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2007 DIGILAW 1642 (BOM)

Khurshid Bano wd/o Mohd. Ayub v. Mohd. Afsar s/o Mohd. Samsher

2007-11-27

C.L.PANGARKAR

body2007
ORAL JUDGMENT: 1. This Second appeal is at the instance of the original plaintiffs. 2. A few facts may be narrated thus - The plaintiffs are the heirs of one Mohd.Ayub s/o Pyar Mohammad. Mohd.Ayub owned the property described in the plaint namely Plot No.171/1 on Nazul Sheet No.21/C at Shegaon. The said plot was purchased by Mohd.Ayub in the year 1951 by registered sale-deed. There was a small structure in a dilapidated condition on the said plot. Mohd.Ayub was for some time running a floor mill in the said house. Later he shifted to Bombay and stopped running the said floor mill. He died in the year 1965. The plaintiffs, who are the heirs of Mohd.Ayub also shifted to Bombay along with him. Defendant no.7 is also one of the heirs of deceased Mohd.Ayub. Each of the plaintiffs and defendant no.7 has 1/7th share in the suit property. Deceased Mohd.Ayub had a real brother by name Mohd.Samsher. He was, however, residing at Shegaon only. Mohd.Ayub had allowed said Mohd.Samsher and defendant no.7 to use the said property. Mohd.Samsher, however, had no right, title or interest in the said property. It is alleged that defendants no.1 to 6 started showing antagonistic attitude. Hence, the plaintiffs served notice upon them calling upon them to handover the possession. Notice was also served to defendant no.7 to partition the said property. She acceded to the request of the plaintiffs. Defendants no.1 to 6, however, failed to vacate the premises. Hence, the plaintiffs instituted a suit for possession. 3. Defendants no.1 to 6 resisted the suit. They admit the relationship between the parties. They, however, deny that the said property was purchased by Mohd.Ayub and that he was the owner thereof. They also deny that he was running a floor mill there. They also deny that they are occupying the premises as licensees of Mohd.Ayub. It is their contention that Mohd.Ayub had come to Shegaon when his father Pyar Mohd. died. At that time he relinquished his right in the property in favour of defendants no.1 to 6. As a result, it is the contention of the defendants that the suit of the plaintiff is not maintenable. 4. The learned judge of the trial court, after recording the evidence found that the defendants no.1 to 6 were the licensees. died. At that time he relinquished his right in the property in favour of defendants no.1 to 6. As a result, it is the contention of the defendants that the suit of the plaintiff is not maintenable. 4. The learned judge of the trial court, after recording the evidence found that the defendants no.1 to 6 were the licensees. Plaintiffs had 5/6th share in the property and defendants had failed to prove the surrender of interest by Mohd.Ayub in their favour. He, holding so, decreed the suit. 5. The defendants preferred an appeal before the District Judge. The Additional District Judge, who dealt with the appeal set aside the judgment and decree passed by the trial court and held that there was surrender of interest by Mohd.Ayub in favour of the defendant. Holding so, he allowed the appeal and dismissed the suit. It is because of the dismissal of the suit, the plaintiffs have preferred this second appeal. 6. The appeal was admitted by this court on the following substantial question of law. Whether there can be oral relinquishment or voluntary surrender of interest in immovabele property of the value of more than Rs.100/- in view of the Transfer of Property Act ?.. 7. I have heard Mr.B.S.Deshpande, Advocate for the appellants and Mr.A.V.Bhide, Advocate for the respondents. 8. It is not disputed that the suit property is an immovable property. It cannot be disputed that a surrender or relinquishment of right in immovable property is a transfer of property if it is made in favour of a person having no interest in it. Any transfer of immovable property worth more than Rs.100/- requires registration. A relinquishment of share in the joint family property of Hindu may not require registration whenever such surrender is effected at the time of partition, since it is a transfer of interest in favour of person having an interest in it. This perhaps is the only exception where a registration of relinquishment or surrender will not be required. In all other cases, registration would be required for it involves transfer of interest in immovable property in favour of a person having no interest in it. 9. It appears that both the courts below have totally ignored this aspect. They have not dealt with this aspect at all. In all other cases, registration would be required for it involves transfer of interest in immovable property in favour of a person having no interest in it. 9. It appears that both the courts below have totally ignored this aspect. They have not dealt with this aspect at all. Shri Deshpande, learned counsel, submitted that in the instant case the property is admittedly an immovable property and defendants plead a case of surrender of right in the property in favour of their father Sameher, who is brother of Ayub. Defendants' case is based on oral surrender. When defendants plead a case of surrender, it has to be said that they admit that the person surrendering the interest in the property was the owner thereof. It may be further mentioned that the plaintiffs have come out with a case that the property was purchased by Mohd.Ayub in 1951 and he was running a floor Mill there. The defendants merely deny that Mohd.Ayub has purchased the suit property. They do not, however, make a clean breast in a written statement as to how Mohd.Ayub had acquired the title. Strangely enough, during the course of the evidence it is tried to be shown that Pyar Mohd. - father of Mohd.Ayub and Samsher was the owner of the property and Mohd.Ayub and Samsher inherited it and Mohd.Ayub surrendered. But then this case is not pleaded. The Appellate Court, however, relies on this evidence and proceeds on the assumption that Pyar Mohd. was the owner and on his death Mohd.Ayub became owner and he surrendered his interest. In the absence of the pleading to that effect that theory could not have been accepted. On the other hand, it could have been held that since theory of surrender was putforth by the defendants and they did not set up title in themselves or in Pyar Mohd. in written statement, then Mohd.Ayub was the owner. That is the only thing that could be deduced. Although certified copy of the sale-deed in favour of Ayub is placed on record it is not proved but then record of right entry (Exh.42) shows that the property was purchased by Mohd.Ayub on 19/5/1951 and was mutated in his name. in written statement, then Mohd.Ayub was the owner. That is the only thing that could be deduced. Although certified copy of the sale-deed in favour of Ayub is placed on record it is not proved but then record of right entry (Exh.42) shows that the property was purchased by Mohd.Ayub on 19/5/1951 and was mutated in his name. This document along with the statement of PW 1 was, in fact, enough to hold that it was Mohd.Ayub who was the owner of the property and that he purchased it although the sale-deed may not have been proved. 10. Since the theory of the property being owned by Pyar Mohd. has to be negatived, it must follow that defendants did not and could not have any interest in the property at all. They do not plead a case of succeeding to the estate of Pyar Mohd. Hence, they do not admittedly have any existing interest at all in the suit property. The evidence shows that Mohd.Ayub was the exclusive owner of the suit property and defendants did not have interest in it. Hence, even if there was any oral surrender as alleged, it was totally void. There could be surrender in favour of person having no interest only by registered instrument if the property was worth exceeding Rs.100/- in value. The surrender, if any, in the instant case was therefore invalid. 11. Even otherwise I find that the learned judge of the trial court was right in holding that the evidence with regard to surrender was not reliable. The cross-examination of DW 1 Abdul Sattar would clearly suggest that theory of surrender is patently false. He states in cross-examination that his father Samsher opened the topic with Mohd.Ayub with respect of the property of Pyar Mohd. and questioned him as to what should be done with that property. He also states that Mohd.Ayub said that his brother will look after the property and enjoy it. As stated earlier, there is no pleading that property belonged to Pyar Mohd. For want of pleading such evidence becomes inadmissible. It is his evidence that there were 100 persons present at the time of alleged statement made by Mohd.Ayub and about 5 to 6 persons out of them are still alive but none of them is examined by defendants at all. For want of pleading such evidence becomes inadmissible. It is his evidence that there were 100 persons present at the time of alleged statement made by Mohd.Ayub and about 5 to 6 persons out of them are still alive but none of them is examined by defendants at all. The best evidence was in the form of these persons who were independent witnesses and who could have thrown light on the talk between Mohd.Ayub and Samsher. The defendants have examined PW 2 who could be said to be an independent witness but his evidence appears to be hearsay for he clearly states that he learns that Mohd.Ayub had said that his brother would enjoy the property. This evidence is inadmissible. The trial judge, therefore, rightly rejected the evidence about the surrender. In view of this, I find that there is no evidence whatsoever of surrender and if at all there is one, the said surrender is invalid being oral. In view of the finding that there was no surrender and if at all there was one it was invalid, the appeal must succeed. The appeal is allowed. The judgment and decree of the first appellate court is set aside and that of the trial court restored. Costs throughout.