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2024 DIGILAW 676 (JHR)

Kulsum Bibi v. Azizul Hussain

2024-07-05

GAUTAM KUMAR CHOUDHARY

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ORDER : Gautam Kumar Choudhary, J. Heard. 1. This is the defendant’s Second Appeal filed against the judgment of reversal. 2. The plaintiff filed suit for declaration of title and recovery of possession in respect of a room with one verandah and angan being portion of Plot No. 112, under Khata No. 102, Holding No. 58 of Ward No. 10 of Chakardharpur Town P.S. Chakardharpur, Dist.-Singhbhum (West) was dismissed by the learned Trial Court and has been decreed by the learned first appellate court. CASE OF THE PLAINTIFF 3. Case of the plaintiff is that the house and premises belong to one Md. Sayeed and Md. Umar who were full brothers, and during the current survey settlement operation of Chakardharpur Municipality, it was mutated in their name jointly and later on recorded separately as their business were separate. 4. In the year 1977 both brothers separated their share in respect of the suit property and are in peaceful possession in their respective shares by a Punchnama dated 05.08.1977. Md. Sayeed got his share in the house demarcated by Anchal Officer at Chakardharpur in Demarcation Case No. 48 of 77-78. 5. Md. Sayeed by registered sale deed dated 12.09.79 transferred the suit property (Schedule-A) to the plaintiff and thereon put the plaintiff in possession of the same. Thereafter the plaintiff applied for mutation of his name which was allowed. But later on defendant filed appeal against the said order and appeal of opposite party was allowed. Against that the plaintiff has preferred revision which is still pending. 6. Defendant are claiming the suit property on the basis of an unregistered deed of gift by Md. Sayeed in 1952 and later on gifted the remaining portion of the house to the defendant in 1976. The plaintiff says that the deed of gift is false and fabricated document. 7. In the month of January 1985, defendant broke open the lock of the suit property in absence of the plaintiff and taken the possession of the suit property. CASE OF THE DEFENDANT 8. Defendant has appeared and filed written statement stating therein that the suit is not maintainable and is barred non-joinder of necessary parties. The suit is also barred by adverse possession as the defendants are in exclusive possession of the suit property since more than 32 years. 9. Brother Md. Sayeed and Md. CASE OF THE DEFENDANT 8. Defendant has appeared and filed written statement stating therein that the suit is not maintainable and is barred non-joinder of necessary parties. The suit is also barred by adverse possession as the defendants are in exclusive possession of the suit property since more than 32 years. 9. Brother Md. Sayeed and Md. Umar separated before 1950 and separately possessed their respective share, and in recent survey they confirmed their earlier portion in presence of punches and got it reduced into writing. Defendant is the only issue of Md. Sayeed and used to reside with him along with her husband since after her marriage in the year 1952 and used to look after her father. 10. Md. Sayeed out of love and affection gifted portion of house in Form of ‘Dahej’ to her in writing and in presence of witnesses and she accepted the same later on in the year 1976. Md. Sayeed handed over the remaining portion of the house by way of Dukihtari Hukumnama and in this way she became the owner of the entire house and is coming in possession over the same. Md. Sayeed was not well since 1978 and used to be absent minded and hence any execution of sale deed by him after 1978 was void and illegal. 11. On the basis of the pleadings of the parties, following main issues were framed: Issue No. 3 Whether the plaintiff has acquired title to the suit property by virtue of sale deed dated 12.09.1979 executed by Md. Sayeed? Issue No. 4 Whether the sale deed dated 12.09.1979 executed by Md. Sayeed in favour of the plaintiff in respect to the suit property is void, illegal and without consideration? Issue No. 5 Whether the partition between Md. Sayeed and Md. Umar took place before 1950 or in the year 1977? Issue No. 6 Whether Md. Sayeed gifted his share in the house including the suit house to the defendant in the year 1952 and 1976? 12. Learned Trial Court dismissed the suit. 13. Issue No. 5 Whether the partition between Md. Sayeed and Md. Umar took place before 1950 or in the year 1977? Issue No. 6 Whether Md. Sayeed gifted his share in the house including the suit house to the defendant in the year 1952 and 1976? 12. Learned Trial Court dismissed the suit. 13. Learned First Appellate Court reversed the judgment of the Trial Court and decreed the suit of the plaintiff on following grounds: i. On the plain reading of Sub-section 3 of Section 152 of Mohammeden Law by Mulla when the donor and donee both reside in the property, then in that case 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. ii. In the present case, even after 1952 there was nothing on record to show that Md. Sayeed had done something to show his intention that he had transferred the possession of the property and divested himself from the property. There was no evidence to show that Md. Sayeed or Kulsum Bibi had filed any objection before the Survey operation authorities against the entry of their name in the record of rights published in the survey operation held in the year 1970-72. iii. Ext.A and A/1 which is the basis of the plea of defence by the deed, is purported to be a deed of gift although it has been captioned as Wasiyatnama i.e. deed of WILL. In this document, the first appellate court noted that there was no description of property. Defendant did not challenge the execution of sale deed in favour of the plaintiff by Md. Sayeed. Since the defendants were living in the house on permissive possession, therefore, the question of adverse possession did not arise. iv. The partition took place between Md. Sayeed and Md. Umar in the year 1977, but defendant never came forward to claim property said to be gifted. 14. This appeal was admitted on the following substantial questions of law:- a. Whether on the averment of Ext.A and A/1 the learned lower Appellate Court erred in holding that Ext.A being not a gift deed but a deed of exchange in lieu of Dahez and Ext.A/1 Wasiatnama (Will) were correct and legal? 14. This appeal was admitted on the following substantial questions of law:- a. Whether on the averment of Ext.A and A/1 the learned lower Appellate Court erred in holding that Ext.A being not a gift deed but a deed of exchange in lieu of Dahez and Ext.A/1 Wasiatnama (Will) were correct and legal? b. Whether Ext.3 by which sale deed of the year 1979 was made in favour of the plaintiff by Md. Sayeed during his life time had caused transfer of the subject matter of sale deed without proving consideration being passed as alleged from the side of the defendant? c. Even if there was no existence of Exts.A and A/1 and that Ext.3 was real then also whether the plaintiff-respondent is entitled to get a decree of khas possession? 15. It is argued by learned counsel on behalf of the appellant that the lower appellate court has not considered the Exhibit-A and A/1, which are the gift deed and the deed of Will executed by Md. Syeed (father of the defendant) and one of the owner of the property. 16. It is further argued that neither the gift is required to be registered under the Mohammedan Law nor the Will is required to be probated and, therefore, its legal sanctity is above board. These documents were executed in the year 1952, whereas sale-deed was executed in the year 1979. It is submitted that on the date of sale, the executant of the deed had no right or title of the property to sell the same. As such, the sale-deed is ab initio void. 17. It is submitted that the defendant is the daughter of the executant, Md. Syeed, who executed deed of gift in the year 1952 (Ext.A) which has been wrongly written as a deed of Will. On the basis of said document, the defendant came in possession and is continuing till date. Further-more in the year 1952, one room was given and further in the year 1976, another room was given to the defendant by way of gift. 18. With regard to first substantial question of law it is submitted that title of Ext.-A is Wasiyat, but from the recital, it is apparent that it was deed of gift. The essence of gift has been satisfied as required under Section 149 of the Mullah and Mohammedan law. 19. 18. With regard to first substantial question of law it is submitted that title of Ext.-A is Wasiyat, but from the recital, it is apparent that it was deed of gift. The essence of gift has been satisfied as required under Section 149 of the Mullah and Mohammedan law. 19. On the second substantial question of law, it is submitted that prosecution witness i.e. P.W.-1 at paras 19 and 23 and P.W.2 at paras 16, 21 and 22, as well as P.W.3 at para 33 have admitted that the defendants are in possession the land since 15 to 16 years. 20. It is argued that findings of the first appellate Court at page 19 at para 22 of the judgment that there was no evidence in support of the possession of the defendant being perverse as prosecution witnesses above admitted the possession of the defendants. 21. None appears on behalf of the respondent. FINDING 22. This is yet another case where the transfer of title on a registered deed of sale is being challenged on the basis of an unregistered instrument of transfer by way of Gift/Wasiyatnama, on the plea that it was made before the registered deed of sale. 23. Facts of the case are plain and simple. Plaintiff is claiming title on the basis of registered sale deed executed in the year 1979 (Ext. 3) by Md. Sayeed, whereas the defendant claims title on the basis of an unregistered WILL/Gift executed in the year 1952. 24. The very document of claim by defendant is inchoate. Document is captioned as Will, but contents suggest it to be gift. As both the terms have different connotation and cannot be read synonymously. Gift is a transfer intervivos, whereas as WILL is a testamentary disposition of property. 25. It is interesting to note that Gift/Wasiyat purported to be executed in 1952 did not see the light of day till the plaintiff moved the competent authority for mutation after purchasing the property by registered deed of sale. Much water flowed down the bridge from 1952 to 1979, survey operation took place, partition between Md. Sayeed and his brother was effected, sale deed was executed but at no point of time, any objection was raised by the defendant who claim to have acquired title way back in 1952. 26. Much water flowed down the bridge from 1952 to 1979, survey operation took place, partition between Md. Sayeed and his brother was effected, sale deed was executed but at no point of time, any objection was raised by the defendant who claim to have acquired title way back in 1952. 26. Defendant appears to have sprung into action only after the execution of the sale deed in favour of the plaintiff. From these train of events, the inference that can be drawn is that the so called deed of gift was an antedated document, and product of afterthought to checkmate the plaintiff’s move to get his name mutated after the execution of sale deed. 27. Learned first appellate court has dealt with all these aspects in detail and the Judgment needs no interference. 28. Learned first appellate Court rightly disbelieved the deed of Gift/Wasiyat and first substantial question of law is accordingly answered in favour of plaintiff. 29. There is a presumption of due execution of registered deed of sale which cannot be avoided even on the ground of non-payment of consideration amount. Only a money suit can be filed by the vendor. In the present case, the vendor never challenged the said deed. Therefore, it was not open to the defendant to raise such a plea. 30. Second and third substantial questions of law are, accordingly, answered in favour of the plaintiff /respondent. Second appeal fails, dismissed with cost. Pending I.A., if any, is disposed of.