Karnataka High Court
Smt Zeenatunnissa vs Yasmeen Sultana on 26 February, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
RFA No.2005 OF 2016 C/W RFA No.2006 OF 2016
C/W
RFA No.2007 OF 2016 C/W RFA No.2008 OF 2016
In RFA No.2005/2016
BETWEEN
Smt. Zeenatunnissa,
Since dead on 10.05.2008
LRs already on record
Smt. Bibi Jan,
Since dead on 24.10.2008
LRs already on record
1. Muneer Ahmed Shariff,
Aged 50 years,
2. Mushtaq Ahmed Shariff,
Aged 52 years,
Both are Sons of
Late Ahmed Shariff,
3. Sadiya Begum,
Aged 32 years,
4. Zikrur Rehman Shariff,
Aged 30 years
2
Children of Allah Bakash
All are R/at 40/1, Cockburn Road,
Shivajinagar, Bengaluru-560051.
...Appellants
(By Sri. Fayaz Sab B.G., Advocate)
AND
1. Yasmeen Sultana
Aged 55 years,
2. Javeeria Nushrath,
Aged 37 years,
3. Saira Ishrath,
Aged 36 years,
4. Fathima Barkath,
Aged 32 years,
1st is the wife, rest of them are
Daughters of Zafrulla Khan,
All are R/at No.13, New Gangammachari
Street, Mothinagar, Bengaluru-560002.
5. Bengaluru City Corporation
Represent by Revenue Officer
Shivajinagar Range, Bengaluru-560001.
...Respondents
(By Sri. M.Narayana Reddy, Advocate for R1 to R4
R5- Service awaited)
This RFA is filed under Section 96 read with Order 41
Rule 1 of CPC, against the judgment and decree dated
29.09.2016 passed in O.S.No.11101/1998 on the file of the
XLIII Additional City Civil and Sessions Judge, Bengaluru
(CCH 44), dismissing the suit for declaration.
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In RFA No.2006/2016
BETWEEN
Smt. Zeenatunnissa,
Since dead on 10.05.2008
LRs already on record
1. Muneer Ahmed Shariff,
S/o. Late Ahmed Shariff,
Aged 50 years,
R/at 39, Cockburn Road,
Shivajinagar,
Bengaluru-560051.
2. Allah Bakash
S/o. Late Ahmed Shariff,
Aged about 55 years,
R/at 40/1, Cockburn Road,
Shivajinagar,
Bengaluru-560051.
...Appellants
(By Sri. Fayaz Sab B.G., Advocate)
AND
1. Javeeria Nushrath,
D/o. Zafrulla Khan,
Aged Major,
R/at No.8, 1st Cross,
Someshwaranagar,
Jayanagar 1st Block,
Bengaluru-560011.
2. Yasmeen Sultana
Aged 55 years,
D/o. Ahmed Shariff,
W/o. Zafrulla Khan,
R/at No.8, 1st Cross,
Someshwaranagar,
4
Jayanagar 1st Block,
Bengaluru-560011.
...Respondents
(By Sri. M.Narayana Reddy, Advocate for R1,
R2 is served)
This RFA is filed under Section 96 read with Order 41
Rule 1 of CPC, against the judgment and decree dated
29.09.2016 passed in O.S.No.3869/2006 on the file of the
XLIII Additional City Civil and Sessions Judge, Bengaluru
(CCH 44), partly decreeing the suit for declaration.
In RFA No.2007/2016
BETWEEN
Smt. Zeenatunnissa, (Died)
W/o. Late Ahmed Shariff
1. Muneer Ahmed Shariff,
S/o. Late Ahmed Shariff,
Aged 50 years,
R/at No.39, Cockburn Road,
Shivajinagar, Bengaluru-560051.
2. Zikrur Rehman Shariff,
S/o. Allah Bakash,
Aged 28 years,
R/at 40/1, Cockburn Road,
Shivajinagar, Bengaluru-560051.
3. Sadiya Begum,
S/o. Allah Bakash,
Aged 32 years,
R/at 40/1, Cockburn Road,
Shivajinagar, Bengaluru-560051.
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4. Allah Bakash
S/o. Late Ahmed Shariff,
Aged 55 years,
R/at 40/1, Cockburn Road,
Shivajinagar, Bengaluru-560051.
...Appellants
(By Sri. Fayaz Sab B.G., Advocate)
AND
1. Yasmeen Sultana
W/o. Zafrulla Khan,
Aged 51 years,
2. Javeeria Nushrath,
Aged 37 years,
3. Saira Ishrath,
Aged 33 years,
4. Fathima Barkath,
D/o. Zafrulla Khan,
Aged 30 years,
All are R/at No.8, 1st Cross,
Someshwaranagar,
Jayanagar 1st Block,
Bengaluru-560011.
...Respondents
(By Sri. M.Narayana Reddy, Advocate for R1 to R4)
This RFA is filed under Section 96 read with Order 41
Rule 1 of CPC, against the judgment and decree dated
29.09.2016 passed in O.S.No.7973/2006 on the file of the
XLIII Additional City Civil and Sessions Judge, Bengaluru
(CCH 44), decreeing the suit for declaration.
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In RFA No.2008/2016
BETWEEN
Muneer Ahmed Shariff,
S/o. Late Ahmed Shariff,
Aged 50 years,
R/at No.39, Cockburn Road,
Shivajinagar, Bengaluru-560051.
...Appellant
(By Sri. Fayaz Sab B.G., Advocate)
AND
1. Javeeria Nushrath,
Aged major,
D/o. Zafrulla Khan,
R/at No.8, 1st Cross,
Someshwaranagar,
Jayanagar 1st Block,
Bengaluru-560011.
2. Jabeen Khan,
3. Yasmeen Sultana
Aged major,
W/o. Zafrulla Khan,
R/at No.8, 1st Cross,
Someshwaranagar,
Jayanagar 1st Block,
Bengaluru-560011.
...Respondents
(By Sri. M.Narayana Reddy, Advocate for R1,
R2 to R3 service awaited)
This RFA is filed under Section 96 read with Order 41
Rule 1 of CPC, against the judgment and decree dated
29.09.2016 passed in Ex.No.3390/2013 on the file of the
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XLIII Additional City Civil and Sessions Judge, Bengaluru
(CCH 44), allowing the execution petition for declaration.
These appeals having been heard and reserved on
06.02.2020, coming on for pronouncement this day, the
court pronounced the following:
JUDGMENT
These appeals are all consolidated for common decision on merits. The learned Additional City Civil Judge, Bengaluru, disposed of the suits from which these appeals have arisen by a common judgment dated 29.9.2016. RFA 2005/2016 arises from the judgment in O.S.11101/1998. The judgment and decree in O.S.3869/2006 has given rise to RFA 2006/2016. Likewise the judgment pertaining to O.S.7973/2006 and the order in Execution 3390/2013 have given rise to RFA 2007/2016 and RFA 2008/2016 respectively.
2. For better understanding of the pleadings, the parties are referred to with respect to their names. 8
3. In the schedule to the plaint in O.S.11101/1998, the property described bears Corporation No. 40 (old No.29), situated in Cockburn Road, Civil Station, Bengaluru.
4. The plaintiffs are Smt. Zeenatunnissa, Smt.Bibi Jan, Sri Mushtaq Ahmed Shariff, Sri Muneer Ahmed Shariff, Smt. Sadiya Begum and Mr. Zikrur Rehman Shariff. The defendants 1 to 4 are Smt.Yasmeen Sultana, Ms. Javeeria Nushrath, Ms. Saira Ishrath and Ms Fathima Barkath. The fifth defendant is the Bengaluru City Corporation. In the plaint it is stated Zeenatunnissa and Bibi Jan purchased the suit property under a registered sale deed dated 2.2.1971. They obtained katha and were in possession being absolute owners. The plaintiffs alleged that Yasmeen Sultana in collusion with her husband concocted a document called declaration dated 15.12.1995 said to have been executed by Zeenatunnissa to the effect that 9 she had gifted her share in the suit property in favour of Yasmeen Sultana. The Bengaluru City Corporation transferred katha to her name on the basis of this declaration. Later on Yasmeen Sultana sold the suit property on 4.3.1997 to her minor children, namely Javeeria Nushrath and Saira Ishrath, i.e., defendants 2 and 3. It is stated in the plaint that Zeenatunnissa was illiterate and pardanashin lady. She did not execute any declaration. The suit property belonged to Zeenatunnissa and Bibi Jan, therefore Zeenatunnissa alone could not have executed any declaration purporting to be a gift. The said document did not bind the interest of the plaintiffs. The declaration dated 15.12.1995 was illegal and bad according to sections 16, 17, 18 and 19 of the Contract Act. Zeenatunnissa, after coming to know of this declaration got issued a legal notice on 3.4.1997 to Yasmeen Sultana, but the latter did not reply. Therefore, the plaintiffs brought a suit seeking declaration that the oral gift dated 10 15.12.1995 in favour of Yasmeen Sultana was fraudulent, concocted, nominal, and null and void, a declaration that the sale deed dated 4.3.1997 executed by Yasmeen Sultana in favour of Javeeria Nushrath and Saira Ishrath as null and void, and for a direction to Bengaluru City Corporation for revoking the katha in respect of suit property.
5. The first defendant in her written statement denied the plaint averments that the deed relating to gift is a spurious and concocted document and that she had no right to execute sale deed in favour of her daughter. She admitted that the Corporation transferred the katha of the plaint schedule property in favour of her minor daughters.
6. The fifth defendant/Corporation stated in its written statement that Zeenatunnissa and Bibi Jan were the joint purchasers of the property bearing No.40, Cockburn road, Shivajinagar. Upon a division of the 11 said property between them, the katha was bifurcated and the portion allotted to Zeenatunnissa was assigned 40/1 and the old No. 40 was retained for the portion allotted to Bibi Jan. Thereafter, based on a declaratory affidavit dated 15.12.1995 in relation to oral gift made by Zeenatunnissa in favour of her daughter Yasmeen Sultana, katha was transferred to the name of the latter. Admitting the legal notice dated 3.4.1997 issued by Zeenatunnissa and Bibi Jan, the Corporation stated further that Javeeria Nushrath being a major and Saira Ishrath and Fathima Barkath being minors and represented by their father Zafrulla Khan applied for change of katha to their names on the basis of the sale deed dated 4.3.1997. The matter was referred to the head of the legal cell and thereafter the katha was transferred to the names of the purchasers.
7. O.S.3869/2006 was filed by Javeeria Nushrath for the reliefs of declaration of their title and possession 12 of property bearing No. 40/1 from the defendants namely Zeenatunnissa and Allah Bakash. She pleaded that she and her sisters purchased the said property on 4.3.1997 and thereafter obtained katha to their names. Thus they became the lawful owners of the property. The first defendant Zeenatunnissa was a tenant under them and that the second defendant Allah Bakash was in occupation in a portion as a sub-tenant. Earlier she instituted an eviction petition under the provisions of the Rent Control Act and since she was directed to approach the competent Civil Court for declaration of her title, she made the suit.
8. Zeenatunnissa and Allah Bakash being the defendants denied the title of Javeeria Nushrath and her sisters stating that their vendor had no title to execute the sale deed in their favour. They also referred to O.S.11101/1998, in which Javeeria Nushrath was also one of the defendants along with her vendor 13 Yasmeen Sultana. They stated that Javeeria Nushrath had filed another suit O.S.2091/2003 against Allah Bakash for his eviction and this fact is suppressed. They stated that even in Execution Petition 306/1999, they questioned the title of Javeeria Nushrath and Yasmeen Sultana.
9. O.S.7973/2006 was filed by Yasmeen Sultana, Javeeria Nushrath, Saira Ishrath and Fathima Barkath seeking a declaration that a gift deed dated 18.10.2002 is null and void and does not bind them. They brought this suit in respect of two properties viz., bearing No.40 and a rear portion of property no.40 and 40/1, both situated at Cockburn road, Shivajinagar, Bengaluru. With regard to first item of the property, they stated that they purchased it from Mushtaq Ahamed Shariff on 08.05.2002 under a registered sale deed. The second item of the property, it is stated, was purchased by Javeeria Nushrath, Saira Ishrath and Fathima Barkath 14 on 4.3.1997. The defendants, viz., Zeenatunnissa, Muneer Ahmed Shariff, Zikrur Shariff, Sadia Begum and Alla Bakash hatched a plan to knock away the property from the plaintiffs and created gift deeds. One such gift deed is dated 18.02.2002 said to have been executed by Zeenatunnissa who had no right, title or interest over the said property. It is also stated that the gift came into existence to overcome execution proceedings initiated by the plaintiffs.
10. In the written statement it is specifically contended that the plaintiffs are not the absolute owners of the properties. The first defendant Zeenatunnissa along with Smt. Bibi Jan was the owner of the properties. On 7.1.2001 they gifted the properties orally to Muneer Ahmed Shariff, Zikrur Shariff and Sadiya Begum and therefore Mushtaq Ahmed Shariff had no right to execute the sale deed in favour of the plaintiffs. The plaintiffs have given wrong measurements 15 and that they are not in possession also. They also contended that the suit is barred by limitation.
11. Execution Petition 3390/2013 was instituted by Javeeria Nushrath pursuant to an order of eviction passed in HRC 463/1998 against one Smt.Javeen Khan. The subject matter of the eviction proceeding was a premises in property No. 40/1, Cockburn Road. The old number of execution petition was 306/1999. In the execution proceeding, Zeenatunnissa made an application under Order 21 Rule 97 of CPC, contending that she was the absolute owner of the said property and that the order of eviction could not be executed as she was in possession. Since the said application was rejected by the Chief Judge of the Court of Small Causes, Bengaluru, Zeenatunnissa preferred an appeal to this court in RFA 98/2006. This appeal was allowed and the matter remanded with a direction that the said application in the execution case should be decided 16 along with other suits pending between the parties. Thus, the execution case was transferred to the Court of Civil Judge, where it was renumbered as 3390/2013. Again the application under Order 21 Rule 97 CPC was rejected and therefore Muneer Ahmed Shariff, claiming to be legal representative of Zeenatunnissa preferred the appeal, RFA 2008/2016.
12. The trial court recorded evidence in every suit separately, and while passing judgment came to the conclusion that the Hiba or the oral gift made by Zeenatunnissa and evidenced by Ex.D45 (Ex.P5 and D28 are the copies) is valid and therefore her daughter Yasmeen Sultana became the absolute owner of the suit property in O.S.11101/1998 and thereby the sale deeds executed by Yasmeen Sultana in favour of her daughter are also valid. Consequently the trial court dismissed the suit O.S.11101/1998, partly decreed the suit O.S.3869/2006; decreed the entire suit O.S.7973/2006 17 and held that the execution petition 3390/2013 should further proceed.
13. I have heard the arguments of Sri Fayaz Sab, learned advocate appearing for the appellants in all the appeals and Sri Narayana Reddy, learned advocate appearing for the respondents. I have perused the records. I will deal with the points argued by the learned advocates contextually, but their arguments would indicate that the validity of the oral gift evidenced by Ex.D45 is the deciding factor and therefore the actual question to be answered in all these appeals pertains to it.
14. The relationship between the parties is not disputed. Zeenatunnissa is the mother of Yasmeen Sultana. There is no dispute that Zeenatunnissa and Bibi Jan were the two wives of Haji Ahmed Shariff. Another admitted fact is that Zeenatunnissa and Bibi Jan purchased the property bearing No.40, Cockburn 18 Road, on 2.2.1971 and later on this property was divided between them, the portion allotted to Zeenatunnissa was given the number 40/1, whereas No.40 was allotted to the portion allotted to Bibi Jan.
15. The clear case of Zeenatunnissa is that she did not execute any declaration in regard to making oral gift in favour of her daughter Yasmeen Sultana and that the signature found on Ex.D45, the original declaration is not her signature. She has alleged fraud in the coming into being of the said document. After assessing the evidence, the trial court has recorded findings that when Zeenatunnissa alleges fraud in the execution of declaration of oral gift or Hiba, she should have adduced evidence. She adduced evidence in HRC 306/1999 and it appears that she avoided giving evidence intentionally and no reason is forthcoming as to why she did not enter the witness box. Her power of attorney holder, i.e., PW1 may be her son, but he 19 cannot speak about fraud. For this reason his evidence is totally not useful. It is also observed by the trial court that her plaint does not contain particulars of fraud.
16. To hold that the signature found on Ex.D45 is that of Zeenatunnissa only, the trial court has held that in a previous proceeding in an execution case, the Chief Judge of the Court of Small Causes, Bengaluru, had already held that the signature found on Ex.D45 was the signature of Zeenatunnissa and that the signatures would tally. While observing so, the trial court referred to an application made on behalf of Yasmeen Sultana and others under Order 26 Rule 10A of CPC in O.S.11101/1998. In this regard it is held that the said application was filed by them at the stage when the suit was posted for arguments. The trial court dismissed the said application and against it Yasmeen Sultana and others preferred a writ petition 31677/2016 to this 20 court and the said writ petition was also dismissed, but in that writ petition, there was an observation that the executing court had already given an opinion with regard to signature. Therefore the said opinion is sufficient enough to hold that signature found on Ex.D45 is that of Zeenatunnissa and thereby the execution of the oral gift stands proved, the trial court has observed.
17. In regard to these findings of the trial court, the learned counsel for the appellants argued that Zeenatunnissa was a pardanashin woman and illiterate. It is for the defendants in O.S.11101/1998 to have proved that the oral gift was validly made by Zeenatunnissa. Ex.D45 contains signature in English, but she did not know English at all. Yasmeen Sultana who claims under the gift deed did not enter the witness box, rather she examined her power of attorney holder who is an incompetent witness. Therefore adverse 21 inference must be drawn against Yasmeen Sultana. The evidence discloses that Yasmeen Sultana might not have executed the declaration of oral gift as per Ex.D45. Sri Fayaz Sab further argued that Yasmeen Sultana had earlier filed a suit for partition, i.e., 7913/1995 and in the said suit she did not refer to Hiba or the oral gift made by her mother. If really there was an oral gift in her favour, nothing prevented her from pleading about Hiba in the said suit. This circumstance shows that the oral gift was concocted one.
18. Countering the arguments of Sri Fayaz Sab, Sri Narayana Reddy argued that there is no dispute that the suit property belonged to Zeenatunnissa, and for this reason the oral gift made by her in favour of her own daughter cannot be simply disbelieved. The trial court has discussed the evidence threadbare in coming into being of Hiba. It was for Zeenatunnissa to have proved that the gift was bad if really she had not 22 executed it. Ex.D45 contains signature of Zeenatunnissa in Urdu language, and her name is written in English below her Urdu signature. The signature is not in English. Zeenatunnissa used to sign always in Urdu and there are other documents containing her signatures in Urdu language. This is the actual finding of the trial court.
19. On considering the above arguments, it is to be stated that whenever a document is sought to be declared as null and void on the ground that the said document was obtained by playing fraud or exerting undue influence, the primary burden is on the party who makes such allegations. The plaint must contain the particulars of fraud in accordance with Order 6 Rule 4 of CPC. But if a party who alleges fraud is illiterate or a pardanashin woman or was in a fiduciary relationship with another party in whose favour a document has been executed, the burden is on the latter and not on 23 the party alleging fraud, etc., This is the settled position of law. In this case, Zeenatunnissa claim herself to be a pardanashin woman; and if this was true, the burden was on Yasmeen Sultana to prove that her mother validly made an oral gift in her favour. But the trial court's finding is that Zeenatunnissa was not a pardanashin woman and for this reason she should have entered the witness box to adduce evidence. The evidence given by her power of attorney holder is of no use at all. Sri Fayaz Sab argued that adverse inference must be drawn against Yasmeen Sultana for not giving evidence before the court. Adverse inference could have been drawn against Zeenatunnissa if she was not a pardanashin woman, not otherwise.
20. Assuming for the sake of argument that Zeenatunnissa was a pardanashin woman and whether the evidence adduced by DW1 is sufficient to hold that Zeenatunnissa had in fact made oral gift as evidenced 24 by Ex.D45, it has to be stated that evidence of DW1 cannot be discarded at all. In this regard it is to be stated that DW1 is none other the husband of Yasmeen Sultana and it is his clear evidence that he had participated in all the transactions including Ex.D45, and he had clear knowledge of it. The evidence of DW1 could have been discarded if he had stated that he had no personal knowledge of any transaction and in that event Yasmeen Sultana should have adduced evidence. Therefore evidence of DW1 cannot be discarded.
21. If the answers elicited by DW1 in the cross- examination are seen, nowhere it is found that Yasmeen Sultana played fraud on her mother to obtain an oral gift deed of the suit property from her. Except the suggestions to the effect that the signature on Ex.D45 is not of Zeenatunnissa and that she had not executed the said document, nothing worth mentioning here has been elicited from him.
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22. It was argued by Sri Fayaz Sab that the trial court compared the signatures without referring to the expert's opinion. It is to be stated that an expert was not appointed in the suit, rather what is found is that at the time of arguments in O.S.11101/1998, the counsel on behalf of Yasmeen Sultana made an application under Order 26 Rule 10A of CPC for sending the disputed signature to the opinion of a handwriting expert. But, the trial court dismissed the said application by referring to an order passed in Execution petition 306/1999. Yasmeen Sultana challenged the said order by filing writ petition W.P.31677/2016 and it was also dismissed. In these circumstances the trial court held that the opinion expressed by the Chief Judge of the Small Causes Court, Bengaluru, in the said execution is enough to hold that the disputed signature would tally with the admitted signature of Zeenatunnissa. I do not think that this finding is 26 anyway incorrect. If there is an opinion with regard to signature in another collateral proceeding, there is nothing wrong in relying upon it. Therefore, the signature on Ex.D45, as has been held by the trial court is that of Zeenatunnissa only. Actually the burden was on Zeenatunnissa being the plaintiff in the suit to have referred the disputed signature found on Ex.D45 to expert's opinion, rather the said application was made by Yasmeen Sultana. This observation is to be made to comment on her conduct in keeping silence when she very much disputed her signatures in Ex.D45.
23. Sri Fayaz Sab argued that Zeenatunnissa did not know English and she used to sign only in Urdu language. If Ex.D45 is perused, what is found is that at the foot of every page of the said document, she has signed in Urdu language and not in English. In the last page, below her Urdu signature, her name appears to have been written in English. It is possible to say that it 27 is her signature in English. Learned counsel refers to the name written in English or her English signature, but does not refer to signatures in Urdu, to dispute the document. But this argument is not acceptable. There are other documents, Ex.D.42 and Ex.D.43 which contain signature of Zeenatunnissa in Urdu. Therefore, unhesitatingly it can be held that Ex.D45 contains the signature of Zeenatunnissa only.
24. The another ground of attack is that in O.S.7913/1995, a suit for partition filed by Yasmeen Sultana, she did not make any reference to oral gift. Certified copy of the judgment in O.S.7913/1995 is marked as Ex.P14. If this judgment is seen, it is found that Yasmeen Sultana and one Smt. Zubeida Begum brought a suit for partition against her brother Mushtaq Ahmed Shariff and Bibi Jan and Zeenatunnissa, the two wives of her father, claiming 4/13th share in the properties described in schedules 'A' to 'E' to the plaint 28 in that suit. Property No.40, Cockburn Road, belonging to Bibi Jan, was also a subject matter of the said suit. Suit was not brought in respect of property belonging to Zeenatunnissa, i.e., the subject matter of the oral gift as per Ex.D45. On perusal of Ex.D34 what is found is that the oral gift was actually made on 21.10.1995 and document in this regard came into existence on 18.12.1995, i.e., Ex.D45. The suit O.S.7913/1995 was filed on 25.11.1995. By the time the suit was filed, Ex.D45 had not been executed although there was an oral gift by that time. Probably for the reason that her mother had already made a gift of this property to her, she might not have included the said property in the suit O.S.7913/1995 and it was not necessary also. If nothing is stated about the oral gift in O.S.7913/1995 for this reason, it cannot be a ground for doubting the genuineness of the oral gift in respect of the suit property. The argument of Sri Fayaz Sab for this reason cannot be accepted.
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25. It was very much argued by Fayaz Sab that the oral gift was not acted upon and there was no delivery of property, the gift therefore did not come into effect. What is written in Ex.D45 is that only symbolic possession was given. This itself is sufficient to hold that there is no actual delivery of the property. Sri Narayana Reddy argued that there was handing over of possession.Ex.D45 clearly shows acceptance of gift by Yasmeen Sultana. There is no bar for giving symbolic possession. The trial court has held that gift was acted upon by acceptance of the gift by Yasmeen Sultana. Therefore it is to be seen now whether gift was acted upon by the donee by accepting possession of the property.
26. The Mohammedan Law on Gifts postulates three essential conditions to be satisfied, they are, (1) declaration of gift by the donor, (2) acceptance of the gift, express or implied by or on behalf of the donee and 30 (3) delivery of possession of the subject matter of the gift by the donor to the donee (Commentary on Mahomedan Law by Mulla). In Ex.D45 there is a clear recital that Yasmeen Sultana accepted by the gift made by her mother. Subsequent to gift, Yasmeen Sultana obtained katha of the property to her name and paid tax. There are entries to this effect in the encumbrance register also. Thereafter she executed sale deeds as per Ex.D5 and D6 in favour of her daughters. These are all the instances of accepting the gift.
27. It is true that in Ex.D45 it is written that symbolic possession was given to Yasmeen Sultana. This could be for the reason that there were tenants in the property. This becomes evident from deposition of Zeenatunnissa in execution 306/1999 which is marked as Ex.D12. The stand taken by Zeenatunnissa that she did not make oral gift in favour of her daughter can be demonstrated to be false from Ex.D12. Although the 31 fact that there was a partition between her and Bibi Jan is not disputable, while giving evidence in execution 306/1999 she went to the extent of saying that there was no partition between them. This reflects on the conduct of Zeenatunnissa. If this was the stand again taken by her in the suit O.S.11101/1998, her further plea that there was no delivery of possession should also be rejected. It has been observed in the Commentary on Mahomedan Law by Mulla (page 157, 8th edition), delivery of possession of a gift may be actual or constructive. What is essential is divesting of title and this is clearly forthcoming in this case. The findings of the trial court that there was delivery of possession is therefore to be upheld. From this discussion, I come to conclusion that the findings of the trial court pertaining to O.S.11101/1998 cannot be disturbed.
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28. O.S.3869/2006 was filed by Javeeria Nushrath for declaration of title in respect of the very same property and delivery of possession. She claims to have purchased the property from Yasmeen Sultana, her mother. It was pleaded by her that Zeenatunnissa was her tenant and Alla Bakash, the second defendant in this suit was a sub-tenant. She filed eviction petition under the Rent Control Act against them, but her title was disputed and therefore she was directed to file a suit seeking declaration of her title.
29. The trial court has held that Javeeria Nushrath has been able to prove her title in view of gift made by Zeenatunnissa in favour of Yasmeen Sultana being valid. The learned counsel for the appellants Sri Fayaz Sab argued that very fact that possession is sought in this suit shows that there was no delivery of gift to Yasmeen Sultana and therefore the trial court should not have decreed the suit holding that the gift 33 and subsequent sale deeds were valid. This argument cannot be accepted. When there is ample evidence to show that gift was acted upon, Javeeria Nushrath, the plaintiff in O.S.3869/2006 would be entitled to possession based on title. The findings of the trial court are to be confirmed.
30. O.S.7973/2006 is a suit filed by Yasmeen Sultana and her daughters for a declaration that gift deed dated 18.10.2002 is null and void and not binding on them. In this suit, there are two items of properties. With respect to first item, i.e., property bearing no.40, the first plaintiff produced, sale deed dated 08.05.2002 as per Ex.P2 in proof of purchasing it from Mushtaq Ahmad Shariff. Ex.P23 is a deed of declaration confirming the Hiba. The date of Ex.P23 is 23.12.1998 and it recites that Bibi Jan gifted the property no.40, Cockburn Road, Shivajinagar to her son Mushtaq Ahmed on 01.12.1998. It also recites that the gifted 34 property was allotted to her share in a partition that took place between her and Zeenatunnissa. Based on this gift, Mushtaq Ahmad sold the property to Yasmeen Sultana. The oral gift dated 01.12.1998 evidenced by Ex.P23 was earlier in point of time. The defendants in this suit contend about oral gift dated 07.01.2001 made by one of them i.e., Zeenatunnissa (defendant no.1) and Bibi Jan. Since Bibi Jan died on 24.10.2001, Zeenatunnissa alone executed a gift deed on 18.10.2002 confirming the oral gift dated 07.01.2001, and this deed was registered on 19.10.2002, as evidenced by Ex.P19. PW1 has spoken about Ex.P2 and Ex.P23. He has not been discredited in the cross examination. Since the property had already been gifted by its real owner Bibi Jan as per Ex.P23, any subsequent transaction by the same person was void, and conferred no title to the donees under Ex.P19.
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30.1. Another point to be mentioned here is that Smt. Yasmeen Sultana and Zeebeda Begum filed a suit for partition, O.S.7913/1995. The certified copy of the judgment in this suit is Ex.P14. Perusal of the judgment shows that Yasmeen Sultana & another sought partition in five properties, described in schedule 'A' to 'E' of the plaint in O.S.7913/1995. Schedule 'D' property is no.40, Cockburn Road that belonged to Bibi Jan. The first defendant in O.S. 7913/1995 is Mushtaq Ahmed Shariff; he claimed gift made by Bibi Jan (3rd defendant in O.S.7913/1995). It is clearly held in the judgment (Ex.P14) that property no.40 was not available for partition in view of the gift. Therefore the said suit was not decreed in respect of property no.40. The judgment is relevant to infer about gift made by Bibi Jan & Zeenatunnissa in favour of Mushtaq Ahmad Shariff and sale by him in favour of Yasmeen Sultana. 36
30.2. The second item of property in O.S.7973/2006 is the subject matter of the suit O.S.11101/1998, Since I have already dealt with the judgment in O.S.11101/1998, there is no need to discuss the same point again. Therefore I hold that the trial court's findings in regard to O.S.7973/2006 cannot be disturbed.
31. In execution 3390/2013 (old No.306/1999) Zeenatunnissa made an application under Order 21 Rule 97 CPC to obstruct the execution of the eviction order obtained by Javeeria Nushrath against her tenant. Zeenatunnissa contended that she was the absolute owner of the property and that Yasmeen Sultana had forged her signature and concocted document styled as declaration of gift. The trial court dismissed this application. In view of the above discussion concerning O.S.11101/1998, this appeal deserves to be dismissed. 37
32. Therefore from the above discussion I come to conclusion that all the appeals deserve to be dismissed with costs and ordered accordingly.
Sd/-
JUDGE ckl/sd