High Court
Case Details
RSA 177/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) This appeal by the successors-in-interest of the original plaintiff, namely, Ful sa Ali, is directed against the judgment and decree dated 4th May, 2002 passed b y the learned Civil Judge (Senior Division) No.1, Kamrup at Guwahati in Title Ap peal No.55/1996, whereby and whereunder the appeal preferred by the original pla intiff, namely, Md. Fulsa Ali, has been dismissed by affirming the judgment and decree dated 17th September, 1996 passed by the learned Munsiff, Rangia in Title Suit No.19/1991, whereby and whereunder the suit of the plaintiff has been decr eed in part by declaring his right, title and interest in respect of 1 Bigha 3 K athas 11 Lechas of land out of the land measuring 3 Bighas 2 Kathas 2 Lechas cov ered by Dag No.130/277 of Patta No.288 by holding that the plaintiff cannot acqu ire title over the entire land in Schedule-B, by virtue of the gift deed being E xhibit-2, which was rectified vide Exhibit-3 deed, as he could not prove the ing redients to constitute a valid gift under the Mahomedan Law.
Legal Reasoning
[2] The plaintiff filed the aforesaid suit praying for declaration o f right, title and interest over Schedule-A land, contending inter alia that the original owner of the said land Raifat Ali, who is the father of the plaintiff as well as the defendant No.1, gifted the land described in Schedule-B in favour of the plaintiff and the land described in Schedule-C in favour of Mr. Majnur A li, the proforma defendant No.1, vide Exhibits-2 and 3 gift deeds dated 28th Jun e, 1972 (Exhibit-2) and 29th April, 1970 (Exhibit-4), respectively. It has furth er been contended that a deed of rectification rectifying the mistake occurred i n Exhibit-2 gift deed was also executed by Raifat Ali on 21st July, 1972 (Exhibi t-3). The aforesaid three deeds were registered under the provisions of the Ind ian Registration Act. It has also been contended that by virtue of such gift, th e plaintiff has acquired right, title and interest over the Schedule-A land, whi ch comprises Schedule-B and Schedule-C land. According to the plaintiff, he is in possession of the suit property and as the defendant No.1 got his name mutate d in the revenue record on 5th June, 1990, he has to institute the suit with the reliefs claimed, as noticed above. [3] The defendant No.1 contested the suit by filing written statemen t contending inter alia that the plaintiff got the gift deed executed collusivel y and hence, based on such gift, the plaintiff cannot acquire right, title and i nterest. It has also been contended that the gift is not valid under the Mahome dan Law, as all the three ingredients to constitute a valid gift have not been p roved. The defendant No.2 did not contest the suit, so also by the proforma defe ndants, except the proforma defendant No.1, who has filed the written statement supporting the claim of the plaintiff. [4] he following issues for determination:- The trial Court, based on the pleadings of the parties, framed t (cid:28)1. Is there any cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the suit is bared by limitation? 4. Whether the suit is properly valued and proper Court fee has been paid? 5. Whether the suit is false, frivolous and vaxacious? 6. Whether the plaintiff has right, title and interest over the suit land? 7. Whether mutation of defendant’s name in the suit patta is unpartitioned? 8. Whether gift deed in existence is collusive? 9. Whether there was any life insurance policy of Rs.20,000/- and a groccssory s hop of Rs.30,000/- in the name of late Raifu Ali father of his both plaintiff an d the defendant No.1 and whether the defendant No.1 get it from Raifu Ali? 10. Whether the plaintiff is entitled to decree as prayed for? 11. To what relief, if any parties are entitled? (cid:29) The plaintiff and the defendant No.1 adduced their respective or [5] al and documentary evidences. The witnesses were cross-examined by the respectiv e parties. The trial Court upon appreciation of the evidence on record has decre ed the suit of the plaintiff declaring his right, title and interest in respect of ‰ of the Schedule-B land, being one of the heirs of Raifat Ali, by holding th at one of the essential conditions to constitute valid gift under the Mahomedan Law, i.e. delivery of possession, could not be proved by the plaintiff. The tria l Court, therefore, has held that by gift deed dated 28th June, 1972 (Exhibit-2) , which is rectified by 21st July, 1972 (Exhibit-3) is invalid. [6] Being aggrieved, the plaintiff preferred the aforesaid appeal. During pendency of the appeal, the original plaintiff died and in his place, the present appellants were substituted being the legal heirs and the right to sue having survived on them. The first appellate Court has also dismissed the appeal preferred by upholding the judgment and decree passed by the trial Court. Hence , the present appeal. [7] 2004 on the following substantial question of law:- The appeal was admitted for hearing vide order dated 22nd June, (cid:28)Whether the learned lower Appellate Court had correctly construed the effect of Gift Deeds (Exhibits-2 and 3) in holding that the plaintiff in the suit did not have exclusive right insofar as the suit land is concerned? (cid:29)
Legal Reasoning
[8] I have heard Mr. S.K. Ghosh, learned counsel for the appellants and Mr. M.A. Sheikh, learned counsel appearing for the respondent No.1. The oth er respondents have not contested the appeal. [9] It has been submitted by Mr. Ghosh, learned counsel for the appe llants, that the first appellate Court has dismissed the appeal preferred by the predecessor-in-interest of the present appellants by affirming the judgment and decree passed by the trial Court by holding that the plaintiff could not prove either the acceptance of the gift or delivery of possession after the gift, whic h are the essential conditions to constitute a valid gift under the Mahomedan La w, without discussing entire evidence on record. It has also been submitted tha t though the plaintiff in support of acceptance of gift and delivery of possessi on, apart from adducing oral evidence, proved the order of mutation of the plain tiff’s name in the revenue record, based on possession, which has been marked as Exhibit-5 and also payment of the revenue in respect of the gifted land, which are marked as Exhibit-6(1) to 6(9), those evidence have not been taken into cons ideration by any of the Courts below while recording the finding that the plaint iff could not prove acceptance of gift as well as delivery of possession. The l earned counsel further submits that in any case, the trial Court ought not to ha ve passed a decree declaring right, title and interest of the defendant No.1 in respect of ‰ of the Schedule-B land, in absence of any counter claim, more so, w hen there is evidence on record that the original plaintiff and the defendant No .1 had two sisters, who are also the residuaries and who have certain share in t he land of Raifat Ali, their father. The learned counsel, therefore, submits th at it is a fit case where the matter may be remitted to the first appellate Cour t for deciding the same afresh, based on the evidence already on record. [10] On the other hand, Mr. Sheikh, learned counsel appearing for the respondent No.1, supporting the judgment and decree passed by the Courts below has submitted that it is apparent therefrom that the plaintiff though claimed ri ght, title and interest in respect of Schedule-B and Schedule-C land, which cons titute Schedule-A land, by virtue of the gift being Exhibits-2, 3 and 4, the pla intiff could not prove acceptance of gift and also delivery of possession. The learned counsel further submits that the plaintiff also cannot file the suit for declaration of his right, title and interest in respect of Schedule-C land, whi ch land, according to the plaintiff himself, was gifted by Raifat Ali in favour of Majnur Ali, son of the plaintiff, vide Exhibit-4 gift deed dated 29th April, 1970, when Majnur Ali is neither the plaintiff, nor filed counter claim. The lea rned counsel, therefore, submits that since the gift executed by Raifat Ali in f avour of the plaintiff is not valid, due to absence of two essential conditions to constitute a valid gift under the Mahomedan Law, the Courts below have rightl y held that the plaintiff and the defendant No.1 are entitled to half of the Sch edule-B land. I have considered the submissions advanced by the learned counse [11] l appearing for the parties and also perused the records including the judgment and decrees passed by the Courts below. As noticed above, the plaintiff filed the aforesaid suit for dec [12] laration of right, title and interest over Schedule-A land. Schedule-B and Sche dule-C comprises the Schedule-A land. The plaintiff’s case is that he has acquir ed right, title and interest over the Schedule-A land by virtue of the gift deed dated 28th June, 1972 (Exhibit-2) and 29th April, 1970 (Exhibit-4) executed by Raifat Ali, his father, in his favour and in favour of Majnur Ali, respectively. The plaintiff having claimed right, title and interest by virtue of such gift, cannot file the suit for declaration of his right, title and interest in respect of the entire Schedule-A property, which also comprises Schedule-C property, Sc hedule-C land, according to the plaintiff himself, having not been gifted to him by the original owner Raifat Ali. Both the Courts below, therefore, have right ly confined the claim of the plaintiff to the Schedule-B land. The trial Court has recorded the finding that the gift executed [13] by Raifat Ali in favour of the plaintiff on 28th June, 1972 (Exhibit-2), which w as rectified vide Exhibit-3, deed dated 21st July, 1972, is not valid, as the pl aintiff could not prove the delivery of possession, which is one of the essentia l condition to constitute a valid gift under the Mahomedan Law. The trial Court hence, ignoring the fact that Raifat Ali has two other daughters, declared the right, title and interest of the plaintiff as well as the defendant No.1 in resp ect of the Schedule-B property by holding that both of them will get ‰ share. Th e first appellate Court while upholding the judgment and decree passed by the tr ial Court, however, has also recorded the finding that another ingredient to con stitute a valid gift, i.e. acceptance of the gift, is not proved by the plaintif f. The appellate Court, therefore, has held that two conditions, namely, accepta nces and delivery of possession could not be proved by the plaintiff, though is required to be proved under the Mahomedan Law to constitute a valid gift. [14] It appears from the evidence adduced by the parties that after t he gift was executed, the name of the original plaintiff was recorded in the rev enue record, which has also been proved and marked as Exhibit-5. The plaintiff h as also proved the revenue paying receipts, which are marked as Exhibit-6(1) to 6(9). Section 152 of the Mahomedan Law provides for delivery of possession of i mmovable property, which is one of the ingredients to constitute a valid gift. Both the Courts below while recording the finding relating to the acceptance of gift as well as delivery of possession did not, however, discussed the entire ev idence on record including Exhibits-5 and 6 series and also the affect of mutati on of the name of the original plaintiff in the revenue record and payment of th e land revenue to the competent authority, in respect of the land, over which th e plaintiff claims right, title and interest, though both the Courts below are b ound to discuss all the evidences on record. Exhbits-5 and 6 series also could not be perused by this Court as it appears from the records that those documents were taken back by the plaintiff after disposal of the suit. [15] In view of the aforesaid discussion, I am of the view that the f irst appellate Court is required to marshal the entire evidences on record, both oral and documentary, in its proper perspective before recording any finding re lating to the validity of the gift and fulfillment of the conditions to constitu te a valid gift under the Mahomedan Law and also the extent of share of the plai ntiff as well as the defendant No.1, having regard to the admitted position that they had two other sisters, in case it is bound that the gift executed was not valid. [16] Hence, the judgment and decree dated 4th May, 2002 passed by the first appellate Court is set aside and the appeal is remitted to the first appe llate Court for deciding the same afresh, on the basis of the evidence already a dduced by the parties, which shall be done within 2(two) months from the date of appearance of the parties. The parties are directed to appear before the first appellate Court on 9th December, 2013. [17] h the first appellate Court on or before 25th November, 2013. The Registry is directed to send down the records, so as to reac [18] No costs. The appeal is accordingly allowed to the extent indicated above.