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Judgment
D.V. Shylendra Kumar, J.—The above three appeals arise out of the common judgment dated 28.10.1988 rendered in common in Regular Appeal Nos. 47/87, 42/87, 43/87 and 44/87 on the file of the Court of the Principal Civil Judge, Belgaum.
By the common judgment the Lower Appellate Court has dismissed all the four appeals and apart from these three second appeals, one more second appeal-RSA No. 90/89 had also been filed before this Court. However, it is a common ground of the parties in these appeals that RSA 90/89 had come to be dismissed as having been abated and judgment and decree passed by the trial Court in favour of the plaintiff in the suit has also been executed and nothing survives in that second appeal.
The origin of all the three appeals can be traced as under:
All these second appeals arise out of the Judgment rendered in common by the court of the Principal Munsiff, Belgaum at Belgaum in respect of OS No. 369 of 1980, OS No. 378 of 1980, OS No. 380 of 1980 and OS No. 381 of 1980. While OS No. 369 of 1980, OS No. 378 of 1980 and OS No. 381 of 1980 were suits filed by common plaintiffs and the first plaintiff being brother of the respective defendants in the three suits, seeking for recovery of possession of portions of the properties said to be in the possession of the defendants in the house property bearing CTS No. 2779 in Tenginkeri Galli of Belgaum City, the other suit in OS No. 380 of 1980 was a suit filed by the defendant in OS No. 381 of 1980 and claiming for his 7/64th share in CTS No. 2779 parts of which property are subject matter in the three other suits.
The suit for recovery of possession filed by the common plaintiffs was on the premise that the suit property CTS No. 2779 was in their ownership and possession having been gifted by the other defendants -parties to the suit etc.,.
The trial court in terms of the common Judgment while decreed the suit for recovery of possession, dismissed the suit for a share in the property filed by one Rafique Ahmed holding that said Rafique Ahmed having gifted his share in the property in favour of the defendants, has no right to claim share in the property thereafter.
The plaintiff in the suit for share in the property, while filed an appeal against that Judgment and decree, he along with other two brothers preferred separate appeals against the Judgments and decrees they had suffered for yielding possession. All these four appeals RA No. 41 of 1987, RA No. 42 of 1987, RA No. 43 of 1987 and RA No. 44 of 1987 were heard together and disposed of by a common Judgment by the court of the Principal Civil Judge, Belgaum at Belgaum and in turn four second appeals had come to be filed before this Court.
RSA No. 90 of 1989 arising out of RA No. 41 of 1987 and OS No. 378 of 1980 has been subsequently dismissed as having abated as the appellant had died and no further steps had been taken. While the other three appeals, namely, RSA No. 82 of 1989 arising out of RA No. 42 of 1987 and in turn OS No. 369 of 1980, RSA No. 83 of 1989 arising out of RA No. 43 of 1987 and in turn OS No. 381 of 1980, RSA No. 89 of 1989 arising out of RA No. 44 of 1987 and in turn OS No. 380 of 1980, had all been allowed by the common Judgment rendered by this Court..
The aggrieved respondents in these appeals had carried the matter to the Supreme Court and the Supreme Court in terms of its Judgment rendered in common in Civil Appeal Nos. 4434 of 1999, 4435 of 1999 and 4436 of 1999 dated 2.2.2005, has allowed all the appeals and remanded the second appeals to this Court holding that the Judgment of the High Court rendered in common in the three appeals are not sustainable for the reason that the appeals have been allowed without framing substantial questions of law.
The background to the above appeals is noticed in the order dated 22.2.2008 passed by this Court cited supra when these appeals had been taken up for hearing.
The appeals were remanded from the Supreme court for the precise reason that the substantial question of law had not been framed at the admission as required u/s 100 CPC.
The appeals, in fact, had been disposed of by this Court by a short order as under:
In the final decree proceedings the court shall take into consideration the correct share of the parties, fix that correct share and allot the property insofar as it is possible. The property being only one property, the same shall be sold in public auction and the proceeds should be divided between the parties in accordance with their shares. However, in further equity, if the property is to be sold, Wali Ahmed who has been in enjoyment of the property all along, shall be given first preference to opt the property at the market rate and on after him the other legal heirs who opt for sale may be given a chance otherwise exercising its own discretion the Appellate Court can pass a final decree in accordance with law. Subject to the above direction, all the second appeals are allowed.
While Sri. Gunjal had appeared and argued the case on behalf of the appellants in the three appeals, Smt. Sona Vakkund and Sri. Nargund, had argued the case on behalf of the respondents contesting the above appeals.
A perusal of the order sheet which was maintained in common in the above three appeals indicates that the appeals, in fact, had been admitted on the following substantial questions of law which arise for consideration in the appeals and had been so admitted even as on 12.6.1989.
i) Whether the courts below are justified in law in relying upon Ext.D4 when admittedly the signature of the plaintiff on that had been struck off, without there being any evidence to the effect that the said striking of the signature of the plaintiff had taken place after it was produced into the court, as it was the case of the first defendant that it had been struck of after it was filed into court?
ii) Whether the courts below are justified in law in the absence of proof with regard to the striking of the alleged signature of the plaintiff on Ext.D4 and proof of execution of Ex.D4 by the plaintiff, that the third defendant was entitled to execute the gift deed Ext.D13 on behalf of the plaintiff?
iii) In view of the denial of execution of the power of attorney by the plaintiff in favour of defendant No. 3 and denial of the gift deed was it not incumbent upon defendant No. 3 to enter the witness box and give evidence?
iv) Whether in the absence of the delivery of possession gift among the Muslims can be held to have been completed?
While the appeals are to be necessarily examined in the light of these questions of law, Sri. Gunjal appearing for the appellants has submitted that the following further substantial questions of law also arise for examination and has placed the same through a memo dated 22.2.2008 filed before this Court furnishing a copy to the other side.
i) Whether the courts below were right in shifting the burden of proof of the gift on the donor, when the plaintiffs had disputed the execution of the GPA and the gift deed Ex.D5, set by defendants 1,10 & their children?
ii) Whether the courts below were right in placing reliance on the unregistered gift deed executed by a Mohammedan and hold that the gift was complete?
iii) Whether the courts below were right in accepting the disputed unregistered GPA, more so when the defendant No. 3 (attorney) has failed to enter the witness box and tender his evidence and further the plaintiff has not been confronted with the GPA, alleged to have been executed by him?
Without prejudice
Whether the courts below were right in accepting the defendants'' case that the plaintiff has executed the GPA to gift away his share, when the deceased Wali Ahmed was in a position to dominate the GPA who had just attained majority?
Now the facts giving rise to the suits, first appeal and second appeals, their relationship amongst the parties who are by common ancestor Abdul Nabi Maniyar can be better appreciated by the following chart
Abdul Nabi (deceased) | ---------------------------------------------------------------------- | | Smt. Imambi Smt. Hussainbi W/o. Abdul Nabi w/o. Abdul Nabi Maniyar (Deceased) (1st wife) Maniyar (2nd wife) | Defendant No. 2 Abdul Khader | (Defendant No. 3) | | --------------------------------------------------------------------------- | | | | | | | | Haiders Walish Mehbo Abdul Azimu Mehmo Abdul Rafique ab med obi Razzaq nnisa od Shako Ahmed (Deft.4) (Deft.1) (Deft.5) ue (Deft.7) (Deft.8) or plaintiff) (Deft.6) (Deft.9)
Three suits O.S. No. 369/80, 378/80 and O.S. No. 381/90 had been filed by Sri. Vali Ahmed one of the sons of late Abdul Nabi Maniyar impleading one or the other brothers seeking for recovery of the possession of a part of house property bearing CTS 2779 in Belgaum City on the premise that this property which had been originally owned by their father - Abdul Nabi Maniyar and in which all his children had a share, had been gifted in favour of other co sharers in terms of a gift deed dated 29.1.1965 (marked as Ex.D6) in common in all the suits. O.S. 380/80 had been filed by the defendant in O.S. No. 381/80 also a brother of Vali Ahmed and by name Rafiq Ahmed Maniyar seeking for his share in the house property which was indicated to be 7/64th of the property and for separate possession of his share impleading amongst others, all the children of Abdul Nabi Maniyar, wife and children of Wali Ahmed and the tenants who are in occupation of parts of the premise (defendants 15,16,17,18 and 19, but later defendants 15,16,17 are deleted).
The basis for filing three suits for recovery of possession by Wali Ahmed was a gift deed dated 29.1.1965 and the very gift deed formed the defence in the suit filed by Rafiq Ahmed for his share in the property. In the suit filed by Rafiq Ahmed for his share in the property, the first defendant Wali Ahmed had pleaded that plaintiff had not given the correct extent of interest of their father Abdul Nabi Maniyar in the property CTS No. 2779; that the said Abdul Nabi Maniyar had a brother by name Hyder Saab, who had also a share in the property to the extent of 1/6th share of the property remaining 5/6th share alone had been inherited by Abdul Nabi Maniyar, that Wali Ahmed had become the owner of that 1/6th share in the property also by a separate gift deed executed by the son and daughter of Hydersab which was executed on 27.4.1968 (marked as Ex.D3) and in respect of the remaining extent of 5/6th share in the property which was jointly to be shared amongst himself, his brothers and sisters all of them had executed a gift deed dated 29.1.1965 (marked as Ex.D6) which had been preceded by a power of attorney executed by some of the persons at Bombay on a stamp paper part of which was purchased at Belgaum on 8.12.1964 and part of it at. Bombay on 19.1.1965 and said to have been executed before a Presidential Magistrate at Bombay on 19.1.1965 by one sister and four or five brother of Wali Ahmed and in favour of Abdul Khader Abdul Nabi Manivar third defendant: in O.S. No. 380/80. While under these three documents Waliahmed had claimed exclusive ownership of the entire extent of CTS 2779 of Belgaum City, case of the plaintiff in O.S. No. 380/80 Rafiq Ahmed, who had sued for share in the property, was one of denial of execution either of the power of attorney or the gift deed; that he had remained in possession of a part of the house bearing CTS No. 2779, which possession was sought to be recovered from him in the suit filed by Wali Ahmed in O.S. No. 481/80, ever since the year 1966 onwards, that he had been in possession of two portions i.e. rooms of the property in his own right as a co sharer along with others and as steps were being taken by the first defendant Wali Ahmed to pull down the building to construct a new building and throw away the plaintiff, it became necessary to sue for declaration of his share and consequential injunction.
It is on such pleadings the parties went to trial. The trial court which clubbed all the four suits together treated O.S. No. 380/80 as the main suit and evidence was led with reference to this suit and discussion was with reference to this suit, framed the following issues in the light of the contentious pleadings of the parties. O.S. No. 369/80
Whether the plaintiffs prove that they are in lawful possession of the suit property 1A by virtue of gift deed dated 27.4.1978?
Whether the plaintiffs prove unlawful interference of the suit property 1A by the defendant?
Whether the plaintiffs prove that they are entitled to possession of the suit property 1B-1 and 2 from the defendant?
Whether the defendant proves that they are in joint possession of the suit properties along with the plaintiffs as co owners?
To what reliefs?
Additional issues:
Whether the plaintiffs proves that they are the owners of the suit 1B-l and 1B-2 properties ?
Whether the plaintiffs are entitled for injunction sought for ?
Additional issues:
Whether the market value of the suit property is incorrect ?
Whether the court fee paid is proper ?
In O.S. No. 378/80
Whether CTS No. 2779 belong to the ownership of Abdul Nabisab Maniyar and Ibrahim Hydersaheb Maniyar and Khatalbi Gous Maniyar ?
Whether Abdul Maniyar died in the year 1952 ?
Whether the heirs of Abdul Nabi Maniyar inherited the property of Abdul Maniyar ?
Whether the Ibrahim and his wife gifted CTS No./2779 to the plaintiff No. 1 on 27.4.1968?
Whether the gift is valid?
Whether the plaintiff is the owner of CTS No. 2779?
Whether the defendant unlawfully and forcibly obtained possession of the property mentioned in para 1B ?
Whether the defendant''s possession in respect of property at para 1B is illegal?
Whether the plaintiff is entitled to the possession of the property mentioned in para 1B:
Whether the plaintiff proves his possession of the property in para 1A?
Whether plaintiff is entitled to permanent injunction against defendant in respect of property mentioned in para 1A ?
Whether description of the property is incorrect ?
Whether the defendant is the owner of the suit property ?
Whether the market value of the suit property is in correct?
Whether the court fee paid is proper ?
To what order or decree?
In O.S. No. 380/1980
Whether the plaintiff proves that he is entitled to 7/64th share in the suit property ?
Whether the gift deed dated 27.4.1968 in favour of Ibrahim is hollow and sham and colourable?
Whether plaintiff had no subsisting interest in the suit property on the date of the suit?
Whether plaintiff is entitled to partition and possession of 7/64th share ?
Whether plaintiff proves that the defendants are unlawfully trying to demolish the suit property?
Is he entitled to permanent injunction ?
Additional Issue:
Whether the market value of the suit property is incorrect ?
Whether the court fee paid is proper ? In O.S. No. 381/80
Whether Khatalbi is the joint owner of the suit properties along with Ibrahim and Abdul Nabi?
Whether plaintiff No. 1 proves that the property bearing CTS No. 2779 was validly gifted to him as per the Mohamodan law under the deed dated 27.4.1968?
Whether plaintiff is entitled to possession of the property mentioned in para 1B ?
Whether plaintiff is in lawful possession of the property mentioned in para 1A?
Whether plaintiff proves unlawful interference by the defendants in respect of property mentioned in para 1A?
Whether plaintiff is entitled to permanent injunction in respect of suit property mentioned in para 1A ?
Whether the market value of the suit property is incorrect ?
Whether the court fee paid is proper ?
To what order or decree ?
What can be noticed is that the pleadings in the three suits by Wali Ahmed for recovery of possession is almost identical and the defence put by him in O.S. No. 380/80 was also on such premise.
In the light of such issues parties went to trial. On behalf of the plaintiff in O.S. No. 380/80, the plaintiff examined himself as PW1, Abdul, Razak Maniyar the 6th defendant as PW2 (defendant in O.S. No. 378/80) and the wife of the 4th defendant-Smt. Mariyambi wife of Hyder Maniyar -4th defendant in O.S. No. 380/80 (who has come on record in place of deceased Hydersab as LR) as PW3 and marked documents exhibits P1 to P10.
On behalf of the defendant Wali Ahmed, wife Smt. Syeeda Wali Ahmed who also happened to be the second plaintiff in the three suits for possession, while was examined as DW1, one M.B. Oathwad a witness to the gift deed dated 29.1.1965 (marked as Ex.D6) was examined as DW2 documentary evidence were exhibited as D1 to D29. Apart from D3, D4 and D6 as already noticed above, Ex.D5 -wardi said to have been given to the city survey officer following the execution of the Ex.D6 gift deed and a permission given in favour of Wali Ahmed by the Corporation for effecting certain alterations in the building as Ex.D7. Exs.D8 to 12 constituting lease deeds by Wali Ahmed in favour of tenants. Ex.D16 being another permission given by the Corporation and D17 being approved plan, D18-25 being tax paid receipts in respect of the property and D26 to D29, again being lease deeds, completes the documentary evidence on behalf of the defendant.
The trial Court on appreciation of the material placed before it answered the issues in favour of the common plaintiffs in the three suits for recovery of possession and against the single plaintiff in the suit for partition of his share, negatived the suit claim in the light of the gift deed Ex.D6 and accordingly, while decreed the three suits for recovery of possession, dismissed the suit filed by Rafiq Ahmed for declaration of his share and for consequential relief by a common judgment.
It is against this common judgment four appeals had been preferred. Three appeals by the defendants who had suffered a decree for yielding possession in the three suits filed by Wali Ahmed and the suit of Rafiq Ahmed having been dismissed, Rafiq Ahmed wanted to pursue his chance before the Appellate Court for his share in the suit property.
The lower Appellate Court which again heard the appeals in common formulated the following three points for its determination:
i) Whether the findings arrived at by the trial Court in O.S. Nos. 380/1980, 369/1980, 378/1980 and 381/1980 giving rise to these appeals are erroneous, capricious and arbitrary?
ii) If so, whether they need interference by this Court ?
iii) What order ?
and held that the trial court had arrived at the proper findings and rightly decreed the three suits for recovery of possession and dismissed the suit for possession for the share in the property. Therefore, concluded that no interference was warranted from the Appellate Court and accordingly, dismissed the four appeals by a common judgment and directed that the parties to bear their own costs in the appeals.
It is under these circumstances, four second appeals were filed before this Court.
However, as noticed earlier, Regular Second Appeal 90/89 having already been disposed of as having been abated what remained for is the other three second appeals 82, 88 and 89 of 1989. Though these appeals in an earlier round were allowed by this Court, have been restored to file by the Supreme Court, by reversing the judgment and decree passed by this Court earlier.
I have heard elaborate submissions made on behalf of the appellants by Sri. V. Gunjal and Smt. Sona Vakkund and Sri. Nargund appearing on behalf of the respondents.
Sri. Nargund learned Counsel for the respondents has placed before the court two memos dated 26.2.2008 indicating that the third respondent in R.S.A. No. 89/89. Abdul Khader had died during the year 2005 and the 10th respondent-Mehboob died on 24.6.2006 and no further steps had been taken by the appellant in this appeal for bringing the LRs of the deceased respondents and therefore, the appeal abates.
Mr. Nargund learned Counsel has raised the preliminary objection regarding the maintainability of the appeal on the ground that the suit filed by Rafiq Ahmed for a share in the property also indicated the shares of the other co sharers and that the suit having been dismissed and the appeal having been dismissed, that claim for his share in respect of deceased respondents has attained finality and if so, examining the consequences in respect of the claim in this second appeal vis-a-vis surviving respondents may give rise to conflicting decrees as if the second appeals are to be allowed, it will result in a decree in favour of the appellants in RSA No. 89 of 1989 whereas the appellants have already suffered a decree for dismissal as against the deceased respondents which has become final and that will result in inconsistent decrees being passed in the same suit which should necessarily be avoided. Submission is that the cause of action for prosecuting the suit only as against the surviving defendants in the suit does not sustain as unless the legal heirs of the deceased defendants also are retained on record, the suit cannot proceed as against the surviving defendants alone and therefore the entire suit necessarily abates and if so second appeal also should be dismissed as having abated.
Responding to this submission Sri. Gunjal, learned Counsel for the appellants in this appeal submits that the appeal being by the plaintiffs in the suit who had sued for their share in the property and if other co-sharers share should be taken that of the plaintiffs and defendants, they are in the same position and if so there is no question of the appeal abating as against some of them as it can be taken that the surviving parties continue to represent the deceased also in a representative capacity and therefore the entire appeal does not abate and the appeal survives for examination.
It is also submitted by Sri. Gunjal, learned Counsel that in so far as legal representatives of the third respondent is concerned, they are being brought on record through paper publication.
The above three appeals are being heard together and the decision was same before the trial court and lower appellate court in the original suits and the regular appeals respectively of which the above second appeals arise. It should be noticed that while the developments in RSA No. 89 of 1989 does not affect the tenability or maintainability of the other two appeals, namely, RSA No. 82 of 1989 and RSA No. 88 of 1989, RSA No. 89 of 1989 arises out of the suit for partition by claiming plaintiffs share in the suit schedule property. That suit was mainly resisted by the first defendant and his wife and children who claimed exclusive ownership of the suit schedule property. So far as tenth respondent who figured as eighth defendant in the suit is concerned, the eighth defendant had not contested the suit though was represented by an Advocate and did not claim anything adverse to the interest of the plaintiff in the suit. Irrespective of this position, even if the suit is to be decreed, in my understanding, it does not bring about any conflict as at the best while the plaintiffs in OS No. 380 of 1980 may get a share and a decree to this extent, it may possibly lead to a share in favour of the eighth defendant also as a brother and that in itself will not result in a conflicting decree as the eighth defendant had neither claimed anything over and above his share nor had contended that the plaintiff does not get a share etc.,. In this view of the matter, I am of the opinion that the appeal does not abate.
On behalf of the appellants, the main contention urged by Sri Gunjal, learned Counsel is that the courts below had committed an error in law in concluding that Exhibit-D4 and Exhibit-D6 had been proved and that it also binds the appellant-plaintiff in OS No. 380 of 1980.
In this regard by drawing attention to paragraphs 16, 17 and 18 of the Judgment of the trial court, it is submitted that the trial court had committed an error in law in concluding that the gift deed had been proved in terms of the provisions of the Mahomedan Law, the possibility of the other co-sharers executing a gift deed in favour of Waliahmed Abdul Nabi Maniyar who had taken care of their upbringing and education at Mumbai and he alone being in a better financial position, probabilizes the other co-sharers executing the gift deed out of their love, affection and gratitude in favour of Waliahmed Abdul Nabi Maniyar is a circumstance which strongly probabilizes the case of the defendants; that the finding based is not on any material; that the learned Judge of the trial court has given a go by to the requirements of law and has proceeded in surmises and presumptions. It is also submitted that placing reliance on Exhibit-D3 a gift deed said to have been subsequently executed by the children of Hyder Sab has also vitiated the finding of the trial court on its finding and appreciating the legal effect of Exhibit-D4 and Exhibit-D6.
Sri. Gunjal, learned Counsel for the appellants has also pointed out the inherent discrepancy found not only in Exhibit-D4 but also in Exhibit-D6 and has submitted that the learned Judge of the trial court failed to appreciate that such discrepancies clearly indicated that Exhibit-D6 did not meet the requirements of law to pass it as a gift deed and said to have been executed by all other co-sharers in favour of Waliahmed Abdul Nabi Maniyar.
An additional submission made on behalf of the appellants is that said Waliahmed Abdul Nabi Maniyar was in a dominating position over all others and execution or signatures of the parties in Exhibit-D4 or Exhibit-D6 cannot be presumed to be either voluntary or uninfluenced and therefore no importance should have been attached to either Exhibit-D4 or Exhibit-D6 by the trial court. Sri. Gunjal, learned Counsel submits that the learned trial Judge has gone astray in attaching too much of importance to the fact that the plaintiff in OS No. 380 of 1980 had stated that he had stayed for about six months in a house in the year 1968 before getting into possession of part of the suit property and treating this as an admission that the plaintiff had conceded for the due execution of the gift deed is a finding perverse in nature and as such the finding does not. necessarily follow in the wake of the statement that the plaintiff had stayed for about six months elsewhere and the statement has been totally blown out of proportion and contrived into an admission by the plaintiff for the execution of the gift deed which finding it is submitted is not tenable in law.
Learned Counsel would also point out to the inherent inconsistencies in Exhibit-D4 and Exhibit-D6 and Exhibit-D6 being not in consonance with Exhibit-D4 though it is claimed that Exhibit-D6 was pursuant to Exhibit-D4 would clearly improvableness the case of the first defendant.
Non-registration of Exhibit-D6 is argued as fatal to the validity of the execution of gift deed in as much as the instrument when once it is reduced into writing and one transferring the interest in the immovable property on a stamp paper of value of more than Rs. 100/-, non-registration affects the transfer of the property in terms of the provisions of Section 49 of the Registration Act, 1908 and therefore submits that the gift does not operate assuming for argument sake that there was such gift. Submission is that the consequence u/s 49 follows in the light of the requirements u/s 17(1)(a) of the Registration Act, 1908 itself and the provisions of Section 129 of the Transfer of Property Act, 1882 also cannot save this consequence which operates independently under the provisions of the Registration Act, 1908. In support of such submission, reliance is placed on the following decisions:
[a] ''Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum'' reported in AIR 1962 AP 199
[b] Imbichimoideenkutty Vs. Pathumunni Umma and Others,
One another contention urged on behalf of the appellants by Sri. Gunjal is that the courts below have wrongly placed the burden of proving the gift deed; that it was incumbent upon the defendant Waliahmed Abdul Nabi Maniyar who had set up the gift deed to prove it to the satisfaction of the courts and the trial court had not framed the issue properly in this regard and proceeding as though it was incumbent upon the plaintiff in OS No. 380 of 1980 to prove that the gift deed was not a valid gift and placing such burden on the plaintiff has vitiated the Judgment of the trial court and submitted it is contrary to the provisions of Sections 101, 102 and particularly Section 111 of the Evidence Act as it is the first defendant: who was virtually in a position of a guardian of the plaintiff at the time when Exhibit-D4 and Exhibit-D6 are said to have been executed and therefore they should not have been accepted at their face value.
Sri. Gunjal would also submit that the inherent discrepancy in both Exhibit-D4 and Exhibit-D6 such as part of the stamp paper being purchased at Belgaum and part of it at Bombay and the canceling of the names therein and the non-registration of Exhibit-D6 are all circumstances which raise doubts about the genuineness of the documents and coupled with the fact that the plaintiff and other defendants have continued to be in possession of the suit schedule property in their own right as co-sharers very strongly probabilizes that so far as they are concerned, the gift deed assuming that it was there had never been acted upon and cannot operate against them.
It is submitted that if the gift is claimed only through Exhibit-D4 and Exhibit-D6, the combined effect of Exhibit-D4 and Exhibit-D6 also not meeting the requirements of a valid gift, the case of the first defendant fails in law, irrespective of the facts and therefore it is submitted that while the suit of the plaintiff in OS No. 380 of 1980 should be decreed, suit for recovery of possession against the defendants should be dismissed.
Learned Counsel would submit that recording a proper finding on the appreciation of evidence as is available on record is the duty of the trial court and lower appellate court and if a finding recorded is on improper appreciation or finding does not follow on the available evidence on record, the High Court; has the power and duty to set right such errors in law even in the exercise of jurisdiction u/s 100 of the Code of Civil Procedure. Reliance is placed upon tile decision of the Supreme Court in the case of Krishna Mohan Kul @ Nani Charan Kul and Another Vs. Pratima Maity and Others, in support of the submission that the gift is not complete as the donors had not put the donee in possession of the property, particularly, as they had continued to remain in possession and therefore in so far as persons who remained in possession of parts of CTS No. 2779 are concerned the gift cannot operate or did not come into existence. Learned Counsel would rely upon the decision of the Supreme Court in the case of Maqbool Alam Khan Vs. Mst. Khodaija and Others, ].
Learned Counsel would also seek to explain that Exhibit-P3 which is the same as Exhibit-D5 does not amount to an admission on the part of the plaintiff in OS No. 380 of 1980 as it is used only as a cause of action and not as an admission of the contents.
In so far as the suits for recovery of possession which are mainly decreed on the basis of the gift deed, it is submitted that there is not even a plea as to the precise date on which the defendants in respect of the suit had trespassed and on the other hand the plaintiffs in the suit for recovery of possession not disputing that the property was one which was otherwise required to be shared amongst heirs of Waliahmed Abdul Nabi Maniyar and the parties having continued to enjoy the property jointly, there was no case of trespass on the part of the defendants being made out by the plaintiffs in those suits and if the defendants had continued to be in possession as co-sharers, they are neither trespassers nor suit filed in the year 1980 for recovery of possession can be said to be within the period of limitation as the defendants who are in possession in their own right ever since the death of their father i.e., on 11.6.1961 and therefore submits suits should have been dismissed on the ground of limitation etc.,.
In this regard, learned Counsel has placed reliance on a decision of the Patna High Court in the case of Bhagwan Das Sharma Vs. Gaya Sah and Others, .
Countering such submissions, Sri. Nargund, learned Counsel for the respondents would vehemently urge that the findings and the conclusions drawn by the trial court and affirmed by the lower appellate court are not. only correct on facts but also proper in law and therefore no interference is called for in these appeals by the High Court in the exercise of jurisdiction u/s 100 of the Code of Civil Procedure.
It is also submitted that in so far as one-sixth share in the property which the first defendant got through a gift deed i.e., Exhibit-D3 is concerned, there being no challenge to that, to that extent the defendants'' ownership in one-sixth share of the suit schedule property cannot be gone into in these appeals and at any rate cannot be disturbed as the plaintiff in OS No. 380 of 1980 have not questioned the validity of this gift deed.
It is also submitted that the intrinsic evidence in this document clearly showed that the donee had already become the owner of five-sixth share in CTS No. 2779 earlier to the gift deed at Exhibit-D6 and in the light of Ex-D4, Ex-D6 and Ex-D3, it should be taken that the defendants had become the full owner of CTS and therefore were not only entitled for recovery of possession of portion in occupation of the plaintiff and other co-sharers who had continued to remain in possession but also had successfully resisted the suit for partition. It is submitted that the varadi submitted by the very plaintiff in OS No. 380 of 1980 Exhibit-D5 is clear proof of the parties having not only accepted the gift deed but also having acted upon the same. The oral evidence of PW-1 being supportive of tills position, there cannot be other finding by the courts below. It is submitted on facts that the plaintiff and other co-owners having virtually admitted the signatures both in Exhibit-P4 and P6, are estopped from contending to the contrary.
Countering submission that Exhibit-P4 - power of attorney is not being proved by leading evidence, particularly, not examining the power holder or other brothers and sisters of parties, Sri. Nargund, learned Counsel would submit that the power of attorney being an instrument executed before the Magistrate, presumption u/s 85 of the Evidence Act is available with regard to the due execution of the document and therefore Exhibit-P4 cannot be questioned on the premise that it had not been proved.
With regard to non-registration of Exhibit-D6 gift deed, submission of Sri. Nargund, learned Counsel is that the gift being governed by the Principles of Mahomedan Law and to constitute a valid gift there being no requirement that the gift should either be in writing or that it should be registered, non-registration of Exhibit-D6 cannot have a bearing on the validity of the gift and therefore submits that. Exhibit-D6 operates on its own and even without registration. It is submitted that if the gift is even proved through the oral evidence, that is sufficient to accept the execution of a gift deed and the mere fact that subsequent to the gift, it is also reiterated through an instrument in writing and non-registration of such instrument does not make any difference to the gift already made and therefore submits non-registration cannot have any bearing on the validity of the gift deed. In this regard, learned Counsel would draw the attention of the court to the provisions of Mulla''s Principles of Mahomedan Law as contained in Section 150 and submits that the three requirements of a valid gift are as enunciated in Section 149 which are that the declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee and delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. Sub-clause [3] of Section 150 is referred to submit that non-registration of a deed of gift will not in any way detract once it. is proved by oral evidence that gift had been completed even before in terms of provisions of Sections 149 and 150. Submission is that reading of Exhibit-D4 and Exhibit-D6 would clearly indicate the declaration on the part of the donors, gifting their shares in CTS No. 2779 in favour of the donee; that the donee had also accepted the gift and in fact the donee was put in physical possession of the property as recited in the gift deed and therefore all the three requirements of a valid gift under the Mahomedan Law having been fulfilled and subsequent non-registration is of no consequence to the validity of the gift deed.
In support of such submission, Sri. Nargund, learned Counsel would place reliance on the decision of the Kerala High Court in the case of Makku Rawther''s Children: Assan Ravther and Others Vs. Manahapara Charayil, as also the decision of the Gauhati High Court in the case of ''Md. Hesabuddin and Ors. v. Md. Hesaruddin and Ors.'' reported in AIR 1984 Gau 41 and further a decision of Patna High Court in the case of Maimuna Bibi and Another Vs. Rasool Mian and Others . Reliance is also placed on the decision of the Supreme Court in the case of Mahboob Sahab Vs. Syed Ismail and Others, and with regard to the manner of proving of handing over the possession in the subject matter of appeal by placing reliance on the decision of the Patna High Court in the case of Mst. Samrathi Devi Vs. Parasuram Pandey and Others, .
It is submitted that the fact that the gift deed was handed over by the donors in favour of the donee was sufficient evidence to indicate the acceptance of the gift by the donee and particularly submits that there being declaration of acceptance and handing over of possession, the gift is complete and non-registration cannot affect and when once the gift is upheld, the plaintiff cannot claim any share and also has to leave possession in favour of the person with valid title vis-a-vis person who does not have title to the property. It is therefore urged that there is no error in law committed by the courts below and the second appeals have to be dismissed.
To appreciate such submissions, learned Counsel has also taken me through the evidence of PW-1, DW-1 and DW-2, the documentary evidence on behalf of the defendants and submits that the evidence has been rightly appreciated in the light of the material before the courts and the contents of the same and urges for dismissal of these second appeals.
It is in the light of such rival submissions, these second appeals are required to be examined and particularly questions of law as had been noticed even earlier at the time of admission of three appeals and further questions now raised before the commencement of arguments in the context of which learned Counsel have addressed their arguments.
The relationship between the parties is not in dispute. The entitlement of the plaintiff in OS No. 380 of 1980 but for the gift deed is also not in dispute. The only dispute raised in this regard is the fattier of the parties Waliahmed Abdul Nabi Maniyar had only five-sixth share in the suit schedule property and did not own the entire property. In so far as this contention is concerned, it may be taken up later.
In so far as the appreciation of the evidence on facts are concerned, while it is the submission of Sri. Nargund, learned Counsel that a finding of fact cannot be disturbed in the second appeal, an inference drawn on the evidence before the court and if the inference is not the proper inference based on the evidence correcting that finding does not amount to correcting a finding of fact is not in dispute.
In so far as Exhibit-D4 power of attorney is concerned, this Court has raised questions about its validity in view of the striking off of his signature and in the light of the findings drawn by the courts below, even when the plaintiff had denied his signature and the third defendant having not been examined in whose favour the power of attorney had been executed, other executants having not affirmed the execution in his favour and having not spoken to about the valid execution, whether Exhibit-D4 can be held to be a valid instrument.
Submission of Sri. Nargund, learned Counsel on this aspect is that Section 85 of the Evidence Act takes care of this position, particularly, as the instrument is executed before the Magistrate and the plaintiff in OS No. 380 of 1980 happens to be the defendants in the other suit having not led any evidence to get over the presumption in favour of the valid execution of the instrument.
A presumption of valid execution arises if things appear to have been done in the normal course of events. In the first instance, the executants have not admitted it. None of the executants have been examined for proving the due execution of Exhibit-D4 and the defendant in OS No. 380 of 1980 has rested his case on the presumption available u/s 85 of the Evidence Act. It has therefore become necessary for proper perusal of Exhibit-D4 and to appreciate the manner in which the courts below have examined this document for the inference that they have drawn and the finding given on this aspect.
On a perusal of the translated version of Exhibit-D4, it recites that the persons who are residents of Mumbai have executed the power of attorney in favour of Abdul Khader - third defendant in the suit and it also says that the executants have joint share in CTS No. 2779 along with the person in whose favour they are executing the power and that parties had decided to gift their share in favour of Waliahmed Abdul Nabi Maniyar. It is recited that as it is not possible for the executants to go all the way from Mumbai to a place where the property is located, namely, Belgaum, and as they have faith in the person in whose favour power of attorney is being executed, he is being authorized to use or purchase the legal stamp papers and execute the gift deed and get it registered by submitting it for registration and to act further in consonance with such document. Exhibit-D4 comes in two parts, first is on a stamp paper of value of Rs. 4.50 ps purchased at Belgaum on 8.12.1964 on which is the contents of the power of attorney indicated and thumb mark of Smt. Hussaini Bi, Abdul Nabi Maniyar and five other signatures one of which is struck off subsequently and at the bottom is the signature and seal of the Registrar and the Magistrate, the other part is blank stamp paper of value of Rs. 3.50 ps dated 19.1,1965 and containing the seal of the Presidential Magistrate at the bottom with the date 19.1.1965 whereas the first stamp paper of the value of Rs. 4.50 ps at the end of which figures signature of the Magistrate the date 18.1.1965 is put but struck off.
A combined reading of these two stamp papers would indicate that the second stamp paper is left blank and at the bottom of this stamp paper figures the seal of the Magistrate and bearing date 19.1.1965. It is not clear as to whether the instrument ended with pages 1 and 2 of the first stamp paper of the value of Rs. 4.50 ps or has continued to the other stamp paper also. The other stamp paper remains blank but has the seal of the Magistrate at its bottom and the circular seal in the middle of this paper. The two different dates of the stamp papers one containing signature with the date 18.1.1965 struck off, the other stamp paper not being filled up but having the seal of the Magistrate at the bottom and the circular seal in the middle blank portion definitely raise doubts about the genuineness and the validity of this instrument.
Though Sri. Nargund, learned Counsel would submit that the blank stamp paper must have been only for the reason that the power of attorney was executed in the State of Maharashtra and before the Magistrate at Bombay as law requires the instrument to be on a stamp paper purchased within the State of Maharashtra and it appears it had already been executed on a stamp paper purchased at Belgaum, to get over this shortcoming an additional stamp paper had been purchased and was cancelled under the seal of the Magistrate and therefore no discrepancy can be attributed to this instrument, I am not very satisfied or convinced about such explanation, particularly, as even in the stamp paper on which the contents of power of attorney figures and where signatures figure there is a striking off of a party''s signature and the date indicated at the bottom, below the signature of the Magistrate is also struck off. The very document gives rise for doubt about its due and valid execution and its legality.
It is not necessary that the party should have raised or pointed out such discrepancy as to the justification for the presumption u/s 85 of the Evidence Act. The document, on a perusal by the court itself throws open such discrepancies and creates doubts and suspicion regarding its proper and due execution. I am of the definite view that the presumption u/s 85 of the Evidence Act does not remain any further in favour of the person claiming the due and valid execution of the instrument. The document itself comes with such inherent discrepancies and therefore the presumption does not enure to the benefit of accepting this document as a valid document. In the absence of enabling provision of Section 85 of the Evidence Act, the document should have necessarily been proved and that having not been done, it is rather difficult to place reliance on an earlier power having been executed by the persons said to have been executed in favour of another person who in turn was supposed to execute a gift deed in favour of the first defendant. But, the further significance is that the recitals of this power of attorney indicates that it is being executed for the specific purpose of authorizing the power holder to perform the act of purchasing and legal stamp papers of the requisite value, execute the gift deed on it and get it registered by submitting it for registration. The authorization is for executing the gift deed on a valid stamp paper of the proper value and also to get it registered. Unless all these acts have been done, there is no fulfillment of authorization. The gift deed if is to be completed as per the very power of attorney, should have been executed by the power holder on a valid stamp paper of commensurate value and only by getting it registered and not otherwise. That is the mode of gift that is sought to be made by the donors in favour of the donee, if one were to go by the recitals in the power of attorney. A perusal of Exhibit-D6 and subsequent development definitely indicates and it is not in dispute that Exhibit-D6 which is supposed to have come into existence on the authority of Exhibit-D4 has not been registered though it has been executed on a stamp paper of the value of Rs. 150/- + Rs. 30/- : Rs. 180/-. The gift deed though recites that power of attorney executed at Mumbai purports to indicate that what is executed is a sale deed, the gift deed also mentions the value of the property and indicates as though the entire property was earlier in the ownership of Abdul Nabi Maniyar. The gift deed is purporting to have been executed not only by the power holder but also by other co-sharers who have also joined him. It is also indicated that the property was in the ownership and possession of the donors and possession is being handed over to the donee. The power of attorney holder himself is a party who is a co-sharer and it does not necessarily indicate that he has signed both for himself and as power of attorney holder except that his signature is found as Waliahmed Abdul Nabi Maniyar. But, most importantly, a gift deed in writing is said to be for the purpose of giving effect to the contents of the power of attorney. But, it is not registered as indicated in the power of attorney itself. It is also not recited that gift has already been executed and in support of the same, it has been reduced to writing. In fact, the combined reading of the power of attorney and gift deed would indicate that it is only on the executing the gift deed, the gift is sought to be brought into existence and not that it is a recital of an earlier gift. If the enabled act is not completed as per the authorisation and if the power of attorney holder does not act in terms of the power and leaves it midway it cannot be said that what has been done is a proper act in terms of the power authorized by the executants.
When the power of attorney had not completed the execution of the gift in the manner in which he had been authorized to do so, it is obvious that the act is not complete, in which event, no gift comes into existence and therefore also the gift deed under which the defendants claim ownership of the property CTS No 2779 of Belgaum city does not advance the case of the first defendant. There are more discrepancies which are present in ExD3, D4 and D6, such as the donee being described as a pleader or advocate in ExD3 and D6, whereas ExD4 the power of attorney describes Waliahamed Abdulnabi Maniyar as a trader. ExD8 -rent note dated 26-1-1965 - further improvableness execution of the gift deed dated 29-1-1965 in favour of Waliahamed Abdulnabi Maniyar, inasmuch as that one room in CTS No 2779 of Belgaum city is supposed to be in the possession of Waliahamed Abdulnabi Maniyar is rented out in favour of one Kamaroddin Ibrahim sab Soudagar, in terms of this rent note, whereas the gift deed itself is subsequent to this rent note, indicates that the possession of the property was already with Waliahamed Abdulnabi Maniyar i.e. even before the execution of the gift deed dated 29-1-1965. The recital in the gift deed that the entire property was in the possession of the donors and the possession was handed over to the donee Waliahamed Abdulnabi Maniyar under the gift deed also is therefore incorrect and if the gift deed is not one accompanied by handing over of possession, the gift fails even in terms of the Sections 149 and 150 of the Mulla''s Principles of Mohomdan Law.
I am also not very convinced about the due execution of the gift, deed due to inherent defects and inaccuracies even in the documents ExD3, D4, D6 and D8. But, when a gift simplicitor which is hiba in Mohomdan Law is kept in mind, a gift of this nature is a transfer of property made immediately and without any exchange of property by one person to another and accepted on behalf of the donee. That is the requirement under the Mohomdan Law. The donor who by himself transfer the property to the donee, which should accepted by the person simultaneously or on his behalf by some one else and must be put in possession of the property along with the gift. It should also be without any other consideration, but only out of love and affection. If a transfer of this nature is sought to be effected through a power of attorney, then it is obvious that there is no gift either at the time of execution of the power of attorney or at any point of time earlier. While in law, a gift can be accepted on behalf of the donee by some one else also, acting on behalf of the donee, the declaration of gift should be by the donor himself and the transfer [of possession of the property | should take place simultaneously on the declaration. It cannot be a Mohomdan gift (hiba) which can be executed in part or in installments.
While such a gift or hiba is described in Section 138 of the Principles of Mohamedan Law, a further reading of the provisions of the Sections 143, 146, 147, 149 and 150, clearly indicate that it is not possible for the execution of a gift deed under the Mohomdan law through a power of attorney. While delivery of possession is an essential ingredient of a valid gift, even if handing over of possession can be read down, in the present case, even in terms of the recitals as contained in ExD6 and 8, it is not even clear as to whether the donors were in possession [of the property] and the possession being handed over to the donee, but a reading of the contents of ExD6 rent note, indicates that the donee was already in possession. This fact assumes significance in the context of the submission of Sri Gunjal, learned Counsel for the appellants that the first defendant Waliahamed Abdulnabi Maniyar was in a dominating position over other brothers and sisters and no reliance can be placed on either the power of attorney or the gift deed for a presumption that a gift has been executed or that it is not an act of dominance of the brother on behalf of said Waliahamed Abdulnabi Maniyar. The recital in the other gift deed ExD3 relied upon by the first defendant Waliahamed Abdulnabi Maniyar gives an impression that the said gift deed was not a gift simplicitor or hiba, but it is more in the nature of a gift for consideration i.e. hiba-bil-iwaz, as described in Section 168 of the Mulla''s Principles of Mohomdan Law. Though in terms of Section 160, which is relied upon by Sri N B Nargund, learned Counsel for the respondents, there can be a gift of an undivided share of a co-sharer in favour of all the other co-sharers, the fact that the gift deed ExD6 recites that it is a sale deed, again creates doubts or confusion as to whether it was a gift only out of pure love and affection or whether it is also a gift for consideration. If it is to be a gift for consideration, the law is that it being on par with a sale deed, requirement of registration is inevitable.
Sri Nargund being aware of the fact of non-registration, has called in aid the provisions of Section 129 of the Transfer of Property Act and has submitted that the requirement of the gift being in writing and to be registered in terms of Section 123, does not apply to a Mohomdan gift, in view of Section 129 of the Transfer of Property Act.
While Section 129 can definitely relieve a gift effected under any rule of Mohomdan Law from the rigour of Section 123 of the Transfer of Property Act, it is inevitable that that gift should be achieved in terms of Sections 149 and 150 of the Mulla''s Principles of Mohomdan Law and not without adhering to the requirement of valid Mahomedan gift. While the decisions relied upon by the Sri N B Nargund, learned Counsel for the respondents definitely constitute a valid law and that a Mohomdan gift even of an immovable property need not be in writing and need not be registered at all and even a valid gift of the shares of the donors could have taken place independent of ExD6, this legal position cannot enure to the benefit of the respondents, in the present situation, as the ownership of the shares of the donors is claimed only through the gift deed and not independent of it. Even in terms of the power of attorney, it is only through execution of a gift deed under the power of attorney, it could have been completed and if the attorney had not given effect to the same in the manner in which he has been authorized, gift does not come into existence, i.e., the registration part is left undone even if ExD6 is to be accepted as a valid instrument, otherwise for want of registration.
Yet another impediment in law is, if the gift of the shares of the donors in immovable property CTS No 2779 of Belgaum city is only through a gift deed, then notwithstanding the provisions of Section 129 of the Transfer of Property Act, the provisions of Section 17 of the Registration Act is independently attracted and when once it is an instrument in writing of the transfer of an immovable property of value of more than Rs 100/-, registration is inevitable, as the provision of Section 17 of the Registration Act does not make a distinction between an instrument which transfers an interest in an immovable property valued of more than Rs 100./-, whether by a Mahomedan or others, and therefore want of registration necessarily attracts the consequences u/s 49 of the Registration Act. It is for this reason that ExD6 fails for the purpose of defendants claim of ownership of the shares of the donors i.e. respective shares in CTS No 2779 of Belgaum city. The recitals in ExD3, that what is being executed is a sale deed as contained in ExD6 are an indication, it may be said that ExP6 was an instrument more in the nature of hiba-bil-iwaz, in which event, registration is necessary and perhaps the authorities were acting on such premise and that is why the reason that it was so indicated on behalf of power of attorney and that registration is also to be part of the authorization for completing the gift and execution of the gift deed. It is here that the decisions of Andhra Pradesh High Court and the Kerala High Court [supra] assume importance. The decision relied upon by Sri N B Nargund, learned Counsel for the respondents does not support to sustain the judgments and decrees passed by the courts below.
In so far as the appeal arising out of the suits for recovery of possession of parts of CTS No 2779 of Belgaum city is concerned, while one such suit has already attained finality against one of the other brothers or parties, as RSA No 90 of 1989 having been disposed of as abated, the position cannot be so in respect of the other two appeals i.e. in RSA No 82 of 1989 and RSA No 88 of 1989, for the simple reason that the basis for suing for recovery of possession is the gift deed and as discussed above, the gift deed fails for transfer of ownership of the property, the subject matter of the suit, in favour of the plaintiffs therein and possession being admittedly with the defendants, the suit for recovery of possession cannot succeed, as the defendants had contended that they are in possession in their own right as co-sharers of the property. The plaintiffs obviously having not proved any better or superior title over the defendants and though it is contended that the defendants are virtually trespassers into the suit schedule property recently and such is the premise on which the trial court had proceeded, I find this to be a proposition not acceptable in law, for the reason that it will be an unacceptable proposition in law to take it that it was only the plaintiffs in the suits for recovery of possession who were in exclusive possession of the property, as the gift deed based on which title and exclusive ownership and possession is claimed, has failed. Assuming for arguments'' sake that the plaintiffs were in possession and at any subsequent point of time, the defendants had entered into the possession of a portion indicated in the suit, such a possession cannot be construed as a possession by a trespasser or an unauthorized possession, as the defendants being co-sharers, possession even by the plaintiff being as one of co-sharers, such possession in law is always on behalf of the other co-sharers also and there is no question of one co-sharer being termed as a trespasser into a joint property vis-a-vis the other co-sharer. On the other hand, the case of the defendants was that they had continued to be in possession ever since the demise of their father. In the absence of any positive material to indicate as to whether the defendants were not earlier in possession of the respective portions and the plaintiffs not filing a suit for recovery of possession based on mere earlier possession and that the defendants have dispossessed the plaintiffs, but being based on the superior claim over the property by claiming ownership, that having failed, the suit for recovery of possession inevitably fails. Therefore, RSA No 82 of 1989 and RSA No 88 of 1989 are allowed and the judgments and decrees dated 28-10-1988 passed in RA No 42 and 43 of 1987, on the file of Principal Civil Judge, Belgaum are set aside and OS No. 369 and 381 of 1989 on the file of the court, of Principal Munsiff, Belgaum are hereby dismissed.
The suit in OS NO 380 of 1980 for partition while has to succeed on the failure of the defendants'' defence of gift deed coming in the way of claiming a share, two questions arise here. One is as to whether the first defendant can claim exclusive right to 1/6th share in the property through the gift deed ExD3 and secondly what exactly is the entitlement of the plaintiffs in property bearing CTS No 2779 of Belgaum city.
Sri N B Nargund, learned Counsel for the respondents has argued that the gift deed ExD3 having not challenged by the plaintiffs in OS No 380 of 1980 by having not impleaded the other brother of the father namely Hydersab, the plaintiffs cannot in any way affect the entitlement of 1/6th share in the property, which the first defendant has claimed exclusively through the gift deed in his favour.
I am unable to accept this contention for the reason that in the description of property bearing CTS No 2779, both under the ExD4 and ExD6, it is not indicated that the father of the parties Waliahmed Abdul Mabi Maniyar has only 5/6th entitlement in the entire property, but on the other hand, it is indicated that the entire property was in the ownership and possession of said Waliahmed Abdul Nabi Maniyar. It is therefore to be taken that even as per the gift set up by the first defendant, it was the father of the parties who was in the ownership and exclusive possession of the property in CTS 2779 and one has to proceed on such premise, though inter se between Waliahmed Abdul Nabi Maniyar and the donors in gift deed ExD3, it may be a different matter.
Secondly, the precise entitlement of the plaintiffs in CTS No 2779 of Belgaum city, but for the minor discrepancies as noticed above and which have not been accepted for the purpose of diminishing the share of the plaintiffs in the suit, the actual share which is claimed at 1/6th does not appear to be the true entitlement even on the admitted relationship amongst the parties i.e. wives and children of Waliahmed Abdul Nabi Maniyar. It is not in dispute that Waliahmed Abdul Nabi Maniyar had two wives, seven sons and two daughters and only one surviving wife. While the wife becomes entitled to 1/8th share in the property of Waliahmed Abdul Nabi Maniyar, two daughters put together are entitled to claim 2/3rd share in terms of Section 63 of the Mulla''s Principles of Mohomdan Law. That means, what remains for being shared amongst the sons as residuary is 1+2/3+1/8 : 5/24 share of the property and that the residuary to be shared amongst the seven sons of Waliahmed Abdul Nabi Maniyar i.e. six brothers of the plaintiff and the plaintiff, and it in turn works out to 5/148th share in the main property.
Therefore, RSA Nos. 89 of 1989 is also allowed and the judgment and decree dated 28-10-1989, passed in RA No 44 of 1987, on the file of Principal Civil Judge, Belgaum and judgment and decree dated 31-1-1987 in OS NO 380 of 1980, on the file of Munsiff, Belgaum, are set aside and the suit is decreed for 5/148th share of the plaintiff in the suit schedule property viz., CTS No 2779 of Belgaum city.
It is also made clear that the suit for recovery of possession as against this plaintiff having failed, this plaintiff is entitled to defend his possessory title to the extent of the property in which he is admittedly in possession even in terms of OS No 381 of 1980, which had been filed by the first defendant as against this plaintiff.
The appeals are allowed, as indicated above. No order as to costs. Parties to bear their own costs throughout.
Registry to draw the decree accordingly. Notwithstanding the decree, it is open to the parties, if they have so advised, to settle the matter in an amicable manner, which can put an end to the litigation rather than asserting rights.
RSA No. 82 of 1989 C/w.
RSA Nos. 88 of 1989, 89 of 1989
FOR BEING SPOKEN TO
These appeals were disposed of in terms of the judgments and decrees dated 3.3.2008 allowing the appeals and decreeing the suit O.S. No. 380/89, suit, for partition and his share of the property by Rafiq Ahmed decreeing the suit claim not as claimed but at 5/148th share in the suit property and dismissing the other two suits O.S. No. 369/89 giving rise to RSA No. 82/89 and O.S. No. 381/80 giving rise to RSA No. 88/1980.
Sri. V.V. Gunjal, learned Counsel appearing for the appellants, has mentioned the matter as for being spoken to and has filed a memo of calculation pointing out that the share given to Rafiq Ahmed in the suit O.S. No. 380/1980 at 5/148th share in the property of Abdul Nabi, his father, is not correct share in accordance with the principles of Mohamedan law; that there is a mistake in the sharing ratio; that this Court proceeding on the premise that the two daughters were entitled to a share each in terms of the provisions of Section 63 of the Mulla''s principles of Mohammedan Law is not correct for the reason that when there is a son left behind by the deceased, daughters do not take their share as a sharer, but do take their share as residuary along with the sons and in terms of Section 65 of the Mulla''s principles of Mohammedan Law which reads as under:
Residuraries - If there are no Sharers, or if there are Sharers, but there is a residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves upon residuary in the order set forth in the annexed table (p.54A).
therefore, submits that the said Abdul Nabi having been survived by a widow who takes 1/8th share and the balance 7/8th has to be necessarily shared amongst daughters and sons in terms of Section 65 of the Mulla''s principles of Mohammedan Law. A memo of calculation is also filed indicating that as the sons take double the portion of a daughter i.e. each son will have to get twice as much as the daughters get as their share and if such sharing ratio is to be worked out the remaining 7/8th share of the property of Abdul Nabi will have to be shared amongst the sons and daughters in the ratio of 14/128th in favour of each son and 7/128th in favour of each daughter. It is submitted that if this is the sharing ratio, it satisfies the requirement of each son taking twice as much as the daughters take in the residuary of the property and submits that the sharing ratio is to be corrected to this effect and decree to be drawn accordingly.
Sri. Nargund, learned Counsel appealing for the first defendant in O.S. No. 380/80 and the defendants in other suits, out of which the above three appeals arise, submits that on a perusal of the provisions of Section 63 of the Mulla''s principles of Mohammedan Law, it is correct to submit that the daughter cannot taken as a sharer in view of the consequence as mentioned in column 4 of the table of sharers to Section 63 of Mulla''s principles of Mohammedan law and when once the daughters cannot be taken as a sharer and obviously she taking as a residuary has to take her share along with other surviving sons and to this extent, provisions of Section 65 of the Mulla''s principles of Mohammedan Law has to be invoked for distribution of the residuary to the other survivors of Abdul Nabi. Further submission of Sri. Nargund is that in the light of the illustrations given to Section 65 of the Mulla''s principles of Mohammedan Law, it can be taken that the daughters together take 1/3rd share and sons 2/3rd share in the residuary in which event, the shares are worked out and ordered earlier by the Court may not be very correct and it may have to be reworked.
I have examined the submissions. While it is true that the illustration given to Section 65 of the Mulla''s principles of Mohammedan Law indicating the manner in which the residue has to be distributed among the sons and daughters does show that, while a son gets 2/3rd, daughter has to get 1/3rd of the residue and this illustration is ideal for working out where there is one daughter and one son surviving the deceased and in a situation like in this case where there are two daughters and seven sons, 1/3rd and 2/3rd may not necessarily work. In fact, in the main Section itself it is indicated that the residue has to devolve upon the residuary in the order as set forth in the annexed table. In the table it is indicated that the daughter takes a share in the residue with the sons and the sons taking double portion. This is a general requirement which, if is to be satisfied in situations of son who take twice the portion of share allotted in favour of the daughters and in respect of sons each son should get twice the share of each daughter. This requirement is satisfied if one were to share the residue by the learned Counsel for the appellants in the ratio as indicated above i.e. sons getting 14/128th share each and the
daughters getting 7/128th share each. The adding up of the shares of sons and daughters makes up for the residue of 7/8th in the property of Abdul Nabi Maniyar as the widow has already taken 1/8th share.
As it is found that there is a mistake in working out the share of the plaintiff-Rafiq Ahmed in O.S. No. 380/80 only to this extent, the judgment is corrected and the suit is decreed in favour of Rafiq Ahmed indicating his share in the estate of Abdul Nabi to be 14/128th of the property i.e. CTS 2779.
In all other respects, the judgment and decree remains the same.
Decree to be drawn up in terms of this sharing ratio.