Mt. Kanizan vs Mt. Latifan and Others

Wort, J.—This is an appeal by the plaintiff in an action claiming partition of properties given in the schedule to the plaint, the plaintiff''s share in the circumstances set out in the plaint being eight annas in those properties. The plaintiff Mt. Kanizan based her title on two gifts and in these circumstances: One Nazaf Ali Shah had two daughters, the first Mt. Mahbuban and the second Mt. Latifan who is defendant 1 in this case. The plaintiff is the daughter of Mt. Mahbuban, and she claims that her mother''s father (that is to say, her maternal grand father) on 11th July 1921 executed a deed of gift of all his properties to her mother Mt. Mahbuban and her mother''s sister Mt. Latifan to the extent of-half and half; that on 6th April 1933 Mt. Mahbuban executed a deed of gift of her eight annas share in favour of the plaintiff; and that this deed of 6th April 1933 was preceded by an oral gift of six months before. It was in those circumstances that this action was brought claiming partition and possession of the property to the extent of eight annas share. Nazaf Ali Shah, the maternal grand father of the plaintiff is still alive and is one of the defendants in the action. He gave evidence and his case was supported by a number of witnesses that the deed of gift executed by him in 1921 in favour of his two daughters was a farzi transaction, that no possession was given to his daughters and that he himself retained possession of the property, the subject-matter of the gift.

It will be seen from the short statement of facts I have given that the plaintiff''s claim to eight annas share of the property depends upon the establishment of both the gifts, viz. the gift by Nazaf Ali Shah, and that by Mt. Mahbuban to the plaintiff. I should have stated that the learned Judge has accepted the evidence of the defendants for coming to the conclusion that the transaction of 11th July 1921 was a farzi transaction and dismissed the plaintiff''s suit.

I propose in the first instance to deal with the second gift by the mother Mahbuban to the plaintiff which as I have said was preceded by an oral gift six months before. The extent of the plaintiff''s share depends upon the proof of this transaction. If the plaintiff succeeds in proving the first gift of 1921 in favour of her mother and the second of 1933 in favour of herself, she will be entitled to eight annas share in the property of Nazaf Ali Shah. But if she establishes the first transaction and fails as regards the second, it is clear that she would be entitled to only four annas share in the property; while if the decision of the learned Judge stands, having regard to the fact that Nazaf Ali Shah is still alive the action, as the learned Judge in the Court below has decided, is bound to and must necessarily fail. Now, as regards the second gift which I propose to deal with first, it seems to me that there is nothing to support the plaintiff''s case. I do not propose to decide the question of law which was mooted during the course of the argument; but Mr. Sinha''s argument in favour of the deed of gift by the mother to the plaintiff is based on the contention that the document of 6th April 1933 was not a transaction which affected the gift but was as I have already said and repeat preceded by an oral transaction six months before. In support of that contention evidence was given by plaintiff''s witness 2 Sheikh Leaqat Kharadi who stated that Mahbuban made a verbal gift of the properties about six months before her death "in my presence and the plaintiff was given possession by her mother over those properties."

Apart from the statement by another witness to the same effect there is no proof whatever that the transaction was of the actual giving over of possession to the plaintiff which it was necessary to do for the purposes of establishing an oral gift under the Mahomedan law. It will be noticed from what I have said that there was nothing more than bare statements that possession was given. No acts which would constitute possession of the property were proved, and, unless we accept the witnesses'' evidence at its face value, it would be impossible to hold that the transaction was established. Speaking for myself I am not prepared to say that the learned Judge was wrong in his conclusion that the evidence was unreliable. However, that is all I propose to say with regard to the matter.

But the earlier transaction by Nazaf Ali Shah in favour of the plaintiff''s mother Mahbuban seems to stand on a somewhat surer footing. I find it unnecessary to go into details as regards the oral evidence, because when analyzed, it is found to consist very largely of bare statements both on behalf of the plaintiff and on the part of the defendants either for or against this transaction, the witnesses for the plaintiff stating that possession was given to the mother Mahbuban, the witnesses for the defendants asserting that the transaction was benami and that possession was not given, and, unless those statements receive support from other matters in the record, it would seem to me to be impossible to come to any definite conclusion with regard to the matter based upon the oral evidence itself.

But as I stated a moment ago, the circumstances of the case have to be looked to for the purpose of coming to a conclusion as to whether the evidence adduced in the case is to be accepted. The transaction was entered into, as I have said, on 11th July 1921. Nazaf Ali Shah executing the document recited the circumstances under which the gift was made. Nazaf Ali Shah was giving evidence in 1937 and in the witness-box he stated his age to be 100. Even allowing for discrepancies in the evidence of that character, he would be approximately eighty years of age when he executed the document of 1921. He recites that he is an old man, that he has two daughters Mahbuban and Latifan who are alive and then says as follows:

In consideration of my old age, and in order to serve me and attend upon me, both the daughters along with their husbands and children are living with me up to this time and, God willing, they will continue serving me attending upon me in the same way during the whole of my life-time.

He then recites that apart from these two daughters he has no other male or female issue, and then he makes the statement as to his age being as I have said about eighty. In the first place, taking the circumstances into consideration, particularly the fact that by the document he was not depriving any of his heirs of any share in the property it was not an unreasonable transaction to enter into having regard to his age. And then six years later, on 25th May 1927, certain properties were sold under the document of the date which I have mentioned. The executants of this deed were Nazaf Ali Shah himself and the two donees of the gift of 1921. In that document Nazaf Ali recites: "I, executant No. 1, made a gift of all moveable and immovable properties, jagirs, nakdi kasht land, etc." Then he states the fact that in the survey papers his name stands recorded and then the deed goes on to recite the following; "For these very reasons we, executants Nos. 1, 2 and 3, join as executants in all our transaction (deeds)."

The other recitals or provisions in the deed are irrelevant for the purpose of the matter I am considering. Thus it would appear perfectly clear that not an unreasonable transaction was entered into in 1921 and then six years later in 1927 a deed was executed which by recitals therein contained confirmed in a sense the earlier transaction of 1921. It is not suggested, nor could it be suggested in the circumstances that there was any estoppel as against Nazaf Ali Shah by reason of these recitals. But the statements in the deed of 1927 are in my judgment very strong evidence in the light of which to consider the present statements made by the same person and witness in his behalf. It must be remembered, that statements of witnesses with regard to this transaction are nothing more than bare statements on the one hand and denials on the other. Therefore considering (to repeat myself) the value of the evidence given, it does seem to me that the later transaction of 1927 throws a great deal of light as to the true facts of the case. It has been contended in this case that the evidence of possession which it was necessary for the plaintiff in this case to adduce is wanting. If by that argument is meant that witnesses have failed to give details of actual possession by the plaintiff or by Mt. Mahbuban, then I must say I am in agreement. But it is contended by Mr. Sinha on behalf of the plaintiff-appellant that for the purposes of this part of the case the property may be divided into three parts: the house property, that is to say the house in which the family is living; the jagir lands and the raiyati lands.

So far as the possession of the house is concerned, Mr. Sinha on behalf of the appellant relies upon the decision of their Lordships of the Judicial Committee of the Privy Council in AIR 1932 13 (Privy Council) , where their Lordships refer to the following passage in the decision of West J. in Shaik Ibhram v. Shaik Suleman (1885) 9 Bom.146:

When a person is present on the premises proposed to be delivered to him a declaration of the person previously possessed puts him into possession.

Their Lordships then said that this statement of the law was followed in two cases of the Bombay and Allahabad High Courts as also in two Madras cases and then proceeded to observe:

It is not necessary for their Lordships to decide In the present ease whether this principle is of universal application between Mahomedan donors and donees, but they think that as between a husband and his wife who are living together it is undoubtedly a reasonable interpretation of the requirements of the law.

It is true that this is a case of father and daughter and it seems to me for the purposes of this point at any rate that this principle would apply and the declaration of possession which according to the evidence of the plaintiff was given to Mahbuban would be sufficient to give possession at any rate of the house in which lived the family consisting of the donor and the donees of the gift.

With regard to the raiyati lands reliance was placed by Mr. Sinha upon the sale deed of 1927. As I pointed out during the course of the argument, the transactions themselves are not acts of possession although they are acts by which title to the property was asserted within the meaning of Section 13, Evidence Act. If the evidence were clear that no possession was given, the mere fact that the donees entered into this transaction would not be sufficient to establish the possession which it was necessary for them to establish in order to prove a completed transaction. But these transactions may be taken into consideration in all the circumstances of the case as corroborating or proving or helping to establish the evidence already given that possession had been handed over to the donees. It is not necessary to enter into an analysis of the oral evidence for the reasons which I have already stated, and it is with some reluctance that I come to the conclusion at which I have arrived. But in all the circumstances of the case it seems to me that the learned Judge in the Court below has not given due weight to the recitals in the documents about which there can be no possible dispute. For those reasons I come to the conclusion that the plaintiff was entitled to succeed in her action as regards & annas share in the property. The appeal is therefore allowed and the plaintiff will be entitled to a preliminary decree for partition to the extent of the share which I have stated. In the circumstances of the case both parties should bear their costs throughout.

Chatterji J.

I agree. The root of the plaintiff''s title is the deed of gift (Ex. A)dated 11th July 1921. Defendant 2 who executed this deed of gift alleges that it is a farzi or benami transaction. The onus lies upon him to prove that it is so. On the other hand the plaintiff who claims his title by virtue of the gift has got to prove that the gift was accompanied by delivery of possession as required under the Mahomedan law. Let us first see whether the deed of gift was a farzi transaction. There is hardly anything on the record to show what motive other than natural love and affection there could be on the part of defendant 2 for executing the deed. At that time he was very old, about 80 years of age, and he was executing the deed in favour of his two daughters who were his only heirs and were living with him, one of them being a widow. Apparently it was a most natural transaction. Then six years later in 1927, defendant 2 jointly with the daughters executed a sale deed (Ex. 1) in respect of some raiyati lands covered by the gift for a consideration of Rs. 650. In this sale deed defendant 2 clearly recites that he had made a gift of his property to the other two executants, and that the reason why all the three joined in executing the deed was that defendant 2''s name stood recorded in the survey papers and the landlord''s sharasta. The deed also recites that the executants were in possession of the vended lands. Thus, not only in 1921 did defendant 2 execute the deed of gift but in 1927 by the sale deed he confirmed the gift. There appears to be no reason why if at all any benami transaction was entered into in 1921 the benami show should still be kept up in 1927 when the sale deed was executed. The fact that defendant 2 joined in the execution of the sale deed is considered by the learned Subordinate Judge to be inconsistent with the gift being genuine and operative. But defendant 2 himself in the sale deed explains why he joined as an executant. On the other hand there is no explanation as to why the daughters figured as executants. To my mind the recitals in the sale deed rather strongly indicate that the deed of gift was a genuine transaction.

The learned Subordinate Judge has laid much stress on the fact that the donees did not get themselves recorded either in Municipal papers with regard to the house, or in the landlord''s sherasta with regard to the raiyati lands. As regards the raiyati lands the explanation offered on behalf of the plaintiff seems quite plausible, namely that the lands being under the law then prevailing non-transferable, the landlord would demand heavy mutation fee. The donees, being the daughters and only heirs of the donor, might not have considered it necessary to obtain mutation on payment of heavy salami, particularly when the donor was too old, having one foot in the grave. When he would die his heirs were bound to be recognized by the landlord. It is a matter of common experience that even purchasers for valuable consideration do not readily get themselves recorded in the landlord''s sherasta; and in fact in this very case it appears that the purchasers under the sale deed (Ex. 1) of 1927 have not yet got themselves recorded in the landlord''s papers. As regards the house, it is abundantly clear from the evidence that the daughters all along lived with the father. So the question of the recording of the names of the daughters in the Municipal papers becomes immaterial.

The learned Subordinate Judge has also relied upon the fact that the original registered deed of gift (Ex. A) has been produced by defendant 2, but having regard to the circumstances of the case the custody of the deed in my opinion is of no practical importance. After registration defendant 2 who had presented the document took it back from the Registration office in the usual course of events. The daughters were living with him. One of them was a widow and in all likelihood the deed was handed over to the other daughter (defendant 1) whose husband was also living in the house and was presumably looking after the affairs of the family as defendant 2 was too old. Now that the widowed daughter (plaintiff''s mother) is dead the surviving daughter (defendant 1) and her husband (D.W. 1) to serve their own interest deny the gift so that on the death of defendant 2 the properties may come by inheritance to defendant 1 to the exclusion of the plaintiff who would be no heir. Owing to the senility of defendant 2, it was not at all difficult for defendant 1 or her husband to win him over to their side. Thus the custody of the deed of gift may be explained away.

In view of the foregoing considerations I am unable to agree with the learned Subordinate Judge''s finding that the deed of gift (Ex. A) is a farzi transaction, Now coming to the question of possession the> learned Subordinate Judge has dealt in detail with the oral evidence adduced on both sides, and if we had to decide the case on the oral evidence alone, it would have, been impassible to reverse his finding. But he has overlooked the broad features of the case and the most important recitals in the sale-deed (Ex. 1). This deed (Ex. 1)-. recites that all the executants were in possession. No doubt this recital implies that defendant 2 also was in possession, but what is more important is that the donee''s possession which, but for the gift, would not exist was acknowledged. So far as the house is concerned possession is in a manner admitted. As regards the raiyati lands a major portion was sold by Ex. 1, the recitals of which I have just dealt with. As regards jagir lands, the evidence shows that a rehan deed was executed by defendant 2 jointly with his daughters in favour of one Mt. Naurozi. Thus it appears that with regard to all the three classes of properties covered by the deed of gift the donees did exercise acts of possession.