The High Court · 2025

Judgment

THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA CITY CTVIL COURT APPEAL No.83 OF 2019 JUDGMENT: This is an appeal fiIed by the appellant, bein11 aggrieved by the judgment and decree, datcd 29.l2.2Ott. pzrssed in O.S.No.994 ot 2014 by the learnecl XI Addirionrrl Chief Judge, City Civil Court, Hyderabad (for short "the trial Court,,).

2. The appellant herein is the plaintiff and the respondents 1 and 2 are the defendants belore the trial Courr. The parties herein are relerred to as they were arrayed in thc sr.rit before the

trial Court for the sake of convenience and clarity.

3. The case of the plaintiff beforc the triat C<;rrrt is that late Smt. Late Qamar Sultana is the mother of thr plaintiff and defendants I and 2 who was the original purchasc r, ovzner and possessor of suit schedule property vide documcn No.23gl of 1961 having purchased the same from MuneerudC.n S/o.Shaik Imam in the vear 1961 with her own funds. It is rheir case that their mother ()amar Sultana died ir:testate on 19.10.199i, Ieaving bel-rind her husband and thrce cl'rilclren and that s ubsequently her husbarid died leaving bel-rind thc plaintiff ancl clclendants 1 and 2 herein. 1'he plaintifl"s case is Lhat Matruka property left by \ 2 ETD,] cccA No.83 2019 Smt. Qamar Sultana got initially devolved on her husband, two \ sons and one daughter and subsequently, on the death of their father his share got devolved on the plaintiff and defendants i.e. the total number of shares would come to 35 as per Islamic Law and that each son witt get 14 out of 35 shares, therefore, the plaintiff and the defendant No.l would get 14/35th and defendant No.2 would get 7/35th share. The plaintiff further averred that the share of defendant No. I was gifted to plaintiff in 2010 through oral Hiba before the witnesses and therefore, the plaintifl's share comes Lo 28 out of 35 shares and that the defendant No.2 is l-raving only 7 shares in the suit schedule property. It is further averred that recently he came to know that defendant No.2 got registered a gift deed in her favour through their father vide document No.3111/2OOt and 3112/2OOl d,ated. 25.lO.2OOl without any information to the plaintiff and defendant No.l and that she is trying to sell away the suit schedule property for unlawful gain. It is the case of the plaintiff that since he is staying at USA, defendant No.2 is trying to alienate the property to cause loss to him, as he is the major share holder in the property. It is his case that number of times he has asked defendant No.2 to partition the suit schedule property but defendant No.2 kept on postponing the same on one I t 3 ETD,] CCCA No 83 2019 pretext or thc other stating that the reputatror of the family would be affected. Finally, the plaintiff asked del:ndant No.2 on

05.O4.2OO4 to partition the suit schedule propert\ but defendant No.2 refused the same. It is further averred that the plaintiff learned through third parties that defendant No.2 also created a false ahd sham document showing oral Hiba throrrgh their father in respect of 18 1 Sq.yards and also another gift dc :cl in respect of 262 Sq.yards vide document Nos.31 1 I and 3 1 I 2 ot' 2001, dated

25.lO.2OOl. It is the case of the plaintilf that cle]crrdant No.2 is intending to se[I away the said properties whic]r is a -ioint and ancestral property and that the intending purchascrs are visiting the suit schedule property, therefore, he filed the suit for partition.

4. The def'endants remained ex parte

5. The plain tiff examined himself as PW I a r: d got marked Exs.A1 to A5. On a perusal of the oral evidence r.1 PWl and the documents under Exs.A1 to A5, the trial Court has <lismissed the suit. Aggrievecl by the said decree of dismissal, thc prcsent appeal is preferred by the plaintiff. I I \ 4 ETD,I CCCA No.83 2019

6. Heard the submissions of Sri K.K.Waghray, learned counsel for the appellant, Sri M.Vishnu Vardhan Reddy, learned counsel for the respondents. 7 . The learned appellant counsel has submitted that the judgment and decree of the trial Court suffers from legal infirmities and that once the registered gift deeds are chailenged, the burden of proof lies heavily on the defendants to prove the validity of the registered gift deeds but since the defendants remained ex parte and as there u'as no rebuttal evidence, the trial Court ought to have decreed the suit. He argued that the judgment of tria,l Court is contrary to 1aw and evidence and that it has not assigned any cogent and justihable reasons for dismissing the suit. He further argued that the trial Court failed to appreciate that the two registered gift deeds are sham and created documents and that the Donor has no title. He further argued that the decision of the trial Court that the plaintiff could not establish that he is entitled to 14/35th share in the property is an erroneous finding. He submitted that his evidence on record remained unchallenged and thus, his suit needs to be \ dec{eed. He therefore, prayed to set aside the judgment and decree and ailow this appeal. I I 5 ETD,] ccc^ No 83 2019

8. The learned respondents counsel has submr Lt.ed that the plaintiff has alleged that there were two gift deeds rvitich are not valid but he has not sought for cancellation of thc said documents and without there being any canccllation of said documents, the property would not be available fo - partition as claimed by hirn. He further argued that it is an ,rrlmirred fact that the origir-ral owner of the properties is thcir rnotirer and during her Iife time she has gifted some property t,) thcr: father and from their father the two gift deeds were executcd in favour of defendant No.2. Now the plaintiff's challenge is thzLt th,: donor in the gift deed has no title but he cannot takc tl're s;rid plea because the donor and the donee both are not alire. Ir, is also contended by the respondent counsel that the plaintifl in 1.he suit failed to take a prayer saying that the oral Hiba is sham in nature. When it is a registered gift deed, a register:rl dor:ument is always presumed to be true, unless the contra I is proved. The plaintiff though alleges that they are valid dccumcnts, he failed to prove the same, thus, the gift deeds har,c to be held valid. He further argued that the gift deed is executed rn 2001 and the suit is filed in 2014, thus, the suit is nr,t w,ithin the limitation for cancellation of gift deeds and thus, thc plain tilf has not filed for cancellation of gift deeds and with all [h,:sc <lefects, \l \, I 6 ETD,J CCCA No.83 2019 he got filed the suit and also the chicf cxamination was filed through a GPA. lrarned counsel has argued that the plaintiff has not placed any evidence to show that defendant No.1 gifted the share of property to the plaintiff, cxcept quoting a mere statement in the plaint. It is his argument that as per Muslim Law till a person is alive, he is the absolute owner of the property and as such, the plaintifl's father getting the property by Hiba cannot be questioned. He argued that pWl is the GpA holder and that a GPA holder had no competence to depose about the facts which are not in his personal knou,ledge and that the witness did not even say about the fact u,hether he is personally aware of what has transpired in thc family particularly about the transactions between their mother and father (oral Hiba) and that such evidence cannot be taken into consideration. Thus, he argued that the suit is bad in many ways and thus, prayed to confirm the judgment of the trial Court.

9. Having heard the above rival submissions, this Court frames the following points for consideration: 1) 2l .\ 3) ) Whether the plaintiff is entitled to a share in the suit schedule properties? If so, to what extent? Whether the judgment and decree of the trial Court is sustainable in law and under the facts? To what relief) t I 7 ETO,J (l(-CA No.83 2019

10. POINT NO.1 a) The case of the plaintiff is that the suit sc h,:dul: property is Matruka property and that he along with his brcrher and siste r are entitled to a share in the property. He furthe r ptcade d that his brother/ delendant No. t has gifted his share to the plaintiff and therefore, he gets 28 out of 35 shares. IltLt ht: has not placed any evidence in this regard to show that defendant No.l has giftcd his share to the plaintiff. Thus, the r;aid plea of the plaintiff faits. b) Thc ncxt contention of the plaintiff is thert the gift dceds under Exs.A1 and A2 are sham documents and arc invalid and therefore, the said property is available for partition. [n case if this contention is correct, the plaintiff has to lead some evidence to prove the invalidity of the said documents. For a gift deed to be valid under Muslim Law, there should be intention of the donor to gifl the property, acceptance of the gift either implied or express and then delivery of possession of the property. The plaintiff shor"rld have proved that the said gift deeds arc not valid, but lailed to place any evidence on record to sho\. the same. l '..i! 8 ETD,] CCCA No.83 2019 c) The learned appeliant counsel has relied upon a decision of this Court rn Rdtan Lal Bora a. Mohd.. Nabiud.dinr, wherein it was held that uhen claims of oral gif* are made, the laut requires strict euidence to establislt that an orat gift lnd in fact been mad.e and tLrcre is some contemporaneous euidence to establish such an oral gift. It is true thot no special set of rules are prescribed- und-er the laut to establish an oral gift and that the euidence cant take ang fonn. But it must point out unquestionablg the fulfillment of the three requirements of o ualid gift under the Mohammed_an Latu. If euidence is lacking on anA of the requirements of a ualid_ gift, lata cannot presume that a ualid gift has been orallg made by o Mohammadan in fauour of a Donee. Relying upon the said decision, the appellant contended that the oral gift from his mother Qamar Sulthana to his father has to be proved and unless that is proved, the donor has no right to convey the title to defendant No.2. Thus, his contention is that since the donor,s title is not proved, the gift deed under Exs.A1 and A'2 are sham documents. However, it is pertinent to take note of the fact that the donor in Exs.A 1 and A2 is the father of plaintiff and defeqdants, who is stated to be the owner of the said properties \ by vir'tue of an oral Hiba given by his wife late eamar Sulthana during her life time. Thus, the question of proving the title of the l AIR 1984 andhra Pradesh 344 9 ETD,] CCCA No.83 2019 said Donor does not arise because even if he want.s to challenge [he same, both Qamar Sulthana and her husbancl i.e. the parents of the parties herein are no more. On l.he other hand, the said decision, goes against the plaintiff. It disprroves his own contention that he was given the share of defendein.t No.1 by oral Hiba, which he failed to prove before the Court. In :ase, if he has to prove that defendant No. t has gifted his share 1.o the plaintiff and that he becomes entitled to 28/35th share in the property, he has to prove the oral Hiba between defendant No.1 and the plaintiff, which is not done. d) On thc orher hand, the appellant,s counsel -rtrs vehemently argued that when the plaintiff has averred in his p,laint that the said gift deeds are not valid documents, it is the trurdr:n on the defendan t to prove the validity. The plaintiff has to prove his own case, he cannot gain on the weakness of the <le,fendant. It is his case that the gift deeds are invalid so it is his duty to disprove the said documents. Once a document is registered, it is presumed to be true unless it is proved to be in,,alid. e) The learned respondent counsel relied upoe a decision of the Hon'bie Supreme Court in Abdul Rahim a. Sk.Abdul I ] 10 EID,] CCCA No.8l 201q t Zohanz, it was held by the Apex Court that when the gift deed is \ a registered one, it contains a clear and unambiguous declaration of total divestment of propertlr and that a registered document carries with it a presumption that it was validly executed. It is for the party questioning genuineness of the transaction to show that in law the transaction was not valid. Applying the said principle to the present case, the plaintiff, having produced the registered gift deeds as Exs.A1 and A2, it is his duty to prove the invalidity of the same. Since both are the registered gift deeds they are presumed to be valid, unless he proves that the said gift deeds are invalid. f) The plaintiff on one breath says that his brother defendant No.t has gifted his share to him and on the other hand he is asking for partition from his sister. If at all it was Matruka property, the plaintiff, his sister, and defendant No. 1 would share the properly but how come defendant No.1 has gifted his share to the plaintiff without there being any partition is not answered by the plaintiff. Defendant No.1 would be holding his share only after partition. If at all the partition has not taken place, defendant No.l cannot gift his share to the plaintiff and if according to him, defendant No.1 has already gifted his share I (2OO9) 6 Supreme Coun Cases 160 I 11 ETD,] CC:A No.83 2019 that would meitn to say that partition has alrea<11 taken place So, the plaintiff himself is not clear in his pleadings. g) The documents under Exs.A3 and A4 which are the market value certrhcate and encumbrance certifrcates clo not aid the plaintiff to prove that the suit schedule propertie s are Matruka properties and are available for partition. Ex.AS ir; ther General Power of Attorney dated 06.09.2O 14 executed by the ptaintiff in favour of one Wajid Mirza. The said Wajid Mirza rvho is the GpA holder has fited the evidence affidavit as pWl. A perusal of the said affidavit shows that he has reiterated the cont€)nts of plaint. Though in the hrst paragraph, he stated that he is tl.re GpA of the plaintiff, he has narrated the contents as thougL he himself is the plaintiff, which is not proper and the share als,: is claimed by the GPA holder as if he is the son of late eamar Sultana and brother of delendant Nos. 1 and 2. h) The respondent counsel has argued in this regard and has relied upon a decision of the Hon,ble Supreme Cour- in Manishq Mahendra Gq.la v. Shalini Bhaguan Auatraman?, rvherein it was held that the power of attorney holder can depcse and verify on oath before the Court, but he must have witnessed the transaction as an agent and must have due knoult:dge about it ' 1u oza15 scc r:o t2 ETD,] CCCA No.83 2019 and that the power of attorney holder who has no knowledgc \l regarding transaction cannot be examined as a witness and the functions of GPA holder cannot be delegated to any other person without there being a specihc clause permitting such delegation in power of attorney. In the present case, the GPA holder has deposed on behalf of the plaintiff but his GPA is with regard to the development agreement, he cannot depose beyond what transpired between himself and the plaintiff. But he has deposed as if he is the plaintiff. Applying the cited decision to the case on hand, it is held that the evidence of GPA as PW1 is of no avail to the plaintiff. i) In view of the discussion held supra, it is held that the plaintiff failed to seek for cancellation of the gift deeds in the absence of which, there will not be any property available for partition. His pleadings are conflicting in nature as he took different stands with regard his share in the property, though he averred that the property is not yet partitioned he stated that defendant No.1's share is gifted to him. Thus, due to all thcse infirmities it is held that the plaintiff could not prove his case to show that the suit schedule properties are Matruka properties and are available for partition, in the absence of which, the 13 EID,J C((A No.83 2019 plaintiff cannot claim any share and he is not cntitled to seek partition. Point No.1 is answered accordingly

11. POINT NO.2: In vielt ol' the reasoned findings arrived at point No. 1, rt is held that the judgment and decree passed by thc tr-ial Court are found to be qell reasoned and hence, they nre hcld to be sustainable in law and undcr [he facts and circunis,tances of the C SC

12. POINT NO.3: In the rcsult, the appeal is dismissed -r:holding the judgment and decree, dated 29.12.2016 passed in O.S.No.994 of 2Ol4 by the learned XI Additional Chief Judge, C tlr Cii,il Court, Hyderabad. No costs. Miscellaneous Applications, if any, pending irr thrs appeal shall stand closed. /,TRUE COPY// ''5.?'$l!-l[t?3'EtR / SECTION OFFICER \ To, '1 .

2. The Xl Additionar chief Judge, city civil court at Hyderabad (with records ) On" CC to SRI' K K WAGHRAY' Advocate IOPUCI ONE CC tO SRI, IT/I' VISHNU VARDHAN REDDY' AdVOCATC IOPUC] J 4 Two CD Copies kul/ghw //,i !l- ;i{;:Trffi..- ,' ,i\\ 1-o \ t r l.t\ ?$6 l:'l l.' '' {J"t1'r1' HIGH COURT DATED:10/06/2025 + DE(lRL]E JUDGMENT CCCA.No.83 of 2019 DISMISSING T'HE CCC],\ WITI.IOUT COSTS / .oPtd v)- w.- IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD TUESDAY ,THE TENTH DAY OF JUNE TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE TIRUMALA DEVI EADA CITY CIVIL COURT APPEAL NO: 83 OF 2019 Between: SYED MOHBOOB ALAM, S/o. Late Syed Shah Alam, Aged 58 years, Occ- Service Abroad, Rio.8, North Taylor Ave, SC, Norwalk Ct 06854, Rep., by his GPA Mir Asif AIi Khan, S/o. Mir Shahmath Ali Khan, aged 48 years, Occ- Business, R/o.Flat No.304, third floor, Mahboob Mansion, bearing premises No '10-4-29, Humayun Nagar, Hyderabad ( Mir Asif Ali Khan is permitted as G.P.A. Holder to represent the Appellant as per the Court Order dated 26-10-2022 made in l.A.No 2 of 2019 in CCCA No. 83 of 2019.) AND ...APPELLANT/ Plaintiff

1. SYED MANZOOR ALAM, S/o. Late Syed Shah Alam, Aged about 56 years, Occ-Private Service, Rio. H. No.16-8-993/C, New Malakpet, Hyderabad - 36

2. Ghousia Syeda Khan,, D/o. Late Syed Shah AIam, Aged about 54 years, Occ- Household, R/ o. H. No.16-8-993/C, New Malakpet, Hyderabad - 36 Rep., by her DGPA holder (Doc No.B69 of 20'17) Sri Mohd. Abdul Nayeem, S/o. Late M.A.Raheem at'1-3-1029, Hillton lcon,4th floor, Opp. Courtyard Marriott, Lower Tank Bund, Hyderabad

3. M/s. Hillton Projects, having its Office at 1-3-1029, Hrllton lcon, Lower Tank Bund, Hyderabad, rep. by its Managing Partner Sri Mohd. Abdul Nayeem, S/o. late M.A. Raheem ( Respondent No. 3 is impleaded as per the Court Order daled26-10-2022) ...RESPONDENTS Appeal Under Section 96 of Civil Procedure Code, '1908 aggrieved by the Judgment and Decree daled 29-12-2016 in O.S. No. 994 of 2014 on the file of the Court of the Xl Additional Chief Judge, City Civil Court at Hyderabad This appeal coming on for hearrng and upon perusing the grounds of appeal, the Judgment and Decree of the Court below and the material papers in the case and upon hearing the arguments of Sri K.K. Waghray, Advocate for the Appellant and Sri M. Vishnu Vardhan Reddy, Advocate for Respondent Nos. 2 & 3 and none appeared for Respondent No. '1 This Court doth order and decree as follows: 1 That the appeal be and hereby is dismissed upho ding the judgment and decree, dated 29-12-2016 in O.S.No. 994 of )-O14 by the learned Xl Additional Chief Judge, City Civil Court, Hyderabad and

2. That there shall be no order as to costs in this appeal. //TRUE COPY// Sd/- K.. SRINIVASA RAO JprlrT REGTSTRAR SECTION OFFICER To, 1 The Xl Additional Chief Judge, City Civil Court at Hyderabad

2. Two CD Copies kul Ya' I t, HIGH COURT DATED:10/06/2025 DECREL CCCA.No.83 of 2019 DISMISSING I'HE C]C]CA WfI'HOUT C]OSTS Ll .ffta u- 61d45