Karnataka High Court

Kara Shahul Hamid vs Kara Hasan Saheb on 5 June, 2024

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                                                   NC: 2024:KHC:19463
                                                 WP No. 18963 of 2022




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 5TH DAY OF JUNE, 2024

                                   BEFORE
             THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
               WRIT PETITION NO. 18963 OF 2022 (GM-CPC)
            BETWEEN:

               KARA SHAHUL HAMID
               S/O LATE KARA ISMAIL SAHEB
               AGED ABOUT 64 YEARS,
               R/AT SUBAN COMPOUND
               NEW COLONY KESARKODI SHIROOR VILLAGE
               KUNDAPURA TALUK
               UDUPI-576 228.

                                                         ...PETITIONER
            (BY SRI. AJITH A SHETTY.,ADVOCATE)

            AND:

               KARA HASAN SAHEB
Digitally
               S/O LATE KARA ISMAIL SAHEB
signed by
SUVARNA T      AGED ABOUT 76 YEARS,
               R/AT THAVAKKAL MANZIL
Location:
HIGH           KESARKODI SHIROOR VILLAGE
COURT OF       KUNDAPUR TALUK
KARNATAKA      UDUPI-576 228.
                                                       ...RESPONDENT
            (BY SMT. SHREYA C. SHETTY FOR
                SRI. K PRASANNA SHETTY., ADVOCATE)

                THIS WRIT PETITION IS FILED UNDER ARTICLES 226
            AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
            QUASHING THE IMPUGNED ORDERS DATED 13TH JUNE, 2022
            AND 26TH JULY, 2022 PASSED BY THE HONBLE SENIOR CIVIL
            JUDGE, KUNDAPURA IN OS.NO.46 OF 2015 AS PER
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                                             NC: 2024:KHC:19463
                                       WP No. 18963 of 2022




ANNEXURE-E.    RESULTANTLY   PERMIT   THE   PLAINTIFF/
PETITIONER TO MARK THE TWO DOCUMENTS VIZ.,
AGREEMENT DATED 07.09.1992 IS PRODUCED HEREWITH AS
PER ANNEXURE-A AND 'HIBA' OR 'DEED OF GIFT' DATED
01.10.2004 AS PER ANNEXURE-B AS EVIDENCE IN OS.NO.46
OF 2015 PENDING ON THE FILE OF THE HONBLE SENIOR CIVIL
JUDGE, KUNDAPURA.

     THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN B GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
                          ORDER

Present writ petition is filed by the petitioner/plaintiff

aggrieved by the orders dated 13.06.2022 and 26.07.2022

passed by the Senior Civil Judge, Kundapura, whereby, the

Court below had rejected the application of the plaintiff to

mark the unregistered agreement dated 07.09.1992 as

well as a Gift Deed/Hiba dated 01.10.2004.

2. The petitioner herein has filed a suit in

O.S.No.46/2015 seeking relief of declaration that the

plaintiff and the defendants are full joint owners of the suit

'A' schedule property and the plaintiff is the absolute and

also full owner of the suit 'B' schedule property on the

basis of the said joint ownership and also by virtue of the

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Hiba dated 01.10.2004 executed between the plaintiff and

the defendant and also for a consequential injunction.

During the course of marking of the documents, the

defendant had raised objections for marking of the

unregistered document dated 07.09.1992. According to

the plaintiff, the said agreement dated 07.09.1992 is the

settlement between the plaintiff and the defendant, who

are none other than own brothers and the office of the

Tahsildar has granted the said land in the name of the

defendant on behalf of the entire family. As such, the suit

land is the joint family property of the plaintiff and the

defendant.

3. It is further case of the plaintiff that the

defendant had executed a Gift deed/Hiba dated

01.10.2004 in favour of the plaintiff and thereafter has

filed statement of objection for marking of these two

documents in evidence as these are unregistered

documents and it is compulsorily registerable under law.

The Court below by relying on the judgment of the Hon'ble

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High Court reported in 2011(4) KCCR 3152 has held that

the said documents cannot be marked in evidence as the

Hiba or Gift deed which is reduced into writing is a

compulsorily registrable document under Section 17 of the

Indian Registration Act, 1908. It was also observed that an

unregistered document can be marked only for the

collateral purpose, such as, for proving relationship, status

and to ascertain the recital of the earlier deeds pertaining

to the immovable property. The Court has observed that

the relationship of the parties is not under dispute and the

plaintiff himself has stated that suit 'A' schedule property

is a joint family property and he also states in his

pleadings that defendant has made a unregistered Hiba on

01.10.2004 and on the basis of same, he becomes

absolute owner of the property and has mutated his name

in the revenue records. As such, the stand taken by the

plaintiff is not consistent to the pleadings and documents

are not registered documents to declare his title. The

Court has further observed that the plaintiff cannot be

permitted to mark unregistered document dated

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07.09.1992. Aggrieved thereby, the plaintiff is before this

Court.

4. Learned counsel for the petitioner/plaintiff

submits that the Court below went on in observing that

two documents are compulsorily registrable and cannot be

marked in evidence. He submits that the Hiba dated

01.10.2004 need not be registered as per Mohammedan

Personal Laws, it is submitted that he is fortified by a

judgment of the Hon'ble Apex Court in the case of

HAFEEZA BIBI AND OTHERS VS. SHAIKH FARID

(DEAD) BY LRS. AND OTHERS reported in (2011) 5

SCC 654. He further submits that the agreement of sale

which is referred to, is not a agreement of sale, but, in fact

it is an agreement entered into between the parties,

wherein, after the allotment of the property both the

plaintiff and the defendant are in joint possession of the

property, but in the order the Court has referred the said

document as an agreement of sale. He submits that the

order passed by the Court below is unsustainable and if

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these two documents are not marked it would cause

irreparable loss and hardship to the petitioner/plaintiff.

Hence, seeks for allowing of the petition.

5. In response, learned counsel for the

respondent/defendant submits that the three essential

requisites of a gift are to be proved by the plaintiff. It is

submitted that first and foremost there should be delivery

of possession, whereas in this case, as per the revenue

records the property stands in the name of the defendant.

When the plaintiff has failed to prove the key ingredients

of the gift deed, documents cannot be marked in evidence.

It is further stated that even if the document has to be

marked it is subject to objections and relevancy. It is

submitted that the Court below particularly concerning the

fact that the plaintiff has taken inconsistent stand, has

rightly held that these two documents cannot be marked

in evidence and no grounds are made out seeking

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interference with the well considered order passed by the

Court. Hence, seeks for dismissal of the petition.

6. Heard Learned counsels appearing on behalf of

both the parties and perused the records.

7. The two documents that are sought to be

marked by the plaintiff are; one is an agreement dated

07.09.1992 and the other one is the Gift Deed dated

01.10.2004. It is the case of the plaintiff that the property

originally allotted in favour of the defendant and after the

allotment, both of them have been in joint possession of

the property and later that has been acknowledged by the

defendant by executing the agreement dated 07.09.1992.

Thereafter, he had executed a Gift Deed on 01.10.2004

and then the suit is filed by the plaintiff seeking relief of

declaration. The Trial Court has held that above two

documents cannot be marked in evidence as they are

compulsorily registrable documents under Section 17 of

the Indian Registration Act, 1908. First coming to the

issue about registration of Hiba, the said issue is no more

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res-integra as the Hon'ble Apex Court in the case of

HAFEEZA BIBI AND OTHERS VS. SHAIKH FARID

(DEAD) BY LRS. AND OTHERS reported in (2011) 5

SCC 654 and others has categorically held at paragraphs

27, 28, 29 and 30, as follows;

"27. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by a Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law.

28. In considering what is Mohammadan Law on the subject of gifts inter vivos, the Privy Council in Mohd. Abdul Ghani stated that when the old and authoritative texts of Mohammadan Law were promulgated there were not in contemplation of anyone any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of possession of land, and that could not

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have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.

29. Section 129 of the TP Act preserves the rule of Mohammadan Law and excludes the applicability of Section 123 of the TP Act to a gift of an immovable property by a Mohammadan. We find ourselves in express agreement with the statement of law reproduced above from Mulla, a Principles of Mahomedan Law (19th Edn.), p. 120. In other words, it is not the requirement that in all cases where the gift deed is contemporaneous to the making of the gift then such deed must be registered under Section 17 of the Registration Act. Each case would depend on its own facts.

30. We are unable to concur with the view of the Full Bench-of-the Andhra Pradesh High Court in Tayyaba Begum. We approve the view of the Calcutta High Court in Nasib Ali³ that a deed of gift executed by a Mohammadan is not the instrument effecting, creating or making the gift but a mere piece of evidence, such writing is not a document of title but is a piece of evidence. We also approve the view of the Gauhati High Court in Mohd. Hesabuddin 12. The judgments to the contrary by the Andhra Pradesh High Court, the Jammu and Kashmir High Court and the Madras High Court do not lay down the correct law."

8. In the light of the above judgment, the Hiba or

Gift deed dated 01.10.2004 is not compulsorily registrable

document. Further, if three ingredients of execution of a

Gift Deed are not fulfilled, it is always open for the parties

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to agitate on those issues in due course. Then coming to

the second document i.e., agreement dated 07.09.1992, it

is not an agreement of sale, but as per the said document,

there is a mention about who is in possession of the

property. Even after the document is marked the burden

lies on the plaintiff to prove that such document has been