Bombay High Court
Abdul Rahim @ Guddu S/O Abdul Majid vs Sheikh Qayyum S/O Sheikh Rashid on 10 November, 2009
Author: Vasanti A. Naik
Bench: Vasanti A. Naik
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
NAGPUR BENCH: NAGPUR
WRIT PETITION NO. 1843/2009
PETITIONERS:
Abdul Rahim @ Guddu s/o Abdul Majid, aged about 55 years, occ.
Agriculture, r/o Village Girad, The Samudrapur, District : Wardha.
VERSUS
RESPONDENTS:
1] Sheikh Qayyum s/o Sheikh Rashid, aged about 63 years, occ : labourer
2] Sheikh Naboo s/o Sheikh Rashid, aged about 59 years, occ : labourer
3] Sheikh Muktur s/o Sheikh Rashid, aged about 58 years, occ : labourer
4] Sheikh Munaf s/o Sheikh Rashid, aged about 53 years, occ : labourer
5] Safiya d/o Sheikh Rashid, aged about 54 years
6] Mohmuda d/o Sheikh Rashid, aged about 51 years occ : Labour
1 to 6 r/o Village Girad, tahsil Samudrapur, District : Wardha
7] Nurjahan w/o Sheikh Amir, aged about 56 years, occ : Nil, r/o Babupeth, Ward
No.5, Chandrapur Tahsil and district Chandrapur.
8] Abdul Gaffar s/o Sk. Ajij, aged about 65 years, occ : service, r/o Arab Ka
Bada Mahal, Nagpur
9] Abdul Wahid s/o Sk. Majid, aged about 70 years, occ : cultivator r/o Girad,
village Girad, Tahsil Samudrapur, District : Wardha.
10] Abdul Quadir s/o Sk. Majid, aged about 68 years, occ : business r/o
Chandrapur Babupeth, Ward No.5
11] Abdul Rahim s/o Abdul Majid, aged about 62 years, occ : Hawker r/o Girad
12] Abdul Hakim s/o Abdul Wahid, aged about 44 years, occ : agriculturist r/o
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Girad,
13] Abdul Washid s/o Abdul Majid, aged about 60 years occ : cultivator
14] Abdul Quadir s/o Abdul Majid, aged about 55 years, occ : cultivator
15] Sugarabai wd/o Abdul Majid, aged about 75 years occ : cultivator
16] Bilkis w/o Rajjakmiya, aged about 52 years occ : cultivator
17] Akbari d/o Abdul Majid, aged about 40 years, occ : cultivator
18] Anwari Abdul Majid, aged about 48 years, occ : cultivator
19] Aktari d/o Abdul Majid, aged about 48 years, occ : cultivator
20] Munni d/o Abdul Majid, aged about 43 years, occ : cultivator
21] Sarwari d/o Abdul Majid, aged about 38 years, occ: cultivator
All 11 to 21 r/o Girad, tahsil Samudrapur, district : Wardha.
22] Amina w/o Sheikh Babbu, aged about 50 years, occ : cultivator
23] Afgari w/o Abi Nisar, aged about 50 years, occ : cultivator
Both 22 and 23 r/o Babupeth Ward No.5, Chandrapur, Tahsil and District :
Chandrapur.
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Shri R.S. Akbani, Advocate for the petitioner
Shri A.S. Chandurkar, Advocate for respondent no.1 to 6
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CORAM: SMT. VASANTI A. NAIK, J
DATE: 10TH NOVEMBER, 2009
ORAL JUDGMENT
Rule. Rule made returnable forthwith. The petition is heard finally at the stage of admission as the notice for final disposal was issued to the respondents by an ::: Downloaded on - 09/06/2013 15:17:54 ::: 3 order dated 27.4.2009.
2] By this petition, the petitioner impugns the order passed by the Civil Judge, Junior Division, Samudrapur on 18.3.2009 rejecting the application filed by the petitioner for exhibiting the document dated 11.4.1966, called the Bakshis Patra.
3] The petitioners are the original defendants. The defendants had filed the documents and since the trial court had not exhibited the document dated 11.4.1966, called the Bakshis Patra, on the ground that the document was not a registered document, the petitioners filed an application for exhibiting the document for effectively deciding the dispute between the parties. It was the case of the petitioner that the document dated 11.4.1966 was admitted by the plaintiff in his cross examination and the document being 30 years old, ought to have been exhibited.
4] The prayer made by the petitioner in the said application was strongly opposed by the respondent. The trial court, by order dated 18.3.2009 rejected the application.
5] Shri Akbani, the learned counsel for the petitioner submits that the trial court committed an error in rejecting the application by holding that the document was compulsorily registrable under the Registration Act. According to the learned counsel for the petitioner, the document was a Hiba or Gift under the Muslim Law and perusal of the document dated 11.4.1966 clearly revealed that it was in the form of a memorandum written and signed by five panchas on a statement made by the donor. The learned counsel for the petitioner then relied on the provisions of section ::: Downloaded on - 09/06/2013 15:17:54 ::: 4 149 of the Mulla's Principles of Mohammedan Law and section 129 of the Transfer of Properties Act, to submit that it was not necessary to register the gift deed under the Muslim Law and nothing in Chapter 7 of the Transfer of Property Act, would affect any rule of Mohammedan Law. The learned counsel for the petitioner submitted that the trial court was not justified in rejecting the application by holding that the gift deed was compulsorily registrable as the petitioner had not stated in the application, as to whether the gift was made under the Muslim Law or was made under the General Law.
6] Shri A.S. Chandurkar, the learned counsel for the respondent no.1 to 6 supported the order passed by the trial court and relied on the decisions of the Andhra Pradesh High Court reported in AIR 1962 AP 199 and 1998 (2) Civil LJ Page 172 to canvass that the Mohammedans are not prevented to effect transfer in the manner under section 123 of the Transfer of Property Act 1882 and since it was the case of the petitioner that the document dated 11.4.1966 was a Hiba or gift under the Muslim Law, it was rightly held that the document required registration and the said document could not be exhibited. The learned counsel for the respondents submitted that the document was compulsorily registrable and the trial court rightly rejected the application filed by the petitioner. In any case, according to learned counsel for the respondents, exhibition of document is just marking it for identification and mere exhibition of the document would not prove the contents of the documents as true. The learned counsel for the respondent relied on an unreported decision of this court in Criminal Application No. 714/2009 dated 3.4.2009 to substantiate his submission.
::: Downloaded on - 09/06/2013 15:17:54 ::: 57] I have considered the submissions made on behalf of the parties and perused the relevant provisions of the Mohammedan Law and the Transfer of Properties Act along with the impugned order dated 18.3.2009. I have also perused the document dated 11.4.1966. A bare perusal of the document dated 11.4.1966 prima facie shows that it is not a gift in the nature of gift which is made under the provisions of section 123 of the Transfer of Property Act, as the Mohammedan Donner in t his case has merely made a statement before the panchas in regard to the gift and the same has been incorporated in writing and is signed by five panchas. It prima facie appears from the perusal of the document dated 11.4.1966 that it is not a gift under the provisions of section 123 of the Transfer of Property Act and appears to be a gift under the Mohammedan Law. Merely because, there is no mention in the application filed by the petitioner that the gift was one under Mohammedan Law, it cannot be said that the Gift was compulsorily registrable. It was necessary for the trial court to consider the document dated 11.4.1966 before holding that it was compulsorily registrable and the document could not have been exhibited.
8] Under the provisions of section 149 of the Mulla's Principles of Mohammedan Law, there are only three essential conditions of a valid gift and those are 1] 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 stated in section 150 that if these conditions are complied with, the gift is complete. In fact, sub section 3 of the Section 150 provides that if it is proved by oral evidence that gift was complete as required by law, it is immaterial that the donor has also executed the deed of gift, but the deed had not been registered as required by the Registration Act, section ::: Downloaded on - 09/06/2013 15:17:54 ::: 6 17(a). Thus in view of the provisions of section 150(3) of the Mulla's Principles of Mohamedan Law, it is clear that a gift made by the Mohamedan donor in writing is not compulsorily registrable. The trial court ought to have exhibited the document dated 11.4.1966 in the facts and circumstances of the case.
9] It is however, rightly submitted on behalf of the respondent that exhibition of document is for the purpose of marking it for identification and mere exhibition of it would not amount that the contents of the documents are proved to be true. The trial court should therefore bear this in mind. For the reasons recorded herein above, the writ petition is allowed. The impugned order passed by the trial court on 18.3.2009 is hereby quashed and set aside. The application filed by the petitioner for exhibiting of document dated 11.4.1966 is allowed. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE SMP ::: Downloaded on - 09/06/2013 15:17:54 :::