Karnataka High Court
Azeemshah vs Raheman Shah Khan And Ors on 25 January, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY 2023
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE T.G.SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL No.200024/2018
Between:
Azeemshah S/o Late Habib Shah Khan
Age:67 years, Occ: Bonesetter
H.No.7-4-13, Rohilegalli
Bidar-585 401.
...Appellant
(By Sri Amresh S. Roja, Advocate)
And:
1. Raheman Shah Khan
S/o Late Habib Shah Khan
Age: 57 years,
Occ: Agriculture and Private Service
R/o: H.No.7-4-49, Taskar Road, Rohilegalli
Bidar-585 401
2. Khursheed Jahan Ara
W/o Yusuf Khan Adil
Age: 67 years,
Occ: House Hold and Agriculture
2
R/o: Hyderabad- Andhra Pradesh-500 002
3. Sabera Begum
W/o Late Syed Safiulla Hussaini
Age: 61 years, Occ: House Hold and Agriculture
R/o: Gulbarga-585 103
4. Qaiser Jahan Ara W/o Asadulla
Age: 58 years,
Occ: House Hold and Agriculture
R/o: Rohilegalli, Bidar-585 401
5. Seema Ashra
D/o Late Moizuddin W/o Md. Asif
Age:39 years, Occ: House Hold
R/o: H.No.19-4-145C/115, Ratima Nagar
Vatepalli, Charminar
Hyderabad(A.P)-500 002
6. Reshma D/o Late Moizuddin
Age:37 years, Occ: House Hold
R/o: Kapalapur
Tq. and Dist: Bidar-585 401
7. Rizviya D/o Late Moizuddin
Age:35 years, Occ: House Hold
R/o: House of Haji Saheb, Qasai Wada
Rajabagh Road, Bidar-585 401
8. Azahar Altamas @ Babu
S/o Late Moizuddin
Age: 33 years, Occ: Carpenter
R/o: Mustaidpura Khasai Wada
Bidar-585 401
...Respondents
(By Sri Harshavardhan R. Malipatil, Advocate for
C/R1 to R4;
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Notice to R5 to R8 is Dispensed with V/o dated
19.11.2019 )
This Regular First Appeal is filed under Section 96
read with Order 41 Rule 1 of CPC, praying to set aside the
judgment and decree in O.S.No.53/2013 dated
01.01.2018, on the file of Additional Senior Civil judge and
CJM at Bidar, by dismissing the suit of the plaintiff, in the
interest of justice.
This appeal coming on for final hearing this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
This appeal is filed by the first defendant in O.S.No.53/2013 on the file of the Additional Senior Civil Judge, Bidar. The substance of the pleadings is as follows.
2. Plaintiff no.1 and defendant no.1 are the sons of Habib Shah Khan. Plaintiff nos.2, 3, 4 and one Bilqis Jahan are the daughters of Habib Shah Khan. Since Bilqis Jahan was dead by the time suit was filed, 4 her children i.e., defendant nos.2 (a) to (d) were made parties in the suit.
3. It is the case of the plaintiffs that three properties bearing numbers (i) 7-4-40 (old)/7-4-49 (new), (ii) 7-4-11 (old)/7-4-13 (new) and (iii) 7-4-68 (old)/7-4-81 (new) situate at Rohilegalli, Bidar described in Schedule-A to the plaint belonged to Habib Shah Khan. After the death of Habib Shah Khan in the year 1988, his children succeeded to the properties as tenants in common. Plaintiff nos.1 and 2 have 2/8th share each and daughter of Habib Shah Khan has 1/8th share each in the said properties. The plaintiffs requested the first defendant to effect partition of the said properties, but the first defendant did not heed to their request and hence they approached the civil court seeking partition and separate possession of the properties. 5
4. The first defendant admitted relationship as has been stated in the plaint and the fact that the said properties belonged to his father. His specific contention is that according to the oral gift dated 01.03.1979 made by his father the first item of the schedule property was given to the share of the first plaintiff, the second item of the schedule property was given to the share of first defendant and the third item was left to the enjoyment of the father and mother till their lifetime and after their demise the southern side of the property would go to the first plaintiff and the northern portion of the said property would go to the share of the first defendant. It was also contended that each daughter was given a sum of `2,000/- at the time when the oral gift was made. He pleaded further that on 05.03.1987, the terms of the oral gift of the year 1979 were reduced to writing. Therefore, the specific case of the first defendant was that in view of 6 the oral gift, the plaintiffs were not entitled to claim partition and hence the suit was to be dismissed.
5. The trial court framed six issues based on the pleadings. After assessing the evidence of the witnesses examined by the plaintiffs and the defendants and the documentary evidence, the trial court came to the conclusion that first defendant was not able to establish the oral gift and therefore decreed the suit holding that the first plaintiff and the first defendant were each entitled to 2/8th share and plaintiff nos.2 to 4 and deceased daughter namely Bilqis Jahan were each entitled to 1/8th share in the properties. Issue nos.1 and 2 were the deciding issues and on these issues the findings of the trial court are as follows.
5.1. Though according to Mulla's Mahomedan Law oral gift is permitted, it is nothing but a contract and in this view the donee must accept the gift. If 7 acceptance of the gift is not forthcoming, it cannot be said that oral gift was acted upon. On 01.03.1979, the age of the first plaintiff was below 18 years and therefore he being a minor, could not have accepted the gift. Sections 3, 7 and 11 of the Indian Contract Act, prohibits a contract of this type and consequently gift is hit. consequently gift is hit. It is also observed that it is not the case of the first defendant that the mother of the first plaintiff accepted the gift on behalf of the minor and as such, the gift was not accepted by the first plaintiff and thereby the gift was not acted upon.
5.2. Another observation of the trial court is that Ex.D-1 which is said to be a memorandum of gift that came into existence in the year 1987. It did not require registration, however, it is signed by two attesters, and by the scribe also. If at all the oral gift of the year 1979 had been reduced to writing in the 8 year 1987, the reduction of the terms of the gift subsequently should have been proved by examining atleast one of the attesters. In this regard, it is observed that the scribe of Ex.D-1 as also one of the witnesses namely Ibrahim Qureshi were alive and they were capable of giving evidence. First defendant should have examined one of them. For the reason that none of them was examined, it cannot be said that Ex.D-1 was proved.
5.3. In regard to another contention of the first defendant that there was severance of residence and thereby the coming into being of the oral gift could be inferred, it is observed that parties decided to live separately because of expansion in family and it cannot be construed that the brothers separated only as a consequence of the oral gift deed. Therefore, with these reasons the trial court decided to decree the suit as mentioned above.
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6. Sri Amresh S. Roja, learned counsel for the appellant arguing that the trial court erred in decreeing the suit of the plaintiffs, tried to highlight that in the light of circumstances that the brothers started living separately, an inference can be drawn that the parties acted upon the oral gift inspite of the fact that Ex.D-1 has not been proved in accordance with law. It is also his point of argument that in accordance with the principle found in para 155 of the Mulla's Mahomedan Law, gift in favour of the first plaintiff was not barred; the trial court has not applied the said principle. If it had been applied, there was no scope for decreeing the suit. Therefore, he argued that the appeal deserves to be allowed. Because of gift made by the father, the plaintiffs are not entitled to claim partition. In support of his argument he has placed reliance on the judgment of the Hon'ble 10 Supreme Court in the case of K. Balakrishnan vs. K. Kamalam and others (AIR 2004 SC 1257).
7. Sri Harshavardhan R. Malipatil, learned counsel for respondent nos.1 to 4/plaintiffs argued that there is no error in the judgment of the trial court. The trial court has thoroughly assessed the evidence to come to conclusion that the gift deed has not been proved in accordance with law. If at all there was an oral gift as has been contended by the first defendant, and thereafter it was reduced to writing in the year 1987, it should have been proved by examining atleast one of the attestors. It is observed that one of the attestors was available and inspite of that the first defendant did not chose to examine him. Moreover, the first plaintiff was a minor and as per the Indian Contract Act, he could not have accepted the gift. He also argued that according to para 152 of the Mulla's Mahomedan Law, implied 11 acceptance of the gift is not permissible. In this view, the trial court is justified in decreeing the suit and hence this appeal deserves to be dismissed.
8. Based on the points of argument canvassed by learned counsel, the question that arises for discussion is:
Has the trial court correctly held that the first defendant has not been able to prove Hiba or the gift made by his father, and consequently the parties would be entitled to shares as claimed by the plaintiffs?
9. Before answering this point, if the undisputed facts are traced, the relationship between the parties, the properties having been possessed by the father as absolute owner and separate residence of the first plaintiff and the first defendant are not in dispute. For the reason that the first defendant took up a specific defence about Hiba, the burden was on 12 him to prove that his father made an oral gift, failing which the plaintiffs would succeed in the suit. The parties would be entitled to shares in accordance with Mahomedan Law of succession. Therefore, issue no.2 framed by the trial court is the deciding issue.
10. The essentials of the gift made by a Mohammedan are (i) declaration of gift (ii) acceptance of gift (iii) delivery of possession of the gifted property. It is enough if we refer to the oral evidence given by DW-1 to DW-3 and PW-1. Since the burden of proving issue no.2 is on the first defendant, we may refer to evidence of the defendants' witnesses. First defendant tendered evidence as DW-1. His examination-in-chief affidavit is nothing but replica of his written statement. He speaks about oral gift made by his father and same being acted upon with severance in residence and kitchen. DW-2 is defendant no.2(a). In her examination-in-chief she 13 has spoken about gift made by her grand father, acceptance by the donees and taking over possession by setting up separate residence, making alterations and effecting some repairs as and when required. But she has also stated that she came to know about Hiba from her mother. She has also stated that her mother received `2,000/- when her grand father made the oral gift. In the cross-examination she has clearly admitted that she has given evidence at the instance of first defendant and his children. It is another answer in the cross-examination that after marriage of her maternal uncles, they started living separately due to expansion in the family and she came to know about the oral gift from the other family members.
11. DW-3 speaks about Hiba. He is a neighbour of DW-1 i.e., first defendant. His evidence clearly discloses that he had no personal knowledge about the Hiba and came to know about Hiba only in 14 the year 1985. He was an Ex-Councilor of the City Municipality. It is elicited from him that neither the first plaintiff nor the first defendant made any application for mutation of the revenue records of the houses in which they were residing separately. He has also stated that he did not advise them to apply for mutation. It is his clear admission that the brothers started living separately because of expansion in the family.
12. Now if the answers given by DW-1 in the cross-examination are considered, he has stated very clearly that he and his brother started living separately even before the year 1979 i.e., prior to the date of Hiba. He has stated that he was born in the year 1946 and age difference between him and the first plaintiff is about 16 to 18 years, the first plaintiff being born in the year 1961. He has further stated that for about 7 or 8 before Hiba was made, they 15 started living separately and he did not make any application to the City Municipality seeking mutation of the house to his name in which he was living.
13. PW-1 has given an answer in the cross- examination that the first defendant was collecting rent from tenant residing in a part of the building which was under his occupation. Then PW-1 has been given suggestions that his father decided to gift the property in order to avoid the quarrel among his children, that the brothers started living separately only after the oral gift made by the father and that the first defendant was collecting rent from his tenant. It is needless to say that by giving these suggestion, the first defendant made an attempt to prove the coming into being of Hiba. PW-1 has not admitted these suggestions and asserted that brothers becoming separate in residence was for the sake of convenience when there was expansion in the family 16 after marriage. The evidence of PW-2 and PW-3 is not of much consequence.
14. Therefore, if the entire evidence is analysed, we may state that as on 01.03.1979 the date on which the father is said to have made an oral gift, first plaintiff was not a major and even if it is assumed for argument sake that the father had made an oral gift, the first plaintiff being a minor at that time could not have accepted it and even if he had accepted, it was void. It is to be noted here that the first defendant has not given evidence as to who accepted the gift on behalf of his minor brother, but the recitals of Ex.D-1 the memorandum of gift that came into existence in the year 1987 clearly show that the gift was accepted by the first plaintiff himself. It is also stated that he took over possession of the gifted property. Since it is recited very clearly in Ex.D-1 that the gift was accepted by the minor, as has 17 been rightly held by the trial court, because of disability of the first plaintiff he could not have accepted the gift. It is not the case of the first defendant that either the mother or the father being a donor himself accepted the gift on behalf of the minor first plaintiff in the year 1979. This being the factual position, we are of the opinion that there was no acceptance of gift and thereby the gift failed.
15. The learned counsel for the appellant referred to Para 155 of the Mulla's Mahomedan Law to argue that transfer of possession is not required in case of a gift by a father to his minor child or by a guardian to his ward. We have to say that though transfer of possession was not necessary, it does not mean that there should not be acceptance of the gift. One of the essential requisites of Mahomedan gift being acceptance and delivery of possession, unless there is acceptance of the gift by the guardian of the 18 minor, we cannot draw any inference as to delivery of possession. In fact this argument is contrary to the recitals in Ex.D1 and also the admissions given by DW-1 in the cross-examination that he and PW-1 started living separately even before 1979. The evidence on record shows that separate residence of the brothers was because of expansion in family and not pursuant to Hiba. In this view of the matter, we may hold that the oral gift did not come into existence or acted upon.
16. Further, the evidence clearly shows that the first defendant having taken over possession did not apply for mutation. Learned counsel for the appellant argued vehemently that inference as to coming into being of hiba can be drawn from the attending circumstances. But we are unable to accept his argument. The very conduct of the parties in keeping quite for a long time, even after death of the 19 father without applying for mutation is a circumstance which goes against the first defendant.
17. Sri Harshavardhan R. Malipatil refers to Para 152 of the Mulla's Mahomedan Law where it is clearly stated that if the donor is in actual possession of the property, gift does not become complete unless donor physically departs from the premises with his goods and chattels and the donee formally enters into possession. That means the donor must deliver the physical possession to the donee. However, if the donee happens to be the son or daughter of the donor and if they were living together at the time of gift, inference as to delivery of possession under hiba may be drawn and it is permitted. But in this case one of the properties i.e., item no.3 is retained by the father and it is clearly recited that he and his wife could live in the said property till their lifetime and the gift of that property to his sons would come into effect after 20 their death. That means as far as item no.3 of schedule-A is concerned, it is a future gift which is not permitted according to section 162 of the Mulla's Mahomedan Law. If the father chose to live in the said house till his lifetime, the gift to that extent did not come into effect at all. Therefore, if all these aspects are taken into consideration, a clear inference can be drawn that the gift on which the first defendant has based his defence, cannot be accepted. The trial court has rightly come to conclusion that the first defendant has failed to prove the gift. Consequently, the plaintiffs would become entitled to the shares as claimed by them in the plaint in accordance with the rules of succession applicable to the Mahomedans. In this view, we do not find any infirmity in the judgment of the trial court. We have to answer the point raised for discussion in the negative.
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Consequently, this appeal fails and is dismissed. There is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE swk