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2006 DIGILAW 356 (CHH)

BUGGA BAI v. BAKRID KHAN

2006-07-10

S.K.SINHA

body2006
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J.:- 1. This appeal by the plaintiff is directed against the judgment and decree dated 23.12.1995 passed in Civil Suit No.203-A/1995 by the 7th Addl. District Judge, Raipur. 2. The brief facts are that the plaintiff and defendant are sister and brother. Their father namely Sardar Khan, who died on 25.11.1968, was having certain movable and immovable properties at Raipur and village Seoni. The entire properties were owned by him. According to the plaint allegations, the house bearing Municipal house No. 254 to 257 were the properties situated at Raipur and in village Seoni, there were agricultural lands admeasuring 7 acres. Apart from this, there were also movable properties of their father like ornaments of gold & silver (as specified in the plaintiff). The further allegations are that the houses were under the occupation of the tenants and 50% of the rent was being sent to the plaintiff by the defendant. The cause of action arose when the defendant stopped payment of said portion of rent to the plaintiff. The notices sent by the plaintiff in this regard were also not responded by him. The plaintiff filed the suit for declaration of her title to the extent of 1/3 share, partition and separate possession of suit houses, agricultural lands and movable properties and also for rendition of accounts in relation to the income and earning from tenanted accommodation and agricultural lands and for payment of her share in the said income. 3. The defendant filed his written statement denying the contentions of the plaintiff. About the immovable properties it was specifically pleaded by him vide para 2(a) of the written statement that Sardar Khan gifted his entire immovable properties to him through a written gift deed dated 28.1.1963 and the possession of the same was also handed over to him. Since then he holds the possession of these properties (immovable properties) in his exclusive rights. About movable properties it was pleaded vide para 2(c) that they were also given by oral gift to the defendant by his father and the possession thereof was handed over to him on 28.1.1963. However, he denied about the specifications of the ornaments described in para 2(c) of the plaint. 4. About movable properties it was pleaded vide para 2(c) that they were also given by oral gift to the defendant by his father and the possession thereof was handed over to him on 28.1.1963. However, he denied about the specifications of the ornaments described in para 2(c) of the plaint. 4. The learned trial Court framed various issues in this case and after recording evidence of the parties, dismissed the suit of the plaintiff holding that the plaintiff could not establish that she also succeeded the properties of her father to the extent of 1/3 share in them. It was also held that the father has executed a gift deed dated 28.01.1963 Ex.D-2, in relation to the immovable properties and the possession thereof was also handed over to the defendant which makes the defendant owner of the said properties. It was further held that the father had made an oral gift in relation to the movable properties and the possession thereof was also handed over to the defendant on 28.1.1963. It is against this judgment and decree passed by the trial Court, the plaintiff has filed this first appeal. 5. Learned counsel for the appellant argued that according to para 2(a) of the written statement, the defendant has pleaded that the immovable properties were transferred to him through a gift deed dated 28.1.1963 (Ex. D.2), but this document is not registered, therefore, it cannot be held to be a document of valid transfer. He also argued that vide para 2( c) of the written statement though there are averments about an oral gift, but that gift was also not complete because the defendant himself pleaded that the possession of ornaments etc., were handed over to him on 28.1.1963 which was a subsequent date to the date of oral gift, therefore the defendant could not establish his ownership and possession of the suit properties on the basis of written gift or oral gift as has been pleaded by him. He further submitted that even otherwise also, by evidence, neither the oral gift nor the written document has been proved. 6. He further submitted that even otherwise also, by evidence, neither the oral gift nor the written document has been proved. 6. On the other hand, learned counsel for the respondent argued that though in the document dated 28.1.1963 EX.D.2 it has been written as gift deed, but in fact, this document was a memorandum of the oral gift made by Sardar Khan and it was not compulsorily registrable U/S 17 of the Registration Act. He further submitted that if the entire contents of para 2 of the written statement are read together, that would make it clear that in fact, Sardar Khan made an oral gift in favour of the defendant prior to 28.1.1963 and this document dated 28.1.1963 (Ex.D.2) was a mere memorandum of event what had earlier taken place and in this manner, the defendant becomes the absolute owner of the properties of Sardar Khan. 7. I have heard learned counsel for the parties and have also perused the records of the trial Court. 8. B.R. Verma s Mohmmadan Law (in India and Pakistan) Fifth Edition 1978, Chapter XIV; Pg. 474 deals with the formalities of gift in Muslims. It has been mentioned in section 208 as follows: "208. Gift how made - (1) A gift may be made- (a) by a declaration made orally or in writing of the gift by the donor or his agent; (b) by the acceptance of the gift expressly or; impliedly by or on behalf of the donee; except in the case of a gift of a debt to the debtor or by a guardian to his ward; and (c) by the delivery of possession of the subject of the gift to the donee in the manner required by Sees. 209 and 210. (2) A gift shall take effect from the date on which possession is delivered. " 9. In the matter of Nasib Ali Vs. Waled Ali, it has been laid down that the essentials of a gift under the Mahomedan Law are a declaration of heba 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. 10. In Makku Rawther’s Children: Assan Ravther and others Vs. A simple gift can only be made by going through the above formalities and no written instrument is required. 10. In Makku Rawther’s Children: Assan Ravther and others Vs. Manahapara Charayil, it was again held that the essentials of a valid gift are (1) a declaration of gift by donor, (2) an acceptance of the gift express 01 implied, by or on, behalf of the donee; (3) delivery of possession of the subject of the gift by the donor to the donee to the extent the interest conveyed is susceptible of. It further dealt with the point of registration and It was held by the said Court that a deed of gift executed by a Muslim recording a gift made according to the three conditions laid down by the Muslim Law is merely evidence of a completed gift and as such is not compulsorily registrable and is admissible in evidence notwithstanding Sections 17 and 49 of the Registration Act 1908. 11. In Tek Bahadur Bhujil Vs. Debi Singh Bhujil and others while dealing the requirement of registration with reference to the family arrangement, the Supreme Court held that the family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties is be founded. It is generally prepared as a record of what had been agreed Upon, in order that there are no hazy notions about it in future. It is only when the family arrangement is reduced in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document requires registration, because it is then that it would amount to a document of title declaring for future what rights and in what properties the parties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration under section 17 of the Registration Act. 12. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration under section 17 of the Registration Act. 12. So the law in relation to Mohmadan gift is well settled that a Mohmodan can gift his properties by a declaration made orally or in writing and there must be acceptance of the gift expressly or impliedly by or on behalf of donee and delivery of the possession of the subject matter of the gift to the donee which shall take effect from the date on which the possession is delivered. It is also well settled that if the gift itself is being made through a written deed, then only it requires registration U/S 17 of the Registration Act, but if the deed is not an instruction of transfer, but is simply a document or memorandum of what has earlier taken place, it does not require registration as per section 17 because it is not an instrument in itself transferring the title of the donor to the donee as required u/s 17(a) of the said Act. 13. To resolve the controversy between the parties, first of all, it has to be examined as to what is the true nature of the document, EX.D-2 and whether it required registration? What is the nature and character of a document has to be necessarily determined on the particular facts and circumstances of the document. It is settled principle that the title given to the document may not be conclusive of Its true nature in all times. It may not be even a material consideration for determining its nature. We have come across many cases in which if the layman or unskilled scribe execute will they usually write at the top as "Ekramama" or "Ghoshana Patra" or "S mad" etc., etc., What is relevant for deciding the nature and character are various recitals, Its terms and conditions because after all it is the intention of the author that is decisive and this intention has to be gathered from the recitals of the document only. It is not the form given to the recitals but the substance thereof that must be material. It is not the form given to the recitals but the substance thereof that must be material. If certain terms and conditions are also there in a document, what exactly the character of the same has also to be determined giving proper respect to the said terms and conditions. A cardinal principle is that it is not anyone single circumstance or a recital but the cumulative effect of all the recitals that must be seen which would be deceive of the character of the document, that is to say that the document shall be read as a whole and then only its character has to be ascertained. 14. If we examine the Document Ex.D-2, it would appear that a heading as "Bhakshish Nama" has been written at the top of the document and after the description of the immovable properties at Raipur and village Seoni, there are following recitals in reference to these properties :- ^^eSa bl leLr laifÙk dks bl rgjhj ds tfj;s vius iq= cdfjn [kka oYn ljnkj [kka dks c[k”kh”k dj nsrk gw¡ fd Hkfo’; esa fdlh izdkj dh vM+pu u jgsA blds iwoZ Hkh eSa tckuh c[k”kh”k dj pqdk gw¡ fdarq vkt fyf[kr rgjhj ds tfj;s ;g c[k”kh”kukek cdfjn [kka ds gd esa iwjh rUnq:Lrxh vkSj gks”k gok”k ds lkFk jkth [kq”kh ls xokgksa ds lkeus fy[kkdj nLr[kr dj fn;k -------------** A collective reading of these recitals and the cumulative effect of them make it clear that this document is not an instrument of transfer by gift but it is the document of confirmation of oral gift said to have been made by Sardar Khan in favour of the defendant in relation to properties (house and agricultural land) described in it. Since this document is a memorandum of what has earlier taken place and is not the instrument of transfer of title by itself, this court is of the opinion that this document was not required to be registered u/s 17 of the Registration Act 1908. The arguments advanced by learned counsel for the appellant that the document EX.D.2 was required to be registered, as it was a document of transfer, cannot be accepted. 15. The arguments advanced by learned counsel for the appellant that the document EX.D.2 was required to be registered, as it was a document of transfer, cannot be accepted. 15. The next point raised is about the pleadings of para 2(c) of the written statement in which the defendant pleaded that the movable properties were also gifted to him by an oral gift and the possession thereof was also handed over to him on 28.1.1963. The submission is that when the possession is said to have been given on 28.1.1963, then the said oral gift allegedly made prior to 28.1.1963 was not complete because the declaration in relation to gift of the aforesaid properties was admittedly not followed by delivery of possession forthwith to the donee and it cannot be held that the defendant no.1 became the owner of the movable properties as well. So far as the legal position about the delivery of possession is concerned, no doubt it is an essential ingredient for validity of the gift, but it is not necessary that in every case there should be a physical delivery of possession. Possession, the delivery of which would complete a gift, may be either actual or constructive. All that is necessary is that the donor should divest himself completely of all ownership and dominion over the subject of the gift. The relinquishment of control is thus necessary to complete the gift. The delivery of possession can be made in such a manner as the subject matter of the gift is susceptible of. The gift is complete not on the date of declaration and acceptance, but only on the date on which possession is delivered. As stated above, there are three ingredients of a valid Muslim gift namely declaration made orally or in writing, acceptance expressly or impliedly and delivery of possession, except which, nothing is required. This nowhere prohibits that a delivery of possession cannot be made afterwards. The principle is that the gift shall be complete not on the date of declaration and acceptance but only on the date on which the possession is delivered. This makes it clear that there can be a delivery of possession subsequent to the date of declaration by the donor and acceptance by the donee and a forthwith delivery of possession is not a requirement of law. This makes it clear that there can be a delivery of possession subsequent to the date of declaration by the donor and acceptance by the donee and a forthwith delivery of possession is not a requirement of law. In the opinion of this Court, all that is necessary is that there must be the delivery of possession in nexus to the declaration and acceptance by the donee and the gift shall be held to be complete after such delivery of possession only which may be subsequent to the declaration and acceptance and if there is some delay in delivery of possession of the I subject matter, this only will not vitiate the gift, if the other circumstances, are proved accordingly. The contention of learned counsel for the appellant that since admittedly the possession of property was delivered subsequent to the oral gift made by the father, according to the pleadings of the defendant the same should be held to be invalid, cannot be accepted. 16. Lastly the question comes about proof of the gift by the defendant. For proving the factum of gift, the defendant nas examined himself and has also examined his witness namely T.R. Kela (D.W.2), The defendant, who has been examined as D.W.1, has stated that his father has gifted the movable and immovable properties firstly by oral gift and thereafter a document in the form of Ex.D.2 was also executed by him. He has stated vide Para 14 of his evidence that this EX.D.2 was written in his presence. However, in the cross examination vide para 15, he admitted that he was not present at the time of writing of this document and his father himself had got it written and thereafter he had called him and had told about the same. He also stated that portion "D to D" of EX.D-2 regarding oral' gift was also mentioned in the said document and this event had taken place 4 to 6 months prior to the date of execution of the document. He has identified the signature of his father on the said document on portion "A to A". About the delivery of possession, he has stated that he and his father were jointly residing in a house in Raipur and were jointly holding the physical possession of the suit houses and he was in cultivating possession of the agricultural land also which was in village Seoni. About the delivery of possession, he has stated that he and his father were jointly residing in a house in Raipur and were jointly holding the physical possession of the suit houses and he was in cultivating possession of the agricultural land also which was in village Seoni. He has further stated about the mutation of his name on the suit properties and has added that he is paying the regular rent of the houses to the Municipal Corporation, the receipts of which have been filed by him. So far as EX.D-2 is concerned, it bears the thumb impression of one Chunnau Ram and it also bears the signatures of 5 other witnesses including the signature of the typist namely Nishar Ahmad. Among these persons, P.W.2 namely T.R. Kela has been examined by the defendant. This witness has stated vide para. 2 of his evidence that this document EX.D-2 was handed over to them by the executant Sardar Khan and after reading over the same, firstly it was signed by Sardar Khan in his presence and thereafter, it was signed by 4 to 5 persons including he himself. He proves his signature at portion E to E on the said document and has also proved the signature' of Sardar Khan at place ''A to A ". He stated that movable and immovable properties were gifted by Sardar Khan to his son namely Bakrid Khan. He has been cross-examined by the other side to demonstrate that he was III close touch with the family of Sardar Khan. Nothing adverse has been brought on record against him. It has been tried to be brought on record that since the defendant and this witness both were employees in revenue department and were closely in touch with each other, therefore, his evidence may be doubted. This does not appear to be a good contention. It is a case of execution of a document pertaining to the gift by the father to the son, in which, it is a normal circumstance if the closely intimated persons of donor and donee are called by them and the execution takes place. In discharging such obligations, naturally the close intimates are called and on the ground of close intimacy with the family of the deceased and the defendant, the testimony of this witness cannot be doubted. 17. In discharging such obligations, naturally the close intimates are called and on the ground of close intimacy with the family of the deceased and the defendant, the testimony of this witness cannot be doubted. 17. The trial Court has rightly held that the execution of the document has been proved by this witness and there appears to be no infirmity in the same. If we go through the contents of the document and also the contents of the evidence given by the defendant and his witness; it would appear that the father has gifted the property orally to his son prior to the date of execution of this document that is prior to 28.1.1963 and the defendant has accepted the movable and immovable properties by the oral gift and a memorandum of the same was recorded on 28.1.1963. The possession of immovable properties was given earlier and the delivery of movable properties was given on this date. And in this manner, the donor divested himself from the possession of the property concerned and the property vested with the son, who in fact was residing with his father in joint possession of the said properties and later on, whose name was also mutated in the Corporation records and revenue records. The gift, according to the requirement of Muslim Law i.e., declaration by father orally, acceptance by son expressly or impliedly and thereafter delivery of possession of the property according to its susceptibility and dominion over the property by the donee together with the execution of memorandum thereof has been proved by the defendant and it cannot be said that neither the oral gift nor the written document has been proved in this case. The third contention raised by counsel for the appellant can also not be accepted. 18. In the result, the appeal fails and the same is dismissed. The judgment and decree passed by the trial Court are hereby confirmed. 19. No order as to costs. Appeal Dismissed.