Calcutta High Court
Quoresh Khatoon vs Nissar Khan And Anr. on 15 March, 2005
Equivalent citations: (2005)3CALLT538(HC)
JUDGMENT Arun Kumar Mitra, J.
1. This second appeal arises out of a suit for recovery of possession and mesne profits.
2. The facts or the background of this appeal in brief as made out in the plaint and written statement are as follows:
The plaintiff No. 1 is the owner of the entire 311, Raicharan Ghosh Lane including the suit property as described in the schedule of the plaint. The plaintiff No. 1 enterd into an agreement with the plaintiff No. 2 for the construction of a shed over the suit property and the said shed was finally built up at the instance of the plaintiff No. 2 as per terms and conditions of the agreement. The plaintiff No. 2 took possession of the suit property and the same was kept under lock and key at the gate. But during the absence of the plaintiff No. 2, the defendant forcibly occupied the suit shed. Accordingly, a diary was lodged in the local police station but the but the police did not take any action. The defendant was asked to quit and vacate the factory premises in the suit did not pay any heed to it. Accordingly, this suit was filed by the plaintiff being Title Suit No. 32 of 1977 before the learned 1st Additional Court of Munsif at Alipore.
3. The defendant contested the suit by filing written statement and denying all the material allegations of the plaintiffs'. The defendant has further stated that the plaintiffs have no right, title and interest over the suit property and that he (defendant) is the owner of the suit structure as a thika tenant of the land in suit from the time of Khairunnesha Bibi. The defendant has mentioned that the story of dispossession is entirely false.
4. On the above pleadings the following issues have been framed for deciding the suit:
1) Is the suit maintainable in its present form and at law?
2) Is the suit property valued and the Court fees paid sufficient?
3) Have the plaintiffs any right, title and interests in the suit property?
4) Are the plaintiffs entitled to a decree as prayed for?
5) To what other relief, if any, are the plaintiffs entitled?
5. After hearing the learned advocates for the parties, the learned Munsif, 1st Additional Court at Alipore, 24 Parganas decreed the suit in favour of the plaintiffs and directed recovery of possession of the suit property from the defendant.
6. The learned trial Judge also directed the defendant to deliver khas possession of the suit property in favour of the plaintiffs within three months from the date of the order; failing which the plaintiffs should be at liberty to put the decree in execution through Court.
7. The learned trial Judge directed the parties to bear respective costs.
8. The defendant being aggrieved by and dissatisfied with the said Judgment and decree passed by the learned trial Judge in Title Suit No. 32 of 1977 preferred an appeal being Title Appeal No. 952 of 1983 before the learned 7th Court of Additional District Judge, Alipore.
9. The parties contested the appeal and on contest the learned Appellate Court below allowed the appeal with costs. The Judgment and decree appealed against was set aside. In the result, Title Suit No. 32 of 1977 of the 1st Court of Additional Munsif, Alipore stood dismissed. The cost of the appeal was directed to be paid by the respondent in that appeal.
10. Thereafter, being aggrieved by the said Judgment and decree passed by the Appellate Court below, the plaintiff No. 2 being the appellant preferred the instant second appeal. The plaintiff No. 2 was made respondent in the second appeal.
11. When the appeal was heard under Order 41, Rule 11 of the Code of Civil Procedure, the Hon'ble Division Bench observed "this appeal will be heard on the following substantial questions of law":
I) Whether keeping in view of the fact the parties are residing in the same premises, question of actual delivery of possession will constitute a relevant fact or gift particularly in view of the fact that donee's name was mutated in the office of the State.
Thereafter, at the time of hearing of this appeal five more substantial questions of law are framed which are as follows :
II) Whether the Appellate Court below misconstrued the deed of settlement (Exhibit 6) and erred in law in holding that the said deed did not confer any right, title and interest in favour of the plaintiff No. 1/appellant.
III) Whether the Appellate Court below erred in law in holding that the conditions of a valid gift, as required in Mahomedan Law were not compiled with as there was no delivery of possession of the property.
IV) Whether on perusal of the evidence and materials on record, the Appellate Court below ought to have held that both the donor and the donee living in the same house and the donor reserving the usufruct to herself and continuing in physical possession of the property, the payment by the donee of taxes after the date of the gift amount to constructive possession of the property on the part of the donee and the gift was completed by such possession.
V) Whether the Appellate Court below erred in law in not holding that merely by making a provision for herself in relation to the enjoyment of usufruct during rest of her life was not an absolute clog but only a reasonable restriction permissible in Mahomedan Law and for that the deed cannot be treated as void or ineffective thereby.
VI) Whether the Appellate Court below erred in law in holding that the plaint is silent about the date of dispossession whereas the plaint states that the diary was lodged on the police station on 05.05.1975 about forcible occupation by the defendant, respondent and on 01.05.1975 the shed had been kept under lock and key by the plaintiff No. 2.
12. The learned Counsel for the appellant submitted that the Appellate Court below totally misconstrued the ratio of the provisions of Mahomedan Law and came to a wrong finding.
13. The learned Counsel submitted that the Appellate Court below did not consider and wrongly held that in the plaint, dispossession was not made clear.
14. the learned Counsel also submitted that the Appellate Court below did not look into the provisions of Mahomedan Law in its Article 152(3) and Article 165 which are as follows:
152(3). Where donor and donee both reside in the property.-No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift (i).
165. Condition in the nature of a trust.--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 stipulation are both valid. Such a stipulation is not void, as it does not provide for a return of any part of the corpus. The stipulation may also be enforced as an agreement raising a trust and constituting a valid obligation to make a return of the proceeds during the time stipulated.
15. The learned Counsel Mr. Roychowdhury submitted that the learned Appellate Court below went on wrong and could not perceive the provision of law insofar as the gift is concerned under Mahomean Law. The learned Counsel also submitted that the Appellate Court below wrongly held that "essentials of a Muslim gift are not present in the instant case and as such gift in favour of the plaintiff No. l cannot be stated to have conferred any right, title and interest in her favour." .
16. The learned Counsel appearing for the appellant, Mr. Roychowdhury drew attention of this Court to the finding of the Appellate Court below where the first Appellate Court observed "it is true that there is some discrepancy between the DWs over the story of settlement by Khairunessa but the plaintiff cannot succeed on the basis of defect or weakness in the defence case." The learned Counsel pointed out that by this finding the Appellate Court below admitted that there is discrepancy in DWs story of dispossession.
17. The learned Counsel submitted that the Appellate Court below also wrongly held that the plaint is silent regarding the possession of the plaintiff.
18. Mr. Roychowdhury referred to the averments made in paragraph 10 of the plaint and submitted that the Appellate Court below could not appreciate that the suits is for recovery of possession and in the plaint the date of cause of action has been stated as 05.05.1975 and it has been also found by the learned Appellate Court below that the conditions of gift as per Mahomedan Law have not been fulfilled that is after gift possession was not handed over.
19. Mr. Roychowdhury further submitted that all the substantial questions of law are in favour of the plaintiff/appellant herein and the appeal should be allowed.
20. The learned Counsel for the respondents Mr. Mukherjee made his submission on the very first day and thereafter he did not turn up on different dates when the matter was called on and consequently the Court had to conclude the argument. The Court made the appeal reserved for Judgment.
21. After hearing the learned Counsel for the parties and on perusal of documents on record it is found that the learned Appellate Court below went against evidence-on-record and misconstrued the provisions of law. The Appellate Court below wrongly held that the plaint is silent regarding dispossession and the Appellate Court below itself observed that on 05.05.1975 a diary entry was lodged alleging forcible occupation by the defendant. The learned Appellate Court below came to a wrong conclusion inasmuch as the Court should have looked into the plaint wherein paragraph 11 of the plaint it has been written that the cause of action arose from 05.05.1975. The Appellate Court below also should have considered that from the averment of the plaint it is clear that the plaintiff was dispossessed.
22. The learned Appellate Court below could not conceive the position of Mahomedan Law insofar as gift and consequent delivery of possession was concerned.
23. The learned Appellate Court below also should have taken into consideration the aspect that the suit property was under joint possession and Section 152(3) is clear in this respect. Reference may be made in this regard to a Judgment (Abdul Sattar Ostagar and Anr. v. Abu Bakkar Ostagar and Ors.). In this Judgment the Hon'ble Division Bench observed that when there is joint possession, then parting of possession is not necessary in a gift under Mahomedan Law. Reliance may be placed on paragraph 9 of this Judgment which is quoted herein below:
9. Mr. Manindra Nath Ghosh, learned advocate appearing on behalf of the respondents draws our attention to the deed of gift Ext. B. He refers to the recitals in the deed and contends that from the recitals-
it cannot be said that the donor delivered possession to the donees. The relevant portion of the recitals is quoted below:
From this day all my right, title and interest will devolve on you ... and your successors enjoy the property happily.
From the recitals at best it can be gathered that the donor gave out that he was divested of right, title and interest of the property and the same devolved on the donees. But from the recitals it cannot be concluded that the possession was also intended to be delivered or in fact delivered to the donees. Mr. Ghosh submits that in order to make a deed of gift valid under the Mahomedan law it is absolutely necessary that the possession should be delivered. Mr. Ghosh refers to several Articles in Tyabji's Mohamedan Law, 4th Edition to support his contention. In this connection Mr. Ghosh submits that the donor must in clear terms state "I give delivery of possession." Mr. Ghosh refers to a decision (Sugrabai v. Mohamedalli Ahmedalli). It has been held in this case that in order to constitute a valid gift by a father in favour of his minor children, it is not necessary to transfer possession, but proof of bona fide intention to give must be established. But where the trust is not merely for the benefit of the minor children of the settlor, but also of others and where the settlor has not constituted himself the sole trustee, but there are other persons appointed trustee, the transfer of possession is necessary under the Mohamedan Law". Mr. Ghosh submits that in the present case it is true that one of the donees was minor son but the other donee was major and the major son was described as guardian of the minor son in the deed of gift. This being the position, it was absolutely necessary to transfer possession. But in the present case it must be remembered that both the donor and the donees were residing in the same house which was the subject matter of the deed of gift and that being so, on the authority referred to above in cannot be said that it was necessary for the father after executing the deed to vacate the said dwelling house.
24. Another Judgment of Bombay High Court may also be referred to in this regard which lays down the same principle that in a gift under Mahomedan Law delivery of possession is not necessary when the property is under joint occupation. The observations made by learned Judge, Bombay High Court in the decision (Hayatuddin v. Abdul Gani and Ors.) in its paragraph 8 laid down the same proposition which for reference is quoted hereinbelow:
8. It is, therefore, necessary to decide in this case whether the gift is to operate with regard to the 7/8ths interest of Amnabi and Rashidbi and when in lieu of the interest certain house property has been allotted to the plaintiff in the earlier suit, the plaintiff was entitled to a declaration of ownership in respect of the property which was already in his possession. It is true that the gift deed initially proceeds on the footing that Makboolbi's share has been separated and the property described therein is stated to be belonging wholly to the two donors. But at the same time the gift deed unequivocally transfers in favour of Hayatuddin the 14 annas joint interest of the two donors Rashidbi and Amnabi. The finding that there was no partition earlier before the gift was made must be accepted for the purposes of the present litigation. But merely on that account it is not possible to hold that there was no transfer of interest of the two donors in favour of the present plaintiff. There is a clear intention on the part of the donors to divest themselves of their 14 annas interest in the property of Lalmiya and vest that property in the donee. It is also not in dispute that the interest which they purported to transfer was in the house left behind by Lalmiya and in my view, notwithstanding the finding that there was no earlier partition and the partition came to be made for the first time as a result of the decision of the 1955 suit, the gift must operate in respect of the 14 annas share of the two donors in the house in dispute. It is not disputed that there can be a gift of an undivided share under Mahomedan Law. It will not be correct to say that this is not the claim of the plaintiff. In the earlier suit the plaintiff had no doubt claimed primarily a relief of declaration that the present plaintiff was the owner of the suit property but there was also a claim for an alternative elief of partition and separate possession in the earlier suit itself. The alternative claim could not have been made except on the hypothesis that they had an undivided interest which they wanted to be separated and placed in possession of. It is alternative prayer which has been granted in the earlier suit. The argument, therefore, that at no stage was any claim made that an undivided interest was being transferred cannot be sustained. Even in the present suit the plaintiffs case is that he was the donee of 7/8th interest of Rashidbi and Amnabi and that the house property which is mentioned in the gift deed formed 7/8th interest; it is that of which he is in possession and that possession is under the gift deed now and, therefore, he was entitled to peaceful possession and enjoyment of that property. There was hardly any defence to such a suit in the face of the gift deed except the validity of the gift and the technical plea of res judicata. Now, the learned Judge of the lower Appellate Court has merely considered the case of the plaintiff on the footing that the gifted property could not be put in possession as separate property. The law relating to the gift of undivided property under Mohammedan Law is put in two parts in paragraphs 159 and 160 of the Principles of Mohammedan Law by Mulla 17th Edition. It is stated:
159. Gift or mushaa where property indivisible. A valid gift may be made of an undivided share (mushaa) in property which is not capable of partition.
160. Gift of mushaa where property divisible. A gift of an undivided share (mushaa) in property which is capable of division is irregular (fasid) but not void (batil). The gift being irregular and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated.
25. How delivery of possession of immovable property can be given is explained in paragraph 152. It contemplates three kinds of cases (1) where donor is in possession (2) where property is in the occupation of tenants; and (3) where donor and donee both reside in the property. There is evidence in this case to show that part of the property was in the occupation of tenants and plaintiff Hayatuddin was already residing in a part of the property. A gift of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee; and where the donor and the donees both reside in the property no physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift and in such a case, according to Mulla, the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject to the gift. We have in this case three documents Exts. P-1, P-2 and P-3 which indicate the steps taken by the two donors to divest themselves of this property after they had made a gift in favour of Hayatuddin. All these three notices have been issued by Shri Munawarbhai, advocate, on behalf of the two donors and the donee. Shri Munawarbhai has been examined as PW1 and he has proved these three notices. Ex. P-1 is a notice given by Makboolbi and Mahaboobi and it clearly stated that Amnabi and Rashidbi, vide registered gift deed dated 10.6.1952 had gifted their shares in the suit house to hayatuddin and also delivered possession thereof. This notice is dated 8.2.1954 and it is also stated therein that the donors and the donee desired 1 /8th share of Makboolbi to be separated by metes and bounds and the remaining portion of the house to be allotted to Hayatuddin exclusively. Exhibit P-2 is notice dated 19.2.1954 again from the donors and the donee to Mahaboobi whose status was in dispute. She had been intimated about the gift deed and delivery of possession to the donee and an allegation was made that in December 1953 she had wrongfully and unauthorisedly entered the house on the western side and forcibly and illegally occupied a portion of the suit house in which she had no interest. Damages were, therefore, claimed by Hayatuddin alone. Ex. P-3 is a notice dated 8.3.1954 on behalf of hayatuddin alone to the two tenants and they have been intimated that the property which they were occupying had come to Hayatuddin by way of gift from Amnabi and Rashidbi. It appears that these two tenants were put in possession of two parts of property by Mahaboobi. They were, therefore, asked to vacate and damages claimed. There is then the evidence of Yakumbiya (PW 3) who was one of the tenants and who admitted that he had been living in the house for the last ten to eleven years. He was paying rent to plaintiff Hayatuddin and he says that Ambabi and Rashidbi had told him that they had made the plaintiff the owner of the house and the rent was to be paid to him. According to him, there were two other tenants, Chhotumiya and Gulabbhai. They were also called and told similarly. This part of the evidence does not seem to have been seriously challenged in cross-examination. The defendant No. 1 examined himself as DW 2 and he has to admit that plaintiff Hayatuddin had been residing in the suit property since his childhood and according to him, there were tenants in the suit house. This evidence, therefore, shows that in a part of the suit property the plaintiff was living and the recitals in the gift deed also show that it was deceased Lalmiya who had brought up the plaintiff as a child and he was looking after Rashidbi. The property was thus in possession of the tenants and partly in possession of the donee himself. The declaration in the gift deed that possession was handed over to the donee and the intimations given to the tenants orally and subsequently by notices through counsel were sufficient evidence to show that the donors have done everything that was possible in the circumstances to hand over possession of the premises which they wanted to gift to the present plaintiff. In addition to this there is their conduct in joining with Hayatuddin as co-plaintiffs to have their share separated and delivered possession of. This conduct also shows that the donors had done everything possible to make the gift effective and to divest themselves of possession and to transfer to Hayatuddin said possession of the undivided portion of the property as the donors themselves had. What was necessary to make a gift of an undivided portion capable of partition valid was discussed at some length by a Division Bench of the Allahabad High Court in Hamid Ullah v. Ahmad Ullah . In that case the property consisted of six houses and three parcels of land and the donor who was not in physical but constructive possession of the property executed a deed of gift and got it registered. The document recited that the donor was in proprietary possession of the property and was conveying to the donee the same sort of possession which she possessed that she had given up all proprietary rights in the subject matter of the gift and that the donee was at liberty to make transfers of the property in any way he chose. The Division Bench held that the gift was valid as the donor had done practically all that she was able to do in the way of divesting herself of possession and giving to the donees the same possession as she had herself. In view of the speaking conduct of the donors it is difficult to hold in this case that possession of undivided share of the donors was not transferred by them to the present plaintiff.
26. In the instant case, therefore, it was a case of joint possession and Article 152(3) and 165 are clear in this aspect.
27. The learned Appellate Court below went against the principle of law and also went against the evidence on record bringing perversity in its Judgment and making it illegal.
28. The learned Appellate Court below in its finding itself observed that there is discrepancy in the DWs evidence regarding possession and in spite of the said admitted observation or finding, the Appellate Court below set aside the Judgment of the Trial Court. In the plaint as in paragraphs 8, 9 and 10 the case of possession and dispossession has been clearly made out. In paragraph 11 of the plaint the date of cause of action has been given and date of lodging diary in the appeals stand tallied with the date of cause of action and the learned Appellate Court below ought not to have found that the date of dispossession has not been given by the plaintiff and as such the question of possession is not clear and the conditions of gift under Mahomedan Law have not been fulfilled. The Appellate Court below also did not look into the fact that mutation was done in favour of donee and possession was joint.
29. The Appellate Court below all along against the principle of Mahomedan Law and also went against the evidence-on-record making the Judgment perverse.
30. In view of the discussions made above, I therefore, set aside the Judgment and decree passed by the Appellate Court below and affirm the Judgment and decree passed by the learned trial Judge.
31. The suit is therefore, decreed in favour of plaintiffs and against the defendant. The defendant is however given three month's time from the date of this order to vacate the suit premises, failing which the plaintiffs will be entitled to put the decree in execution.
Let a decree be drawn up accordingly.
In the facts and circumstances of the case the parties are to bear their own costs.
Let the records of the lower Court below be sent down to the Courts below forthwith.
Urgent xerox certified copy, if applied for, will be handed over to the parties as expeditiously as possible.