Karnataka High Court
Sri M Somashekar vs Gaffer Sab Since Deceased By Lrs Smt ... on 4 November, 2022
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 18345 OF 2022 (GM-CPC)
BETWEEN:
1. SRI M SOMASHEKAR
S/O. MUNIKRISHNAPPA
AGED 43 YEARS
R/AT:TALUK OFFICE ROAD
DEVANAHALLI TOWN-562 110
BANGALORE RURAL DISTRICT
...PETITIONER
(BY SRI. PRAKASH M H., ADVOCATE)
AND:
GAFFER SAB SINCE DECEASED BY LRS
1.(A) SMT. FIROZUNNISSA
W/O. K. BAKASH
D/O. LATE ABDUL GAFFER SAB
AGED 47 YEARS
DOOR NO.2330, 1ST CROSS
BALJIGARA BEEDHI
NEW BUS STAND ROAD
VIJAYAPURA TOWN
DEVANAHALLI TALUK-562 110
BANGALORE RURAL DISTRICT
2.(B) SMT. ABIDUNNISA
W/O. ABDUL WAJID
D/O. LATE ABDUL GAFFER SAB
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AGED 45 YEARS
TALUK OFFICE ROAD
YELAHANKA BEEDHI
DEVANAHALLI TOWN-562 110
BANGALORE RURAL DISTRICT
3.(C) MR. NAYEEM PASHA @ M.D.YUSUFF
S/O. ABDUL GAFFER SAB
AGED 42 YEARS
4.(D) MR. FAYAZ AHMED
S/O. ABDUL GAFFER SAB
AGED 36 YEARS
5.(E) MR. MUKTHIAR AHMED
S/O. ABDUL GAFFER SAB
AGED 36 YEARS
THE RESPONDENT NOS.3 TO 5 ARE
R/O THYAGARAJA NAGAR
DEVANAHALLI TOWN
BANGALORE RURAL DISTRICT-562 110
6. MR. GAYAZ PASHA
S/O. ABDUL GAFFER SAB
AGED 38 YEARS
R/AT MEDARA BEEDHI
DEVANAHALLI TOWN-562 110
BANGALORE RURAL DISTRICT
...RESPONDENTS
(BY SRI. FAYAZ KHAN, ADVOCATE FOR R/R4(D))
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE ORDER DTD.10.6.2022 PASSED BY THE COURT OF
PRINCIPAL SR CIVIL JUDGE AND JMFC, DEVANAHALLI IN
O.S.NO.205/2007 VIDE ANNEXURE-F AS ILLEGAL.
THIS PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This petition is by the fifth defendant in O.S.No.205/2007 on the file of the Principal Senior Civil Judge and JMFC, Devanahalli (for short, 'the civil Court'). The petitioner's application (IA.No.15) under Order VIII Rule 1(A) read with Section 151 of the Code of Civil Procedure, 1908 (for short, 'CPC') for leave to produce and mark an unregistered Gift Deed dated 30.06.1993 (which is claimed by the petitioner to be a Hiba), is rejected by the civil Court by its impugned order dated 10.06.2022. The civil Court has rejected the petitioner's application for twin reasons: the Gift Deed is laminated, and a laminated document cannot be accepted as its authenticity cannot be established; the Gift Deed is not a record of a past event but is a contemporaneous deed recording the essentials of a gift.
2. The original plaintiff, Mr. Abdul Gaffar Sab, has filed the suit for declaration that the Gift Deed dated 30.06.1993 and every transaction thereafter is invalid and illegal. The suit schedule properties are two parcels of immovable properties. Mr. Abdul Gaffar Sab has died, and -4- on his demise, some of his children, who were arrayed as the defendants, have transposed themselves as plaintiffs and they are prosecuting the suit.
3. The petitioner contends that the Gift Deed dated 30.06.1993 is executed by Mr. Abdul Gaffar Sab in favour of his son - Mr. Gayaz Pasha (the first defendant - the sixth respondent) and after the revenue entries for one of the suit schedule properties is transferred in favour of the sixth respondent in the year 2005, he has purchased a portion there of under the sale deed dated 16.05.2005. The civil Court will have to necessarily decide the Issues that are framed in the light of the rival claims, and one of the circumstances that will have to be considered is whether the disputed Gift Deed dated 30.06.1993 is acted upon with the change in the revenue entries.
4. Sri. M.H.Prakash, the learned counsel for the petitioner, submits that the petitioner's leave to produce and mark the Gift Deed dated 30.06.1993, which is unregistered, could not have been rejected because there is contemporaneous delivery of possession with the gift -5- and the three essentials to constitute a valid gift under Mohammedan Law are established; he relies upon the decision of the Hon'ble Supreme Court in Hafeeza Bibi and Ors Vs. Shaikh Farid (dead) by LRs and Ors1.
5. Sri. M.H.Prakash also submits that the disputed document is indeed laminated but whether the contents, including the disputable signature would be altered if there is de-lamination carefully, is a matter that will have to be considered after such process and in the light of the experts' opinion and therefore, merely because the document is laminated, it cannot be kept outside the consideration.
6. Mr. Fayaz Khan, the learned counsel for the contesting respondent - defendant, submits that the reliance on the decision of the Hon'ble Supreme Court in Hafeeza Bibi's case (supra) is not justified inasmuch as it cannot be disputed that the Gift Deed is secular and is not a gift/Hiba as contemplated under the Mohammedan Law; only if the document is a Hiba as against a gift which is otherwise permissible, the proposition as enunciated by the Hon'ble 1 AIR 2011 SCC 1695 -6- Supreme Court can be relied upon. He persuades this Court to look into the terms of the Gift Deed dated 30.06.1993.
7. The Hon'ble Supreme Court, while considering the question, whether a gift deed executed by Mohammedan requires registration, has held referring to Mulla, Principles of Mohammedan Law (19th Edition), paragraph Nos.28 and 29 that the provisions of Section 129 of Transfer of Property Act, 1882 (for short, 'TP Act') preserve the rule of Mohammedan Law and excludes the applicability of Section 123 of TP Act to a gift of an immovable property by a Mohammedan and it is not that every gift deed which is contemporaneous with the making of the gift would require registration under Section 17 of the Registration Act and each case would depend on its own facts.
8. The contesting respondent's objections to the gift deed being produced and marked must necessarily be considered in the light of this enunciation. On the reading of the terms of the Gift Deed, there cannot be a ready conclusion, especially with the evidence not yet being completed, that this deed does not incorporate the salient -7- features of a gift under Mohammedan Law and therefore, must be compulsory registered. In any event, the questions in the suit, including the prayer for permanent injunction, will have to be decided based on the material on record and if the Gift Deed is on record, it could even be looked into for collateral purpose such as, possession of the property. Therefore, the civil Court could not have rejected the application for leave to produce the Gift Deed on the ground that it is unregistered.
9. As rightly argued by Sri. M.H. Prakash, a document cannot be kept out only because it is laminated; if a laminated document could be delaminated and in the process the contents are not in any manner affected, the authenticity of the document could indeed be demonstrated. However, if the Gift Deed has to be de-laminated it has to be at the petitioner's risk, and the petitioner could even avail the assistance, or guidance of the experts in the field. At this stage when such exercise is not even complete, the production of the Gift Deed cannot be denied even on the ground that it is laminated. The petitioner, if he wants to establish the Gift Deed and rely upon its probative value, -8- must necessarily take appropriate steps. Hence, the following:
ORDER The petition is allowed, and the civil Court's order dated 10.06.2022 in O.S.No.205/2007 on the file of the Principal Senior Civil Judge and JMFC, Devanahalli is quashed. The petitioner is reserved liberty to make necessary application for receiving the Gift Deed/Hiba dated 30.06.1993 back and getting it de-laminated at his risk, and if such application is filed by the petitioner, the same shall be considered in the light of this Court's observation.
Sd/-
JUDGE RB