stated therein that the possession of the subject property was in fact made over to the respondent No. 1. He further pointed out that in Ex.D.2 there is no mention even as to making over the document of title to the respondent No. 1, showing symbolic delivery of possession of subject property. While taking me through the evidence of the respondent No. 1, he pointedly argued that even according to respondent No. 1 (examined as D.W.1) it is not her case that there was delivery of possession to her either physical or implied. He so argued for the reason that she did not depose in her evidence either to say that the subject property was made over to the respondent No. 1 physically or to say that the subject property was made over to the respondent No. 1 physically or to say that the document of title was made over to her to connote symbolic delivery of the suit schedule 'B' immovable property.
17. He had also drawn my attention to the fact that subsequent to the execution of Ex.D.2 by Amathul Hadi in the year 1980 down to the date of her death on 23.12.80, neither the tenancy in respect of the tenements in respect of the subject property were attorned nor the respondent No. 1 cared to get the revenue records in the Corporation, City of Bangalore, mutated or changed to show that the respondent No. 1 was the owner having been gifted with the subject property under the registered settlement deed - Ex.D.2. He further submitted that this Court should not miss the situation that all the entries in the Revenue Records pertaining to the subject property was changed in the name of the respondent No. 1 only after and subsequent to the date of death of Amathul Hadi. Therefore, his submission is that, under Ex.D.2 when there was no delivery of possession in respect of the subject property by Amathul Hadi - the donor to the respondent No. 1 - donee, cannot be construed under Mohammedan law as a valid gift. Hence, he submitted that Ex.D.2 has to fail and that being so, the respondent No. 1 does not get any right, title and interest thereunder.
18. Sri Hussain had cited the following decisions in support of his argument. They are : 1950 Mad.L.J. page 209, wherein the High Court of Judicature at Madras held as follows :
"Where a Muhammadan executes a settlement deed in respect of property in the hands of tenants and reserves to himself the right to receive rents during his lifetime and also undertakes to pay municipal taxes, it cannot be said that inspire of these, there is sufficient delivery of possession as required by Mohammedan Law by the mere declaration to that effect in the document "I have delivered possession of the property to you even now" without its being followed by any attornment of the tenants to the donee or any perception of the rents and profits by the decree."
He further cited the decision in to the effect that a gift to be valid gift under Mohammedan Law, a statement in the gift deed by the donor to the effect that the possession had been delivered to donee is not conclusive, but only gives rise to a rebuttal presumption and further that delivery of possession is quite essential even when the deed of gift is registered. In the above decision, the Court held as follows :
"Under the Mohamedan Law a recital in the gift deed that possession has been delivered to the donee of the property gifted gives rise to a presumption only if such delivery and the presumption may be rebutted by those challenging the gift. The presumption may be rebutted by establishing that the subsequent conduct of the donor is inconsistent with the making of the gift or by demonstrating the patent improbability of what is stated by the recital. The subsequent conduct of the donor has been considered by the Courts in India as of great relevance in determining whether possession had been delivered and a valid gift completed.
"One of the three essentials of a gift under the Mohammedan Law is the delivery of possession of the subject of the gift by the donor to the donee. Registration of a deed of gift does not cure the want of delivery of possession nor is the mutation of names a valid substitute for delivery of possession. Mutation of names is not necessary to complete the transfer of possession. But the delivery of possession contemplated is not always the physical delivery. The delivery should be such as the subject of the gift is susceptible of. A constructive delivery, and in some cases a symbolic delivery has been held to be a good and sufficient compliance with the requirements of the law."
19. Sri Ilyas Hussain also relied upon the following decisions in support of his argument AIR 1955 SC p. 1205 and AIR 1955 SC p. 1205 is to the effect that a gift deed under the Mohammedan Law need not be in Writing, nevertheless, the essential conditions for the valid gift deed are a must. The Supreme Court in the case held as follows :
"Though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration act; a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift."
is on the point that in a gift under Mohammedan Law, the registration of the gift deed cannot dispense with delivery of possession which is one of the essential requirements of a valid gift deed under the Mohammadan Law. In para No. 18 of the Judgment, the Court had observed as follows :
"18. As regards question No. 4 the deed of gift dated 5.8.35 does no doubt refer to house in Kot Mohalla as having been gifted by Mohammad Khan to his son Asgar Hussain, but the learned - Assistant Custodian discards this deed of gift on the ground that there had been no delivery of possession by Mohammad Khan to his son and even subsequent to the deed of gift he continued to be in possession. The deed is no doubt registered, but such registration cannot dispense with one of the essential requirement of a valid gift deed namely delivery of possession, Vide Ismail v. Ramji, ILR 23 Bom. 682 and Yahazullah Sahib v. Boyapati Nagayya, ILR 30 Mad. 519. Thus the view taken by the Assistant Custodian on his estimate of facts was a competent view and the finding cannot be touched in this petition under Article 226 of the Constitution. But even assuming that the gift deed is void the petitioners 2 and 3 as the daughters of the predeceased son of Mohammad Khan in the absence of any son or daughter are entitled to claim through Mohammad Khan leaving out of course 1/8th share of the widow."
In , the Kerala High Court held that the Mohammadan Law requires the gift of corpus itself and if there is anything repugnant to such a gift, such a repugnant condition would be invalid and that it is necessary that the gift should be of the corpus and that if the donor reserves to himself the right to be in possession of the corpus and the right to enjoy the same, there cannot be a valid gift under the Mohammadan Law.
In , the learned Single Judge of this Court held that under the Mohammadan Law when a property is gifted by the grandfather to his grand children living with him, it is enough if there is implied acceptance of the gift by the major grandson.
20. The sum and substance of the argument of the learned Counsel for the appellants is that when the suit schedule immovable property was gifted to the respondent No. 1 by way of settlement deed - Ex.D.2, the possession thereof was never made over to the respondent No. 1 at any point of time either under Ex.D.2 - Settlement deed or for that matter even thereafter by the author of Ex.D.2 -Amathul Hadi and that she held the possession thereof all through till her death .as if she was the absolute owner in possession. According to him, even if it is taken that Ex.D.2 in fact came to be executed by Amathul Hadi as asserted by the respondent No. 1, the said settlement Deed, Ex.D.2 is of no consequence and relief to her for the simple reason that under the Mohammadan Law, a gift without making over possession or the corpus of the property so gifted, the same cannot be held valid. Sir Hussain also submitted that it is the specific case of the appellant before the learned City Civil Judge that the subject property belonged to Amathul Hadi and in view of the fact that the mother of the respondent No. 1 by name Marian Bee predeceased Amathul Hadi as long back as in the year 1940 or 1942, the respondent No. 1 does not have any right of inheritance and it is the appellants on the one side and the respondents No. 2 to 4 on the other who are entitled to succeed to the subject property in one half share each thereof as mother of the appellant Amatus Samad & father of respondent 2 to 4. Amatus Aleem died subsequent to the death of Amathul Hadi and that when the respondent No. 1 having failed miserably before the learned City Civil Judge that Ex.D.2 - Settlement deed was either acted upon by Amathul Hadi or that the possession of the subject property was ever made over to her thereunder, the learned City Civil Judge would have as well decreed the suit of the appellants instead of dismissing the same.
Sri Hussain had also argued that a suit for partition by a Mohammadan cannot fail on the ground that the necessary parties (cosharers) have not been impleaded to the suit for partition and the same is for the reason that under the Mohammadan Law a definite share of sharer is well defined.
21. As against the above argument advanced by the learned Counsel for the appellant, Sri Ramdas learned Counsel for the contesting respondent No. 1 at the outset argued that the appellants herein have never challenged Ex.D.2 Settlement deed executed by Amathul Hadi who had admittedly become owner of suit schedule 'B' immovable property under a registered gift deed that came to be executed by her step-brother M.A. Wasi in the year 1954. According to Sri Ramdas, when the appellant did not challenge the settlement deed - Ex.D.2, there is nothing for them to complain before this Court in resorting to the instant appeal that the impugned Judgment and decree passed by the learned City Civil Judge is erroneous. He so argued for the reason that there was no pleading in the plaint of the appellant with regard to Ex.D.2 - Partition deed either to challenge the same or otherwise. In this context, he had also pointed out that the appellants herein in fact wanted to so plead in their plaint with regard to Ex.D.2 and it is for that reason, they have also resorted to I.A.No. 4 to amend the plaint averments and that despite that I.A. was allowed by the learned City Civil Judge, the appellants herein did not choose to carry out the amendment of their plaintiff and therefore according to him it is too late for them to now complain before this Court that their suit for partition was dismissed wrongly. In this context, Sri Ramdas further argued that there were exchange of notices between the learned Advocates for the appellants on the one side and the respondent No. 1 evidence by Ex.D.6 legal notice dt. 23.11.83 caused to be issued by the appellants and the reply notice dt.1.12.84 marked as Ex.D.7 caused to be issued by the respondent No. 1 herein. He further pointed out that for the reasons best known to the appellants, they have totally suppressed the said legal notice and the reply notice Exs. D.6 and D.7 respectively in their plaint. Sri Ramdas further submitted that the said conduct of the appellants is questionable and this Court has to take note of the said conduct.
22. Sri Ramdas further argued that even if the suit for partition is held to be just and proper, the same cannot succeed for the reason that all the co-sharers are not impleaded as parties to suit and as such, the suit has to be held as bad for non joinder of necessary parties. According to him, the other co-sharers are the three sons of one Abdul Baqui, the brother of M.A. Wasi.
23. While taking me through the evidence of P.W.1 (Appellant No. 2 herein) before the learned City Civil Judge, Sri Ramdas pointed out that the evidence to the following effect is without any pleading in their plaint and therefore, the same cannot be looked into by this Court.
"The late Amathul Hadi out of love and affection for this defendant whom she brought up as her own daughter and in appreciation of the service, care and devotion shown to her by this defendant and in view of her being a spinster and to provide for her settled the suit schedule immovable property on this defendant by a deed of Settlement dt.7.11.75 registered as document No. 2377/1975-76 in Book I volume 1891 pgs. 158 to 160 in the office of the Sub-Registrar, Shivajinagar, Bangalore. That ever since that date this defendant became the absolute owner of the suit schedule immovable property and has been in possession and enjoyment of the same as such owner. The khata stands in her name and the taxes as paid by her."
24. The above limb of the argument of Sri. Ramdas appears to be to canvass before me that the above piece of evidence cannot come to the aid of the appellants to decide their case. I will advert to that, little later when I discuss with regard to the evidence on record.
25. The next argument of Sri. Ramdas is that the appeal herein resorted to by the appellants before this Court is relevant if Ex.D.2 - Settlement deed does not stand the scrutiny of law before this Court in view of the fact that in passing the impugned Judgment and decree, the learned City Civil Judge had held that Ex.D.2 -Settlement deed was good and valid in law and that the contesting respondent No. 1 herein had become the absolute owner in possession of the same having the subject property devolved upon her thereunder.
26. Sri Ramdas while taking me through the written statement filed by the respondent No. 1 and further her evidence before the Learned City Civil Judge submitted that it is the consistent case of the respondent No. 1 that there was no suit schedule 'A' movable properties and that the suit schedule 'B' immovable property had devolved upon the respondent No. 1 under a duly executed Settlement Deed which according to him is nothing but a gift deed executed by the original owner - Amathul Hadi. Conceding the argument of the Learned Counsel for the appellants that for a valid gift under Mohammadan Law, declaration of gift, acceptance of gift and delivery of possession of the subject property so gifted either physical or by implication (symbolic) are a must, Sri Ramdas further submitted that under the Mohammadan Law it is very much lawful for the donee to retain the usurfuct (muasif) unto himself and to enjoy the same himself and that in such a even, a Mohammadan gift cannot be held invalid. In this context, Sri Ramda had drawn my attention to what are state in page No. 246 under the Chapter 'Life Interests' in the book under the title 'Outlines of Mohdn. Law' by Faize (4th Edition). The same reads as follows:
"The main distinction is this; with the right to take the produce is intimately connected the notion of time or duration; so that you may transfer the munafi, usufruct, for a specified time, but not the corpus. If the corpus is transferred, in Islamic jurisprudent, there can be no question of a time limit, it is the absolute transfer of ownership and is therefore for an indeterminate duration or, in ordinary perlance, for ever.
Therefore, according to Mohammadan Law as received in India, you can make a gift of the corpus; this is called hiba. Or you may make a gift of the usufruct; this can be done by the rules as to 'ariya, wasiyyat bil-manafi', tawrith and in various other ways. A life interest may therefore be considered as a transfer of the usufruct for a well-defined period and Sir John Beaumont has declared such interest to be valid in all schools of Mohammad Law in Sardar Nawarzish Ali Khan's case, where he says;
Limited interests have long been recognized under Shia Law. The object of 'Habs' is 'the empowering of a person to receive the profit or usufruct of a thing with a reservation of the owner's right of property in it. I have bestowed on thee this mansion...for thy life or my life or for a fixed period" is binding by seisin on the part of the donee. (Bail; II 226). See also Banoo Begum v. Mir bed Ali (g). Their Lordships think that there is no difference between the several Schools of Muslim law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools. Their Lordships feel no doubt that in dealing with a gift under Musllim law, the first duty of the Court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if on construction the gift is held to be one of limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest."
27. Sri Ramdas had also cited before me the following decisions in support of his above argument:
on the point that the Mohammadan Law makes a distinction between the corpus of gift (ayn) and usufruct (munasif) and that reservation of right in munafi as long as the ayn is transferred does not render the gift had.
AIR 1932 Privy Council P.13, wherein the Privy Council on the point of delivery of possession in a gift deed under Mohammadan Law held as follows:
"A gift of immovable property must ordinarily be completed by a transfer of possession and there is no difference on this point between Hanafi and Shiah law. In a gift by a husband to his wife the gift deed contained the statement; I deliver possession of the gifted property to my said wife;" the deed of gift was handed over to the donee as soon as it was registered.
Held; that the declaration in the deed was binding on heirs of donor and that actual vacation by the husband and an actual taking of separate possession by the wife was not necessary. The declaration made by the husband, followed by the handing over of the deed, was amply sufficient to establish a transfer of possession."
AIR 1964(4) SCR p.549, equivalent to , wherein it was held by the Supreme Court as follows:
"Held, that under Muhammadan Law a gift by a husband to his minor wife of immovable property accepted on her behalf by her mother is valid if none of the guardians of the property of the minor is available provided there is a clear and manifest intention to make the gift and the husband divests himself of the ownership and possession of the property."
wherein is paras 8 and 9 of the judgment, the Court had observed as follows:
"8......The reservation of the usufructs in favour of the donor during his life with authority to collect rents and profits as the agent of the donees did not make the gifts void under Mohammadan Law.
9. In none of these cases had possession been transferred by the donor and it was for that reason, that the gift was held to be not valid. These cases cited on behalf of the plaintiff are not applicable to the facts of this case where no possession was retained by the donor and whatever possession that the properties were susceptible of had been transferred to the donees. The reservation of the limited interest in favour of the donor in the usufructs of the properties did not derogate from the validity of the gifts themselves."
AIR 1956 Mad. p.514 Head Note (a):
"(a) Muhammadan Law - Gift - Absolute gift of corpus with reservation of usufruct - Validity - (Deed - Construction).
Where property is transferred by way of gift and the donor does not reserve dominion over the corpus of the property nor any share of dominion over the corpus but stipulates simply for and obtains a right to the recurring income during his life, the gift and the stipulation are both valid. The reservation of the usufruct does not by itself, make the gift of the property in question void under the Muhammadan Law, and that applies not only to shias but also to the Sunnis.
Held that the recitals taken as a whole indicated an absolute divestment of all the rights of the donor in the property with liberty to keep possession and enjoy the income from them till his death. The clauses could not be understood as creating a life estate with a vested remainder."
, wherein the Court held as follows:
"(A) Muhammadan Law - Gift - Gift of house - Conditions necessary - Donor and donee living in house, the subject matter of gift - Donor need not necessarily depart from house in order to make gift effective - There must be clear intention to make gift and to part with possession of property-Delivery and possession should not necessarily, in every case be effected to father as guardian of minor donee" (T.P.Act (1882), Section 122).
Held that the gift was valid. The settlement deed indicated a clear intention to part with possession of the property immediately, the fact that till the settle become a major the settler was to look after the property as guardian would not in any way detract from the fact that the property was transferred unconditionally to the settles. And the fact that the settler and the settles were to reside together in the property, would not in any way show that possession was not handed over."
, wherein with regard to conditions and validity of a gift under Mohammadan Law, the Court held as follows:
"Mohamadan Law - Gift - Conditions for validity - Gift simpliciter or life estate - Deed in question held created only a life estate and not a gift in futuro.A.S. 755 of 1969(Mad.) Reversed (Deed - Construction).
It is well established that in order to constitute a valid gift under the Mohammadan Law, the three necessary elements which constitute such a gift are, a declaration of gift by the giver, the acceptance of the gift by the donee which acceptance may be expressed or may be inferred by necessary implication and lastly delivery of possession of the subject matter of the gift by the donor to the donee. But in the course of time certain exceptions have been engrafted in the matter of the upholding of a gift notwithstanding immediate delivery of possession of the subject matter of the gift. One such exception is a case where the donor without reserving dominion over the corpus of the property or any share therein, stipulates only for a right to enjoy the income from the property during his lifetime or makes the gift subject to a condition that the donee shall pay the whole of the income from the property or the part thereof to a person of his choice during the lifetime of such a person. Though this appears to be an apparent exception to the generality of the rule embodyingthe three conditions which would make a valid gift, yet it is not really an exception. Reservation of a right to enjoy the income, though ordinarily called a life estate does not militate against the validity of the gift because the corpus of it is absolutely given over to a named individual and the condition whereby the income should be enjoyed either by the donor or his nominee does not detract from or violate the essence of a valid gift. If in a given illustration the subject-matter of the gift is sliced away by the donor, or the condition or restriction contemporaneously imposed by the donor, is so obvious that one would understand the gift as taking away a portion of the corpus of the gift, then Mohammadan Law does not accept it as a valid gift. The reason is obvious. By imposing such a restriction as above, the entirety of the property which is the subject-matter of the gift is not given away but only a portion thereto. This is not possible to make it a valid gift. If, however, the restriction or the condition is such whereby a right to enjoy the income from the gifted property is contemplated, and whether such enjoyment is by the donor or by his nominee, it would not tantamount to the taking away of a portion of the corpus of the property, but it is only a temporary right to enjoy the usufruct therefrom.
Held, on going through the document that only life estate was created in favour of the first defendant and not a gift in future and therefore, failure to give possession through the document in question did not affect validity of the transfer."
AIR 1937 All. 547 with regard to delivery of possession, the Court held as follows:
"(a) Mohammadan Law - Gift - Actual delivery of possession is not necessary where property gifted is incapable of physical possession - Gift by Co-sharer in exclusive possession of open piece of land to other co-sharer - Delivery of symbolical possession by stating in deed of gift that possession has been delivered to donee is enough.
Although in order to make the gift complete, delivery ofpossession is necessary under the Mohammadan Law, actualpossession is not necessary. All that is required is that stepsshould be taken to place the donee in a position to takepossession effectively and invest him with authority for thatpurpose. Actual possession is not necessary where the property gifted is not capable of being possessed physically."
AIR 1935 Cal.P.393, also with regard to delivery of possession. The Court held as follows:
"(c) Mohammedan Law - Gift - Gift of land in possession of tenants - lessees asked to give possession to donee - Document of title and documentary evidence placed in possession of donee to enable him to establish title and recover possession - Held there was sufficient delivery and gift and valid.
Where the donor of a leased property which formed subject matter of gift or his heirs did not appeal in the suit and did not challenge the gift and the donor had placed the documents of title and documentary evidence in the possession of the donee, put in his powers the means to establish title and recover possession from the lessees and had expressly asked the said lessees to give up possession to the donee.
Held: these acts amounted to such delivery of possession as the subject matter of the gift was capable of and that the gift was valid."
28. Having heard both sides, the points for my consideration are as follows:
1) Whether Ex.D.2 - settlement deed dt.7.11.75 executed by Amathul Hadi in favour of the respondent No. 1 in respect of the subject property is a gift and whether the same is a valid gift within the meaning of Section 148, 149 and 150 of the Mohammadan Law?
2) Whether the appellants herein are entitled to for partition of the subject property as prayed for by them in the suit?
3) Whether the impugned Judgment and decree passed by the Learned Sessions Judge is liable to be set aside and interfered with by this Court in the instant appeal?
29. Now I take hereunder, the above three points for consideration.
Regarding Point No. 1:
The appellants herein had originally filed a suit for partition in respect of two items of the properties. They are suit schedule 'A' movable properties and suit schedule 'B' immovable property. In view of the fact that the respondent No. 1 had denied in her written statement that there existed no such movable properties as set out in suit schedule 'A' properties and further in view of the fact that the appellants are also not serious in respect of the said movable properties, it appears to me that the whole case for partition as made out by the appellants herein before the Learned City Civil Judge hinges around Ex.D.2 - Settlement deed executed by Amathul Hadi in favour of the respondent No. 1. The same is referable to the suit schedule 'B' immovable property.
30. The Leaned Counsel for the appellants submitted that Ex.D.2 - settlement deed executed by Amathul Hadi was a deed totally unknown to Mohammedan Law, for, according to him the same is neither a gift deed nor a will and therefore he argued that under Ex.D.2 the respondent No. 1 does not get any right, title and interest thereunder. But, I do not have any hesitation to reject such an argument advanced by him for the reason that in same of the reported decision referred to above, wherever a Mohammadan had executed a settlement deed, the Courts have taken the same as gift deed and held the same valid provided the conditions of a valid gift under a Mohammadan Law are satisfied. That takes me to consider whether Ex.D.2 - settlement deed is a valid gift under the Mohammadan law. In the light of the above decisions cited by both sides with regard to the necessary conditions for a valid gift under the Mohammedan law and further in the light of the provisions under Sections 148 to 150 of the Mohammadan Law, the three essentials of a gift under Mohammadan law are as follows:
i) declaration of the gift by the donor, ii) acceptance of the gift so made by the donee and iii) delivery of the possession or the usufruct of the subject property so gifted.
31. Courts have consistently held that when there is no compliance of any of the above three essential conditions, the gift renders itself as invalid. As a matter of fact, the arguments advanced by both the sides are also to the above effect. Of course, it cannot be otherwise, for, compliance of the above three conditions is matter of law and therefore is not available for an argument opposed to the same. Therefore it appears to me that it is enough for me to examine whether Ex.D.2 - settlement deed executed by Amathul Hadi in favour of the respondent No. 1 is in compliance with the above three essential conditions or not. To consider the same, I feel it proper to quote the entire settlement deed in Ex.D.2. The same reads as follow:
"This deed of settlement is made and executed this 7th day of November, 1975 by Smt. Amatul Hadi, daughter of late Mohammed Ishak Sahib, residing at Old No. 1115A, New No. 224 Narayanpillay Street, Civil Station, Bangalore hereinafter called the Settlor of the one part and Smt. Arifa Begum, daughter of Sri late A.H. Khaleel Saheb, major, also residing at Old No. 115/A, New NO. 224 Narayanapillay Street, Civil Station, Bangalore hereinafter called the beneficiary of the other part;
WITNESSETH AS FOLLOWS:
Whereas the Settlor is the aunt of the beneficiary and whereas she has been very much attached to the beneficiary and whereas the settler herself has no children and is therefore desirous of making a suitable settlement in favour of the beneficiary and whereas in pursuance of the desire and with the object of making a suitable settlement upon the beneficiary the settler has decided to settle and transfer the immovable property bearing No. 11, New No. 20, Victoria Road, Civil Station, Bangalore.
Now therefore This Deed of Settlement Witnesseth:
That in pursuance of the above desire and with the object of making a suitable settlement upon the beneficiary who is dependent on the settlor the settlor transfers the schedule property by way of settlement upon the beneficiary to have and to hold the same absolutely and for every free of all encumbrances, charges, liens subject to the condition that during the life time of the settlor she shall be entitled to the usufruct from the property and she shall also have a right to residence if she chooses to reside in the said property.
Schedule All the piece and parcel of land and building bearing Corporation old No. 11, New No. 20, Victoria Road, Civil Station, Bangalore, situated behind two properties facing Victoria Road bounded on the north by passage (10 ft. wide) to be provided leading to Old No. 11/2, New No. 22, Victoria Road, on the South by Old No. 11/1 New No. 21, Victoria Road, on the East by 30' approach road leading to Victoria Road and on the West by premises No. 11/2, New No. 22, Victoria Road, measuring North to South about 60'x70' and east to west 60'x70'. Building is 50 years old and in dilapidated condition. Valuation Rs. 35,000/-(Thirty five thousand only).
In witness whereof the settlor set her hand on the day month and year first above written.
Witnesses: Sd/-
1. Sd/- Settlor
2. Sd/-
32. If we peruse the above presentations in Ex.D.2, it cannot be said that the executant Amathul Hadi in fact made over the possession of the subject property gifted to the respondent NO. 1 thereunder. All that it is stated therein is that in pursuance of her desire to settle the suit schedule 'B' immovable property, she had transferred the schedule property by way of settlement deed upon the beneficiary to have and to hold the same absolutely for ever, free from all encumbarances subject to the condition that during the life time of the said settler, she shall be entitled to for the usufruct from the property and also she shall have a right to reside if she so chooses to reside. In my considered view, by the said recital, the settlor - Amathul Hadi did not make over the possession of the subject property thereunder at all; least of it not even symbolic possession was made over to her, for, in Ex.D.2-settlement deed, in no part thereof it is stated that a symbolic possession was made over to her even by making over the document of title either on the day of the settlement or for that matter thereafter. In this context, it is relevant to mention that even in the written statement filed by the respondent NO. 1 as against the plaint averments before the Learned Sessions Judge, in no part thereof the respondent NO. 1 contended that in pursuance of the execution of partition deed - Ex.D.2 she was made over with the possession of the subject property either on the day of the execution of the said deed on 7.11.75 or thereafter by Amathul Hadi till the date she died i.e. 23.12.80. Even according to her own showing in the written statement as well as her evidence, the respondent No. 1 got the revenue records in respect of the subject property changed in the Corporation, City of Bangalore only subsequent to the date of death of Amathul Hadi. Even the tax was paid by her in respect of the subject property only subsequent to the date Of death of Amathul Hadi, the donor. It is important to observe here that even in the evidence of the respondent No. 1 examined as D.W.1, she had deposed that she was not aware whether Amathul Hadi had paid the tax in respect of the subject property till she died in the year 1980. From the pleadings in her written statement it appears to me that the respondent had based her right, title and interest only on the settlement deed - Ex.D.2 as if it was a settlement deed in the strict sense of the term and not as a gift deed. The said averments which I refer to herein is as averred in para 8 of her written statement; the same read as follows;
"The late Amathul Hadi out of love and affection for this defendant whom she brought up as her own daughter and in appreciation of the service, care and devotion shown to her by this defendant and in view of her being a spinster and to provide for her settled the suit schedule immovable property on this defendant by a deed of settlement dt.7.11.75 registered as document NO. 2377/1975-76 in Book I Vol. 1891 pgs. 158 to 160 in the Office of the sub-Registrar at Shivajinagar, Bangalore. That ever since that date this defendant became the absolute owner of the suit schedule immovable property and has been in possession and enjoyment of the same as such owner. The khata stands in her name and the taxes as paid by her."
33. If it is true that during the lifetime of Amthul Hadi, despite Ex.D.-2 - settlement deed came to be executed by her. in favour of the respondent NO. 1 herein, respondent No. 1 was not made over with the possession of the same by the donor and that respondent NO. 1 was not even in possession of the subject property till her death, it cannot be said that the respondent NO. 1 had been put into possession of the subject property either on the day when Ex.D.2 came to be executed, or for that matter subsequently till Amathul hadi died on 23.12.80. Hence, it appears to me that the settlement deed Ex.D.2 does not satisfy the condition that the respondent No. 1 in pursuance of the same was put into possession of the subject property by Amathul Hadi either on the day of execution of the settlement deed or subsequently thereafter till her death in whatever manner either physically or symbolically.
34. The other aspect of the case is that, in a valid gift deed there should be not only a declaration of the gift by donor, but there also should be acceptance of the gift so made by the donee. If we see the entire recitals in Ex.D.2 as it had been quoted as above, in no part one could see an acceptance of the gift made by the respondent No. 1 no matter that it does contain the L.T.M. Together with signature of the executant - Amathul Hadi and further L.T.M. together with signature of the respondent NO. 1 for presentation of Ex.D.2 before the jurisdictional sub-Registrar on 7.11.75. By the same it cannot be said that the respondent No. 1 had accepted the subject property under Ex.D.2 as a gift thereunder. If that is so, it further appears to me that Ex.D.2 cannot be held that the same is in compliance of yet another condition that the gift made thereunder is also accepted as made to her by settlor - Amathul Hadi. Even in that view of the matter, I find that Ex.D.2 lacks compliance of yet another condition that the gift made by the donor is duly accepted by the donee, the respondent No. 1. Even if we peruse the written statement as well as her evidence with regard to the acceptance of the gift made with a declaration thereto under Ex.D.2 - settlement deed. I find that there was neither pleading nor evidence thereto. If that is so, it cannot be said that yet another condition of valid gift under Mohammadan law i.e., acceptance of the gift made cannot be said to have been complied with in execution of Ex.D.2. Even on that count, in my considered view, Ex.D.2 cannot stand the scrutiny of law. Hence, I answer the point NO. 1 in the negative and as against the respondent No. 1.
35. Regarding Points No. 2 and 3:
The Learned Counsel for the respondent No. 1 had argued that the appellants and the original plaintiff NO. 1, their father did not challenge Ex.D.2 - settlement deed and that they made such an attempt to challenge by seeking an amendment of their plaintiff but such an amendment though allowed by the Learned City Civil Judge was not at all challenged by the appellants. NO doubt they have not challenged Ex.D2 by pleading all that in their plaint as argued by Sri Ramdas, the Learned Counsel for the respondent No. 1, but it appears to me that challenging of Ex.D2 by the appellants did not arise for the reason that the suit of the appellants herein and their father - plaintiff No. 1 before the Learned City Civil Judge was a suit for partition on the ground that they were the sharers claiming title through Amatus Samad, the wife of the plaintiff No. 1 and mother of the appellants herein, who according to them succeeded to one half of the share in the property of her spinster sister Amathul Hadi who died earlier in 1980. At the cost of repetition, it should be stated here that Amatus Samad died only in the year 1982. Hence, the suit before the learned City Civil Judge was suit simplicitor for partition and separate possession and it is in this suit, the respondent NO. 1 had set up a defence that the suit schedule 'B' property had devolved upon her under the settlement deed - Ex.D.2 and according to her the same is a valid gift deed under the Mohammadan law. It is obvious that in the said circumstances, it is for the respondent NO. 1 to prove before the learned City Civil Judge that Ex.D.2 is a valid gift deed and that the suit schedule 'B' property had devolved upon her thereunder. In my considered view, in that situation, it is enough for the appellants to adduce rebuttal evidence to show that the Ex.D.2 is not a valid gift deed. According to the appellants, the suit schedule 'B' property belonged to Amathul Hadi and it remained in her possession all through till her death in the year 1980. To that extent, no doubt they have not adduced documentary proof by way of evidence, but nevertheless they have adduced oral evidence through the plaintiff No. 1 who was examined as P.W.1. He had deposed before the learned City Civil Judge that till her death Amathul Hadi was in possession and enjoyment of the property and she was collecting the rent of the property from the tenants also and that respondent NO. 1 got possession of the subject property only after 1980. The evidence thereto reads as follows:
"Amathual Hadi was illiterate. She was suffering from blood pressure and paralysis. Till her death, Amathul Hadi was in possession and enjoyment of the property. She was collecting the rents of the property also. 1st defendant got possession in 1980 after death of Amathul Hadi. She died on 23.12.80. The defendant NO. 1 was not brought up by Amathul Hadi."
The above rebuttal evidence appears to have not been challenged by the respondent NO. 1 before the learned City Civil Judge, for all that was suggested to P.W.1 in his cross examination is that the suit schedule 'B' property is the absolute property of the respondent No. 1. The suggestion in the end part of cross examination of P.W.1 reads as follows:
"It is not correct to say that the suit schedule property is the absolute property of the 1st defendant and that I have no right to claim partition."
36. From the above it is clear that the rebuttal evidence of P.W.1 to say that Amathul Hadi was the owner and she was in possession of the subject property till, her death had not at all been challenged by the respondent No. 1. It is relevant to mention here that respondent No. 1 neither pleaded nor proved that she was put in possession of the subject property by Amathul Hadi till her death in 1980 in pursuance of Ex.D.2 - settlement deed that came to be executed by her in favour of respondent No. 1 in the year 1975. On the other hand, there is unchallenged rebuttal evidence by D.W.1 as above to show that Amathul Hadi was the owner of suit schedule 'B' property and she remained in possession as owner thereof till her death in the month of December, 1980. Hence, it appears to me that it proved beyond doubt by the appellants that Amathul Hadi remained in possession of the suit schedule 'B' property all through from 1954, the year of gift to her under Ex.D.1 to the date of her death on 23.12.80 and that the respondent No. 1 was never in possession of the same at any time till the death of Amathul Hadi despite execution of settlement deed - Ex.D.2 in her name and famous. Hence, I find no substance in the argument of the Learned Counsel for the respondent No. 1 that the appellants have not pleaded and challenged Ex.D.2 - settlement deed in their plaint. In my view, there is no need for them to do that and all that was needed of them in the facts and circumstance of the case was to produce rebuttal evidence to show that the suit schedule 'B' property was not made over to the respondent No. 1 despite Ex.D.2 - settlement deed to challenge the same, as the same was set up in defence in the suit by the respondent No. 1 as against their claim for partition. That in my view, the appellants have done successfully before the Learned City Civil Judge in the suit.
37. The Learned Counsel for the respondents strenuously argued that Ex.D.2 though a settlement deed is a valid gift deed in its make by the original executor - Amathul Hadi in favour of the respondent NO. 1 According to him the suit of the appellants for a partition therefore had to fail and that accordingly the same had failed before the learned City Civil Judge in passing the impugned Judgment and decree. But in view of the conclusions I have reached as above on point No. 1, it appears to me that the impugned Judgment and decree thereof is liable to be set aside. That naturally takes me nearer to the case of the appellants for partition and separate possession of the suit schedule 'B' property, the subject matter of the property under Ex.D.2. As could be seen, in passing the impugned Judgment and decree, the Learned City Civil Judge had not gone into the other issues in the suit with regard to the entitlement of the appellants for partition and separate possession of the suit schedule 'B' property for the reason that while deciding Issue No. 1 and Issue No. 2, the learned City Civil Judge held that Ex.D.2 - settlement deed is proved to be a valid gift under the Mohammadan Law executed by the executant - Amathul Hadi in favour of the respondent No. 1 and that the appellants therefore have no right for partition of the property. It is to be noted here that the relationship of parties are not at all in dispute in the case. It is also not in dispute that the appellants herein are the sons and the legal heirs of the deceased - plaintiff No. 1 in the suit before the learned City Civil Judge. The plaintiff No. 1 before the learned City Civil Judge is none other than the husband of Amathus Samad and appellants herein are the sons of the said Amathus Samad (died in 1982), the younger sister of Amathul Hadi, the owner of suit schedule 'B' immovable property. Hence, it is clear that appellants are the sharers to succeed to the share of their deceased mother - Amathus Samad in the suit schedule 'B' property left behind by Amathul Hadi, the uterine sister of Amathus Samad. Hence, I answer points NO. 2 and 3 in the affirmative and in favour of the appellants.
38. In that view of the matter, it is just and proper for me to set aside the impugned Judgment and decree and further to remit the matter back to the learned City Civil Judge for deciding the other issues in the suit by him in the light of the Judgment herein passed holding that Ex.D.2 - registered partition deed is not a gift deed valid under Mohammedan Law as the same did not satisfy two valid conditions; firstly, delivery of possession by donor to donee either physical or symbolic and secondly, acceptance of the gift by the donee, and in the said circumstance, nothing flows from it in favour of the respondent NO. 1 herein in the matter of right, title and interest on the subject property.
39. In the result, I pass the following order:
i) the impugned judgment and decree passed by the learned City Civil Judge dismissing the suit of the appellants in O.S.No. 3879/84 is set aside and in the process, the said suit stands restored on the file of the learned City Civil Judge.
ii) The matter is remitted back to the learned City Civil Judge with a direction to dispose of the suit in accordance with law in the light of this Judgment by deciding the other issues in the suit not decided by him.
iii) In view of the fact that the parties are litigating in the matter since the year 1984, I feel that it is in fitness of things to direct the learned City Civil Judge to dispose of the instant suit before him within a time frame of six months, from the date of communication of this order; I direct the learned City Civil Judge accordingly.
iv) The appeal therefore succeeds and accordingly allowed.
40. No costs.
41. In view of the above direction tot he learned City Civil Judge, Office may as well forward a copy of the Judgment herein passed, at the earliest, besides returning the original records now on the file of this Court.