The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO. 442 OF 2014 In the matter of an Appeal under Section-100 of the Code of Civil Procedure assailed the judgment dated 29.07.2014 passed by the learned District Judge, Cuttack in RFA No.80 of 2012 setting aside judgment and decree dated 30.04.2012 and 10.05.2012 respectively passed by the learned Civil Judge (Jr. Division), Salipur in Title Suit No. 70 of 1998. ---- Sk. Samsul @ Manua & Others ::: Appellants -versus- Ansar Khan ::: Respondent Appeared in this case by Hybrid Arrangement (virtual/physical mode) ============================================== For Appellants - M/s. A.C. Mohapatra, A.K. Panda, P.K. Sahoo, Advocate. For Respondent - M/s. A.P. Bose, R.K. Routray, S.K. Jotaki, Advocates. CORAM: MR. JUSTICE D.DASH DATE OF HEARING::03.02.2023, DATE OF JUDGMENT: 28.02.2023 D. Dash, J. The Appellant by filing this Appeal under Section-100 of the Code of Civil Procedure 1908 (for short, ‘the Code’) have assailed the judgment and decree passed by the learned District Judge, Cuttack in RFA No.80 of 2012. By the same, the Appeal filed by the present Respondent being the
Legal Reasoning
aggrieved Plaintiff in Title Suit No.70 of 1998 of the Court of learned Page 1 of 10 // 2 // Civil Judge (Junior Division), Salipur under Section-96 of the Code has been allowed and thereby, his right, title and interest over the suit land has been declared and he has been held entitled to recover the suit land from the Appellants (Defendants) in the event of dispossession; in further granting injunction. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 3. Plaintiff’s case is that the suit land originally stood recorded in the name of Zobeda Bibi in the Consolidation Record of Right. She had sold the same to Abdul Sattar and Khatiza Bibi by registered sale-deed dated 06.08.1980 (Ext.2) and pursuant to the same, had delivered possession of the sold land to those vendors. That Zobeda again repurchased the property, which is the suit land from Abdul Sattar and Khatiza Bibi under registered sale-deed dated 09.08.1985 (Ext.3) and got back the possession. So, Zobeda became the title holder and owner of the suit property and possessed the same. She died issueless. She had a sister named Zohora Bibi and a brother Karim Baig, who died issueless. Zohora has a son named Ibrahim and three daughters namely, Khatiza Bibi, Soberu Bibi and Gulsan Bibi. After death of Zobeda, her sister Zohora possessed the suit land and thereafter, her son and daughters came to possess the same and they have sold the suit land to the Plaintiff Page 2 of 10 // 3 // by three registered sale-deeds (which have been admitted in evidence and marked as Ext.4, Ext.5 and Ext.6). The Plaintiff claims to be in possession of the said property being the lawful purchaser from the time of his purchase. It is alleged that the Defendants on the basis of illegal and void documents once attempted to interfere in his possession. So, he had filed the suit for injunction, but as during pendency of the suit, the Defendants forcibly dispossessed the Plaintiff; he has sought for further reliefs for declaration of title and recovery of possession. 4. The Defendants in their written statement admitted that Zobeda being the original recorded owner had transferred the suit land to Abdul Sattar and Khatiza Bibi by registered sale-deed. But it is said then said Zobeda cancelled that registered deed by executing a deed of cancellation on 28.12.1984; and on the same day, executed one registered deed of Hibanama (deed of gift). That Hibanama was in favour of Sk. Gora. The Defendants being the legal heirs of Sk. Gora, thus claim to have the right, title and interest over the suit property and they say that they are in possession of the same. 5. On the above rival pleadings, the Trial Court framed as many as seven issues. The answer to the crucial issue with regard to the competing claim of title over the suit property being returned against the Plaintiff, the suit was dismissed. Page 3 of 10 // 4 // 6. The Plaintiff thus being non-suited, having carried First Appeal has been unsuccessful in the said move. Hence the present Second Appeal is at the instance of the Defendants who have suffered from the said decree passed by the First Appellate Court. 7. The Appeal has been admitted to answer the following substantial questions of law:- (A) Whether the learned Appellate Court is justified in accepting the legal heir certificate vide Exts.13 and 14 produced at appellate stage under Ordser-41, rule-27 of the Code of Civil Procedure, when a finding to the contrary had been rendered by the learned Court below and when the Appellants had no scope to lead rebuttal evidence? (B) Whether the learned Appellate Court is justified in holding that Ext.E, the Hibanama did not convey good title, as the donor of the same had no subsisting title by the date of execution of Ext.E, as by then there was a prior transfer made by the donor in favour of Abdul Sattar and Khatiza Bibi vide Ext.2 and by then the donor had no title and as by cancelling the same, under Ext.A, the effect of a registered transaction cannot be taken away? 8.
Legal Reasoning
Learned Counsel for the Appellants submitted that when the status of the vendors of the Plaintiff is not under challenge in saying that they are not the legal heirs of Zobeda and Zohora, the First Appellate Court while admitting the legal heirs certificates under Ext.13 and 14 as additional evidence and then on the basis of the same when has gone to Page 4 of 10 // 5 // hold that the Plaintiff being the purchaser of the property has acquired the title over the same by virtue of the registered sale-deeds, these Defendants being not given the scope to lead rebuttal evidence, the findings of the First Appellate Court that Ext.E, Hibanama did not convey any title in favour of the donee as the donor at that time had no subsisting title since she had already executed the sale-deed, Ext.2 is unsustainable. 9. Learned Counsel for the Respondent submitted all in favour of the findings returned by the First Appellate Court. He submitted that the First Appellate Court has rightly held that by virtue of said Hibanama, Ext.E, no right, title and interest has been conferred on Sk. Gora and on his death upon the Defendants. According to him, the erroneous view taken by the Trial Court that the provision of Section-43 of the Transfer of Property Act having come into play, said Hibanama would spring into life and operate as such has been rightly rectified by the First Appellate Court by assigning all good and justifiable reasons. 10. Keeping in view the submissions made, I have carefully read the judgments passed by the Court below. 11. Undisputed facts emerge that the suit land originally belonged to Zobeda Bibi and stood recorded in her name in the Consolidation Record of Right, Ext.1. It is said by the Defendants that a sale-deed purported to have been executed by Zobeda Bibi on 06.08.1980 in Page 5 of 10 // 6 // favour of one Abdul Sattar and Khatiza Bibi, when came to the knowledge of Zobeda and she found that fraud was practiced upon her, she had cancelled it by executing a deed of cancellation on 28.12.1984. It has however been proved that Zobeda Bibi again purchased the very same property from those Abdul Sattar and Khatiza Bibi by registered sale-deed dated 09.08.1985. This shows that Zobeda by such purchase admitted that by her earlier sale-deed dated 06.08.1980, those Abdul Sattar and Khatiza Bibi had duly acquired title over the property in question. By such subsequent purchase, Zobeda gave a complete goodbye to her earlier stand as regards fraud etc. and clearly appears to have intended to get back the title over the property which she got by such purchase from Abdul Sattar and Khatiza Bibi. As it is when the deed of cancellation has no value in the eye of law the subsequent purchase by Zobeda from those Abdul Sattar and Khatiza Bibi run wholly against all such reasons for cancellation and thereby, it has been admitted by Zobeda Bibi that she had duly sold the land to Abdul Sattar and Khatiza Bibi and they were clothed with title and possession in respect of the suit land. So she on repurchase regained the title and possession over it which was lost by her sale. It is the case of the Defendants that Zobeda on 28.12.1984 having executed that deed of cancellation of the registered sale-deed dated 06.08.1980, on that day executed a registered Hibanama and therefore, they having got the Page 6 of 10 // 7 // property by virtue of said Hibanama, are the owners of the said property after having the accepted the Hiba (gift) and coming to possess on that basis. 12. The Plaintiffs further case is that by mere execution of a deed of cancellation, the legal effect of the registered sale deed executed by Zobeda on 06.08.1980 in favour of Abdul Sattar and Khatiza Bibi was not taken away when admittedly, that registered sale deed was not declared void and inoperative in the eye of law. Therefore, when that Zobeda executed the registered Hibanama on 28.12.1984, she had no right, title and interest over the property on her hands and that she having later on got by way of repurchase from her vendees i.e. Abdul Sattar and Khatiza Bibi on 09.08.1985 whose title till then stood thus admitted; the execution of that Hibanama and acceptance of Heba (gift), even being taken as proven facts; the Defendants did not derive any title and interest over the property, as by then, Zobeda was not at all having the right of ownership over the said property so as to alienate. It is the settled position of law that the principle of law contained in section-43 of the Transfer of Property Act does not come to operate in case of a gift. The gift made by the donor on a day having no right over the gifted property would not come to be fed back when that donor becomes the recipient of said property at a later point of time. If there is application of provision contained in section-43 of the T.P. Act; then it Page 7 of 10 // 8 // would destroy and grossly offend the very rudimentaries of a gift which finds defined in section-122 of the Act. The donor being not in a position to part with the property, when makes the gift, it is a gift in vacuum which is not capable of being given nor stand for acceptance. Furthermore, a gift cannot be in respect of a property with a hope of future acquisition by the donor. In case of sale, when there is involvement of consideration, that is not in case of a gift. The gift has defined in section-122 of the T.P. Act stands completely on a different footing than that of a sale as defined in section-54 of the Act and so also other alienations as recognized in law. The gift is a class of alienation by itself wherein the gift has to be of certain existing immovable property which is capable of being acceptance and that must be accepted during the lifetime of the donee. Thus, it is seen that Zobeda as on the date of gift was having no right, title and interest over the property, and still then if, had executed the said Hibanama, it would not even worth the paper written on; since the gifted property was not existing in the hands of the donor i.e. Zobeda who merely executing the deed of cancellation cannot claim that the gifted property was restored to her when admittedly having executing the deed of cancellation, she at least had the knowledge of that registered sale-deed which as per law unless is set aside, cannot be said to be having no legal effect. Page 8 of 10 // 9 // 13. Coming to the question of the right, title and interest of the Plaintiff in claiming the suit land, it is seen that he claims to have purchased the suit land from the sons and daughters of the sister of Zobeda by virtue of the said registered deed of sale standing in his name. He has sought for a decree of declaration of right, title, interest and recovery of possession of the suit land from the Defendants. It is submitted that the son and daughters of Zohora are not succeeding to the property of Zobeda in accordance with Muslim Law of Inheritance. Even if such a submission is accepted, then first point arises that these Defendants are in no way connected with the family of the Zobeda. The Plaintiff is the surviving male of the family as is seen from the genealogy, which has been given by the Plaintiff. The Defendants when base their case upon the cancellation deed executed by Zobeda on 28.12.1984 cancelling the registered sale-deed dated 06.08.1980 in favour of Abdul Sattar and Khatiza Bibi; the status of Khatiza as the daughter of Zohora is not in dispute. The denial of the status of the vendors of the Plaintiff in the written statement is too vague and not at all specific. The Defendants having not denied the status of the Plaintiff as to son of Nawab as per the genealogy, he is now the sole surviving male heir in the family to succeed. So, irrespective of the sale-deeds and without taking aid from that even if we say that he has not proved the Page 9 of 10 // 10 // status of his vendors; the Plaintiff’s title over the suit land has to be declared when the claim of the Defendants is negated. The legal heir certificate does not effect the legal right of a party to act to his / her deprivation of the status as claimed. In the given case, when the Defendants are not related to the family of Zohora or Zobeda; the First Appellate Court with the available evidence in my view also has not committed any error in answering the issue in favour of the claim/ case of the Plaintiff and thus the claim of the Defendants as to have been grossly prejudiced being not provided with the scope to lead evidence to counter the same, is of no such legal significance, in the facts and circumstances as obtained in evidence and as emerge from rival pleadings. 14. The substantial questions of law are accordingly answered and those run in favour of confirmation of the judgment and decree passed by the First Appellate Court. 15. The Appeal stands dismissed. No order as to cost. True Copy Narayan (D. Dash), Judge. Page 10 of 10