Hafisabi W/O Miyajani And Anr. vs Gulam Mohamad S/O Dadamiya
2004 Latest Caselaw 1187 Bom

JUDGMENT

D.G. Karnik, J.

1. These two appeals are directed against a common judgment and order, dated 8.4.1985, passed by the learned and Additional District Judge, Beed, dismissing Regular Civil Appeal Nos. 133/1982 and 134/1982.

2. The property in dispute in both the appeals is a house property, hearing Municipal House No. 2087 (old No. 1850), situated at Badi Raj-Galli, within the limits of Beed Municipal Council (hereinafter referred to as "suit property"). The suit property originally belonged to Dadamiya, who died in the year 1978, leaving behind him four sons, byname (i) Mohammad Hasham, (ii) Miyajani, (iii) Abdul Gafur, and (iv) Gulam Mohamad, Mohamad Hasham died long ago and there is no mention of his heirs. Miyajani died in the year 1950, leaving behind him a widow Hafisabi and a daughter Khajabegum, the appellants herein. It appears that after the death of Dadamiya and Miyajani, the suit property was transferred in the name of the appellants by the Beed Municipal Council in its records. Gulam Mohamad, the youngest son of Dadamiya, therefore, filed a suit bearing Regular Civil Suit No. 147/1979 for declaration that the mutation entry. recording the name of the appellants in the Municipal records was illegal, null and void and be set aside and for further order to correct the entries in Municipal records recording the names of the appellants as heirs of Dadamiya to the suit property. The appellants filed a counter suit, bearing Regular Civil Suit No. 366/ 1980, for declaration that they were the owners of the suit property and for restraining Gulam Mohamad from disturbing their peaceful possession of the suit property. Both the suits were heard together and evidence was recorded in common. By a common judgment and order dated 31.7.1982 the learned Joint Civil Judge, Junior Division, Beed, dismissed the suit filed by the appellants and partly decreed the suit filed by Gulam Mohamad. The learned Civil Judge declared the mutation entry, recording the name of the appellants as owners of the suit property to be illegal, null and void and further ordered that the names of the appellants be removed and the previous entry of the name of Dadamiya be continued in the records until the heirs of late Dadamiya settle their respective shares in the property. Being aggrieved by the said decision, the appellants filed two separate appeals, bearing Regular Civil Appeal No. 133/1982 and Regular Civil Appeal No. 134/1982, in respect of two decrees in the two suits. By a common judgment and order, dated 8.4.1985, the learned IInd Additional District Judge, Beed dismissed both the appeals. That judgment is impugned in these two appeals.

3. Dadamiya was the owner of the suit property and some other properties. According to the appellants, with a view to avoid any future disputes between his sons Dadamiya, in his lifetime, separated and divided his properties in the year 1940 or thereabout. In the said separation, Dadamiya allotted the suit property to Miyajani exclusively and after Miyajani's death the present appellants Hafisabi and Khajabegum, being his widow and daughter respectively, became the absolute owners of the suit property. According to them, the parties being Muslims there was no partition as such, but Dadamiya had made an oral gift (Hiba) of the suit property in order to avoid any future disputes between the sons. The appellants, therefore, contend that they are the absolute owners of the suit property and neither Gulam Mohamad nor any other son of Dadamiya has any share in the suit property. In support of their contention of oral gift (Hiba) of the suit house by Dadamiya to Miyajani the appellants relied upon a registered deed of relinquishment executed In the year 1349 Fasli (i.e. 1940 A.D.). A certified copy of the relinquishment deed which is in Urdu language alongwith true English translation thereof is filed at Exh, 45. According to the learned Counsel for the appellants, this deed has not been properly appreciated and interpreted by the Courts below. The learned Counsel further submits that this document clearly shows that the suit property was gifted by means of a 'Hiba' to Miyajani by Dadamiya in the year 1940.

4. In view of these submissions, following substantial questions of law arise for my consideration.

(i) Whether the deed of relinquishment (Exh. 45} could be used by the appellants for proving oral gift (Hiba) of the suit property by Dadamiya to Miyajani?

(ii) Whether the Courts below erred in holding that the appellants had not proved oral gift (Hiba) of the suit property by Dadamiya to Miyajani in the year 1940?

My answers to both the points are in the negative for the reasons mentioned below.

5. As stated earlier, the deed of relinquishment is in Urdu and a certified copy as well as English translation thereof is filed on record. The learned Counsel on both sides agree that the translation produced on record and annexed to the certified copy of the relinquishment deed is the true translation of the said deed. I would, therefore, proceed on the basis of the said translation which is admitted to be true translation of the said deed of relinquishment. The document is titled as "Relinquishment Deed" and is executed by Mohamad Hasham and Miyajani, the two sons of Dadamiya. It recites as follows:

Aforesaid our father in his lifetime with a view to avoid any future disputes between we brothers, has delivered following properties to us and possession is also delivered to us. Now we both have no concern or right in the property of our father. The description of the property given to us is given below :- of which we both are in possession and enjoyment. Henceforth, we have no concern or right over the property of our father. We have agreed to accept to which have been given to us by our father and we have admitted to it. The property given to share of Mohd. Hasham is...and the property given to the share of Miyajani is...(i.e. suit house).... Hence, this relinquishment deed is written with our own accord and will be as a record.

Dated 11th August, 1349 F.

(1) Sd/-T. I.

Md. Hasham s/o Dadamiya

(2) T.I. and Sd/- Miyajani s/o Dadamiya

Witnesses : (1) Syed Hafisuddin s/o Syed Nisamuddin a Pleader

Sd/-

(2) Munwar All Khan s/o Hyder All Khan, Supdt. of Jaggir

6. This deed does not bear the signature of Dadamlya or the other two sons of Dadamiya, namely, Abdul Gafur and Gulam Mohd. the respondent No. 1 herein. Learned Counsel for the respondents submits that this document does not disclose that the suit property was gifted by Dadamiya to Miyajani by way of a gift (Hiba). He further submits that in any event this deed cannot be relied upon by the appellants. There is a considerable force in these submissions. It is seen that this document is not executed by Dadamiya at all. It is executed by Mohd. Hasham and Miyajani. By this deed, they purportedly relinquished their right, title and interest, if any, in the remaining property of Dadaniya. The parties were Muslims and it is not clear as to what interest Miyajani and Mohd, Hasham had in the properties of Dadamiya. However, assuming that they had any share in the properties of Dadamiya by this deed they only relinquished their share in all other properties of Dadamiya excluding the suit property. The deed does not recite that Dadamiya had made an oral gift of the suit property to Miyajani. On the other hand, it appears that the deed states that the suit property was given to the share of Miyajani, indicating that the transaction was in the nature of partition than a gift. In the plaint, Hafisabi and Khajabegum have not pleaded "partition", but have pleaded "gift". The deed does not show that there was any oral gift or Hiba, effected in by Dadamiya.

7. It must also be noted that the deed was executed only by Mohd. Hasham and Miyajani. Dadamiya had not signed or executed the same. Dadamiya never stated that he had made an oral gift (Hiba) or even a partition. The deed contains only a self serving statement of Mohd. Hasham and Miyajani that the suit property was given to them. Under Section 21 of the Evidence Act. Mohd. Hasham, Miyajani or persons claiming under them were not entitled to prove the said self serving statement made by them for their own benefit. Section 21 of the Evidence Act reads thus:

21. Proof of admissions against persons making them, and by or on their behalf.- Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under Section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

An admission, or a previous statement made by a person can be proved against him and can be used against him but cannot be proved and used by the maker to serve his own purpose or Interest. To illustrate, take a case of a joint Hindu family consisting of two coparceners/shares "A" and "B" owing two properties say property "X" and property "Y". Property "X" is more valuable than the property "Y". "A" makes an unilateral declaration stating that there was an oral partition between "A" and "B" in which the property "X" was allotted to him and the property "Y" was allotted to 'B". If any dispute arises in future between "A" and "B" or their heirs, "B" or his heirs can use the statement made by "A" in the declaration as an admission of the fact by "A" that there was a partition and the property "Y" was allotted to the share of "B". However, "A" (or persons claiming under him) cannot use his own self-serving statement that the property "X" was allotted to him in his own favour. This is the mandate of Section 21 of the Evidence Act.

8. The relinquishment deed (Exh. 45), therefore, cannot be used by Miyajani or his representative in interest to prove that the suit property was given by Dadamiya to Miyajani by way of a gift (Hiba). Assuming that the deed could be used by the appellants, it does not prove the oral gift (Hiba) of the suit property. No other evidence was pointed out to me to show that] the suit property was gifted by means of an oral gift (Hiba) by Dadamiya to Miyajani. In the absence of any admissible evidence, the Courts below did not err in holding that the appellants had not proved oral gift of the suit property to Miyajani by Dadamiya.

9. In the result, there is no merit in these Second Appeals, which are hereby dismissed with costs.