Capt Raja Mohd Bilal Qureshi vs Sabeena & Ors.
2008 Latest Caselaw 1986 Del

5
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      RFA No.80/2006

                         Date of decision: 10th November, 2008

%      CAPT RAJA MOHD BILAL QURESHI          ..... Appellant
                 Through :Mr. K.R. Chawla, Adv.
                 versus

       SABEENA & ORS                 ..... Respondents
                Through : Mr. Atul Nigam, Adv. for R-1&2.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE J.R. Midha

1.       Whether Reporters of Local papers may
         be allowed to see the Judgment?

2.       To be referred to the Reporter or not?

3.       Whether the judgment should be
         reported in the Digest?

Pradeep Nandrajog, J. (Oral)

1. Admit.

2. Heard learned counsel for the parties. Trial court record

has been perused.

3. The appellant who is the ex-husband of respondent No.1

has lost in his endeavour to seek a declaration that he is the

owner of the subject premises, being the basement of

property bearing No.M-25, Chittaranjan Park, New Delhi. His

attempt to have the title documents in favour of his ex-wife

and subsequent purchasers cancelled, has resulted in a

defeat. Possession of the property has obviously not been

directed to be handed over to the appellant. The case of the

appellant was that the entire sale consideration in sum of

Rs.4,00,000/- paid to the builders flowed from his coffers in as

much as the cheques by which payment was made were

admittedly issued from his account and that his wife, i.e.

respondent No.1, fraudulently procured the title documents of

the property in question from the builders.

4. The defence of the wife was that during the subsistence

of the marriage, on the 10th Wedding Anniversary, by way of

an oral gift, the appellant, which he could do as the parties

professed the Islamic faith, gifted the property to her and that

acting as the owner of the property she sold the same to

defendants 3 and 4 by a registered sale deed on 21.03.1998.

The defence has been accepted.

5. The reasoning of the learned Trial judge to non suit the

appellant is the fact that during the subsistence of his

marriage with the respondent, prior to divorce taking place on

10.11.1997, said property which was under construction by

builders was agreed to be sold by the builders to the first

respondent vide Agreement to Sell dated 05.02.1996 and that

notwithstanding the funds made available by the appellant.

No attempt was ever made by the appellant to get executed

the title documents in his favour. As per the trial court this

evidenced that the appellant consented that the wife was to

be the beneficial owner of the property. The learned Trial

Judge has believed the testimony of the wife and DW2,

namely, Mohd. Kamil that an oral gift was made by the

husband to the wife.

6. Shri K.R. Chawla, learned counsel for the appellant urges

that as per Muhammadan Law, an oral gift is recognized but

on proof of three essentials, namely, (1) a declaration of gift

by the donor: (2) an acceptance of the gift, expressed or

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

possession of the subject of the gift by the donor to the

donee. Learned counsel urges that admittedly as on the date

of the 10th Wedding Anniversary of the parties, the subject

property was still under construction and not in possession of

the appellant i.e. the alleged donor and hence the question of

delivery of possession of the subject of the gift by the donor

to the donee does not arise; counsel urges that on said count

alone the appeal has to succeed. Second contention urged is

that the testimony of DW2 does not inspire any confidence in

as much as he falsely stated that when the alleged

declaration of gift was made he was present at the residence

of the parties, being the first floor of premises No. E-892,

Chittaranjan Park, New Delhi. Learned counsel urges that in

her testimony the respondent No.1 admitted residing at M-56

Chittaranjan Park, New Delhi at that time and that she further

admitted that she shifted to E-892, Chittaranjan Park, New

Delhi in the month of November, 1997.

7. Before we deal with the two contentions urged at the

hearing today, we must record that learned counsel for the

appellant could give no convincing explanation as to why the

appellant never demanded from the builders that the title

documents of the property be executed in his favour and why

did the appellant not raise the dispute of title of his wife to

the property in dispute during the subsistence of the marriage

of the parties. It has to be noted that the agreement to sell

with the builders is dated 5.2.1996. The parties were

divorced on 10.11.1997. Till then, the appellant never raised

any issue of title to the suit property. Not only that. The suit

was filed on 18th May, 1998 when the wife had already sold

the property vide sale deed dated 21.3.1998.

8. Dealings between a husband and a wife, by the very

nature of their relationships, have to be unofficious for if a

husband and a wife have to deal with each other in an official

manner there would be no matrimonial house: the house

would be nothing but an office.

9. The conduct of a party is always a relevant evidence.

The fact that the appellant neither sought the execution of an

agreement to sell in his favour nor insisted on getting

executed the title documents in his favour and conscious of

the fact that money was being paid by him allowed the wife

the benefit of the property is good evidence of the

truthfulness of the version of the wife.

10. It is true that the property in question was not in the

possession of the parties when the alleged oral gift was made

and hence physical possession thereof could not be

transferred inter vivos the parties, but law has to be

understood from a practical point of view. Constructive

possession can always be handed over of an immovable

property in possession of a third party.

11. The subject property was under construction as on date

the wife alleges an oral gift in her favour. What does the wife

actually say?

12. Meaningfully read, in the written statement, the wife

pleads that her husband desired to gift her a property and

that she accepted the intention of her husband to gift to her a

property and that pursuant thereto the suit property was

decided to be purchased in her name from out of the funds of

her husband and that with this understanding the husband

paid the sale consideration to the builders who sold the

property to the wife. It is in the aforesaid manner that the

wife speaks of the property being gifted to her.

13. No doubt, DW2 has wrongly mentioned the place where

the declaration of the gift was made. But that by itself would

not detract from the truthfulness of his version. Minor

variations and discrepancies in the testimony of a witness are

never fatal, if the court is otherwise satisfied that the witness

is speaking the truth.

14. In our opinion, the weight of the evidence in favour of

the wife i.e. the conduct of the appellant of paying money to

the builders and never insisting for either the agreement to

sell as also the sale documents to be executed in his favour,

during the subsistence of the marriage of the parties, is

enough to hold that on the test of pre-ponderance of evidence

the view taken by the learned trial Judge is correct.

15. We find no merit in the appeal. The appeal is dismissed.

16. Keeping in view the relationship between the parties we

refrain from imposing costs.

PRADEEP NANDRAJOG, J

J.R. MIDHA, J NOVEMBER 10, 2008 aj