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2025 DIGILAW 146 (MP)

Abdul Rashid v. Sajida

2025-02-27

ASHISH SHROTI

body2025
ORDER : ASHISH SHROTI, J. 1. The appellants/defendants have filed the instant appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") challenging the judgment and decree dated 17/03/2010 passed by the First Additional District Judge, Vidisha (M.P.) in Civil Suit No.27-A/2007. 2. The facts which are not disputed between the parties are that property described in para 4 of the plaint (hereinafter referred to as "suit property") initially belonged to one Abdul Rajak. The plaintiff/defendant Nos.1, 2, 4, 5 & 6 are the children of the said Abdul Razak while defendant No.3 was the widow of Abdul Razak. Defendant No.7 is the brother of Late Abdul Razak. 3. The plaintiff had filed the present suit for partition, separate possession and permanent injunction claiming her share in the property of her father. Except defendants No.1 and 2, other defendants were ex-parte before the trial Court. Defendants No.1 and 2 denied the plaintiffs claim inter alia on the ground that their father had given the house in question to their mother i.e. defendant No.3 by way of Mehr vide deed dated 10/03/1994 (Ex.D/1). It is further pleaded by the defendants that defendant No.3 had gifted the suit property to defendant No.1 and 2 vide gift deed dated 15/05/2005 (Ex.D/2). Defendants have further pleaded that the plaintiff, having married against the wish of the father and left the father's house long before, she was divested of her share in the property by Late Abdul Razak. With these pleadings, defendants prayed for dismissal of the suit. 4. Learned trial Court vide impugned judgment and decree has decreed the suit recording a finding that execution of Mehrnama (Ex.D/1) is not proved, gift of the property by defendant No.3 in favour of defendants No.1 and 2 is also not established and the ground of divesting the plaintiff from the property by the father is also not proved. Accordingly, the suit is decreed wherein the plaintiff has been held entitled to 299 Sq.ft. of her share in the property which she is entitled to get by partition, defendants have been directed to deliver possession of her share to the plaintiff. 5. Accordingly, the suit is decreed wherein the plaintiff has been held entitled to 299 Sq.ft. of her share in the property which she is entitled to get by partition, defendants have been directed to deliver possession of her share to the plaintiff. 5. Learned counsel for the appellants/defendants took me through the statements of defendant witnesses as also the finding recorded by the trial Court and submits that the finding recorded by the trial Court are perverse, contrary to the documents and therefore, the same are liable to be set-aside. 6. Per contra, learned counsel for the respondent/plaintiff supported the impugned judgment and decree and prayed for dismissal of the appeal. 7. The pivotal question involved in this appeal is regarding execution of Mehrnama (Ex.D/1) and the execution of the gift deed by defendant No.3 in favour of defendants No.1 and 2 (Ex.D/2). 8. Mehrnama (Ex.D/1) is executed on 10/03/1994 and one Abdul Hamid (DW-6) and Afzal Khan (DW-7) are the attesting witnesses of the said document. By going through the statements of DW-6 & DW-7, it is gathered that they nowhere stated that Abdul Razak signed the Mehrnama in their presence. They have only said that Mehrnama was got prepared somewhere else and it was brought before them and they signed the same. Thus, it cannot be said that the attesting witnesses have proved the execution of this document (Ex.D/1). 9. Further, the conduct of the parties after the execution of Mehrnama is also important. Learned trial Court in paragraphs 8, 9, 10 & 11 have discussed the evidence of the defendant witnesses and have recorded the finding that even after the alleged document of Mehrnama, property continued to be in the name of Abdul Razak. The map for construction of the building over the plot was submitted in the name of Abdul Razak, defendant No.3 never claimed ownership over the property etc. This goes to show that the suit property was not given in Mehr to defendant No.3 and it continued with Abdul Razak only.. 10. Another important aspect which determines the validity of Mehrnama is that the same is executed on a plain paper and is not stamped and registered. From recital of this deed, it is apparent that immovable property for more than Rs.100 is being transferred to defendant No.3. 10. Another important aspect which determines the validity of Mehrnama is that the same is executed on a plain paper and is not stamped and registered. From recital of this deed, it is apparent that immovable property for more than Rs.100 is being transferred to defendant No.3. Thus, in view of the provisions of the Transfer of Property Act and the Registration Act, the deed is required to be compulsorily registered. 11. The Apex Court in the case of Radhakishan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and others reported in AIR 1960 SC 1368 held in Para 10 as under:- "In the Allahabad case Begum and others v. Mohammad Yakub and another, ILR 16 All 344 (FB), there was a verbal sale of a house which was followed by possession but there was no registered document. No doubt there the learned Chief Justice in the. majority judgment did say that to import into the Mohammedan law of pre-emption the definition of the word "sale" with res-trictions contained in S. 54 of the Transfer of Property Act would materially alter Mohammedan law of pre-emption and afford fraudulent persons to avoid the law of pre-emption; with this view Bannerji J. did not agree. But in our opinion the transfer of property where the Transfer of Property Act applies has, as was held by the Privy Council also, to be under the provisions of the Transfer of Property Act only and Mohammedan Law of transfer of property cannot override the statute law. Mahmood, J. in Janki v. Girjadat and another, ILR 7 All 482 (FB), though in a minority (four judges took a different view) was of the opinion that a valid and perfected sale was a condition precedent to the exercise of the right of pre-emption and until such sale had been effected the right of pre-emption could not arise." 12. From the aforesaid pronunciation of law by the Apex Court, it is to be held that the provision of the Transfer of Property Act and the Registration Act would prevail and no relaxation is given under the Muslim Law from registration of the deed. Thus, the document (Ex.D/1) is not admissible in evidence for want of registration and payment of adequate stamp duty. 13. The defendants' claim is also based upon the Hiba Nama dated 15/05/2005 allegedly executed by defendant No.3 in favour of defendants No.1 and 2. 14. Thus, the document (Ex.D/1) is not admissible in evidence for want of registration and payment of adequate stamp duty. 13. The defendants' claim is also based upon the Hiba Nama dated 15/05/2005 allegedly executed by defendant No.3 in favour of defendants No.1 and 2. 14. Learned counsel for the respondents raised an objection with regard to validity of Hiba Nama (Ex.D/2) on the ground that it is an unregistered instrument by which the property is being transferred and therefore, the same is not admissible. 15. The Apex Court in the case of Hafeeza Bibi and others Vs. Shaikh Farid (Dead) By LRs. and others reported in (2011) 5 SCC 654 in paragraphs 26 & 27 held as under:- "26. Mulla, Principles of Mahomedan Law (19th Edn.). p. 120, states the legal position in the following words: "Under the Mahomedan law the three essential requisites to make a gift valid are: (1) declaration of the gift by the donor, (2) acceptance of the gift by the donee expressly or impliedly, and (3) delivery of possession to and taking possession thereof by the donee actually or constructively. No written document is required in such a case. Section 129 of the Transfer of Property Act excludes the rule of Mahomedan Law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument as stated therein. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mahomedan gift of immovable property there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case." 27. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by a Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. e The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. e The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law." 16. Thus, in view of the aforesaid, I am of the considered opinion that gift under the Mohammadan law can be made orally and its validity is not affected merely because it has been reduced in writing. Thus, the document (Ex.D/2) does not get invalidated for want of registration. However, as has been held by the Apex Court in the case Hafeeza Bibi (supra). The three mandatory ingredients for establishing the gift under the Mohamed Law are; (i) Declaration of the gift by the doner; (ii) Exceptance of the gift by the donee, expressly or impliedly; (iii) Delivery of possession too and taking possession thereof by the donee. 17. In the instant case, the trial Court has recorded a finding that at the time of execution of gift deed (Ex.D/2), defendants No.1 and 2 were not present. The document (Ex.D/2) also does not bear the sign of defendants No.1 & 2. Further, the attesting witnesses of Ex.D/2 also did not depose about delivery of possession to defendants No.1 & 2. The counsel for the appellants could not point out any reason to interfere with said findings of learned trial Court. Thus, the important ingredients viz. acceptance of the gift and delivery of possession of the property is not established by defendants No.1 & 2. 18. Thus, the foundation of the defendants' claim being based upon Ex.D-1 and D-2 is found to be not established. The trial Court findings in this regard are, therefore, just and proper and does not want any interference by this Court. 19. 18. Thus, the foundation of the defendants' claim being based upon Ex.D-1 and D-2 is found to be not established. The trial Court findings in this regard are, therefore, just and proper and does not want any interference by this Court. 19. Thirdly, the defendants have taken a plea that since the plaintiff has left the father's house long before and married against his wish, the father had divested of her share in the property. Somebody can be divested from the immovable property only in accordance with law. In absence of any document in this regard in the instant case, it cannot be said that the plaintiff was divested of her share in the property by Late Abdul Razak. 20. The jurisdiction of the First Appellate Court under Section 96 of CPC is well defined. If the findings recorded by the trial Court are probable in the facts and circumstances of the case, the Appellate Court is not supposed to substitute its own view over the view of the trial Court. In other words, the findings of the trial Court cannot be set aside without holding them to be perverse. In my considered opinion, the findings recorded by the trial Court are well reasoned and based on proper appreciation of evidence. 21. Thus, the findings recorded by the trial Court are just and proper and does not warrant any interference by this Court. The instant first appeal being devoid of merits, is hereby dismissed.