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2019 DIGILAW 433 (CAL)

Md. Mehmood v. Nargis Begum

2019-04-02

ARINDAM MUKHERJEE, BISWANATH SOMADDER

body2019
JUDGMENT : Arindam Mukherjee, J. 1. The appellants and the respondent no. 9 are the sons and daughters of Md. Bashir through his first wife Begum Noor Jahan. The respondent no. 1 is the second wife of Md. Bashir. The respondents no. 2, 3, 4 and 5 are the daughters of Md. Bashir through his second wife Nargis Begum (respondent no.1). The appellants have filed a Partition and Administration suit claiming their share in the estate left behind by Md. Bashir who died on 15th January, 2007 claiming that the said Md. Bashir died intestate. The appellant say that Noor jahan Begum died on 3rd July, 2000, two of daughters of Md. Bashir, namely, Husne Jahan and Roshan Jahan and one son Md. Mehmood through his first wife Noor Jahan Begum pre-deceased Md. Bashir. Md. Mehmood died on 12th March, 1998, Husne Jahan on 19th July, 1975 and Roshan Jahan on 17th October, 2006. The plaintiffs have suggested in the plaint a share holding pattern in terms whereof of the heirs of Md. Bashir inherited his estate upon his death in intestacy. In the alternative the plaintiffs have claimed for determination of the shares of the parties and allocation thereof by partition by metes and bound. 2. The appellants further alleged that Md. Bashir did not execute any gift deed in favour of Nargis Begum (respondent no. 1) in respect of the municipal premises no. 75, Elliot Road, Kolkata-700016 as claimed by the said Nargis Begum. The appellants, therefore, has claimed for a declaration that the purported deed of gift dated 3rd August, 2003 said to have been executed by Md. Bashir in favour of Nargis Begum be adjudged void and/or voidable and not binding on the appellants. They also claimed that the mutation of the said premises no. 75, Elliot Road, Kolkata-700016 in favour of Nargis Begum said to have been made by dint of the deed of gift be set aside and the municipal assessment book be corrected accordingly. The appellants have also claimed for a preliminary decree in accordance with the share mentioned in the plaint or as may be found by this Court, as also a final decree of partition in the terms of the said preliminary decree and for appointment of a Commissioner of Partition to effectuate the partition by metes and bounds. The appellants have also claimed for a preliminary decree in accordance with the share mentioned in the plaint or as may be found by this Court, as also a final decree of partition in the terms of the said preliminary decree and for appointment of a Commissioner of Partition to effectuate the partition by metes and bounds. The appellants have also claimed consequential relief in the nature of injunction as also for damages for a sum of Rs.1,05,000/- in addition to injunction. The appellants have also impleaded the Kolkata Municipal Corporation, the Municipal Commissioner and the Assessor Collector (South). The Kolkata Municipal Corporation is party defendant no. 6, 7 and 8. They are respondent no. 6, 7 and 8 in the appeal respectively. 3. The defendant no. 1 has contested the suit by filing her written statement. The defendant nos. 2 and 3 has also filed a separate written statement. The respondent nos. 1, 2 and 3 in their written statement have contended that, Md. Bashir had executed a deed of gift in favour of Nargis Begum on 3rd August, 2003 which is a registered document and by virtue of the same, the said Nargis Begum is a sole and exclusive owner of premises no. 75, Elliot Road, Kolkata-700016. So far as the other properties and assets mentioned in the schedule to the plaint are concerned, it is the case of the defendant nos. 1, 2 and 3 (respondent no.1, 2 and 3) that some of the properties had been sold by Md. Bashir during his lifetime and the residual properties are joint properties in which the heirs of Md. Bashir have shares according to Hanafi School of Mohammedan Law, which governed Md. Bashir till his death. 4. Before us, the appellants and respondents have restricted their arguments in respect of the deed of gift and as to the ownership of the property being premises no. 75, Elliot Road, Kolkata-700016. 5. The appellants allege that the decree is flawed, inasmuch as, the learned Trial Judge upheld the validity of the deed of gift which is contrary to Mohammedan Law. On the other hand, the respondent no. 1 alleges that the learned Judge erred in holding that the gift made by Md. Bashir in favour of Nargis Begum did not cover 350 square feet at the first floor of the said premises no. On the other hand, the respondent no. 1 alleges that the learned Judge erred in holding that the gift made by Md. Bashir in favour of Nargis Begum did not cover 350 square feet at the first floor of the said premises no. 75, Elliot Road, Kolkata-700016, of which the appellant no. 1(plaintiff no.1) is in occupation. The respondent no. 1 has, therefore, challenged that part of the decree by filing a cross-objection. 6. The appellants have cited Rule 149 from the book "Mulla Principles of Mohammedan Law" (20th Edition) to urge that the three essential conditions to be fulfilled to validate a gift under Mohammedan Law are (i) a declaration of gift by the donor, (ii) an acceptance of the gift, either express or implied by and/or on behalf of the donee, and (iii) delivery of possession and the subject of gift by the donor to the donee as mentioned in para 150. 7. The appellants further relied on the provisions of para 150 which speaks of delivery of possession. According to para 150 it is essential to validate a gift, there should be a delivery of possession. The donnee has to take possession of the subject-matter of gift either actually or constructively. Only upon doing so, the gift is complete. The appellants contend that, there has been no delivery of possession in respect of the property gifted. The gift said to have been executed by Md. Bashir in favour of his second wife Nargis Begum, in connection with premises no. 75, Elliot Road, Kolkata-700016 is invalid as there has been no acceptance of possession by the donee either actually or constructively. The appellants say that, Md. Bashir even after the execution of the said deed of gift continued to remain in possession of the said property and had been collecting rent from the tenants of the said property thereby asserting himself as the owner of the said property. The so called gift deed was also not known to any of the sons and daughter of Md. Bashir from his first wife. The appellant no. 1 (plaintiff no. 1) who actually occupied a portioin of the said premises did not know of the gift deed and had came to know of the same at a much belated period and only after coming to know about the same challenged it by filing the suit along with other plaintiffs. Bashir from his first wife. The appellant no. 1 (plaintiff no. 1) who actually occupied a portioin of the said premises did not know of the gift deed and had came to know of the same at a much belated period and only after coming to know about the same challenged it by filing the suit along with other plaintiffs. The appellants also say that none of the tenancies were attroned in favour of Nargis Begum (the donee). 8. The appellants have also relied upon the rent receipts issued to the tenants of the suit property subsequent to the gift to show that Md. Bashir did not part with possession of the said property even after execution of the gift and was collecting rents from the tenants as the owner. This fact coupled with the fact that the tenancies of the said property not being attorned in favour of Nargis Begum, the donee even after the execution of the deed of gift, establish the fact that Md. Bashir did not make over possession of the suit property to Nargis Begum as a consequence whereof there was no valid gift. 9. In this factual backdrop the appellants submit that there has been no valid gift made by Md. Bashir in favour of Nargis Begum (respondent no.1). The appellants as plaintiffs have also alleged that the deed of gift executed by Md. Bashir in favour of Nargis Begum is a product of undue influence and fraud. Nargis Begum who stayed with Md. Bashir during his last days had prevailed over Md. Bashir and made him execute the gift deed. However, before us the gift deed was not attacked on these grounds by the appellants. They only restricted their arguments as to the validity of the gift on the grounds as aforesaid. 10. The appellants to elucidate their argument has relied upon the judgments reported in AIR 2010 (SC) 211 and 2014 (10) SCC 459 to show that possession in case of a Mohammedan gift is the most crucial ingredient. Unless the donee is in seisin of the subject matter of gift, the gift is not complete and registration does not cure the defect nor a bare declaration in the deed of gift validates the gift 11. Relying upon these two judgments the appellants submit that from the materials on record, deposition of the witnesses it is clear that Md. Unless the donee is in seisin of the subject matter of gift, the gift is not complete and registration does not cure the defect nor a bare declaration in the deed of gift validates the gift 11. Relying upon these two judgments the appellants submit that from the materials on record, deposition of the witnesses it is clear that Md. Bashir never made over possession of the said property to Nargis Begum. Constructive possession was never made over far less the actual possession. The gift is invalid and the registration of the gift deed cannot cure the defect. The gift continues to remain invalid and, as such, all properties left behind by Md. Bashir including the said property has to be distributed amongst his heirs in accordance with their respective shares. 12. The respondent no. 1, on the other hand, has relied upon para 152 (3) of Chapter 11 of "Mulla Principles of Mohammedan Law" (20th Edition) and submits that Md. Bashir, the donor and Nargis Begum, the donee resided in the same premises. In such a situation, no physical or formal entry is necessary in the case of a gift of the said property. In such a case, according to the respondent no. 1 gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of gift. The respondent no. 1 further submits that under Mohammedan Law, oral gift is permissible which is called 'Hiba'. Section 129 of the Transfer of Property Act, 1882 excludes the rule of Mohammedan Law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In the instant case according to respondent no. 1, there is no dispute that, Nargis Begum resided at the said property since 1962 and is still residing thereat (refer to question 9,10,54 56 in chief of Nargis Begum). Thus, a gift by Md. Bashir comes within the fold of para 152(3) and, as such, no physical departure of Md. Bashir or formal entry of Nargis Begum is necessary to complete the gift. The learned senior advocate advocate for the respondent no. Thus, a gift by Md. Bashir comes within the fold of para 152(3) and, as such, no physical departure of Md. Bashir or formal entry of Nargis Begum is necessary to complete the gift. The learned senior advocate advocate for the respondent no. 1, then refers to questions 59 to 94 and submits that from the chain of events as will appear from the answers given by Nargis Begum in her examination-in-chief (to the questions referred to above) will clearly establish the intention of Md. Bashir to execute the gift and the acceptance of the gift by Nargis Begum. This satisfies the two other essential ingredients for a valid Mohammedan Gift. It further appears from the answer to question 96 of the examination-in-chief of Nargis Begum that after execution of the document(deed of gift) on 3rd August, 2003, the document was made over by Md. Bashir to Nargis Begum. The advocate for the respondent no.1 then refers to questions 95, 97 to 108 and the answers thereto in order to establish the registration of the deed of gift. He then submits that the gift was completed on 3rd August, 2003, and the document was presented for registration on 29th November, 2003 which amounts to a overt act on the part of Md. Bashir. This shows the clear intention of Md. Bashir to transfer possession and to divest himself of all control over the subject of the gift as envisaged in para 152(3). He further relies upon the deposition of Farooque Khalil, the nephew of Md. Bashir to corroborate the gift, the execution of the document as also the registration of the same. He then refers to the judgment reported in AIR 2010 SC 211 relied upon by the appellants and submit that the deed of gift is a registered one and contains a clear and unambiguous declaration as to the intention of Md. Bashir, to divest himself of the property. This is also an overt act of Md. Bashir which clearly establish his intention to divest himself of all control of the property. In such circumstances, it is for the appellants who are questioning the genuineness of the transaction to show that in law the transaction was not valid. The appellants have failed to establish the same and, as such, no relief as to the challenge to the gift deed be given to the plaintiffs/appellants. 13. The respondent no. In such circumstances, it is for the appellants who are questioning the genuineness of the transaction to show that in law the transaction was not valid. The appellants have failed to establish the same and, as such, no relief as to the challenge to the gift deed be given to the plaintiffs/appellants. 13. The respondent no. 1 has also referred to question nos. 109 to 124 to establish the background behind execution of a power of attorney by Nargis Begum subsequent to the gift in favour of Md. Bashir to enable Md. Bashir to collect rents from the tenants of premises no. 75, Elliot Road, Kolkata-700016 on behalf of Nargis Begum. The power of attorney has been exhibited. Showing this the learned senior advocate on behalf of the respondent no. 1 submits that after the gift, the donee being a lady authorised her husband, the donor to collect rent from tenants of the said premises on her behalf. 14. We have scrutinized the evidence of Md. Mehmood, plaintiff no.1 (as also the appellant no. 1), cross-examination of the defendant no. 1 (respondent no. 1) and the evidence of Farooque Khalil. We have not been able to find that the appellants have succeeded to show that in law the transaction was not valid. On the contrary, we find that the gift is validly established coupled with execution of a document which is subsequently registered. We also find that the tests laid down in Section 123 of the Transfer of Property Act, 1882 as also the tests laid down under the Registration Act, 1908 in case of gift deed executed by a non-muslim is also satisfied in this case. That apart and in any event answer to question 96 asked to Nargis Begum in examination-in-chief satisfies the tests on handing over of the deed of gift coupled with the declaration in the document to constitute a valid gift as laid down in the judgment reported in AIR 2010 SC 211 . 15. Before the Trial Court several judgments were cited by the parties. The learned Trial Judge analysed each of the judgments in details to curl out the ratio there from. Pursuant to such exercise the learned Trial Judge has concluded that the gift is a valid one as laid down under the Mohammedan Law. 15. Before the Trial Court several judgments were cited by the parties. The learned Trial Judge analysed each of the judgments in details to curl out the ratio there from. Pursuant to such exercise the learned Trial Judge has concluded that the gift is a valid one as laid down under the Mohammedan Law. We are, ourselves, convinced that the gift is a valid gift which satisfies the essential tests as laid down under the Mohammedan Law to validate a gift. We are also in complete agreement with the learned Trial Judge to the extent that the gift is a valid deed of gift as envisaged under the Mohammedan Law. We are also in complete agreement with the analysis made and the conclusion arrived at as to the ratio laid down in the various judgments cited before the learned Trial Judge and as such refrain from discussing them again in details save those judgments which were cited before us and discussed as aforesaid. We are, however, not in agreement with the portion of the judgment and decree by which the learned Trial Judge held that the deed of gift did not encompass in itself, the portion under occupation of Md. Mehmood, the plaintiff no. 1/ the appellant no.1. We find no reason as to why that portion has to be left out. It is a settled principle of law that a son resides in the house of his father at best as a licensee without any payment of rent or fees, which is also the case in hand. The father on having executed a gift deed which we have already held to be a valid deed of gift covering the entire property, the portion under occupation of his son cannot be isolated from the ambit of the said gift. We, therefore, hold that the entire premises, that is, 75, Elliot Road, Kolkata-700016 has been gifted by Md. Bashir to Nargis Begum and the said Nargis Begum is the exclusive owner of the said property including the portion under occupation of Md. Mehmood to the exclusion of all other heirs of Md. Bashir. The impugned decree is modified only to that extent that the cross-objection filed by Nargis Begum, the respondent no.1, is allowed. 16. So far as the rest of the properties of the estate of Md. Mehmood to the exclusion of all other heirs of Md. Bashir. The impugned decree is modified only to that extent that the cross-objection filed by Nargis Begum, the respondent no.1, is allowed. 16. So far as the rest of the properties of the estate of Md. Bashir, now in existence, are concerned, there shall be a preliminary decree in terms of relief (f) and (g) of the plaint. None of the parties have drawn any challenge as to the shareholding pattern mentioned by the appellants/plaintiffs in the plaint. In such circumstances, it is declared that the parties will have the following shares in the existing estate of Md. Bashir save the premises no.75, Elliot Road, Kolkata-700016 which is exclusively allotted to Nargis Begum. Md. Mehmood 14.583% Md. Masoom 14.583% Saira Begum 7.292% Shah Jahan 7.292% Afzal Zahan 7.292% Nargis Begum 12.50% Farzana Begum 7.292% Ruksana Begum 7.292% Sultana Begum 7.292% Zeenat Parveen 7.292% Gulnar Jahan 7.292% The existing Joint Receivers are appointed Joint Commissioners of Partition and Joint Receivers over the entire estate of Md. Bashir excluding the premises at 75, Elliot Road, Kolkata-700016. They will immediately take actual physical possession of all vacant areas and symbolic possession of other portions of the estate at a remuneration of 400 GMs per month for each Commissioner. They will appoint a Valuer / Chartered Engineer in consultation with the parties. The Joint Commissioners and Joint Receivers will fix his fees. The remuneration of the Joint Commissioners and Joint Receivers and of the Valuer / Chartered Engineer will be paid by the parties according to their shares. A report should be filed in this Court by the Joint Commissioners and Joint Receivers by 30th September, 2019 for the purpose of passing the final decree of partition by metes and bound. The first defendant (respondent no.1) will immediately be entitled to the rental income of 75, Elliot Road, Kolkata-700016, in its entirety. She will collect and appropriate the same from August, 2015 (rent for July, 2015) onwards. The Joint Commissioners and Joint Receivers will also prepare accounts of the surplus in their hands of the rental collections in respect of 75, Elliot Road, Kolkata 700 016 after payment of liabilities and hand over the same to the first defendant(respondent no.1) immediately. She will collect and appropriate the same from August, 2015 (rent for July, 2015) onwards. The Joint Commissioners and Joint Receivers will also prepare accounts of the surplus in their hands of the rental collections in respect of 75, Elliot Road, Kolkata 700 016 after payment of liabilities and hand over the same to the first defendant(respondent no.1) immediately. The Joint Commissioners and Joint Receivers will collect and keep invested in a nationalized bank, the rental income from the other properties of the estate. They will pay municipal tax from the rent and, if it is not sufficient, collect the same from the parties and pay. From now, the taxes of 75, Elliot Road, Kolkata 700 016 will be paid by the first defendant (respondent no.1). She will also keep the property in repair. 17. Accordingly, the appeal is dismissed. There shall, however, be no order as to costs. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on an urgent basis. Later : The stay prayed for on behalf of the appellants is considered and refused.