Mohammad Umar Mohammad Yakub vs Mohammad Akbar Mohammad Yakub
2017 Latest Caselaw 2149 Bom

                                                                            sa147.91
                                       -1-


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          SECOND APPEAL NO. 147 OF 1991



 Mohd. Umar s/o Mohd. Yakub
 R/o. Chelipura, Aurangabad
 District Aurangabad                                      ...Appellant

          versus

 Mohd. Akbar Mohd. Yakub
 (since deceased through L.Rs.)

 1.       Mohd. Anwar Mohd. Akbar
          Age 42 years, Occ. Business,
          R/o. Opp. Gate of Jannati Masjid
          Manjurpura, Aurangabad

 2.       Mohd. Assaf Mohd. Akbar
          Age 35 years, Occ. Business
          R/o. Nutan Colony, Chhota Taklya
          Aurangabad

 3.       Mohd. Yakub Mohd. Akbar
          Age 32 years, Occ. Business
          R/o. Sadat Nagar, Near Railway
          Station, Aurangabad                             ...Respondents

                                      .....
 Mr. S.H. Jagiasi, advocate for the appellant
 None for the respondents
                                      .....

                                             CORAM : V. K. JADHAV, J.

DATED : 3rd MAY, 2017

ORAL JUDGMENT:-

1. By this second appeal, the appellant (original plaintiff) has

challenged the judgment and decree dated 17.11.1986, passed by

the IIIrd Joint C.J.J.D. Aurangabad, in Regular Civil Suit No. 510 of

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1984 and confirmed by the Additional District Judge, Aurangabad by

judgment and order dated 11.1.1990 in Regular Civil Appeal No. 7 of

1987.

2. Brief facts giving rise to the present appeal are as follows:-

a) The appellant is claiming to be the owner of house property

bearing Municipal No. 1-28-66, situated at Chelipura, Aurangabad,

originally owned by his maternal grand father viz. Sardarkhan. The

appellant's contention are twofold. Firstly, on or about 1340 Fasli, his

maternal grand father Sardarkhan orally gifted the said house

property to the appellant and secondly, in order to avoid further

litigation, said Sardarkhan (maternal grand father of the appellant) on

12.8.1956 executed sale deed of the said house property in favour of

the appellant. It is further case of the appellant that the defendant,

who is real brother of the appellant, was in need of residential

accommodation and as such at his request he was permitted to

reside in three rooms as depicted in red colour in the plan enclosed

with the plaint, which is subject matter and that the respondent's

possession is permissive. The appellant-plaintiff was in need of said

portion, however, the respondent-defendant has refused to vacate

the said portion of the house. The appellant thus constrained to

institute the suit for recovery of possession of the house property and

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Rs.300/- towards unauthorized use of the said portion of the house

alongwith the costs of the suit.

b) The respondent (defendant) has strongly resisted the suit by

filing his written statement at Exh.19. It has been denied that the

maternal grand father Sardarkhan gifted entire suit house and

thereafter sold it to the appellant. It has been contended that the

appellant, being eldest son and male issue of the daughter, grand

father Sardarkhan, treated all sons of his daughter like his male

issue. The suit house originally purchased by Sardarkhan, was

having straw roof and thereafter it was replaced by zinc sheets.

Thereafter, taxes were imposed and the property was mutated in the

Municipal record, in the name of appellant being eldest and literate

son in the family. The respondent has paid the taxes and also

obtained water connection and paid the same. However, the

appellant's name remained in the municipal record and as such all

receipts were issued in his name. It has also been contended that

late Sardarkhan paid the taxes etc. as long as he lived. It has also

been contended that Sardarkhan did not execute the sale deed of the

house in favour of the appellant and said sale deed is false, forged

and fabricated document. It has also been contended that even

assuming that the sale deed was executed by late Sardarkhan

however he was not competent person on the day of alleged sale

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deed to execute it and as such the appellant does not get title in

respect of suit property on its basis. It has also been contended that

late Sardarkhan during his life time made oral will deed and by way

of testament, allotted two rooms to the appellant, two rooms to the

respondents and kept one hall (Dalan) common between two and

allotted rooms to third brother Sk. Ahmed, to live together in their

allotted portions peacefully and unitedly and pay the taxes

proportionately. It has been contended that the appellant with forged

document and false theory of oral 'Hibba' instituted false suit to grab

entire house property.

c) On the basis of rival pleadings of the respective parties,

learned Judge of the trial court has framed necessary issues at Exh

20 and both the parties led their oral and documentary evidence in

support of their rival contentions. Learned IIIrd Joint C.J.J.D.

Aurangabad, by judgment and decree dated 17.11.1986 dismissed

the suit with costs. Being aggrieved by the same, the appellant has

preferred Regular Civil Appeal No. 7 of 1987 before the District

Court, Aurangabad and the learned Additional Sessions Judge by its

judgment and order dated 11.01.1990 dismissed the appeal with

costs. Hence, this second appeal.

3. Learned counsel for the appellant submits that the appellant

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plaintiff has proved three essentials of the gift as provided under

Section 149 of Mahomedan Law. No physical departure or formal

entry is necessary in the case of gift of immovable property in which

the donor and the donee both are residing at the time of the gift and

in such 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 divest himself of all control over the subject of the gift.

Learned counsel submits that in the instant case, it has been

established beyond doubt that donor Sardarkhan himself mutated the

house property in the name of appellant and even tax receipts and

water tax receipts came to be issued in the name of appellant.

Learned counsel submits that this overt act by the donor establishes

the compliance with the requisite condition of delivery of possession

of the property. However, both the courts below have not considered

the same in its proper perspectives. In order to avoid further

litigation, late Sardarkhan executed sale deed of the suit house in

favour of the appellant. The courts below have recorded perverse

findings in respect of the sale deed Exh.55. On the basis of oral and

documentary evidence, adduced by the appellant, irresistible

inference about true intention of the donor late Sardarkhan to gift the

house property in favour of the appellant could be drawn. Learned

counsel submits that the judgment and order passed by the courts

below are thus liable to be quashed and set aside and the appellant

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is entitled for decree as per his prayers in the suit.

Learned counsel for the appellant, in order to substantiate his

submissions, placed reliance on the judgment in the case of Des Raj

Nagpal vs. Income Tax Officer, reported in 1985 13 ITD 800

Delhi.

4. Though the respondents are duly served, none appears for

them.

5. There are three essentials to the validity of gift, (1) a

declaration of gift by the donor, (2) an acceptance of the gift, express

or implied, by or on behalf of the donee, and (3) delivery of

possession of the subject of the gift in pursuance thereto. It is also

essential for the validity of the gift under Mahomedan Law that the

donor should divest himself completely of all ownership and domain

over the subject of the gift. So far as the delivery of property, which is

subject matter of the gift is concerned, no physical departure or

formal entry is necessary in the case of gift of immovable property in

which the donor and the donee both are residing at the time of the

gift and in such 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 divest himself of all control over the subject of the

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gift. The Mahomedan Law does not dispense with the necessity or

acceptance of the gift even in case where donees are minors.

6. In the instant case, the appellant's theory of 'Hibba' or gift fails

on two counts. Firstly, even though the father of the appellant was

alive and has not been deprived his rights and powers as guardian,

the possession of the property (subject matter of gift) was not

delivered to the father. Admittedly, the appellant was minor at the

time of alleged delivery of house property by way of Hibba/gift and

as such, right to take possession on behalf of him, belongs to his

father/guardian. The appellant has only deposed that late

Sardarkhan had grown him up and educated him and also taken his

care up to his marriage. The appellant has however, nowhere

contends that his own father/natural guardian has been deprived of

his rights and powers as guardian. There should have been a

delivery of possession by grand father late Sardarkhan to the father

of the appellant as guardian as his minor son and as such, gift is not

complete. The mere fact that the appellant has been brought up and

maintained by late Sardarkhan, will not constitute late Sardarkhan as

guardian of their property so as to dispense with delivery of

possession.

7. Secondly, it further appears from the evidence adduced by the

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appellant that late Sardarkhan had not divested himself completely

from ownership and domain over the subject of the gift. It is true that

no departure or formal entry is necessary in the case of gift of

immovable property, in which the donor and the donee both are

residing at the time of the gift and in such 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 divest himself of all control

over the subject of the gift. Learned counsel for the appellant

vehemently submitted that overt act on the part of late Sardarkhan is

fully established by the appellant in the form of documents, such as

tax receipts of the house property issued by the Municipality and also

water tax receipts.

8. On careful perusal of documents at Exh. 31 and 32, it appears

that there is a reference of receipt of certain amount by the water

supply department of Aurangabad city from the appellant. However,

the important columns like house number, ward number etc. are kept

blank. Thus, it is not clear whether the water supply department of

Aurangabad city had received the said amount in respect of suit

house. The document at Exh.33 pertains to works of private pipeline

connection, issued in the name of the appellant. On perusal of the

same, it appears that no house number is mentioned in said

document Exh.33 and only receipt is issued in the name of the

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appellant, even without referring his status in respect of said work of

private pipeline connection. The receipts at Exh. 34 to 43 are in

respect of water tax for the period from January 1974 to 1983.

Exh.44 is a notice dated 25.11.1976 issued by Municipal Council,

Aurangabad to the appellant and further Exh.45 is also a tax receipt

dated 31.3.1981 issued by Municipal Council, Aurangabad.

Documents Exh. 34 to 43 and Exh. 44 and 45 are not helpful for the

appellant since the appellant has also raised the contention about

execution of sale deed in his favour by late Sardarkhan in respect of

suit house property in the year 1956. So far as the claim of the

appellant about gift of suit property is concerned, the appellant has

also failed to prove the overt act on the part of late Sardarkhan

indicating clear intention on his part to transfer possession of suit

house and to divert himself of all control over the suit house. Thus,

the courts below have rightly come to the conclusion that oral gift is

not proved by the appellant.

9. So far as the sale deed Exh. 52 is concerned, it is pertinent to

note that there is no reference in the sale deed of alleged oral gift in

favour of the appellant in respect of suit house. Further, both the

courts below have expressed their doubts about authenticity of

unregistered sale deed Exh.52. Learned Judge of the lower

appellate court has observed that the stamp paper used for preparing

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sale deed Exh.52 is of Maharashtra State though the transaction is

dated 12.8.1956.

10. As per the provisions of Section 54 of the Transfer of Property

Act, in case of transfer of tangible immovable property of a value less

than one hundred rupees, such transfer may be made either by a

registered instrument or by delivery of the property. The sale of such

property would be complete as soon as delivery of possession is

proved either on the basis of unregistered instrument of sale or

otherwise. In the instant case, though there is recital in the sale deed

about delivery of possession of the suit property, it further appears

from the admission given by the appellant during the course of his

cross examination that the said recital came to be inserted in the sale

deed Exh.52 without any attempt at fulfillment. The appellant has

stated in his cross examination that he was put in possession long

back by way of oral gift by late Sardarkhan prior to execution of sale

deed. As discussed in the foregoing paras, the appellant has failed

to prove the theory of oral gift in respect of house property and as

such, the sale of house property in the year 1956 under unregistered

sale deed Exh.52 would be incomplete in absence of delivery of

possession at the time of execution of such sale deed. Both the

courts below have therefore, rightly observed that the appellant failed

on both the counts.

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11. In view of above discussion, I find that no substantial question

of law is involved in this appeal. There is no reason to interfere in the

concurrent finding of facts recorded by the courts below. There is no

substance in the appeal and the appeal is thus liable to be

dismissed. The appeal is therefore, hereby dismissed. In the

circumstances, there shall be no order as to costs.

( V. K. JADHAV, J.)

rlj/