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Madhya Pradesh High Court · body

2012 DIGILAW 873 (MP)

Mohd. Iqbal Khan v. Late Manzoor Ahmad Khan

2012-09-07

ALOK ARADHE

body2012
JUDGMENT 1. This appeal has been preferred by the defendant, who has lost in both the Courts. This Court vide order dated 30.6.2000 had admitted the appeal on following substantial question of law : “(1) Whether the Court below was right in holding that Ex.D-1, Hiba-bil-iwaz would require registration even though the Transfer of Property Act did not apply to the transactions made in accordance with the principles of Mohamedan Law? (2) Whether the Court below should have considered that apart from the execution of document of gift, there was oral evidence on record for fulfilling the conditions of a gift in the eyes of law prevalent among Muslims?” 2. Facts leading to filing of the appeal in nutshell are that the respondent-plaintiff filed a suit for partition. Admittedly, the plaintiff and defendant are related to each other as real brothers and one Haliman Bi was their mother. It is also not in dispute that father of the parties to the suit was the owner of the suit house, which was recorded in the name of their mother namely Haliman Bi, after the death of their father. It is the case of the plaintiff that plaintiff and defendant have equal share in the suit house. It is pleaded in the plaint that in the portion of the suit house marked in the plaint map, the plaintiff is in possession. However, no partition has taken place between the parties. The plaintiff demanded partition of the suit house, however, the defendant did not pay any heed to the demand made by the plaintiff. Thereupon, the suit for partition was filed. The defendant filed the written statement in which inter alia it was denied that plaintiff and defendant are owners of half share in the suit house. In fact, the suit house belongs to Kasimullah Khan and Abida Bi, i.e., wife of defendant. It was further pleaded that plaintiff has sold a portion of the suit house vide registered sale-deed dated 24.6.1982 for a consideration of Rs.1,000/-. It was also pleaded that Haliman Bi had partitioned the suit house during her lifetime and the plaintiff is in possession of the portion which was allotted to him in partition. 3. The trial Court vide judgment and decree dated 22.10.1992 decreed the suit filed by the plaintiff. It was also pleaded that Haliman Bi had partitioned the suit house during her lifetime and the plaintiff is in possession of the portion which was allotted to him in partition. 3. The trial Court vide judgment and decree dated 22.10.1992 decreed the suit filed by the plaintiff. The trial Court inter alia held that in the absence of pleading by the defendant that vide Ex.D-1, dated 26.8.1976, Haliman Bi had partitioned the suit house amongst the plaintiff, defendant’s wife Abida Bi and Kasimullah Khan, the evidence in this regard cannot be looked into. The trial Court further held that Ex.D-1 has been described as gift-deed whereas, Hazarilal, who is scribe to the document in question states that on execution of Ex.D-1, the partition had taken place amongst the parties to the deed. The defendant in para 3 of his statement has admitted that document (Ex.D-1) does not contain the signature of plaintiff and defendant No.1. For the aforementioned reasons, the trial Court concluded that defendant has failed to prove that the house in question was subjected to partition vide Ex.D-1 and that the plaintiff and defendant are entitled to half share each in the suit house. Accordingly, the suit was decreed. The lower appellate Court inter alia held that there is no mention of partition in Ex.D-1. It was further held that Ex.D-1 has been executed for consideration as Haliman Bi had to pay a sum of Rs.3,000/- to Kasimullah. Therefore, he was allotted the share in the suit house vide Ex.D-1. It was further held that since Ex.D-1 has been executed for consideration, therefore, the same requires registration. The appellate Court also held that Ex.D-1 cannot be treated as Will, as the Will becomes effective after the death of the executant. In the result, the appeal preferred by the appellant was dismissed. 4. Learned counsel for the appellant submitted that plaintiff has admitted in his statement that he is in possession of the portion of the suit house marked in the plaint map. The statement of the plaintiff itself shows that partition was effected amongst the parties to Ex.D-1. It was further submitted that Haliman Bi had the authority to allot the share to Kasimullah. It was further submitted that document (Ex.D-1) does not require registration and in the state of evidence on record, the essentials of a valid gift were fulfilled. The statement of the plaintiff itself shows that partition was effected amongst the parties to Ex.D-1. It was further submitted that Haliman Bi had the authority to allot the share to Kasimullah. It was further submitted that document (Ex.D-1) does not require registration and in the state of evidence on record, the essentials of a valid gift were fulfilled. Therefore, the Courts below grossly erred in discarding the document namely Ex.D-1. 5. I have considered the submissions made by learned senior counsel for the appellant and have perused the record. From careful scrutiny of the written statement filed by the defendant, it is apparent that there is no pleading by the defendant to the effect that vide Ex.D-1 dated 26.8.1976 Haliman Bi had partitioned the suit house amongst plaintiff, defendant’s wife, Kasimullah and herself and, therefore, the evidence in this regard cannot be looked into. However, since the substantial question of law have been framed in this regard, it is apposite to notice the legal position with regard to gift under the Mahomedan Law. The essentials of a gift under the Mahomedan Law are a declaration of Hiba by the donor, an acceptance express or implied of the gift by the donee and delivery of possession of the property, which is the subject-matter of the gift according to its nature. See Mohamad Abdul Ghani v. Fakhr Jahan Begum [AIR 1922 Privy Council 281], Mahboob Sahab v. Syed Ismail and others [ AIR 1995 SC 1205 ], and Gulamhussain Kutubuddin Maner v. Abdulrashid Abdulrajak Maner and others [2000(1) MPLJ 198 (SC)]. It is equally well settled legal position under the Mahomedan Law that there could be a gift of immovable property without there being a registered document. See Noorul Haque v. Riyazul Haque [AIR 1963 MP 277]. Hiba-bil-iwaz as distinguished from a hiba or simple gift, is a gift for consideration. It is in reality a sale where the property is immovable and is of a value of Rs.100/- upwards, it must be effected by a registered instrument, as required by section 54 of the Transfer of Property Act. See : Zainab Bi v. Jamalkhan [ILR 1949 Nag.426], Gulam Abbas v. Razia Begum [(1950) All. LJ 30 and in AIR 1927 PC 174]. Similar view has been taken by this Court in the case of Iftikhar Jahan Begum v. Hadeeqa Begum [1977 MPLJ SN 57]. See : Zainab Bi v. Jamalkhan [ILR 1949 Nag.426], Gulam Abbas v. Razia Begum [(1950) All. LJ 30 and in AIR 1927 PC 174]. Similar view has been taken by this Court in the case of Iftikhar Jahan Begum v. Hadeeqa Begum [1977 MPLJ SN 57]. It is equally well settled legal proposition that in order to ascertain the nature of a document, intention of the parties has to be seen and the document has to be read as a whole. 6. In the backdrop of aforesaid well settled legal position, if the document (Ex.D-1) is seen, it is apparent that one portion of the house in question has been given to Kasimullah in lieu of loan of Rs.3,000/-, which was to be paid by Haliman Bi to aforesaid Kasimullah. The document is titled as ‘gift’. Aforesaid Kasimullah has been allotted share in the property for a consideration, therefore, the document (Ex.D-1) is not gift in question simplicitor but is a gift for consideration. The transaction of the character contained in Ex.D-1 is nothing but a sale and, therefore, requires registration. Admittedly, Ex.D-1 is not registered. As stated supra, there is no specific pleading in the written statement that vide Ex.D-1, the partition took place amongst the plaintiff, defendant’s wife Hamida Bi and Kasimullah. For this reason also, the evidence adduced by the defendant that vide Ex.D-1, the suit house was subjected to partition cannot be looked into. 7. For the aforementioned reasons, the first substantial question of law framed by this Court is answered in the affirmative and against the appellant. Though, there is evidence on record to show that contents of the gift in the eyes of law prevalent amongst Muslims are fulfilled, but since the gift in question is not a gift simplicitor, but is a gift for consideration of sale, the second substantial question of law framed by this Court has no impact on the result of the case. Accordingly, the same is answered. In the result, the appeal fails and is hereby dismissed with costs.