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2002 DIGILAW 287 (JK)

Mohd. Tariq Khan v. Mehmoona Begum

2002-09-06

S.K.GUPTA, T.S.DOABIA

body2002
Per Doabia, J. Both sides are now represented by the legal heirs. Those who initiated the litigation have since died. Pir Mohd.Khan and Sardar Ghulam Khan filed a suit. The case projected by them was their real brother Sardar Wazir Mohammad Khan, husband of Niaz begum defendant No. 1, died issueless. he left behind his widow Niaz Begum. He owned a residential house as also agricultural land in the province of Srinagar and also in Jammu. According to the plaintiffs, after the death of their brother S. Wazir Mohd.Khan, they were the only heirs and the widow, who was allowed to stay and was only permitted to enjoy the usufruct of the property. It was pleaded that she was to be treated as a licencee. It was pleaded that her continuance in possession was on account of the consent given by them. What led to the filing of the suit was that the widow of Wazir Mohd. Khan started alienating the property and this alienation was in any case, in excess of what would have gone to her. The suit was resisted. It was pleaded that the plaintiffs are estopped from filing the suit.It was stated that the plaintiffs had all along recognised the defendants to be the owners of the property. It was also pleaded that the defendant No. 1 had continued in possession and unless and until a relief of possession is claimed the suit would not be competent. The plea raised was that the plaintiffs were required to pay the court fee on Rs. 25 lacs, which was the value fixed for the purposes of jurisdiction. According to the defendants, this would be value for the purposes of court fee also. The further plea taken was that Sardar Wazir Mohd. Khan had another brother namely Mohd. Ashraf Khan and two sisters namely Khursheed Begum and Naseem Begum. Mohd.Ashraf Khan was said to be alive and so far as the sisters are concerned, they have also died leaving behind their legal heirs, defendant No. 2 stated that she was adopted by S.Wazir Mohd.Khan and his widow in the year 1947 when she was 15 days old and this fact is known to all. This defendant took a plea that S.Wazir Mohd.Khan by virtue of a gift deed which was duly registered and duly accepted and acknowledged had gifted away his entire property to his wife namely Niaz Begum. This defendant took a plea that S.Wazir Mohd.Khan by virtue of a gift deed which was duly registered and duly accepted and acknowledged had gifted away his entire property to his wife namely Niaz Begum. The possession was handed over on 5th kartik 1999 Bk, which corresponds to 1942 AD. It was in pursuance of this gift deed, a house located in Ustad Mohalla, Jammu was not the subject matter because it was inhereted by Wazir Mohd.Khan alongwith the plaintiffs and other heirs. it was further pleaded that there was a partition decree. In the written statement filed by Niaz Begum, it was stated that she disposed of major part of the property by various sale deeds and also by gift deeds in favour of various vendees and doness. It was accordingly pleaded that on 2nd Dec 69, Niaz Begum had gifted property measuring 21 kanals 8 marlas located in khasra Nos. 552, 553, 557 min, 906/529 under Khewat No. 66 including a bungalow alongwith outer houses and Shamiat and Kahcharai lands to Memoona Begum, defendant No. 2. This deed was said to have been duly registered with the City Munsiff, Sub Registrar, Srinagar on 23rd Dec 69. The further plea taken was that at the time of death of Niaz Begum, she wass not possessing any property gifted to her in 1942 by S.Wazir Mohd.Khan except 12 kanals of land under khasra No. 119 situated at Barzullar Bagat. It was in this manner pleaded by this defendant that she is in his possession of the said property. As many as 14 issues were framed. The ultimate decision went against the appellants. They have preferred this appeal. 2. As indicated above, 14 issues were framed. The issue No. 1 i.e. "whether the plaintiffs are estopped from filing present suit because they have conceded defendants as the owners of the suit property in some litigation was decided against the defendants as no evidence was led. 3. Issue No. 2 and 3 which were to the effect that as to whether the plaintiffs were supposed to file a suit for possession and that they were supposed to pay court fee on a sum of Rs. 25 lacs was decided in favour of defendants. It was held that the defendants were in possession. The plea that defendants were licencees was held to be a plea which was not sustainable. 25 lacs was decided in favour of defendants. It was held that the defendants were in possession. The plea that defendants were licencees was held to be a plea which was not sustainable. Niaz begum was found to be in possession of the property during her life time and the further findings which stand recorded are that plaintiffs never came in possession. It was accordingly concluded that a suit for possession was required to be filed and this required fixation of full court fee. 4. Issue No. 4 which was based on the plea of limitation was not pressed. Issue No. 5 was with regard to the correctness of the pedigree table. On this, no positive finding was recorded. Issue No. 6 was as to whether S. Wazir Mohd. Khan was survived by his adopted daughter Mehmoona Begum and his widow Niaz Begum. A finding in this regard was recorded in favour of the defendants and in doing so, the succession certificate Ex.MB/4 was taken note of. Issues No. 7, 8 and 9 which were to the effect as to whether plaintiffs are the only legal heirs and what is the effect of gift deed dt. 5th kartik 1999 Bk. and also gift deed said to be executed on 23rd Dec 69, were treated as pevitol issues. Finding recorded on these issues was that when the suit was filed, Sardar Wazir Mohd.Khan had no property in his name except some ancestral property which also stood partitioned in accordance with a decree of the Civil Court. It was observed that the decree had not been acted upon. It was accordingly concluded that by virtue of gift deed dt. 5th kartik 1999 Bk, Niaz Begum had become the owner and the further gift deed made by Niaz begum on 23rd Dec69 conferred the ownership right over the property on her daughter Mehmoona Begum. It was in these circumstances concluded that sardar Wazir Mohd. Khan had no property in his name, and therefore, the question of plaintiffs getting any relief under these issues would not arise. 5. On issue No. 10 which was to the effect as to whether Niaz begum was holding the property as a licencee, a finding was recorded that she was not a licencee. On issue No. 11, it was observed that the plea taken that whole transaction were sham transaction was a plea which was never established. 5. On issue No. 10 which was to the effect as to whether Niaz begum was holding the property as a licencee, a finding was recorded that she was not a licencee. On issue No. 11, it was observed that the plea taken that whole transaction were sham transaction was a plea which was never established. Isuues No. 12, 13 and 14 were not pressed. It was in these circumstances, the suit came to be dismissed. Now, as indicated above, the present appeal has been preferred. In this appeal, it is urged: (i) That Sardar Wazir Mohd.Khan died issueless. It is stated that his widow would have got 1/8th share in the property and the remaining share to the extent of 7/8 th would go to the real brothers of late Sardar Wazir Mohd.Khan. With regard to the findings recorded vis-a-vis issues No. 1 and 2 that a suit for possession should have been filed and full court fee have been fixed. It is urged that so far as house located in Ustad Mohalla, Jammu, is concerned, the plaintiffs were in possession, and therefore, calling upon them to file a suit for possession was not correct. placing reliance on two decisions of Madras High Court reported as AIR 1920 Mad 586 and AIR 1924 Mad 207, it is stated that well settled principle of law that when a person is in possession of some property, then he is not bound to pay court fee on the market value of the property should have been applied; (ii) That the gift deed/Tamliknama was never produced in the court. It is stated that only photostat copy of the same was placed on record. It is on that basis stated no right would flow in favour of the defendant respondent. a photostat copy as per the appellants is not admissible and should not have been relied upon. for recording a finding on that basis, the provisions of Section 68 of the Evidence Act are being adverted to in this behalf. (iii) The fact that there was no registered gift deed has also been pressed. Reliance is being placed on the decisions reported as AIR 1960 Mysore 234 Balappa Tippanna v. Asangappa Mallappa and anr, and AIR 1934 Lahore 282, Kartar Singh v. Didar Singh and Ors. 6. (iii) The fact that there was no registered gift deed has also been pressed. Reliance is being placed on the decisions reported as AIR 1960 Mysore 234 Balappa Tippanna v. Asangappa Mallappa and anr, and AIR 1934 Lahore 282, Kartar Singh v. Didar Singh and Ors. 6. Before going into the questions of fact, it would be apt to examine the judgements which are being relied upon by the appellants. Balappa Tippannas case referred to above is an authority for the proposition that if the execution of a document of gift is specifically denied then an attesting witness must be called to prove it. If, however, such an execution is not specifically denied, then it would not be necessary to call an attesting witness to prove the same. Kartar Singhs case relied upon by the appellants is again an authority for the proposition that Section 68 merely provides a special rule relating to the proof of document was duly exhibited. When the evidence of the respondent defendants was recorded, it was stated that the document was executed in the year 1942. At that point of time, no objection was taken to the document being exhibited. Therefore, the appellants would not be within their rights to raise this objection now. Knowing that if a document comes on the record and if objection is not taken and that this technical objection stands in the way of the appellant and with a view to overcome this, it is urged that even if a document is exhibited, its proof cannot be dispensed with. For this reliance is placed on AIR 1971 SC 1865, Sait Tarajee Khimchand and others v. Yelamarti Satyam and others and a decision of Orissa High Court reported as AIR 1991 Ori 166 Naladhar Mahapatra and Another v. Seva Dibya and Others. The fact that nothing has been said regarding movable property in the shape of furniture, carpets, refrigerator, guns etc. is also being commented upon. 7. The further plea which has been taken is that even if the gift deed is taken into consideration, then this would show that this is not a gift deed; this was executed in lieu of "dowar". According to the counsel, if a gift deed is in lieu of consideration, then, it ceases to be a gift deed. 7. The further plea which has been taken is that even if the gift deed is taken into consideration, then this would show that this is not a gift deed; this was executed in lieu of "dowar". According to the counsel, if a gift deed is in lieu of consideration, then, it ceases to be a gift deed. Reference is made to the decisions reported as AIR 1981 SC 1274, Ku.Sonia Bhatia v. State of U.P. and Others and AIR 1978 J&K 92, Wali Mohammad v. Faquir Mohamad and Ors. 8. The argument which is based on the decision reported as Sait Tarajee khimchand and Ors v. Yelamarti Satyam and others and Naladhar Mahapatra and Anr v. Seva Dibya and Ors., referred to above, would not come to the rescue of the appellants. In the case of Sait Tarajee Khimchand (supra), all that has been observed is that merely marking of a document as an exhibit does not dispense with its proof. In the above case documents were exhibited and were not shown to the defendants at the time when oral evidence was given. They wer e not relevant to the transaction "mortgage transaction". It was in these circumstances observed that these documents cannot be relied upon. Again, in the case of Naladhar Mahapatra,; referred to above, it was observed that once a document is admitted into evidence, without objection, the document cannot be challenged at a subsequent stage but where a document cannot be admitted into evidence due to some prohibition in law, even if the same is admitted into evidence without objection, a finding can be recorded that the document though admitted is legally inadmissible. But in the present case, as indicated above, the documents which were taken into consideration were old registered documents and were held to be valid. The relevant part of document on which much reliance has been placed when rendered in english would read as under:- "...Mst.Niaz Begum, who is my duly wedded wife, She from the very first day of marriage has been very obedient. She has even foresaken her "dower" in my favour, for which act I am very happy with her. I am fully confident that in future also she will remain obedient in the same way. She has even foresaken her "dower" in my favour, for which act I am very happy with her. I am fully confident that in future also she will remain obedient in the same way. For the aforesaid reasons and out of love from the core of my heart, I want to make some arrangement for maintenance of said Niaz Begum." 9. If the above english rendering is taken into consideration, then it would become apparent that the deed in question was executed out of love and affection. It was with a view to project that love and affection was to the extent that the wife had even foresaken the claim for dower. Therefore, the assertion of the appellants that the gift deed was made in lieu of dower cannot be accepted. As indicated above, it was on account of love and affection which had gone to the extent that the wife had even foresaken her right to dower also. Therefore to say that the gift was made on account of some consideration is an argument which cannot be accepted. Such an inference cannot be drawn from the english rendering referred to above. 10. So far as the decision in Sonia Bhatias case referred to above is concerned, the view expressed is that presence of consideration in any form would change the nature of transaction. Wali Mohammads case, which has been relied upon by the appellants, is a decision of Full bench of this court, which lays down that in order to make a gift deed valid under Mohammadan Law, it has to be accepted by the donee. It does not advances the argument which sought to be put across by the appellants. In any case the gift deed is clear. It makes mention of the fact that it is being made on account of love and affection, and therefore, as indicated above, the argument put across by the appellants that the gift deed was in lieu of some consideration cannot be accepted. 11. So far as the issue No. 1 and 2 are concerned, the argument put across by the appellant cannot be accepted. The possession is being claimed in a part of the property said to be located in Ustad Mohalla, Jammu. Nothing has been urged with a view to controvert the finding that the defendants were in possession of the property located at Srinagar. The possession is being claimed in a part of the property said to be located in Ustad Mohalla, Jammu. Nothing has been urged with a view to controvert the finding that the defendants were in possession of the property located at Srinagar. Therefore, the argument urged that as plaintiffs were in possession of some part of property at Ustad Mohalla, Jammu and therefore, they be not called upon to pay court fee cannot be accepted. As a matter of fact, the plea taken by the appellant was that Niaz Begum was a licencee and that she was in possession with the consent of the plaintiffs. This aspect of the matter is not being assailed and nothing has been urged with a view to put across the plaintiffs were in possession of Srinagar property finding on issues No. 1 and 2 is affirmed. The suit in the present form, is therefore, held to be not maintainable. The issues No. 7, 8 and 9 which have relevancy and which were described as pevitol issues by the learned Single Judge, are, infact, pevitol and are required to be dealt with. before doing so, it would be apt to notice these issues. These read as under:- "7. In case issue No. 6 is proved in affirmative whether the plaintiffs are only legal heirs to inherit property of S. Wazir Mohd. Khan and if so to what extent ? OPP. "8. In case issue No. 6 is not proved in affrirmative whether S.Wazir Mohd. Khan ceased to be the owner of the suit property by virtue of gift deed made by him on 5th Kartik 1999-Bk in favour by the deceased Niaz Begum?OPD "9 : Whether defendant is owner in possession of the property at Srinagar particularly by virtue of gift deed executed in her favour by the deceased Niaz Begum on 2.12.1969 and partly she has inherited as the daughter after the death of Niaz Begum ?OPD" 12. On these issues, the finding recorded is that so far as ancestoral property is concerned, the plaintiffs can claim a right in this property but not with regard to the property which was subject matter of gift deed EXP.MB/1. This was executed on 5th kartik 1999-Bk which corresponds to 1942 AD. Now this event took place 40 years before the filing of the suit. This was executed on 5th kartik 1999-Bk which corresponds to 1942 AD. Now this event took place 40 years before the filing of the suit. This deed makes mention of the fact that possession was given to Niaz Begum. The original gift deed was placed on the record. It was found to be an old registered document by which Sardar Wazir mohd.Khan had gifted 20 kanals 20 marlas of land in khasra No. 119, one bungalow alongwith outer houses, land measuring 41 kanals 8 marlas in varous khasra Nos. khewat No. 70 situate at Bagat Barzulla, district Baramulla, a garden measuring 51 kanals in Chhanu Chak, tehsil Jammu, to his wife Niaz Begum. There is a recital that possession was handed over to Niaz Begum. This deed was duly registered, mutation was attested in favour of Niaz Begum.The further fact is that Sardar Wazir Mohd.Khan had executed a power of attorney in favour of Niaz Begum which authorised her to sell the property. The gift deed dated 3rd Dec 69 EXMB-3 executed by Niaz Begum in favour of Mehmoona Begum. This consisted of land measuring 21 kanals 8 marlas, a bungalow with outer houses alongwith Shamlat land and kahcharai situate at Bagat Barzulla and the possession was also delivered to her, This happened in the year 1969. This deed was duly registered on 23rd Dec 69. The rest of the property was sold on the basis of power of attorney executed by Sardar Wazir Mohd.Khan in favour of his wife Niaz Begum. The remaining property except 12 kanals of land was gifted by Niaz Begum to Mehmoona Begum. It was in this premises, a conclusion was arrived at that Niaz Begum became absolute owner 40 years before filing of the suit and she could alienate and gift away the property and in any case, she was authorised to alienate the property also. Therefore, the finding recorded by the learned Single Judge that acts of Niaz Begum by which she conferred further rights on Mehmoona Begum are immune and cannot be challenged and that the suit was liable to be dismissed was properly recorded. We find no merit in this appeal, which is dismissed as such.