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Judgment
The instant Civil Second Appeal under Section 100 CPC
has been filed by the appellants aggrieved by the judgment and
decree dated 30.9.1999 passed by learned Addl. District Judge
No.9, Jaipur City, Jaipur (hereinafter referred to as the ''appellate
court'') in Civil Regular Appeal No.54/1999 whereby the ''appellate
court'' has quashed and set aside the judgment and decree dated
19.03.1987 passed by the learned Civil Judge No.5, Jaipur City
(hereinafter referred to as the `trial court'') and decreed the civil
suit filed by the plaintiffs against the defendants for declaration of
the sale-deed dated 6.9.1968 as null and void, possession of the
property etc.
The facts in brief for the purpose of deciding the appeal
are that plaintiffs-original respondents No.1 to 4 filed a suit for
declaration, seeking possession and injunction for the disputed
property i.e. shop.
The case of the plaintiffs before the trial court was that
the disputed property i.e. a shop described in para of the plaint
was gifted by Ms. Bashiram W/o Abdul Samad, defendant No.1
(since dead) and Abdul Rehman son of Ellahibux to the father of
the plaintiffs Mohd. Ibrahim vide the gift deed dated 08.02.1958
(Ex.3) and the plaintiffs being the heirs of Mohd. Rehman were
entitled to the property. It is also the case of the plaintiffs that the
sale deed dated 06.09.1958 (Ex.A-11) executed by the defendant
No.1 to 6 in favour of the defendant Nos.7 to 9 was void as
against the right of the plaintiffs as the defendant No.1 had
already gifted the disputed property, therefore, she had no right to
sale that property. It is also prayed that the defendants be
restrained by permanent injunction from raising any construction
in the disputed shop.
On the other hand, the case of the appellants-
defendants was that the alleged gift deed dated 08.02.1958 (Ex.3)
was forged and fabricated document and the disputed property
had rightly been sold by the defendant Nos.1 to 6 to defendant
Nos.7 to 9 by a registered sale deed dated 06.09.1968 and
therefore, they were entitled to that property.
On the basis of the pleadings of the parties, learned
trial court framed necessary issues. To prove the issues, both the
parties produced oral as well as documentary evidence.
Thereafter, the learned trial court after hearing the parties
dismissed the suit of the plaintiffs against the defendants for
declaration etc. vide impugned judgment and decree dated
19.3.1987. Against which the plaintiffs filed appeal before the
lower appellate court.
The learned trial court after the close scrutiny of the
facts, evidence and the law on the subject found that the
plaintiffs had failed to prove the execution of (Ex.3) and even if
it is taken to have been duly executed, it being a
contemporaneous document, needed to be registered and since
admittedly, the document was not registered, it could not have
been taken into evidence. Accordingly, the learned trial court
dismissed the suit.
The learned appellate court did not agree with the
findings of the learned court of the first instance and found that
gift had been made earlier and the (Ex.3) was prepared
afterwords only to evidence the fact of gift and the document was
not contemporaneous one and therefore need not be registered.
Accordingly, the learned first appellate court by the impugned
judgment and decree dated 30.09.1999 allowed the first appeal
filed by the plaintiffs and set aside the decree and judgment of the
trial court and decreed the suit in favour of the plaintiffs holding
the sale deed (Ex.A-11) to be void.
Hence, the present appeal.
On 24.8.2000, this Court admitted the second appeal
on the following substantial questions of law:-
Whether according to Mohammedan law if the gift is made through writing it does not require compulsorily registration? 2. Whether the version of oral gift which is an unregistered document i.e. Bakshisnama Ex.3 can be preferred against the registered document i.e. sale deed executed by defendants No. 1 to 6 in favour of defendants No. 7, 8 & 9? 3. Whether Ex.3 can be relied upon when the so called donor i.e. Bashiran defendant No.1 has specifically denied in her written statement to have gifted her share to Mohd. Ibrahim, father of the plaintiff ? 4. Whether the alleged gift by Mst. Bashiran and Abdul Rehman to Mohd. Ibrahim is according to Mohammedan Law and Ex.3 is in memory of oral gift when this fact was not pleaded in the plaint ? 5. Whether the findings recorded by trial court on issues Nos. 2, 3, 4, 6, 9, 10, 11 and 13 have been rightly and legally reversed by the lower appellate court after evaluating the evidence available on record ?
Having heard learned counsel for both the parties, I
have gone through the material and evidence available on the
record.
It is submitted by Shri Z.A. Naqvi, learned counsel for
the appellants that the impugned judgment and decree are totally
against the law, facts and the evidence available on record. The
learned first appellate court without meeting out the reasoning
recorded by the learned trial court has reversed the same and
thus, the learned lower appellate court has committed material
illegality. Shri Naqvi submits that the alleged gift deed (Ex.3) was
not proved by the plaintiffs and the same is also an unregistered
document which is not admissible in evidence as the same is
required to be registered under Section 17 of the Registration Act.
In (Ex.3), there is no mention regarding acceptance of gift. It is
further submitted that no such evidence is available on record
from which the factum of making gift and acceptance of the same
can be proved which is a condition precedent for gift. If the gift
deed was written in writing at that time in that situation the same
required to be registered because by virtue of the same the
interest, right and owner ship come into play. It is contended that
as per the Mohammadan law any property can be gifted by oral
gift but for that declaration of the donor, consent of the donee and
possession over the same are required to be proved. As per the
counsel for the appellants, the alleged gift-deed (Ex.3) was
allegedly executed by Bashiran but Bashiran herself has
completely denied this fact. It is also not the case of the plaintiffs
that oral gift was made and thereafter the gift deed was executed.
No document has been produced by the plaintiffs on record either
to prove their possession over the disputed property or the date of
their dispossession from the same to show that they were in
possession of the same. It is also submitted that in the criminal
case also, there was no mention about the gift deed (Ex.3).
Therefore, it is clear that (Ex.3) is forged one which is allegedly of
8.2.1958. By this document, the plaintiffs claimed their right over
the disputed property. Had this been true, no question did arise
to write the letter (Ex.4) on 15.2.1954. From this also, it is clear
that the gift-deed dated 8.2.1958 is a forged document. In
support of his submissions, learned counsel for the appellants has
placed reliance on the following judgments:
AIR 1974 Jammu and Kashmir 59, Ghulam Ahmad
Sofi Vs. Mohd. Sidiq Dareel & Ors., AIR 1975 Andhra
Pradesh 271, Chota Uddandu Sahib Vs. Masthan Bi (died) &
Ors., AIR 1926 Lahore 372, Maula Bukhsh Vs. Hafiz-ud-Din
& Ors., AIR 1973, Madras 280, S.M. Usman Ali & Anr. Vs.
O.B. Kubendra Bai & Anr., (1999) Western Law Cases (Raj.)
U.C. 118, Sardar Dan Singh Vs. Sardar Bhag Singh, AIR
1959 Supreme Court 31, Moran Mar Basselios Catholicos
Vs. Thukalan Paulo Avira & Ors., AIR 1968 Supreme Court
1413, Gopal Krishnaji Ketkar Vs. Mohamed Haji Latif &
Ors., 1961 Rajasthan Law Weekly 36-Smt. Jannat Bai Vs.
Firm, Janee Khusalji Jethaji.
Per contra, Shri MM Ranjan, Sr. Advocate, appearing for
the respondents has submitted that (Ex.3) in fact is an agreement
which was written by Bashiran and Abdul Rehman to the effect
that the property had been gifted before writing of gift deed
(Ex.3). As per Section 129 of Transfer of Property Act, the
provisions of Registration Act do not apply to the gift deed
executed by a Mohammaden. The plaintiffs have fully proved the
execution of (Ex.3) and also the fact that when Bashiran had
handed over possession of the disputed property to the father of
the plaintiff, she could not have remained owner of the property
and question of selling the same to respondent Nos. 7 to 9 on
6.9.1968 did not arise. The plaintiffs have proved this fact by
giving cogent evidence that defendant Nos. 7 to 9 forcefully took
the possession of the disputed shop on 06.09.1968 by breaking
the lock. After executing gift deed (Ex.3) and rent deed (Ex.4), it
goes to prove that possession of the disputed property was
handed over to the father of the plaintiffs. It is also proved that on
8.2.1958 the property was gifted orally and (Ex.3) was executed
on 8.2.1958 to remember the same. Badruddin (PW.2) has fully
proved this fact and no effective cross-examination was made on
behalf of defendant Nos. 7 to 9. The learned lower appellate court
has properly, minutely and thoroughly examined the evidence
available on record and holding (Ex.3) to be proved held that
Bashiran had gifted the disputed property to the father of the
plaintiffs and while doing so, the learned first appellant court
committed no error or illegality.
In support of his contentions, learned counsel for the
respondents has placed reliance on the following decisions:-
AIR 1995 Supreme Court 1205, Mahboob Sahab
Vs. Syed Ismail & Ors., AIR 1996 Patna 156, Bibi Riajan
Khatoon & Ors. Vs. Subera Sadrul Alam & Ors., AIR 1964
Madras 373, Johara Bibi Vs. Bibi & Ors., AIR 1998 Kerala
134, Chavittumparakkal Thamasikkum Dappayil Akkutty''''s
daughter Pathumma Vs. Pokku & Ors., AIR 1964 Supreme
Court 275, Valia Peedikakandi Kutheessa Umma & Ors. Vs.
Pathakkalan Narayanath Kumhamu (deceased) & Ors.,
Abdul Rahim & Ors. Vs. Sk. Abdul Zabar & Ors., (2009) 6
Supreme Court Cases 160, Gulamhussain Kutubuddin
Maner Vs. Abdulrashid Abdulrajak Maner & Ors. (2000) 8
Supreme Court Cases 507.
I have considered the rival submissions made by the
learned counsel for both the parties and perused the material on
record and rulings cited at the bar.
Essential conditions of a valid gift in Muslim Law:-
The question is not res integra. The essential conditions for a valid gift in Muslim law are now well settled. In para 13 of the judgment in Abdul Rahim & Ors. v. S.K. Abdul Zabar & Ors ., (2009) 6 SCC 160, the Hon''ble Supreme Court has held as under: "13. The conditions to make a valid and complete gift under the Mohammadan law are as under:
(a) The donor should be sane and major and must be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the time of hiba.
(c) If the thing gifted is divisible, it should be separated and made distinct.
(d) The thing gifted should be such property to benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by things not gifted i.e. should be free from things which have not been gifted.
(f) The thing gifted should come in the possession of the donee himself or of his representative guardian or executor.
While arriving at the above conclusions, the Hon''ble the
Apex Court has noticed the definitions of gift given in various
treatises on Mohammadan law like Mulla''s Principles of
Mohammadan Law, Syad Ameer Ali''s Commentary on
Mohammadan Law Faiz Badrudidin Tyabji''s Muslim Law-
The Personal Law of Muslims in India and Pakistan and
Dorrul Mokhtar''s Book on Gift and has also referred to its
earlier judgment in Maqbool Alam Khan v. Khodaija, AIR
1966 SC 1194. Therefore, I need not to burden this judgment by
citing and analyzing further precedents. For the present purpose,
suffice is to say that in Muslim law tender, acceptance and
possession of property makes a gift valid.
Whether the deed of gift is compulsorily registrable:
In Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel & Ors., AIR 1974 J & K 59, it has been held that sections 123 and 129 of the Transfer of Property Act do not supersede the Mohammadan law on matter relating to making of oral gifts and therefore registered instrument is not necessary. But if there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered as provided under Section 17 of the Registration Act. If, however, the making of the gift is an antecedent act and a deed is executed afterwards as evidencing the said transaction that does not require registration as it is an instrument made after the gift is made and does not therefore create, make or complete the gift thereby transferring the ownership of the property from the executants to the person in whose favour it is executed.
In Chota Uddandu Sahib v. Masthan Bi (died) & Ors., AIR 1975 AP 271, it has been held that if all the formalities, as prescribed by Mohammadan Law, regarding the making of gifts are satisfied, the gift is valid notwithstanding the fact that it is oral and without any instrument. If there is a contemporaneous document it should be registered. But if the gift is antecedent and the deed is subsequent merely evidencing the past transaction, it does not require registration because it does not itself make or complete the gift.
From the above judgments, I may readily draw the following conclusions:
(i) If gift is made orally and an instrument is executed afterwards only for the purpose of evidencing the transaction of gift, then such instrument need not be registered under the provisions of the Registration Act .
(ii) If the gift is made through an instrument that is to say if the gift is made in writing and the instrument itself makes and completes the gift by transferring the ownership of the property to the donee, then such instrument needs to be registered compulsorily under the Registration Act .
The learned Counsel for the respondents has heavily
placed reliance on following lines from the judgment of the
Hon''ble Supreme Court in Mohboob Sahab v. Syed Ismail &
Ors ., AIR 1995 SC 1205, to buttress the argument that the
registration of gift deed in Mohammadan law is not necessary.
"Though gift by a Mohammadan is not required to
be in writing and consequently need not be registered
under the Registration Act ;"
First of all it would be worth mentioning that the
question of registration of the gift deed was not in issue in the
said case as the deed of gift was already registered in that case.
Secondly, if I carefully read the observation, it nowhere says that
if the gift is in writing, it would not be required to be registered. It
simply says that gift by a Mohammadan is not required to be in
writing and if it is not in writing, it need not be registered.
In view of the above position of the law, it becomes
essential to determine whether the gift deed (Ex.3) was an
instrument which itself created, made and completed the gift or it
was an instrument merely evidencing the transaction of gift
executed after an oral gift having previously been made.
All the substantial questions of law raised in this
appeal revolve around the gift deed (Ex.3). Therefore, for the
adjudication of the above questions, the position of gift deed
(Ex.3) needs to be clarified. I would like to first ascertain that
how the lower courts interpreted this document and what their
conclusions were.
The learned trial court approached this document
from two angles, one from execution point of view and other
from content point of view. Delving upon the execution, the
learned trial court finds that there are serious contradictions in
the statement of the sole witness-(PW.2) examined to prove the
document. Besides the witness was interested one. Other two
persons, who were alive and had witnessed the execution of gift
deed (Ex.3) were not called for examination. Defendant No.1,
who is alleged by the plaintiffs to have executed gift deed
(Ex.3), had categorically denied the execution in her written
statement but the plaintiffs neither refuted her statement by
filing counter reply nor tried to compare her thumb impression
to prove the execution. The plaintiffs did also not exhibit the
register in which the alleged gift deed (Ex.3), was entered at the
time of execution. In these circumstances, the learned trial court
did not find (PW.2) to be reliable and draw adverse inference
against the plaintiffs for not examining the other two witnesses
of the execution and for not exhibiting the register in which the
document was entered. Adverting to contents of (Ex.3), the
learned trial court has extensively quoted from the contents of
(Ex.3) and stressing the following phrases viz. " "VERNACULAR MATTER OMITTED"
concluded that the document was contemporaneous one and in
the light of precedents required registration.
Dealing with the first of the above two aspects i.e.
(Ex.3), the learned appellate court held that (PW.2) was an
important witness as he lived in front of the disputed property
and his testimony could not have been rejected only on the basis
of certain technical discrepancies. However, the learned
appellate court has said nothing about the non-examination of
other two witnesses of the execution and non-proving the
register in which gift deed (Ex.3) is alleged to have been
entered. Coming to the contents of gift deed (Ex.3), the learned
appellate court has held that the trial court has over-looked the
fact that it mentions that Mohd. Ibrahim was looking after
defendant No.1- Abdul Rehman which indicates that Mohd.
Ibrahim was living with the donors, defendant No.1 and Abdul
Rehman. Therefore, Mohd. Ibrahim was in possession of the
property. The appellate court has also supported its conclusion
with the statement of (PW.2) to the effect that defendant No.1
had adopted Mohd. Ibrahim and he lived with defendant No.1
and Abdul Rehman. The appellate court has clarified that the
word ''adopted'' in the statement should not be taken in its
technical sense and its over all effect should be seen, which
according to the appellate court means that Mohd. Ibrahim was
living with the donors. Thus, the disputed property had already
been donated to Mohd. Ibrahim and Mohd. Ibrahim was living
with the donors, therefore, there was no need to give him
possession of the property and (Ex.3) was only a subsequent
document evidencing the gift made earlier.
With due difference to the learned appellate court, it
may be said that any witness does not become important or
reliable only for the reason that he was living in front of the
disputed property. While determining the reliability of a witness
his relation with the parties to the suit and consistency of his
statement are relevant factors. These factors can be and should
be taken into consideration before relying upon the testimony of
the witness. I am of the considered view that trial court has
minutely examined the statements of (PW.2) and has rightly
taken into account the relationship of him with the plaintiffs and
has not committed any error in not relying on his statement. The
learned trial court has also not committed any illegality in
drawing adverse inference against the plaintiffs for not
examining the two important and available witnesses of
execution of deed gift (Ex.3).
Thus, I find no fault in trial court''s conclusion that the
plaintiff had failed in proving the execution of document (Ex.3).
The trial court after thoroughly discussed the
evidence available on record, recorded the following findings:-
"VERNACULAR MATTER OMITTED"
In view of the above findings to which I fully agree, it
is proved that execution of the gift deed gift (Ex.3) was not
proved by the plaintiffs.
Coming to the second aspect of (Ex.3) i.e. whether it
was contemporaneous or subsequent to the fact of alleged gift. I
am afraid that the learned appellate court has travelled beyond
the pleadings of the plaintiffs. They have not pleaded in their
plaint that gift had been made earlier and the document (Ex.3)
was written subsequently to evidence the transaction. Besides
this, it may also be kept in mind that witness may lie but the
document not. I cannot brush-aside the contents of the
document only because they were written by some other person
or the executor or by a layman and therefore technicalities
cannot be expected of him. When someone transfers his
property, I cannot assume that he acts negligently or reluctantly.
Neither does he imagine the litigation and the situation arising
from that. Therefore, he generally rights what he intends to
right. Therefore, it is safer to rely on the contents of a
document which was written much earlier than the real
litigation. As far as the issue of living of Mohd. Ibrahim with
defendant No.1 and Abdul Rehman is concerned, it proves
nothing. Even it does not prove possession. For proof of
possession, animus of possession is must and there is nothing
on the record which may show that Mohd. Ibrahim was living
with defendant No.1 and Abdul Rehman as a holder of
possession. Contrary to it, (Ex.3) clearly mentions that he was
living with defendant No.1 and Abdul Rehman to serve them.
Learned trial court has quoted extensively from (Ex.3) and
phrases stressed by the trial court goes to show that donation of
property and its possession and writing of the gift deed were
contemporaneous and the following phrase further fortifies its
conclusion.
"VERNACULAR MATTER OMITTED"
From the above, it is clear that the document speaks
in present and does not refer to any past transaction. Besides, it
clearly shows that until the document was drawn the property was in possession of donor (Party No.1) and possession of the
suit property was handed over simultaneously with the execution
of the instrument in question.
Thus, I have no doubt in my mind that the (Ex.3) is a
contemporaneous instrument which itself made, created and
completed the gift, therefore, it was a document compulsorily
registrable under the provisions of the Registration Act and it is
an admitted fact the document is not registered. Hence it could
not be admissible in evidence.
There is not even a single word in (Ex.3) which may
reflect that the document is subsequent to the gift and had been
written to evidence the transaction. Neither has any witness said
that gift was made orally and the document was written
subsequently. If I read the (Ex.3) dispassionately and as a
whole, it gives clear impression that it is a contemporaneous
instrument which itself makes, creates and completes the gift.
The following phrases used in the instrument clearly show the
intention of the executors and circumstances at the time of
execution.
"VERNACULAR MATTER OMITTED"
(emphasis supplied by me)
This clearly shows that the agreement was written as
a gift deed and it was intended to complete the gift. In view of
this, I am of the considered view that while holding the gift deed
as contemporaneous one the learned trial court has not
committed any error or fact of law.
As has been mentioned above, it is settled position
of law that a contemporaneous gift deed in Mohammadan Law
requires registration and it cannot be taken into evidence unless
it is registered. The trial court has gone through a number of
precedents and has rightly drawn the principle of law laid down
therein. Now, when I have reached to the conclusion with
respect of (Ex.3) that the learned trial court has not committed
any error or fact of law in arriving at the conclusion that gift
deed (Ex.3) was neither proved nor was it registered and
therefore cannot be read as evidence and when the whole claim
of the plaintiffs is based on the said aspects and the conclusion
arriving at by appellate court are devoid of merit.
In view of the above questions of law framed at the
time of admission of the appeal as quoted above may be
answered as under:-
"(1)(i) If the gift is made orally and an instrument is
executed afterwards only for the purpose of
evidencing the transaction of gift, then such
instrument need not to be registered under the
provisions of the Registration Act .
(ii) If the gift is made through an instrument that is
to say, if the gift is made in writing and instrument
itself makes and completes the gift by transferring
the ownership of the property to the donee, then
such instrument needs to be registered compulsorily
under the Registration Act .
(2) There are impeccable findings of fact of the
learned trial court that the execution of the
Bakshisnama (Ex.3) has not been proved and even if
it is taken that the document had duly been
executed, its contents clearly indicate that it was a
contemporaneous document and therefore, it needed
registration and admittedly the document is not
registered and there is also no evidence which may
show that Mohd. Ibrahim had accepted the gift
purported to have been made by the said gift deed
(Ex.3) and as such transaction of gift was not
completed as per Mohammadan Law. In view of the
above, the document (Ex.3) has no value in the eye
of law and therefore, no question of preference
arises."
(3) As discussed above, the execution of the
document (Ex.3) gift deed was not proved and one
of the reasons of the said conclusion is that the
plaintiffs had not refuted the statement of
respondent No.1, the simple reply is that in such
circumstances, document could not have been relied
upon.
(4) As discussed above, besides the absence of the
pleadings, its contents also clearly indicated that it
was a contemporaneous document intended to
complete the gift.
(5) As discussed above, the findings recorded by the
trial court have no infirmity, either from the
appreciation of evidence point of view or from the
application of law point of view. Therefore, the
appellate court was not justified in reversing the
findings of the trial court on the said issues."
As a result, the appeal is allowed and the judgment
and decree dated 30.09.1999 passed by the first appellate court
are hereby set aside and decree and judgment of the trial court
dated 19.03.1987 is hereby restored. No order as to costs.