Rajasthan High Court - Jaipur
Mustaq Ahmad & Ors vs Mohammad Akhatar & Ors on 13 April, 2017
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Second Appeal No.555/1999
1. Mushtaq Ahmed S/o Shri Ali Baksh, Caste Muslim Resident of
Shop No.228, Ramganj Bazar, Chokari Ramchander Ji, Jaipur.
2. Mst. Bhuri Daughter of Mustafa wife of Shri Tajammul Hussain,
Caste Muslim, resident of Sarak Ghora Nika, Chokari Ramchander
Ji, Jaipur.
3. Mst. Haseena daughter of Mustafa wife of Shri Abdul Hakim
caste Muslim resident of Chokari Ramchander Ji, Jaipur.
4. Mst. Batool daughter of Mustafa wife of Abdul Shakoor caste
Muslim resident of Ramganj Bazar, Jaipur.
5. Mst. Shamin daughter of Mustafa wife of Shri Abdul Rajjak
caste Muslim, resident of Ramganj Bazar, Chowkari Gate Gate,
Jaipur.
6. Fida Hussain son of Late Mohd. Mustafa caste Muslim, resident
of Near Rehmaniya Masjid, Ramganj Bazar, Chowkari Ghat Gate,
Jaipur.
7. Saeed son of Late. Mohd. Mustafa caste Muslim, resident of
Sarak Ghora Nikas, Chowkari Ramchander Ji, Jaipur.
8. Karimuddin son of Late Mohd. Mustafa caste Muslim, resident of
Ramganj Bazar, Chowkari Ghat Gate, Jaipur.
9. Jamil son of Late Mohd. Mustafa caste Muslim, resident of
Behind Nili Haveli, Chowkari Ghat Gate, Jaipur.
10. Mst. Fakhran widow of Mohd. Murtaza, resident of Near
Rehmaniya Masjid, Ramganj Bazar, Chowkari Ghat Gate, Jaipur.
11. Ismail son of late Mohd. Murtaza, resident of Near Rehmaniya
Masjid, Ramganj Bazar, Chowkari Ghat Gate, Jaipur.
12. Mohsin son of late Mohd. Murtaza, resident of near Rehmaniya
Masjid, Ramganj Bazar, Chowkari Ghat Gate, Jaipur.
(2 of 22)
[CSA-555/1999]
13. Raeesa wife of Yunus daughter of Mohd. Murtaza caste
Muslim, resident of Near Rehmaniya Masjid, Ramganj Bazar,
Chowkari Ghat Gate, Jaipur.
14. Rajiya wife of Mohd. Hussain daughter Mohd. Murtaza caste
Muslim, resident of Near Rehmaniya Masjid, Ramganj Bazar,
Chowkari Ghat Gate, Jaipur.
----Appellants-Defendants
Versus
1. Mohd. Akhtar
2. Mohd. Asghar
3. Gulshan Bano (Disease)
3/1. Yunus S/o Shri Bundu (Husband of Gulshan Bano)
3/2. Wajida D/o Shri Yunush & Gulshan Bano
3/3. Naveed S/o Shri Yunus & Gulshan Bano
3/4. Javeed S/o Shri Yunus & Gulshan Bano
aged 16 years Minor through legal & Natural guardian Shri
Yunus. R/o. H.No.4171, In front of Badi Masjid Rehmaniya,
Ramganj Bazar, Northern Side Chokari Ramchadra Ji, Jaipur.
3/5. Kumari Sameena D/o Shri Yunus & Gulshan Bano Minor 13
years Through Legal & Natural Guardian Father Sh. Yunus.
3/6. Kumari Rubnia D/o Shri Yunus & Gulshan Bano aged 10 years
Minor Through Legal & Natural Guardian Father Sh. Yunus.
3/7. Kumari Farheen D/o Shri Yunus & Gulshan Bano aged 7 years
Minor Through Legal & Natural Guardian Father Sh. Yunus.
4. Tohfeen
All sons and daughter of Mohd. Ibrahim caste Muslim,
resident of Behind Nili Haveli Haveli, Mehron ka Rasta, Chowkari
Ghat Gate, Jaipur
....Respondents Plaintiffs.
(3 of 22) [CSA-555/1999]
5. Mst. Noor Bano wife of Abdul Hakim daughter of Late Abdul Sattar caste Muslim, resident of inside Dudu House, Ramganj Bazar, Jaipur.
6. Manzoor son of Abdul Sattar caste Muslim, resident of Near Badi Masjid, Ramganj Bazar, Jaipur.
7. Mst. Ahsan Bano wife of Fakruddin daughter of Abdul Sattar, caste Muslim resident of Mehron ka Rasta, Ramganj, Bazar, Jaipur.
8. Maksood (wrongly written Kamsood) son of Late Abdul Sattar, caste Muslim, resident of Mehron Ka Rasta, Ramganj Bazar, Jaipur.
9. Mst. Sabiya wife of Ilyas daughter of Late Abdul Sattar caste Muslim, resident of Behind Dadu House, Ramganj Bazar, Jaipur.
10. Mst. Nazra wife of Shafique daughter of Abdul Sattar caste Muslim, resident of Near Chhoti Masjid, Ramganj Bazar, Jaipur.
11. Mst. Noorjahan wife of Abdul Waheed, caste Muslim, resident of Ramganj Bazar, Chowkari Ghat Gate, Jaipur.
12. Mst. Latifan wife of Mohd. Yusuf caste Muslim, resident of Ramganj Bazar, Chowkari Ramchandra Ji, Jaipur.
13. Mst. Mariyam wife of Mohd. Yakoob caste Muslim resident of Ramganj Bazar, Chowkari Ramghandra Ji, Jaipur (Desease).
13/1. Gulmohammad S/o Late Shri Mohammad Yakoob aged about 60 years R/o H.No.41/71, In front of Badi Masjid Rehmania, Ramganj Bazar, Northern Side, Chowkri Ramchandra Ji, Jaipur.
14. Mst. Ramjano wife of Mohd. Ismail, caste Muslim, resident of Near Jaggan Nath Sahah Ka Khuuah, Chowkri Ramchandra Ji, Jaipur.
----Defendants Respondents _____________________________________________________ For Appellant(s) : Mr. Z.A. Naqvi For Respondent(s) : Mr. MM Ranjan, Sr. Advocate assisted by Mr. Rajat Ranjan and Mr. Amit Gupta (4 of 22) [CSA-555/1999] _____________________________________________________ HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment Reportable 03/04/2017 The instant Civil Second Appeal under Section 100 CPC has been filed by the appellants aggrieved by the judgment and decree dated 30.9.1999 passed by learned Addl. District Judge No.9, Jaipur City, Jaipur (hereinafter referred to as the 'appellate court') in Civil Regular Appeal No.54/1999 whereby the 'appellate court' has quashed and set aside the judgment and decree dated 19.03.1987 passed by the learned Civil Judge No.5, Jaipur City (hereinafter referred to as the `trial court') and decreed the civil suit filed by the plaintiffs against the defendants for declaration of the sale-deed dated 6.9.1968 as null and void, possession of the property etc. The facts in brief for the purpose of deciding the appeal are that plaintiffs-original respondents No.1 to 4 filed a suit for declaration, seeking possession and injunction for the disputed property i.e. shop.
The case of the plaintiffs before the trial court was that the disputed property i.e. a shop described in para of the plaint was gifted by Ms. Bashiram W/o Abdul Samad, defendant No.1 (since dead) and Abdul Rehman son of Ellahibux to the father of the plaintiffs Mohd. Ibrahim vide the gift deed dated 08.02.1958 (Ex.3) and the plaintiffs being the heirs of Mohd. Rehman were entitled to the property. It is also the case of the plaintiffs that the sale deed dated 06.09.1958 (Ex.A-11) executed by the defendant (5 of 22) [CSA-555/1999] No.1 to 6 in favour of the defendant Nos.7 to 9 was void as against the right of the plaintiffs as the defendant No.1 had already gifted the disputed property, therefore, she had no right to sale that property. It is also prayed that the defendants be restrained by permanent injunction from raising any construction in the disputed shop.
On the other hand, the case of the appellants- defendants was that the alleged gift deed dated 08.02.1958 (Ex.3) was forged and fabricated document and the disputed property had rightly been sold by the defendant Nos.1 to 6 to defendant Nos.7 to 9 by a registered sale deed dated 06.09.1968 and therefore, they were entitled to that property.
On the basis of the pleadings of the parties, learned trial court framed necessary issues. To prove the issues, both the parties produced oral as well as documentary evidence. Thereafter, the learned trial court after hearing the parties dismissed the suit of the plaintiffs against the defendants for declaration etc. vide impugned judgment and decree dated 19.3.1987. Against which the plaintiffs filed appeal before the lower appellate court.
The learned trial court after the close scrutiny of the facts, evidence and the law on the subject found that the plaintiffs had failed to prove the execution of (Ex.3) and even if it is taken to have been duly executed, it being a contemporaneous document, needed to be registered and since admittedly, the document was not registered, it could not have (6 of 22) [CSA-555/1999] been taken into evidence. Accordingly, the learned trial court dismissed the suit.
The learned appellate court did not agree with the findings of the learned court of the first instance and found that gift had been made earlier and the (Ex.3) was prepared afterwords only to evidence the fact of gift and the document was not contemporaneous one and therefore need not be registered. Accordingly, the learned first appellate court by the impugned judgment and decree dated 30.09.1999 allowed the first appeal filed by the plaintiffs and set aside the decree and judgment of the trial court and decreed the suit in favour of the plaintiffs holding the sale deed (Ex.A-11) to be void.
Hence, the present appeal.
On 24.8.2000, this Court admitted the second appeal on the following substantial questions of law:-
1. Whether according to Mohammedan law if the gift is made through writing it does not require compulsorily registration?
2. Whether the version of oral gift which is an unregistered document i.e. Bakshisnama Ex.3 can be preferred against the registered document i.e. sale deed executed by defendants No. 1 to 6 in favour of defendants No. 7, 8 & 9?
3. Whether Ex.3 can be relied upon when the so called donor i.e. Bashiran defendant No.1 has specifically denied in her written statement to have gifted her share to Mohd. Ibrahim, father of the plaintiff ?
4. Whether the alleged gift by Mst. Bashiran and Abdul Rehman to Mohd. Ibrahim is according to (7 of 22) [CSA-555/1999] Mohammedan Law and Ex.3 is in memory of oral gift when this fact was not pleaded in the plaint ?
5. Whether the findings recorded by trial court on issues Nos. 2, 3, 4, 6, 9, 10, 11 and 13 have been rightly and legally reversed by the lower appellate court after evaluating the evidence available on record ?
Having heard learned counsel for both the parties, I have gone through the material and evidence available on the record.
It is submitted by Shri Z.A. Naqvi, learned counsel for the appellants that the impugned judgment and decree are totally against the law, facts and the evidence available on record. The learned first appellate court without meeting out the reasoning recorded by the learned trial court has reversed the same and thus, the learned lower appellate court has committed material illegality. Shri Naqvi submits that the alleged gift deed (Ex.3) was not proved by the plaintiffs and the same is also an unregistered document which is not admissible in evidence as the same is required to be registered under Section 17 of the Registration Act. In (Ex.3), there is no mention regarding acceptance of gift. It is further submitted that no such evidence is available on record from which the factum of making gift and acceptance of the same can be proved which is a condition precedent for gift. If the gift deed was written in writing at that time in that situation the same required to be registered because by virtue of the same the interest, right and owner ship come into play. It is contended that as per the Mohammadan law any property can be gifted by oral gift but for that declaration of the donor, consent of the donee and (8 of 22) [CSA-555/1999] possession over the same are required to be proved. As per the counsel for the appellants, the alleged gift-deed (Ex.3) was allegedly executed by Bashiran but Bashiran herself has completely denied this fact. It is also not the case of the plaintiffs that oral gift was made and thereafter the gift deed was executed. No document has been produced by the plaintiffs on record either to prove their possession over the disputed property or the date of their dispossession from the same to show that they were in possession of the same. It is also submitted that in the criminal case also, there was no mention about the gift deed (Ex.3). Therefore, it is clear that (Ex.3) is forged one which is allegedly of 8.2.1958. By this document, the plaintiffs claimed their right over the disputed property. Had this been true, no question did arise to write the letter (Ex.4) on 15.2.1954. From this also, it is clear that the gift-deed dated 8.2.1958 is a forged document. In support of his submissions, learned counsel for the appellants has placed reliance on the following judgments:
AIR 1974 Jammu and Kashmir 59, Ghulam Ahmad Sofi Vs. Mohd. Sidiq Dareel & Ors., AIR 1975 Andhra Pradesh 271, Chota Uddandu Sahib Vs. Masthan Bi (died) & Ors., AIR 1926 Lahore 372, Maula Bukhsh Vs. Hafiz-ud-Din & Ors., AIR 1973, Madras 280, S.M. Usman Ali & Anr. Vs. O.B. Kubendra Bai & Anr., (1999) Western Law Cases (Raj.) U.C. 118, Sardar Dan Singh Vs. Sardar Bhag Singh, AIR 1959 Supreme Court 31, Moran Mar Basselios Catholicos Vs. Thukalan Paulo Avira & Ors., AIR 1968 Supreme Court 1413, Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif & (9 of 22) [CSA-555/1999] Ors., 1961 Rajasthan Law Weekly 36-Smt. Jannat Bai Vs. Firm, Janee Khusalji Jethaji.
Per contra, Shri MM Ranjan, Sr. Advocate, appearing for the respondents has submitted that (Ex.3) in fact is an agreement which was written by Bashiran and Abdul Rehman to the effect that the property had been gifted before writing of gift deed (Ex.3). As per Section 129 of Transfer of Property Act, the provisions of Registration Act do not apply to the gift deed executed by a Mohammaden. The plaintiffs have fully proved the execution of (Ex.3) and also the fact that when Bashiran had handed over possession of the disputed property to the father of the plaintiff, she could not have remained owner of the property and question of selling the same to respondent Nos. 7 to 9 on 6.9.1968 did not arise. The plaintiffs have proved this fact by giving cogent evidence that defendant Nos. 7 to 9 forcefully took the possession of the disputed shop on 06.09.1968 by breaking the lock. After executing gift deed (Ex.3) and rent deed (Ex.4), it goes to prove that possession of the disputed property was handed over to the father of the plaintiffs. It is also proved that on 8.2.1958 the property was gifted orally and (Ex.3) was executed on 8.2.1958 to remember the same. Badruddin (PW.2) has fully proved this fact and no effective cross-examination was made on behalf of defendant Nos. 7 to 9. The learned lower appellate court has properly, minutely and thoroughly examined the evidence available on record and holding (Ex.3) to be proved held that Bashiran had gifted the disputed property to the father of the plaintiffs and while doing so, the learned first appellant court (10 of 22) [CSA-555/1999] committed no error or illegality.
In support of his contentions, learned counsel for the respondents has placed reliance on the following decisions:-
AIR 1995 Supreme Court 1205, Mahboob Sahab Vs. Syed Ismail & Ors., AIR 1996 Patna 156, Bibi Riajan Khatoon & Ors. Vs. Subera Sadrul Alam & Ors., AIR 1964 Madras 373, Johara Bibi Vs. Bibi & Ors., AIR 1998 Kerala 134, Chavittumparakkal Thamasikkum Dappayil Akkutty''s daughter Pathumma Vs. Pokku & Ors., AIR 1964 Supreme Court 275, Valia Peedikakandi Kutheessa Umma & Ors. Vs. Pathakkalan Narayanath Kumhamu (deceased) & Ors., Abdul Rahim & Ors. Vs. Sk. Abdul Zabar & Ors., (2009) 6 Supreme Court Cases 160, Gulamhussain Kutubuddin Maner Vs. Abdulrashid Abdulrajak Maner & Ors. (2000) 8 Supreme Court Cases 507.
I have considered the rival submissions made by the learned counsel for both the parties and perused the material on record and rulings cited at the bar.
Essential conditions of a valid gift in Muslim Law:-
The question is not res integra. The essential conditions for a valid gift in Muslim law are now well settled. In para 13 of the judgment in Abdul Rahim & Ors. v. S.K. Abdul Zabar & Ors., (2009) 6 SCC 160, the Hon'ble Supreme Court has held as under:
"13. The conditions to make a valid and complete gift under the Mohammadan law are as under:
(a) The donor should be sane and major and must be the owner of the property which he is gifting.
(11 of 22) [CSA-555/1999]
(b) The thing gifted should be in existence at the time of hiba.
(c) If the thing gifted is divisible, it should be separated and made distinct.
(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things not gifted i.e. should be free from things which have not been gifted.
(f) The thing gifted should come in the possession of the donee himself or of his representative guardian or executor.
While arriving at the above conclusions, the Hon'ble the Apex Court has noticed the definitions of gift given in various treatises on Mohammadan law like Mulla's Principles of Mohammadan Law, Syad Ameer Ali's Commentary on Mohammadan Law Faiz Badrudidin Tyabji's Muslim Law- The Personal Law of Muslims in India and Pakistan and Dorrul Mokhtar's Book on Gift and has also referred to its earlier judgment in Maqbool Alam Khan v. Khodaija, AIR 1966 SC 1194. Therefore, I need not to burden this judgment by citing and analyzing further precedents. For the present purpose, suffice is to say that in Muslim law tender, acceptance and possession of property makes a gift valid. Whether the deed of gift is compulsorily registrable:
In Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel & Ors., AIR 1974 J & K 59, it has been held that sections 123 and 129 of the Transfer of Property Act do not supersede the Mohammadan law on matter relating to making of oral gifts and (12 of 22) [CSA-555/1999] therefore registered instrument is not necessary. But if there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered as provided under Section 17 of the Registration Act.
If, however, the making of the gift is an antecedent act and a deed is executed afterwards as evidencing the said transaction that does not require registration as it is an instrument made after the gift is made and does not therefore create, make or complete the gift thereby transferring the ownership of the property from the executants to the person in whose favour it is executed.
In Chota Uddandu Sahib v. Masthan Bi (died) & Ors., AIR 1975 AP 271, it has been held that if all the formalities, as prescribed by Mohammadan Law, regarding the making of gifts are satisfied, the gift is valid notwithstanding the fact that it is oral and without any instrument. If there is a contemporaneous document it should be registered. But if the gift is antecedent and the deed is subsequent merely evidencing the past transaction, it does not require registration because it does not itself make or complete the gift.
From the above judgments, I may readily draw the following conclusions:
(i) If gift is made orally and an instrument is executed afterwards only for the purpose of evidencing the transaction of gift, then such instrument need not be registered under the provisions of the Registration Act.
(ii) If the gift is made through an instrument that is to say if the gift is made in writing and the instrument itself makes and completes the gift by transferring the ownership of the property to the donee, then such instrument needs to be registered compulsorily under the Registration Act.
The learned Counsel for the respondents has heavily placed reliance on following lines from the judgment of the (13 of 22) [CSA-555/1999] Hon'ble Supreme Court in Mohboob Sahab v. Syed Ismail & Ors., AIR 1995 SC 1205, to buttress the argument that the registration of gift deed in Mohammadan law is not necessary.
"Though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act;"
First of all it would be worth mentioning that the question of registration of the gift deed was not in issue in the said case as the deed of gift was already registered in that case. Secondly, if I carefully read the observation, it nowhere says that if the gift is in writing, it would not be required to be registered. It simply says that gift by a Mohammadan is not required to be in writing and if it is not in writing, it need not be registered.
In view of the above position of the law, it becomes essential to determine whether the gift deed (Ex.3) was an instrument which itself created, made and completed the gift or it was an instrument merely evidencing the transaction of gift executed after an oral gift having previously been made.
All the substantial questions of law raised in this appeal revolve around the gift deed (Ex.3). Therefore, for the adjudication of the above questions, the position of gift deed (Ex.3) needs to be clarified. I would like to first ascertain that how the lower courts interpreted this document and what their conclusions were.
The learned trial court approached this document from two angles, one from execution point of view and other (14 of 22) [CSA-555/1999] from content point of view. Delving upon the execution, the learned trial court finds that there are serious contradictions in the statement of the sole witness-(PW.2) examined to prove the document. Besides the witness was interested one. Other two persons, who were alive and had witnessed the execution of gift deed (Ex.3) were not called for examination. Defendant No.1, who is alleged by the plaintiffs to have executed gift deed (Ex.3), had categorically denied the execution in her written statement but the plaintiffs neither refuted her statement by filing counter reply nor tried to compare her thumb impression to prove the execution. The plaintiffs did also not exhibit the register in which the alleged gift deed (Ex.3), was entered at the time of execution. In these circumstances, the learned trial court did not find (PW.2) to be reliable and draw adverse inference against the plaintiffs for not examining the other two witnesses of the execution and for not exhibiting the register in which the document was entered. Adverting to contents of (Ex.3), the learned trial court has extensively quoted from the contents of (Ex.3) and stressing the following phrases viz. " viuk tqqeyk gd o fgLlk tk;nkn dks eksgEen bczkghe dks c["kh"k dj fn;k ----------------- dgus esa gS] ns fn;k
------------------------ c["kh"k djds dCtk eksgEen bczkghe dks nsdj fy[kk fn;k gSA "
concluded that the document was contemporaneous one and in the light of precedents required registration.
Dealing with the first of the above two aspects i.e. (Ex.3), the learned appellate court held that (PW.2) was an important witness as he lived in front of the disputed property and his testimony could not have been rejected only on the basis (15 of 22) [CSA-555/1999] of certain technical discrepancies. However, the learned appellate court has said nothing about the non-examination of other two witnesses of the execution and non-proving the register in which gift deed (Ex.3) is alleged to have been entered. Coming to the contents of gift deed (Ex.3), the learned appellate court has held that the trial court has over-looked the fact that it mentions that Mohd. Ibrahim was looking after defendant No.1- Abdul Rehman which indicates that Mohd. Ibrahim was living with the donors, defendant No.1 and Abdul Rehman. Therefore, Mohd. Ibrahim was in possession of the property. The appellate court has also supported its conclusion with the statement of (PW.2) to the effect that defendant No.1 had adopted Mohd. Ibrahim and he lived with defendant No.1 and Abdul Rehman. The appellate court has clarified that the word 'adopted' in the statement should not be taken in its technical sense and its over all effect should be seen, which according to the appellate court means that Mohd. Ibrahim was living with the donors. Thus, the disputed property had already been donated to Mohd. Ibrahim and Mohd. Ibrahim was living with the donors, therefore, there was no need to give him possession of the property and (Ex.3) was only a subsequent document evidencing the gift made earlier.
With due difference to the learned appellate court, it may be said that any witness does not become important or reliable only for the reason that he was living in front of the disputed property. While determining the reliability of a witness his relation with the parties to the suit and consistency of his (16 of 22) [CSA-555/1999] statement are relevant factors. These factors can be and should be taken into consideration before relying upon the testimony of the witness. I am of the considered view that trial court has minutely examined the statements of (PW.2) and has rightly taken into account the relationship of him with the plaintiffs and has not committed any error in not relying on his statement. The learned trial court has also not committed any illegality in drawing adverse inference against the plaintiffs for not examining the two important and available witnesses of execution of deed gift (Ex.3).
Thus, I find no fault in trial court's conclusion that the plaintiff had failed in proving the execution of document (Ex.3).
The trial court after thoroughly discussed the evidence available on record, recorded the following findings:-
"lk{; ds mijksDr foospu ls ge bl fu'd'kZ ij igqaprs gS fd oknh ,DthfcV 3 cDlhlukek dk fu'iknu lkfcr djus esa ukdke;kc jgk gSA Lo;e~ clhju us vius tokc nkok esa ,DthfcV 3 cDlhlukek dk fu'iknu bUdkj fd;k gSaA blds ckotwn Hkh oknhx.k us tokcqy tokc is"k dj ;g dgus dh fgEer ugha dh fd ,DthfcV 3 cDlhlukek clhju }kjk fy[kk x;k gSaA gkykafd ml oDr clhju thfor Fkh] fQj Hkh clhju dk vaxwBk fu"kkuh compare djkus dh ps'Vk ugha dhA QkStnkjh dsl tks i{kdkjksa ds njE;ku~ pyk muesa cDlhlukek dk dksbZ mYys[k ugha gSaA cn:nhu Lo;e~ vius QkStnkjh izdj.k esa gq;s c;ku ,DthfcV ,&3 ds , ls ch fgLls esa Lohdkj djrk gSa fd mlds lkeus ,DthfcV 3 dh fy[kki<++h ugha gqbZA vCnqy oghn o eksgEen bLekbZy nksuksa ekStwn gSa] vkSj oknhx.k ds djhch fj"rsnkj gS] fQj Hkh mUgsa is"k ugha fd;k x;k gSaA eksgEen v[rj ih-MCY;w- 1 dk ekuuk gSa fd clhju izfroknh la+- ,d ls mldh dksbZ yM+kbZ ugha Fkh] fQj Hkh dksbZ dkj.k le> esa ugha vkrk fd og fdl Hkkafr izfroknh la- 7 ls 9 eqlrQk&eqLrtk ls fey xbZ vkSj mlus cspku dj fn;kA xokg tks bl izdj.k esa is"k gq;s gSa os lHkh vius iwoZ esa QkStnkjh dsl esa gq;s c;kuksa ls eqdj x;s gSaA ,DthfcV 4 fdjk;k fpV~Bh ds fu'iknu dks cn:nhu us bUdkj (17 of 22) [CSA-555/1999] dj fn;k gSA tc ,DthfcV 4 fdjk;k fpV~Bh 15-02-54 dh gSa vkSj cDlhlukek fnukad 08-02-58 dk gSa] rks le> esa ugha vkrk fd fdjk;k fpV~Bh ,DthfcV 4 fdl Hkkafr igys fy[kh xbZ] tc fd mldk dCtk gh oknhx.k ds ikl ugha FkkA clhju }kjk eksgEen bczkfge dks xksn ysuk oknhx.k }kjk dgk x;k gSa tc fd eqfLye ykW xksn ysuk recognise ugha djrkA bl fpV~Bh dks lkfcr djus okys xokg cn:nhu us ,DthfcV ,&3 esa gq;s c;ku esa Li'Vr;k dgk gS fd og oDr fy[krs ,DthfcV 3 ekStwn ugha FkkA ,DthfcV 3 cDlhlukek dks fy[kus okys dh chch&cPps ekStwn gSa] ftl jftLVj esa bUnzkt fd;k og Hkh fo|eku gSa exj mUgsa is"k ugha fd;k x;kA cn:nhu oknh dk fj"rsnkj gSaA dCtk ckcr lcls vPNh nLrkosth lk{; jk"kudkMZ o oksVjfyLV] e`R;q rFkk tUe izek.k i= gks ldrs Fks] exj mu dkj.kksa ls tks oknh dks HkyhHkkafr fofnr gSa] mUgsa is"k ugha fd;k x;kA vr% ,-vkbZ-vkj-] 1963 iVuk ist 407 dh fuxkg esa oknh ds fo:) adverse inference draw djus dk vkSfpR; gSaA fygktk ge bl fu'd'kZ ij igaqprs gS fd oknhx.k ,DthfcV 3 cDlhlukek dk fu'iknu lkfcr djus esa iw.kZr;k vlQy jgs gSa vkSj ,DthfcV 3 ds voyksdu ls dksbZ tk;t cDlhl oknh ds gd esa gksuk lkfcr ugha gSaA bl fuxkg esa ge bl fu'd'kZ ij igaqprs gS fd oknhx.k ;g rF; lkfcr djus esa vlQy jgs gSa fd izfroknh la0 ,d o vCnqy jgeku us viuk dqy fgLlk bczkfge firk oknhx.k dks cDlhl dj fn;k rFkk dCtk ns fn;kA bl fuxkg esa ;g rudh fo:) oknhx.k r; dh tkrh gSA "
In view of the above findings to which I fully agree, it is proved that execution of the gift deed gift (Ex.3) was not proved by the plaintiffs.
Coming to the second aspect of (Ex.3) i.e. whether it was contemporaneous or subsequent to the fact of alleged gift. I am afraid that the learned appellate court has travelled beyond the pleadings of the plaintiffs. They have not pleaded in their plaint that gift had been made earlier and the document (Ex.3) was written subsequently to evidence the transaction. Besides this, it may also be kept in mind that witness may lie but the document not. I cannot brush-aside the contents of the (18 of 22) [CSA-555/1999] document only because they were written by some other person or the executor or by a layman and therefore technicalities cannot be expected of him. When someone transfers his property, I cannot assume that he acts negligently or reluctantly. Neither does he imagine the litigation and the situation arising from that. Therefore, he generally rights what he intends to right. Therefore, it is safer to rely on the contents of a document which was written much earlier than the real litigation. As far as the issue of living of Mohd. Ibrahim with defendant No.1 and Abdul Rehman is concerned, it proves nothing. Even it does not prove possession. For proof of possession, animus of possession is must and there is nothing on the record which may show that Mohd. Ibrahim was living with defendant No.1 and Abdul Rehman as a holder of possession. Contrary to it, (Ex.3) clearly mentions that he was living with defendant No.1 and Abdul Rehman to serve them. Learned trial court has quoted extensively from (Ex.3) and phrases stressed by the trial court goes to show that donation of property and its possession and writing of the gift deed were contemporaneous and the following phrase further fortifies its conclusion.
";g bdjkjukek crkSj c["kh"kukek iwjs gks"kks&gokl esa cgd eksgEen bczkghe dks c["kh"k dj vkSj dCtk eksgEen bczkghe dks nsdj fy[k fn;k fd izek.k jgs vkSj oDr t:jr dke vkosA"
From the above, it is clear that the document speaks in present and does not refer to any past transaction. Besides, it clearly shows that until the document was drawn the property (19 of 22) [CSA-555/1999] was in possession of donor (Party No.1) and possession of the suit property was handed over simultaneously with the execution of the instrument in question.
Thus, I have no doubt in my mind that the (Ex.3) is a contemporaneous instrument which itself made, created and completed the gift, therefore, it was a document compulsorily registrable under the provisions of the Registration Act and it is an admitted fact the document is not registered. Hence it could not be admissible in evidence.
There is not even a single word in (Ex.3) which may reflect that the document is subsequent to the gift and had been written to evidence the transaction. Neither has any witness said that gift was made orally and the document was written subsequently. If I read the (Ex.3) dispassionately and as a whole, it gives clear impression that it is a contemporaneous instrument which itself makes, creates and completes the gift. The following phrases used in the instrument clearly show the intention of the executors and circumstances at the time of execution.
"mDr lEifRr vc rd esjs dCts esa gS ------------- rFkk eksgEen bczkghe i{kdkj ua0 1 o i{kdkj ua0 2 dh lsok vkSj gj rjg dh rhekjnkjh djrk gS ----------------- tks fd ge nksuksa eksgEen bczkghe dh lsok ls [kq"k gSA blfy;s eksgEen bczkghe ds gd esa i{kdkj ua0 1 vkSj i{kdkj ua0 2 vius vius fgLls dks la;qDr :i esa eksgEen bczkghe dks nku dj fn;k vkSj mldk fgLlk tks i{kdkj ua0 1 ds dCts esa gS] ns fn;k vkSj leLr dkxtkr cxSjg eksgEen bczkghe dks ns fn;sA vc gekjs fgLls dh lEifRr dk eksgEen bczkghe ekfyd gS ------------------------ vc lEifRr ds fgLls ge i{kdkj ds laca/k esa dksbZ ,rjkt djs oks drbZ xyr gksxkA gekjh vksj ls eksgEen bczkghe ekfyd o eq[rkj gSA (20 of 22) [CSA-555/1999] vr% ;g bdjkjukek vkSj c["kh"kukek iwjs gks"kksa gokl esa cgd eksgEen bczkghe dks c["kh"k dj vkSj dCtk eksgEen bczkghe dks nsdj fy[k fn;k fd izek.k jgs vkSj oDr t:jr dke vk;sA" (emphasis supplied by me) This clearly shows that the agreement was written as a gift deed and it was intended to complete the gift. In view of this, I am of the considered view that while holding the gift deed as contemporaneous one the learned trial court has not committed any error or fact of law.
As has been mentioned above, it is settled position of law that a contemporaneous gift deed in Mohammadan Law requires registration and it cannot be taken into evidence unless it is registered. The trial court has gone through a number of precedents and has rightly drawn the principle of law laid down therein. Now, when I have reached to the conclusion with respect of (Ex.3) that the learned trial court has not committed any error or fact of law in arriving at the conclusion that gift deed (Ex.3) was neither proved nor was it registered and therefore cannot be read as evidence and when the whole claim of the plaintiffs is based on the said aspects and the conclusion arriving at by appellate court are devoid of merit.
In view of the above questions of law framed at the time of admission of the appeal as quoted above may be answered as under:-
"(1)(i) If the gift is made orally and an instrument is executed afterwards only for the purpose of evidencing the transaction of gift, then such instrument need not to be registered under the (21 of 22) [CSA-555/1999] provisions of the Registration Act.
(ii) If the gift is made through an instrument that is to say, if the gift is made in writing and instrument itself makes and completes the gift by transferring the ownership of the property to the donee, then such instrument needs to be registered compulsorily under the Registration Act.
(2) There are impeccable findings of fact of the learned trial court that the execution of the Bakshisnama (Ex.3) has not been proved and even if it is taken that the document had duly been executed, its contents clearly indicate that it was a contemporaneous document and therefore, it needed registration and admittedly the document is not registered and there is also no evidence which may show that Mohd. Ibrahim had accepted the gift purported to have been made by the said gift deed (Ex.3) and as such transaction of gift was not completed as per Mohammadan Law. In view of the above, the document (Ex.3) has no value in the eye of law and therefore, no question of preference arises."
(3) As discussed above, the execution of the document (Ex.3) gift deed was not proved and one of the reasons of the said conclusion is that the plaintiffs had not refuted the statement of respondent No.1, the simple reply is that in such (22 of 22) [CSA-555/1999] circumstances, document could not have been relied upon.
(4) As discussed above, besides the absence of the pleadings, its contents also clearly indicated that it was a contemporaneous document intended to complete the gift.
(5) As discussed above, the findings recorded by the trial court have no infirmity, either from the appreciation of evidence point of view or from the application of law point of view. Therefore, the appellate court was not justified in reversing the findings of the trial court on the said issues." As a result, the appeal is allowed and the judgment and decree dated 30.09.1999 passed by the first appellate court are hereby set aside and decree and judgment of the trial court dated 19.03.1987 is hereby restored. No order as to costs.
(PRAKASH GUPTA )J. Sanjay