Smt. Marembi and Others vs Umarsab and Another

The challenge in this second appeal is to the gift deed said to be executed by one Mohiddinsab in favour of his wife Mahaboobi in lieu of mahr and on the basis of which gift deed property was claimed by the plaintiff. The defendants challenged the right of the plaintiff under the sale deed on the ground that his vendor, that is, her own mother, do not have a right to sell the property.

The facts of the case are as follows:

The suit schedule house originally belonged to Mohiddinsab and he died in the year 1965, leaving behind him his widow Mahaboobi and five daughters who are defendants 1 to 5 in the suit. The defendants 6 and 7 are the brother''s sons of deceased Mohiddinsab. The plaintiff is the husband of the 3rd defendant. The plaintiff contends that during the life time of Mohiddinsab, he gave the suit schedule house to Mahaboobi in lieu of mahr and that she later sold it to him under a registered sale deed. It is thus that the plaintiff claims title to the suit schedule property. He filed O.S. No. 80 of 1965 in the Court of the Munsiff at Savanur for declaration of his title and for an injunction against the defendants, basing his claim on possession and that suit was dismissed. R.A. No. 114 of 1974 and R.S.A. No. 1297 of 1978 filed against that decision came to be dismissed. It is thereafter that the plaintiff/respondent filed O.S. No. 94 of 1981 for declaration of his title to the entire suit property and for possession of portion marked as GFOP in the hand sketch with the plaint. The defendants contended that the suit property did not belong to Mohiddinsab, that she did not transfer it to the plaintiff by sale as alleged and as such, the plaintiff was not the owner of the same. The defendants further contended that the plaintiff suit was barred by time and was also barred by res judicata in view of the decision in O.S. No. 80 of 1965 on the file of the Munsiff, Savanur, as later confirmed in R.A. No. 114 of 1974onthefileoftheCivilJudge,HubliandR.S.ANo. 1297 of 1978 on the file of this Court.

The learned Trial Judge, held that the plaintiff failed to prove his title, that the suit was barred by time and also by res judicata, in view of the decision in O.S. No. 80 of 1965, as later confirmed in the first and second appeals. The plaintiff being aggrieved by the decision in R.A. No. 43 of 1986 on the file of the Civil Judge, Haven, which came to be allowed on 3-7-1990. It is against this decision that the defendants 1, 2, 4 to 7 who are aggrieved have filed this second appeal.

The genealogy tree is given below:

Rajesab __________________________________________________________________ | | Mohiddinsab Mahaboobi Abdul Khader Sab | | ________________________ | | | | Rajesab Saffarsab | (D-6) (D-7) | ______________________________________________________________________________________ | | | | | Mariambi Khatumbi Jaithumbi Julekhabi Halimbi (D-1) (D-2) (D-3) (D-4) (D-5) | Husband Ummarsab (Plaintiff) 5. In the genealogy tree, it is seen that Mohiddinsab is the son of Rajesab and he is supposed to have given the suit property by way of gift deed to his wife Mahaboobi in lieu of Mahr and Mahaboobi in turn had sold the property to the plaintiff. The plaintiff based his suit on such sale for declaration and possession. The Trial Court dismissed the suit on the ground that the gift deed has not been registered. But the Appellate Court took a view that oral gift is permissible in Muhammadan Law and therefore does not require registration.

The only question that has to be considered in this second appeal is whether a gift deed executed in lieu of mahr can be considered to convey title or not?

This question can be straightaway answered by the following two decisions:

In Mohammad Usman Khan Vs. Amir Main and Others, , the proposition is to the following effect:

"Oral gift of immovable properties by a Muhammadan in favour of his wife in lieu of dower debt does not pass a valid title in her favour. Such a transaction is not a true hiba-bil-iwaz but a sale and so can be effected only by a registered deed".

A Division Bench of the Madras High Court in Masum Vali Saheb v Illuri Modin Sahib, AIR 1952 Mad. 671 has held as follows:

"A transfer of immovable property by a Muhammadan husband in favour of his wife for her dower debt does not involve two reciprocal gifts but is only one contract. The hiba-bil-iwaz so called in India is a sale within the meaning of Section 54 and unless made by a written instrument, duly registered, will not convey title to the person, in whose favour such a conveyance is made. Consequently an oral conveyance of immovable property worth more than Rs. 100 by a Muhammadan husband in favour of his wife in lieu of her dower is not valid".

In view of the dictum laid down in the above decisions, it is clear that a gift given in lieu of mahr, if not registered within the meaning of Section 17 of the Registration Act, such a gift is invalid in the eye of law. Applying this principle it has to be held that the gift in favour of the mother of the plaintiff is invalid. The learned Counsel for the respondent, however, submitted that the sale in favour of the plaintiff was some time on 14-4-1960 and none of the heirs have questioned either the sale or objected to the enjoyment of the property by the plaintiff. Therefore, they are deemed to have given up their right and the possession of the plaintiff for a period of 21 years should be construed against the defendant''s claim, if any. But it is seen that the plea of adverse possession has not been raised. Even if it is the case, in my opinion, it cannot give rise to any safeguard to the plaintiff for the simple reason that the plaintiff thought that he has got every right over the property and therefore enjoying the property against the original title holder and adverse to his/her interest does not arise.

Therefore, in the light of the above decision, and the facts that are revealed from the records of this case, the judgment and decree of the Appellate Court is set aside. The second appeal is allowed and the suit is dismissed.

It is made clear that in this case we are not deciding the heirship to the family. The genealogy mentioned above may or may not reflect the true state of affairs, but it is not taken up for the purpose of deciding the issue regarding the gift alone. It is open to the respective parties to establish their right in the line of the above genealogy tree, if they are otherwise entitled to as legal heirs of the original propositus.