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2015 DIGILAW 205 (GAU)

Imtiaz Rasul v. Ataur Rasul

2015-02-19

NISHITENDU CHAUDHURY

body2015
JUDGMENT : Nishitendu Chaudhury, J. 1. This Second Appeal is directed against the concurrent findings of two Courts below. The plaintiff suit was decreed by the learned trial court holding that there was no gift in terms of the Provision of Mohammedan Law and the same was upheld by the defendant. The sole respondent, late Ataur Rasul, as plaintiff instituted Title Suit No. 258 of 1998 in the Court of learned Civil Judge (Senior Division) No. 1, Kamrup, at Guwahati, seeking declaration of his right, title, interest and for permanent injunction. The plaintiff stated that he and the defendant are Sunni Muslims by faith and that defendant is his brother. The plaintiff was the absolute owner of the plot of land measuring 11 lechas particularly described in schedule to the plaint. In the year 1975 the defendant being his younger brother had influenced him to execute a registered gift deed being No. 10047 dated 17.11.1975 in favour of the defendant. Although he executed the gift deed and got it registered but did not hand over, possession of the same. Thereafter, on or about 03.08.1998 the defendant approached the plaintiff and demanded possession of the property on the basis of the aforesaid gift deed to which the plaintiff declined. Consequently, the defendants started harassing the plaintiff. Because of such harassment consequent to refusal of the plaintiff to hand over possession to the defendant, the plaintiff was compelled to institute the suit praying for declaration that notwithstanding execution of registered gift deed dated 17.11.1975, right, title and interest of the property remained with him. The defendant did not acquire any right, title and interest to the suit property and/or injunction restraining the defendant and his her is, legal representatives, men or servants, employees, agent, attorneys and/or other person from alienating, selling, transferring, leasing and/or changing the nature and character of the suit property mentioned in the registered gift deed. 2. The defendant appeared and submitted written statement denying averments made in the plaint and stated that he was given possession with respect to the property and that story of his approaching the plaintiff on 03.09.1998 is not correct. He, therefore, claimed that the suit be dismissed with cost of Rs. 5,000/-. On the basis of such rival contention of the parties, the learned trial court framed as many as 6 (six) issues and the same are quoted below: 1. He, therefore, claimed that the suit be dismissed with cost of Rs. 5,000/-. On the basis of such rival contention of the parties, the learned trial court framed as many as 6 (six) issues and the same are quoted below: 1. Whether the suit is maintainable in the present form? 2. Whether there is cause of action for the suit? 3. Whether the suit is barred by limitation? 4. Whether the suit is bad for waiver, estoppels and acquiescence? 5. Whether gift deed No. 10047 dated 17.11.1975 is liable to be cancelled and the same is inoperative, null and void and ab-initio? 6. What relief the parties are entitled to? 3. The plaintiff examined two witnesses including himself and exhibited some documents. The defendant also examined himself and exhibited some documents like jamabandi. 4. Upon perusal of the evidence brought on record and after hearing the learned counsel for the parties, the learned trial court by his judgment and decree dated 24.12.2001 decreed the suit in entirety and restrained the defendant from challenging the nature and character of the suit property mentioned in the aforesaid gift deed. Aggrieved, the defendant preferred Title Appeal No. 7 of 2002. The learned First Appellate Court after hearing the parties and considering all the materials available on record decided issue No. 5 again in its own way holding that registration and execution of the gift deed cannot make the gift valid under Mohammedan Law unless all the three conditions precedent as mentioned in Section 149 of Mullah's Mohammedan Law are satisfied in a gift made by a Mohammedan to another Mohammedan. The learned first appellate court further observed that not only the P.W. 1 but independent witness P.W. 2 who is a tenant of the property stated on oath coming to witness box that suit land had all along been under possession of the plaintiff and only recently the defendant created the trouble by demanding possession. So, the learned First Appellate Court arrived at a finding that possession of land shall remain with the plaintiff and it was never handed over to the defendant despite execution of registered gift deed dated 17.11.1975. With these findings the learned First Appellate Court would hold that there was no gift deed made by the plaintiff in favour of the defendant and consequently, admitted that antecedent title of the plaintiff over the suit property continued till date. With these findings the learned First Appellate Court would hold that there was no gift deed made by the plaintiff in favour of the defendant and consequently, admitted that antecedent title of the plaintiff over the suit property continued till date. This judgment passed by the learned First Appellate Court on 25.06.2003 has been brought under challenge in the present Second Appeal. 5. This Court by order dated 11.11.2014 framed two substantial questions of law in this case and the same are quoted below: i) Whether a gift made by a Mohammedan in favour of another Mohammedan by executing a registered deed in compliance of Sections 122 & 123 of the Transfer of Property Act, 1882, is sufficient and overrides the requirement under Section 149 of Mullah's Mohammedan Law? ii) Whether the suit of the plaintiff is barred under Article 59 of the Limitation Act, 1963? 6. I have heard Mr. A.C. Sarma, learned counsel appearing for the appellant. I have also heard Mr. R. Hussain, learned counsel appearing for the respondents. I have also perused depositions and exhibits including pleadings led by the parties to find out as to whether findings of the learned courts below in regard to possession are perverse or not. 7. Arguing the First substantial question of law, Mr. A.C. Sarma, would submit that the Section 2 itself excludes provision of Chapter II of the Transfer of Property Act, 1882 (herein after read as 'the T.P. Act') and it is silent about other chapter of the T.P. Act. Gift comes under Chapter VII of the T.P. Act. Section 122 provides that gift is a transfer of title existing moveable or immoveable property. Section 123 provides that for the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. According to Mr. A.C. Sarma Section 123 is independent of the Provision of Mohammedan Law and since the parties chose to take recourse of the T.P. Act, the provisions of Mohammedan Law holding the field will take the back seat and the law followed by them has to be followed since there is specific provision lying down under Section 123 and the same has been followed by the parties. The registration of a written document of gift is sufficient for completion of the exercise. 8. The registration of a written document of gift is sufficient for completion of the exercise. 8. Per contra, Mr. R. Hussain, learned counsel for the respondents, would argue that because of Section 129 of the T.P. Act, the provision of the Mohammedan Law has been saved and so even if there is an execution of registered instrument by a Mohammedan making a gift in favour of another Mohammedan in that event unless ingredients of Section 149 of the said law i.e. Mohammedan Law are satisfied a registered instrument within the meaning of Section 123 of the T.P. Act would not get precedence. What is important is that a Mohammedan gift unless satisfies all the three conditions of Section149 of Mullah's Mohammedan Law, no gift will take place. Here, in this case as per the concurrent findings of fact, possession was never handed over to the defendant and the plaintiff continues to possesses the same till date. This being the position the third condition of Section 149 of the Mullah's Mohammedan Law has not been satisfied. Mr. R. Hussain has placed reliance on Paragraph-129 of the case of Hafeeza Bibi & Ors. Vs. Shaikh Farida (Dead) & Ors. reported in (2011) 5 SCC 654 . In Paragraph-29 of this judgment, the Hon'ble Supreme Court has categorically held that Section 129 of the T.P. Act preserves rules of Mohammedan Law and excludes the applicability of Section 123 of the T.P. Act to a gift of an immoveable property by a Mohammedan. Having so found, this first substantial question of law is no longer res-integra. It is accordingly decided holding that mere execution of a registered gift deed by a Mohammedan in favour of another Mohammedan will not confer any title unless the three pre conditions of Section 149 of Mullah's Mohammedan Law are satisfied. 9. The second substantial question of law is in regard to limitation. Mr. A.C. Sarma would further argue that admittedly gift deed was executed on 17.11.975. Suit ought to have been instituted within three years thereafter as per Article 59 of the Limitation Act but the suit having been instituted in the year 1998 it is clearly barred by limitation. Per contra, Mr. R. Hussain would argue that plaint itself discloses the cause of action on 03.09.1998. Suit ought to have been instituted within three years thereafter as per Article 59 of the Limitation Act but the suit having been instituted in the year 1998 it is clearly barred by limitation. Per contra, Mr. R. Hussain would argue that plaint itself discloses the cause of action on 03.09.1998. It is the specific case of the plaintiff that on 03.09.1998 the defendant approached the plaintiff demanding possession of the suit land on the basis of the gift deed and the plaintiff refused to do so. Thereupon, the defendant started harassing the plaintiff. This pleading made in the plaint has been supported by the plaintiff in his evidence and in cross-examination also such statement is not discredited. In addition to that P.W. 2 a tenant to the ancestral property of the parties came to the witness box and deposed that plaintiff has been all along in possession and there was difficulty between the plaintiff and the defendant since aforementioned date. Prima facie, once such pleadings of the plaintiff has been proved that the dispute arose because of cause of action on 03.09.1998 and it has been proved by oral evidence of two witnesses and more particularly when the defendant could not bring any independent witness to rebut the same, merely because there was mutation in the records of rights in favour of the defendant on the basis of the gift deed, cannot change the situation. Since the plaintiff has succeeded to prove that all along he continued to remain in possession in the suit land and that on 03.09.1998 the defendant approached him for handing over possession leading to cause of action of the suit, the suit cannot be held to be barred by limitation under Section 59 of the Limitation Act. Accordingly, this second substantial question of law is also decided in favour of the respondent. 10. Having found that both the substantial questions of law is decided in favour of the plaintiff/respondent nothing survives in the second appeal. It is accordingly dismissed. 11. Interim order passed earlier stands automatically vacated. No order as to costs.