The High Court
Case Details
- 1 - NC: 2025:KHC:15137 RFA No. 493 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL NO.493 OF 2015 (PAR) BETWEEN: SMT. SHAMSHAD BEGUM, MAJOR IN AGE, D/O LATE JABBER SHARIEFF, SINCE DEAD. NAYAZ PASHA S/O RIYAZ PASHA, AGED ABOUT 35 YEARS, NO. 11, 3RD CROSS, 3RD MAIN , RAHAMATHNAGAR, BANGALORE-560 032. (AS PER ORDER PASSED ON 10.01.2020) (BY SRI A.S GUPTA, ADVOCATE FOR LR OF APPELLANT) …APPELLANT Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA AND: 1. SRI HUMAYUN SHARIEFF S/O LATE JABBER SHARIEFF, AGED ABOUT 53 YEARS, R/A NO.224, ASTANA-E-KHAJA DHARIB NAWAZ, KHAJA BLOCK, D.J HALLI, BANGALORE-560 045. 2. SMT. DILSHAD BEGUM, AGED ABOUT 55 YEARS, D/O LATE JABBER SHARIEFF, W/O ANWAR PASHA, R/A NO.38, BIDC BTB AREA, 30TH CROSS, 26TH MAIN, TILAKNAGAR, ROSHAN COLONY BANGALORE-560 041. - 2 - NC: 2025:KHC:15137 RFA No. 493 of 2015 3. SRI SALEEM SHARIEFF, AGED ABOUT 50 YEARS, S/O LATE JABBER SHARIEFF, R/A MODI ROAD, 11TH CROSS, D.J HALLI, BANGALORE-560 045. …RESPONDENTS (BY SRI MOHAMED SAIFULLA KHAN, ADVOCATE FOR R1 & R2 R3 IS SERVED) THIS RFA IS FILED U/SEC 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.02.2015 PASSED IN O.S.NO.11/2005 ON THE FILE OF XLIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, CCH 44, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, THROUGH VIDEO CONFERENCING AT KALABURAGI BENCH, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE C M JOSHI CAV JUDGMENT (PER: HON'BLE MR. JUSTICE C M JOSHI) This appeal by appellant/defendant No.1 arises out of the judgment in OS No.11/2005 passed by learned XLIII - 3 - NC: 2025:KHC:15137 RFA No. 493 of 2015 Additional City Civil and Sessions Judge (CCH-44) Bangalore, dated 06.02.2015. 2. The parties would be referred to as per their rank before the trial Court for the sake of convenience. 3. The factual matrix of the case is as below:
Legal Reasoning
Plaintiff Nos.1 and 2 are the brother and sister of defendant Nos.1 and 2 and children of Jabbar Sharieff. The said Jabbar Sharieff died intestate on 02.09.2003 leaving behind the plaintiffs and defendants. The deceased Jabbar Sharieff had moveable and immoveable properties and he had purchased the suit schedule property during his lifetime. Later, Jabbar Sharieff borrowed a loan from defendant No.3-Bank by mortgaging the suit schedule property, by way of deposit of title deeds. Therefore, the original documents of the suit schedule property are with defendant No.3-Bank. It was alleged that defendant No.1 who is residing in one of the portions of the property is collecting the rents from the tenants in the ground floor and she has not paid the share of the plaintiffs to them. - 4 - NC: 2025:KHC:15137 RFA No. 493 of 2015 The plaintiffs have been asking for their share of the rents and defendant No.1 was postponing the same. The plaintiffs learnt that defendant No.1 is negotiating to sell the suit schedule property falsely representing that she is the absolute owner. The plaintiffs believed that defendant No.1 has created certain forged documents and is on the verge of alienating the property. The plaintiffs contended that if Jabber Sharieff had executed any documents in favour of defendant No.1, he would not have mortgaged the property and raised loan on it and therefore, defendant No.1 is not the absolute owner of the suit schedule property on the basis of the forged documents. Defendant No.1 did not account for the rents received and also did not heed to the request to partition the suit schedule property. Therefore, the plaintiffs contend that plaintiff No.1 is entitled for 2/6th share and plaintiff No.2 is entitled for 1/6 share in the suit schedule property and as such, a decree be passed entitling the plaintiffs for their respective shares. - 5 - NC: 2025:KHC:15137 RFA No. 493 of 2015 4. On issuance of summons, defendant No.1 appeared and she filed her written statement. She alleged that the suit of the plaintiffs is speculative and is not maintainable either in law or on facts. She contended that the property described does not belong to the plaintiffs in any way. She contended that the suit schedule property was purchased by Jabbar Sharieff during his lifetime and he has gifted the said property to defendant No.1 under oral Gift Hiba dated 08.11.1996. The said Hiba has been acted upon and in pursuance to it, the name of defendant No.1 has been entered in the revenue records of the Bangalore City Corporation. The taxes are being paid by defendant No.1 continuously and therefore, the suit of the plaintiffs is liable to be dismissed. Inter alia, defendant No.1 also contended that her father, Jabbar Sharieff, who was the original owner of the suit schedule property had executed oral gift under the Mohammedan Law on 08.11.1996, which was notarized before a notary and was acted upon. She also contended that the plaintiffs, as well as defendant No.2 were present at the time of the said - 6 - NC: 2025:KHC:15137 RFA No. 493 of 2015 Hiba and they have subscribed to the document dated 08.11.1996. It is also contended that defendant No.1 allowed her father, Jabbar Sharieff, to raise loan from defendant No.3-Bank, since the defendant No.1 was in financial needs to improve the suit schedule property and the said Bank insisted that the loan will be granted to a person on whose name the registered Sale Deed stands. Accordingly, defendant No.1 requested her father to raise the loan from defendant No.3-Bank to her benefit and accordingly, the loan was raised, and the said the loan was discharged by her. The receipt for payment of the dues to the Bank is in custody of defendant No.1 and as such, the plaintiffs on this ground cannot dispute the document of
Legal Reasoning
Hiba. Therefore, it was contended that it is not open to the plaintiffs to seek partition and separate possession of the alleged share in the suit schedule property and they are estopped from challenging the Hiba. 5. Defendant No.2 appeared and has filed his written statement. He supports defendant No.1. He - 7 - NC: 2025:KHC:15137 RFA No. 493 of 2015 reiterates that Jabbar Sharieff had executed a Hiba in favour of defendant No.1 and therefore, the suit is not maintainable. He also admits that he is also a subscriber to the Hiba dated 08.11.1996 and in pursuance to the said document, the revenue entries have been effected in the records of the Bangalore City Corporation and therefore, he requests for dismissal of the suit. 6. On the basis of the above contentions, they trial Court framed the following issues: 1) Whether plaintiffs prove that they are entitled to a share in the suit schedule property and if so to what share? 2) Whether defendant No.1 proves that his father late Sri Jabbar Sheriff on 8.11.1996 has gifted the suit property in her favour orally and delivered the possession of the same to her and hence, she has become absolute owner of the same? 3) Whether plaintiffs are entitled to the relief sought for? 4) What decree or order? 7. Plaintiff No.1 examined himself as PW1 and Ex.P1 was marked in the evidence. On behalf of - 8 - NC: 2025:KHC:15137 RFA No. 493 of 2015 defendants, defendant No.1 examined herself as DW1 and Exhibits D1 to D8 were marked in the evidence. 8. During pendency of the suit, it appears that an objection was raised when defendant No.1 tendered the document dated 08.11.1996 in evidence. In pursuance to such objections raised, an order came to be passed by the trial Court on 09.02.2012 and it was ordered that the document can be marked subject to objection that is raised by the plaintiffs with regard to its registration and the defendant No.1 has to pay the stamp duty on the alleged Hiba in accordance with Section 28B of the Karnataka Stamp Act, 1957. It appears that defendant No.1 had paid a sum of Rs.9,900/- towards the deficit of the stamp duty and penalty, and the same was endorsed by the trial Court on the said document. Thereafter, it appears that the plaintiffs, again raised a contention that the stamp duty should have been paid on the market value of the suit schedule property. Thereafter, the trial Court, without determining whether the stamp duty has to be - 9 - NC: 2025:KHC:15137 RFA No. 493 of 2015 paid on the market value or on the gift, it proceeded with the matter and without passing any order on the same rejected the contention of defendant No.1 and proceeded to hear the arguments. It appears from the records that the Trial Court also rejected the prayer of the defendant No. 1 to send the document to the District Registrar for registration by order dated 23-07-2013. 9. The trial Court after hearing the arguments, held that defendant No.1 has failed to prove the Hiba in her favour and consequently, acceded to the contention of the plaintiffs and decreed the suit. Obviously, issue No.1 and 3 were answered in the affirmative and issue No.2 was answered in the negative. 10. Being aggrieved by the said judgment, defendant No.1 is in appeal before this Court. 11. During the pendency of this appeal, the appellant/defendant No.1 has filed an application under order 41 Rule 27 of CPC seeking to produce the certified copy of document dated 08.11.1996 in evidence. The - 10 - NC: 2025:KHC:15137 RFA No. 493 of 2015 affidavit filed in support of the application states that her Advocate on record before the trial Court was hands-in- glove with the plaintiffs and he intentionally and deliberately did not mark and exhibited the document dated 08.11.1996. It is contended that the said document dated 08.11.1996 shows that defendant No.1 is the owner of the suit schedule property and the plaintiffs were parties to the said document. Therefore, it is contended that the said document goes to the root of the case and she despite being diligent, due to her illiteracy and ignorance of law, she could not prosecute her case before the trial Court. Hence, she has sought for permitting the additional evidence to be produced. 12. On issuance of notice, respondent Nos.1 and 2 have appeared through their counsel and respondent No.3 did not appear, despite service of notice. 13. During pendency of this appeal, the appellant has also filed an application in IA No.2/2024 seeking to - 11 - NC: 2025:KHC:15137 RFA No. 493 of 2015 appoint the Court Commissioner for examination of the document dated 08.11.1996, for stay, etc. 14. The arguments by the counsel appearing for the appellant/defendant No.1 and the learned counsel for respondent Nos. 1 and 2 plaintiffs were heard. 15. The learned counsel for appellant would submit that the oral gift among the Mohammedans is permitted and the Hiba is not compulsorily registrable. It is submitted that the trial Court did not consider the position of law in a proper manner and it erroneously fell into error by saying that the oral gift needs registration and the payment of the stamp duty. It is contended that the appellant/defendant No.1 has been cheated and the judgment is vitiated by suppressing of a fact. It is contended that the plaintiffs were parties to the document of Hiba dated 08.11.1996 and therefore, the impugned judgment is not sustainable in law. 16. In this regard, he relies on the judgment in the case of Hafeeza Bibi and others Vs. Sheikh - 12 - NC: 2025:KHC:15137 RFA No. 493 of 2015 Farid1. He also relies on the judgment in the case of Achal Mishra Vs. Rameshankar Singh2 to contend that an interlocutory order which is a step in the procedure that leads to final decree, if had not been appealed against, may be a ground in the appeal arising out of the decree. He submits that though the trial Court had passed an order directing the appellant/defendant No.1 to pay the stamp duty as per market value of the property that would not come in the way of the appellant putting forth their case on merits in this appeal. 17. Per contra, learned counsel for the respondent Nos.1 and 2 plaintiff Nos. 1 and 2 contend that the Jabber Sharieff died in the year 2003 and the Hiba is of the year 1996. It is submitted that after 1996, Jabbar Sharieff had mortgaged the property to defendant No.3-Bank and loan was obtained by him. The original declaration of Hiba have not been marked in evidence, defendant No.1 has not 1 (2011) 5 SCC 654 2 (2005) 5 SCC 531 - 13 - NC: 2025:KHC:15137 RFA No. 493 of 2015 proved the same. He submits that the plaintiffs never admitted that they were parties to the document dated 08.11.1996. It is submitted that Hiba was not brought to the notice of the Bank, and therefore, despite the said Hiba, the Jabbar Sharieff was the owner in possession of the suit schedule property. In other words, it is submitted that Hiba was not acted upon and the mortgage of the suit schedule property to defendant No.3 - Bank is an evidence in that regard. Hence, he seeks dismissal of the appeal. 18. Having heard the arguments by learned counsel appearing for the appellant and respondent Nos. 1 and 2, the points for consideration are as below: (i) Whether the application filed by the applicant under Order 41 Rule 27 CPC deserves to be allowed? (ii) Whether the trial Court is justified in insisting for payment of stamp duty on deed dated 08-11-1996? - 14 - NC: 2025:KHC:15137 RFA No. 493 of 2015 (iii) Whether the mortgage of the suit schedule property in favour of defendant No.3-Bank would come in the way of Hiba and whether it was not acted upon? Re.Point No.1: 19. The first aspect to be considered is regarding the question whether the application filed under order 41 Rule 27 of CPC deserves to be allowed? 20. The appellant contends that though she has produced the said document before the trial Court, it was not marked due to an inefficient handling by her counsel. She alleged a professional misconduct against her own counsel before the trial Court. It is pertinent to note that, it is not the case of the appellant that the said document of 08.11.1996 was not produced before the trial Court. It is her specific case in the affidavit filed in support of the application that the said document was not marked. It is also evident from the trial Court records that the said document has been produced before the trial Court, but when it was tendered for evidence, it was objected by the - 15 - NC: 2025:KHC:15137 RFA No. 493 of 2015 plaintiffs and as such, the trial Court passes an order on the same. It is pertinent to note that when the document was already produced before the trial Court, an application before this Court again to produce the certified copy of the said document under order 41 Rule 27 of CPC do not arise. The appeal being continuation of the Original proceeding, this court can very well consider those such document. Therefore, the application filed is redundant and as such, the same deserves to be rejected. Re.Point Nos. 2 and 3: 21. The next aspect to be considered is, whether a Hiba is a compulsorily registerable and the stamp duty is attracted? 22. It is settled position of law that an interlocutory order which is a step in the procedure that leads to final decree, if had not been appealed against, may be a ground in the appeal arising out of the decree. the judgment in - 16 - NC: 2025:KHC:15137 RFA No. 493 of 2015 the case of Achal Mishra Vs. Rameshankar Singh3 lays down as below: “All these aspects came to be considered by this Court in Satyadhyan Ghosal v. Deorajin Debi wherein, after referring to the decisions of the Privy Council, it was held that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken, can be challenged in an appeal from a final decree or order. It was further held that a special provision was made in Section 105(2) of the Code of Civil Procedure as regards orders of remand where the order of remand itself was made appealable. Since Section 105(2) did not apply to the Privy Council and can have no application to appeals to the Supreme Court, the Privy Council and the Supreme Court could examine even the correctness of an original order of remand while considering the correctness of the decree passed subsequent to the order of remand. The same principle was reiterated in Amar Chand Butail v. Union of India [AIR 1964 SC 1658] and in other subsequent decisions.” Therefore, the present appeal has to be considered in the light of the law laid down in above decision. 3 (2005) 5 SCC 531 - 17 - NC: 2025:KHC:15137 RFA No. 493 of 2015 23. The judgment of the Apex Court in the case of Hafeeza Bibi Vs. Shiek Farid referred supra, lays down that Hiba is not compulsorily registerable. The Transfer of Property Act carves an exception under Section 129 that registered deed is not necessary. This aspect was considered in detail and after observing all the conflicting judgments in this regard, the Apex Court culls out the position of law in the following words: “27. In our opinion, merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not become a formal document or instrument of gift. When a gift could be made by a Mohammadan orally, its nature and character is not changed because of it having been made by a written document. What is important for a valid gift under Mohammadan Law is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting a valid gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recites the factum of prior gift then - 18 - NC: 2025:KHC:15137 RFA No. 493 of 2015 such deed is not required to be registered but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does not seem to us to be in conformity with the rule of gifts in Mohammadan Law.” (emphasis supplied) 24. It is worth to note that the trial Court in its order on admissibility of the document of Gift under Hiba dated 08.11.1996 has observed the law laid down by the Apex Court in the case of Hafeeza Bibi. However, it fails to understand the dictum of the Apex Court. It appears that it was misled by the head notes, and it did not venture into reading the entire judgment. In para 32, the Apex Court states as below: “32. The trial court on consideration of the entire evidence on record has recorded a categorical finding that Shaik Dawood (donor), executed the gift deed dated 5-2-1968 in favour of the donee (Mohammed Yakub), the donee accepted the gift and the donor handed over the properties covered by the gift deed to the donee. The trial court further held that all the three essentials of a valid gift under the Mohammadan Law were satisfied. The view of the trial court is in accord with the legal - 19 - NC: 2025:KHC:15137 RFA No. 493 of 2015 position stated by us above. The gift deed dated 5- 2-1968 is a form of declaration by the donor and not an instrument of gift as contemplated under Section 17 of the Registration Act. As all the three essential requisites are satisfied by the gift deed dated 5-2-1968, the gift in favour of Defendant 2 became complete and irrevocable.” (emphasis supplied) 25. Therefore, it is evident that Hiba is not necessarily registerable. The verdict of the Apex Court is clear in this regard. Not only that, in the case of Rasheeda Khatoon Vs. Ashiq Ali4 the position has been made clear. 26. In a recent judgment the Apex Court has again reiterated this position. In the case of Mansoor Saheb and Others Vs Salima by Lrs. and Others5 it was held as below. “28. Under Mohammedan Law, a gift is to be effected in the manner laid down under the law. If 4 (2014) 10 SCC 459 5 2024 SCCOnline SC 3809 - 20 - NC: 2025:KHC:15137 RFA No. 493 of 2015 the conditions prescribed by that law are fulfilled, the gift is valid, even though it is not effected by a registered instrument. But if the conditions are not fulfilled, the gift is not valid even though it may have been effected by a registered instrument. Therefore, a valid gift could be made by oral statements as well so long as the three requirements as discussed above are met thereby. This is because registration is not a requirement which obviates the need for a gift to be reduced in writing.” (emphasis supplied) 27. Therefore, non admitting the document of Hiba dated 08.11.1996 is prima facie incorrect and illegal. There was no necessity of rejecting the said document from being admitted in evidence. It is also pertinent to note that defendant No.1 has paid a sum of Rs.9,900/- towards the deficit of stamp duty as a penalty. However, it was objected by the plaintiffs stating that the stamp duty should have been paid on the market value. Obviously, the Gift Deed is among the family members. Therefore, the observation of the trial Court that the document was not - 21 - NC: 2025:KHC:15137 RFA No. 493 of 2015 permissible to be marked in evidence is illegal and not in consonance with law. 28. Be that as it may. Now, the appeal is before this Court. It is the case of the appellant that the plaintiffs are also parties to the said document of Hiba. This aspect is disputed by the plaintiffs. They allege that the document is forged one. Therefore, the evidence needs to be appreciated after the said document is admitted in evidence. Without such evidence being led, it is not possible for the Court to decide the effect of Hiba. 29. Regarding the requirements of Hiba also, it is necessary that evidence has to be appreciated. Obviously, evidence was not led on the said document of Hiba and therefore, in the absence of any such evidence, which should have been allowed by the trial Court to be adduced, this Court cannot venture into the same. 30. Coupled with this, there is another aspect which needs to be appreciated. It is the case of defendant No.1, appellant that she was in need of money and - 22 - NC: 2025:KHC:15137 RFA No. 493 of 2015 defendant No.3 -Bank insisted that the mortgage has to be executed by the person who possess a valid title deed. Defendant No.1 having no such title deed in her favour, requested her father to mortgage the property and obtain the loan for the improvement of the property. Accordingly, Jabbar Sharieff had obtained the loan, and he had mortgaged the suit schedule property. 31. It is pertinent to note that even if we reject the contention of the appellant that at her instance, Jabbar Sharieff had obtained the loan by mortgaging the property, the fact remains that the property was mortgaged to defendant No.3-Bank by Jabbar Sharieff. Evidently, the loan has been repaid by defendant No.1. All the documents are in the possession of the appellant/defendant No.1. In other words, the mortgage was redeemed by defendant No.1 and when the plaintiffs are claiming rights in respect of the suit schedule property then they are bound to pay their share of the loan amount to defendant No.1. The question as to whether the - 23 - NC: 2025:KHC:15137 RFA No. 493 of 2015 mortgage subrogates in favour of defendant No.1 is a matter which also needs to be considered. 32. When this Court has come to the conclusion that preventing defendant No.1 from adducing evidence in respect of the document of Hiba, dated 08.11.1996 is illegal, the matter needs to be remanded to the trial Court. It is necessary that the document need to be marked in evidence and any such evidence that would be permissible to prove the said document, has to be allowed. The trial Court having clearly erred in rejecting to admit the document of Hiba, shall now admit the same in evidence and permit defendant No.1 to adduce evidence in that regard. It shall also examine the question Whether the three ingredients of Hiba have been complied or not? and render its findings on the same. The procedure followed by the trial Court in rejecting a legally admissible document from being marked in evidence being illegal, the impugned judgment vitiates. Hence, the appeal deserves - 24 - NC: 2025:KHC:15137 RFA No. 493 of 2015
Decision
to be allowed. In the result, point Nos.2 is answered in the affirmative and point No. 3 is redundant as the matter is to be remanded to the trial Court. Hence, the following: ORDER (i) I.A.No.2/2024 is dismissed. (ii) The appeal is allowed. (iii) The impugned judgment and decree passed by the trial Court in OS No.11/2005 dated 6-2-2015 is set aside. (iv) The matter is remanded to the trial Court with a direction to allow defendant No.1 to tender the document of Hiba dated 08.11.1996 to be admitted in evidence and allow such evidence on the said document. (v) Needless to say that the plaintiffs are entitled to cross examine the appellant. (vi) After such evidence being led, the trial Court shall render its finding as to whether the requirements of Hiba are complied or not and then render its judgment in accordance with law. - 25 - NC: 2025:KHC:15137 RFA No. 493 of 2015 (vii) The trial Court is requested to expeditiously dispose off the matter by strictly adhering to Order XVII of CPC. (viii) Both parties are directed to appear before the trial Court on 3rd June 2025 without further notice in this regard. (ix) Registry to send records expeditiously. (x) All pending IAs are disposed off. Sd/- (C M JOSHI) JUDGE tsn* List No.: 19 Sl No.: 2