Karnataka High Court
Smt Zaire Bee W/O Late Abdul Rehman vs Tayab Sultan W/O Late Abdul Rehman on 19 January, 2012
Author: N.Kumar
Bench: N.Kumar
1
T BENCH
IN THE HIGH COURT OP KARNATAKA CIRCUI
AT GULBARGA
Dated this the 19 day of January. 2012
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
R.F.A No.1772 of 2005
BE'PvVEEN:
I. Srnt Zaire Bee W/o Late Abdul Rehrnan
@ Sved Abdul Rahirn.
Since the appellant No. 1 died on,
04/08/2011 the appellant Nos 2 to.
7 are LRS of appellant No 1.
2. Syed Saifuddin S/o Late Abdul Rehman
© Svecl Abdul Rahim,
Age: About 39 Yrs. 0cc: Service,
R/o Plot No. 23/B. Beside railway Track,
ClEFT Colony. Anaiid Bagh.
Malkajgiri. Hvderabad-47.
Andhra Pradesh.
3. Syecl Hasnauddin S/o Late Abdul Rehnian
© Sved AbcIul Rahirn.
Age: About 37 Yrs. 0cc: Private Service,
R/o Plot No. 23/B. Beside railway Track,
ClEFT Colony, Anand Bagh.
Malkajgiri. Hyderabad-47,
Andhra Pradesh.
Presently Residing at,
H.No. 5-3-34 Station Road.
Post & Tq: Yadagir, Dist: Gulbarga- 585101.
2
Rehrnan
4. Syed Najamuddin Sb Late Abdul
@ Syed Abdul Rahirn.
vice,
Age: About 32 Yrs. 0cc: Private Ser
R/o Plot No. 23/B. Beside railway
Track.
CIEFI Colony. Anand Bagh,
Malkajgiri. Hyderabad 47,
Andhra Pradesh.
Presently Residing at,
H,No. 5-3-34 Station Road,
Post & Tq: Yadagir. Dist: Gulbarga.
5. Nafeesa Jehan @ Munni
D/o Late Abdul Rehrnan.
© Syed Abdul Rahim,
Age: About 34 Yrs, 0cc: Household.
ck,
R/o Plot No. 23/B. Beside railway Tra
ClEFt Colony. Anand Bagh.
Malkaj girl. Hvderahad-47.
Andhra Pradesh.
n.
6. Sameeena D/o Late Abdul Rehrna
© Sved Abdul Rahirn.
Age: About 26 Yrs, 0cc: Household,
R/o Plot No. 23/B. Beside railway Track,
CIEFI Colony. Anand Bagh,
Malkajgirl. Hvderabad-47,
AHdhra Pradesh.
7. Badru Jehan D/o Late Adbul Reh
nnin,
© Sved Abdul Rahim.
Age: About 28 Yrs. 0cc: Household.
ck.
R/o Plot No. 23/B. Beside railway Tra
ClEFT Colony. Anand Bagh,
Malkajgiri. Hyderabad-47,
Andhra Pradesh.
Appellants
(By Sri: Veeresh B Patil Adv)
AND:
3
1) Tayah Sultan W/o Late Abdul Rehman
@ Sved Abdul Rahirn.
.
Age: About 53 years, 0cc: Household
R/o H.No. 1 1-6-732. Red Hills.
Hyderabad-47,
Andhra Pradesh.
man
2) Avesha Sultana D/o Late Abdul Reh
@ Syed Abdul Rahim,
,
Age: About 26 years, 0cc: Household
R/o H.No. 11-6-732. Red Hil ls,
Hyderahad-47.
Andhra Pradesh.
3) Sayeeda Siddiqua Sultana
D/o Late Abdul Rehrnan
© Sved Abdul Rahirn,
Age: About 21 years. 0cc: Student,
R/o H.No. 11-6-732. Red Hills.
Hyderabad-47.
Andhra Pradesh,
4) Sayeeda Hurneera Sultana
D/o Late Abdul Rehman
© Syed Abdul Rahim.
Age: About 17 years. Minor.
5) Sved Abdul Quddus
S/o Late Abdul Rehman
© Syed Abdul Rahim.
Age: About 23 years, 0cc: Student,
R/o H.No. 11-6-732. Red Hills.
Hvclerabad-47.
Andhra Pradesh.
Respondents
R- 1 to R-4.
(By Sri: Praveen Kurnar Raikote Adv for
Sri R.A. Patil & A.M. Nagaral Adv for R-5)
CPC against the
This RFA is filed under Section 96 of in
Decree dated: 27-10-2005 passed
Judgment and
4
ge (Sr.Dn) Yadgir,
O.S.No. 12/97 on the file of the I Civil Jud
session.
decreeing the suit for partition and separate pos
, the Court
This RFA coming on for hearing this day
delivered the following:
JUDGMENT
gment and This is a defendants' appeal against the jud the suit of the decree of the trial Court which has decreed plaintiffs as prayed for.
ties are
2. For the purpose of convenience, the par .
referred to as they referred to in the original suit leaving
3. One Syed Abdul Rahim died on 2.5.1996 legal heirs. First behind the plaintiffs and defendants as his and first plaintiff defendant-Smt. Zaira Bee is his first wife ants 2 to 7 are the Tayaba Sultana is his second wife. Defend t wife Smt.Zaira children of Syed Abdul Rahim through his firs n of Syed Abdul Bee. Similarly, plaIntiffs 2 to 5 are the childre .
Rahim through his second wife -Thyaba Sultana 3 e
4. The case of the plaintiffs Is that, late Syed Abdul Rahim was employed In South Central Railway and was serving at Secunderabad. He retired from service after he reached the age of superannuation on 28.2.1993. Thc parental house of defendant No.1 Is at Yadgir. Defendant No.1 purchased the property bearing municipal No. 5-3-87 (old) 5-3-34 (new) which is more fully described at SI. No.1 in the schedule from Salam Bin Abood Al Hajiri and Noorunnisa Begum for a consideration of Rs.8,000/- through a registered sale deed bearing document No. 177/70-71 dated 24.4.1970. When he purchased this property he was put to inconvenience of enquiry for purchasing the property in his name without prior intimation and permission from his employer and he had to face enquiry. Therefore. with a view to avoid such complications Syed Abdul Rahim subsequently purchased property in the name of first wife, I.e., defendant No.1. He purchased another property nominally In the name of his first wife. i.e.. defendant No.1. bearing No. 5-4-8 1 (old). 5-4-39 (new. more fully described at Sl. No.2 In the schedule for a consideration of Rs. 10,000/- through a registered sale deed No. 13 19/72-73 dated 14.9.1972. He also purchased the property bearing H. No. 5-3- 6
23. 5-3-24 more fully described at Si. No.3 In the schedule, nominally in the name of defendant No.1 through registered sale deed No. 918/81-82 dated 27.10.1981 for a consideration of Rs.30,000/-. He also purchased agricultural land bearing Sy. No. 128/A to an extent of 2 acres 23 guntas which Is more fully described at Si. No. 4 In the schedule In the name of defendant No.1. He purchased all these properties by paying the consideration amount to the respective vendors out of his own earnings and savings from his service. No consideration amount was paid by Zaira Bee, i.e.. defendant No.1, to the respective vendors because she had no Independent source of Income of her own or any property of her own. She Is only a house wife. She had no such relative to contribute such a big amount to purchase the property. Therefore, defendant No.1 Is the nominal owner having no Independent title over the suit schedule property. As the suit schedule properties are mathurka of the deceased Syed Abdul Rahim and the mathurka properties are liable to be shared as per the respective shares. they are entitled to share as set out In pam 10 of the plaint. Defendant No.1 was never treated as the owner of the property. Syed Abdul Rahim was enjoying the usufructs of these 'Lr 7 properties and he was in possession till his death. During his lifetime he had leased house and shops to tenants. He alone was coflecting the rents and enjoying the properties as absolute and exclusive owner. He was living at Hyderabad with the plaintiffs and defendants 1 to 7. He had leased the properties to defendants 8 to 12. Syed Abdul Rahim had died kite state. After his death the properties devolved on the plaintiffs and defendants 1 to 7 and it has to be divided among them. The first defendant filed an application for mutation of her name in respect of the first item of the property. On coming to know of the same, the plaintiffs resisted by filing objections but the Chief Officer passed a mutation order in favour of defendant No.1. In appeal, the plaintiffs were directed to approach a Civil Court and get their rights declared. After getting the mutation of the schedule properties In their names, defendants 1 to 7 are refusing to give the plaintiffs' share in the plaint schedule property. The 8°' defendant happens to be the younger brother of defendant No.1 who has occupied item No.1 of the schedule property as tenant. He Is refusing to pay rents to the plaintiffs. When the request for partition and separate possession did not 8 4 yield any result, the plaintiffs have no other option except to file the suit for partition.
5. After service of summons, the defendants entered appearance. Defendants I to 7 ified a Joint written statement. They admitted the relationship between the parties. They denied that, on account of the purchase of Item No.1 of the plaint schedule property by Syed Abdul Rahim In his name, he had to face enquiry. Therefore, the allegation that later he purchased properties in the name of the first defendant to avoid such enquiry was denied. Items No.2 and 3 of the plaint schedule were purchased by the first defendant under a registered sale deed for valuable consideration and It Is her self acquisition. Plaintiffs have no manner right, title or Interest over the said properties. She has pleaded that Syed Abdul Rahim orally gifted the suit item No.! to the first defendant on 5.2.1996 in the presence of witnesses and delivered the possession of the said house to the first defendant The first defendant accepted the gift by taking possession of the above referred house and came in possession of the same and continues to be In possession to this day, as the absolute owner.
L 9 Her name has also been mutated in the municipal records. Assuming that the consideration for purchase of suit item Nos. 2 to 4 flowed from late Sved Abdul Rahim. it would be a benami transaction. No plea of henami transaction is available to plaintiffs on or after 19.5.1988. i.e., after the promulgation of Benami Transaction Prohibition Act. 1 988 which is a Central Act. Suit item Nos,2 and 4 were purchased by first defendant long prior to the marriage of first plairititi. In para 11 of the plaint the plaintiff specifIcally pleaded that the purchase of suit item Nos. 2. 3 and 4 were for the benefit of defendant No. 1. Therefore, there is a statutory presumption in favour of defendant No. 1 that the said items were purchased by late Sved Abdul Rahim for the benefit of defendant No.1. Therefore, they sought for dismissal of the suit.
6. On the aforesaid p1eac1in&s. the trial Court framed six issues and additional issues which are as under:
1. Whether the plaintjfs prove that the suit properties are Matruka properties of late Abdul Raheem? 10 4
2. Whether deft Nal proves the gift (oral) of the suit Item Na 1 in herfavour by late Syed Abdul Raheem on 5-2-1996?
3. Whether deft Na) proves that the suit item No.2 to 5 are the properties pwthczsed by her out of her own funds?
4. Whether deft No) proves that she is the absolute owner of the suit properties item Nos.2 to 5?
5. Whether the defendant proves that the suit is boned by the provisions of Benami Transactions Act?
6. Whether the defendants prove that the suit is barred by time?
Addl. Issues
1. Whether the plaintiffs prove that the suit item Nos. 2 to 5 are purchased by Abdul Raheem out of sejf earnings?
2. To what relief the parties are entitled?
3. To what order or decree?
7. The plaintiffs In order to establish their case examined the first plaintiff as PW1 and they also examined one witness as ii PW 2. She also produced 15 documents which are marked as Exs. P1 to P15. On behalf of the defendants defendant No.1 \T5 examined as DW1 and her sorusecond defendant was examined as DW2. They also produced 10 documents which are marked as Exs. Dl to D10.
8. The trial Court on consideration of the aforesaid oral and documentary evidence on record held that the plaintiffs have failed to prove that the suit schedule properties are matruka properties of late Sved Abdul Rahim. The defendant No. 1 has failed to prove that item No. 1 of the plaint schedule has been gifted to her by her deceased husband on 5.2.1996. Similarly, she failed to prove that item Nos. 2 to 5 are the properties purchased by her out of her own funds, Defendant No. I has failed to prove that she is the absolute owner of the suit properties item Nos. 2 to 5. Plaintiffs have also proved that consideration for items 2 to 5 of the schedule properties has flown from Sed Abdul Rahim. The plea of benami was also negatived. Suit is not barred by time and therefore, it decreed the suit of the plaintiffs granting shares to which they are entitled under the Mohammadan law. Aggrieved by the said 12
4. judgment and decree, the defendants have preferred this appeal.
9. Learned counsel for the appellants assailing the Impugned judgment and decree of the thai Court contended In ct of the first place that. when registered sale deeds in respe items 2 and 3 stand In the name of the fIrst defendant. the trial Court committed a serious error In holding that the said properties belong to Syed Abdul Rahim and In granting a share s to the plaintiffs. Even in respect of other Items no sale deed t, are produced, they all stand In the name of the first defendan mutation entry has been made In their favour and therefore tiff those properties exclusively belong to her In which the plain Is has no right. In so far as Item No.1 of the plaint schedule m concerned. It was a property belonging to Syed Abdul Rahl in who by an oral gift on 5.2.1996 gifted the said property favour of his first wife-defendant No. I In the presence of witnesses and also delivered possession which was accepted by the first defendant and therefore the said property was also not , available for partition on the day the suit was ified. Therefore 1- 13 he submits the trial Court committed a serious error in ignoring the aftresaid facts and granting a decree for partition.
10. Per contra, the learned ('ounsel appearin for the plaintiffs--respondents supported the impugned juclgmem and decree.
11. In the light of the aforesaid facts and the contentions. the points that arise for consideration in this appeal are,
1) Whether the finding of the trial Court that the oral gift deed dated 5.2.1996 pleaded by the first defendant is not established, is illegal and requires to be set aside?
2) Whether the finding of the trial Court that though item Nos. 2 and 3 --the registered sale deeds stand in the name of the first defendant. still the property helons to her husband Sved Abditi Rahim is correct and justified'?
14
3) Whether the fiiidints of the trial Court that the other properties the mutation of which though stands in the name of the first defendant are still the properties belonging to Sved Abdul Rahim in which plaintiffs have a share?
12. Point No. (1):- A hiba or gift is a a transfer of property, made immediately and without exchange," by one person to another, and accepted by or on behalf of the latter. Every Mahornedan of sound mind and not a minor may dispose of his property by gift. A gift as distinguished from a will, may be made of the whole of the donor's property, and it may he made even to an heir. Writing is not essential to the validity of a gift either of movable or of immovable property. It is essential to the validity of a gift that there should he (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee. It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is 15 r susceptible of. Delivery of possession of a gift may be actual or constructive. When physical delivery of possession Is not possible such possession of the property may be delivered. If the property is in the possession of a tenant at the time of gift, delivery of physical possession is not possible. Therefore, the donor may call upon the tenant to attorn the tenancy in favour of the done and by such attornment the delivery of possession could be made.
13. In the instant case. admittedly on the day of the alleged gift dated 5.2.1996 which is oral, the schedule property was not In the possession of the donor. It was in the possession of a tenant. The only mode in which he could have delivered possession was by calling the tenant to attorn the tenancy in favour of the defendant-done. In the entire evidence there is no whisper about the donor calling upon the tenant to attom the tenancy in favour of the first defendant. If that is so. the main essential requirements of Mohammadan gift under Mohammadan law. i.e.. delivery of possession is not fuffliled. The other essential Ingredient of a Mohammadan gift Is a declaration of gift by the donor. It Is only the donee and her son 16 who is supposed to he a witness who has spoken about this declaration. It is pleaded in the pleadin.t that it is made in the presence of other witnesses. None of ihem have been examined. it is contended after the gift after the death of Syed Abdul Rahim, the first defendant made an application for mutating her name in the municipal records. It was entered. According to her that is proof of gift. An entry in the mutation record is not proof of gift. It can only be a piece of evidence. Gift is an anterior act. It is only on the basis of gift. a mutation entry is made. When gift is denied, the burden of proving the gift squarely falls on the person who has set up the ift and unless the essentials of gift under Mohammadan Law is established, gift is not proved. This is precisely what the trial Court has held after careful scrutiny of both the oral and documentar evidence on record and therefore no case for interference with the said finding is made out.
14. Point No. (2): It is an admii ted ttct that items No2 and 3-the registered sale deeds stand in the name of the first defendant. It is the case of the plaintiffs that her lather when he purchased item No. 1 being in employment of Southern L 17 Railways got into difficulties as an enquiry was ordered for purchasing the property without pennission from his employer. In order to avoid such a consequence when he made purchases subsequently It was made in the name of his first wife. The consideration for such purchases has flown from her husband. The first defendant being a housewife, she had no independent Income and In her family also nobody was in a position to advance money for purchase of these properties. However, the case of the first defendant is that, it is a purchase made by her, independent of her husband. She got the consideration from her parents and therefore it is her property in which, even her husband has no right much less the plaintiffs herein. In support of those two contentions. both the parties have adduced evidence. The first defendant admits that she Is a housewife and she has no independent income. The evidence of PW2 coupled with the evidence of the defendants show her father has got 6 sons, they have to struggle to live and they had no Income so as to advance the money to his daughter to purchase these properties. On the contrary, the evidence of the plaintiffs show that at the time of retirement, nearly Rs.4,000/- was the salary which Syed Abdul Rahim was getting and I 18 therefore he had sufficient liquid cash for purchase of these properties. The trial Court on appreciation of this evidence has rightly come to the conclusion that the defendant has failed to establish that she has purchased this property out of her own income and the only inference that could be drawn is that the property was l)u1Chased in her name by Syed Abdul Rahim and therefore the ilrst defendant cannot claim an exclusive right to the said property in derogation of the other members of the family. I do not find any error committed by the trial Court regarding this finding.
15. Point No. (3):- In so far as the other properties are concerned, there is no sale deed. Mutation entry stands in the name of the first defendant. Therefore, how this property was acquired both these widows are unable to say. In those circumstances. the trial Court was justified in holdin that the said two properties also belong to the joint family and all the members of the family are entitled to a share. It was also contended the plaintiff-second wife was not in the family on the day these two properties were purchased. The trial Court has pointed out how the said contention was erroneous and plaintiff IL 19 was married on the date of the acquisition of these properties. Even otherwise if she was not married that in no way affects her right to the property. As long as these properties are purchased with the money of Syed Abdul Rahim and when he died inte state, notwithstanding the fact that the properties stand in the name of other members of the family, it is a property belonging to Syed Abdul Rahim and all his legal heirs are entitled to a share in accordance with Mohanirnadan law. Therefore, seen from any angle. the Judgment and decree passed by the trial Court is unexceptionable. No case for interference is made out There is no merit in this appeal. Accordingly. it is dismissed. No costs.
Sd/ JUDGE ckl/