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Andhra High Court · body

2010 DIGILAW 805 (AP)

Ameena Bee v. Ahmedunnisa Begum

2010-08-25

L.NARASIMHA REDDY

body2010
JUDGMENT : The 1st respondent filed O.S.No.42 of 2003 in the Court of I Additional District Judge, West Godavari, against the petitioners and respondents 2 to 5 for the relief of declaration that she is the owner and possessor of the suit schedule properties and for the relief for perpetual injunction. Decree was also sought for a sum of Rs.10,00,000/-towards the cost of timber said to have been removed from the premises and a sum of Rs.5,00,000/- towards damages. She based her claim on the plea that her mother was married to the original owner of the property by name Moosa Hajee Abdullah and after his death, her mother succeed to the property. The mother in turn is said to have executed a will in favour of the 1st respondent. The petitioners herein resisted the suit by asserting title in themselves. They placed reliance upon the transactions of gift. The trial of the suit commenced. The evidence on behalf of the 1st respondent was concluded. In the course of their evidence, the petitioners filed I.A.No.265 of 2008 with a prayer to receive three documents in evidence viz., a written declaration said to have been made by late Moosa Hajee Abdullah on 25.04.1955 and two other declarations of similar nature dated 09.12.1955. The plea of the petitioners was that the three documents are not deeds of gift by themselves but are the notes or declarations in respect of the oral gifts made anterior in point of time. The 1st respondent opposed the I.A. Through is order, dated 18.03.2008, the trial Court dismissed the I.A. and refused to take the documents in evidence. The same is challenged in this revision. Learned counsel for the petitioners submits that at more places than one in the documents, it was mentioned that the petitioners became entitled for the property much earlier thereto and thereby, the documents have to be understood as mere references to earlier transactions. He submits that the trial Court committed error in treating the documents as gift deeds by themselves. Learned counsel for the 1st respondent on the other hand submits that there are unequivocal recitals in the documents to the effect that the gifts are being made through them and there is nothing to indicate that any oral gift was made earlier thereto. He submits that the documents, which are not registered nor properly stamped, cannot be received in evidence. He submits that the documents, which are not registered nor properly stamped, cannot be received in evidence. He places reliance upon certain decided cases. The plea of the petitioners in their written statement was that an oral gift was made by Moosa Hajee Abdullah in their favour in respect of the schedule property. In their attempt to prove the oral gift, they intended to rely upon three documents referred to above. According to them, the oral gift made earlier, was referred to in the first document and after cancellation of the oral gift on account of certain reasons, he made an oral gift for the second time and that in turn is evidenced through two subsequent documents. It is settled principle of law that a person who propagates Islam is entitled to make oral gift and provisions of Section 123 of the Transfer of property Act do not apply to the same. The gift becomes valid not only when the document is not registered, but also without there being any written document at all. Where however, the person professing Islam chooses to make a gift through a written document, it must conform to law and accord with Section 123 of the Transfer of Property Act and other relevant provisions of law. If the document by itself does not bring about the transaction of gift, but makes reference to an earlier transaction, which has taken place, registration is not necessary. Controversy in this case would turn around the fact whether the documents in question by themselves bring about the transaction of a gift or they have evidenced an earlier oral gift made by the donor. A perusal of the documents clearly discloses that the donor wanted to transfer the property by way of gift through those documents themselves. For instance, in the first document, one of the recitals read as: “I have executed a Registered General Power of Attroney on 21-8-1954 at ZEERUST in your favour for taking possession of all my properties including the properties gifted to you now and mentioned hereunder and to manage the same”. In the two subsequent documents, the recitals read as: “I hereby make this unequivocal and irrevocable declaration of gift by me of the properties mentioned hereunder “. These recitals are sufficient to indicate that the gifts are being made through them. In the two subsequent documents, the recitals read as: “I hereby make this unequivocal and irrevocable declaration of gift by me of the properties mentioned hereunder “. These recitals are sufficient to indicate that the gifts are being made through them. Therefore, no exception can be taken to the view expressed by the trial Court as to the admissibility of the documents. Learned counsel for the petitioners submits that even if the documents are inadmissible in evidence, they can be received for collateral purpose. Opposing this plea, learned counsel for the 1st respondent submits that having regard to the scope of the suit, there cannot be any collateral purpose, even with regard to possession. He places reliance upon a judgment of the Hon’ble Supreme Court in K.B.Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd. 2008(6) ALD 92 (SC) In this regard, it needs to be observed that by and large, collateral purpose is the one, which is totally unrelated to the transaction, that is purported to be under the document. For instance, if the document in question is in relation to lease, no purpose can be treated as collateral, as long as it pertains to the transaction of lease itself. Therefore, if the petitioners intend to rely upon those documents, for any purpose, other than the one of gift, there is no reason why the documents cannot be looked into. Therefore, the civil revision petition is dismissed, however by observing that it shall be open to the petitioners to rely upon the documents for collateral purpose. The question as to whether the purpose pleaded by the petitioners can be treated as collateral is left open to be decided at the relevant point of time. However, the documents can be received even for collateral purposes, only on payment of the requisite stamp duty. There shall be no order as to costs.