Inayatali Karimbhai Bohari v. Subhash Zumberlal Mutha

Judgment

#5. Mr. M.V. Deshpande, Advocate for the appellants. Mr. A.S. Bajaj, Advocate for respondent Nos.1 Mr. V.S. Bedre, Advocate for respondent Nos. 2a & 2b. ( 3 ) sa416.89 CORAM RESERVED ON : DELIVERED ON: : A.V. NIRGUDE, J. 13.07.2011 09.08.2011 J U D G M E N T :-

#1. The facts leading to this litigation in short can be narrated as under :-

#2. For convenience sake, I am referring to the parties by their designation in the Trial Court.

#3. Respondent No.1 is the plaintiff and who filed Special Civil Suit No. 260 of 1976 against the rest of the rest of the parties here on the following cause of action.

#4. The “suit property” is a two storied building at Ahmednagar, bearing City Survey No. 2911, 2912 and 2913. As the numbers suggest earlier these were three separate house properties. Out of them, house City Survey No. 2911 & 2912 originally belonged to one Hamjabhai Gulam Hussain. ( 4 ) sa416.89

It is the case of respondent No.1/plaintiff that Hamjabhai gifted the building bearing Nos. 2911 and 2912 and one more property bearing City Survey No.2915 (which was situated at some distance from this twin and adjacent city survey numbers) to his son Kamruddin on or about 26th October, 1920. The gift deed in writing was registered on 26th October, 1920. Then the possession of the gifted property was also delivered to Kamruddin – the donee. Unfortunately, Kamruddin died soon thereafter on 29th November, 1921. Hamjabhai, at that time, had three more sons and three daughters.

#6. Kamruddin thus become owner of the property C.T.S. No. 2911,2912 and 2915. On his death in 1921, his only son Ibrahim became owner of these properties. He then sold property City Survey No.2915 and purchased property City Survey No.2913 which lay adjacent to the other two properties. He then amalgamated the three properties which were described by City Survey No.2911.2912 and 2913 and thus it became one block- one unit which is the “suit property”. Ibrahim, as owner of the suit property enjoyed it till his death in 1948. Ibrahim had two sons and two daughters. After Ibrahim’s death, his children became owners of the suit property. On 7th October, 1967 one of the sons of Ibrahim sold ( 5 ) sa416.89 his 5½ anna share in the suit property to one Ramniklal. It was a registered sale-deed. Other son of Ibrahim sold his 5½ anna share in the suit property to Ramniklal by another registered sale-deed, on 14th August, 1974. Ramniklal, thereafter, on

11.06.1976, purchased 2½ anna share in the suit property of one of the daughter of Ibrahim and the last share in the suit property of the second daughter of Ibrahim ( 2½ anna) was purchased by registered deed dated 17th September, 1976. The remaining fourth daughter of Ibrahim sold her 2 ½ anna share in the suit property directly to the plaintiff on

17.09.1976. Soon thereafter Ramniklal also sold his 13½ anna share to the plaintiff on 22.09.1976. Thus, the plaintiff purchased the entire suit property from the previous owners.

#7. It is the case of plaintiff that the ground floor of the suit property is in possession of defendant Nos. 12 and 13, who are tenants and he is receiving rent from them. They are formal parties to the suit. Defendant Nos. 1 to 9 are members of one family and they are occupying third floor of the suit property. Defendant No.10 and 11 are occupying first floor.(The case of the plaintiff as against them is different and is not discussed here. It is the cause of action for other suit out of which the Second appeal No.417 of 89 has arisen and is decided by a separate judgment.) The plaintiff says that they ( 6 ) sa416.89 all are interested in denying the plaintiff’s title. The plaintiff says that defendant Nos. 1 to 9 had repeatedly admitted the ownership of the plaintiff’s predecessors, namely, Ibrahim and his children before 1973. For the first time in 1973, they denied the title of the plaintiffs as well as the predecessors. So, their possession of the suit property since 1973 is illegal, unauthorized and that of trespassers.

#8. On this cause of action, the suit was filed for declaration that the plaintiff is absolute owner of the suit property and for recovery of possession of such portion of the suit property which is in possession of defendant Nos. 1 to 11 on 28th October, 1976.

#9. Defendant No.1(for his family members) filed written statement and took up the following defence. Admitting the fact that the suit property belonging to Hamjabhai Gulam Hussain, he asserted that Hamjabhai till his death was owner and possessor of suit property and that he gift in favour of his son Kamruddin was invalid. He said Hamjabhai had never transferred possession to Kamruddin either on the date of gift deed or thereafter at any time. Defendant No.1 stated that Hamjabhai, his sons, their wives and children were residing in a part of the suit property in those days and some part of the ( 7 ) sa416.89 suit property was let out to different tenants, who were inducted by Hamjabhai and who were paying rent directly to Hamjabhai during his lifetime. Defendant No.1 even denied that Ibrahim was only legal heir of Kamruddin. In view of this, defendant No.1 also denied that after Ibrahim, his four children became absolute owners of the suit property. It is a case of defendant No.1 that he is one of the heirs and sharers being son of daughter of Hamjabhai in the suit property along with many other sharers. He said, in such capacity, he has been residing in suit property since 1936, uninterruptedly, peacefully and openly. He said, he has spent thousands of rupees on renovation of second floor of the suit building. He further contended that since there was no valid gift in favour of Kamruddin, the suit property belonging to Hamjabhai till his death, which occurred in 1924. He said Hamjabhai died intestate and according to Mohammedan Law, the same would devolve on his surviving three sons and two daughters. He said, since Kamruddin, the fourth son of Hamjabhai had died during lifetime of Hamjabhai, Kamruddin and his children would not get any right to the property and also the plaintiff would not get any right to the property.

#10. In view of this controversy, learned Judge of the Trial Court framed various issues, but the following are prominent ( 8 ) sa416.89 ones along with the findings :- 1 Does the plaintiff prove that after Kamruddin’s death his son Ibrahim became exclusive owner? Yes

#2. Does plaintiff prove that after Kamruddin’s death, his son Ibrahim became exclusive owner? Yes, but co-owner

#3. Does plaintiff prove that after Ibrahim’s death his four children became owners of the suit property? Yes, co-owners with other sharers

#4. Does plaintiff further prove that the children of Ibrahim perfected their title by adverse possession against true owners?

#5. Does the plaintiff prove that the sale-deed of 07.06.1967, 14.08.1974, 11.06.1976, 22.09.1976 and 17.09.1976?

#6. Does plaintiff prove his title to the suit property?

#7. Is plaintiff entitled to possession of the suit from defendant Nos. 1 to 9? No Yes Yes, but only to the extent of 5/6th share. No

#8. Do defendant Nos. 1 to 9 and 14 prove that after death of Hamjabhai, the suit property devolved to his three surviving sons and two daughters? Yes, only 1/6th share of the suit property

#11. In other words, learned Judge of the Trial Court held that the gift between Hamjabhai and Kamruddin was valid and ( 9 ) sa416.89 complete and thereby Kamruddin became exclusive owner of the suit property. However, the learned Judge also held that since after Hamjabhai survived Kamruddin, he would get 1/6th share in the suit property being his father. He also held that this 1/6th share in the suit property belonging to Hamjabhai got further devolved on his surviving children and not on Kamruddin’s children Ibrahim etc. He, thus, held that on the death of Kamruddin on one hand 5/6th share of the suit property went exclusively to the children of Kamruddin; whereas the remaining 1/6th share came back to Kamruddin’s father Hamjabhai and upon Hamjabhai’s death it went to his other children. He, thus, held that the defendant No.1 being grand-son of Hamjabhai would have certain undivided share in the suit house and since he and his family members are occupying part of the suit property, they would do so pursuant to their right to the property, they cannot be termed as trespassers and therefore they cannot be evicted from the suit property.

#12. The plaintiff preferred appeal against this judgment and decree being Regular Civil Appeal No. 83 of 1985. The learned Judge of first appeal Court allowed the appeal and decreed the suit of the plaintiff directing defendant Nos. 1 to 9 to deliver possession of the portion of the suit property in their ( 10 ) sa416.89 possession.

#13. The learned Judge, inter alia, held that the plaintiff had proved that the children of Ibrahim perfected the title to the suit property by adverse possession even to the extent of 1/6th share of the suit property. In other words, he held that though after Hamjabhai’s death his surviving children would get share in the suit property, they lost their right to the suit property at the hands of Ibrahim’s children, because they acquired it by adverse possession.

#14. When this appeal was admitted on 29.04.1987, the following substantial questions of law were formulated. (1) Is the District Court wrong in holding that the sale deeds Exhs. 178, 179, 180, 181 & 182 are duly proved, notwithstanding that the respective vendors have not been examined? (2) Did the District Court err in holding that the possession of the property was duly handed over by Mulla Hamzabhai to Kamruddin according to the requirements of Mohamedon Law and that the gift deed dated 20th October, 1920 is valid? (3) Assuming the gift deed to be valid, is the finding of the District Court right that the title to the ( 11 ) sa416.89 1/6th share which Mulla Hamzabhai inherited on the death of Kamruddin, has got extinguished by ouster of the heirs for more than 12 years? Was the District Court right in pressing in (4) aid the provisions of section 41 of the Transfer of Property Act in favour of the plaintiffs’ Vendors, in absence of pleadings and or issue in that behalf? QUESTION NO. 2 :-

#15. Question No.2 relates to validity of gift. As said above, it is common ground that Hamjabhai was owner of the suit property at least to the extent of City Survey No. 2911 and

#2912. Though defendant Nos. 1 to 9 staunchly denied the execution of the gift deed, delivery of possession etc. Both the Courts below held on facts that the gift was valid in all respect. In order to examine the correctness of these findings, I am constrained to look into evidence on this point. The Trial Court recorded evidence in February, 1984. The plaintiff was then 31 years old and so was unable to throw light on the event which took place in 1920. In his deposition, he stated that Hamjabhai had gifted property C.T.S. No. 2911, 2912 and 2915 to Kamruddin and the gift deed was presented for registration on ( 12 ) sa416.89 26th October, 1920. He also stated that the deed was registered on 28.10.1920. He further asserted that actual possession of the property was delivered to Kamruddin. In- deed, since he was not even born during those days, his oral testimony cannot be utilized to prove the fact of execution of gift deed, registration of the gift deed as well as delivery of possession etc. He could not produce original gift deed on record. He said that he could not produce the same because he could not get it though he made efforts to find it. He, therefore, produced on record certified copy of the gift deed. This certified copy was issued by the Sub-Registrar of Ahmednagar. Thus, this witness was unable to prove the gift, the execution of gift, registration of the gift and so also the delivery of possession etc.

#16. Witness No.2 of the plaintiff was the predecessor in title of the plaintiff who also could not throw much light on the event of 1920. But witness No.5 is examined to prove the issuance of certified copy of the gift deed. Witness No.5 Hari had worked as Record Keeper of Sub-Registrar’s Office. He said that since 1957 he worked as Record Keeper. He brought with him to the Court original record of 1920 of the Sub- Registrar’s Office. He said that after referring to the contents of the record that the certified copy, which was produced on ( 13 ) sa416.89 record was issued as per the original record. He also stated that the certified copy bore Sub-Registrar’s signature, which he identified. He said, the Gift deed was registered at the office of the Sub-Registrar. He thus proved that the certified copy, which was brought on record was a genuine certified copy issued by the Sub-Registrar of Ahmednagar in 1976. Thus, the signature he could identified. The question is whether this would prove that in 1920, the deed was actually executed by Hamjabhai and that the deed so executed was brought for registration to the office of Sub-Registrar on 26th October,

#17. The plaintiff examined no other witness who could depose before the Court that he had seen Hamjabhai executing the document of gift deed, the gift deed being produced before the Sub-Registrar for registration and above all Hamjabhai had delivered the possession of the suit property to Kamruddin. I am aware that the plaintiff being not related to Hamjabhai and others would find it difficult to prove the factum of gift etc. I am also aware that there is strong possibility of losing or destruction of the original document – gift deed. Since the certified copy of gift deed has come on record, it can be presumed that the original gift deed was presented for registration to the Sub-Registrar on 26th October, ( 14 ) sa416.89

#1920. The certified copy, which is thus proved by the plaintiff can also be said to be a secondary evidence of the original gift deed. This secondary evidence as said above would prove that the original gift deed was presented for registration before the sub-registrar at the relevant time. I do not find it difficult to accept the finding of the courts below that the gift deed and its contents are proved properly.

#18. The concept of gift in Mohammedan Law and its ingredients are quite peculiar and stringent. As per the Mohammedan Law, the gift is defined by Article 138 of the Mulla’s Principle of Mohammedan Law as under :- “138. Hiba or gift. - A hiba or gift is “a transfer of property, made immediately, and without any exchange,” by one person to another, and accepted by or on behalf of the latter.”

#19. Article 142 of the above mentioned book give extent of donor’s power to make gift. It reads as under :- “142. Extent of donor’s power – A gift as distinguished from a will, may be made of the whole of the donor’s property, and it may be made even to an heir.”

#20. The relevant Articles are enumerated below to explain as to what are essential ingredients of valid and ( 15 ) sa416.89 complete gift. “147. Writing not necessary. - Writing is not essential to the validity of a gift either of movable or of immovable property.” “148. Relinquishment by donor of ownership and dominion. - It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.” “149. The three essentials of a gift – It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Sec. 150. If these conditions are complied with, the gift is complete.” “150. Delivery of possession.- (1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. As observed by the Judicial Committee, “the taking of possession of the subject-matter of the gift by the donee, either actually or constructively,” is necessary to complete a gift.”

#21. In this case, since the gift deed and its contents are the only evidence for proving the validity of the gift. I am quoting the relevant portion of the gift deed. (a) Endorsement of gift :- “Presented in the Sub-Registry of Ahmednagar between 3 and 4 p.m. on the date 26th Oct. 1920.” ( 16 ) sa416.89 (b) Declaration of gift :- “The executant Hamjabhai Gulam Hussein Bohri, business, a bohri, aged 80 r/o. Nagar, admits execution of this document. (Thumb-mark) (sd/- in Gujarati) Govind Janardan Sahastrabuddhe, business, resident of Nagar, was examined as to the identify of the above executant. The witness is known to the Sub-Registrar” (Following are the important portions of the deed:) (c) “I give the Gift deed in writing for the following reasons. You are my son by former wife. After your mother’s death I married again. Three sons were born of her, the elder son is named Kurban Hussein, Mulla Hamjyabhai, age 45 years, followed by the second son by name Munwar Hussein Mulla Hamjyabhai, age 35 years and the third son by name Nissar Hussein Mulla Hamjyabhai, age 25 years. I have grown old now and besides, the times are very bad. So I don’t feel any certainty what will happen and when. After my death you and the three abovenamed sons by my second wife i.e. you step brothers, will not be able to pull on amicably together and hence disputes will arise among you. Therefore, of my free will and pleasure and in a sound state of mind I have gifted to you and delivered to you possession of the below mentioned two shops out of my self- acquired estate in order that you may remember me.” (d) Detailed description of the property :- “There were two shops bearing city survey No. 2911, Municipal Committee No. 3180 and City Survey No. 2912 of Municipal Committee No. 3181, facing the north and situated on the southern side of the road in the old Ahmednagar. The Taluka and Sub-District Ahmednagar, Dist. Ahmednagar. The said two shops, which I had built formerly, were demolished and a single ( 17 ) sa416.89 storeys together comprise of new three storied shop, made up of the said two (former) shops bearing the two numbers, has been built. It is 65, sixty five feet long from south to north and 17, eighteen feet wide from east to west. It contains teak-wood ceiling and flooring: Two of the 24 (lower) ‘Khans’ (compartments) in all and above the same there is, the third, upper storey made of iron sheets and containing 8 ‘khans’ (compartments) in all. The total number of ‘khans’, including those in the third storey made of iron sheets is 32, thirty two. It is bounded on the east by the shop-cum-house of Mulla Kambar Alli Mulla a Badroodin Bohri, in the south the rear door, two latrines and a ‘mori’ and in front thereof, an ota which is 2’10”, two feet and ten inches wide from south to north and its length is equal to that of the house, and beyond a lane, on the west the house-cum-shop of Mulla Noor Alli Bohri, and on the north the frontage of the said shop and stair case and an ‘ota’ in front which is 2’ 10” - two feet and ten inches wide from south to north and its length is equal to the width of the shop. There are stairs and a ‘padvi’ (Verandah) on the ota and beyond that there is a road. The shop is enclosed within the said four boundaries.” (e) Declaration continues further as under :- “I have this day given the same (two properties) as gift to you, of my free will and pleasure for your maintenance as you have lived with me till today according to my wish and complying with my commands and looking after and serving me.” “I have today gifted the said properties to you for your maintenance and have delivered possession thereof to you for your enjoyment. Henceforth, I have no right, title, interest, claim or inheritance whatever left in respect of the said gifted properties. From today you are fully entitled as owner to deal with the said property in any way you like. The above named sons, born of my second wife also have no right to, or interest in the said gifted property. All the title-deeds of the said gifted properties such as three ‘sanads’ of enquiry, sale-deeds, ( 18 ) sa416.89 conveyance, deeds in respect of rent (Leases) etc. for the purpose of certificate (title) are delivered. I have given this gift-deed in writing of my free will and pleasure and in a sound state of mind and consciences.”

#22. The above mentioned declaration of gift is quite sufficient one as contemplated by Article 149 referred to above. The second question is – whether Kamruddin accepted the gift? In order to prove the acceptance, the plaintiff placed reliance on Kamruddin’s signature on the document. On perusal of the document, it is seen that Kamruddin presented the document and put his signature on it for presentation. He has not put his second signature at the end of the document for acknowledging the acceptance of the gift. However, it has come on record that Kamruddin, thereafter, made application to the Municipal Council, Ahmednagar and requested them to mutate his name as owner of the property. This fact is sufficiently proved and so there is no hesitation to come to the conclusion that the plaintiff has proved even acceptance of the deed by the donee – Kamruddin.

#23. The third and most important ingredient is delivery of possession of the subject of the gift by the donor to donee. In the gift deed, the donor mentioned that he had delivered the possession of the subject of gift to the donee. In addition ( 19 ) sa416.89 to it, he also stated that he had delivered the title deed of the gifted property to the donee. Besides, this statement, there is practically no evidence on record to show that by certain overt act the donor effected and parted with possession of the gift property to the donee. The donor has elaborately stated in the gift deed that besides the donee he has three more sons from another wife. He has also indicated in the deed that after his death, there could be dispute between the donee and his step brothers. In order to eliminate such apprehension, the donor also mentioned in the gift deed that on one hand Kamruddin – the donee would become full owner of the gifted property and he was free to enjoy the property as he wished and on the other hand he mentioned as his other three sons born of his second wife would have no right or interest in the gifted property. This indicates that there were at least three sons who could have had grievance because of the gift. Besides it has also come on record that Hamjabhai had two daughters also from his second wife. On this point, the relevant evidence is deposition of defendant No.1 It reads as under :- “The suit building is two story building. There are four rooms on the ground floor. On the first floor consist of four rooms second floor also consist four rooms. My maternal grandfather Hamjabhai was running a hardware shop on the ground floor of the ( 20 ) sa416.89 suit building. ................. The first door of the building was in possession of Hamjabhai Gulam Husein up to his death and thereafter it was occupied by his Son Nissarhusen and Munwarali. In the year 1936 Munwarali left the first floor to his partner F. Momujiwala. Mamujiwala died in the year 1952. After his death his wife, and mother-in-law were living in the first floor with Manibai. The 2nd floor of the building is in my possession since 1937. Before 1937 the 2nd floor was in occupation of Kamruddin Nissarhusen and Munwarhusen. Hamjabhai was residing in this house till his death.”

#24. In view of this evidence, it appears that most of the gifted property was at the time of gift in complete control of Hamjabhai – the donor. He was residing in the same on first floor. It appears that the donee - Kamruddin was also residing with him. It further appears from this deposition that the other sons of Hamjabhai, namely, Nissarhusen and Munwarhusen were not residing in the property at the relevant time but they came to reside there subsequently in 1936 or so. It can, therefore, be said that at the time of execution of gift only Hamjabhai and his son Kamruddin were residing in the said house. From this deposition, it appears that other son of Hamjabhai, namely, Nissarhusen, Munawarhusen and Kurbanhusen were residing in the vicinity in different houses. The question is whether they were made aware of the execution of the gift and the delivery of the property. In such ( 21 ) sa416.89 situation it indeed was necessary for the donor to indicate very clearly to his other son that he had gifted the suit property to his son Kamruddin, excluding them and had also put him in possession. On the other hand, the learned advocate appearing for the plaintiff points that since both the donor and the donee were residing in the same house, there was no need and possibility to actually deliver the possession. The statement made in the gift deed according to him amounted to delivery of possession constructively. He said that in such situation the gift was complete.

#25. The learned advocate appearing for the defendants placed reliance on very old judgment of this Court in the case of Abdul Majid Khan Vs. Husseinbu, AIR 1920 Bombay 135. The following passage in the said judgment would be relevant :- “The second point relates to the gift of a house. Defendant 1 pleaded that the house in question was given to him by way of gift by his grandfather on 8th July, 1912 and relied upon a registered deed of gift. Both the Courts have found that there was no delivery of possession and that the gift is invalid. It is urged that there was a transfer of possession so as to make the gift valid. It is clear that the registered deed gift by itself is not sufficient. According to the Mahomedan law there must be a delivery of possession. In the present case it is found by the trial Court, and this finding has been acquiesced in by the lower appellate Court, that the donor did not give up his control over the property, and continued in possession of the house until his death ( 22 ) sa416.89 in November, 1912. The application put in by defendant 1, who is the son of the donor;s daughter, in January, 1913 before the Municipal authorities shows that the possession had remained all along with the donor during his lifetime. It is urged however that the donee was with the donor on the premises at the time of this gift and that under the circumstances the possession must be deemed to have been transferred to him. In support of this view reliance is placed upon certain observations in Shaikh Ibrahim Vs. Shaik Suleman [ 1985 9 Bom. 146 ]. It may be, as pointed out in that case, that an appropriate intention where two are present on the same premises may put the one out as well as the other into possession without any actual physical departure or formal entry. But it does not follow in every case necessarily that where the two are present, the possession must be deemed to have been transferred. The question as to whether the donor intended to transfer the possession at the time of the gift must be answered with reference to the facts of each particular case. In the present case on the evidence the trial Court has definitely found that there was no transfer of possession. The appellate Court has given no reason for accepting this finding and that has necessitated our examining the question at greater length than we might otherwise have to do. In spite of the omissions on the part of the District Judge to that there was no transfer of possession, we think that the finding must be accepted now. The gift was therefore invalid.”

#26. Having read this paragraph of the judgment, the question is whether there is any evidence on record to show besides the gift deed and the contents of the same that Hamjabhai did some overt act to show to the world that he had given up the control of the gifted property to his son Kamruddin? As seen from the deposition quoted above ( 23 ) sa416.89 Hamjabhai had his own shop on the ground floor of the gifted property and the his residence on the first floor. Hamjabhai continued this property as residence and shop till his death which occurred in 1924. Even if the donee -his son Kamruddin stayed with him in this property I am of the view that since there were other sons of Hamjabhai staying in the vicinity some overt act on the part of Hamjabhai was necessary to clearly exhibit to his other sons and probably daughters that he was gifting the property and delivering its possession too exclusively to him. Regard must be had to the fact that Hamjabhai was not an ordinary man. He was a trader and owned and possessed more property. He had grownup sons and Kamruddin was their step brother. Only one circumstance is brought on record to show that Kamruddin was quite serious about the gift and he therefore immediately went to Municipal Council to get his name mutated in their record as soon as possible. This action could have been unilateral and without taking the other sons and daughters of Hamjabhai in confidence. Neither does it indicate that Hamjabhai had taken his other sons in confidence when he gifted the property. When Hamjabhai was taking such an important decision in respect of disposal of part of his immovable property he ought to have taken his grown up sons in confidence or at least should have clearly indicated to them that Kamruddin would control the ( 24 ) sa416.89 property exclusively. The facts in this case, in my view, required Hamjabhai to have done some overt act to show to the world or at least to his other children from second wife that he had delivered the possession to his son Kamruddin from first wife. No doubt, Kamruddin immediately after the gift approached Municipal Council and sought mutation, but before the mutation could take place, he died. Immediately, after his death, Hamjabhai admittedly expressed his desire to revoke the deed. Ibrahim, the son of Kamruddin became aware that his grandfather was on the verge of revoking the gift and he, therefore, hurriedly went to the Municipal Council and tried to tell them that the revocation would be invalid etc. The fact remains and it is amply proved that Hamjabhai rather belatedly thought of revoking the gift. I am not holding that the revocation was valid because on the day of revocation the donee - Kamruddin was already dead. What is being highlighted here is the factual aspect of the case. In 1920, the gift deed was executed. In 1921 Kamruddin died and immediately thereafter Hamjabhai tried to revoke the gift. These aspects clearly indicate that in this family there were two factions opposed to each other, one of Kamruddin's son Ibrahim and other of Hamjabhai.

#27. Let me see what happened after this confrontation ( 25 ) sa416.89 between Hamjabhai and his grand son Ebrahim. On one had Ebrahim asserting his ownership sold one of the gifted house C.S.No.2915 to a third party in January, 1924, even acquired an adjoining house C.S. No. 2913 and got it annexed to the two other houses. The newly acquired house is described in the Sale deed. It was a ground floor structure and over the years it got amalgamated with the other two houses. It is also an admitted fact that this annexe to the main house was developed vertically and was joined. But on the other hand after few years the step brothers of Kamruddin the uncles of Ebrahim came and occupied part of suit property. Ebrahim made no grievance about it. They then used the parts of the suit property without any hindrance from Ebrahim. These circumstances indicate that Kamruddin was not even put in complete control of the suit property or even part of it. Ebrahim too did not control the suit property exclusively. Yet I think these developments that took place in and 1924 are not much of importance if we are searching the answer to the question as to whether Hamjabhai did some overt act about delivery of possession to his son Kamruddin.

#28. The learned Judges of the Lower Courts gave importance to the contents of the gift deed, where Hamjabhai quite unequivocally divested himself from gift property in ( 26 ) sa416.89 favour of his son Kamruddin – the donee, and they were also impressed because of the fact that, Ibrahim the son of Kamruddin sold part of the gifted property to none other but his own uncle, one of the sons of Hamjabhai and he even delivered the possession. From these facts, the learned Judge of the Trial Court came to the conclusion that the delivery of possession of the gifted property was complete and effective and so the gift was complete.

#29. In my view this finding is perverse because the learned Judges of the Courts below did not see the importance and relevance of the fact that the donor and donee resided in the same property and since other three sons were staying in the vicinity they ought to have made aware of the delivery of possession by an over tact. The Ld. Judges also ignored the fact that Ebrahim did not control entire suit property subsequently. Besides the plaintiff could muster relevant evidence about the events that took place after Hamjabhai death and about how Ebrahim handled the affairs of the suit property thereafter. He did not examine any one from Ebrahim's family. The only witness who could give relevant information was the original Defendant No.1. QUESTION NO. 3 :- ( 27 ) sa416.89

#30. This question is raised assuming the gift deed is valid and Kamruddin – the donee got absolute right to the suit property due to the gift. It is an admitted fact that Kamruddin died during the lifetime of his father Hamjabhai. So the suit property would devolve on his legal heirs which, of course, included Hamjabhai, his father. There is no dispute between the parties that in such situation Hamjabhai would inherit 1/6th undivided share in the suit property till his death, which occurred in 1924. The question is - What would happen to his share in the suit property upon his death? Here again, there is no dispute between the parties that this property of Hamjabhai would further get devolved on his legal legal heirs, who were then his other children including mother of defendant No.1. It has come on record that after Hamjabhai’s death, gradually his sons came to occupy the first and second floor of the suit property. It has also come on record that Kamruddin's son – Ibrahim and his children gradually migrated to other town and did not reside at Ahmednagar. The deposition of defendant No.1 is quoted above to bring on record as to who utilized the suit property since 1935-36. Having regard to the deposition, which has not been effectively rebutted in cross-examination, there is no difficulty in holding that defendant Nos. 1 to 9 utilized the second floor of the suit building since 1935-36. ( 28 ) sa416.89 Since this case is concerning the defendant Nos. 1 to 9’s eviction from the suit property, I would rather concentrate on their concern to the suit property. As said above, they came to occupy the suit property since 1935-36. They rather belatedly in 1973 or so raised a contention that he had been occupying the suit property as one of the sharers. He obviously was referring to inheritance from his grand-father Hamjabhai to the extent of his 1/6th share in the suit property. The question is - Whether the concern of defendant No.1 and his family member got lost/extinguished by ouster, because they did not assert their right to the property in 12 years from the date of Hamjabhai’s death? Various circumstances are sought to be brought on record to suggest that defendant Nos. 1 to 9 did not claim proprietary concern as sharers to the suit property as under :- Soon after Kamruddin’s death, his son (a) Ibrahim sold one of the houses gifted to his father – Kamruddin. This was sold to one of the sons of Hamjabhai. He too purchased this property on full assumption that he had no concern to the property and it was Kamruddin and his son Ibrahim were absolute owner of the same. This event went uncontested amongst even other sharers, namely, other children of Hamjabhai, which included the mother of defendant No.1. Soon after Kamruddin’s death, the property was mutated in city survey record as well as municipal record. This event also went without contest. ( 29 ) sa416.89 Thereafter, in 1948, on Ibrahim’s death, (b) his children got the suit property in their own names and for all practical purposes enjoyed ownership of the suit property. (c) part of the suit property to one Asgarali. In 1965, the children of Ibrahim mortgaged In 1976, they sold part of the suit property (d) to Ramniklal. I have also noted above the various sale-deeds that took place in that period. (e) It has also come on record that some time in 1936 the Municipal Corporation demanded property tax of the suit property to defendant No.1. To this, defendant No.1 sent a reply in writing saying that he was occupying suit property only as a tenant and the demand of the property tax should be made to the children of Ibrahim. (f) It has also come on record that in 1949 the children of Hamjabhai partitioned other property left behind by Hamjabhai. They did not include the suit property for effecting partition and thereby clearly indicated that they had no concern to the suit property. It is also suggested that they thereby admitted exclusive ownership of Ibrahim and his children. (g) Despite opportunities given to the other sharers, including defendant No.1, none made any ( 30 ) sa416.89 attempt to claim share in the property.

#31. The question is whether this amounted to ouster and loss of their right. The learned District Judge held that such right got extinguished by ouster. The question is whether such conclusion is correct?

#32. In order to support the judgment of the District Court, the learned advocate appearing for the plaintiff placed reliance on the provisions of Section 28 of the Indian Limitation Act, 1908 and equivalent section 27 of the Indian Evidence Act,

#1963. Section 28 of the Indian Limitation Act, 1908, reads as under :- “28. Extinguishment of right to property – At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.”

#33. In order to apply this provision to the case of defendant No.1, the sharer of the suit property, one must first assume that defendant No.1 had cause of action for instituting the suit to assert his right to the property and to get his right and to get partition of the suit property by metes and bounds to the extent of his share. Since beginning or at least since ( 31 ) sa416.89 1936 the defendant No.1 had been occupying the second floor of the suit property. Comparatively, the share of defendant No. 1 who claimed through one of the children of Hamjabhai was quite small compared to the share held by the plaintiff’s predecessors, namely, Ibrahim’s children. Despite all this, it is apparent that defendant No.1 and his family members and even other sharers claiming through other children of Hamjabhai occupied large portions of the suit property. At no point of time in the past Ibrahim or his children asked the defendant No.1 or other sharers to leave the property or to get the property partitioned by metes and bounds and to restrict the defendant Nos.1’s user of the suit property to the extent of his small share. Defendant No.1 openly used large portion of the suit property. He even refused to pay the property tax payable to the Municipal Council. This did not give rise to any friction between the children of Ibrahim and defendant No.1. On the contrary, it has come on record that defendant No.1 at least on one occasion made statement to the parties that Ibrahim’s children were owners of the suit property. This conduct on the part of defendant No.1 would not amount to ouster because apparently Ibrahim’s children did not show their hostility to defendant No.1, nor defendant No.1 did so to them. It is true that on at least 2 or 3 occasions, defendant No.1 had admitted that the children of Ibrahim are exclusive ( 32 ) sa416.89 owners of the suit property and he has no concern to the same. This certainly would not oust the inherited right which defendant No.1 held in the suit property. This can neither be utilized as an 'estoppel' against him. Amongst co-sharers when they occupy the property for the exclusion of the other they do so in the capacity of each others representative. Ibrahim and his children thus would not lose their right to the property neither the defendant No.1 would do so. So, the plaintiff would fail to prove the case of ouster.

#34. The learned Counsel for the plaintiff asserted that the conduct on the part of defendant No.1 would now estop him from raising plea of his share in the suit property, after almost 50 years of silence. He referred to Sections 115 and 116 of the Indian Evidence Act. He also placed reliance on the Supreme Court judgment in the case of Vidya Devi alias Vidya Vati (dead) By Lrs. V/s. Prem Prakash and Others, (1995) 4 SCC

#496. The Supreme Court in this judgment observed as under :- “Normally, where the property is joint, co-sharer are the representatives of each other. The co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co-sharers. As such, it would be difficult to raise the plea of adverse possession by one co-sharer against the other. But if the co-sharer or the joint owner had been ( 33 ) sa416.89 professing hostile title as against other co-sharers openly and to the knowledge of other joint owners, he can, provided the hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of possession, legitimately acquire title by adverse possession and can plead such title in defence to the claim for partition. ... ‘Adverse possession’ means hostile possession, that is, a possession which is expressly in denial of the title of the true owner. The denial of title of the true owner is a sign of adverse possession. In order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. ‘Ouster’ does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co- owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”

#35. The plaintiff, therefore, is trying to suggest that the children of Ibrahim – the co-sharers were professing hostile title as against defendant No.1, continuously for a period of 50 years, which amounted to ouster. However, the facts ( 34 ) sa416.89 mentioned above would not support this conclusion because the children of Ibrahim on one side and defendant No.1 on the other never expressed any hostility towards each other. They did not profess hostile title to each other. The children of Ibrahim were not in possession of the entire property. In-fact, defendant No.1 had been in possession of certain part of the suit property. The ingredients mentioned above for constituting ouster thus are not fulfilled in this case. QUESTION NO. 4 :-

#36. The learned District Judge also held that due to the conduct of defendant No.1 and other sharers the children of Ibrahim became ostensible owner of the suit property. Section 41 of the Transfer of Property Act gives definition of transfer by ostensible owner. It reads as under :- “41. Transfer by ostensible owner – Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.” ( 35 ) sa416.89

#37. The first and foremost objection to this finding recorded by the learned District Judge is that the plaintiff did not plead this point and therefore the learned District Judge was not permitted to give finding on such issue. Had the plaintiff taken this stand in the pleading and had the defendant No.1 had an occasion to deny such status of ostensible owner, the Trial Court would have framed an issue on this point. In that case, the plaintiff would have been under obligation to prove that defendant No.1 had given his consent either expressly or impliedly to Ibrahim and his children for transfer of property. Since such issue based on facts was not raised and since the evidence was not led either in support or against it, there was no possibility for the parties to contest such issue. In view of this, even learned Judge of the Trial Court did not discuss this issue at all. It seems, such issue was not raised even at the time of argument. It seems, this issue was raised for the first time when the appeal was heard. In view of this, even the plaintiff would fail on this point. QUESTION NO. 1 :- ( 36 ) sa416.89

#38. I think this question is of lesser importance compared to the questions discussed above. The question was how the plaintiff would be able to prove the sale-deeds of

07.10.1976, 14.08.1974, 17.09.1976 and 26.09.1976. He did not examine any of the vendors except his step brother Ramniklal. He neither examined any witness to prove the execution of the document. However, in deposition, he clearly mentioned that when the children of Ibrahim one by one executed the sale-deeds in favour of Ramniklal, he was present. Besides, he produced on record, the original sale- deeds. He thus proved the sale-deeds executed in favour of Ramniklal and then examined Ramniklal, who stated that he had executed the sale-deed in favour of the plaintiff. In this way, these sale-deeds were properly proved.

#39. Having held that the gift was incomplete and therefore illegal, the plaintiff would not get title to the suit property to the extent of City Survey No. 2911 and 2912. The plaintiff has come with a case that the suit property is consisting of three City Survey Nos. 2911, 2912 and 2913. The plaintiff has said that prior to the filing of the suit, these three properties have become one unit. It is one building having ground plus two upper floors. It has also come on record that ( 37 ) sa416.89 on the date of filing the suit, though the properties are jointly described as Survey Nos. 2911, 2912 and 2913, there is no division by metes and bounds. It has also come on record that the houses bearing City Survey No. 2911 and 2912 in 1920 were separate and independent from house City Survey No.

#2913. It has come on record that the houses bearing City Survey Nos. 2911 and 2912 were one unit having ground plus two floors whereas house bearing City Survey No. 2913 was a single story building, having only ground floor. The description of house City Survey No. 2913 is found in the sale deed of

#1924. Having gone through the description, it is seen that this single story shop and structure was adjoining the City Survey No. 2912 on East side. It had width of about 6 feet east west and about 70 feed length north south.

#40. As said above, the plaintiff would not prove his title to the extent of the properties described with City Survey Nos. 2911 and 2912, but he is certainly able to prove that the property City Survey No. 2913 belonged to his vendor and he, therefore, gets clear title to it.

#41. The question is how the Court would be able to give possession of this part of the suit property. Though the property described as City Survey No. 2913 has apparently lost ( 38 ) sa416.89 its identity due to amalgamation the decree can still be passed to the extent of property bearing City Survey No. 2913. The location of the house No. 2913 has not changed. Even the length and breadth of the house could not have changed. Only difference that has occurred in this house is that after 1924, two more stories were erected on the ground floor structure. Since this change has taken place prior to filing the suit, the plaintiff should get possession of the Eastern most part of the suit property to the extent of six feet width.

#42. To this, learned advocate appearing for defendant Nos. 1 to 9 asserted that such relief cannot be now granted to the plaintiff. He said, firstly the plaintiff did not come with such case with alternate prayer. Secondly, this point arose between the parties at practically fag end of this appeal and since it has been raised at the stage of fag end, defendant Nos. 1 to 9 would not be able to defend it because they were not aware of this aspect of the case. He also contended that there is nothing on record to presume that the single story structure bearing City Survey House No. 2913, which was produced in 1924 by the predecessor of the plaintiff has been enhanced to add two more story and so the Court should not presume that the suit property consist of three stories structure in place of the original ground floor and structure ( 39 ) sa416.89 bearing house No. 2913. He further contended that the plaintiff ought to have made prayer in the alternative and since alternate relief is not sought as contemplated by Order 7 Rule 7 of the C.P.C., since it is not made, it cannot be granted at this fag end. Order 7 Rule 7 of the C.P.C. reads as under :- “Relief to be specifically stated— Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. ”

#43. On one hand it enjoins the plaintiff to be precise in drafting a prayer clause, on the other it gives ample scope to the court for molding relief. Having regard to the facts and circumstances and the long standing pendency of this suit, I am of the view that the plaintiff should be awarded appropriate relief to the extent of eastern portion of the suit property. O R D E R

#1. The appeal is partly allowed. ( 40 ) sa416.89

#2. The impugned Judgments and decrees are set aside.

#3. The plaintiff is declared owner in respect of the property house No. 2913, which is described above and is admeasuring six feet two inches in width and seventy feet one inch in length lying on the East side of the suit property including all its vertical development that exists today. The plaintiff is also held to be entitled to possession of the same and the defendants shall accordingly deliver possession of this part of the suit property to the plaintiff.

#4. No order as to costs [A.V. NIRGUDE, J.] snk/2011/JUL11/sa416.89