Zeenat Kauser Dehlvi vs Yunus Dehlvi
1997 Latest Caselaw 216 Del

JUDGMENT

M.K. Sharma, J.

(1) By this order I propose to dispose of the two applications filed by the plaintiff against the defendant under Order 39, Rules I and 2 of the Code of Civil Procedure praying for Assurance of temporary injunction restraining the defendants, his servants, agents from selling, transferring, alienating, disposing of or creating any third party interest in respect of the property bearing No. Ii, Sardar Patel Marg, New Delhi.

(2) The plaintiff instituted the present suit against the defendant seeking for declaration that the plaintiff is entitled to half share in the suit property, namely, Ii, Sardar Patel Marg, New Delhi.

(3) The plaintiff is the wife Of the defendant and they were married under the Sunni Muslim Law in July, 1952: At the time of marriage the plaintiff was 16 years old and she went to the marital home of the defendant after the Rukhsati' ceremony which took place on 22nd July, 1953.

(4) In or about 1954, the defendant acquired a plot of land at Ii, Sardar Patel Marg for a sum of Rs. 40,000.00 and the defendant commenced construction of a bungalow on the said plot in the year 1955. As the defendant did not have money to continue the construction of the building on the said plot, the defendant pleaded with the plaintiff and her mother for funds. As the plaintiff was at that point of time a minor, her mother was her guardian and her properties were controlled and managed by her mother who was legally appointed as her guardian.

(5) The father of the petitioner who expired on 21st January, 1953 was a wealthy and influential businessman and at the time of his death, he left behind substantial properties in the names of his children and widows, and in pursuance thereof, the plaintiff possessed various properties gifted to her by her father in his lifetime as well as inherited by her after her father's death. During the period" from 19.3.1956 to 18.4.1958, all the properties of the plaintiff were sold in order to provide funds for the construction of the house at Ii, Sardar Patel Marg.

(6) The defendant gifted half share in the said property situated at Ii, Sardar Patel Marg in favour of the plaintiff in January, 1956. The plaintiff was also working in the company known as Shama Publications .which was owned and being run and managed by the defendant's father Mr. Yusaf Delhvi and all the salary due to the plaintiff for working in the said firm was also utilised for the aforesaid purpose.

(7) With the aforesaid statements the plaintiff was filed in the present case seeking for a declaration that the plaintiff is entitled to a moity, i.e. half share in the said plot of building situated at Ii, Sardar Patel Marg, New Delhi. Alongwith the plaint, the plaintiff also filed an application registered as I.A. 6351 /1994 under Order 39, Rules I and 2 of the Code of Civil Procedure contending inter alia that in view of the 'Hiba' of half share in the suit property made by the defendant in favour of the plaintiff which is accepted by her and received possession thereof as well and at present living in the said property, a temporary injunction was prayed for restraining the defendants, his agents and servants from transferring, alienating, disposing of or creating any third party interest in respect of the said property. This Court by order dated l7th June,1994 issued notice on the application filed by the plaintiff under Order 39, Rules I and 2 and passed an order directing that the plaintiff shall not be dispossessed from the suit property. Subsequently, the plaintiff filed another application registered as I.A. 2020/1996 under Order 39, Rules I and 2 against the defendant seeking for an injunction restraining the defendant from selling his share in the property.

(8) The defendant has filed his reply to the aforesaid applications and accordingly the aforesaid two applications were taken for arguments and for disposal.

(9) The Counsel appearing for the parties were heard at length. The case of the plaintiff as set out in the plaint is that in pursuance of the 'Hiba' made by the defendant to her in the year 1956 which she has accepted and possession delivered thereof, she has acquired ownership right in the said property to the extent of half share in the suit property and is, therefore, entitled to a declaration to that effect.

(10) The aforesaid contentions of the plaintiff are opposed by the defendant on the ground that the transaction in question as alleged by the plaintiff is not a 'Hiba' in actual form, but in fact is 'Hiba-bil-iwaz' which requires registration under the Mahomedan Law since it has all the trappings of a sale and requires registration under Section 54 of the Transfer of the Property Act. Accordingly to the learned Counsel appearing for the defendant, if such a transaction as set up by the plaintiff is not effected by registered instrument, no title or right or interest is created in favour of the donee. In support of his contention, the learned Counsel drew my attention to the authoritative book of Mulla's Principles of Mahomedan Law-19th Edition and referred to Paragraph 168 thereof which provides that a 'Hiba-bil-iwaz' as distinguished from 'Hiba' is simply a gift for consideration and that is in reality a sale and has all the incidents of a contract of sale.

(11) The Counsel appearing for the plaintiff, however, during the course of his argument drew my attention to the fact that in the written statement the defendant has not challenged the validity of the aforesaid transaction on the ground that it is in fact not a 'Hiba' but 'Hiba-bill-iwaz' except for denying that there was any such transaction, and therefore, according to the learned Counsel the Counsel for the defendant cannot advance an argument that he transaction is not a 'Hiba' but a 'Hiba-bil-iwaz'.

(12) The next contention of the learned Counsel for the plaintiff was that all the properties of the plaintiff which she inherited her father were sold by her guardian during the period from 19.3.1956 to 18,4.1958 to provide funds for the construction of building on the suit premise. The Counsel submitted that the dates of the sale would prove and establish that all the properties were sold at the same time i:e. April, 1956 onwards during which period the building at 11, Sardar Patel Marg was being constructed. The Counsel further drew my attention that on 18.4.1958, a sale deed was executed by the defendant in respect of a property belonging to the plaintiff when the plaintiff was even out of india It has also been alleged in the plaint that the defendant at that point of time was not in a position to build a house by himself as he had no finances; status or stability at that point of time.

(13) The Counsel appearing for the defendant, however, submitted that the defendant a managed for funds required for the construction from his own resources by borrowings from relatives and friends and by drawings from Shama Magazine which was owned by his father. It is the further case of the defendant that the mother of the plaintiff had financial problems and even the father of the plaintiff closed down his business at Calcutta and shifted to Delhi in 1941 after which he did not do any business and, therefore, the resources of the parents of the plaintiff were not strong and, therefore, all the contentions of the plaintiff providing money to the defendant for the construction of the house is northing but a got-up story.

(14) Having regard to the pleadings of the parties and contentions advanced by the learned Counsel appearing for the parties, the issue that arises for my consideration in the present applications is whether the plaintiff is entitled to an order of temporary injunction as sought for in the applications.

(15) Admittedly, the plaintiff is in possession of the suit property and the defendant is living separately from her. It further appears that the plaintiff is living with her two sons in the suit property.

(16) The plaintiff has also produced certain sale deeds alongwith the plaint to show that properties belonging to her were sold within the period 1956 to 1958 . Proximity of time of the aforesaid sale of properties belonging to the plaintiff with that of the time of construction of the building by the defendant at the suit premises cannot be denied.

(17) In the written statement filed by the defendant he has denied any 'Hiba' (oral gift) taking place in between the plaintiff and the defendant. However, the Counsel appealing for the defendant states that the transaction alleged by the plaintiff can never be 'Hiba' but would amount to a 'Hiba-bill-iwaz' in view of the fact that the gift was made in consideration of money which she gave to the plaintiff for construction of the building. In this connection, the learned Counsel at the time of his argument drew my attention the various statements in the plaint particularly paragraphs 4 and 6 of the plaint.

(18) Whether the transaction alleged by the plaintiff in the plaint is a 'Hiba' or 'Hiba-bill-iwaz' could be determined only after the parties lead evidence in that respect and on conclusion of the trial. The same being a triable issue and in my opinion, the parties being acquired to prove their case by leading evidence in that respect it is not necessary for me at this stage to finally decide whether the transaction is a 'Hiba 'or a 'Hiba-bill-iwaz', and therefore, reference to the paragraph appearing in Mulla's Principles of Mahomedan Law and decision cited at the Bar are not required to be examined by meat this stage.

(19) Proximity of time in respect of sale of all the properties of the plaintiff inherited by her from her father with that of the construction of the building at the 0suit premises at least make out a prima facie strong arguable case on behalf of the plaintiff that after the defendant made an oral gift in respect of half share in the suit property in the month of January, 1956 her properties were sold out and consideration received hereof were used for construction of the house at the suit premises. Besides the plaintiff alongwith' her sons are also in possession of the suit premises. Accordingly, in my considered opinion, the plaintiff has been able to make out a prima facie case in her favour. Since the plaintiff is residing in the suit premises, the factor of balance of convenience is also definitely in her favour. She would also suffer irreparable loss and injury if the injunction has sought for by the plaintiff is not granted. In case the suit property is sold out during the pendency of the suit which admittedly the defendant seeks to do, there is a possibility of the suit itself becoming infructuous.

(20) Considering all the aforesaid factors, I consider the present case to be a fit case where an injunction is required to be granted in favour of the plaintiff restraining the defendant from disturbing the possession of the plaintiff in the suit premises and also further restraining the defendant to sell and alienate and/or in any manner create any third party interest in the suit premises pending disposal of the suit premises.

(21) Accordingly, the applications filed by the plaintiff stand allowed to the extent indicated above and injunction in the aforesaid terms is issued restraining the defendant from disturbing the possession of the plaintiff in the suit premises and from dispossessing her from the suit premises till the dispersal of the suit. The defendant is further restrained from selling, alienating, transferring or in any manner creating any third party interest in respect of the suit property pending disposal of the suit.