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Judgment
D.N. Baruah, J.—This Letters Patent Appeal is directed against the judgment and order dated 9.7.93 passed by learned Single Judge in First Appeal No. 63/87 dismissing the appeal and affirming the judgment and decree passed the trial Court.
The case of the Plaintiffs/Respondent No. 1 to 4, inter alia, is that Khan Bahadur Saiyad Mohammed Mahibulla (since deceased), the predecessor-in-interest of Respondent Nos. 7 to 15 at all material time was the absolute owner of a plot of land measuring 1 katha 4 Lechas included in K.P. Patta No. 771, covered by Dag No. 2296 of Lakhtokia, Mouza Ouwahati, along with houses standing thereon. Khan Bahadur Saiyed Mohammed Mahibulla died leaving behind lour sons and five daughters. The daughters of late Khan Bahadur Saiyed Mohammed Mahibulla after the death of their father relinquished their shares in the suit property which they inherited from their father as per provisions of Mohammedan Law in favour of their brothers. They executed a document purportedly a deed of gift of their share in the property to their brothers and the said brothers accepted the gift and thereby the sons of late. Khan Bahadur Saiyed Mohammed Mahibulla became the absolute owners of the said property i.e. 1 Katha 4 Lechas with the houses standing thereon mentioned above. After the gift the sons of Late Khan Bahadur Saiyed Mohammed Mahibulla amicably partitioned their property and gave the suit properly exclusively to Late Saiyed Badiul Alam, the predccessor-in-interest of Respondent Nos. 7(i) to 7(v) and in evidence thereof they executed a written document on 6.12.77. Late Saiyed Badiul Alam began to possess the suit property as his own. Bipin Behari Dey, the predecessor-in-interest of the present Appellants was in occupation of the premises described in the schedule to the plaint as a tenant under late Khan Bahadur Saiyed Mohammed Mahibulla Late Bipin Bihari Dey, after Late Saiyed Badiul Alam became the absolute owner of the properly, duly attorned him as landlord. Late Saiyed Badiul Alam, predecessor-in-inicrcstof Respondent Nos. 7(i) to 7(v) being in need of money warned to sell the suit properly. Respondent Nos. 1 to 4 also being in need of the property agreed to purchase the suit property from late Saiyed Badiul Alam. Accordingly, late Saiyada Badiul Alam made an agreement with Respondent Nos. 1 to 4 on 7.6.79 to sell the suit property for a consideration of Rs. 50,(XX)/- and received a sum of Rs. 6,000/- from the Respondent Nos. 1 to 4 as advance. Thereafter, pursuant to the said agreement the predecessor-in-interest of Respondent Nos. 7(i) to 7(v) Late Saiyada Badiul Alam sold the property in favour of Respondent Nos. 1 to 4 i.e. the Plaintiffs, after obtaining necessary permission, in the name of Respondent No. 1 by executing a registered deed of conveyance on receipt of the balance amount of Rs. 44,000/- on 6.8.79. At the lime of sale, as stated above, the said property was under occupation of late Bipin Behari Dey. Bipin Behari Dey died leaving two sons, namely, Sushil Ranjan Dey and Sudhir Ranjan Dey and two daughters, namely, Hema Lata Mazumdar and Angur Bala Mazumdar. However, the daughters being married remained away from the suit premises. Only Sushil Ranjan Dey was actually in occupation of the suit properly. Immediately after purchase the Respondent Nos. 1 to 4 through their Advocate intimated said Sushil Ranjan Dey, the predecessor-in-interest of Appellant Nos. 1 to 6 by a formal notice dated 4.9.79 about the purchase, asking them to comply with their duties as tenant. Respondent Nos. 1 to 4 needed the properly for their own use. Besides, the tenants sublet the suit properly and also failed to keep the property in proper manner. Therefore, Respondent Nos. 1 to 4 issued a notice dated 3.2.80 to the tenants asking them to quit vacate and deliver up vacant possession by the end of 29th of February, 1980. The said notice was duly received by them and they sent a reply on 23.2.80 through their Advocate staling that they were not a monthly tenant under the vendors of Respondent No. 110 4 and also under them. They repudiated the claim of Respondent Nos. 1 to 4 and claimed that, they were not liable to be evicted by the Respondents. Besides the vendor of Respondent Nos. 1 to 4 late Saiyed Badiul Alam was not the sole owner and had no authority to sell the entire properly. Therefore, the suit would not be maintainable by Respondent Nos. 1 to 4. The Plaintiffs requested the Defendant Nos. 1 and 2 to quit and vacate the suit houses as they needed the same for their own use and occupation. They were living in rented houses. They purchased the suit house only for that purpose. The Defendant Nos. 1 and 2 did not comply with the request. On the other hand they denied the title of the Plaintiffs. Situated thus, the Plaintiffs were compelled to bring a suit for declaration of Plaintiffs'' right, title and for recovery of possession.
Late Sushil Chandra Dey, predecessor-in-interest of Respondent Nos. 1 to 6 filed written statement. In the written statement he admitted the fact that the suit property belonged to late Khan Bahadur Saiyed Mohammed Mahibullah. However, he admitted that Late Khan Bahadur Saiyed Mohammed Mahibulla died leaving his heirs, namely, sons daughters and Late Saiyed Badiul Alam. He also stated that he and Sudhir Dey had been inoccupation of the premises as tenant on arrangement to pay rent @Rs. 30/-. He denied that the Defendant No. 5, namely, Late Saiyed Badiul Alam became the absolute owner of the suit premises. According to him originally Bipin Behari Dey, father of Defendant Nos. 1 to 4 was a monthly tenant in respect of the houses standing on the land measuring 1 Katha 4 Lechas of Dag No. 2296 convered by Periodic Patta No. 771 of Lakhtokia. He further stated that after the receipt of a notice dated 4.2.80 from Shri Atul Sarma, Advocate, Defendant No. 1 deposited rent in Court as before. The name of the Plaintiff M/s Taraknath was also added with the names of Defendant Nos. 5 to 14, the reason being that said M/s Taraknath purchased the property from Defendant No. 5. It was specifically denied that the Plaintiffs had absolute right, title and interest over the property inasmuch as the other heirs of late Khan Bahadur Saiyed Mohammed Mahibullah were also co-owners of the said suit property. He denied any partition and relinquishment.
On the pleadings issues were framed and after recording the evidence of the witnesses the trial Court decreed the suit. A First Appeal was preferred by the present Appellants before this Court and the learned Single Judge dismissed the appeal affirming the judgment and decree passed by the trial Court. Against that the present Letters Patent appeal.
Learned Single Judge while disposing of the appeal formulated the following points:
(i) whether the Plaintiff No. 1 viz. M/s Taraknath is a registered partnership firm or not and if not whether the suit is maintainable; (ii) whether suit is barred by res-judicata in view of earlier suits filed by the vendors of Plaintiffs against the Defendants for ejectment which were dismissed; (iii) whether the suit as a whole has abated due to non-substitution of the heirs of Defendant No. 3 who died during the pendency of the suit; (iv) whether the Plaintiffs have acquired right, title and interest over the suit property; (v) whether the suit is bad for splitting up of tenancy and (vi) whether Plaintiff is entitled to get a decree for ejectment of the Defendant.
After hearing the counsel for the parties learned Single Judge held that the suit was not barred by res-judicata and it was not bad for non-substitution of the heirs of Defendant No. 3. So far the Plaintiffs'' acquisition of a valid title over the suit property by way of purchase from Defendant No. 5 Late Saiyad Badiul Alam, learned Single Judge observed that the Respondents-Plaintiffs had purchased the suit property by executing a deed of sale (Ext. 5) from the Defendant No. 5 late Saiyed Badiul Alam. The learned Single Judge also observed that after the death of Khan Bahadur Saiycd Mohammed Mahibullah, the right, title and interest over the property devolved on his sons, daughters and wife including Late Saiyed Badiul Alam. The daughters of Late Khan Bahadur Saiyed Mohammed Mahibullah after becoming joint owners in respect of the property relinquished their shares in favour or their brothers i.e. sons of Khan Bahadur Saiyed Mohammed Mahibullah. All the brothers thereafter made an amicable partition and as per the partition the suit property fell in the share of late Saiyed Badiul Alam - Defendant No. 5 -Predecessor-in-interest of Respondent Nos. 7(1) to 7(v), therefore, he became the absolute owner in respect of the suit property and as the said property was conveyed to the Respondents-Plaintiffs they had acquired right, title and interest. The learned Single Judge, accordingly, dismissed the appeal affirming the judgment of the trial Court granting decree.
The only point raised before us was that the suit itself was not maintainable on the ground that the Plaintiffs who purchased the suit property from the predecessor-in-interest of Respondent Nos. 7(i) to 7(v) did not acquire the full right, title and interest over the suit property and, therefore, the predecessor-in-interest of Respondent Nos. 7(i) to 7(v) had no saleable right to transfer the entire property in favour of the Respondents-Plaintiffs. A best the Defendant No. 5 i.e. the predecessor-in-interest of Respondent Nos. 7(i) to 7(v) had a share in the property and he could sell the said share in the property. If that be the case he could not bring an action for declaration of right, title and interest over the entire suit property.
In order to determine whether the suit is maintainable and whether the predecessor-in-interest of Respondent Nos. 7(i) to 7(v) had the saleable right to transfer the entire suit property, following points require determination:
(1) Whether the daughters of Late Khan Bahadur Saiyed Mohammed Mahibulla could transfer their right, title and interest over the share of the properly in the manner stated by the Plaintiffs Respondents.
(2) If so, whether on relinquishment, the sons of Late Khan Bahadur Saiyed Mohammed Mahibulla acquired absolute right, title and interest over the suit property left by their deceased father and whether they could make amicable partition of the property by way of family arrangement.
(3) If so. whether there was such a valid amicable partition in respect of the suit property and whether on such amicable partition right, title and interest over the property was transferred to and vested in the Defendant No. 5 i.e. the predecessor-in-interest of Respondent Nos. 7(i) to 7(v).
(4) Whether the Respondents-Plaintiffs acquired right, title and interest by way of purchase from the predecessor-in-interest of Respondent Nos. 7(i) to 7(v).
Learned Single Judge in paragraph 24 of his judgment has observed thus-
In this case as the original owners were governed by Mohammedan Law, verbal gift with possession of the property is valid and proper P.W. 3 was the eldest son of Late Khan Bahadur Saiyed Mahibulla. He has stated on oath that Defendants 10 to 14 were his sisters and his mother died in the year 1971. He had further stated that after death of his father he along with other L.Rs became the owner of the land and after his mother''s death, it was an amicable partition amongst the brothers and their sisters relinquished verbally their title and possession in favour of all the sons. As the parties are governed by Mohammedan Law such a verbal relinquishment is valid and proper. This was, however, followed by a written deed of relinquishment Ext. 2. He has proved the signature of his sisters as Ext. 2(1) to Ext. 2(5). It may be state of that though the term relinquishment has been used, actually it was a gift with delivery of possession.
We have persued Ext. 2 which is shown as deed of relinquishment. This deed of relinquishment was executed by the daughters of late Khan Bahadur Saiyed Mohammed Mahibulla in respect of 1 Katha 4 Lcchas of land together with a tinned house at Lakhiokia, Guwahati. On his death it devolved upon his heirs, namely sons, daughters and widow of Khan Bahadur Saiyed Mohammed Mahibulla (though in the deed it is mentioned ''vendors, vendees and the deceased mother''). After the death of their mother all the sons and daughters became the owners of the property. The daughters were married and had been living elsewhere. Since the sons faced difficulties for want of dwelling house, the daughters relinquished their share in the property. A close reading of the deed, will indicate that the said deed is actually a deed of gift.
Under the Transfer of Property Act, transfer by way of gift of immovable properly value of which is more than Rs. 100/- (Rupees one hundred) must be effected by a registered instrument signed by or on behalf of the donor and attested by two witnesses. In case of gift by a Mohammedan there are three essential conditions which must be be fulfilled. There must be a declaration of the gift by the donor. Acceptance of the gift, express or implied by or on behalf of the donee and delivery of possession of the subject of the gift by the donor to the donee. If all these three conditions are fulfilled, a gift is complete. Under the Mohammedan Law it is essential as regards gifts that the donor should divest himself completely of all the ownership and dominion over the subject of the gift. It is essential to the validity of the gill that there should be delivery of such possession as the subject of the gift is susceptible of. In I.S. Mahomed Aslam Khan v. Khalilul Rehaman Khan and Ors. AIR 1947 PC 97, the Privy Council observed that a gift with reservation of possession by the donor during his life time was held to be void. The legal requirement of a gift under Mohammedan Law is that there should be a delivery of possession by the donor and that possession must follow from the gift by the donor. Taking possession by the donee without the permission of the donor will not filfil the requirement of gift, A gift is complete not on the date of declaration or acceptances, but only on the date on which possession is delivered. When the donor himself is not in physical possession of the subject of gift, the gift will not be invalid in every case simply for want of physical delivery of possession. In such case a gift would be valid if the donor does all that he can to perfect the gift. When the subject of gift is in possession of a tenant, the gift in such a case will be completed by a request by the donor to the tenants to attorn the donee. In short, the intention of the donor to give up the possession and control over the properly should be indicated from the facts and circumstances of the case.
In the instant case, admittedly the house was not in possession of the owners i.e. the heirs of Late Khan Bahudur Saiyed Mohammed Mahibulla. It was in possession of the tenants. Therefore, physical delivery of possession of the land was not possible. But from the record it does not appear that the donors, i.e. the daughters of Late Khan Bahadur Saiyed Mohammed Mahibulla gave any information to the tenants that they made a gift and they ceased to be the co-owners of the property. In these circumstances even if we accept the relinquishment of the right over the property of the daughters to their brothers as gift, one of the essential ingredients of the gift i.e. delivery of possession is missing. Under the circumstances the right, title and interest which the daughters of Late Khan Bahadur Saiyed Mohammed Mahibulla inherited on the death of their father were not transferred 10 and vested in their brothers. Therefore, the brothers alone cannot be said to be the sole owners of the property. Learned Counsel for the Respondents i.e. the tenants of Late Khan Bahadur Saiyed Mohammed submitted that there could not be any deed of gift by relinquishment as some of the daughters of the original owner were out of the country. In view of our decision that there was no valid transfer by way of gift etc. in the facts and circumstances of the case we do not like to express our opinion on this point.
The next point to be seen is whether the sons of Late Khan Bahadur Saiycd Mohammed Mahibulla had given the suit property to the 5th Respondent i.e. the predecessor in interest of Respondent Nos. 7(i) to 7(v) by way of family partition. Normally a family arrangement may be effected to allay disputes existing or apprehended in the interest of harmony in the family or the preservation of property. However, it is not always necessary that there must exist a dispute actual or possible in the future in respect of each and every item of the property and amongst all the members arrayed one against the other. It would be sufficient if it is shown that there were actual or possible claim and countre claims by parties, in settlement whereof the arrangement as a whole had been arrived at, thereby acknowledging title in one, to whom a particular property falls on the assumption that he had an anterior title therein See Shambhu Prasad Singh Vs. Mst. Phool Kumari and Others, In Kale and Others Vs. Deputy Director of Consolidation and Others, it was held that a family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable, the family arrangement is final and binding on the parties to the settlement and this clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same. Therefore, in order to give effect to a family arrangement there must be a dispute, present or likely to be in future and to resolve the disputes there may be family arrangements. In other words, a family arrangement presupposes cither an existing dispute or a dispute likely to occur in future and to resolve those dispute such family arrangement can be made. In Mohammedan Law also similar consideration must prevail at the time of effecting a family arrangement.
Looking to the present facts of the case we do not find any evidence that there was any family dispute or claim or counter-claim. Besides, there is no evidence except a mere statement that there was a family arrangement. In our opinion, this is not sufficient for the purpose of conferring absolute title over the suit property. Therefore, on this ground also the 5th Defendant did not acquire absolute right, title and interest in the suit property. He was only one of the heirs inheriting the properties of Late Khan Bahadur Saiyed Mohammed Mahibulla. Attempt was made to show that the Appellants acknowledged the 5th Defendant as the landlord and they were estopped from denying the title. The admitted fact is, after the death of Late Khan Bahadur Saiyed Mohammed Mahibulla, the right, title and interest over the suit property as well as other properties, if any, belonging to Late Khan Bahadur Saiyed Mohammed Mahibulla devolved upon all the heirs including the 5th Defendant. In that sense the 5th Defendant was also co-owner. If attorned by the tenant he could at best be a joint landlord. That by itself cannot confer absolute right, title and interest over the entire property.
In view of the above we find that the Respondent tenants did not acquire absolute right, title over the property. As already stated, they had only acquired the right, title and interest which the Defendant No. 5 had acquired on the death of Late Khan Bahadur Saiyed Mohammed Mahibulla.
For the reasons stated above, we respectfully disagree with the con-elusions arrived at by the learned Single Judge. We hold that the Defendant No. 5 i.e. the predecessor-in-interest of Respondent Nos. 7(i) to 7(v) did not acquire the absolute right over the property and also he had no exclusive saleable right over the said property. He could only sell his share and if that be so the present Respondents only stepped into the shoes of the Defendant No. 5 and at present Respondent Nos. 7(i) to 7(v). That being the position the Plaintiffs-Respondents are not entitled to get a declaration of right, title and interest over the suit property and for recovery of possession on the basis of the sale deed, We, accordingly, allow the appeal, set aside the judgment and order dated 9.7.93 passed by the learned Single Judge and dismiss the suit with costs all throughout.