Gul Bibi and Others vs Zakia Begum and Others

Ajit Singh, Actg. C.J.

The following judgment of the court was delivered by: Ajit Singh, Acting Chief Justice:--1. This intra court appeal has been filed against the judgment and decree dated 14/08/1986 passed by the learned Single Judge in S.B. Civil First Appeal No. 139/1974.

This appeal arises from a suit for partition as well as mesne profit, which was instituted by the original-plaintiff Zakia Begum. The genealogical tree of the parties to the suit is, as follows:--

The original plaintiff-Zakia Begum was daughter of late Munshi Mohd. Ibrahim Sahib, Advocate, who died on 12/09/1958 leaving behind the plaintiff and the defendants. Late Munshi Mohd.Ibrahim left lot of movable and immovable properties, details of which are annexed to the plaint as Ann.1. The plaintiffs are Sunni Muslims. It was further pleaded that defendant No. 4 - Khalil Ahmed was given Rs. 5,000/- in lieu of the share of the properties after selling one of the properties of late Munshi Mohd.Ibrahim i.e. house known as ''Musafir-khana'', situated in Brijrajpura, Kota. It was also pleaded by the plaintiffs that defendants No. 1, 5 and 6 are enjoying the usufruct and income of the properties left by late Munshi Mohd.Ibrahim. It was also pointed out that defendant No. 1 sold the house as well as the agricultural implements situated at Mouza Kurad for consideration of Rs. 2,000/- and Rs. 1,000/-, respectively and movable property including gold and cash, which are in possession of defendant No. 1. Defendants No. 1, 5 and 6 denied the share of the plaintiffs in the suit property. The plaintiffs thereupon filed a suit claiming 7/88th share in the property of late Munshi Mohd.Ibrahim and also the income received from the property.

Defendant No. 1 in her written statement pleaded that her husband gifted some movable and immovable properties by a Hibanama and she was placed in possession of the properties. It was further pleaded that the house situated in Hiran Bazar was sold for consideration of Rs. 4,000/- out of which, Rs. 3,400/- was given to defendant No. 4 as his share. It was also pleaded that her husband during his lifetime had executed a registered gift-deed dated 07/05/1948 in favour of defendants No. 3, 5 and 6 and the suit properties cannot be subjected to partition. In the additional pleadings, defendant No. 1 pleaded that properties mentioned at Item Nos. 8(1) and 8(3) were in possession of defendants No. 3, 5 and 6 in the year 1961 and since her husband was not happy with defendant No. 2, therefore, no share was allotted to defendant No. 2. Defendant No. 1 also pleaded that plaintiff was given a house by way of gift-deed for her residence, which she had sold and was staying in a portion of the house with the permission of defendants No. 5 and 6 as a licencee and has no share in the same.

Defendant No. 2 admitted the claim of the plaintiffs in a separate written-statement.

Defendant No. 3 in his written-statement reiterated that his father by a registered gift-deed dated 05/06/1948, had gifted all the movable and immovable properties to defendants No. 3, 5 and 6. It was also asserted that an agreement was recorded amongst the parties in the year 1959 that properties left by her father should be partitioned between them. Defendant No. 3 made a prayer that he should be given possession of the share for which he is legally entitled to and should also be given the share of usufruct.

Defendant No. 4 in his written-statement admitted that he had received a sum of Rs. 3,500/- out of the sale consideration of the house situated in Hiran Bazar. However, in the additional pleadings, he pleaded that Hibanama executed in favour of defendants No. 3, 5 and 6 was fictitious and was made with a view to defraud the other legal representatives, and the persons in whose favour the property was gifted, never received possession of the same. He further pleaded that the suit of plaintiffs be decreed and he should also be given share after partition of the suit property.

Defendants No. 5 and 6 filed separate written-statements and supported the claim of the plaintiffs.

The trial court vide judgment and decree dated 27/04/1974 passed a preliminary decree in which inter-alia it was held that the plaintiff is entitled to 7/88th share in the properties gifted by her father mentioned in ''Schedule-KA'' except the house in Hiran Bazar. The trial court further held that the plaintiff is entitled to 7/88th share in the rent and income from the agricultural land since 26/09/1967 till delivery of possession of the share.

Being aggrieved, the plaintiff filed an appeal in respect of the claim, which was rejected by the trial court in particular with regard to movable properties. Defendants No. 1, 5 and 6 filed cross-objections and prayed that suit of the plaintiff be dismissed in totality.

Learned Single Judge by the impugned judgment and decree dated 14/08/1986, allowed the appeal preferred by the plaintiff and the preliminary decree was modified. The learned Single Judge has held that the plaintiffs were entitled to 7/88th share, whereas defendant No. 1 was entitled to 11/88th share and defendants No. 2, 3, 4, 5 and 6 were entitled to 14/88th share each in the property mentioned in ''Schedule-KA''. The learned Single Judge has further held that parties shall also be entitled to rent and mesne profits w.e.f. 12/09/1958.

The learned counsel for the appellants submitted that the learned Single Judge erred in treating the written-statements filed by respondents No. 2 and 3 as cross-objections or counter claims and overlooked Section 4 of the Rajasthan Court Fees and Suit Valuation Act, 1961. It was further submitted that relief of declaration to the plaintiff that Hibanama dated 07/05/1948 (Ex. 1) is null and void could not be granted in absence of prayer for relief in this regard and the findings recorded in respect of registered Hibanama dated 07/05/1948 are erroneous. It was also argued that the learned Single Judge did not consider all the grounds raised in cross-objections filed on behalf of respondents No. 1, 5 and 6 and the finding recorded that the donor did not divest himself of all the control of the property, is erroneous. It was also argued that the learned Single Judge ought to have drawn an adverse inference for non-appearance of the plaintiffs as well as defendants No. 2 and 4 in the witness-box and it ought to have been appreciated that no objection with regard to court fee was taken before the trial court. It was also pointed out that the finding regarding gift-deed (Ex. 1) being invalid, in absence of pleadings in the plaint, is erroneous. On the other hand, respective counsel for the respondents have defended the judgment and decree passed by the learned Single Judge.

We have considered the rival submissions made at the bar. The Privy Council in Muhammad Abdul Ghani and Another vs. Fakhr Jahan Begam andAIR 1922 281 (Privy Council) has held that following three conditions are necessary for the valid gift by a Muslim:--

"(a) manifestation of the wish to give on the part of the donor;

(b) the acceptance of the donee, either impliedly or expressly and

(c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively."

Under Section 149 of the Principles of Mahomedan Law by Mulla - Nineteenth Edition, the following three conditions are essential to the validity of the gift:--

"(i) a declaration of gift by the donor;

(ii) acceptance of the gift, express or implied, by or on behalf of the donee and

(iii) delivery of possession of the subject of the gift by the donor to the donee."

Similar view has been taken by the Supreme Court in Muhammad Abdul Ghani and Another vs. Fakhr Jahan Begam andAIR 1922 281 (Privy Council) . The recital in the Hibanama that possession of the property was delivered to the donee give rise to a presumption about delivery of possession. However, the same is a rebuttal presumption (see - Muhammad Abdul Ghani and Another vs. Fakhr Jahan Begam andAIR 1922 281 (Privy Council) and Muhammad Abdul Ghani and Another vs. Fakhr Jahan Begam andAIR 1922 281 (Privy Council) ).

Having regard to this well settled legal principle of law, we shall examine the issue with regard to the validity of Hibanama dated 07/05/1948 in favour of defendants No. 3, 5 and 6. Admittedly, on 07/05/1948, defendant No. 3 was not only adult but was also studying in Calcutta and he was not present in Kota, where Hibanama was executed. It is also not in dispute that defendants No. 5 and 6 were admittedly minor on 07/05/1948. The Hibanama also contains a recital that defendant No. 3 was pursuing the course of M.B.B.S. and defendants No. 5 and 6 were minor and the possession was handed over to the donees and was taken by the donor as a natural guardian, who would manage the state of affairs on behalf of two minor donees till his lifetime.

Defendant No. 3, who has been examined as DW-14 has testified that on 07/05/1948, he was studying in Calcutta and had not appointed Munshi Mohd.Ibrahim as his authorized representative in writing to accept the gift on his behalf. It is pertinent to note that though defendants No. 5 and 6 had pleaded in their written-statements that Munshi Mohd.Ibrahim was authorized in writing to accept the gift, no written authority on behalf of the defendants has been produced. Therefore, it is evident that donor had no authority to accept the gift on behalf of his major son - defendant No. 3. Even assuming that donor Munshi Mohd.Ibrahim could have accepted the gift on behalf of the minor sons - defendants No. 5 and 6, gift cannot be termed as valid as defendant No. 3 - Jaleel Ahmed Khan, who was major, did not accept the gift and the donor had no authority to accept the same on his behalf. It is interesting to note that Munshi Mohd.Ibrahim mentioned in the Hibanama that he will continue to manage the gift property till his lifetime and after his death, his wife would manage. Thus, from the evidence on record, it is evident that physical possession of the properties mentioned in the gift-deed was not handed over to the donees. Also, the donor did not divest himself of his rights in the property, which is evident from the facts stated by the learned Single Judge in paragraph 19 of the judgment.

For these reasons, in our considered opinion, the trial court and the learned Single Judge have rightly held that neither the gift was validly accepted by the donees nor possession of the gifted property was delivered to the donees. Therefore, we are unable to accept the contention made on behalf of the appellants that the finding recorded by the learned Single Judge with regard to execution of the gift-deed is erroneous. So far as the contention raised on behalf of the appellants that the learned Single Judge treated the written-statements filed by defendants No. 2 and 3 as counter claim is concerned, suffice it to say, the original plaintiff had filed the suit seeking relief of partition and even in the absence of any counter claim or cross-objection, the court in exercise of the powers under Order 41 Rule 33 of the Code of Civil Procedure, 1908, could have passed the decree, which in law, it ought to have passed.

The next contention raised on behalf of the appellants that the learned Single Judge has grossly erred in granting relief to the plaintiff to the effect that Hibanama dated 07/05/1948 is null and void even in the absence of prayer in this regard is concerned, the same also does not deserve acceptance as in view of the pleadings of the parties, the trial court has framed Issue No. 8 with regard to the validity of Hibanama and the parties have adduced evidence on that issue. The court under Order 7 Rule 7 of the Code of Civil Procedure, 1908, has power to grant relief even if it is not asked for. (see - Muhammad Abdul Ghani and Another vs. Fakhr Jahan Begam andAIR 1922 281 (Privy Council) ). In view of the facts of the case, we do not find any ground to interfere with the discretion exercised by the trial court.

So far as the contention regarding the objections raised on behalf of defendants No. 1, 5 and 6 is concerned, the appellants cannot be permitted to raise the aforesaid ground in appeal as appropriate remedy for the appellants is to seek review of the impugned-judgment, if so advised.

Similarly, objection with regard to proper valuation of the relief claimed in the suit, also deserves to be rejected as from perusal of the issues framed by the trial court, it is evident that the defendants had not questioned the valuation of the relief claimed in the civil suit before the trial court, therefore, they could not have been permitted to question the same in appeal. (see - Rachappa Subrao Jadhav Desai vs. Shidappa Venkatro24 CWN 33 (Privy Council) ).

For these reasons, we do not find any merit in the appeal. The appeal fails and is hereby dismissed. However, the parties shall bear their own costs.