Karnataka High Court
Dastgirsab S/O Rasoolsab Khadke vs Hasinabi Sahakelsab Bedrekar on 3 February, 2012
Author: N.Kumar
Bench: N.Kumar
1
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GL'LBARGA
Dated this the 3d day of February 20 1 2
BEFORE
THE HOIN'BLE MR.JUSTICE N.KUMAR
R.F.A. No. 1880 of 2006
BETWEEN:
Dastgirsab
S/o Rasoolsab Khadke.
Aged about 42 years,
R/o Andu Masjid,
Darbar Galli.
Bijapur-586 101.
Appellant
(By Sri: Harshavardhan R. Malipatil. Advocate.)
AND:
1. Hasinahi Shakelsab
Bedrekar Age: 47 years.
0cc: H.H.work,
R/o Shapetigalli,
Bijapur-586101.
2. Zahirarna W/o Makhoolsab
Khatikar Age: 62 years.
0cc: H.H. xrork
R/o Galagali in Belagali.
Taluka-5871 13.
Now C/o Hasinabi R- 1.
2
3. Sarabi W/o Mastansab
Sunnewale Age: 55 years.
0cc: H.H.work,
Rio Ginagar Gall!,
Prasab Hotel back side,
BiJapur-586 101.
4. Rabiya W/o Adbulrahlman
Hanvekar age: 52 years,
0cc: H.H. work,
R/o Chandabawad!,
Shahapurget,
Bijapur-586101.
5. Mariyambi W/o Allabaksh
Khatikar Age: 62 years,
0cc; H.H. work,
Rio Waddar Gall!, Subhash Chowk,
Shahabad, Tq: Chittapur,
Dist: Gulbarga-585228.
6. Hasimbi W/o Dongrisaheb
Khatikar age: 60 years,
0cc: H.H. work,
Rio. Kolhar. B. Bagewadil Taluka
Pin: 586203.
7. J
1 annatbi W/o Rasoolsaheb
Khatikar age: 75 years.
0cc: H.H. work.
CioAllabax R-l 1.
Rio Barn Imam gaUl.
Jamakhandi-58730 1.
Dist: Bijapur.
(Sl.No.2 to 7 are represented
by their PS. Holder.
Respondent No.1).
8. Mahiboobsab S/o
Dastagirsab Kbadke,
Age: 60 years, 0cc: Agriculture,
4 3
Rio. Ukkali-586122.
B. Bagewadi Taluka.
9. Roshanbi W/o Rasoolsab
Khadke. Age: 70 years.
0cc: H.H. Work.
10.Abdul Harneed S/o Rasoolsab
Khadke Age: 50 years.
0cc: Business.
11 .Allabax S/o Rasoolsab
Khadke age: 55 years,
0cc: Business.
(Res. No. 8 toll
R/o Andu Masjid,
Darhargalli, Bijapur-586 101.)
12 .Jaitunhi Bilal Kawaliwale
Age: 50 years. 0cc: I-I.H. work,
Rio near Talkies. Manikpeth,
Akkalkot. Dist: Solapur.
Pin: 413216.
13.Haroonbi W/o Dastagirsab Mirajkar
Age: 40 years, 0cc: H.H. work,
R/o Andu Masjid, Darbar gaul.
Bijapur-586 101.
14.Saikinhi W/o Khajasah
Age: 35 years. 0cc: H.H. work.
R/o Jarniva Baha Darga Masjid,
IViraj -41 6410 (Maharashiral.
Since deceased by her L.Rs:
a) Hussain sb Khajasab
Age: 15 years
b) Hassan s/o Khajasab
Age : 12 years.
4
Under guardianship of
Father Khajasab.
Sb Abmedsab Qazi @
Masoorkar
Age : 50 years,
R/o Khatibgalli,
Chara Bazar.
Miraj.
Dist. Sangli (Maharashtra)
1 5. Mahaboobi W/ o Rahimbaksh
Kotimbeer age: 33 years.
R/o C/o Kirana Shop No. 125.
Solapur-4 13001.
(Maharastra).
Respondents
(By Sri: R.B. Anneppanavar Associates,
Adv for R-1 to R-8 & Ri 1.
R-9.R-i0. R-12, R13. & R-15. Served.)
This RFA is filed under Order 41 rule 1 R/w Sec.96 of
CPC against the judgment and decree dated: 28-6--2006 passed
in O.S.No.378/ 1999 on the file of the II Addi. Civil iudge
(Sr.Dn). Bijapur, decreeing the suit flr partition and separate
possession.
This PEA coming on for hearing:, this day the Court
delivered the following:
JUDGMENT
This is 5' defendant's appeal against the judgment and decree of the trial Court. which has decreed the suit of the 4' 5 plaintiffs for partition and separate possession of the plaint schedule property.
2. For the purpose of convenience, the parties are referred to as they referred to in the original suit.
3. The subject matter of the suit is land bearing Sy.No.78 measuring 22 acres 39 guntas. assessed at Rs. 14-54 ps. of Hegadthal Vifiage. Bijapur Taluk.
4. PlaintIffs- 1 to 7 are the sisters of the first defendant. The second defendant is the wife of elder brother Rasoolsab. Plaintiffs-i to 7 and first defendant and defendants- 2 to 9 are the children of defendant No.2 and the said Rasoolsab. One Ashabi w/o Dastgirsab Khadke was the owner of the suit schedule property. The 5th defendant who Is the grandson of said Ashabi hatched a plan to dupe the shares of the plaintiffs and the first defendant and to gulp the suit land created a deed calling it as a oral gift deed which is a bogus. illegal and invalid in his favour said to be by the said Ashabl on a stamp paper of Rs. 10-00 without mentioning the date of the 6 said oral gift deed. However, general stamp was purchased on 31.08.1988 in the name of the donor by one A.M. Bagalkot who is a stranger and third person to the family of the defendants has no locus standi to purchase the said general stamp paper in the name of said Ashabi. The said A.M. Bagalkot is in close acquaintance with the 51h defendant In the said alleged oral gift deed, nowhere the date of the oral gift deed Is mentioned, either In the deed or after completion of the said oral gift deed. The alleged gift is ifiegal. invalid and even void in the eye of law.
5. The said Ashabi © Ashama died on 29.9.1998 at Ukkall. She was hospitalised at MiraJ an as inpatient from 6.8.1988 to 8.9.1988. It Is venj surprising as to when the deceased Smt. Ashania came over to Bijapur for executing the alleged oral gift deed in favour of defendant No.5 when she was hospitalised at Mlraj as indoor patient from 6.8.1988 to 8.9.1988. It Is clear that the alleged oral gift Is a false and fabricated document. After the death of Ashabi. defendant No. 5 has given a wardi also on 31.8.1988 itself to the Village Accountant, Hegadihal. enclosing the said oral gift said to have been executed by Smt.Ashabl in favour of defendant No.5. 7 Looking to the above facts and cIrcumstances it can very well be said that the defendant No. 5 has hatched a plan to gulp the suit property depriving the shares of the plaintiffs and defendant No.1. Therefore, the alleged oral gift said to have been executed by deceased Smt. Ashama in favour of defendant No.5 is not voluntary and is false and fabricated. Deceased Ashama was not In a sound state of mind from 6.8.1988 till her death and was not in a position to understand the things and acts what she was doing. Hence, the said alleged oral gift is void and void ab initlo.
6. The plaintiffs have come to know that, the defendant No.5 by filing application before the Vifiage Accountant falsely contending that Ashama had gifted the suit land to him. got his name entered under M.E. No. 2732 ifiegally and without notice to the plaintiffs. The alleged gift is false and frivolous. Ashama has never gifted the suit property to any body much less to defendant No.5 durIng her life time. The alleged oral gift deed Is illegal, false and fabricated. On coming to know of such entry they filed an appeal before the Assistant Commissioner in RTS.AP.No. 32/91-92. The appeal was 8 allowed. The order In M.E. No. 2732 was set aside and the matter was remanded to the Tahsildar, Bijapur. for fresh enquiry. Again the Tahsildar, Bijapur. erroneously confirmed M.E. No. 2732. Again they preferred an appeal to the Assistant Commissioner. Bijapur. in RTS.AP.No. 14/98-99 which was disposed of on 6.7.1999 confirmIng the said mutation entry and directing the appellants to approach a Civil Court.
7. The said Ashama died on 29.9.1998 at Ukkali leaving behind the plaintiffs, defendant No.1 and the father of defendant No.s 3 to 9 and husband of defendant No.2 as the legal heirs. After her death they are In Joint possession of the suit property. They are co-owners. According to the Mohammadan Law each of the plaintiffs has got 1/11th share and defendant Nos. 3 to 9 together has 2/11th share in the suit property. Therefore, they sought for a decree for partition declaring their rights.
8. After service of summons, defendant No.1 ified a written statement conceding the claim of the plaintiffs. Defendant No.4 also ified a separate written statement 9 conceding the claim. It is the defendant No. 5 who filed the written statement contesting the claim. He did not dispute the relationship between the parties. He admitted that Smt. Ashabi was the owner of the suit property. It is his specific case that he was looked after and brought up by Smt. Ashabi and as such out of love and affection she has orally gifted the suit land as per Mohammadan law on 31.8.1988 and has put defendant No.5 in actual possession of the suit property on 31.8.1988 itself In the presence of two witnesses. The plaintiffs and other defendant were knowing that fact and they never objected though the defendant No.5 was cultivating the suit land and his name was appearing in the revenue records as owner. Smt. Ashabi died on 29.9.1988. He filed wardi before the Village Accountant on 31.8.1988 itself Nobody objected. The Revenue Inspector without there being any objections cancelled the mutation entry on the ground that the names of L.Rs be entered first, since the cancellation of M.E. No. 2732 dated 3.1.1989 was illegal. So. this defendant preferred an appeal to the Assistant Commissioner. Bijapur. in RTS.AP.No.32/91-92 and the Assistant Commissioner remanded the matter back to the Tahsildar to reconsider the same. Subsequently. his name was 10 entered. He is in possession of the property. Plaintiff challenged the said order which came to be dismissed. He denied that Late Ashabi was in the hospital at MiraJ as an indoor patient. She was at Bijapur as on the date of the gift. She was in a sound state of mind till she gifted the property under Mohammadan law. Plaintiffs are aware of the oral evidence. They kept quite till 1998-99. The claim of the plaintiffs that they are in joint possession of the suit land is absolutely false. They are not entitled to a share and therefore he sought for dismissal of the suit.
9. The trial Court on the basis of the aforesaid pleadings has framed as many as 6 issues which are as under:
1. Whether the plaintiff proves that alleged oral g(ft deed made by the deceased Ashabi and favour of the defendant Na5 Is bogus, Illegal and invalid and null and void?
2. Whether the plaintiffs prove that. they are having 1/Il" share each in the suit properties? 11
3. Whether the defendant No.5 proves that, the alleged gift deed executed by the deceased Ashctbi in his favour is legal and valid and as per the same giJ deed lie is in possession of the slur properuf?
4. Whether the defendant No.1 and 4 proves they are having 1/11 thi share in the suit property?
5. Whether the plaintiff proves that they are entitled jar relief of declaration and partition as prayed Jbr?
6. What Order of Decree?
10. The plaintiffs in order to substantiate their case examined the first plaintiff as PW1 and a witness by name Shankareppa as PW2 and produced 19 documents which are marked as Exs. P1 to P19. On behalf of the defendants, 5t defendant was examined as DW 1 and he examined 2 aites1in witnesses as DWs 4 and 5. That apart he also examined other 3 witnesses as DWs 2. 3 and 6. They produced 3 documents which were marked as Ex. Dl to D3.
12
11. The trial Court on consideration of the aforesaid oral and documentary evidence on record held that the plaintiffs have proved that the alleged oral gift deed relied on by the 5th defendant is bogus, ifiegal, invalid and null and void. They have proved that they are entitled to 1 / 11th share in the suit properties. 5th defendant has failed to prove the oral gift that he has pleaded and therefore it proceeded to decree the suit of the plaintiffs. Aggrieved by the said Judgment and decree of the trial Court, the 5th defendant has preferred this appeal.
12. The learned counsel for the appellant5th defendant assailing the impugned order contends that, the oral gift Is evidenced by the document which is marked in the case as Ex.D1. It is attested by 2 witnesses who have spoken about the oral gift. After the oral gift, the possession of the property has been given to the 5th defendant which is also evidenced from Ex.D 1. Thereafter, mutation entry has been made in his name. He is in possession of the property. As he was brought up by the deceased Ashabi she had love and affection towards him and in fact his name is that of her husband and therefore she 13 had a right to gift the property and she gifted the property to the 5th defendant and therefore on the date the suit was filed her children had no right In the property. The trial Court committed an en-or In not upholding the gift and It erred In decreeing the suit of the plaintiffs.
13. Per contra, the learned counsel for the plaintiffs supported the Impugned Judgment and decree.
14. In the light of the aforesaid facts and the rival contentions, the point that arise for consideration In this appeal is as under: -
Whether the finding of the trial Court that the gift Is not proved calls for any Interference?
15. The relationship between the parties is not in dispute. The suit property exclusively belongs to Ashabi. She died on 29.9.1998 leavIng behind the plaintiffs and defendants as her legal heirs. On the date of death she was aged about 80- 82 years. It Is the case of the plaintiffs that she was an 14 inpatient in a hospital at MIraJ from 6.8.1988 to 8.9.1988. The alleged gift is dated 31.8.1988. In order to show that Ashabi was not In Bijapur, the place where the alleged gift took place, they have produced the medical prescriptions Issued by the hospital at Miraj which were marked as Exs. P10, 11, 12, 13, 14 and 15. Those documents are cash memos issued by Heera Medico, Miraj and not by any hospital. But. these prescriptions and bifis show that she was under treatment. In fact, Ex.P. 10 is issued by Dr.P.RKulkarnl, B.Sc (Hons) MBBS, MIraj, which shows the treatment given to that lady. In fact, the evidence on behalf of the plaintiffs show that lady was suffering, she was admitted to the hospital4te was not in a sound state of mind. she was not able to speak. As against this evidence we have the evidence of the 5Ut defendant and the two witnesses who is said to have attested the gift deed. A perusal of the gift deed shows that It is type written. The stamp paper is purchased by DW5. Who Is the person who has typed and authored Ex.D1 Is not forthcoming. The survey number. the extent. revenue paid. are all hand written. It does not bear the signature of Ashabi. It is said that she has affixed her UN. Though while typing, the date is left blank both in the body of the document as well as In 15 the end of the document, date is not affixed. Even the persons who have signed the document have not put the date. 31.8.1998. the date put forth by the 5th defendant is the date on which the stamp paper appears to have been issued. In the absence of any acceptable evidence, it is not possible to hold that the document is executed on 3 1.8.1988 when the place meant for date both in the body and in the end of the document is kept blank. If they could fill up the survey number, extent and the land revenue paid. certainly it also could have been ifiled up. In fact, the pen used for filling up those entries is totally different from the pen used by the witnesses or the 5th defendant who have affixed their signature. A perusal of the document shows that. on the date of the document Ashabi was in possession of the property. She gave gift of the property to the 5"' defendant and the 5" defendant acknowledged the gift and received possession of the property on the very same day. For having received and acknowledged the gift he has not signed the document. In fact. examination-in-chief of DW4 -- Mehboob Allabax shows when he met her she expressed her desire to gift the property and she also stated 5th defendant is already In possession. Therefore. In his presence no gift took 16 place, nor possession was delivered. DW5 Is an Income Thx Practitioner who Is staying near the house of Ashabi. When DW4 says It Is DW5 who has filled up the survey number, extent and the land revenue, DW5 flatly denies It. The evidence of these witnesses clearly demonstrates that they are not aware of the particulars of the property, the boundaries and on the ft 5th defendant's father who took active part In preparation and execution of the alleged gift deed. It Is he who went to the stamp vendor, got the gift deed typed and brought back which they have affixed their signature.
16. Under Mohammadan law, a hiba or gift Is a "a transfer of property, made Immediately and without exchange,"
by one person to another, and accepted by or on behalf of the latter. Every Mahomedan of sound mind and not a minor may dispose of his property by gift. Writing Is not essential to the validityofagift. Itlsessentialtothevalidltyofaglftthatthere should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or Implied, by or on behalf of the done, and (3) delivery of possession of the subject of the gift by the donor to the done. If these conditions are complied with '9 17 the gift Is complete. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. Registration of a deed of gift does not cure the want of delivery of possession. A declaration in a deed of gift that possession has been given binds the heirs of the donor. But such a declaration is not conclusive and a recital in a deed of gift is not conclusive.
17. Therefore, In order to establish the gift, 5°' defendant was expected to prove that Smt. Ashabi was In a sound state of mind, she was not suffering from any ailment. she expressed her intention to give gift openly in the presence of outsiders, such a gift was executed by her and property was delivered. The trial Court on a careful scrutiny of the entire evidence on record has held none of these ingredients are established. If the evidence of the witnesses is to be believed, the 5th defendant was In possession even before the gift. It is to be seen that Ashabi had 7 daughters and 2 sons. Their evidence discloses that she had love and affection to her children equally. She even loved DW4-Ashabl's sister son. Therefore, absolutely no material is placed on record to show 18 that she denied property to her own daughters whom she loved and to her sons with whom she had no quarrel. When the document has come into existence in the aforesaid manner which is full of suspicious circumstances and the evidence of the witnesses is not consistent and is not corroborated by any other evidence, the trial Court was justified in holding that the gift pleaded by 5 th defendant is not proved. Therefore no case for interference with the said linding is called for,
18. Once there is no gift under the Mohammadan law, both the daughters and the sons of the deceased Ashahi are residuaries. Sons take double the share of the daughters. So. 7 daughters will take 7 shares and 2 sons will take 4 share. Therefore. daughters would get 1 / 1 lh share and sons would gel 2/1 1 share. In that view of the matter. I do not find any error committed by the trial Court which calls for interference. There 1S HO merit in this appeal and accordingly it is dismissed.
Sc1/.
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