Mohd. Farooq Siddiqui vs Smt. Saeeda Bano
2021 Latest Caselaw 9457 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20 A.F.R. 
 

 
Case :- SECOND APPEAL No. - 53 of 2015
 

 
Appellant :- Mohd. Farooq Siddiqui
 
Respondent :- Smt. Saeeda Bano
 
Counsel for Appellant :- M.A. Siddiqui,M.A. Siddiqui
 
Counsel for Respondent :- Subhash Vidyarthi
 

 
Hon'ble Manish Mathur,J.

1. The substitution of sole appellant as allowed earlier is permitted to incorporate during the course of the day.

2. Heard Mr. Aftab Ahmad learned counsel for plaintiff-appellant and Mr. Subhash Vidyarthi learned counsel for defendant respondent.

3. Second appeal under Section 100 of the Code of Civil Procedure 1908 has been filed against judgment and decree dated 16th February, 2015 relating to suit No. 32 of 1982, Mohd. Farooq Siddiqui versus Smt. Saeeda Bano.

4. A preliminary objection regarding maintainability of the second appeal has been raised by learned counsel for respondent on the ground that no substantial question of law is involved in the present second appeal. The said question therefore is also being adjudicated upon.

5. The plaintiff-appellant had filed a suit for declaration with regard to the suit premises which was decreed by means of the judgment and decree dated 31st March, 2003 but the first appeal was allowed by means of the judgment and decree dated 16th February, 2015 leading to the filing of the present second appeal.

6. Learned counsel for appellant has submitted that the suit premises had earlier belonged to Smt. Abida Bano who was the owner in possession of the house bearing Municipal No. 337/1991 having purchased the same by means of a registered sale deed from one Altaf Husain. It is submitted that the plaintiff-appellant entered into the suit premises as a tenant of Smt. Abida bano who was widow but issueless. Learned counsel submits that due to the care being taken by the plaintiff- appellant, Smt. Abida Bano being pleased with his services gifted the suit premises to the plaintiff-appellant by means of an oral gift deed i.e. a hiba. It is submitted that merely to recognize the oral gift deed, a written deed of hibanama was also executed on 10th April, 1972 while delivering formal possession of the suit premises on the same date. It is submitted that subsequently the defendant-respondent filed SCC suit No. 715 of 1980 claiming herself to be the owner of the entire suit premises due to which the plaintiff-appellant was compelled to file the present suit No.32 of 1982 seeking the relief of declaration. It is submitted that since the plaintiff-appellant was already in possession over the suit premises, no further relief of possession was sought nor was required to be taken in the plaint.

7. Learned counsel submits that the trial court framed four issues with the first issue pertaining to the ownership and possession of the plaintiff and issue No.3 being framed with regard to the ownership of the suit premises by the defendant. He has submitted that after examination of evidence, the suit has been decreed in favour of the plaintiff-appellant by means of the judgment and decree dated 31st Mach, 2003 which was appealed against by the defendant-respondent.

8. Learned counsel for appellant has further indicated that the first appellate court had framed three points of determination with the first point adverting to the question regarding validity of the oral hiba and the ownership of the plaintiff on that basis. The second issue framed by the first appellate court was with regard to the suit being barred in terms of the proviso to Section 34 of the Specific Relief Act, 1963.

9. Learned counsel for the plaintiff-appellant has submitted that the first appellate court has erred substantially in law in reversing the judgment and decree of the trial court primarily on the ground that the reversal has been done with regard to findings of fact recorded by trial court without scrutinizing the said findings and pointing out any errors therein. It is also submitted that finding recorded by the first appellate court regarding invalidity of the hibanama is also against the oral evidence on record. It has also been submitted that the first appellate court has misinterpreted the proviso to Section 34 of the Specific Relief Act in holding against the plaintiff-appellant and has also erred substantially in law with regard to the finding pertaining to ownership of the defendant-appellant in view of the fact that the sale deed alleged to have been executed in favour of the defendant-appellant was never proved during trial.

10. Learned counsel for the appellant has relied upon the judgment in the case of Uma Pandey and another versus Munna Pandey and others reported in (2018) 5 SCC 376 to submit that the question pertaining to interpretation of any document including its contents or admissibility in evidence or its effect on the rights of the parties to the lis constitutes a substantial question of law and that the question since arising in the present appeal, deserves to be admitted on the said substantial question of law.

11. Learned counsel for the respondents however has refuted the submissions advanced by learned counsel for plaintiff-appellant with the submission that judgment and order of the first appellate court is based on cogent findings appreciating evidence recorded by the trial court and as such the present second appeal does not involve any substantial question of law requiring it to be admitted on the said question. It is submitted by learned counsel for defendant-appellant that in terms of Section 100 of the Code of Civil Procedure, it is incumbent that the second appeal should deserve admission on a substantial question of law and since no substantial question of law arises for determination in the present second appeal the same is required to be dismissed at admission stage itself.

12. Learned counsel for the respondent has also submitted that with regard to issue No.1 framed by the trial court pertaining to ownership and possession of the plaintiff-appellant, the trial court has clearly erred on that issue since even from a perusal of judgment and decree of the trial court, it is apparent that the conditions required to prove a hibanama were not satisfied even if the evidence considered by the trial court is taken into account. It is submitted that the first appellate court has reversed the said finding of fact taking into account the statements of plaintiff witnesses themselves to hold that three essential ingredients required for proving a hibanama were not satisfied. It is submitted that the first appellate court has reversed the finding of trial court upon consideration of evidence which was already on record.

13. Since a dispute has been raised with regard to admissibility of the second appeal in terms of Section 100 of the Code of Civil Procedure, it would be appropriate to deal with the said submission as a preliminary issue.

14. Considering the material on record and submissions advanced by learned counsel for parties, it is undisputed that the suit premises belonged to Smt. Abida Bano as the owner in possession. While the plaintiff-appellant claims ownership and possession over the suit premises on the basis of the oral gift and hibanama dated 10th April, 1972, the defendant-respondent has claimed ownership and possession over suit premises on the basis of a registered sale deed dated 16th July, 1980 executed by successor of Smt. Abida Bano.

15. In judgment and decree of the trial court, it has been indicated that as per averments made in the plaint, it is the case of the plaintiff-appellant that Smt. Abida Bano had first donated the suit premises by means of oral hiba in his favour on 10th April, 1972 and merely to record the said fact, a written hibanama was also executed though not registered. The trial court as indicated herein above had framed four issues with the first issue pertaining to ownership and possession of the plaintiff. It is apparent from the judgment and decree of the trial court that the aforesaid hibanama was found to be valid on the basis of conditions for execution of hibanama being satisfied. The trial court judgment has indicated evidence of plaintiff's witnesses, Anwar Husain and Mushir Ahmad to establish that the hibanama in favour of plaintiff-appellant stood proved in terms of Section 149 of Muslim Law. At the same time, the trial court has disbelieved the story of sale deed said to have been executed in favour of defendant-respondent. The trial court has discarded the plea of defendant that plaintiff-appellant was not in possession over the property in question since no mutation in his favour was effected in the Palikia records. The said plea has been discarded on the ground that mutation in Palika records does not confer any ownership on the person concerned and is therefore an irrelevant factor. The trial court has then gone ahead to indicate that the hibanama which was on record as paper No. Ga-10 is not a registered instrument and therefore can not be seen in evidence but at the same time can be looked into for the purposes of proving an oral hiba. The trial court has thereafter on that basis and on the basis of evidence of P.W.-2 and 3 held the hibanama to be proved in favour of the plaintiff-appellant.

16. The first appellate court as indicated herein above had framed three points for determination with the first point pertaining to the ownership and possession of the plaintiff-appellant on the basis of the oral hiba and second point for determination being framed with regard to suit being not maintainable in terms of proviso to Section 34 of the Specific Relief Act, 1963.

17. A perusal of the judgment and order passed by the first appellate court indicates that the entire hibanamama has been reproduced in the body of the judgment. Upon consideration of the hibanama and evidence of plaintiff's witnesses themselves the first appellate court has recorded a conclusion that hibanama was never proved by the plaintiff's witnesses since in their statements, the plaintiff's witnesses 2 and 3 have clearly indicated that Smt. Abida Bano was a pardanashin lady whom they did not recognize. The first appellate court has also on the basis of the statements of plaintiff's witnesses 2 and 3 reached a conclusion that the said plaintiff witnesses had merely sought to prove the hibanama and no evidence whatsoever has been produced to prove the oral hiba which is said to have preceded the hibanama. The first appellate court after adverting to judgments passed by this Court regarding conditions for proviing oral hiba by a pardanashin lady has held that neither the oral hiba nor the hibanama stood proved.

18. With regard to second point of determination, the first appellate court has clearly recorded a finding that the suit itself was barred in terms of proviso to Section 34 of the Specific Relief Act, 1963. To reach that conclusion, the first appellate court has recorded a finding that even as per submissions of the plaintiff, he was aware with regard to the execution of a sale deed in favour of the defendant but had specifically omitted to challenge the said sale deed. On that score, the first appellate court has held that since the additional prayer required to be taken seeking cancellation of sale deed favouring the defendants has not been taken, the suit would therefore be barred in terms of proviso to Section 34 of the Specific Relief Act.

19. It is undisputed that even as per pleadings of the plaintiff-appellant, the alleged written hibanama was preceded by oral hiba said to have been made by Smt. Abida Bano in favour of the plaintiff. Conditions regarding proving of a hibanama have been laid down by Hon'ble the Supreme Court in the case of Rasheeda Khatoon versus Ashiq Ali reported in (2014) 10 SCC 459 in which it has been held that a gift under the muhammdan law can either be oral or by means of written instrument but for a gift to constitute a valid gift under the muhammdan law, three essential features are required namely (i) declaration of the gift by donor (ii) acceptance of the gift by donee expressly or impliedly and (iii) delivery of possession either actually or constructively to the donee. It has further been held that only because the writing is contemporaneous of the making of gift deed it does not warrant a registration under Section 17 of the Registration Act. The relevant paragraphs of the judgment are as follows:

" 16. From the aforesaid discussion of the propositions of law it is discernible that a gift under the Muhammadan Law can be an oral gift and need not be registered; that a written instrument does not, under all circumstances require registration; that to be a valid gift under the Muhammadan Law three essential features namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act.

17. At this juncture, it is pertinent to refer to a three-Judge Bench decision in Valia Peedikkandi Katheesa Umma and others v. Pathakkalan Naravanath Kunhamu (deceased) and after him his legal representatives and others, AIR 1964 SC 275 where the question arose whether a gift by a husband to his minor wife and accepted on her behalf by her mother is valid. Dealing with the concept of gift under Muhammadan Law the Court observed that:-

"... Muhammadan Law of gifts attaches great importance to possession or seisin of the property gifted (Kabz-ul-Kami) especially of immovable property. The Hedaya says that seisin in the case of gifts is expressly ordained and Baillie (Dig P.508) quoting from the Inayah refers to a Hadis of the Prophet-"a gift is not valid unless possessed." In the Hedaya it is stated ? "Gifts are rendered valid by tender, acceptance and seisin" (p.482) and in the Vikayah "gifts are perfected by complete seisin" Macnaghten (202)."

After so stating the Court proceeded to lay down that it is only actual or constructive possession that completes the gift and registration does not cure the defect nor is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the property unless the minor has reached the years of discretion. It has been further opined therein that if the property is with the donor he must divest from it and the donee must enter upon possession. However, to that rule there are certain exceptions which the Court took note of, stating thus:-

"Exceptions to these strict rules which are well recognized are gifts by the wife to the husband and by the father to his minor child (Macnaghten, page 51 principles 8 to 9). Later it was held that where the donor and donee reside together an overt act only is necessary and this rule applies between husband and wife. In Mahomed Sadiq Ali Khan v. Fakhr Jahan Begum, 59 Ind App 2 : (AIR 1932 PC 13) it was held that even mutation of names is not necessary if the deed declares that possession is delivered and the deed is handed to the wife." We have referred to this decision only to highlight the principle that either there has to be actual delivery of possession from the donor or the donee must be in constructive possession to make a gift valid under the Muhammadan Law.

22. We have already stated, actual physical possession may not be always necessary if there is constructive possession of the donee. In this context we may reproduce Section 152, sub-Section(3) of Mulla's Muhammadan Law:-

"No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divert himself of all control over the subject of the gift." "

20. Upon applicability of the aforesaid judgment, it is to be seen that learned counsel for the plaintiff-appellant has asserted that since the plaintiff was continuing in possession since prior to the hibanama as a tenant in the suit premises, he continued to be in possession as such which can be said to be a constructive possession over the suit premises. As such it is submitted that nothing further was required to be done by the plaintiff-appellant since he continued to be in constructive possession over the suit premises.

21. Upon applicability of the aforesaid judgment in the case of Rasheeda Khatoon (supra) to the facts of the present appeal, the first appellate court has noticed that the plaintiff-appellant was continuing in possession over suit premises since prior to the hibanama. However it is a material fact that the said possession of the plaintiff-appellant was as a tenant over the suit premises and not in the capacity of owner. In the case of Rasheeda Khatoon (supra), Hon'ble the Supreme Court has held that possession can be shown not only by exclusive enjoyment of the land or premises in question but also by asserting who has actual control over the property. It was held that some one may be in apparent occupation of the premises but the other would have control and actual possession.

22. With regard to applicability of the aforesaid law, it is seen from judgment of trial court that no such finding with regard to possession of the plaintiff has been recorded after the hiba. The trial court after noticing that the plaintiff's witnesses proved the hibanama has assumed possession of the plaintiff over suit premises. However the first appellate court after reproducing the hibanama has recorded a specific finding that the plaintiff's witnesses had not proved possession of plaintiff over the suit premises. It has also been recorded by the first appellate court that although even as per pleadings of the plaintiff that the hibanama was preceded by oral hiba, the oral hiba has not been proved by any witness. It is specifically recorded that the plaintiff's witnesses had merely proved the written hibanama but since the case of plaintiff is based on the oral hiba, the same was required to be proved in accordance with the judgments on that score. The first appellate court has thereafter disbelieved plaintiff's submissions on that very score. The aspect with regard to proving of habanama has also been disbelieved by the first appellate court after adverting to the statements of plaintiff's witnesses which clearly established that plaintiff's witnesses who were also witnesses to the alleged hibanama never recognized Smt. Abida Bano who was a pardanashin lady and as such has held that there is no evidence with regard to proof of oral hiba since the alleged witness to hibbanama have specifically stated that they did not recognize the donor i.e. Smt. Abida Bano; the written hibanama as such does not stand proved.

23. Learned counsel for appellant has relied upon the judgment rendered by this Court in the case of Firm Baldeo Prasad-Balgovind versus Shubratan and others reported in (1936) AWR 506 to submit that non mutation of the name of donee in municipal records does not have any bearing with regard to the plaintiff being in possession and therefore the first appellate court has clearly erred in placing too much reliance on that aspect. However in paragraph 3 of the aforesaid judgment, it is apparent that what has been held is that with regard to proof of hibanama, all that is required is that the donor should clearly divest himself of his ownership in the subject matter of the gift and should deliver such possession as the subject matter of gift admits of. The relevant paragraph is quoted as follows:-

"3. The rule of Muhammadan Law as regards delivery of possession in cases of gift is well settled. All that is required is that the donor should clearly divest himself of his ownership in the subject-matter of the gift and should deliver such possession as the subject-matter of the gift admits of. Where a house is in actual occupation of the donor and the donee, who are related as father-in-law and daughter-in-law, and the donor declares, in unequivocal language, that he has divested himself of ownership of half of it, retaining the other half and authorised the donee to take possession, the character of the donee's possession, which already existed, is altered, and for all formal purposes the gift must be considered to have been perfected by such delivery of possession as was feasible in the circumstances. It is significant that in this case the donor did not exercise any act of ownership after executing the deed of gift. The donor, who retained ownership of half the house, remained in joint possession with the donee. The latter was in possession precisely in the same manner as the donor in respect of her half of the house. The mere fact that the donor did not have mutation of names effected in the Municipal registers does not affect the case. For these reasons, the view of the learned Subordinate Judge is right. The appeal has no force, and is dismissed with costs."

24. Upon applicability of the aforesaid judgment, it is apparent as indicated in the narration of first appellate court that at the time of execution of hibanama, it is specifically stated that the donor was still continuing in possession over the suit premises. There is no statement in the hibanama with regard to transfer of possession in favour of the donee i.e. the plaintiff. Since the transfer of possession of the premises in question is an essential ingredient of hiba, the first appellate court has recorded that the transfer of possession in lieu of hiba was not proved.

25. In the considered opinion of this Court, no exception can be taken by the said finding recorded by the first appellate court particularly since the trial court has not adverted to that issue at all. It is thus clear that the judgment rendered by the first appellate court with regard to issue No.1 is on the basis of pleadings and evidence on record and findings of the trial court have been reversed after scrutinizing the said findings and pointing out errors. In view of aforesaid, with regard to finding recorded regarding hiba, no exception can be taken to the finding of the first appellate court and no substantial question of law pertaining to the same arises in the second appeal.

26. With regard to the second point of determination by first appellate court pertaining to the suit being barred in terms of proviso to Section 34 of the Specific Relief Act, 1963, it is apparent that although the learned counsel for appellant has taken a plea that such an issue could not have been framed at the stage of first appeal without such ground having been taken before the trial court, but it is seen that no such ground has been taken in the memorandum of appeal before this court nor any such substantial question of law has been proposed. Even otherwise, the question regarding maintainability of the suit in terms of Section 34 of the Specific Relief Act has to be seen with regard to pleadings made in the plaint and would therefore be a question of law which is already settled can be taken at any stage.

27. With regard to the aforesaid finding, it is seen from the judgment of first appellate court that the plaintiff from the very outset was aware with regard to the registered sale deed having been executed in favour of the defendant on which basis she was claiming. The first appellate court has recorded a finding to that effect that even in the plaint, the plaintiff has clearly indicated that the present suit was filed after filing of a suit for ejectment by the defendants which was registered as SCC Suit No. 715 of 1980 which was on the basis of the registered sale deed. As such no exception can be found to the finding recorded by the first appellate court regarding the said issue since admittedly no prayer has been sought by the plaintiff regarding cancellation of registered sale deed favouring the defendant-respondent.

28. The admissibility of second appeal in terms of Section 100 of the Code of Civil Procedure is to be on the basis of a substantial question of law being involved as distinct from a mere question of law. As such the involvement of a substantial question of law for a second appeal to be entertained is a sine qua non. The same has been held by Hon'ble Supreme Court in the case of Kshitish Chandra Purkait versus Santosh Kumar Purkait and others reported in (1997) 5 SCC 438. The relevant paragraph is quoted as follows:-

" 12. In the light of the legal position stated above, we are of the view that the High Court acted illegally and in excess of its jurisdiction in entertaining the new plea, as it did, and consequently in allowing the second appeal. Even according to the High Court, the point urged on behalf of the appellant was only a "legal plea" though no specific plea was taken or no precise issues were framed in that behalf. The High Court failed to bear in mind that it is not every question of law that could be permitted to be raised in second appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in sub-section (5) of Section 100 CPC. Under the proviso, the Court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of law". The reason for permitting the substantial question of law to be raised, should be "recorded" by the Court. It is implicit therefrom, that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the same."

29. Upon consideration of the aforesaid factors, it is apparent that the judgment and order of the first appellate court reversing the findings of fact recorded by the trial court is based on the material evidence on record and after discussing the findings recorded by the trial court. As such in the considered opinion of this Court, there is no substantial question of law involved which may require admission of the second appeal.

30. Consequently the second appeal being devoid of merits is dismissed upholding the judgment & decree dated 16th February, 2015 passed in First Appeal No. 136 of 2003. Parties shall bear their own costs.

Order Date :- 4.8.2021

prabhat