Allahabad High Court
Nafees Ahmad vs Ghulam Mohd. on 16 April, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Judgment Reserved on 19.02.2020
Judgment Delivered on 16.04.2020
In Chamber
Case :- SECOND APPEAL No. - 77 of 2016
Appellant :- Nafees Ahmad
Respondent :- Ghulam Mohd.
Counsel for Appellant :- Zafar Yab Jilani,Mohd.Afzal,Najam Zafar
Counsel for Respondent :- Mohd.Aslam Khan
*****
Hon'ble Jaspreet Singh,J.
The instant second appeal under Section 100 CPC arises out of the judgment and decree dated 12.11.2008 passed in Original Suit No.428/1993 whereby the suit of the plaintiff-respondent for declaration and mandatory injunction was decreed and the defendant's first appeal bearing No.145/2008 was dismissed by means of the judgment and decree dated 27.11.2015 and being aggrieved against the same, the defendant-appellant has preferred the instant appeal.
In order to appreciate the controversy, in the above second appeal, brief facts, giving rise to the appeal, are being noticed hereinafter.
Smt. Shah Jahan Begum (original-plaintiff) instituted a suit against Shri Nafees Ahmad (original-defendant) for declaration and mandatory injunction in the Court of Civil Judge (Senior Division) Faizabad which was registered as Original Suit No.428/1993.
The suit was instituted on the ground that the property bearing House No.9/12/247, situate in Mohalla Fatehgarh, Pargana Haveli Awadh, Tehsil and District Faizabad, situated on Nazul Plot Nos.1598 and 1599, Chak No.12, Faizabad, was the property of one Shri Nabi Ahmad (husband of Smt. Shah Jahan Begum). It was pleaded that Shri Nabi Ahmad had orally gifted the aforesaid house to his wife Smt. Shah Jahan Begum who became its owner in possession. However, after the death of Shri Nabi Ahmad, his mother and sister had instituted a suit for partition, which was decided in terms of a compromise decree dated 28.09.1986 wherein Smt. Majira (mother of Nabi Ahmad) and Smt. Mahsar Jahan (sister of Nabi Ahmad) acknowledged the exclusive rights and possession of Smt. Shah Jahan Begum in respect of the aforesaid property while a sum of Rs.68,000/- was to be paid by Smt. Shah Jahan Begum, out of which a sum of Rs.60,000/- was paid at the time of the compromise whereas a sum of Rs.8,000/- was to be paid in monthly installments of Rs.1,000/- each commencing from November, 1986. Since, Smt. Majira expired in May, 1987, accordingly, the last installment of Rs.1,000/- was paid to Smt. Mahsar Jahan in June, 1987 and the property came in the exclusive ownership and possession of the plaintiff Smt. Shah Jahan Begum.
It was further pleaded that after the death of her husband, she faced difficulties in running a flour mill and a general store which was situate on the ground floor of the aforesaid property and in order to tide over the crisis, she took the assistance of the defendant i.e. Nafees Ahmad, to look after the business for the plaintiff. It was also pleaded that the defendant Nafees Ahmad was a known acquaintance of her late husband and initially he carried out his duties with full earnestness. Since, the plaintiff was the sole legal heir of her father, who had some properties, situate in District Lucknow, hence, the plaintiff had to visit Lucknow to look after the properties that she inherited from her father, apart from the properties as well as the business, she inherited through oral gift from her late husband. It was also pleaded that the defendant expressed his difficulties regarding accommodation and the plaintiff taking a lenient view allowed the defendant Nafees Ahmad to stay in the house in question along with his family. However, the mess of the defendant was separate than of the plaintiff. It was stated that the plaintiff heard some rumours that the defendant had started claiming ownership rights in respect of the property in question on the basis of some gift. Thereafter, she made inquiries and it revealed that the defendant had got his name mutated in the Nazul record as well as in the Nagar Palika in respect of the house in question.
The plaintiff stated that she was an illiterate, pardanashi widow, who could only sign her name in Urdu and as such she had not made any oral gift in favour of the defendant nor she had even given her consent for mutating the name of the defendant in respect of the property in question and it is in this backdrop that she had made an application for cancelling the mutation order in the Nazul Department. However, the same was rejected and thereafter she preferred the instant suit seeking a decree for declaration that the alleged oral gift claimed by the defendant be declared as null and void as well as the decree for mandatory injunction seeking the possession of the premises in question from the defendant as he was merely a licencee.
The defendant Nafees Ahmad filed his written statement and denied the allegations made by the plaintiff. He set up his case that after the death of Shri Nabi Ahmad (husband of the plaintiff), the mother-in-law and the sister-in-law of the plaintiff had instituted a suit for partition. The parties had entered in a compromise in terms whereof the plaintiff was required to pay a sum of Rs.68,000/- to her mother-in-law and her sister-in-law. The defendant, who was known to the husband of the plaintiff and was helping the plaintiff with her business as well as in the day to day pairvi of the aforesaid partition suit garnered resources to help the plaintiff tide over her crisis and gave her a sum of Rs.60,000/- which in turn was paid to Smt. Majira and Smt. Mahsar Jahan.
It was also stated that the plaintiff was very happy and satisfied with his services and in acknowledgment, thereof she executed a registered Will in favour of the defendant on 05.01.1987, which was duly registered in the office of the Sub-Registrar, Faizabad. Later, in the month of January, 1987, the plaintiff made an oral gift (Hiba) of the aforesaid house situate in Mohalla Fatehgarh, Pargana Haveli Awadh, Tehsil and District Faizabad along with the business of the flour mill and general store in favour of the defendant. The aforesaid gift was duly accepted by the defendant and it was made in presence of Tauqeer Ahmad @ Munna and Ramdin Mistri, who both were known to the plaintiff, since, the time of her husband and as such from that time onwards the house in question along with the business came in the exclusive ownership and possession of the defendant.
It was also pleaded that actually after having made the oral gift in favour of the defendant, the plaintiff was won over by her brother-in-law (brother of her husband), who instigated the plaintiff against the defendant and on account of the aforesaid, first an attempt was made to seek cancellation of the mutation order before the Nazul Department which was rejected and thereafter the instant suit was filed which was nothing but an abuse of the process of law and for the aforesaid reason, it was prayed that the oral gift in his favour was irrevocable and consequently the suit was liable to be dismissed.
On the strength of the pleadings, the trial court framed 12 issues. However, the issues Nos.1, 2, 3 and 4 are core issues relevant for the controversy in question. The aforesaid four issues related to whether the plaintiff is the owner of the property in question; whether the defendant has illegally occupied the property and if so its effect; Whether the plaintiff is entitled to the decree of mandatory injunction; whether the defendant is the owner of the property in question and if so its effect.
In order to prove their respective case, the parties led both oral and documentary evidence, and the plaintiff examined herself and one Rias Ahmad as her witness whereas the defendant examined himself and Mohd. Kaleem as his witness.
The trial court after appraising, both oral as well as documentary evidence did not believe the defence set up by the defendant and found that the case as set up was not corroborated by the documentary as well as oral evidence led by the defendant as well as the conduct of the defendant belied his case. The trial court arrived at a finding that the defendant could not establish that he arranged and gave the payment to the plaintiff, a sum of Rs.68,000/- which was paid by the plaintiff to Smt. Majira and Smt. Mahsar Jahan. It also concluded that the alleged gift which is said to have been made in the month of January, 1987 whereas in terms of the compromise arrived at between the Smt. Shah Jahan Begum, Smt. Majira and Smt. Mahsar Jahan, the payment in terms of the compromise ended in the month of June, 1987, hence, it did not find favour with the fact that the oral gift was made by Smt. Shah Jahan Begum in January, 1987 when she did not herself had full rights in respect of the property. The trial court also found that the financial status of the plaintiff and the defendant was hugely at variance which also did not support the case as set up by the defendant. The trial court also noticed that the defendant did not indicate any date on which the oral gift was made and only an assertion was made by the witness of the defendant that it was made in the month of January, 1987 but found that once the registered will was executed in January, 1987, the making of the oral gift in the month of January, 1987 was suspicious. Moreover, it found that during evidence the defendant-witness, Mohd. Kaleem, stated that the gift was made on the last Friday in the month of January, 1987 whereas the name of the said witness was never mentioned in the pleadings coupled with the fact that the signatures of the plaintiff and her alleged statement made before the Nazul Department also raised a suspicion and consequently for all the reasons the factum of oral gift made by the plaintiff in favour of the defendant did not find favour with the trial court.
Considering the other issues, the title of the plaintiff was upheld coupled with the fact that from the pleadings it was established that the plaintiff had permitted the defendant to occupy the premises hence, the suit came to be decreed by means of the judgment and decree dated 02.11.2008 passed by the Judge, Small Causes Act Acting as Civil Judge, Faizabad.
The defendant Nafees Ahmad preferred regular civil appeal which was registered as Civil Appeal No.145/2008. During pendency of the first appeal, the defendant sought an amendment in its written statement which came to be allowed by the lower appellate Court, thereafter, the plaintiff contested the matter up to the High Court, however, the same did not find favour and the defendant was permitted to incorporate the amended paras in its written statement. The lower appellate Court after hearing the parties found that the findings recorded by the trial court were just and appropriate and refused to intervene and rejected the first appeal by means of the judgment and decree dated 27.11.2015.
The defendant thereafter preferred the instant second appeal which was admitted on the following substantial questions of law :-
"(i) Whether the two courts below have committed an error in misreading the evidence which was led by the defendant-appellant in respect of the oral gift said to have been made in the month of January 1987 which has given rise to perverse finding?
(ii) Whether the ingredients of a valid oral gift were duly made out by the defendant-appellant and if so it effects?"
The Court has heard Shri Zafaryab Jilani, learned Senior Advocate along with Ms. Nazam Zafar, learned counsel for the appellant and Shri Mohd. Arif Khan, learned Senior Advocate along with Shri Dipankar Kumar and Shri Mohd. Aslam Khan, learned counsel for the respondent.
Shri Jilani while assailing the two judgments has raised the following submissions in context with the two substantial questions as formulated above:-
(i) The trial court had completely misread the evidence and made a selective reference to the evidence which has given rise to perverse findings regarding the establishment of oral gift. It has been submitted that the defendant had clearly pleaded that the plaintiff had full faith and trust on the defendant and plaintiff on being happy and satisfied with his services, initially, executed a registered Will in favour of the defendant on 05.01.1987 and later on her own volition, she made an oral gift in favour of the defendant in presence of the witnesses. The ingredients for a valid oral gift as contemplated under the Mohamdan Law were clearly made out inasmuch as the same was made with free will by the plaintiff. The aforesaid gift was duly accepted by the defendant. The witnesses before whom the gift was made were examined, who proved the same and the possession was also transferred which was accepted by the defendant and from the date of the said Gift the defendant exercised his exclusive ownership rights and control to the exclusion of the plaintiff.
Shri Jilani has further strenuously urged that the trial court committed an error in failing to notice the discrepancies in the statement of the plaintiff qua her pleadings and moreover since the plaintiff failed to establish her own case, it was not open for the trial court to penalize the defendant for any weakness in his defence though he submitted that there was none.
Shri Jilani has also urged that the trial court has not considered the aspect regarding the transfer of possession of the property in question in correct perspective, which has given rise to an incongruous result whereas large number of documents were filed by the defendant to indicate that the defendant was in actual and physical control of the property and the business which was orally gifted in his favour.
Learned Senior Advocate for the appellant has further submitted that the first appellate Court has committed a grave error in not considering the evidence filed before the trial court to arrive at an independent finding. Even though the first appellate Court has affirmed the decree of the trial court yet it was incumbent upon the lower appellate Court to have considered the submissions and the evidence which was available before the trial court and even while affirming the judgment it ought to have considered the evidence which was available as well as advert to the reasons given by the trial court, however, the same has not been done as is evident from the judgment passed by the lower appellate Court, hence both the judgment are bad and liable to be set aside.
Per contra, Shri Mohd. Arif Khan, learned Senior Advocate for respondent has vehemently urged that the factum of the oral gift as alleged by the defendant was to be proved by the defendant on the basis of clear and cogent evidence. It has been submitted that there are numerous discrepancies in the statement of the defendant and his witnesses which could not establish the factum of the oral gift. It has been urged that the trial court has rightly arrived at a finding that the factum of oral gift was not proved inasmuch as there were many lacunaes such as incorrect signatures of the plaintiff in the proceedings alleged to have been conducted before the Nazul Department as well as Nagar Palika, Faizabad. There was no material on record to indicate that at any point of time, the plaintiff had relinquished her control over the property in question rather the evidence suggested that she remained in control right upto filing of the suit as would be clear from the statement of the defendant himself. Thus, the very essential contour of the oral gift regarding the transfer of possession was not made out. Apart from the other circumstances which indicated that the defendant was a cunning person and he had manipulated documents and events to set up a theory of the oral gift in order to usurp the property and deprive the plaintiff of the same. It has further been urged that the above second appeal is concluded by concurrent findings of fact and the two courts have correctly assessed the evidence and the same does not require any interference inasmuch as there is no perversity nor the same could be pointed out by the learned Senior Advocate for the defendant-appellant. In the aforesaid circumstances, it has been prayed that the above second appeal be dismissed.
Sri Jillani, Learned Senior Advocate for the appellant has relied upon the decision of the Hon'ble Apex Court in the case of Rasheeda Khatoon (dead) through LRs vs. Ashiq Ali, 2014 (32) LCD 2188; D.N. Joshi (Dead) through Legal Representatives & Ors. vs. D.C. Harris & Anr., (2017) 12 SCC 624; Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board & Ors., (2010) 13 SCC 216; Yadarao Dajiba Shrawane (dead) by LR's vs. Nanilal Harakchand Shah (dead) & Ors., 2002 (2) JCLR 805 (SC).
Shri Mohd. Arif Khan, learned Senior Advocate for the respondent has also relied upon the decision Smt. Dropadi Devi & Ors. vs. Shiv Chandra Dixit, passed in Second Appeal No.83 of 2014, decided on 23.01.2020 and Tahseen Khan vs. Board of Revenue, U.P., in Writ B No.37674 of 2006, decided on 26.03.2010 regarding the submissions of the ingredients of a valid oral gift in Mohammedan Law. Sri Jillani has referred to certain cases on the point that the jurisdiction of the High Court under Section 100 CPC is not restricted in cases of an appeal arising out of concurrent judgment if there is a perversity in the judgment of the court below, hence it is submitted that notwithstanding the concurrent judgments recording findings of fact yet this Court has ample power to set aside the same and the second appeal deserves to be allowed.
The Court has considered the rival submissions and also perused the the record meticulously.
At the very outset, the decision relied upon by the learned Senior Advocate for the appellant relating to the ingredients of a valid oral gift in the case of Rasheeda Khatoon (supra) is being noticed wherein the Hon'ble Apex Court while considering the earlier decisions and the relevant provisions regarding an oral gift in context with Mohammedan Law has noticed as under:-
"8. ... In this context Sections 123 and 129 of the Transfer of Property Act have to be taken note of. Section 123 of the Act stipulates that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Section 129 provides for savings of donations mortis causa and the gifts made under the Muhammadan law. It is clear from the said provision that the Chapter relating to gifts including registration would not affect any rule of Muhammadan law.
9. In Karam Ilahi [Karam Ilahi v. Sharfuddin, AIR 1916 All 351] it has been held as follows:
"It is admitted that a Muhammadan may make an oral gift provided that possession follows. It seems to us quite clear that the provisions of Section 123 are inapplicable to gifts made by Muhammadans and valid according to their law. It is quite clear that the legislature had in its mind the provisions of Section 123 when enacting Section 129. Section 123 is specifically referred to in Section 129. The deed of gift is admissible to prove that a gift was made."
10. In Nasib Ali [Nasib Ali v. Wajid Ali, AIR 1927 Cal 197] Suhrawardy, J. referred toKamar-un-Nissa Bibi v. Hussaini Bibi [ILR (1881) 3 All 266] and Karam Ilahi [Karam Ilahiv. Sharfuddin, AIR 1916 All 351] and came to hold that the essentials of a gift under the Muhammadan law are a declaration of "hiba" by the donor, an acceptance, express or implied, of the gift by the donee, and delivery of possession of the property, the subject-matter of the gift, according to its nature. A simple gift can only be made by going through the above formalities and no written instrument is required. In fact no writing is necessary to validate a gift and if a gift is made by a written instrument without delivery of possession, it is invalid, in law. Thereafter, the learned Judge stated thus:
"The position under the Mohammadan law is this: that a gift in order to be valid must be made in accordance with the forms stated above; and even if it is evidenced by writing, unless all the essential forms are observed, it is not valid according to law. That being so, a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence. It may so happen after a lapse of time that the evidence of the observance of the above forms might not be forthcoming, so it is sometimes thought prudent to reduce the fact that a gift has been made into writing. Such writing is not a document of title but is a piece of evidence."
11. In Mahboob Sahab v. Syed Ismail [(1995) 3 SCC 693] a two-Judge Bench referred to Section 147 of the Principles of Mahomedan Law by Mulla wherein the essentials of valid gift under the Muhammadan law have been elucidated and proceeded to explicate the principle. We think the reproduction of the relevant passage would be seemly: (SCC pp. 696-97, para 5) "5. Under Section 147 of the Principles of Mahomedan Law by Mulla, 19th Edn., edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only the gift is complete. Section 152 envisages that where the donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by 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."
(emphasis supplied)
12. Recently in Hafeeza Bibi v. Sk. Farid [Hafeeza Bibi v. Sk. Farid, (2011) 5 SCC 654 : (2011) 3 SCC (Civ) 103] a two-Judge Bench referred to the authority in Mohd. Abdul Ghaniv. Fakhr Jahan Begam [(1921-22) 49 IA 195 : AIR 1922 PC 281] wherein the Privy Council had made a reference to Muhammedan Law by Syed Ameer Ali and approved the statement as regards the essential three conditions for a valid gift. Thereafter, the learned Judges referred to Nasib Ali [Nasib Ali v. Wajid Ali, AIR 1927 Cal 197] , Assan Ravther v.Manahapara Charayil [AIR 1972 Ker 27] and Jabeda Khatun v. Moksed Ali [AIR 1973 Gau 105] and stated the position of law thus: (Hafeeza Bibi case [Hafeeza Bibi v. Sk. Farid, (2011) 5 SCC 654 : (2011) 3 SCC (Civ) 103] , SCC p. 665, para 24) "24. The position is well settled, which has been stated and restated time and again, that the three essentials of a gift under Mohammadan law are: (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee; and (3) delivery of possession. Though, the rules of Mohammadan law do not make writing essential to the validity of a gift; an oral gift fulfilling all the three essentials makes the gift complete and irrevocable. However, the donor may record the transaction of gift in writing."
13. After so stating the Court referred to Asaf A.A. Fyzee in Outlines of Muhammadan Law [ Tahir Mahmood (Ed. & revised) (5th Edn., Oxford University Press) 182.] and Mulla,Principles of Mahomedan Law [ (19th Edn.), p. 120.] and eventually ruled thus: (Hafeeza Bibi case [Hafeeza Bibi v. Sk. Farid, (2011) 5 SCC 654 : (2011) 3 SCC (Civ) 103] , SCC p. 666, para 27) "27. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by a Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan law."
(emphasis supplied)
14. For a clear understanding of the conception of the valid gift under the Muhammadan law we think it apposite to reproduce the passage from Mulla, Principles of Mahomedan Law [ (19th Edn.), p. 120.] that has been quoted and approved in Hafeeza Bibi [Hafeeza Bibiv. Sk. Farid, (2011) 5 SCC 654 : (2011) 3 SCC (Civ) 103] : (SCC p. 666, para 26) "26. ... ''Under the Mahomedan law the three essential requisites to make a gift valid are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee expressly or impliedly, and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 of the Transfer of Property Act excludes the rule of Mahomedan Law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case.'
16. From the aforesaid discussion of the propositions of law it is discernible that a gift under the Muhammadan law can be an oral gift and need not be registered; that a written instrument does not, under all circumstances require registration; that to be a valid gift under the Muhammadan law three essential features, namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act."
Thus, insofar as the ingredients for a valid oral gift is concerned, the three important ingredients as discerned from the aforesaid propositions are (i) the donor must make a declaration of the gift; (ii) the oral gift should be accepted by the donee which may be express or implied; and (iii) the possession of the property, subject matter of the gift, should be transferred from donor to the donee and the delivery of possession may be either actual or constructive.
Once, the aforesaid ingredients have been culled out, now it is the stage to evaluate and scrutinize from the material available on record to ascertain whether the aforesaid three ingredients have been met in the instant case or not and whether there has been a misreading of the evidence by the two courts while returning their findings.
It has been the clear case of the appellant, that Smt. Shahjahan Begam made the gift in presence of witnesses and also handed over the possession to the appellant. In order to establish the aforesaid facts, the defendant has led the evidence and has examined D.W. 2 Mohd. Kaleem who is said to be the witness in whose presence the said gift was made.
The learned counsel for the respondent-plaintiff has vehemently urged that the plaintiff while instituting the suit had clearly made a denial of making any gift. It was also denied that the defendant was given the possession in pursuance of the aforesaid gift rather the case set up is that the plaintiff wanted a helping hand for her business and as such the defendant Nafees was helping the plaintiff with the business and after sometime he had sought the permission of the plaintiff to reside in the disputed house since defendant Nafees Ahmad was having certain difficulties and the plaintiff taking a humanitarian view allowed the defendant to reside in the disputed premises with his family, hence, the possession of the defendant over the disputed property was that of a licensee and not in pursuance of the gift as its owner as alleged by the defendant.
The defendant on the other hand has stated that the plaintiff had immense faith in the defendant and she always wanted to give the property to the defendant and in furtherance thereof first she had executed a registered will dated 05.01.1987 in favour of the defendant and later she realised that her relatives would not let the defendant be in peace hence in order to secure the defendant, she made a gift in his favour.
An objection has been raised by the learned counsel for the plaintiff-respondent that in the entire pleadings the defendant could not give the date on which the said gift was made and from various other discrepancies in the statement of the defendant, it was clear that no gift had been made apart from the fact that the mutation effected in the Nazul as well as Nagar Palika records was also fraudelent since the signatures of Smt. Shahjahan Begam were specifically denied by her and even the manner in which she signed her name, admittedly, was not present in the record of the Nazul as well as the Nagar Palika. Despite the fact that the matter was hotly contested and the plaintiff having denied her signatures even then no effort was made by the defendant to get the signatures of Smt. Shahjahan Begam available on the record of the Nazul, the alleged notice sent from the Nagar Palika compared with the admitted signatures on the two registered wills executed by Smt. Shahjahan Begam one in favour of the defendant and the other in favour of Sri Gulam Ahmad.
It has also been submitted by the learned counsel for the plaintiff-respondent that from the statement of the defendant Nafees Ahmad, itself, it was clear that exclusive possession after renunciation of righs by the plaintiff was never made in favour of the defendant. He had rather taken the benefit of the fact that the plaintiff was an illeterate pardanasheen widow and had got the documents manipulated to his benefit only to suit his designs of usurping the property. It has further been submitted that the burden was on the defendant who had clearly failed to prove the factum of the gift and the two courts have considered the entire evidence and have recorded findings of fact which are not assailable in the instant second appeal.
While, the learned counsel for the appellant has taken the Court through the evidences and has specifically pointed out that the plaintiff herself admitted that she had faith in the defendant and that the defendant worked with honesty and diligence and she was pleased with his services. It is also admitted by the plaintiff that she had permitted the defendant to stay in the house in question. It is in the aforesaid backdrop that the plaintiff herself executed a registered will in favour of the defendant. Later in order to provide complete security to the defendant, she made a gift in favour of the defendant in presence of the witnesses. The plaintiff herself had no objection and, therefore, she participated in the proceedings before the Nazul where her statement was recorded and on that basis the name of the defendant was mutated. Similarly, even before Nagar Palika she gave her no objection and the name of the defendant was also mutated in the Municipal Records.
It has also been submitted that the defendant had been exercising his control over the house in question in his own rights, inasmuch as, part of the disputed house was let out to one Sri Aklakh. It is the defendant who instituted the suit for his eviction and took the possession. Sri Aklakh also instituted a suit wherein he had impleaded the defendant Nafees as a party and all these documents were brought to the notice of the two courts which have not been considered. Apart from the fact that large number of documents indicating the control of the defendant over the premises were also filed which have also not been taken note of, hence, it is a clear case of misreading of evidence. Thus, even though the two courts have recorded a concurrent findings but the same are not binding on this Court under Section 100 C.P.C. as they suffer from the vice of being perverse, inasmuch as, the findings are not based on the proper reading of evidence and the First Appellate Court also completely failed to take note of the evidence which was filed along with document list bearing Paper No. GA-27. In view of the aforesaid the decision of the Apex Court in the case of D.N. Joshi (Supra), Municipal Committee, Hoshiarpur (Supra), Yadarao Dajiba (Supra), mere concurrent findings will not be an impediment to set aside the two impugned judgments.
Certain undisputed facts which emerge from the records are that Smt. Shahjahan Begam was the owner in possession of the disputed property. The defendant has examined Mohd. Kaleem as a witness to indicate that the gift was made in his presence and this witness in his testimony on specifcally being asked when was the gift made, has stated that it was the last Friday in the month of January, 1987. Prima facie, the documents on record indicate that the name of the defendant stood mutated in the Nazul as well as in the Nagar Palika. The possession of the defendant in respect of the premises is also not disputed, however, what is disputed is whether the possession of the defendant was in pursuance of the oral gift or was he in permissive occupation. The possession of the appellant over the premises, is much prior to the date of the said gift i.e. January, 1987, However, there is a complete denial by the plaintiff that she ever went before the Nazul Authorities or before the Nagar Palika and gave her statement and no objection for getting the name of the defendant mutated. An application was also made by the plaintiff for seeking the recall of the mutation order, however, the same was rejected and thereafter she instituted the present suit.
In this backdrop, this Court has considered the statements of both the plaintiffs and the defendants and also considered the documentary evidence filed by both the parties.
Upon considering the respective evidence, the scenario that emerges is, that the plaintiff had got the disputed house on the basis of an oral gift made by her husband Nabi Ahmad who expired in November, 1980. After his death, there was a family dispute, wherein the mother-in-law and sister-in-law of the plaintiff had instituted a suit which ended in a compromise and in terms whereof the mother-in-law and the sister-in-law acknowledged the right, title and interest of the plaintiff Smt. Shahjahan Begam in respect of the property and the plaintiff agreed to pay a sum of Rs. 68,000/- to her mother-in-law and sister-in-law. A sum of Rs. 60,000/- is said to have been paid before the Court where the compromise took place and the remaining Rs. 8,000/- was to be paid in monthly installments of Rs. 1,000/- commencing from November, 1986. The mother-in-law Smt. Majira expired in the interim period and the last installment of Rs. 1,000/- was paid to the sister-in-law.
It has been the case of the defendant that he had arranged for the sum of Rs. 60,000/-to help Smt. Shahjahan Begam to tide over the said crisis to pay the mother-in-law and sister-in-law. However, from the records and from the evidence, it would transpire that the financial status of the plaintiff Smt. Shahjahan Begam and that of Nafees Ahmad is quite uneven. Since the life time of the husband of Smt. Shahjahan Begam, they had the house in question wherein in the ground floor, they had a flour mill and oil extraction plant and a shop selling general items. Smt. Shahjahan Begam was the only daughter of her father and after her father's death she also inherited the property from her father, at Lucknow. After loosing both her father and her husband, she was taking care of the properties at Faizabad, as well as the property inherited from her father at Lucknow. It is in these circumstances that she being alone and not able to handle, she sought the services of the defendant Nafees Ahmad who was a known acquaintance of her husband.
It is no doubt true that the plaintiff in her statement before the Court had stated that Nafees was working with due diligence and she was pleased with his services, however, later it revealed that he had exceeded his authority and thereafter manipulated the documents to usurp the property which resulted in the litigation. From the statement of Nafees, he had stated that he arranged to pay a sum of Rs. 60,000/ to help Smt. Shahjahan Begam to make the payment of the aforesaid sum to her mother-in-law and sister-in-law. However, there is nothing on record which could justify the financial status of the Nafees that he could help Smt. Shahjahan Begam with the aforesaid sum nor any worthwhile evidence was led to indicate the source of such moneyand how it was given by the defendant to the plaintiff.
Moreover, the defendant Nafees was having difficulties at his own level, he had agreed to work with the plainitff and was looking after her business. He used to look after the business and the proceeds derived therefrom were paid by him to Smt. Shahjahan Begam. As a humanintarian gesture, the plaintiff had agreed to permit the defendant to stay in the house in question with his family. Since the plaintiff Smt. Shahjahan Begam had to travel to Lucknow to look after her father's property, hence, in her absence, it was the defendant Nafees Ahmad who looked after the business as well as the disputed house in question. Thus, the nature and extent of the defendant's possession is also to be seen in the aforesaid backdrop.
In order to assess the finding regarding the execution of the gift while there is a denial from the side of the plaintiff whereas the defendant has examined Mohd. Kaleem as a witness in whose presence, the said gift is said to have been made, the statement and evidence in this regard is to be assessed.
It is relevant to note that throughout the proceedings, while the defendant knew that there is a complete denial of the factum of the gift yet in his pleadings, he could never give a date regarding the said gift. Moreover, in his written statement, as initially filed before the Trial Court, it was pleaded that the plaintiff in the month of January, 1987 had made the gift in presence of the witnesses namely Taukir Ahmad @ Munna, Ramdeen Mistri and 'others'. There has been no reference in the pleadings as to who these 'others' were and significantly the said named two witnesses namely Taukir Ahmad @ Munna & Ramdeen Mistri were never examined as a witness to prove the said gift.
Another relevant fact which is discerned from the material available on record is that according to the defendant Smt. Shahjahan Begam had appeared before the Nazul and got her statement recorded that she had executed a gift in favour of the defendant Nafees Ahmad. The Trial Court had summoned the file from the Nazul and considered the same as well. In her statement given before the Nazul, the plaintiff is said to have stated that she had made the gift in favour of Nafees Ahmad in presence of Taukir Ahmad @ Munna, Laik Ahmad and Ramdeen Mistri. This statement was recorded in the Nazul on 06.05.1987. The instant suit came to be filed in the year 1993 and the written statement was preferred by the defendant in the year 1994 and even then he had not mentioned the name of LaikAhmad as the witness. Admittedly, the two named witnesses which are common whose names have been specifically mentioned in the statement allegedly given before the Nazul as well as in the written statement of the defendant Nafees are namely Taukir Ahmad @ Munna & Ramdeen Mistri and both of them were never examined nor produced in evidence.
It is Mohd. Kaleem who is introduced as a witness of the gift. Significantly, the defendant in his written statement did not mention the name of Mohd. Kaleem as a witness of the Gift. The third name which crops up in the statement of Smt. Shahjahan Begam allegedly made before the Nazul is that of Laik Ahmad. There is no explanation regarding his non-presence or why he was not examined as a witness.
Mohd. Kaleem who examined himself as D.W. 2 in his examination-in-chief had stated that in the month of Janunary, 1987 in presence of himself (Mohd. Kaleem) and other witnesses, the oral gift was made in favour of Nafees Ahmad in accordance with the Mohammadan Law which was accepted by Nafees Ahmad. Even in his examination-in-chief, he did not make any mention regarding the name of 'other' witnesses. This assumses significance for the reason that in the pleadings, the two names of Mohd. Taukir @ Munna and Ramdeen Mistri were pleaded but there is no reference of their names in the examination-in-chief of D.W. 2. The defendant while giving his statement also did not make a statement to the effect that at the time when the gift was made, apart from Mohd. Taukir @ Munna and Ramdeen Mistri, Mohd. Kaleem and Laik Ahmad were also present. Thus, the presence of Laik Ahmad and Mohd. Kaleem at the time of making of the alleged gift is not clearly established. It will also be relevant to notice that the defendant had also filed an affidavit of one Sri Afzal Ahmad who is also said to be a witness of the said gift, however, the aforesaid person i.e. Afzal Ahmad did not appear for any cross examination, hence his affidavit was discarded and not taken note of by the trial court and rightly so.
Thus, from the assessment of the evidence, what emerges, is that the burden to prove the said gift was on the defendant. According to him, the witnesses were Mohd. Taukir and Ramdeen Mistri, however, both the aforesaid witnesses were never examined or produced as a witness. The defendant also relies upon the statement given by Smt. Shahjahan Begam before the Nazul. From the statement of Smt. Shahjahan Begam made before the Nazul, it would indicate that she had named one Laik Ahmad. Even this Laik Ahmad was not produced in evidence as a witness. There is no mention of Mohd. Kaleem and he is the only witness who has come forward to prove the Gift. As already discussed, his presence is doubtful, inasmuch as, the defendant himself neither in his pleadings nor in his statement had ever confirmed that Mohd. Kaleem was also present at the time of making of the gift.
While Mohd. Kaleem in his statement during his cross examination has clearly mentioned that at the time of making of the Gift it was the last Friday in the month of January, 1987, Ramdeen Mistri, Mohd. Tohkeer @ Munna, Nafees Ahmad, Shahjahan Bhabhi and Afzal were present. It is for the said reason that the Paper No. Ga-29 statement of Sri Afzal was though filed but since he did not come before the Court for his cross-examination, therefore, his evidence was left out. In view of the aforesaid, this Court finds that as far as the gift is concerned, the same was not appropriately proved and the Trial Court while considering the evidence in depth, has recorded a finding to the aforesaid effect which this Court is not inclined to disturb.
The other submission of the learned counsel for the appellant regarding the possession, if noticed, in view of the aforesaid backdrop would indicate that the documents are nothing but the mutation entries in the Nazul and Nagar Palika and in light of the fact that Smt. Shahjahan Begam had denied her signatures in the alleged proceedings before the Nazul as well as the discrepancies in the statement as noticed above does not lead to a clear inference regarding the gift. Moreover, the notice which is said to have been issued by the Nagar Palika to Smt. Shahjahan Begam and which is said to have been received by her shows the receiving has been made in name of Smt. Shahjahan Begam whereas from the record it would indicate that the name of the plaintiff was Shahjahan Begam but she always wrote and made her signatures as "Shahjahan" only. It is on account of the aforesaid that the plaintiff-respondent has urged that even this notice which is relied upon by the defendant is fraudelent.
The learned counsel for the respondent has also pointed out that the statement which was filed before the Court below wherein the name of Smt. Shahjahan Begam has been indicated, her name has been signed as Shahjahan Begam whereas as indicated above she only signed and wrote her name as Shahjahan. The respondent has referred to the affidavit said to have been filed by alleged Shahjahan Begam before the Nagar Palika, Faizabad wherein she is said to have given her NOC and acknowledged the fact that she had made a gift in favour of Nafees Ahmad and even in the aforesaid affidavit she had signed as Shahjahan Begam which is not likely, inasmuch as, she only signed as Shahjahan and never used the word Begam while making her signatures, which also casts a doubt and this aspect has also been taken note of by the Trial Court while arriving at its conclusion, which appears to be reasonable and such finding cannot be termed as perverse and being pure finding of fact is binding on this Court.
The other documents which have been filed by the defendant regarding the licenses and receipts issued by the Nagar Palika, they only indicate that the taxes were being paid. Mere issuance of the receipts in favour of Nafees Ahmad in itself does not establish the factum of the gift, moreover, as far as the possession part is concerned, it is not disputed that the plaintiff had permitted the plaintiff to reside in the disputed house and also permitted him to take care of the business. As not disputed by the defendant that the plaintiff was an illeterate lady and she banked heavily on the defendant hence by bringing on record the receipts does not establish the fact that the incorporation of the name by the defendant was in pursuance of the gift which as already discussed above could not be proved by the defendant. Thus, the documents evidencing the name of the defendant in the Municipal Records in itself without establishing the execution and making of the gift with cogent and clear evidence will not entitle or benefit the defendant.
Another aspect of the matter which is borne out from the cross examination of the defendant himself is that he had already got the licenses made in his name even in the year 1983-84. It was stated by the defendant that for the said year, the plaintiff had not got the license renewed or made, hence, the defendant got the license in his name and started sitting at the shop. This fact also indicates that apparently, the gift said to have been made in the month of January, 1987 and yet the defendant got his name mutated in the license in the year 1983-84 for which there is no cogent explanation, why did the defendant got the license made in his name when at that point of time, apparently there was never any intention or thought of execution of the said gift.
In totality of the facts and circumstances where the defendant could not give the exact date and only made a vague averment that the gift was made in the month of January, 1987 which was preceeded by a registered will on 05.01.1987, thereafter the fact that the defendant continued to pay the proceeds out of the business to Smt. Shahjahan Begam right up to time when the disputes emerged in the year 1992 also indicate a factum that the control remained with the plaintiff. In case if the plaintiff had already relinquished her rights and given the property to the defendant then there was no occasion for her to accept the money from the business from the defendant as she had been doing even prior to the making of the said gift nor there is any explanation to the aforesaid effect.
This Court has considered the documents as well as the evidence and finds that the conclusion arrived at by the two courts that the gift could not be proved does not suffer from any error which may persuade this Court to exercise powers under Section 100 C.P.C. to upset the same. As already indicated above, the gift has not been proved and as far as the possession is concerned, the same whether constructive or actual also could not be established in the sense that the possession was exclusive with the defendant in pursuance of the Gift and that he was in complete control to the exclusion of the plaintiffs. This has been seen in light of the fact that the plaintiff herself had permitted the defendnat to take the charge of the business and permitted the defendant to stay in the house after her husband's death and much prior to the making of the gift. Therefore, the mere possession is not sufficient. It was necessary to establish that the gift was made and after the making of the gift, the possession and control of the defendant was of such a nature and character which established that even though both the plaintiff and the defendant had been residing together yet the entire control was that of the defendant to the exclusion of the plaintiff and this has definitely not been made out. Hence this Court is of the definitive opinion that neither the oral Gift was established nor the possession was exclusively given to the defendant.
In this case, there are concurrent findings on facts by both the courts below. The Hon'ble Apex Court in catena of judgments has laid down the law that the concurrent findings of fact recorded by two courts below should not be interfered by the High Court in Second Appeal, unless and until the findings are perverse.
In the case of Shivah Balram Haibatti Vs. Avinash Maruthi Pawar (2018)11 SCC 652 the Apex Court has held as under:-
"...... These findings being concurrent findings of fact were binding on the High Court and, therefore, the second appeal should have been dismissed in limine as involving no substantial question of law."
In another recent case of Narendra and others Vs. Ajabrao S/o Narayan Katare (dead) through legal representatives, (2018) 11 SCC 564 the Hon'ble Apex Court held as under:-
"...interference in second appeal with finding of fact is permissible where such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or where that finding is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law permitting interference in Second Appeal."
In Dalip Singh Vs. Bhupinder Kaur, (2018) 3 SCC 677 the Hon'ble Apex Court has held that if there is no perversity in concurrent findings of fact, interference by the High Court in Second Appeal is not permissible.
This Court has considered this aspect in the case of Dropadi Devi (supra) relying upon the case of the Hon'ble Apex Court in State of Rajasthan and Others Vs. Shiv Dayal and Another reported in 2019 (8) SCC 637 and noticed the following words:-
"14. True it is as has been laid down by this Court in several decisions that "concurrent finding of fact" is usually binding on the High Court while hearing the second appeal under Section 100 of the Code of Civil Procedure, 1908(hereinafter referred to as "the Code"). However, this rule of law is subject to certain well known exceptions mentioned infra.
15. It is a trite law that in order to record any finding on the facts, the Trial Court is required to appreciate the entire evidence (oral and documentary) in the light of the pleadings of the parties. Similarly, it is also a trite law that the Appellate Court also has the jurisdiction to appreciate the evidence de novo while hearing the first appeal and either affirm the finding of the Trial Court or reverse it. If the Appellate Court affirms the finding, it is called "concurrent finding of fact" whereas if the finding is reversed, it is called "reversing finding". These expressions are well known in the legal parlance.
16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43).
17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code."
For all the aforesaid reasons, the question formulated is answered. The second appeal does not warrant any interference, accordingly, the judgment and decree dated 12.11.2008 passed in Original Suit No. 428 of 1993 and the judgment and decree dated 27.11.2015 passed by ADJ, Faizabad in Civil Appeal No. 145 of 2008 are upheld.
Consequently, this second appeal is dismissed. In the facts and circumstances, there shall be no order as to costs. The record of the lower court shall be remitted to the Court concerned.
Order Date :- 16th April, 2020 Rakesh-Asheesh/-