Bangalore District Court
Syed Abdul Rahim vs Syed Naseeruddin on 16 December, 2016
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 16th day of December 2016
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.7744/2004
PLAINTIFF : Syed Abdul Rahim,
Aged about 45 years,
S/o.Syed Abdul Hafeez,(Late)
Residing in a portion of
No.48, Cockburn Road,
Shivajinagar, Bangalore-51.
(By M/s.Riyaz Ahmed Shariff..Adv)
-Vs-
DEFENDANTS : 1. Syed Naseeruddin,
S/o.Ghouse Moheeddin,
Major,
No.22, 4th Cross,
Opposite Masjid,
Mohammedan Block,
Malleswaram,
Bangalore- 560003
2. Smt.Banejan,
W/o.Ghouse Moheeddin,
Major,
No.22, 4th Cross,
Opposite Masjid,
Mohammedan Block,
Malleswaram,
Bangalore- 560003
3. Khamrunnissa,
W/o.Abdul Rasheed,
Major,
No.6, IInd Cross,
Mohammedan Block,
Malleswaram, Bangalore-3.
2 O.S.No.7744/2004
4. Smt.Saidunnissa,
Major,
W/o.not known to plaintiff,
No.24, 3rd cross, Sabeel
Colony, Nagawara,
Bangalore- 45.
5. Smt.Noorjan,
Major,
W/o.Not known to plaintiff,
No. 1160, 18th cross,
HBR Layout, 3rd Block,
BrindavanNagar, Bangalore.
6. The Commissioner,
Corporation of City of Bangalore,
Bangalore .
7. The Assistant Revenue Officer,
Ward No.79,
Corporation of City of Bangalore,
Cunnigham Road,
Bangalore .
(Defendant No.1 by Sri S.V.S
Defendant Nos.2 to 5 - Exparte
D.6 & d.7 by Sri P.A.B.)
Date of institution of the suit: 14.10.2004
Nature of the suit: Partition
Date of commencement of 11.09.2006
recording of evidence:
16.12.2016
Date on which Judgment was
pronounced:
Duration:
Days Months Years
02 02 12
JUDGMENT
-
This suit is filed by the plaintiff for partition and separate possession of the suit schedule property by allotting 3 O.S.No.7744/2004 2/5th share in favour of the plaintiff and permanent injunction against defendant Nos.6 and 7 from restraining them to transfer the khata in Mutation Register of Corporation of City of Bangalore in favour of defendant No.1 and such other reliefs with costs.
(Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.)
2. Brief facts of the case are that one Syed Hayath S/o. Syed Hyder during his lifetime got a property bearing No.48 and the same is the suit schedule property. The plaintiff has described the suit schedule property as bearing No.48, Old No. 37, situated at Cockburn Road, Civil Station Ward No.79, Bangalore-05 with boundaries.
Syed Hayath had a wife by name Smt. Shazadi Bi and they have no issues. Syed Hayath died on 20.12.1974 by leaving his wife Smt.Shazadi Bi and she also died in the year 1989. Late.Syed Hayath had a sister by name Smt.Hajoram Bi, She also died leaving behind her four daughters i.e., defendant No.2 to 5 and the son by name Abdul Hafeez, who was also died leaving behind the plaintiff as his only son. The plaintiff has succeeded to the estate left by late Syed Hafeez along with defendants no.2 to 5 as residuaries under 4 O.S.No.7744/2004 Mohammedan Law applied to Sunni Sect of Muslims. The 1st defendant who is the son of the 2nd defendant claiming the schedule property as an adopted son of late.Syed Hayath and also saying that Smt.Shazadi Bi gifted the schedule property by way of Hiba in favour of the 1st defendant. The said Smt.Shazadi Bi was having only 1/8th share in the suit schedule property and therefore, she had no right to gift the entire suit schedule property in favour of the 1st defendant. The 1st defendant by means of this Hiba is entitled only 1/8th share in the suit schedule property. The 1st defendant made an application to change the khata of the schedule property in his name before the 6th defendant and 7th defendant in presence of the concerned Officer and trying to cause irreparable loss. The plaintiff is having 2/5th share in the suit schedule property. The defendants 6 and 7 have to be restrained permanently from changing the katha of the suit schedule property in the name of the 1st defendant. The claim of defendant No.1 as adopted son and having no right over the suit schedule property is not sustainable under Mohammedan's law. Therefore there arose cause of action to file the suit and prayed to decree the suit.
5 O.S.No.7744/2004
3. On issuance of suit summons to the defendants after registering the case, defendant Nos.2 to 5 did not appear before the court. Hence, they were placed exparte. Since defendant Nos.6 and have appeared through their counsel, but they have not filed the written statement. Defendant No.1, who is contesting the suit has filed the written statement. In the written statement he has denied the material contents of the plaint averments and that the suit is not maintainable. He has denied the acquisition of right by the plaintiff over the suit schedule property. However he has admitted the family relationship interse between plaintiff and defendant Nos.1 to 5. He contended that late Syed Hayath Sab had purchased the suit schedule property and during his life time he gifted it in favour of defendant No.1 by way of Hiba and simultaneously defendant No.1 was put in possession of suit schedule property. Syed Hayath Sab died in the year 1974 leaving behind his wife and defendant No.1 as son. Wife of Syed Hayath Sab confirmed the Hiba in favour of defendant No.1 in order to give effect to the same had executed Hiba dated 20.9.1988. Since then defendant No.1 is in possession and enjoyment of the suit schedule property as absolute owner. Wife of Syed Hayath Sab died. 6 O.S.No.7744/2004 It is denied the succeeding estate of Syed Hayath Sab by his sisters and sister's children i.e. defendant Nos.2 to 5. It is also denied the plaintiff's alleged share in the suit schedule property and postponement for partition and separate possession. This defendant is the absolute owner over the suit schedule property under Hiba. It is also denied the alleged concoction of documents and claim in connection with the Hiba. The application of defendant No.1 to change the khata was duly objected by him and to take steps by defendant Nos.6 & 7 to change the khata. As a owner of suit schedule property he has gifted the same in favour of his wife Noorjahan on 17.10.2016, under the registered document and has put his wife in possession of the suit schedule property and the plaintiff knowing these facts initially created nuisance and filed a false suit having no right, title or interest, much less 2/5th share in the suit schedule property and he is not entitled for partition and separate possession as prayed for. Defendant No.1 is in possession of the suit schedule property since from the date of Hiba and continued after the death of Syed Hayath Sab by his wife Smt.Shazadi Bi and son defendant No.1 and Smt.Shazadi bi had confirmed the oral hiba given by her husband in favour of defendant 7 O.S.No.7744/2004 No.1 by executing Gift Deed. He has executed a gift in favour of his wife Noorjahan, who is in possession of the suit schedule property. Hence, the claim of the plaintiff is not maintainable. Even the plaintiff has managed in getting exparte order against defendant No.1. It was restored in view of the order passed in Misc.No.849/2007. The plaintiff's claim is illegal having no right over the suit schedule property. He is trying to grab the property standing in the name of wife of defendant no.1. There is no cause of action to file the suit and he prayed to dismiss the suit.
4. On the basis of the pleadings of the parties, the following issues are framed:
1. Whether the plaintiff proves his 2/5th share in the schedule property?
2. does he prove that even if the 1st defendant succeed on the basis of Hiba h e is entitled to 1/8th share in the schedule property?
3. Whether 1st defendant proves that he has perfected his title over the schedule property through Hiba and he is in peaceful possession and enjoyment of the property as absolute owner?
4. Whether the plaintiff is entitled for the relief of injunction and directions as prayed?
5. What order or decree?8 O.S.No.7744/2004
5. To prove the case, the plaintiff deposed as PW.1 and relied upon the documents Ex.P.1 to P.15. On the other hand, defendant No.1 deposed as DW.1 and relied upon the documents Ex.D.1 to D.43.
6. Heard the arguments of the learned counsels. Perused the pleadings of the parties, evidence and record on hand.
7. My findings on the above issues are as under:
Issue No.1 .. Partly in the Affirmative.
Issue No.2 .. In the Affirmative
Issue No.3 .. Partly in the Affirmative.
Issue No.4 .. In the negative.
Issue No.5.. As per final order for the
following:
R E A S O N S
8. Issue Nos.1 to 4:- These issues are interlinked with
each other, which are based on similar oral and documentary evidence. Hence to avoid repetition of facts and circumstances of the case, they are taken up for common consideration, since the plaintiff has sought the relief of partition declaring his 2/5th share in the suit schedule properties asserting the source of title as residuary along with defendant Nos.2 to 4. 9 O.S.No.7744/2004 On the other hand, the only contesting party is defendant No.1 and rest of defendant Nos.2 to 5 have placed exparte and defendant Nos.6 and 7 are the representatives of B.B.M.P. The defendant No.1 has claimed the title over the suit schedule property, on the ground of the alleged adoption and the oral gift and confirmation of the same under written document, absolute title over the suit schedule property.
9. The plaint averments are spoken to by the plaintiff as P.W.1 and placed reliance on the documents at Ex.P.1 to 15. Ex.P.1 and P.2 are the two assessment extracts; Ex.P.3 is the Kahta certificate; Ex.P.4 to P.6 are the 3 tax paid receipts; Ex.P.7 is the copy of the letter given to Corporation; Ex.P.8 is the endorsement; Ex.P.9 is the copy of the legal notices; Ex.P.9(a) & (b) are the two postal receipts; Ex.P.10 is the Intimation of property tax due; Ex.P.11 is the encumbrance certificate; Ex.P.12 & P.13 are the two acknowledgments; Ex.P.14 is the ration card and Ex.P.15 is the transfer certificate. These are pertaining to the suit property and plaintiff's status and relationship with defendants No.1 to 5 claiming his alleged right to seek partition. 10 O.S.No.7744/2004
10. On the other hand, the contesting defendant No.1 himself stepped into the witness box submitted his affidavit evidence as D.W.1 and has relied on the documents at Ex.D.1 to 43, to substantiate his defence denying the right of the plaintiff and defendants No.2 to 5 and his absolute title over the suit property asserting himself as adopted son and also on the basis of HIBA. Ex.D.1 is the driving licence, Ex.D.1(a) is the notarized copy of the D.L., Ex.D.3 is the Hiba; Ex.D.4 is the disclaimer; Ex.D.5 is the Gift Deed; Ex.D.6 is the BWSSB notice; Ex.D.7 is the intimation of property tax; Ex.D.8 is the display card; Ex.D.9 is the R.C. book; Ex.D.10 to D.12 are the Aadhar cards, Ex.D.13 to D.15 are the election I.D. cards; Ex.D.16 is the transfer certificate; Ex.D.17 to D.20 are the gas bills; Ex.D.21 is the electric bill; Ex.D.22 is the BWSSB water bill; Ex.D.23 is the driving licence; Ex.D.24 & D.25 are the Election voter I.D.; Ex.D.26 is the passport; Ex.D.27 is the Declaration of tax paid letter; Ex.D.28 is the ration card; Ex.D.29 to D.35 are the gas bills; and Ex.D.36 to D.42 are the electricity bills with receipts.
11. It is specifically contended by the plaintiff that one Syed Hayath Sab having his wife Shazadi Bi was absolute owner 11 O.S.No.7744/2004 of the suit schedule property and he died issueless and intestate. Even his wife died intestate. Syed Hayath Sab was having sister by name Hazoram Bi, who had 4 daughters and the son (by name Syed Abdul Hafeez). 4 daughters are defendant Nos.2 to 5. The plaintiff claiming to be the son of Abdul Hafeez has claimed right over the suit schedule property succeeding to the share of his father Hafeez as residuary, since daughters i.e. defendant Nos.2 to 5 are having the shares along with his father and therefore he is entitled for 2/5th share.
12. The learned counsel for the for the defendant No.1 has argued that, the very legal status of the plaintiff as son of Hafeez as well as status of said Hafeez as son of Hajoram Bi are disputed and that the plaintiff no way connected to the family of Syed Hayath and Shazadi Bi. Therefore, the plaintiff has to substantiate about his relationship. In the written statement defendant No.1 has not disputed the relationship interse between defendant Nos.2 to 5. Defendant Nos.2 to 5 did not contest the suit and they are placed exparte.
12 O.S.No.7744/2004
13. So far as defendant Nos.2 to 5 is concerned, the claim of the plaintiff went undisputed regarding his status. Defendant No.1 claiming to be the son of defendant No.2, ought to have adduced evidence of his mother, who is competent to speak about their family status. Hence, as there is no specific denial to construe that there is reasonable and genuine denial regarding the status of the plaintiff on the part of defendant No.1. Hence, the defence regarding challenge of legal status of the plaintiff as son of Hafeez does not sustainable.
14. Apart from this, the plaintiff has referred the transfer certificate of the school, in which he was studying i.e. Abdul Bari's High School, in which, father's name is shown as Abdul Hafeez and he was the student of the said school and it was the transfer certificate of the year 1987, which is undisputed during relevant point of time. This school record was not seriously disputed and mere denial does not come to the aid of defendant No.1 to disbelieve the status of the plaintiff as the son of Abdul Hafeez. He has stated on oath about his relationship with his father and defendant Nos.2 to 5, who are the sisters of plaintiff's father. Even defendant Nos.2 to 5 13 O.S.No.7744/2004 have not disputed about their said relationship as contended by the plaintiff. Undisputed facts need no much discussion. Hence it is evident on record that defendant Nos.2 to 5 and father of plaintiff are the children of sister of original prepositor Syed Hayath Sab. Under such circumstances, the mere denial on the part of defendant No.1 does not sustain for discrediting the claim of the plaintiff about his status.
15. Even he has referred the tax paid receipt and assessment notices. His father's mother's name Hijoram Bi, Abdul Hafeez was father of the plaintiff and Dilshad is plaintiff's wife. It is at Ex.P.4 of the year 1996 for having paid the property tax for the year 1995 to 1997, in respect of the suit schedule property, by the wife of plaintiff by name Dilsahd. The suit property is still standing in the name of original owner.
16. Defendant No.1 did not dispute about his status as son of defendant No.2. The defendant Nos.2 to 5 are competent persons to speak about their relations with the original owner Syed Hayat Sab. Defendant No.1 has not adduced their evidence as his material witness though they placed exparte. P.W.1 deposed that his father had 2 daughters and he himself is there only son. But he pleads ignorance about the contents of Ex.P.14 the ration card specifically about persons 14 O.S.No.7744/2004 whose names are noted as Irshad Ahamad and Sahira Begum. But his name revealing therein is showing the address of the suit property. Ex.P.14 is of the year 2001 i.e. much prior to this suit. It is not rebutted that the said ration card was seriously disputed at the relevant point of time. The tax paid receipt revealing that the tax amount was paid by wife of plaintiff, i.e. Ex.P.4, it is of the year 1996. This document being public document has not been challenged. These documents school record, ration card and tax paid receipt are not rebutted by the defendant No.1. They support the plaintiff's relations as son of Syed Abdul Hafeez (father) and Hazarabi (mother) and possession over the suit property. Apart from this D.W.1 himself stated that "after the death of my mother Smt.Shazad Bi the plaintiff being totally stranger to me and my father late Syed Hayath Sabab", and thus it is clear admission that he has impliedly accepted the status of plaintiff as grand son of Hazorambi the sister of Syed Hayat Sab. Defendant No.1 not being disputed his status as son of defendant No.2, denying and it specifically has came with the case as son of late Hayat Sab, and this relationship as son is based on alleged adoption. But as there is no legal concept as adoption and he being son of defendant No.2 cannot 15 O.S.No.7744/2004 claim himself as son of late Syed Hayat Sab. So plaintiff's case is accepted as he proved the relationship.
17. Defendant No.1 no doubt sets up to the claim over the suit schedule property as adopted son and also oral gift. The learned counsel for the plaintiff rightly pressed upon the concept of "adoption" that it is not prevailing amongst Muslim, since there is no concept of adoption under Mohammadan law. The learned counsel for the plaintiff has specifically pressed upon the residence, possession and enjoyment of the suit schedule property along with Syed Hayath Sab and Shahazad Bi. he has relied upon the documents i.e. ration card, tax paid receipt and property extract. No doubt, they are standing in the name of Syed Hayath Saheb. Even the property extract revealing the name of Syed Hayath Sahab, as on the date of suit. Referring these documents, specifically the ration card Ex.P.4 and tax paid receipt the plaintiff has asserted his possession over the suit schedule property. The ration card considered to be the public document, unless the contents of the same are rebutted it cannot be discarded and as it is issued date was 22.9.2001, much prior to filing of the suit. It is APL Card. 16 O.S.No.7744/2004 The residence of the plaintiff was shown as house No.48/18/1, Shivajinagar, Bengaluru. There is entry of names of other persons. Though, it is disputed regarding the entry of names of other persons, it is not duly rebutted by defendant No.1 who is contesting the suit that it is not pertaining to the plaintiff and during 2001 and onwards it was not challenged duly before the competent authority. It has authenticity of being issued by the concerned department of the government, said tax paid receipts of undisputed period are produced from the custody of plaintiff are not challenged as not genuine documents. They are public documents not being rebutted by defendant No.1 are supporting the case of the plaintiff. Under such circumstances, these are considered to be the genuine documents revealing the possessory right of the plaintiff with legitimate title and interest therein. They (plaintiff and defendant Nos.2 to 5 were also joint owners having actual and constructive possession. Hence, defence regarding raising of dispute pertaining to the plaintiff's joint title and right thereunder cannot be ignored.
18. It is also specifically claimed by defendant No.1 the right, title and interest over the suit schedule property under 17 O.S.No.7744/2004 the oral gift of deceased Shed Hayat Sab and it was confirmed by his wife Shahazad Bi after his death and the said documents referred to Ex.D.3. It is executed by the wife of Syed Hayath Saheb.i.e. Shazadi Bi, aged about 70 years and referred that suit schedule property orally gifted by her husband and she confirmed the Gift as per Ex.D.3. In this connection, the learned counsel for the plaintiff has referred the following decisions:-
1. 1997 (9) Kar.L.J. 570, in the case of Abdur Rehman Vs Smt.Atifa Begum & others, wherein it is held that, "Mohammedan Law - Gift- Validity of -three essentials are declaration of gift by donor, acceptance by donee and delivery of possession of property gifted from donor to donee - Gift would be rendered invalid if any one of essential conditions are not complied with - where there is no recital in deed of settlement that donee had accepted gift and that donor had relinquished ownership and domain over property, deed is not deed of gift - where material evidence shows that donor continued to be in possession and enjoyment of property in question till he death, presumption is that there was no valid gift - no right or title to property in question would devolve in accordance with law of succession and suit for partition is maintainable.
2. (2014) 10 S.C.C. 459in the case of Rasheeda Khatoon Vs Ashiq Ali, wherein it is held that, "oral gift of house alleged to have been made by predecessor of respondents in favour of appellant - but same not mentioned in unregistered deed of fit of the house executed several years thereafter in favour of appellant - Deed showing that property remained in donor's possession till its execution - Plaintiff (purported donee) was not living in the suit premises with the purported donor, but in her own house with her 18 O.S.No.7744/2004 husband - No proof of even constructive possession of donee pursuant to alleged oral gift established in any manner - having regard to Gift deed and concomitant facts held, oral gift not proved in present case.
3. AIR 1931 Sind 17, in the case of Mt.Hakim Bibi and another Vs Mir.Ahmed and others, wherein it is held that, "Mohomedan law - Gift - Delivery of possession -
Mutation at donor's instance in favour of donee in presumptive evidence of delivery in case of gift but not when deed passed is one of sale.
4. AIR 1933 Mad 86 Abdul Razak Saheb Vs Zainab Bi, wherein it is held that, "Mahomedan Law - Gift - Immovable property -
Transfer of possession necessary - Mother gifting property to son and continuing to live with him - Proof of delivery of possession necessary - Intention as constituting delivery - subsequent conduct of donee is material - Mere registered deed is not enough.
5. AIR 1995 S.C. 1205, Mahboob Sahab Vs Syed Ismail and others, wherein it is held that, "Though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; a gift to be complete, there should be a declaration of the gift b the donor; acceptance of the gift, expressed or implied, b or on behalf of the donee, and delivery of possession of the property the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift.
6. AIR 1975 A.P. 271 Chota Uddandu Sahib Vs Masthan Bi (died) and others; 7. 1998(5) Kar.L.J. 56 Abdul Gafoor (deceased) By LRs and another Vs Abdul Samadh & others and (8) AIR 1966 S.C. 1194, wherein 19 O.S.No.7744/2004 it is pressed upon the 3 ingredients for valid gift to be fulfilled and proved by Muslims cliaming right over Gift and property.
9. 2015(4) KCCR 3858 (DB), Mr.Syed Basheer Malik and another Vs Smt.Jameela Begum since dead by LRs and others, wherein it is held that, "Held, the essential ingredients of a gift is a transfer of an immovable property made voluntarily and without consideration. Similarly, Hiba or Gift under Mohammadan law is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. Though Section 123 of the Transfer of Property Act, makes it mandatory that a gift must be effected b a registered instrument, by virtue of Section 129 of the Transfer of Property Act, Chapter VII which deals with gifts under the Transfer of Property Act, does not affect any rule of value need not be registered as required by Section 123. It can be oral, but it should be adequately proved... Section 129 of the Transfer of Property Act, preserved the rule of Mohammedan law and excludes the applicability of Section 123 of the Transfer of Property Act to a gift of an immovable property by a Mohammedan. A gift oral, without consideration of property or substance of a thing could be are necessary to constitute a valid gift, namely, a declaration of 'gift' namely, a declaration of 'gift' by donor and acceptance of the gift, express or implied by or on behalf of the 'Donee' and delivery of possession of the subject of the gift b donor to donee complete the gift. However Hiba-bil-ewaz in India being a gift for a exchange, it is in the nature of a sale and if the subject matter is immovable property, then, it can only be by a registered instrument as provided under Section 54 of the Transfer of Property Act. Oral gift, in discharge of money owned to the donee being one for consideration, amounts to sale. It is not pure and simple Hiba but Hiba-bul-ewaz and if the property of the value of Rs.100 or more is involved, it can only be by a registered instrument. Similarly, in the case of gift for consideration such as love and affection, it would be a transfer of ownership in exchange for price paid or promised or part paid and part promised, then it has to be by a registered document.
10. 2009 (1) AIR Kar R 500 Hydersab Abdulnabi Maniyar (deceased by LRs) & Ors., Vs Waliahmed Abdulnabi 20 O.S.No.7744/2004 Maniyar (deceased by LRs) & Ors., wherein it is held that, "Muslim Law _ Hiba/gift simpliciter - donor by himself should transfer property to donee, which should be accepted by person simultaneously or on his behalf by some one else and must be put in possession of the property along with gift - it should also be without any other consideration, but only out of love and affection - Hiba sought to be effected through power of attorney - is no gift either at time of execution of power of attorney or at any point of time earlier - it cannot be a Mohammedan gift (hiba) which can be executed in part or in installments - it is not possible for execution of a gift deed under the Mohammedan Law through a power of attorney).
11. 2011(1) AIR Kar R. 378 Moahmmad Ghayasulla & Anr., Vs Asadulla Shariff & Anr., wherein it is held that, " Transfer of property Act Ss.123, 129 - Muslim law - Gift - declaration of hiba/gift - Reflects as ats done in presenti - Even on date of execution of gift donee was in possession of suit schedule property - Gift in question would not come within exclusion clause of S.129 but would fall within inclusion clause of S.123 of T.P.Act - Document would become compulsorily registrable and appropriate Stamp Duty as per provisions of Karnataka Stamp Act is required to be paid".
12. AIR 1960 MADHYA PRADESH 60, wherein it is held that, "Under the Mohammadan law there must be delivery of possession of the property gifted. Even in a case of joint possession, there must be some overt act by the donor indicating a clear intention on his part to transfer possession, and divest himself of al control voer the subject of the gift.
I3. 2014 S.C. 1304 Pratima Chowdhury Vs Kalpana Mukherjee and another "Notarized document - Execution -Absence of certificate of notarization -Execution - of document becomes suspicious".
21 O.S.No.7744/2004
19. With due respect to the said decisions, dictum and guidelines are duly considered, as they are pertaining to the valid Gift, its ingredients and proof and legal consequence among the Muslims in case of oral gift, which is permissible under Mohammedan law. Therefore, the ingredients of Hiba 'the gift' has to be considered, whether the plaintiff has proved the oral 'hiba' Ex.D.3, and that the effect and consequence of Ex.D.2, 3 and 4, are also relevant. It is tried to explain Ex.D.3 that the intention of the deceased Shazadi Bi regarding oral gift of property in favour of defendant No.1 and confirmation of the said document by his wife, under Ex.D.3. Its contents reveal that she herself put into physical possession of suit property in pursuance of alleged oral Hiba as referred to Cl.3 of Ex.D.3. She stated in Cl.4 that she was legally wedded wife and had absolute right to execute Hiba in respect of oral Hiba of her husband. But in this regard law does not permit to execute Hiba on behalf of the donor, as it does not fulfill the ingredients of Gift i.e. declaration of Hiba, acceptance and delivery of possession. The learned counsel for the defendant No.1 argued that it is by the very document of Ex.D.3, she confirmed the gift. By this Ex.D.3 only it has been declared the oral gift by her. He is in possession of the 22 O.S.No.7744/2004 suit schedule property. This itself expressed acceptance of Gift. No doubt Ex.D.3 contains the delivery of possession of property. But it does not indicated that late Hayat Sab gave possession under gift earlier on particular date. His wife cannot confirm the gift of her husband as contended by the defendant No.1. Though Gift claimed is oral gift which is recognized under Mohammedan Law, but Wife of Syed Hayat Sab has no right to give effect to the alleged (oral) gift, which was not at all acted upon, as poeprty was standing in the name of original owner. D.W.1 states about nature of gift, on which he has claimed that, "ªÀiËTPÀ »¨ÁzÀ°è K£ÀÄ PÀArõÀ£ï EvÀÄÛ JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ £ÀªÀÄä vÁ¬Ä EgÀĪÀªÀgÉUÀÆ CªÀgÀÄ £ÉÆÃrPÉƼÀÄîªÀÅzÀÄ ªÀÄvÀÄÛ CªÀ¼ÀÄ wÃjPÉÆAqÀ £ÀAvÀgÀ £À£ÀUÉ DUÀ¨ÉÃPÀÄ CAvÀ ºÉýzÀÝgÀÄ JAzÀÄ ¸ÁQë ºÉüÀÄvÁÛgÉ. »¨ÁªÀ£ÀÄß £ÉÃgÀªÁV £À£ÀUÉ ªÀiÁr®è JAzÀgÉ ¸ÁQëAiÀÄÄ ºÀAiÀiÁvï¸Á¨ïgÀªÀgÀ ºÉAqÀw £À£ÀUÉ ªÀiÁrgÀÄvÁÛ¼É JAzÀÄ ºÉüÀÄvÁÛgÉ. ¸ÁQëUÉ E£ÉÆߪÉÄä CzÉà ¥Àæ±ÉßAiÀÄ£ÀÄß PÉüÀ®Ä CAzÀgÉ »¨ÁªÀ£ÀÄß £ÉÃgÀªÁV ºÀAiÀiÁvï¸Á¨ïgÀªÀgÀÄ ¤£ÀUÉ ªÀiÁr®è JAzÀgÉ ¸ÁQëAiÀÄÄ ¤d CAvÀ ºÉüÀÄvÁÛgÉ".
20. Ex.D.3 does not speak that late Hayat Sab, on particular day declared the Gift, and D.1 had accepted it and possession was delivered on that day only. But it is the intention of his wife and it should not be construed that it was the Gift of deceased Hayat Sab. However it indicates that 23 O.S.No.7744/2004 the oral gift was made through his wife on 20.9.1988. Thereby it reveals that it was declared the oral Hiba by his wife and defendant No.1 accepted it and she had handed over the original documents of title to the suit property, to defendant No.1 in terms of this oral Hiba made by her. It was without consideration. Possession was given under oral Hiba by her only, to defendant No.1. These three ingredients are fulfilled by his wife. Hence it cannot be construed as it was oral gift of late Hayat Sab. His wife having no vested right under law to confer it. So defendant No. cannot get any absolute title over the suit schedule property, under oral gift of deceased Hayat Sab. Ex.D.3 cannot be enforced as to the absolute title of late Hayat Sab. But it can be considered because of the contents of Ex.D.3 as held above that at the most it is valid oral Hiba of wife of Hayat Sab and nothing more. Because the recital of Ex.D.3 suported the ingredients of oral Hiba of wife of Hayat Sab. But she has no absolute right, title and interest over the entire suit property to gift it to defendant No.1. She had only fixed 1/8th share therein. To that extent it is construed under law that it was oral hiba of wife of Hayat Sab made by her in favor of defendant No.1 by fulfilling the said 3 ingredients. Oral Hiba need no 24 O.S.No.7744/2004 registration. Ex.D.3 cannot be enforced as Hiba of late Hayat Sab and it cannot be subject to registration. It is mere proof of oral Hiba and duly made by wife of Hayat Sab. So the arguments of learned counsel for the plaintiff does not sustain that "Ex.D.3" is not duly registered and stamped and it has no evidentiary value etc".
21. with reference to Ex.D.2 the affidavit which is revealed the declaration of death of Hayat Sab made by his wife Shahazadi Bi on 20.9.1988 and Ex.D.4 document of disclaimer dated 20.9.1988, discloses the release of any of the right in the suit schedule property to Defendant No1 by Shahazadi Bi, referring the oral Hiba made by her, stating it as on behalf of her husband. She was illiterate as it is reveled that she put her thumb impression on these documents. Ex.D.2 and D.4 are subsequent to Ex.D.3, though they are of the same day. Hence, in view of oral Hiba made by her in favour of defendant No.1 disclosing under Ex.D.3 (which is first document made on 20.9.1988). Ex.D.2 & D.4 being subsequent can be considered the intention of his wife. But they cannot be the title deeds conferring title upon the defendant No.1 by its maker i.e. wife of Hayat Sab. So these 25 O.S.No.7744/2004 Ex.D.2 & Ex.D.4 needs no registration and stamping under law. So these documents can be relied upon legally construing as proof of intention of Sahazadi Bi, that any of her legal right in the suit schedule property it should go to defendant No.1 under her oral gift only. So the argument advanced by the learned counsel for the plaintiff that, "these Ex.D.2 to D.4 being not registered and not duly stamped, are not having evidentiary value and they shall be discarded etc.,"
does not sustainable. Thus, defendant No1. has proved his right to the extent of 1/8th share only under "oral Hiba" of late Shahazadi Bi, with joint ownership and joint possession over the suit schedule property. For joint enjoyment of suit schedule property defendant No.1 has deposed his sole possession of suit schedule property. But plaintiff has proved the joint possession over the same. It is settled law that one co-owner cannot claim exclusive possession detrimental or adverse to the rights of other co-owners i.e. defendant No.1 to
5. However, defendant No.1 has proved his possession over the suit schedule property by producing the said driving licence, property extract, R.C.Book, property tax receipt, Aadhar card, election I.D. Card, gas bills, electric bills, etc. They are proving possession of defendant No.1 also. 26 O.S.No.7744/2004 Thus these are materials on record proving the legitimate rights of the parties. The circumstances as discussed above are indicating how the parties to the suit have slept over their right to get their names registered as legal heirs and as respective owners of suit schedule property. However the civil court has to decide the legal rights of the parties to this litigation. Accordingly it is adjudicated with due consideration of legal aspects governing 'Hiba' and inheritance to declare their rights title and interest in the suit schedule property. Thus, though the contents of Ex.D.3 and the version of D.W.1 coupled with the revenue records, Ex.D.2 & D.4, does not prove the declaration of gift, handing over possession of subjected property and acceptance, to form valid gift by late Hayat Sab in favour of defendant No.1. But it is construed as valid oral gift of his wife Shehazadi Bi fulfilling three requirements of 'Hiba". It can be enforce as valid hiba of late Shazadi Bi, to the extent of her legitimate share.
22. Because of contents of said document, it is therefore considered to be gifting of property by the deceased Shazadi Bi W/o Syed Hayat Saheb and not by the very Syed Hayat SAb. Even it is revealed from the evidence placed by the 27 O.S.No.7744/2004 plaintiff that it is not seriously disputed regarding the ingredients carved out thereunder (Ex.D.3), by Shazadi Bi. But all the while the dispute is that it was not the intention of the original owner Syed Hayat Sabhed to execute the gift in favour of defendant No.1. Apart from this, mere intention, without fulfillment of the said ingredients of Hiba, defendant No.1 cannot claim it as oral Hiba of late Hayat Sab. Further though it was not materialized, through Shazadi Bi as she cannot confirm it as of` right. She has no such pre-existing right to do so. Apart from this, it is hereby held that she can create valid hiba in favour of defendant No.1 to the extent of her fixed 1/8th share as per Mohammedan Law. As because there is no dispute that the plaintiff and defendants are governed by Mohammedan Law. Hence, the said Hiba is duly construed under law, that this oral gift was made by the wife of Syed Hayat Sab to the extent of her 1/8th share and not more than that. Therefore, the remaining share i.e. 7/8th share in the suit schedule property shall go to legal heirs of deceased Hayat Sab. The plaintiff and defendant Nos.2 to 5 being successor of his sister Hazoram Bi shall get share in the suit schedule property, as residuary.
28 O.S.No.7744/2004
(a) The learned counsel for the plaintiff has relied upon the decision reported in 2015 (1) KCCR 966 Mohammed Ashraf Vs Smt.Tabbasum, wherein it is held that, "Mohammedan Law - Partition - Mohammedan woman dying, leaving behind her son and daughter surviving heir.
Held, according to Mohammedan Law, son gets 2/3rd and daughter gets 1/3rd share.
Thus, being legal heirs of late Hayat Sab (sisters children) willget i..e son will get double the share of daughters.
(b) He further relied upon the decision reported in 2011 (1) AIR Kar R 645 Smt.Zulekabi & Ors., Vs Mohammed Mustafa & Ors., wherein it is explained elaborating the concept of inheritance "under Hanafi law of inheritance, ie. Division of seven classes of heirs and three principal and four subsidiary classes".
A. The three Principal Calsses:
I. Koranic Heirs - dhawu'l-furud (called sharers); II. Agnatic Heirs - 'asabat (called Reliquaries) III. Uterine Heris _dhawu'l-asham (called Distant Kindred) (B) The four subsidiary classes;
IV The Successor of Contract;
V The Acknowledgment VI The Sole Legatee;
VII The State, by Escheat.
29 O.S.No.7744/2004
Accordingly to Hanfi Law the property of the deceased goes, in the first instance to the Koranic Heirs, Class I. If the estate is not exhausted by them, or failing them, it goes to the Aganatic Heirs, Class II and finally in the absence of heirs of Class I and Class II. And finally in the absence of heirs of Class I and Class II the property is distributed among the Uterine Heirs, Class III.
These three principal classes of heirs together comprise all the blood relations of the deceased, whether they are agantes or cognates, and one relation by marriage, namely the husband or the wife. The subsidiary heris succeed only by way of exception". Hence the sister of Hayat Sab (as Hayat Sab and his wife did not have issues and died intestate), as his legal heir had inherited it absolutely. After her death her children i.e. defendant Nos.2 to 5 and son by name Abdul Hafeez have inherited it and plaintiff being son of Abdul Hafeez with his two sisters have inherited the share of their father.
23. The learned counsel for the plaintiff has specifically argued which has legal force that defendant No.1 if he succeeds on the basis of Hiba, he is entitled to only 1/8th share in the schedule property i.e. fixed share of wife of Hayat Sab i.e. Shahazadi Bi and he cannot claim the title over the entire property in dispute. As per above discussion, holding that defendant No.1 is able to prove the legitimate right over the suit schedule property on the basis of the oral Hiba considered to be made by the wife of Syed Hayat Sab and her 30 O.S.No.7744/2004 intention to give effect to the oral gift in favour of defendant No.1. it cannot be curtailed. Accordingly gift is considered as valid, and allocation of her 1/8th share in the suit schedule property in favour of defendant No.1. It shall be confirmed as her right to gift it to the extent of her better right and interest therein, which has been worked out as 1/8th fix share under law. The share of the plaintiff's father and the sisters of father of plaintiff i.e. defendant Nos.2 to 5 being residuary are entitled to the share as narrated above out of 7/8th share 1/6th share to each sisters i.e. defendant Nos.2 to 5 and 2/6th share will go to the plaintiff and his family i.e. sisters who are having legitimate share if they entitled to, under rule of Mohammedan law. Plaintiff is representing the branch of his father. Such allotment is out of the remaining property after allotting the 1/8th share to defendant No.1 and it is 7/8th share. Hence, if each sisters are allotted out of 7/8th share they will get 7/48th share each in the suit schedule property. Hence, the plaintiff will 7/24th share. Thus the plaintiff and defendant Nos.1 to 5 are entitled for the legitimate share as held above in the suit schedule property. Hence, issue No.1 is answered partly in the affirmative. He will get 7/24th share in the suit schedule property. Issue No.2 is also answered in 31 O.S.No.7744/2004 the affirmative. The defendant No.1 has failed to prove his title over the entire suit schedule property perfecting through Hiba and his possession and enjoyment over the schedule property as absolute owner. But, his title is restricted to 1/8th share therein. Hence, issue No.3 is answered partly in the affirmative. But his lawful possession and enjoyment is considered with the joint title and ownership over the suit schedule property to the extent of 1/8th share.
24. Therefore, in view of the above discussion and conclusion arrived at, the plaintiff has proved his legitimate share to the extent of 7/24th share in the suit schedule property. Accordingly, he is entitled for a decree for partition and separate possession to the extent of his 7/24th share in the suit schedule property. But he is not entitled for the relief of injunction and direction against the statutory authorities i.e. defendant Nos.6 and 7, as the relief sought for is not to transfer khata in the Mutation Register of Corporation of city of Bengaluru in favour of defendant No.1. However plaintiff and defendants 1 to 5 can get their names mutated to the suit schedule property in pursuance of this Judgment and decree. Hence, the plaintiff is not entitled for the relief of 32 O.S.No.7744/2004 injunction and direction against defendant Nos.6 and 7. The plaintiff can proceed before competent authority on the basis of a decree after declaring the legitimate share in the suit schedule property. But the statutory authority which has got the duty casted upon them, to be exercised i.e. discretionary power, this court cannot interfere with such discretionary power vested in them with regard to transfer of khata in the Mutation Register. However defendant Nos.6 and 7 have to act upon in accordance with the decree passed in this case in which the rights of the parties in this suit are declared. Hence, issue No.4 is answered in the negative.
25. In view of the above discussion, the plaintiff is entitled on his behalf and on behalf of legal heir of his father for 7/24th share under decree for partition and separate possession to be effected by the metes and bounds in this suit for partition on being passed the preliminary decree in that regard and further in the FDP proceedings with due process of law. Accordingly, I proceed to pass the following:-
ORDER Suit of the plaintiffs is hereby partly decreed.
The plaintiff is allotted 7/24th share in the suit schedule property to be 33 O.S.No.7744/2004 separated by metes and bounds with possession therein which shall be the property allotted to the plaintiff and the branch of plaintiff's father.
Defendant No.1 is allotted 1/8th share and defendant Nos.2 to 5 are allotted 7/48th share each respectively in the suit schedule property.
The suit against defendant Nos.6 and 7 is hereby dismissed.
Parties are directed to bear their
own costs.
Draw the preliminary decree
accordingly.
(Dictated to the Judgment Writer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 16th day of December 2016).
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff:
P.W1 Syed Abdul Rahim List of the documents marked for the plaintiff:
Ex.P.1 Assessment extract
Ex.P.2 Khata certificate
Ex.P.3 Tax paid receipt
Ex.P.4 Corporation Notice
Ex.P.5 Death certfificate
Ex.P.6 Letter to B.B.M.P.
Ex.P.7 Endorsement
34 O.S.No.7744/2004
Ex.P.8 Copy of legal notice
Ex.P.9 Postal receipt
Ex.P.10 Postal acknowledgment
Ex.P.11 Encumbrance certificate
Ex.P.12 & P.13 Acknowledgements
Ex.P.14 Ration card
Ex.P.15 Transfer certificate
List of the documents marked for the defendants :
D.W1 Syed Naseeurddin List of the documents marked for the defendants:
Ex.D.1 D.L.
D.1(a) Notarised copy of D.L.
Ex.D.2 Affidavit of D.W.1
Ex.D.3 Hiba
Ex.D.4 Discliamer
Ex.D.5 Gift Deed
Ex.D.6 BWSSB notice
Ex.D.7 Intimation of property tax
Ex.D.8 Display card
Ex.D.9 RC book
Ex.D.10 to D.12 Aadhar cards
Ex.D.13 to D.15 Election I.D. cards
Ex.D.16 Transfer certificate
Ex.D.17 to D.20 Gas bills
Ex.D.21 Electric bill
Ex.D.22 BWWS Water bill
Ex.D.23 Driving licence
Ex.D.24 & D.25 Election voter I.D.
Ex.D.26 Passport
Ex.D.27 Declaration of tax paid letter
Ex.D.28 Ration card
Ex.D.29 to D.35 Gas bills
Ex.D.36 to D.43 Electricity bills with receipts
LII Addl.City Civil & Sessions Judge,
Bengaluru.
35 O.S.No.7744/2004