Karnataka High Court
M S Mahboob vs K B Shariff on 6 January, 2023
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
R.F.A.NO. 1474/2006(DEC)
BETWEEN:
M.S.MAHBOOB
SINCE DECEASED BY HIS LRS
1. SYED BAKHAR
DECEASED BY LRS.,
a) SMT.GOWHAR BANU
W/O LATE SYED BAKHAR
AGED ABOUT 52 YEARS
b) SMT.RUBINA TARANUM
D/O LATE SYED BAKHAR
AGED ABOUT 27 YEARS
c) SYED ADIL IRFAN
S/O LATE SYED BAKHAR
AGED ABOUT 24 YEARS
ALL ARE RESIDING AT NO.27/2
CUNNINGHAM ROAD,
BANGALORE-560 052.
2. SYED IQBAL AHMED
3. SYED NIAZ AHMED
2
4. SYED NISSAR AHMED
5. MS.AKHTAR BANU
6. MS.GOUHAR BANU
7. MS.JOWHAR BANU
ALL ARE MAJORS AND APPELLANT
NOS.1-4 ARE THE SONS AND
5-7 ARE THE DAUGHTERS OF
LATE M.S.MAHBOOB
RESIDING AT NO.27/2, AND 27/3
CUNNINGHAM ROAD
BANGALORE-560052
... APPELLANTS
(BY SRI MAHBOOB ALIKHAN, A/W
SRI VASANTH V. FERNANDES, ADVOCATES)
AND:
1. K.B.SHARIFF
AGED ABOUT 84 YEARS
S/O LATE KHADER SHARIFF
REPRESENTED BY HIS SON
AND P.A.HOLDER
SRI FAIROZE, MAJOR
NO.24, KENCHAPPA ROAD
FRAZER TOWN, BANGALORE-560 005
SINCE DECEASED BY LR
a) SRI ZEESHAN SHARIFF
S/O FAIROZE
AGED ABOUT 28 YEARS
PERMANENT RESIDENCE AT
NO.24, KENCHAPPA ROAD
3RD CROSS, FRAZER TOWN
BANGALORE-560 005.
3
2. SYED SHAKEEL AHMED
SINCE DECEASED BY HIS LRS.,
i) MUMTAZ BEGUM
WIFE, AGED 37 YEARS
(ii) MASTER IRSHAD
SON, 15 YEARS
MINOR
BY GUARDIAN AND MOTHER
MUMTAZ BEGUM, AT NO.(i)
NO.27, CUNNINGHAM ROAD
BANGALORE.
...RESPONDENTS
[BY SRI Y.K.NARAYANA SHARMA,ADV.FOR R1(A) LR. OF
R1; R2(1) IS SERVED BUT UNREPRESENTED;
R2(2) IS MINOR REPRESENTED BY R2(1)]
THIS APPEAL IS FILED UNDER SECTION 96 OF
CPC AGAINST THE JUDGMENT AND AWARD DATED
13.03.2006 PASSED IN O.S.NO.10614/92 ON THE FILE
OF THE XXVIII ADDL. CITY CIVIL JUDGE, MAYOHALL
UNIT BANGALORE, DECREEING THE SUIT FOR
DECLARATION AND POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 27.10.2022, COMING
ON FOR 'PRONOUNCEMENT OF JUDGMENT' THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
1. The present appeal is directed against the judgment and decree dated 13.3.2006 passed in OS No.10614/1992 on the file of the XXVIII Additional City 4 Civil Judge at Mayohall Unit, Bengaluru, whereby the suit of the plaintiff came to be decreed with costs.
2. Parties are referred to as plaintiff and defendant for the sake of convenience as per their rankings before the Trial Court.
3. Brief facts which are necessary for disposal of the appeal are as under:
Plaintiff filed a suit for declaration seeking an order of declaration that he is the absolute owner of the property bearing Corporation No.27/3 situated in the ground floor Cunningham road, Civil Station Bengaluru-
52 to the extent of 50% bounded on East by - premises No.26 Dr.Warrior's house; West by - Premises No.29 Syed Mohiyuddin Sahib's house; North by - Premises No.27 and 27/1, Cunningham Road and South by -
Queen's corner, hereinafter referred to as the 'Suit Property' for short.
5
4. Plaint averments reveal that he is the sole and absolute owner of the suit property having purchased the same from the defendant for a valuable consideration through a registered sale deed dated 6.4.1988. After purchase of the suit property, plaintiff got mutated the revenue entries in his name and he was paying taxes to the Corporation. Defendant who is the owner in occupation of the schedule property agreed to deliver the vacant possession of the property but pleaded his inability to deliver the possession on the same day and he sought for little time to find out a alternate accommodation. Accordingly, on 6.4.1988 itself, another agreement was entered into, whereby, the plaintiff permitted the defendant to continue in the suit property and under the agreement, defendant paid a sum of Rs.80,000/- as security deposit. Subsequently, defendant took Rs.30,000/- from the plaintiff on 30.7.1990 on the pretext that she has to pay advance amount for the alternate accommodation and agreed to vacate the premises soon after he obtain 6 the alternate accommodation. Learned counsel for the plaintiff agreed and parted away a sum of Rs.30,000/- to the defendant but the defendant failed to vacate the premises. Despite several requests, defendant failed to vacate the premises, therefore, plaintiff was constrained to file the suit with the aforesaid prayer.
5. On receipt of the suit summons, defendant appeared before the Court and during the pendency of the suit, defendant died and therefore, his legal representatives were brought on record. Legal representatives of the defendant filed detailed written statement denying the plaint averments in toto. The legal representatives of the defendant have gone to the extent of denying the very ownership over the suit schedule property and they also contended that the sale deed dated 6.4.1988 is not a sale deed at all and the same has been concocted by the plaintiff and sought for dismissal of the suit.
7
6. The legal representatives of the defendant also contended that their father Mehaboob had executed a Hiba in favour of his sons and therefore, the very sale deed in favour of the plaintiff by the defendant itself is illegal and under the said sale deed no rights have been flown to the plaintiff and sought for dismissal of the suit.
7. The legal representatives of the defendants also contended that the sale deed dated 6.4.1988 is a fraudulent document and the same is obtained by the plaintiff by misrepresenting Sri Mehaboob, who is the defendant and sought for dismissal of the suit.
8. He further contended that Mehaboob was a heart patient and the plaintiff approached him for financial assistance in the form of loan in a sum of Rs.75,000/- for his treatment and taking advantage of health condition and the dire need of money, in the guise of executing a deed of mortgage, plaintiff got the 8 sale deed executed in his favour and sought for dismissal of the suit.
9. Based on the rival contentions of the parties, the Trial Court framed the following issues:
"(1) Whether plaintiff proves that he is the sole and absolute owner of the suit property in pursuance of sale deed dated 6.4.88?
(2) Whether plaintiff proves that defendant pleaded inability to deliver vacant possession of the suit property as averred in para-4 of the Plaint?
(3) Whether Plaintiff further proves that defendant paid to him Rs.80,000/-on 6.4.88 as security deposit and that plaintiff was to hold the same until the defendant vacates the said suit property as averred in para-4 of the plaint?
(4) Whether the plaintiff proves that the defendant received from him Rs.30,000/- out of Rs.80,000/- on 30.7.90?
(5) Whether plaintiff proves that the occupation of the suit property by the defendant on 7.4.89 is unauthorized and is illegal and that the defendant is liable to pay mesne profits from 9 7.4.89 till date of suit at Rs.1000/- per month as averred in para-8 of the plaint?
(6) Whether LRs of defendant prove that their father late Sri. M.S. Mahaboob gifted the entire suit property to them on 4.12.85 by means of a valid Hiba as averred in para-2 of the W.S.?
(7) Whether LRs of defendant prove that they have become sole owners of the suit property in pursuance of Hiba dt. 4.12.85?
(8) Whether LRs of defendant prove that the sale deed dt.6.4.88 is a fraudulent document obtained by the plaintiff by practicing fraud and misrepresentation on late Sri.M.S. Mahaboob, as averred in para-3 of the W.S.?
(9) Whether LRs. of defendant prove that the plaintiff got the defendant to sign document stating that it was a mortgage deed and the plaintiff also obtained signature of the sons of defendant who appended the same without reading the document as averred in para-3 of the W.S.?
(10) Whether LRs. of the defendant further prove that plaintiff got the signatures of late M.S. Mahaboob and his son to the document containing document containing several sheets of 10 stamp paper representing that it was in mortgage deed and that they signed the same believing the plaintiff's representation as averred in para-6 of W.S.?"
10. In order to prove the case of the plaintiff, plaintiff got examined himself as PW-1 and relied on 21 documents, which were exhibited and marked as Exs.P1 to P21 comprising of GPA, Medical certificate, Evaluation Sheet, Copies of the sale deeds and sale deed, Katha certificate, Tax paid receipts, Agreement, Income Tax clearance, Demand notice, certified copy of the plaint in OS No.570/96, Assessment extract and letter.
11. On behalf of the defendants, Syed Bakher, one of the sons of Mehaboob was examined as DW-1 and on his behalf two more witnesses by names C.R.Mohd. Saifn Uddin and S.A.Khudus are examined as DWs.2 & 3. On behalf of the defendants, 17 documents were relied on which were exhibited and marked as Exs.D1 to D17. Comprising of Affidavit, Letter of Appollo 11 Hospital, Medical records, Accounts certificate, Death certificate and Pass books.
12. Learned Trial Judge on conclusion of recording of the evidence, heard the parties in detail and decreed the suit of the plaintiff as referred to supra.
13. Being aggrieved, by the same, legal representatives of the deceased defendant have preferred the present appeal on the following grounds:
"That the Trial Court erred in not bearing in mind the well settled principle of law that in a suit for declaration of title to property and consequential relief of possession thereof based on title it is incumbent upon the plaintiff to prove and establish the title independently, irrespective of the defence pleaded by the defendant. The Trial Court erred in not holding that the plaintiff had failed to prove independently that he had acquired valid title to the suit property as pleaded by him.
That the Trial Court erred in not holding that the plaintiff had not acquired valid title to the suit property from the defendant as the defendant M.S.Mahboob was not the owner of the said 12 property as on 6.4.1988 when the sale deed was allegedly executed by him, as he had already gifted away the property to his sons in the year 1985, and as such he could not have conveyed any valid title or possession to the plaintiff under Ex.P6.
That the Trial Court erred in holding that the defendants/appellants had not established that the original defendant M.S. Mahboob had gifted the suit property to his sons by means of an oral Hiba recognized and permitted by law, i.e., the principles of Mohammedan law and the Transfer of Property Act, when there was convincing and acceptable evidence to show the same, fully complying with the requirements of proof of a Hiba laid down by the Supreme Court in its ruling reported in AIR 1995 Supreme Court at page 1205, viz. that, it must be shown that the Donor made a clear and unambiguous declaration that he had gifted the property to the Donee and divested himself of all rights of ownership over the property; that the donees had clearly indicated their acceptance of the gift expressly or impliedly, and that the possession of the gifted property was actually delivered to the Donees, which would not be necessary if the Donees were already in possession of the property. All these requirements are established 13 by the evidence of DW1, DW2 and DW3. DW1 is one of the sons of the defendant and a Donee, and DWs 2 and 3 are two respectable, disinterested witnesses, who are more than seventy years of age, and who have nothing to gain by giving false evidence. DW1, one of the Donees clearly stated that he and the other Donees were already residing in the gifted property and that they accepted the gift. DWS 2 and 3 are persons known to the defendant/donor, in whose presence he effected the Hiba by making the required declaration, and who have attested his signature in his affidavit executed in August 1986 wherein he has affirmed his making of the Hiba in December 1985.
That the Trial Court erred in disbelieving the clear testimony of the said witnesses DWS.2 and 3, pointing at small and inconsequential differences in the statements made by these witnesses. The Trial Court further erred in not considering that the gift was made in the year 1985, and the persons who were present at that time were giving evidence in the year 2002, i.e., after a lapse of seventeen years, and as they are old persons, above seventy years of age, there were bound to be some lapses of memory and differences in their statements, which only 14 goes to show that they were not tutored witnesses, which if they were, they would have made parrot-like identical statements without any errors. The Trial Court erred in not noticing that in substance, both these witnesses clearly stated that MS. Mahboob, in their presence declared that he was making a gift of a portion of his property in favour of his sons and that as from that time the said sons were the absolute owners of the property and the sons were present there and accepted the gift, which evidence clearly establishes the oral gift.
That the Trial Court erred in holding that the affidavit of the defendant M.S. Mahboob executed in August 1986 confirming the oral Hiba made in 1985, marked as Ex.D1, was not genuine, even though the two attesting witnesses DWS 2 and 3 clearly deposed that the original defendant had executed the same in their presence, and also identified the admitted signatures of the defendant in Ex.P21 and other documents of the plaintiff, thereby showing that they were familiar with the signature of the defendant and could identify the same. The Trial Court grossly erred in holding that the affidavit was not genuine and the defendant's signature thereon was forged setting out illogical and inconsequential reasons, that is, that the 15 attesting witnesses DWS 2 and 3 said that they did not know the contents of the affidavit, that the affidavit did not bear the number of the entry in the Notary's register citing a decision of this Hon'ble Court of the year 1997, when the affidavit was made in the year 1986 when the notaries were not strictly following the rules; and that DW1 said that the affidavit was drafted by the Notary himself whereas in the document it was written as drafted by an advocate, not realizing that for obvious reasons no Notary will state that an affidavit attested by him was also drafted by him; and also that the document as gift deed has to fail as it does not state that the donees had accepted the gift, which is meaningless as the affirming affidavit is not a gift deed, and also that the affidavit Ex.D.1 does not bring about a Hiba, as a Hiba and its confirmation cannot be contemporaneous, which is not factually correct as the affidavit executed in August 1986 clearly states that the Hiba was made in December 1985, that is eight months earlier.
That the Trial Court further erred in not considering that even if the affidavit Ex.D1 had not been notarized at all, or was not properly notarized, it would still be relevant and hence admissible in evidence under Section 32(3) of 16 the Indian Evidence Act, being a statement of a deceased person made during his life time, which statement is against the interest of the maker, as the defendant M.S. Mahboob clearly declared that as from 4.12.1985 he had ceased to have any rights, title or interest in the suit property, and that the Donees were the absolute owners thereof. All these hollow reasons set out by the Trial Court show that it did not clearly understand the true nature and evidentiary value of the Affidavit, Ex.D1, and hence the Trial Court erred in rejecting the said important piece of evidence.
That the Trial Court erred in not holding that the alleged sale deed Ex.P6 and Ex.P16 were vitiated by fraud and misrepresentation and hence the same had no legal effect and hence could not have conveyed any interest or title in the suit property to the plaintiff. The Trial Court has deliberately ignored significant and glaring circumstances which indicate that the alleged transaction was not bona fide and honest and that it was not a transaction that took place in the normal and usual course, but its reasoning adopted in finding in favour of the plaintiff is demonstrably biased and not fair and objective. The Trial Court has applied different yardsticks while evaluating the evidence adduced by the 17 plaintiff and the defendants, and hence the findings of the Trial Court are liable to be set aside as being illogical and unreasonable.
That the Trial Court erred in holding that the requirements of Order VI Rule 4 CPC. were not complied with and hence the allegation of fraud and misrepresentation cannot be entertained. A mere perusal of para-3 of the written statement will show that the particulars and the manner of perpetration of the fraud is set out in full detail. The reason given by the Trial Court that the defendants have not stated in their written statement as to who informed them about fraud and misrepresentation and that their averment that they came to know about the fraud only on receiving the court notice is very vague and hence there is no compliance with Order 6 Rule 4 is wholly erroneous and untenable if not perverse. As stated earlier the averments in para-3 of the written statement are clear and comprehensive and the Trial Court's perception and approach is erroneous. That the Trial Court erred in not bearing in mind that the burden of proving the positive aspects is always on the party who asserts the same and the party who denies it is not obliged to prove the negative aspect. Thus when the plaintiff asserts that he has acquired good title as the alleged sale 18 transaction was bona fide and above board and that the alleged sale deed Ex.P.6 was in pursuance of an earlier agreement and was drafted according to the instructions given by the defendant himself, and that the documents Ex.P6 and P16 were read and understood by the defendant and his son before executing the same, it was incumbent upon him to prove the same. The best evidence would have been that of the advocate who drafted Ex.P6 and P16, Mr. Shivaprakash, who also drafted the earlier agreement which is denied. He could have objectively stated at whose instructions he drafted Ex.P6 AND P16 which would have established the truth, but the plaintiff did not examine him. Instead of drawing an adverse inference against the plaintiff the Trial Court has held that the defendants ought to have examined Mr. Shivaprakash to prove the negative. Also the Trial Court holds that the defendant's son Shakeel who attested the sale deed and agreement could have been examined and in the absence of his evidence adverse inference has to be drawn against the defendant. The Trial Court has ignored the evidence on record, as it is on record that Shakeel died long before the commencement of evidence and his LRs are brought on record, but 19 the Trial Court has not noticed it. It shows that the Trial Court's understanding and evaluation of evidence is unbalanced, incomplete and erroneous and not realistic. The defendant M.S.Mahboob, the executant of the documents and his son Shakeel the attestor are both dead, hence no one else can speak about the preparation and execution of the documents Ex.P6 and P16, except the plaintiff and his son Fairoz PW1. The plaintiff, did not step into the witness box and PW1 is an interested witness.
Hence Mr. Shivaprakash was the only disinterested witnesses to speak to the facts. His absence in the witness box ought to have resulted in an adverse inference against the plaintiff but the Trial Court has applied the rule in reverse against the defendants.
That the Trial Court erred in not bearing in mind that fraud and misrepresentation have to be inferred from surrounding circumstances. The defendants could only show fraud by pointing at the suspicious circumstances attending the transaction. The averment of the defendants that the defendant M.S.Mahboob had told them before his death that he has executed a deed of Simple Mortgage in favour of the plaintiff for Rs.1,53,000/- and enjoined upon his sons to repay that amount with interest, has not been 20 seriously challenged or denied by the plaintiff. The process of registration of a sale deed and a mortgage deed is the same, that is, the owner of the property executes a document, receives the consideration and gets the document registered. M.S.Mahboob was an ailing person, being a heart patient in terminal stage, who cannot be expected to have full alertness of mind and all his mental powers of understanding. When such a person has faith and confidence in the other person, he does not doubt the correctness of the assurance given by the other. It is therefore highly probable that M.S. Mahboob executed Ex.P.6 believing it to be a mortgage deed as represented by the plaintiff. The Trial Court notices that the defendant had a heart operation and had a pace maker installed and that documents produced by the defendants showed enormous expenses borne by the defendant for his treatment, yet it holds perversely that the defendant was quite healthy at the time of the execution of Ex.P6 and Ex.P16. A person subdued by illness is no different from an illiterate and unsophisticated person, hence his being an Engineer does not alter the situation nor does it absolve the plaintiff from proving that the defendant was aware of the nature of the document, 21 particularly when the defendant and his son Shakeel are dead. Again for that purpose the evidence of Mr. Shivaprakash would have set at rest the controversy but he was not examined. Adverse inference had to be drawn against the plaintiff.
That the Trial Court erred in failing to notice the suspicious circumstances surrounding the dubious transaction, viz.
(a) That Demand Drafts taken on different dates, amounting to Rs.90,000/- are said to be given to the defendant at the time of registration of Ex.P6.
It is stated that only after registration of Ex.P6 the defendant told the plaintiff that he cannot give vacant possession of the property and for that purpose he got prepared, after registration the agreement Ex.P.16 undertaking to deliver vacant possession after one year, during which period the defendant was not to pay any rent. The stamp papers of the Ex.P6 and P16 show that both were purchased by the plaintiff, one day earlier i.e. on 5.4.1988, indicating that both documents were prepared at the same time by the plaintiff. Along with the agreement the defendant is said to have paid Rs.80,000/- in cash to the plaintiff by way of security for vacating and to defray the expenses of evicting 22 him, but not towards rent. Why would a purchaser permit the vendor to remain in possession of the sold property for one year without paying rents is not explained. It also implies that the defendant brought cash of Rs.80,000/- and received Rs.90,000/- by DD which is again highly improbable as, if he had Rs.80,000/- in cash why would he sell the property at all. Ex.P.16 is not registered. It is also drafted by Mr.Shiva Prakash in whose presence Rs.80,000/- is paid. These are highly improbable and suspicious happenings which normally do not take place in bona fide transactions. All this could have been proved by examining Mr. Shivaprakash, which is not done. It is further stated by the plaintiff that the defendant took back Rs.30,000/-. No documents such as receipts are produced although according to PW1 such receipts are with him. Yet the Trial Court has held that the plaintiff has established that the defendant had paid Rs.80,000/- on 6.4.1988 and had taken back Rs.30,000/- even though there is not a scrap of evidence to prove it.
(b) The plaintiff has produced a Xerox copy of the application for permission for sale from Income Tax authorities, signed by M.S. Mahboob at places marked 'x', which clearly indicates that his signatures were taken on blank printed forms 23 which were filled up later Any one could have filed the forms in the Income Tax office after filling up the particulars. Yet the Trial Court holds that mere presence of 'x' marks at the signature of the defendant cannot show that his signatures were taken on blank forms. It is not explained why a literate person, an engineer has to be shown with 'x' marks where to append his signature after he has filled the application forms.
(c) The agreement P16 is fraudulently prepared to allow the plaintiff not to ask the defendant to deliver possession for one year and during that time to obtain transfer of khata surreptionly. The Trial Court asks why the defendant did not object to the transfer of khata, ignoring the fact that the defendant did not know about it being under the impression that he has executed a mortgage deed and in due course the debt will be repaid. There was therefore no reason for him or his LRS to go to the office of the Sub Registrar to find out about the nature of the document. All these facts together with the evasive answers given by PW1, in the witness box, particularly his lying that M.S.Mahboob died in a scooter accident, and his assertion that he did not require the defendant to deliver vacant possession when the other portion of the property viz No.27/1 was vacant, clearly spell out fraud, but the Trial Court refuses to see 24 the same in that light but it has white washed the evidence of the plaintiff glossing over the obviously indicative portions thereof. The Appellants crave leave to urge other grounds also at the time of hearing of this Appeal, as the reasons adopted by the Trial Court are perverse and unrealistic and are unsustainable."
14. Learned counsel for the appellant Sri Mahboob Ali khan, reiterating the grounds urged in the appeal, vehemently contended that the sale deed dated 6.4.1988 did not transfer any right, title or interest over the suit property in favour of the plaintiff inasmuch as the defendant Mehaboob during his life time, had executed a valid Hiba and the same is evidenced by an affidavit filed by Mehaboob and the same has been proved before the Trial Court by examining DWs.2 & 3 and as such, the very decreeing of the suit based on the alleged sale deed dated 6.4.88 is incorrect and sought for allowing of the appeal.
25
15. He also contended that when once the Hiba has been executed in favour of the sons of Mehaboob, Mehaboob did not retain any right, title or interest in the suit property to sell it in favour of the plaintiff and therefore, sought for allowing of the appeal.
16. He also contended that taking advantage of the ill health of the father of the appellants, the plaintiff managed to get a sale deed by lending him a sum of Rs.75,000/- to meet the medical expenses of Mehaboob, the document dated 6.4.1988 came to be executed which is nothing but a mortgage deed and sought for allowing of the appeal.
17. Per contra, learned counsel for defendant vehemently contended that appellants being the children of Mehaboob are bound by the document and the alleged Hiba is nothing but an ingenious concoction of the appellants to avoid the sale deed.
18. He also contended that the only mistake the appellant has committed was to allow the defendant to 26 stay in the suit property even after the sale deed has taken place and in that regard, the rent agreement entered into by the plaintiff with the defendant on the very same day i.e., on 6.4.88 is to be looked into, where under the defendant has paid a sum of Rs.80,000/- as a security deposit and Rs.30,000/- is taken back by the defendant on the pretext of paying the advance amount to get an alternate accommodation and did not vacate the premises and ultimately he succumbed and thereby the legal representatives of the defendant continued in possession of the property which constrained the plaintiff to file a suit to obtain possession of the property and thus sought for dismissal of the appeal.
19. In view of the rival contentions of the parties, following points would arise for consideration:
(i) Whether the appellants have made out a case that the sale deed dated 6.4.88 did not transfer any right, title or interest in respect of the suit property? 27
(ii) Whether the appellants further establish that the sale deed dated 6.4.88 is not a sale deed in the eye of law and it was only a mortgage deed?
(iii) Whether the appellants have made out a case that in view of the alleged Hiba executed by Mehaboob in favour of the appellants, Mehaboob did not possess any right, title or interest to part away under the document dated 6.4.88?
(iv) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?
(v) What order?
20. The Power of Attorney holder by name Sri K.B. Shariff, plaintiff in the original suit is examined as PW-1. He deposed that his father is aged, deaf and dumb and therefore, he has been given as a Power of Attorney. Based on such Power of Attorney, he deposed on behalf of the plaintiff. He further deposed that he is acquainted with the defendant and the legal representatives of the defendant. He has deposed that 28 defendant was a qualified Civil Engineer working in PWD. He further deposed that property bearing Survey Nos.27, 27/1, 27/2 and 27/3 of Cunningham Road (now it is known as Rangaswamy Temple Road). Except property bearing Survey No. 27/2, defendant sold the remaining portions to three other persons. He further deposed that legal representatives of the defendant have filed partition suit in respect of property bearing Survey No.27/2 and property bearing Survey No. 27 was sold to his mother-in-law by name Nafisa Begum and property bearing Survey No.27/1 was sold to Salimunnissa and property bearing Survey No. 27/3 was sold to plaintiff. He has produced the certified copies of the sale deeds relating to property bearing Survey Nos. 27, 27/1 & 27/3 and they are marked as Exs.P4 to P6.
21. He has answered that his father has purchased the suit property for a sum of Rs.1.35 lakhs and revenue entries were transferred on to his father's 29 name as per Ex.P7 and he is paying the taxes as per the receipts marked at Exs.P8 to P15. He further deposed that defendant at the time of negotiation agreed to deliver the vacant possession on the date of sale but he requested for one year time to make alternate arrangement and therefore, another agreement was entered into on the very same day as per Ex.P-16 and defendant paid a sum of Rs.80,000/- by way of security. He also deposed that defendant thereafter, took back a sum of Rs.30,000/- from the plaintiff on the pretext of searching an alternate accommodation, but despite payment of Rs.30,000/- defendant did not vacate the suit property and therefore, the balance sum of Rs.50,000/- was retained by the plaintiff. He further deposed that he was present at the time of negotiation of the sale and execution of the agreement as per Ex.P16. Apart from him, his son Syed Shakeel Ahmed was also present and he is a graduate and Principal of an Educational Institute at Tamilnadu. He further deposed that defendant had 30 availed the services of an Advocate by name Sri Shivaprakash and plaintiff did not have any lawyer of their own. He identified the signatures of the witnesses on Ex.P6. He further deposed that his father had enquired about the encumbrances if any and defendant had assured him about their encumbrances on the suit property. He has specifically deposed that legal representatives of the defendants 1(a) to 1(d) are not the owners of the suit property under the oral gift by defendant and it is a concoction made by the legal representatives of the defendant only to deceive the plaintiff and sought for decreeing of the suit.
22. He also produced the Certified copy of the plaint in OS No.570/1996 as per Ex.P19 and Assessment Register Extract in respect of the property bearing No.27/3 for the years from 1989-1996 which is marked at Ex.P-20.
23. In his cross examination, he has answered that he came to know the death of defendant in a 31 scooter accident through a neighbor by name S. Pervez. However, he neither attended the funerals nor visited the Hospital. To a specific question as to whether the defendant died due to heart attack, he has answered that defendant died due to heart attack. He has further answered that he is acquainted with the defendant before registration of Ex.P6 sale deed as he used to visit the house of the defendant which is situated next to his Brother-in-law's house. He pleaded ignorance about the health condition of the defendant and having a pace maker installed in his heart. He has further answered that he was acting as an agent of his father at the time of sale deed marked at Ex.P6. He admits that he did not consult and negotiate with the defendant before the sale. He denied that he took active participation with regard to the Ex.P4 and he has not signed Ex.P5 nor participated in the negotiation relating to Ex.P5. He has answered that Exs.P4 and P5 sale deeds were preceded by an agreement. He has answered that he does not know whether any agreement preceded the sale deed 32 marked at Exs.P4 and P5. He has answered that before Ex.P6 came in to existence, there was an agreement that it was destroyed at the time of registration. He has answered that at the time of Ex.P6 apart from himself and the witness his son by name Shakeel was present and he is no more.
24. He also answered that Exs.P16 and P17 are prepared on the same day and Ex.P16 was executed after execution of Ex.P6. He has further answered that the consideration amount under Ex.P6 was paid by DD and not by cash. He also further answered that sale deed was got prepared and typed by the defendant and was brought to the Sub-Registrar's office. To a specific question that defendant never agreed to part away possession of the property bearing survey Nos.27/2 and 27/3, the witness has answered that defendant has specifically agreed to deliver the possession of property bearing No. 27/3 to the plaintiff. He has answered that till the registration was over, plaintiff was under the 33 impression that the defendant would deliver the vacant possession of the property to them and it is only thereafter, they came to know that defendant wanted time. He denied the suggestion that Ex.P6 was represented as Mortgage Deed and got executed. He denied the suggestion that defendant had already parted away the right, title or interest in respect of the property bearing No. 27/3 in favour of his sons by executing the HIBA and therefore, he did not retain any right to sell the same under Ex.P6. He has answered that at the time of execution of sale deed at Ex.P5, property was kept vacant and he does not remember as to how long it was kept vacant. Ex.I(1) was confronted and witness denied the same having shown the original of Ex.I(1). Ex.I(1) is a photo copy. PW-1 denied that defendant intended to mortgage the property bearing No.27/2 and by playing fraud they managed to get the sale deed executed vide Ex.P6. He also denies the suggestion that Ex.P21 is created and concocted in order to defeat the rights of the defendant. He 34 answered that Ex.P21 is the handwriting of the defendant.
25. In support of the case of the appellant, learned counsel for the appellant has relied on the following judgments:
"(1) Rasheeda Khatoon (Dead) Through Legal Representatives vs. Ashiq Ali S/o Lieutenant Abu Mohd. (Dead) Through Legal Representatives reported in [(2014) 10 SCC 459];
(2) Union of India and Others vs. Vasavi Cooperative Housing Society Limited and others reported in (2014) 2 SCC 269;
(3) Sri Siya Ram and Others vs Smt. Lilawati reported in AIR 1990 All 75;
4) Janaki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others reported in (2005) 2 SCC 217. "
26. On behalf of the defendant Sri Syed Baker is examined as DW-1. He has deposed that defendant is his father and defendant No.1(e) expired on 4.7.2021. He further deposed that defendant expired in 35 Nov. 2000 and except the legal representatives who are brought on record, there are no other legal heirs to the defendant. He further deposed that his father did not intend to sell the property to the plaintiff and by misrepresenting that it is a Mortgage Deed, the plaintiff got Ex.P6 executed in his father. He also deposed that affidavit executed by his father confirm the Hiba and the same is marked at Ex.D1. He identified the signatures of the witnesses on Ex.D1. He further deposed that the contention of PW-1 that after understanding the contents of Ex.P6, defendant and Shakeel Ahmed has signed Ex.P6 is incorrect. He prayed for dismissal of the suit but he agreed that suit be decreed in a sum of Rs.1.35 lakhs with interest at 12% and property be retained by the defendants.
27. In his cross examination, he admits that suit summons were served on his father in respect of property bearing No.27/2 (suit property). He admits the signature of defendant on suit summons and the 36 court notice issued on IA. He admits that he was not served with the notice on application bringing the legal representatives of defendant on record. He admits that suit property was bounded on three sides private property and 4th side there is a common passage in survey Nos.27 and 27/1 and thereafter, Cunningham road. He denied the boundaries shown in Ex.P19. He admits that he is a diploma holder in Pharmacy. He admits that he worked as a Pharmacist in GEM Medicals. He admits that defendant was a Civil Engineer, after his retirement, he became the partner in Medical Stores. He admits that his father was not dependant on his children for his needs and so also DW- 1 was not dependent on him. He denied the knowledge of the amount of compensation the defendant used to receive. He admits that his sister Akdar Banu was looking after the personal needs of the defendant. He admits that his father had first heart attack in the year 1971-72. He admits that his father started selling his properties in the year 1986-87. He admits that the sale 37 proceeds in respect of sale of property bearing No.27/1 was used for meeting the medical expenses of his father. He pleaded ignorance about the loan that defendant had. He admits that his father has sold one more portion of the property bearing No.27/1 under Ex.P5. To a specific question, after the alleged gift was made, was there any declaration, witness answered that the Will was acted upon by transfer of katha in the Corporation records.
28. He has further answered that he did not file any application for change of katha in his name. He has answered to a specific question that his father has sworn to an affidavit before the notary. He has further answered that a Typist in the DC compound typed it, but he does not know the name of the typist and he does not remember the name of the notary also.
29. In his cross examination, he admits that his father was inpatient in Appollo Hospital for 15 days and during his stay, he and his sister Gowhar Banu attended 38 his father. He has answered that after discharge, his father was advised to take rest and to have a regular medical checkup. He admits the contents in paragraph 4 of the plaint in OS No.570/1996 which is marked at Ex.P-19 is correct. He has answered that suit property was not included in suit as it was gifted to him. He admits that suit property referred to in Ex.P19 relates to the property bearing No.27/2. He admits that his father had filed OS No.10614/1992 for cancellation of the illegal deed. He admits that he came to know Ex.P6 through Syed Shakeel and he is no more. He admits that property gifted to him and his brothers is the first floor portion in property bearing No.27/3. He admits that the schedule mentioned in Ex.D1 might have taken from the mother deed. He admits that his father did not disclose to him that he told plaintiff about the gift deed. He pleaded ignorance about his father drawing a sum of Rs.80,000/- from the Bank on the date of Ex.P6. He admits that he did not make any attempt to get the katha of the suit property transferred into his name. He 39 admits that after Ex.P6, neither his father nor himself have paid any taxes to the suit property. He admits that even after execution of Ex.D1, he has not paid any taxes. He admits that except him, no other brothers have tried to get the katha transferred in his name on the basis of Ex.D1. He admits to a specific question whether defendant had borrowed a sum of Rs.10,000/- and passed on a letter as per Ex.P21, witness has answered that letter/receipt is there but, his father has not told about the same.
30. Sri C.R. Mohd. Saif Uddin is examined as DW-2. He deposed that he knew the defendant since 25-26 years and in the year 1983, defendant was not well and defendant called him and expressed his desire to gift away the property. He further deposed that he gifted away his house in favour of his sons. He gifted the ground floor portion where he was residing. At that juncture, defendant himself and all his children and deceased defendant and Abdul K were present. He 40 further deposed that in the year 1996, he made a declaration to enable his sons to get the katha transferred to the Corporation and he took him to the City Civil Court compound along with Abdul Kudus. Defendant was taken in his Car to a notary and there, the declaration was typed and notarised. He identified his signature on Ex.D1 as Ex.D1(b).
31. In his cross examination, he admits that he was an advocate and he was a Member of the Legislative Assembly in the year 1972. He admits that he is not practicing advocate and he was a Chairman of Wakf Board in the year 1994. He admits that he was practicing on the criminal side when he was at Chitradurga. He has answered that he was a tenant in the first floor of the suit property in the year 1978-79 and he continued to live in the same property till then. He admits that his wife had purchased the said property but he does not remember the year in which his wife purchased the said property. He admits that there is no 41 litigation between him and defendant. He pleaded ignorance about the legal matters. He admits that defendant expired in the year 1992-93 and he does not know who is residing in the ground floor at the time of his death and the number of the property where the defendant was residing. He has answered that gift was made in the year 1985 on the date of deed he was not knowing that he was making a gift and he just visited the house to enquire the health issues of the defendant. He admits that he is not aware of how many sons and daughters the plaintiff had and he also admits as to how many children of defendant are alive as on the date of cross examination. He has answered that he has gifted the property to his sons except one of the sons.
32. He further answered that all his four sons were present when the gift was accepted. He has answered that DW-3 was also present at the time of acceptance of the gift. He admits that he did not draft Ex.D1. He admits that he does not know the function of 42 a notary and he had not attended the notary earlier even at the time of his practice. He pleaded ignorance about affixing the notary stamp on declaration.
33. He pleaded ignorance that Ex.D1 affidavit was prepared in the year 1994. He identified the signatures of defendant in Exs.P6, P16 and P21 sale deed, agreement and letter respectively. He has answered that he does not know the contents of Ex.D1. He has also answered that he does not know whether the plaintiff has filed the suit for recovery of the property bearing No.27/3. He admits that except Ex.D1 affidavit, he does not know anything about the suit transaction.
34. Sri S.A. Khudus is examined as DW-3. He is another attesting witness to Ex.D1. He also signed Ex.D1 as per the request of the defendant. He also deposed in line with the examination in chief of DW-2. In his cross examination, he admits that he is a contractor and he stopped doing contract work 15 years 43 earlier. He admits that he is not constructed the house of the defendant. He admits the signature of the defendant as Ex.P16(c) and so also on Ex.P6. He admits that he cannot say the financial condition of the defendant between the years 1994-98. He admits that defendant has not borrowed any money from him in those years. He admits that defendant has intimated him about his intention to gift the property to his four sons and he does not remember the names of his sons he has answered that after eight months when he attended the house of defendant he was called to DC compound where Ex.D1 came to be executed. He denied the suggestion that Ex.D1 is concocted one.
35. The aforesaid evidence on record is sought to be re-appreciated by the learned counsel for the appellant, by allowing the appeal.
36. In support of the contentions of the respondents, the learned counsel for the respondents has relied on the following judgments: 44
"(1) Rasheeda Khatoon (D) through LRs vs. Ashiq Ali Through LRs. Reported in 2014 AIR SCW 661;
(2) Hafeeza Bibi and Ors. vs. Shaikh Farid (dead) by LRs and Ors. Reported in AIR 2011 SC 1695.
37. It is pertinent to note that Ex.P6 is a registered sale deed. It is also found from the records that Ex.P16 is a document that has been executed by the defendant on the same day Ex.P6 was executed. It is the specific case of the plaintiff that after defendant sold the suit property to him under Ex.P6, defendant requested for one year time to vacate and handover the vacant possession of the suit property and thereafter, Ex.P16 came into existence. There is a payment of Rs.80,000/- by the defendant as security deposit and has addressed a letter as per Ex.P21 signed by him where under, he wanted another sum of Rs.10,000/- and also wanted to take the receipt for Rs.30,000/-. Defendant being the Civil Engineer, he has written a letter Ex.P21 by himself in his handwriting. Signature on Ex.P21 is admitted by DW-1. The plaintiff has specifically contended that out of Rs.80,000/- which 45 was paid as a security deposit, the defendant has taken back a sum of Rs.30,000/- under the pretext of searching an alternate accommodation but failed to do so. Therefore, the plaintiff was constrained to file the suit for possession.
38. The material on record clearly shows that the defendant was the owner of the suit property. He has sold the adjacent portions of the suit property to different persons to meet the medical expenses as defendant was suffering from serious illness. Medical records filed by the defendant itself substantiates that the health condition of the defendant was fragile and he was no need of money. Oral testimony of DW-1 also shows that defendant was not dependent on the income of his children. Except DW-1 other children were dependent on him. In such circumstances, the plaintiff is successful in establishing the contents of Ex.P6 that defendant in order to meet his expenses gone on selling 46 property one after the other and ultimately, the suit property in favour of the plaintiff.
39. More over, Ex.P6 being the registered document and not in dispute, the contents of Ex.P6 stands proved.
40. But the contention i.e., taken by the defendants is that there was a fraud played on the defendant by the plaintiff and it was mis-represented to the defendant by the plaintiff that Ex.P6 is a Mortgage Deed and he only borrowed a sum of Rs.1.35 lakhs under Ex.P6 and got it as a registered sale deed.
41. It is pertinent to note that Shariff had accompanied his father. He had studied upto PUC and if there was a mis-representation, immediately, within three years, after Ex.P6 came into existence, the defendants or his legal representatives should have filed a suit for cancellation of Ex.P6. On the contrary, a defence is set up that his father had executed a Hiba in the year 1986 as per Ex.D1 in favour of his four sons 47 and therefore, his father had no title to sell the property as Hiba was executed much earlier to Ex.D1 and declaration came to be filed on 4.8.1986.
42. If the said contention of the legal representatives of the defendant is to be accepted as true, then how the defendants could have been party to Ex.P6, assuming that it is a Mortgage Deed, is a question that remains un-answered. If really Ex.D1 is executed much earlier to 4.8.1986, then defendants would not have been in a position to execute a Mortgage Deed in favour of the plaintiff. Further, under the provisions of the Mohammadan Law, there is no bar for executing the oral Hiba, but the same should be followed by transfer of revenue entries and transfer of possession of the property. In the case on hand, in view of Exs.P6 and P16, it is the defendants who continue with the possession of the property.
43. If at all, if the Hiba is natural, it should have restricted itself to the first floor of the suit property 48 where the legal representatives of the defendants are in occupation. All these factors have been rightly appreciated by the learned Trial Judge in the impugned judgment.
44. On the question of Ex.P16 and Ex.P21, a letter written by the defendant in his own hand-writing to the plaintiff and admitted by DW-1, this court has no hesitation whatsoever in holding that the plaintiff has successfully established his case by placing necessary oral and documentary evidence on record which has been rightly appreciated by the learned Trial Judge in the impugned judgment.
45. Thus, even after re-appreciation of the entire material evidence on record, this court is of the considered opinion that the grounds urged in the appeal are hardly sufficient to interfere with the well reasoned judgment. On cumulative consideration of the oral and documentary evidence on record there cannot be any dispute as to the principles of law enunciated in the 49 decisions relied on by the appellant referred to supra. However, having regard to the peculiar facts and circumstances of the case, wherein Ex.P6 is sought to be portrayed as a Mortgage Deed and no evidence has been placed on record to substantiate the said aspect of the matter, the principles of law enunciated in the decision relied on by the learned counsel for the appellant has no application and would not advance the case of the appellants to any further extent. Accordingly, the point Nos.1 to 4 are answered in the Negative.
46. REGARDING POINT No.5: In view of the findings of this court on Point Nos.1 to 4 above, following order is passed:
ORDER Appeal is merit less and hereby dismissed.
Sd/-
JUDGE PL*