HONOURABLE MR. JUSTICE v. NATH ORAL ORDER
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.327 of 2004 ====================================================== Deep Narain Singh, son of late Jai Gobind Singh, resident of village- Peyalapur, Tola-Satho, P.O.-Rifatpur, P.S. Pirpaiti, District-Bhagalpur. .... .... Appellant/s Versus 1. Most.Bibi Guljahan, wife of late Md. Sadique. 2. Bibi Zarina. 3. Bibi Jahana. 4. Bibi Sahana Begam. 5. Bibi Rehana. 6. Bibi Foroja Begam, all daughters of late Md. Sadique, residents of village-Karanpura, P.S. Taljhari, District-Sahebganj. 7. Bibi Ayaisha Khatoon wife of late Akbar Ali and daughter of late Baunu, resident of village-Kalipura, Habibpur, P.S. Sahebganj, District-Sahebganj. 8. Md. Imam, son of Md. Rajak and Bibi Zaitoon, resident of village- Karanpur, P.S. Taljhari, District-Sahebganj. .... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Satyapal Singh Mr. Ashok Kumar Singh
Legal Reasoning
For the Respondent/s : Mr. Ajay Mukherjee ====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER 17 07-01-2013 Heard Mr. Rajendra Narain, the learned senior counsel appearing on behalf of the appellant. This appeal has been filed against the judgment and decree dated 24.08.2004 passed by 1st Additional District Judge, Bhagalpur in T.A. No. 32 of 1982 reversing the judgment and decree dated 05.04.1982 of the court of Additional Munsif, Bhagalpur in T.S. No. 15 of 1978 dismissing the suit. Patna High Court SA No.327 of 2004 (17) dt.07-01-2013 2 The suit was filed by Bibi Sairun @ Bibi Saira for declaration of title over the suit land on the basis of registered Hiba dated 06.10.1967 made by her husband-defendant no.1 in her favour and further for declaration that the subsequent cancellation deed by him would not affect the validity of the Hiba. It is an admitted fact that the plaintiff (since deceased) and the defendant Latif Mian (since deceased) were husband and wife. It has also not been disputed that the Hiba dated 06.10.1967 had been executed and registered by Latif Mian in favour of the plaintiff. This Hiba has been described as HIBA-BA-SARTUL- EWAZ. The plaintiff had claimed to have come in possession over the land subject matter of the Hiba and thereby acquired valid title and possession over the same. The plaintiff had also stated that she had transferred part of the land, subject matter of Hibba, to the knowledge of her husband, much before the execution of the cancellation deed. The defendant-husband contested the claim of the plaintiff and denied the valid execution of the Hiba in question. It was the case of the defendant-husband that the Hiba was never acted upon and no possession was given to the plaintiff. It has also been asserted that the suit property remained in possession of the defendant-husband who had also transferred the same to various Patna High Court SA No.327 of 2004 (17) dt.07-01-2013 3 persons after the cancellation of the gift deed (Hibba). The defendant also claimed that the Hibba in question was a simple gift which was revocable as it was not acted upon. The trial court came to the finding that the Hiba was not acted upon and was a nullity. In appeal, however, the appellate court, after reappraisal of the evidence of the parties and on the basis of the relevant principles of Mohamdan Law, has come to the finding that the Hiba has been fully acted upon and the cancellation of the same by the defendant-husband will not affect its validity. It would be apposite to mention here that the appellate court has taken into notice the fact that the plaintiff/appellant as well as the defendant/respondent who were the husband and wife and donor and donee respectively, died during the pendencey of the appeal and their purchasers have been fighting out the litigation. The present appeal before this Court has also been filed by one of the purchasers from the defendant/husband. Mr. Rajendra Narain, the learned senior counsel for the appellant, has submitted that the appellate court below has misconstrued the evidence on record and has wrongly come to the finding that the Hibba has been acted upon and the plaintiff was Patna High Court SA No.327 of 2004 (17) dt.07-01-2013 4 put in possession. It has been urged that the fact had not been denied that the donor-husband remained in possession of the properties subject matter of Hibba and thus, there is no relinquishment of interest by the donor to validate the gift. Placing the relevant provisions of Mahomedan Law, as contained in the treatise “the Principles of Mahomedan Law” by Mulla it has been canvassed that the delivery of possession is a necessary ingredient to validate a gift. It has further been submitted by the learned senior counsel that the appellate court below has not met reasoning given by the trial court whereby the plaintiff suit has been dismissed and further it has also not adverted to the specific case putforth by the present appellant to have come in possession after the purchase. From the perusal of the judgments of both the courts below, it is manifest that the plaintiff had sought the relief for declaration of her title on the basis of the registered Hiba dated 06.10.1967 executed by her husband (defendant) in her favour and further for declaration that her title had not been affected by the cancellation deed of the Hiba executed by the husband. The trial court has disbelieved the case of the plaintiff and come to the finding that the registered deed of Hiba was not a genuine document and has not been acted upon. The appellate court below Patna High Court SA No.327 of 2004 (17) dt.07-01-2013 5 however, has relied upon the orders passed under Section 103 of the B.T. Act initiated at the instance of the plaintiff for preparation of the survey khatiyan with regard to the property subject matter of Hiba in her name wherein the prayer of the plaintiff was allowed by the survey authorities and her name had been recorded in the khatiyan by orders (Ext. 4, 4/A and 4/B). The survey khatiyan (Ext. 5 and 5/A) have also been taken into notice by the appellate court below. The plaintiff’s name was mutated on the basis of the Hiba and she had paid rent and received rent receipt Ext. 1 series which has also been relied upon by the appellate court below for coming to the conclusion that the Hiba was acted upon. The learned senior counsel appearing for the appellant has not disputed the existence of the aforesaid orders, khatiyan and rent receipts. It is a case where the wife has led her claim on the basis of registered deed of Hiba executed by her husband in her favour. The husband has denied the valid execution of the gift deed and has also denied to have delivered possession to the donee/wife. However, it is an admitted fact that the donor/husband had not challenged the validity of the registered deed of Hiba in a competent court. The emphasis laid down by the learned senior counsel on the fact that the donor/husband continued in possession Patna High Court SA No.327 of 2004 (17) dt.07-01-2013 6 of the gifted property is clearly misconceived in view of the specific provision as contained in Section 152 (3) and Section 153 of Mullas’ principles of Hindu wherein the exceptions to the rule of delivery of possession of the gifted properties have been carved out. If the donor husband was aggrieved in any manner by the conduct of the donor/wife including the allegation that she had fled away with her paramour just two years after the execution of the Hiba, he could have immediately filed a suit seeking appropriate relief from the civil court. The execution of the deed of cancellation dated 27.06.1975 will not take away the legal affect of registered deed of Hiba, which had been acted upon as established by the preparation of survey khatiyan after the orders under Section 103 of the B.T. Act, the mutation of the name of the donor/plaintiff and payment of rent by her without any objection by the donor-husband. It is more so when the execution of the deed in question has not been denied and thus the law under Article 59 Limitation Act is clearly attracted. As such, I do not find any illegality in the finding recorded by the appellate court below. The submission on behalf of the appellant that his case as a transferee in possession has not been considered by the courts below, has got no bearing on the ultimate result of the suit Patna High Court SA No.327 of 2004 (17) dt.07-01-2013 7 or appeal as the appellant is definitely a purchaser much after the execution of the registered deed of gift by the donor/husband. Moreover, it does not appear that a relief for recovery of possession has been sought in the suit. In the ultimate eventuality, it is held that no substantial question of law arises for consideration in this appeal, which is, accordingly, dismissed. Devendra/- (V. Nath, J)