Patna High Court
Ismail And Ors. vs Idrish And Ors. on 10 August, 1973
Equivalent citations: AIR1974PAT54, AIR 1974 PATNA 54, ILR (1974) 53 PAT 452
JUDGMENT
1. This appeal by defendants Nos. 1 to 3 arises out of a suit brought by respondent No. 1 for partition of Kast lands of village Pachrukha Tola Mokhlishpur, Police Station Motibari Muffasil, appertaining to Tauzi No. 911, in the district of Champaran.
2. According to the parties, the common ancestor was Sheik Bhikhu, who had two sons--Sheikh Pahari and Sheikh Langat. A partition was effected between the heirs of the two brothers and separate possession of the branches of each of the two brothers was noted during the revisional survey operation. The land of Khata No. 64 to the extent of 17 Kathas 7 dhurs was recorded in the names of Sheikh Khoda Bux, Sheikh Gudar, Sheikh Revasat Ali and Sheikh Gulzar, who were the heirs of Sheikh Langat, and the heirs of Sheikh Pahari also got possession to the extent of half in that land. The case of the plaintiff-respondent No. 1 was that the lands described at the bottom of the plaint were coming in joint possession of the respondent No. 1 and the appellants, although they were cultivating the lands separately, there had been no partition by metes and bounds. Hence the suit.
3. The case of the appellants was that there was no unity of title and unity of possession between them and respondent No. 1. According to them, the present suit for partition was virtually brought for the cancellation of the deed of gift dated 24-1-1956 executed by Sheik Reyasat Ali in favour of these appellants and for declaration of title of the respondent No. 1. According to them the parties, were entirely separate. The lands detailed in the schedule of plaint were the self acquired property of Reyasat Ali, the father of the appellants, as well as respondent No. 1, which he gave to the appellants by means of a registered deed of sift (Hibbanama) dated the 24th January 1956. The area conveyed by the deed of gift was 6 Bighs 15 Kathas 151/2 Dhurs. As the other defendants have not appealed to this Court, the finding of the Court below in respect of other lands is affirmed.
4. The present appeal is confined only to 6 Bighas 15 Kathas 151/2 Dhurs of land which, according to the case of the appellants, was given to them by their father Reyasat Ali by means of a registered deed of gift dated the 24th January 1956. Mr. Prem Lal. Learned counsel for the appellants, did not challenge the findings of fact arrived at by the Court below. In view of the submissions made by him and Mr. Md. Khaleel, Counsel for the respondent No. 1, only two points arise for consideration, namely.
(i) As to whether there was a valid gift in the eye of law by Reyasat Ali in favour of the appellants?
(ii) Even if the deed of sift was a valid document in the eve of law, was it hit by the law of Mushas?
5. The finding of the learned trial Court is that the execution of the deed of gift stands proved as respondent No. 1 did not challenge its execution by Reyasat Ali. It has further found that there was no reliable evidence to substantiate the case of fraud and undue influence as alleged by respondent No. 1'. The further finding arrived at by the Court below is that the appellants have proved that "there was a declaration of gift by donor and that they (the appellants) had accented the gift."
6. It may be stated that the deed of gift dated the 24th January, 1956 (Ext. A) was filed in Court from the custody of, the appellants. A clear recital has been made therein by Revasat Ali (who died prior to the institution of the suit) that 6 Bighas and odd land covered by Ext. A was his self acquisition. It is also stated therein that respondent No. 1 had left this house long before and married a Chamarin and was living in her house, due to which the father Revasat Ali was extremely aggrieved. There is also a clear recital in Ext. A. that due to services rendered by the appellants, the donor executed a Hibbanama and put the donees in possession of the lands treating them as full owners of the same. There is a further recital which goes to show that whatever interest or title the donor had in the lands was transferred to the appellants, who were given possession from the date of the execution of the Hibbanama and the donor had no title or interest left in the same. If any claim is made by the donor or his heirs, such a claim will be deemed to be null and void and of no consequence so as to affect the transaction. Thus there is a clear recital in the deed of gift (Hibbanama) that the lands were given in gift to the appellants and they were put in possession of the same.
7. The point that arises for consideration, in face of the above recitals in Ext. A, is that even if the donees are not found in possession subsequently, can this fact invalidate the deed of gift? In the case of Muhummad Mumtaz Ahmad v. Zubaida Jan (1888) 16 Ind APP 205 (PC), their Lordships of the Judicial Committee held that a declaration by the donor in the deed of gift that possession had been given binds the heirs of the donor, and if possession was once taken, no subsequent change of possession would invalidate the gift. To the similar effect is the decision of their Lordships of the Privy Council in Nawab Mirza Mohamad Sadiq Ali Khan v. Nawab Fakr Jahan Begam (AIR 1932 PC 13). In that case also the deed contained the recital "I deliver possession of the gifted property to my said wife" and the deed of gift was handed over to the wife. It was held that the declaration in the deed of gift must be regarded as binding on the heirs of the donor and that actual vacation by the husband and an actual taking of separate possession by the wife was not necessary. It was also held that the declaration made by the husband, followed by the handing over of the deed, was amply sufficient to establish a transfer of Possession. In the instant case also, as the deed of gift has come from the custody of the appellants, it can be safely presumed that it was handed over by Sheikh Reyasat Ali to the appellants. In the case of Basirul Huq v. Mohammad Ajimuddin (3 Pat LW 213) = (AIR 1918 Pat 291) it was laid down that where the gift was of an interest in land, the donor was not required to transfer the corpus of the property but only possession of that interest, and if the donor had done all that lay in his power to transfer that interest, then the omission to deliver the corpus was immaterial. To the like effect is the decision in Valia Katheessa Umma v. Narayanath Kunhammu (AIR 1964 SC 275). Reference may also be made to the case of Anwari Begum v. Nizamuddin Shah ((18991 ILR 21 All 165).
8. The learned Additional Subordinate Judge in the present case has found that the execution of the Hibbanama was not challenged on behalf of the respondent No. 1 and that it was not hit by fraud or undue influence. He has also found that there was a declaration of the sift by the donor and acceptance of it by the appellants, and then he went into the question of possession pf the lands by the appellants. Ho found that the names of the appellants had not been mutated and they had no rent receipts to their credit. Although the trial Court branded the objection petition alleged to have been filed by Reyasat Ali (Ext. 11 in the Court of the Block Development Officer, objecting to the mutation of the names of the appellants, as "not a genuine document" and refused to hold on that basis that the donor had revoked the deed of gift (Ext. A). he found that as the deed of gift was intended to defeat the claim of respondent No. 1 it was bad in the eve of law. He also found that possession of the appellants had not been proved over the lands covered by the deed of gift (Ext. A). In the earlier part of the judgment the trial Judge held that there was a valid declaration of the gift and acceptance of it by the appellants, there being a clear recital in the deed of gift (Ext. A) to the effect that the donor had divested all his interest in the lands and transferred the same to the appellants, the subsequent possession of respondent No. 1 cannot detract anything from the completeness of the gift (vide (18881 16 Ind App 205 (PC) supra).
9. According to the learned Additional Subordinate Judge, the question of possession was most material as it was a gift of an undivided share in land, as by means of Ext. A. the undivided share in the Kaimi raivati land had been sifted to the appellants. If the law of Mushaa was applicable to the undivided share in Kaimi raivati land the finding of the learned additional Subordinate Judge would have been of some consequence, but it is settled that a gift of an undivided share in kaimi raivati land is valid and the doctrine of Mushaa is inapplicable in such a case vide Abdul Aziz v. Fatheh Mahomed Haji ((1911) ILR 38 Cal 518). This decision was followed by a Bench of this Court in the case of Kanij Fatima v. Jai Narain Ram (AIR 1944 Pat 334).
10. The admitted position in this case is that the lands transferred under the deed of gift (Ext. A) were Kast Kaimi lands and, therefore, the learned Additional Subordinate Judge was wrong in holding that Ext. A was hit by the doctrine of Mushaa.
11. The result, therefore, is that the appeal is allowed. The judgment and decree, so far as it affects the interest of the appellants is set aside and the suit of the respondent No. 1 to that extent is dismissed. There will be, however, no order for costs of this Court.