Karnataka High Court
K. Abdul Hameed vs Smt. Sabira Begum And Ors. on 14 July, 2006
Equivalent citations: AIR2006KANT289, AIR 2006 KARNATAKA 289, 2007 (1) AJHAR (NOC) 323 (KANT.) = AIR 2006 KARNATAKA 289, 2006 (5) AIR KANT HCR 410, (2006) ILR (KANT) 3281, (2007) 2 CIVLJ 531, (2007) 1 MARRILJ 358
Author: N. Ananda
Bench: H.L. Dattu, N. Ananda
JUDGMENT
N. Ananda. J.
1. This is a defendant's appeal against the judgment and decree passed in O. S. No. 145/1990 on the file of the Court of Principal Judge, Family Court, Bangalore. By the impugned judgment and decree, the learned trial Judge has declared that plaintiffs-1 to 5 are owners of the suit schedule property and defendant has been restrained from interfering with the plaintiffs possession of the suit schedule property.
2. In this appeal, parties will be referred to by their array before the trial Court.
3. The averments of the plaint in brief are as follows:
(i) The defendant is the husband of first plaintiff; their marriage was performed on 12-7-1976; plaintiffs 2 to 6 are their children.
(ii) The defendant purchased the suit schedule house from BEML Employees Cooperative Society; the plaintiffs are in possession of the same; first plaintiff had made substantial contribution for the construction of the house, so also her father late Mohammed Sarvar Sab; during the year 1983 i.e., on 28-10-1983 the defendant made a Hiba (oral gift) of the suit schedule property in favour of plaintiffs- 1 to 5 in the presence of relatives and friends of parties and this was followed by execution of a declaratory affidavit by the defendant in favour of plaintiffs- 1 to 5 on 22-9-1984.
(iii) There were some dissentions between the first plaintiff and defendant since one year prior to the institution of the suit as the defendant developed extra marital relationship with one lady and started living with her; thus, totally deserted and neglected the plaintiffs.
(iv) The first plaintiff on her behalf and on behalf of her children, filed a petition for maintenance in Criminal Miscellaneous petition No. 194/1990 and maintenance was awarded to the plaintiffs at the rate of Rs. 1200/- per month; when the order was sought to be enforced, defendant made attempts to dispossess the plaintiffs from suit schedule house on 19-12-1990.
4. It is relevant to state that when the suit was instituted, first plaintiff had sought for a decree of permanent injunction. Subsequently, after written statement was filed by the defendant denying plaintiffs right to be in lawful possession of suit schedule house, an application was filed by the plaintiff to amend the plaint to include relief of declaration of plaintiffs' title to the suit schedule property, which though rejected by the trial Court, came to be granted by this Court in W. P. No. 18403/1993 dated 8-9-1993.
5. The averments of written statement in brief are as follows:
(i) Relationship of defendant with plaintiffs- 1 to 6 is admitted; averments of the plaint relating to Hiba (oral gift) on 28-10-1983 and execution of declaratory affidavit by the defendant on 22-9-1984 are denied as false; declaratory affidavit dated 22-9-1984 is a forged and concocted document;
(ii) Ever since the date of marriage, first plaintiff was a troublesome lady; first plaintiff along with her children went to her parents' house at Cuddapah; she did not return for a long time; when defendant went to his father-in-law's house to bring her back, there were attempts to kill him by the younger sister and mother of first plaintiff; however, the defendant with great difficulty, escaped and returned to his house.
(iii) The object of first plaintiff was to kill the defendant to devour his service benefits and also to get a job on compassionate ground; first plaintiff was living in adultery; the defendant himself had seen the first plaintiff sleeping with a stranger in his house; however, that stranger ran away and could not be identified by the defendant.
(iv) The first plaintiff had addressed two letters dated 8-2-1990 and 17-2-1990 to defendant's father and defendant respectively; under the circumstances, defendant had no other go except to divorce the first plaintiff; on 14-3-1990 defendant pronounced Talaque-E-Bain (pronounced Talaque thrice) as per Muslim law in presence of witnesses and sent a divorce notice to first plaintiff on the same day; after divorce was pronounced, two cheques for a sum of Rs. 525/- dated 14-3-1990 and Rs. 600/- dated 6-4-1990 were sent by defendant as dower amount; the cheque for Rs. 525/- was received by first plaintiff and other cheque for Rs. 600/- was refused by first plaintiff. Similarly, Iddat amount by way of a cheque for Rs. 150/- dated 14-3-1990 and another cheque for Rs. 350/- dated 6-4-1990 were sent to first plaintiff by defendant and one of the cheques was received and the other was refused by the first plaintiff.
(v) After the Talaque was pronounced, same was communicated by two letters to Shafiulla Rashad, Bangalore and Devaband Daral Afta U.P. (the religious head); they have confirmed the divorce and it is a irrevocable divorce. Thus divorce was completed as per Muslim Law.
(vi) first plaintiff is not the wife of defendant and she has no right whatsoever over the suit schedule house including the right to live in that house; the first plaintiff, with police help, gained forcible entry into the suit schedule house; the police, by holding out threats to the defendant, made him to hand over keys of the house to first plaintiff; the defendant succumbed to such threats to avoid harassment by police having regard to his official position as Senior Inspector in BEML and also to preserve his reputation in the family and general public. Though defendant approached higher police officers, they refused to intervene stating that dispute is of civil nature.
(vii) The defendant filed G & WC No. 73/1990 claiming children under his custody.
(vii) The site on which the house is constructed was purchased by defendant from BEML Employees Co-operative Society on instalment basis and the amount was paid out of his salary earnings; the defendant constructed the suit schedule house by raising loans from HDFC, PF and his savings; he had not received a single paise from father of first plaintiff nor he had demanded any money either for acquiring site or for constructing the house.
Under the circumstances, the defendant prayed for dismissal of the suit.
6. On the above pleadings, trial Court framed the following issues and additional issues.
(1) whether the plaintiffs are in lawful possession of the suit schedule house?
(2) Whether the alleged interference is true?
(3) whether the plaintiffs are entitled for permanent injunction as prayed for?
Addl. Issues (4) Whether the plaintiffs have become the absolute owners of the suit schedule house as pleaded by them?
(5) To what reliefs are the parties entitled?
7. On behalf of the plaintiffs, first plaintiff was examined as P. W. 1. One S. M. J. Ghouse Shah was examined as P. W. 2 and Smt. Zubeera Begum, Advocate, Bangalore was examined as P. W. 3. The documents produced by plaintiffs are marked as Exs. P-l toP-13.
On behalf of the defendant, defendant got himself examined as D. W. 1 and one Sri Shankar Reddy, the then Revenue Inspector, BDA was examined as D. W. 2. The documents produced by the defendant are marked as Exs. D-l to D-54.
8. The learned trial Judge, after hearing learned Counsel for the parties, probably at length, with reference to pleadings, evidence on record and various legal aspects, answered issue Nos. 1 to 5 in favour of the plaintiffs and decreed the suit by granting the reliefs as aforestated.
9. We have heard learned Counsel for the defendant and plaintiffs.
10. The learned Counsel for defendant has made the following submissions:
(i) There is no satisfactory evidence in proof of oral gift dated 28-10-1983 and declaratory affidavit dated 22-9-1984. The evidence of P. Ws. 1 to 3 in proof of these facts is discrepant, unreliable and incredible.
(ii) There is no proof of acceptance of gift and delivery of possession of subject of gift and the very subject of gift i.e., suit schedule house had not been constructed on 22-9-1984.
(iii) The learned trial Judge has not properly appreciated the evidence on record and therefore, the impugned judgment and decree cannot be sustained.
11. The learned Counsel for the plaintiffs justifying the impugned judgment and decree, submitted that plaintiffs have proved Hiba dated 28-10-1983 and declaratory affidavit dated 22-9-1984. The suit house was very much in existence on 28-10-1983 and all the necessary ingredients namely, declaration of gift by defendant, acceptance of gift and delivery of possession as required under Mohammadan Law have been proved by cogent and acceptable evidence. Therefore, impugned judgment and decree do not call for any interference.
12. Having heard the learned Counsel for parties and having gone through the impugned judgment with reference to pleadings and evidence on record and bearing in mind law on the point and scope of this appeal, we formulate the following points for determination:
(1) Whether plaintiffs have proved Hiba (oral gift) dated 28-10-1983 and declaratory affidavit dated 22-9-1984?
(2) Whether there was valid acceptance of gift?
(3) Whether the gift was followed by delivery of possession of suit schedule house to the plaintiffs?
(4) Whether the trial Judge has properly appreciated the evidence in proper perspective?
(5) Whether the impugned judgment and decree calls for interference?
(6) What order?
13. Our findings on the above points and reasons therefor are as follows:
Re : Point No. (1) Before adverting to the evidence in proof of Hiba dated 28-10-1983 and declaratory affidavit dated 22-9-1984, it would be appropriate to refer to Mohammadan Law on the subject of gift inter vivos. In the case of MD. Abdul Ghani Khan v. MT. Fakhr Jahan Begum, reported in AIR 1922 PC 281 at page 288 it was held by the Judicial Committee as follows:
In considering what is the Mohammadan Law on the subject of gift inter vivos, their Lordships have to bear in mind that when the old and admittedly authoritative texts of Mohammedan law were promulgated there were not in the contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Mohammadan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift.
In the case on hand, from the averment made in the written statement, in particular, that since the date of marriage first plaintiff was a troublesome lady and defendant had apprehension to his life at the hands of first plaintiff, it looks probable that defendant was trying to distance away from plaintiffs - 1 to 5, which had given rise to disputes between defendant and first plaintiff; by then first plaintiff had as many as four children. It also looks probable that the conduct of defendant had instilled a sense of insecurity in the mind of first plaintiff about herself and future of her children- Plaintiffs-2 to 5.
It is in the evidence of first plaintiff that she had contributed a sum of Rs. 33,000/-for construction of suit schedule house and the said sum was realised by selling her gold jewels. The defendant has denied this fact. Ex. P-4 is the leaf let of defendant's diary wherein the defendant has made certain entries relating to amount spent by him for execution of certain items of work during construction of suit house and also regarding sale of certain gold jewels. It is true that defendant has denied to have made entries in Ex. P-4. But, on a careful perusal of the entries made in Ex. P-4, we find that contents of entries relating to expenditure and payments made by defendant towards different items of construction were within the exclusive knowledge of defendant. During the cross-examination of the defendant, he has admitted that certain gold ornaments belonging to the first plaintiff were sold and the amount realised was spent for construction of suit house. Therefore, evidence of P. W. 1 that she contributed substantial amount for construction of suit house by selling her gold jewels appears to be probable.
As stated earlier, we have the oral evidence of P. W. 1 to P. W. 3 in proof of Hiba dated 28-10-1983 and declaratory affidavit dated22-9-1984 P. W. 1 has given evidence about the presence of witnesses when Hiba was made by defendant. She has also given evidence in proof of execution of declaratory affidavit dated 22-9-1984 (Ex. P-l). She has admitted her signature on Ex. P-1. After going through the cross-examination of P. W. 1, we do not find any discrepancy to discard her evidence relating to declaration of Hiba made by defendant on 28-10-1983 in the presence of her father and father of defendant. There are no reasons to discard her evidence in proof of declaratory affidavit dated 22-S-1984.
P.W. 2-Alhad Ghouse Mohammad Sheriff Shah is a preacher. The defendant was his disciple. He has given evidence in proof of Hiba made by defendant in favour of plaintiffs- 1 to 5 on a certain day during October, 1983 in the suit schedule house, in the presence of father of first plaintiff and father of defendant. He has also given evidence about execution of declaratory affidavit during September, 1984. He has stated that defendant took him to the office of P. W. 3 - Zubera Begum, Advocate. P. W. 3 read over the contents of Ex. P-l. The defendant signed Ex. P-1 so also first plaintiff. Document was attested by P. W. 2 and one Salauddin. He has identified his signature and also signatures of defendant and first plaintiff on Ex.P-1. He has also stated about notarisation of document-Ex. P-1 before Notary Public-Smt. Lalithamma.
During the cross-examination, P. W. 2 has stated except preaching, he has no other avocation. He is known as 'Peer Murshad' whose job is to put the disciples in a right path and preach religious things of Islam. The defendant has attended several religious discourses held by P. W. 2 in his house.
From the cross-examination of P. W. 2, we do not find any discrepancy to disbelieve his evidence. P. W. 2 has taken to the life of religious order, he had nothing to add or anything to hide. It is not suggested to P. W. 2 that he had any favours to seek from plaintiffs or any scores to settle with the defendant. On the other hand, from the evidence of P. W. 2 we find that defendant was his disciple and defendant had brought him to the suit house on the date of declaration of oral gift (Hiba) by defendant in favour of plaintiffs- 1 to 5. His evidence looks natural more particularly in the context of the fact that defendant has made Hiba to none else than his wife and children.
P. W. 3-Zubera Begum, advocate at Bangalore has stated about execution and attestation of Ex. P-1 by first plaintiff, P. W. 2 and one Salauddin. She has stated that she has identified the signature of defendant for notarisation of the document before Notary Public.
P. W. 3 has stated that she has been practising at Bangalore since 1957 and as on the date of giving evidence, she had completed 40 years of practice. During the course of cross- examination, there is not even a suggestion that witness had contrived with plaintiffs to fabricate Ex. P-l. There is nothing on record to indicate that witness had ever resorted to manipulation or fabrication of documents or conducted herself in a manner unbecoming of an advocate. Therefore, we find no reasons to disbelieve the evidence of P. W. 3.
14. The defendant in his evidence has narrated in detail all the events, which according to him, are causes for divorcing first plaintiff. He has also given evidence about the character of first plaintiff more particularly with reference to alleged adultery committed by first plaintiff during the year 1989 though it is not a fact in issue.
The defendant has denied to have executed Ex. P-1. According to him, after his denial of Hiba dated 28-10-1983 in the written statement, first plaintiff started developing her case that Ex. P-1, came to be executed in pursuance of Hiba dated 28-10-1983. He has stated that P. Ws. 1 to 3 have given a false evidence. However, he has not given reasons nor he has attributed any motive to P.. Ws. 2 and 3 to give false evidence. He has denied that his wife - P. W. 1 had contributed substantial amount for construction of suit house.
D. W. 1 while admitting the group photograph - Ex. P-9 wherein defendant and plaintiffs-1 to 6 amongst others are seen, has stated that differences between first plaintiff and defendant started in the year 1983-84 only with the intention of casting suspicion on the declaration of Hiba and due execution of Ex. P-l. During the cross-examination, defendant has admitted contents of Ex. P-5 i.e., certified copy of additional statement of objections filed by him in W. P. No. 18403/1993. At this stage, it is relevant to refer to the contents of Ex. P-5 wherein defendant has stated:
Petitioner (first plaintiff in the instant case) has forged and fabricated the said document which is marked as Annexure-A (a copy of declaratory affidavit dated 22-9-1984). The respondent (defendant in the instant case) submits that petitioners had purchased 7 non judicial stamp papers just before filing this writ petition No. 18403/1993 and got it typed, the petitioners have taken signature of respondent which are signed in O. S. No. 145/1990 and got it tored only the signature of respondent and have placed in the end of 7 non judicial stamp papers and got it xerox and also the witnesses knowing fully well that it is a forged and fabricated document, have signed the same and also the same is verified by an advocate, who had also knew fully well that it is a forged document. In the same way. Notary also.
It is needless to state that this objection statement filed by defendant in W. P. No. 18403/1993 was supported by verifying affidavit of defendant.
The defendant is a diploma holder in Mechanical Engineering and he holds a responsible post in BEML, Bangalore. Under these circumstances, the averments made by the defendant in Ex. P-5 to disown his signatures on Ex. P-l can neither be comprehended nor accepted.
15. In view of the discussion made supra, we hold that evidence of P. Ws. 1 to 3 in proof of Hiba dated 28-10-1983 and declaratory affidavit dated 22-9-1984 is cogent, clinching and credible. On the date of Hiba dated 28-10-1983 defendant did not have any reason to deviate the course of devolution of property according to law amongst his heirs. There is nothing unnatural if the defendant (donor) had gifted his house to plaintiffs-1 to 5 (donees) who are none other than his wife and children. For the reasons stated above, we hold that plaintiffs have proved Hiba dated 28-10-1983 and declaratory affidavit dated 22-9-1984 and answer point No. 1 in the affirmative.
Re : Point No. (2):
16. The main plank of defence is that suit house had not been constructed either on the date of Hiba dated 28-10-1983 or on the date of declaratory affidavit dated 22-9-1984. The defendant has produced tax paid receipts marked as Exs. D-47 to D-52 and he has also examined D. W. 2 - Shankara Reddy, the then Revenue Inspector of BDA to establish that property tax was assessed only after construction of house was completed in the year 1987. We are not impressed by the evidence of D. W. 2 or from the contents of Exs. D-47 to D-52 in view of the contra evidence available on record. If the defendant had postponed to subject the suit house for tax assessment, probably in order to avoid payment of tax, that cannot be a ground to hold that construction of house was completed during the year 1987. The plaintiffs have produced a copy of letter dated 23-11 -1983 (marked as Ex. P-13) addressed by defendant to the Personnel Officer, RC Division, BEML, Bangalore-75, wherein defendant has intimated that he has completed construction of suit house and occupied the same on 14-10-1983. The defendant has also produced a copy of loan sanctioned intimation dated 31-12-1981 (marked as Ex. D-3) given by HDFC to defendant wherein it is stated that pursuant to the application dated 5-10-1981 given by defendant, HDFC has sanctioned a sum of Rs. 20,000/- as housing loan. The defendant has been called upon to complete other formalities to avail the loan.
Therefore, we hold that suit schedule house had been constructed and was in occupation of the plaintiffs and defendant as on the date of Hiba dated 28-10-1983 and answer point No. 2 in the affirmative.
Re: Point No. (3):
17. The defendant has contended that there was no acceptance of gift and delivery of possession of suit schedule house. In the discussion made supra, we have held that suit house was in existence as on the date of Hiba dated 28-10-1983. It is not in dispute that as on the date of Hiba, plaintiffs-1 to 5 and defendant were residing together in the suit house. Considering the relationship between donor and donees, actual or physical delivery of property by donor and acceptance of the same by donees was non-called for. It is also not necessary that delivery of possession and acceptance of possession should have been followed by divestment of physical possession by defendant.
18. At this juncture, it is necessary to refer to Sections 152(3) and 155 of Mohammadan Law which read as under:
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.
155 : Gift to a minor by father or other guardian:
No transfer of possession is required in the case of a gift by a father to his minor child or by a guardian to his ward. All that is necessary is to establish a bona fide intention to give.
In the case of Kadderanbi and Ors. v. Fatimabi and Ors. , at relevant page 413, it is held:
The general rule is that a donor must divest himself of all the control of the property which is the subject matter of the gift. Delivery of possession has, therefore, got to be a concomitant of the gift.. But, when a father gifts property to his child, the position is peculiar. While it is true that law does not find anything wrong for the father to gift his property to his child, the difficulty arises from a twofold position. Firstly, a minor may not be physically able to be in possession of the property except through his guardian and, secondly the father is himself the guardian of the property of his minor child. Delivery of possession by a Mohamedan father to his minor child is, for all practical purposes, delivery by right hand to the left hand. This is evidently the reason why the strict requirement of delivery of possession is not strictly insisted upon in the case of a bona fide gift by the father to his minor child. In a sense the requirement continues, but it is fulfilled in a somewhat different manner. Till the date of the gift, the father is in possession of the relevant property on his own behalf, from the date of the gift he is in possession of the same, but only on behalf of the minor.
Therefore, in view of the above provisions of law and the decision cited supra, in the instant case, delivery of possession by defendant to plaintiffs, is for all practical purposes, delivery by right hand to left hand.
The defendant has also raised a contention that first plaintiff who is the mother of plaintiffs- 2 to 5 was not legally competent to be guardian of plaintiffs - 2 to 5 who were minors at the time of alleged Hiba. Therefore, acceptance of gift by first plaintiff on behalf of plaintiffs 2 to 5 is invalid and gift has been rendered void by such invalid acceptance.
In the case of Ibrahim Shah Mohamad and Ors. v. Noor Ahmed Noor Mohamed and Ors. , it is held:
Where the father, the guardian of his minor son under Mohamedan law, was himself making a gift of immovable property to his said minor son, handling over possession of the property to the mother would not invalidate the gift merely because she could not act as the guardian if the minor's grandfather was alive. The law intends to make a gift valid and legal as far as possible so as to give full justice to the desire of the donor. Where there was no other guardian of the property or person of the minor and the mother was the only other person who could look after the interest of the minor, acceptance of the gift by the mother was not illegal or invalid. In such cases the benefit to the minor and the completion of the gift for his benefit was, the sole consideration.
19. In view of our findings on point No. (2) that defendant gifted the suit house to plaintiffs - 1 to 5, acceptance of gift by first plaintiff for herself and on behalf of plaintiffs- 2 to 5 is a valid acceptance. Therefore, we reject the contention raised by defendant regarding acceptance of gift.
Re : Point Nos. (4) & (5):
20. We have carefully gone through the impugned judgment. The defendant has taken all conceivable defences, both tenable and untenable. The learned trial Judge has answered all the defences raised by the defendant with reference to pleadings, evidence and also bearing in mind law on the point. Therefore, we hold that the trial Judge has properly appreciated the evidence on record. The impugned judgment is a well reasoned judgment touching on all aspects of the case and does not call for any interference. Hence, point Nos. (4) & (5) are answered in affirmative.
21. In view of our findings on point Nos. (1) to (5), we pass the following order:
Appeal is dismissed. Parties are directed to bear their costs.