Aravind Kumar, J.@mdashThis is a Defendants'' appeal questioning the correctness and legality of the judgment and decree passed in O.S. No. 4692/1997 dated 10-4-1997 on the file of the VIII Additional City Civil Judge, Bangalore whereunder the suit filed by the Appellants for declaration came to be dismissed.
2. The facts leading to the filing of this appeal are as under and the parties are referred to as per their rank in the trial Court.
2.1. The Plaintiffs instituted a suit in O.S. No. 4692/1997 on the file of the City Civil Court, Bangalore, seeking the following relief :
(i) To declare that the Plaintiffs as the absolute owners of the schedule property and that the Defendants have no manner of right, title or interest in the property;
(ii) To issue an order of permanent injunction restraining the Defendants from interfering with the peaceful possession and enjoyment of the schedule property in any manner;
(iii) To declare that the sale deed registered as No. 8244 dated 28.4.1994 at pages 71-74 in Book I Volume 5086 of 1993-94 between the Defendants as null and void; and
(iv) To grant such other consequential relief including costs as this Hon''ble Court deem fit in the circumstances of the case in the interest of justice and equity.
2.2. It was contended in the plaint that the suit schedule property bearing No. 52, formed in Sy. No. 88/4 in Venkateshpura, Kadugondanahalli Dakhle, Bangalore North, which has been described in the plaint and hereinafter referred to as suit schedule property was purchased by second Defendant under a registered sale deed dated 6-1-1979. It was contended that suit schedule property was gifted by way of Hiba; delivered possession to the Plaintiffs on 23-9-1991 and on the same day original title deeds of the suit schedule properties were handed over to the Plaintiffs. It was also contended that second Defendant wrote confirmatory letters to the concerned authorities namely the Municipal authorities to change over the khatha to the names of the Plaintiffs. It was further contended consequent to Hiba Plaintiff took possession of the suit schedule property and enjoyed all the rights of ownership and got the khatha transferred to their name and leased out the shop premises to different Defendants and also applied for regularisation of construction. Hence, it was contended that Plaintiffs were in possession and enjoyment of rights over the suit schedule property. It was contended that second Defendant left suit schedule property and was living separately with the second wife and he never interfered with possession, right, title and interest of the Plaintiffs.
2.3. It was contended that process server came over to the suit schedule property to serve the Court summons to the second Defendant in respect of an eviction petition filed by the first Defendant against the second Defendant in HRC 10357/1995 before Small Causes Court and he was informed that the second Defendant is not living in the suit schedule property. It was contended by the Plaintiff in the suit that immediately they suspected foul play and Plaintiffs made enquiries and found that first Defendant had filed an eviction petition falsely contending that it is leased out by first Defendant to second Defendant on a monthly rent of Rs. 2,800/- showing the suit schedule property as the petition schedule premises. It was contended by the Plaintiffs that they made enquries with the first Defendant and he produced the registered sale deed dated 26-2-1994 claiming that it has been sold by the second Defendant to the first Defendant as such the Plaintiffs contended that an application for getting themselves impleaded in the said HRC petition was filed and same came to be rejected and immediately on dismissal of the said application the Plaintiffs approached the Civil Court for redressal of their grievances contending that Defendants have no manner of right title and interest over the suit schedule property and the proceedings in HRC. No. 10357/1995 has been filed by the first Defendant against second Defendant to defraud the Plaintiffs and dispossess them from the suit schedule property. On these contentions it was contended that the cause of action for the suit arose on 23-9-1991 when the second Defendant made Hiba in favour of the Plaintiffs and on subsequent dates when khatha was transferred to their names and also on 10-3-1997 when their application for getting themselves impleaded in HRC. No. 10357/1995 was rejected by the Small Causes Court. On these grounds the prayer above referred to was sought for by the Plaintiffs.
2.4. On service of notice Defendants filed their written statement. The first Defendant contended that there was no cause of action for the suit and all the contentions raised in the plaint came to be denied. It was further contended that there was no gift whatsoever since the second Defendant had the intention of allowing the Plaintiffs to act under the gift since second Defendant had exercised right of ownership and there was no valid gift and as such it was contended the gift was invalid. It was contended that Plaintiffs did not have any right whatsoever except being the family member of second Defendant and in order to take undue advantage of the first Defendant''s sympathy shown to second Defendant and permitting him to continue in the premises and at his request it had been let out to the second Defendant since he had no other alternate accommodation. It was also contended that the suit is barred by law of limitation and it was also contended that there was no cause of action and the one alleged in the suit was barred by limitation. On these grounds the first Defendant sought for dismissal of the suit.
2.5. The second Defendant entered appearance and filed the written statement and admitted the execution of Hiba in favour of the Plaintiffs on 23-1-1991. It was contended by the second Defendant that it is his self acquired property and subsequent to Hiba in favour of the Plaintiffs he was residing along with his 2nd wife and Plaintiffs are residing in the suit schedule property and contended that when Hiba was executed Plaintiff No. 2 was a minor and he was taking care of the Plaintiffs. It was contended though first Plaintiff was taken care of monetarily by the second Defendant and though he assured that he would maintain the second Defendant and the second Defendant''s wife and children till his death, Hiba came to be executed on the said bonafide plea. It was contended by second Defendant that though first Plaintiff went to gulf country and started earning Rs. 15,000/- per month but he did not care to send money to the second Defendant as promised and as such it was contended that he was in a financial crunch and there was no help from the Plaintiffs, and at that point of time he decided to cancel Hiba and accordingly sent notices during 1993. In order to eke out livelihood, he decided to sell the suit schedule property and accordingly sold the same to first Defendant on 18-4-1984. He has contended that after canceling Hiba and selling the property the Plaintiffs started quarrelling with this Defendant and it was contended that Hiba was invalid and it was well within his right to revoke the Hiba. Second Defendant contends though Hiba was made actual physical possession was not given to the Plaintiffs and it has been contended that there was no alternate accommodation for the second Defendant and as such he requested the first Defendant to permit the second Defendant to be in possession as a tenant and to receive rent and on the permission granted to the first Defendant second Defendant started residing as tenant on a monthly rent of Rs. 2,800/- till this Defendant secured alternate accommodation. Second Defendant contends that since rent was not paid for long first Defendant filed eviction petition in HRC. No. 10357/1995 and obtained an order of eviction against this Defendant and he admits therein that he participated in the eviction proceedings and did not file objections since he was a defaulter in payment rent. Hence, it was contended that Plaintiffs did not have semblance of right to squat over the suit schedule property which has been sold by him to first Defendant and specific contention is taken as per Sections 161 of the Mohammedan Law, that Hiba in favour of two persons without specifying division is not valid and a contention was taken that no division was taken simultaneously with the transfer and after revocation the alleged Hiba has no authority and does not have the force of law. He would contend that khata stood in his name as on the date of filing of the written statement on 27-1-2000 and all other contentions raised in the plaint came to be denied.
2.6. On the basis of the pleadings of the parties, the trial Court framed the following issues for its consideration :
ISSUES :
(i) Whether the Plaintiffs prove that they are the absolute owners of schedule property and the Defendants have no manner of right, title or interest in the property?
(ii) Whether the Plaintiffs prove that the Sale Deed dated 18.4.1994 between Defendants is null and void?
(iii) Whether the Plaintiffs prove the alleged interference of the Defendants?
(iv) Whether the suit is barred by limitation?
(v) Whether the Court Fee paid is insufficient?
(vi) Whether the Defendants prove that there is no cause of action for the suit?
(vii) Whether the Plaintiffs are entitled to declaratory relief as prayed for?
(viii) Whether the Plaintiffs are entitled for permanent injunction as prayed for?
(ix) What order or decree?
2.7. The Plaintiffs in order to prove their case examined second Plaintiff as P.W.1 and got marked Exs.P.1 to P. 18. Defendant No. 1 got himself examined as D.W.1 and got marked Exs.D.1 to D.4. Second Defendant got himself examined as D.W.2 and did not get any documents marked. On hearing the arguments advanced by the learned advocates and on considering the pleadings and evidence on record, the trial Court by its judgment and decree dated 10-4-2007 has dismissed the suit. It is this judgment and decree which is assailed in the present appeal.
3. Heard Sri. Iqbal A. Shariff, learned Counsel appearing for the Appellant and Sri. B.N. Anantha Narayana learned advocate for first Respondent and Sri. Iqbal Patel, learned Counsel appearing for the second Respondent.
4. It is the contention of Sri. Shariff that second Defendant purchased the suit schedule property during his life time under Registered sale deed dated 6-1-1979 and constructed a residential building with three shops and he was in possession and enjoyment of the same. The said second Defendant had two natural sons namely the Plaintiffs herein and the second Defendant. On 23-9-1991 he gifted the suit schedule property to the Plaintiffs by Hiba by delivering possession of the suit schedule property to the Plaintiffs and also handed over the connected title documents to the Plaintiffs and confirmed the Hiba by writing to the concerned authorities to change over the khatha to the name of the Plaintiffs. Consequent upon this Plaintiff is said to have taken possession according to Mr. Shariff after getting the khatha transferred to their names and applied for regularisation of construction. It is contended in the suit that Plaintiffs are in possession and enjoyment of the suit schedule property and on execution of Hiba second Defendant left the suit schedule property and was living with his second wife and at no point of time he interfered with the possession, right, title and interest of the Plaintiffs.
5. It is contended by Mr. Shariff that during 1996 process server from Small Causes Court came near the suit schedule property to serve Court summons to second Defendant in respect of an eviction petition filed by first Defendant against second Defendant in HRC 10357/1995. It was contended in the suit that Plaintiffs made enquiries and found that first Defendant had filed an eviction petition as referred to above claiming himself to be the owner and depicting second Defendant as the tenant and on enquiry with the first Defendant they came to know that he had purchased the suit schedule property and immediately thereafterwards an application for getting impleaded themselves as parties to the eviction proceedings was filed by them which application was dismissed in the year 1997 and immediately on such dismissal the present suit has been filed seeking for declaration as stated herein above. It was contended that on 1-8-1991 the first wife of the second Defendant i.e., Plaintiffs mother expired and on the 40th day ceremony the second Defendant gifted the property in favour of the Plaintiffs i.e., on 23-9-1991 and confirmed the Hiba. Second Defendant has given consent letter to the Corporation authorities for change of khatha in favour of the Plaintiffs by letter dated 25-9-1991 and confirmed the Hiba declaration has been given by the second Defendant himself which is dated 23-9-1991 as also an affidavit of even date and contends that the said Hiba is in consonance with the Mohammedan Law and as such trial Court has dismissed the suit without examining as to whether Hiba is revoked in accordance with law. He would submit, trial Court also did not examine as to whether Hiba suffers from any infirmities and contends that as per Sections 167 of Mohammedan Law once gift is made, it cannot be revoked except by a decree of Court and contends that finding of the trial Court on issue No. 1 is erroneous since the trial Court has not examined as to whether Hiba suffers from any infirmities and trial Court has also not considered the fact that Plaintiffs have proved lawful possession over the suit schedule property as on the date of the suit. Mr. Sharif would contend by drawing the attention of the Court to paragraph 2 of the written statement filed by the second Defendant whereunder he admits execution of Hiba in favour of the Plaintiff of 23-9-1991 and when such admission is there the burden is not on the Plaintiffs to disprove these facts since admitted facts need not be proved. He would contend that when second Defendant has taken a contention that Hiba executed by him is revoked. The burden is on the second Defendant to prove this fact and the second Defendant having not proved this fact trial Court ought not to have dismissed the suit. He would draw the attention of the Court to Ex. P.2 to show that possession has been delivered and Ex.P.8 to P. 11 and P. 13 to evidence the fact that khatha is in the name of the Plaintiffs and they have been paying the taxes. He would also submit that admittedly second Defendant had delivered original title deeds of the suit schedule properties to the Plaintiffs and these facts clearly go to show that Plaintiffs are in possession of the suit schedule property.
6. He would contend that Defendant No. 2 has not proved revocation of gift and there has been no cross-examination of P.W.1 on Exs.P.2 and P.3 and in view of the admission by the second Defendant about the execution of Hiba and also in view of the fact that as per Section 167 of Mahomedan Law there is no revocation of Hiba, the suit ought to have been decreed by the trial Court. He would submit that suit was well within time and the trial Court committed a grave error in answering issue No. 4 by holding that the suit is barred by limitation and contends that Article 58 of the Limitation Act is attracted to the facts of the case. Since the sale deed is executed on 28-2-1994 and suit having been filed on dismissal of I.A. for impleading i.e., 10-3-1997 it is within the period of limitation. In support of his submission he would rely upon the judgment of the Rajasthan High Court in the case of
7. Per contra Sri. B.N. Anantha Narayana, learned cousnel appearing for first Defendant would contend that at the first instance there is no gift at all as required under Mahomedan law and to buttress his argument he would draw the attention of the Court to Section 123 of the Transfer of Property Act whereunder gift by transfer is defined and hastens to add that there is a savings clause u/s 129 of Transfer of Property Act which excludes the provision of T.P. Act in case of gift made by Mahomadens and as such burden being cast on the Plaintiffs to prove that there was a valid Hiba, they have failed to establish this fact. He would submit that under Ex.P.2 Plaintiffs are claiming that second Defendant has gifted the property and once the right in presenti is created by a document it would part take the character of gift and once it part takes the gift deed it becomes compulsorily registerable under Registration Act and proper duty is required to be paid under the Karnataka Stamp Act. He would submit that in view of Plaintiffs themselves contending that gift was made under Ex.P.2 the said document is to be construed as gift deed and the savings clause found in Section 129 of the Transfer of Property Act has to be excluded to the present document. He would also draw the attention of the Court to contend that Plaintiffs have no where stated in the plaint there was a Hiba earlier and subsequently it is confirmed under Ex.P.2. By taking through Ex.P.2 in extenso, the learned Counsel for the first Respondent would contend that it is not a confirmatory declaration but it is in fact a gift deed by itself.
8. He would submit that first Defendant no doubt has admitted in paragraph 2 of the written statement about having executed a gift deed/Hiba and contends that written statement is to be read in its entirety, since the first Defendant has denied the Hiba and there being no cause of action for the suit by drawing attention to paragraph 4 and paragraph 9 of the written statement filed by the first Defendant.
9. Mr. B.N. Anantha Narayana would contend that Article 59 of the Limitation Act is attracted and suit ought to have been filed within three years from the date of execution of sale deed Ex.D.1 since P.W.1 in his cross-examination dated 20-7-1995 admits that he had knowledge of the execution of the sale deed by second Defendant in favour of the first Defendant in the year 1994 itself and as such contends that when limitation is reckoned from 28-2-1994 the suit ought to have been filed on or before 28-2-1997 and thus suit filed on 20-6-1997 is barred by limitation. He would submit that there is no Hiba at all in the instant case and would draw the attention of the Court to Section 149 of the Mohammedan Law as to what are the requisites of a Mohammedan gift and submits that same are conspicuously absent in the instant case. He would draw the attention of the Court to written statement filed by the first Defendant whereunder the execution of Hiba is denied. In support of his submission he relies upon the judgment of Sunkesula Chinna Budde Saheb v. Raja Subbmma reported in 1954(2) ML.J. 113.
10. Sri. B.N. Ananthanarayana further contends that averments made in written statement filed by the second Defendant would go to show that there is no valid gift-Hiba made by him in favour of the Plaintiffs, no possession was delivered, no separate portions were allotted to each of the Plaintiffs and hence the second Defendant has revoked the alleged gift said to have been made by him in favour of the Plaintiffs. He would draw the attention of the Court to paragraph 3 of the plaint whereunder Plaintiffs have contended that gift was made in the year 1991 and thus it goes to show that gift could not have been made earlier to 1991. He would submit that even this fact is incorrect and to drive home this point he would draw the attention of the Court to the evidence of P.W.1 whereunder the witness has stated for the first time in the affidavit filed in lieu of examination-in-chief stating that the gift was executed in the year 1990. He would contend that the pleadings and examination-in-chief are contrary to each other and if the pleadings are accepted the evidence is to be discarded and vice-versa. He would submit that paragraphs 4 and 5 of the Chief examination of P.W.1 is contrary to plaint averments.
11. He would submit that no possession admittedly has been delivered on 23-9-1991 since the second Defendant was very much residing there even as per Ex.P.2 and if the pleadings of the Plaintiffs as stated in the affidavit is to be accepted then there is no date of oral gift and if the written gift as per Ex.P.2 is accepted then two things would follow namely :
(i) it is contrary to the pleadings and the document Ex.P.2 has to be considered as gift deed requiring registration and stamp duty. He would draw the attention to the Court to the contents of Ex.P.2 and by reading it in extenso he would submit that contents of the said document would reveal that it is not recording of past events and recording of the present events and the recitals thereof show that his right is divested on the said date and this goes to show that there is no earlier transfer as pleaded in paragraph 4 of the examination in chief.
12. On this ground he would contend that once it is a gift in presenti the trappings of the Hiba would not be there and it becomes a gift as defined under the Transfer of Property Act and consequently Section 123 of the Transfer of Property Act gets attracted and hence he submits that the said Hiba cannot be acted upon.
13. Mr. Iqbal Patel, learned Counsel appearing on behalf of the second Respondent would contend that Plaintiff has not stated in the plaint as to which portion the second Defendant executed gift and it is also not stated as to which portion they are in possession pursuant to Hiba, He would also submit that second Defendant did not seek for revocation as required under Sections 167 of Mohamedan Law since there was no valid gift in the eye of law. He would also submit that Ex.P.14 namely the judgment passed in HRC 10357/1995 would clearly go to show that second Defendant is in possession of the suit schedule property.
14. In reply to the contentions of the first Respondent''s counsel Sri. B.N. Ananthanarayana who has contended that the suit was barred by limitation, Mr. Shariff appearing for the Appellants/Plaintiffs to the reply by contending that Section 14 of the Limitation Act, 1963 would be applicable since the Plaintiffs were bonafide agitating before wrong forum i.e., by filing an application for impleading in HRC 10357/1995 which application came to be dismissed on 10-3-1997 and as such this period namely from the date of filing fo the application 9-2-1996) till date of disposal of the application (10-3-1997) is to be excluded. In support of this submission he relies upon the following judgment :
2003 SCC (6) 423 Arm Group Enterprises Ltd., v. Waldorf Restaurant and Ors. (Paragraph 27)
He would also submit the word gift is not used in Ex.P.2. and it is a religious gift and as such it does not require registration and relies upon the following judgment:
And also contends that in view of admission made by the second Defendant in the written statement admitted facts need not be proved. Accordingly seeks for allowing of the appeal.
15. In support of his submissions on this issue he relies upon the following judgments :
AIR 1974 J & K 59 (FB) Ghulam Ahmad Sofi v. Mohd. Sidiz Dareel and Ors.
(ii)
(iii) AIR 1962 AP 199 Inspector General of Registration and Stamps v. Smt. Tayappa Begum.
(iv) 1998(2) CLJ 172 Mahendra Apex Corporation Ltd. v. Jafrulla and Ors.
(v) AIR 1974 J & K 59 (FB) Ghulam Ahmad Sofi v. Mohd. Sidiz Dareel and Ors.
16. Having heard the learned advocates appearing for the parties the following points arise for my consideration :
(i) Whether there is a valid Hiba made by the second Defendant in favour of the Plaintiffs as per Mahommedan law.?
(ii) If so, is there a valid revocation of the Hiba by the second Defendant?
(iii) Whether the Hiba said to have been made on 23-9-1991 has to be construed as gift as per Section 122 of Transfer of property Act, 1882 and it would not fall under Savings clause of Section 129 of Transfer of Property Act and consequently requiring payment of stamp duty and requires Registration?
(iv) Whether the suit in question is governed by Article 58 or Article 59 of the Limitation Act and is it barred by limitation?
(v) Whether the judgment and decree passed in O.S. No. 4692/1997 dated 10-4-2007 is required to be affirmed or reversed?
(vi) To what order?
17. Re:Points 1 to 3: Point Nos. 1 to 3 formulated herein above being inter-linked with each other are being taken up for consideration together. In order to appreciate the contentions of the parties, it would be necessary to state the background of the case.
BACKGROUND OF THE CASE
18. Plaintiffs 1 and 2 are the sons of second Defendant. The second Defendant had purchased the property bearing site No. 52 formed in Sy. No. 88/4 situated at Venkateshpura, Kadugondanahalli dakhle, Bangalore North Taluk (hereinafter referred to as the suit schedule property) under a registered sale deed dated 6-1-1979 and was in possession and enjoyment of the same which fact is not in dispute.
19. Plaintiffs contended that on 23-9-1991 their father gifted the suit schedule property to them by way of Hiba with delivery of possession and also handed over title deeds of the suit schedule property to them and wrote a letter to the Municipal authorities to change the khata of suit schedule property to the names of Plaintiffs. It was contended that consequent to said Hiba khata of suit schedule property was transferred to their names and thereafterwards second Defendant started living separately with his second wife.
20. During the year 1997 summons in HRC 10357/1995 was attempted to be served at the suit schedule property on second Defendant and it is during this period they made enquiries about said case and came to know that first Defendant had filed an eviction petition in H.R.C.10357/1995 before the Small Causes Court against their father 2nd Defendant herein seeking his eviction from suit schedule property. Hence, an application was filed by them to get themselves impleaded which came to be dismissed on 10-3-1997 and immediately thereafterwards they filed the present suit on 20-6-1997 with a prayer to declare that alleged sale deed said to have been executed in favour of first Defendant by the second Defendant.
FINDINGS ON POINTS 1 TO 3
21. It would also be necessary to look into Sections 123 and 129 of the Transfer of Property Act since u/s 129 of Transfer of Property Act a gift executed by a Mahomaden would get excluded from the provisions of Transfer of Property Act and consequently the provisions of Karnataka Stamp Act and Registration Act would also get excluded. However, if the gift deed does not come within the ambit of exclusion clause as provided u/s 129 of the Transfer of Property Act it would automatically fall u/s 123 of the Transfer of Property Act and the provisions of Stamp Act and Registration Act would automatically would get attracted. Hence, point No. 1 to 3 are considered together.
22. Under the Mahomaden Law gifts have been defined under chapter XI which is to the following effect :
Sections 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.
Persons who are capable of making gifts the extent of donor''s powers are enumerated in the succeeding Sections of Sections 138 and the three essential gifts to constitute a valid gift under the Mahomaden law under Sections 149 reads as under :
Sections 149. The three essentials of 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 Section 150. If these conditions are complied with, the gift is complete(k)
If the gift is made in favour of more than one person that is where donees are more than one it would be covered by Sections 161 of the Mahomaden law which reads as under :
Ss 161. Gift to two or more donees. A gift of property which is capable of division to two or more persons without specifying their shares or without dividing it is invalid, but it may be rendered valid if separate possession is taken by each donee of the portion of the property given to him or if there is a subsequent arrangement between all the donees with regard to the possession of the property gifted. This rule does not apply to the case mentioned in the third Exception to Section 160(h), nor, it is conceived, to the cases mentioned in the other Exceptions.
Further under what circumstances the gift can be revoked is enumerated in Sections 167 which reads as under :
Sections 167, Revocation of gifts. (1) A gift may be revoked by the donor at any time before delivery of possession. The reason is that before delivery there is no completed gift at all.
(2) Subject to the provisions of Sub-section (4), a gift may be revoked even after delivery of possession except in the following cases :
(a) when the gift is made by a husband to his wife or by wife to her husband;
(b) when the donee is related to the donor within the prohibited degrees;
(c) when the donee is dead;
(d) when the thing given has passed out of the donee''s possession by sale (e), gift or otherwise;
(e) when the thing given is lost or destroyed;
(f) when the thing given has increased in value, whatever be the cause of the increase (f);
(g) when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding (g);
(h) when the donor has received something in exchange (iwaz) for the gift (see Sections 168 and 169).
(3) A gift may be revoked by the donor, but not by his heirs after his death (h). It is the donor''s law that will apply to a revocation and not that of the donee (i).
(4) Once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. Until a decree is passed, the donee is entitled to use and dispose of the subject of the gift(j).
TRANSFER OF PROPERTY ACT, 1882
Sections 123. Transfer how effected: For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.
Sections 129. Saving of donations mortis causa and Muhammadan Law: Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law.
23. In the instant case Plaintiff claims in the suit that on 23-9-1991 that is on the 40th day ceremony of their mother second Defendant made Hiba in their favour. In order to ascertain as to what was the contention of the Plaintiffs at the first instance it would be necessary to look into Ex. P. 14 namely the certified copy of the order sheet in H.R.C. 10357/1995 since it is their contention that they became aware of sale deed executed by 2nd Defendant in favour of 1st Defendant only at that point of time. It is the claim of the Plaintiffs that when Court process server attempted to serve the summons in the said HRC case on their father i.e., second Defendant showing the address of suit schedule property as his place of residence they came to know about the pendency of the said suit eviction petition and second Defendant having executed sale deed dated 28-2-1994 Ex.D.2 in favour of the first Defendant. Said application for impleading came to be dismissed on 10.3.1997 as per Ex.P.14. The said application under Order 1 Rule 10 of the Code of CPC had been filed by the Plaintiffs on 9-2-1996 as seen from the order sheet of HRC 10357/1995 as per Ex.P.14.
24. A perusal of Ex.P.2 namely declaration of Hiba (oral Hiba) would reflect that declarant therein namely second Defendant has stated to the following effect.
This declaration of HIBANAMA is executed to transfer the right of ownership over the same in favour of my two sons mentioned above.
AND NOW WHEREAS I further declare that, I am out of lover and affection have come forward to effect this Hibanama in favour of my two sons, to enable them to enjoy the property jointly in equal share.
I declare that, my two sons mentioned above, have also agreed to this HIBA and given their consent for the execution of this Deed.
I further declare that, by virtue of this Hibanama my two sons have been put in possession of this property and they have actually got full right from this day onwards to utilise or alienate in whatever manner they deemed fit, for which, I have absolutely no objection.
25. The foundation of gift having been made by their father is laid in the plaint by the Plaintiff''s and relevant pleading is at paragraph 3 which reads as under :
On 23-9-1991, the second Defendant gifted the schedule property to the Plaintiff by way of Hibbawith possession of the schedule property to the Plaintiffs and handed over the connected title documents to the Plaintiffs and also wrote to the concerned authority to change over the khata in the name of the Plaintiffs. Copies of Hibba deed and letter enclosed as Annexures ''E'' & ''C'' respectively.
(Emphasis supplied by me)
26. As against this pleading the evidence that has been tendered by the second Plaintiff as P.W. 1 is to the following effect :
I submit that during the year 1990, our father went for second marriagewith one Smt. Shamshad Begum, and started living with her also separately. He used to visit our house also. At that time our father Gifted the above said property to me and my brother by way of Oral Hibbaand adviced us to collect the rents from the Tenants of the shops. My elder brother used to collect the rents.
(Emphasis supplied by me)
These three are to be read together namely Hiba, pleading and the evidence to examine as to whether it would constitute a valid gift as required under Mahomaden Law.
27. A gift by a Mahomaden can be either oral or written. In the instant case the Plaintiffs claim in the suit that on 23-9-1991 the second Defendant gifted the suit schedule property to the Plaintiffs by way of Hiba. On the day of declaration of Hiba as per Ex. P. 2 an affidavit also came to be executed by the second Defendant which document came to be marked as per Ex. P.3. In the said affidavit filed which is at Ex.P.3 a declaration has been made which reads: "In lieu of my oral Hiba" which presupposes that there was an oral Hiba made. The recitals in Ex.P.2 reflects that declaration has been made under Ex.P.2 on 23-9-1991 stating "this declaration of HIBANAMA" which means that gift had been executed prior to the execution itself. This conclusion is supported by virtue of admission made by second Plaintiff in his examination-in-chief itself wherein P.W.1 states that at the time of the second marriage of his father (second Defendant) during the year 1990 he made oral Hiba. If the oral Hiba had been made by 2nd Defendant in the year 1990 as contended by the Plaintiff in his affidavit, the said fact would have found a place in Ex.P.2. It does not reflect as such. On the other hand declaration as per Ex.P.2 reflects as though Hibernoma is executed transferring the ownership on the said date that is 23-9-1991 and gift was not in the year 1990 as contended by the second Plaintiff P.W.1 in his examination in chief. This would clearly go to show that there is inconsistency between the pleadings and evidence on record. Thus, exact date of making Hiba itself becomes a doubtful event. Even in paragraph 5 of examination-in-chief P.W.1 states that his mother expired on 1-8-1991 and after the 40th day ceremony the second Defendant made an affidavit confirming the earlier oral Hiba. Thus, if pleadings are accepted, evidence tendered by the Plaintiff would get erased and if evidence tendered by P.W.1 is to be accepted pleadings would recede to the background. In conclusion it can be said that pleadings and the evidence are at variance and they do not go hand in hand.
28. u/s 123 of the Transfer of Property Act gift is defined as to what would constitute a valid gift. Section 129 of the Transfer of Property Act excludes gifts made by a Mahomedan. If the gift is not in accordance with Mahomedan law consequently Section 123 would come into play and the provisions of the relevant Stamp Act and Registration Act would also get attracted. In the instant case a defence has been set up that there is no valid gift and even otherwise there has been revocation of the Gift as per Sections 161 and 167 of Mahomaden law. In the instant case, Plaintiff has to make out that there is a valid gift or Hiba. No doubt in paragraph 3 of the written statement first Defendant has admitted about Hiba. However, at paragraph 4 it has been denied. To constitute a valid gift under Mahomedan Law three essential ingredients as per Sections 149 of Mohammedan Law are to be satisfied and they are as follows :
(i) Declaration of gift by the Donor.
(ii) Acceptance of the gift, express or implied, by or on behalf of the donee; and
(iii) Delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150.
If these conditions are fulfilled the gift would be complete. In order to examine this issue it would be necessary to have a look at Ex. P. 2 namely the declaration of Hiba, A reading of Ex.P. 2 would reveal that the declaration of Hibanama is made on 23-9-1991. P.W.1 has stated in his evidence that gift was made in the year 1990 at paragraph 4 of the examination-in-chief. It has been stated that in the year 1990 the father of the Plaintiff went for second marriage and started living with his second wife separately. It is also stated at that time, the father gifted the above said property. As held supra there is variance and inconsistency between pleadings and the evidence on record and as per the said Hiba there is no separate portion allotted to each of the Plaintiffs which is one of the essential criteria to constitute a valid gift under Mahomaden Law when gift is made in favour of two or more persons as per Sections 161 of the Mahomedan law which is extracted herein above. Under the document Ex.P.2 entire property has been gifted jointly in favour of both the Plaintiffs and it is not the case of Plaintiffs that each of them have taken their portions separately and neither it comes under the exception clause of Section 160. In view of the same, I am of the considered view that there is no valid gift or Hiba by the second Defendant in favour of Plaintiffs.
29. Mr. Shariff would contend that revocation of gift is not in accordance with Mahomedan law as required u/s 167 for the reason that the possession of the property in question has not been delivered to the donee namely the Plaintiff as required u/s 160 of the Mahomedan law and in view of the fact that there is no gift or Hiba question of revocation would not arise. In view of the same contention of Mr. Shariff that revocation as pleaded is not in accordance with law cannot be accepted.
30. By reading of Ex.P.2 it would not reflect that it is recording of a past event. It reflects as acts done in presenti. Even on the date of execution of Ex. P. 2 second Defendant was in possession of suit schedule property. Once it is held possession in presenti and it is not a transaction recording a past event and the gift in question would not come within the exclusion clause of Section 129 but would fall within the inclusion clause of Section 123 of the Transfer of Property Act. Hence, the document Ex.P-2 would become compulsorily registerable and appropriate Stamp duty as per the provisions of the Karnataka Stamp Act is required to be paid. Even otherwise no witnesses who are said to have affixed their signature to Hibanama at Ex. P.2 are examined as required u/s 68 of the Indian Evidence Act. At this juncture it would be relevant to analyse the decisions relied upon by the learned Counsel for the Defendant Sri.B.N. Anantha Narayana. which are as under :
(i) AIR 1974 J & K 59 (FB) Ghulam Ahmad Sofi v. Mohd. Sidiz Dareel and Ors.
In Ghulam Ahmad''s case it has been held that when contemporaneous document is executed the gift in that case or the instrument would require to be registered as per Section 17 of the Registration Act. Thus the gift has to be antecedent Act. Then only the Registration Act would not be applicable since it does not created make or transfer the ownership from the executant to the person in whose favour it is executed. In the instant case a perusal of Ex. P. 2 would reveal that transfer of ownership has taken place under the document and it is a right in presenti created by the executant in favour of the donees. The relevant clause in Ex. P. 2 reads as under :
This declaration of ''HIBANAMA'' is executed to transfer the right of ownership over the same in favour of my two sons mentioned above
Hence it has to be held that the ratio laid down in this case is applicable to the facts of the present case to hold that document Ex.P.2 is not a document of confirming an antecedent act.
(ii)
In Chota Uddandu''s case at paragraph 10 it has been held that if there is a contemporaneous document it should be registered and if the gift is antecedent and the debt is subsequent merely evidencing the past transaction it does not required registration because it does not by itself make or complete the gift. However, in the instant case the Plaintiff himself contends and assert that under Ex.P.2 gift has been made and as such has sought for declaration in the prayer and thus it cannot be held that under Ex.P.2 it reflects the past transaction. In view of the same the Hiba Ex.P.2 claimed by the Plaintiff under this instrument cannot be held as a gift as contemplated under the Mohamedan law.
(iii) AIR 1962 AP 199 Inspector General of Registration and Stamps v. Smt. Tayappa Begum.
In I.G. of Regns & Stamps, the very same issue namely as to when a gift by a Mahomedan would constitute a valid gift came to analysed and was held as follows :
Para 8. The main test to be applied in these cases is whether the parties regarded the instrument to be a receptacle and appropriate evidence of the transaction. Was it intended to constitute the gift or was it to serve as a record of a past event? If it is a mere memorandum of the things already transacted and did not embody the gift, no registered document is necessary.
(iv) 1998(2) CLJ 172
Mahendra Apex Corporation Ltd. v. Jafrulla and Ors.
In M/s. Mahendra Apex Corporation Ltd. ''s case the Division Bench of the Andhra Pradesh High Court has reiterated as to when the document would become compulsorily registrable and not when an instrument records a past transaction. In the instant case the right, title and interest of the second Defendant has been reflected by him under Ex.P.2 and as such it becomes a compulsorily registrable document u/s 17 of the Registration Act.
31. Mr. Shariff would contend that in view of the admission made by the second Defendant in written statement at paragraph 3 admitting execution of Hiba the written statement will have to be looked into as a whole. In this regard it would be necessary to extract the judgments which are as follows :
This plea was however negatived by the High Court at it has never been taken when the case was remanded to the First Appellate Court by judgment dated 8th Feb. 1961. Besides the question requires investigation into certain facts which was not possible in the Second Appeal.
The High Court however reversed the finding of the First Appellate Court on the question of limitation relying on the so-called admission of the Defendant in the written statement and the evidence of the witnesses produced on behalf of the Defendant Virtually, the High Court has made a fresh appraisal of the evidence and has come to a different finding contrary to the finding recorded by the First Appellate Court which the High Court could not do in the exercise of power u/s 100 of the Civil P.C. Even on merits, if the High Court had to rely upon the alleged admission in the written statement, the admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other. The High Court, in our opinion, has erred in making a fresh appraisal of the evidence to come to a different conclusion. Even otherwise, the Plaintiff has to stand on his own strength.
(ii)
It is clear from the judgment of the High Court that but for the aforementioned statement of the Appellant, the High Court would not have disturbed the finding of the trial Court as regards the properties covered by Exh.B-6. Before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission. There is no difference in the nature of the acquisitions made under Exhs.B-2 to B-5 and B-7 and that made under Exh.B.6. They were all made during the lifetime of Reddinaidu.
(i) It has been held by the Hon''ble Apex Court that admission in the written statement must be taken as a whole and it is impermissible to rely upon a part of the admission and ignoring the other. Though in paragraph 3 of the written statement Defendant No. 2 has admitted about the execution of Hiba on 23-9-1991 in the succeeding paragraphs it has been stated as to why the Hiba is invalid and as to why he invoked or revoked the Hiba. Hence, the contention of Mr. Shariff that admitted facts need not be proved, principle would not be applicable to the facts of the present case.
(ii) In Chikkam Koteswara Rao''s case The Hon''ble Supreme Court, has examined the effect of an admission vis-a-vis Section 17 of the Evidence Act and while interpreting the same has held that admissions must be clear in their meaning and conclusive and there should not be any doubt or ambiguity and only in such circumstances said admission can be taken into consideration. In the instant case Defendant No. 2 having admitted that he had executed a Hiba on 23-9-1991 has denied that there is a valid Hiba in the succeeding paragraphs. In view of the same, it cannot be held that admission is clear and unequivocal.
32. It would also be necessary to note that mere marking of the documents would not dispense with the proof of the documents or contents thereof and the Hon''ble Supreme Court in the case of
The Plaintiffs wanted to rely on Exhibits A-12 and A-13, the day book and the ledger respectively. The Plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the Plaintiffs'' books of account became important because the Plaintiffs'' accounts were impeached and falsified by the Defendants'' case of larger payments than those admitted by the Plaintiffs. The irresistible inference arises that the Plaintiffs books would not have supported the Plaintiffs.
In view of the above, I am of the considered view that point Nos. 1 to 3 has to be held in favour of the Respondent and against the Appellant.
33. Re:Point No. 4:The learned Counsel for the Appellant has contended that the suit is governed by Article 58 of the Limitation Act whereas the learned Counsel for the Respondent has contended that the suit is governed by Article 59 of the Limitation Act. These two Articles are extracted herein below :
THE LIMITATION ACT, 1963
| Description of suit | Period of limitation | Time from which period begins to run |
| 1 to 57 | xxxx | Xxxx |
| 58. To obtain any other declaration. | Three years | When the right to sue first accrues. |
| 59. To cancel or set aside an instrument or decree or for the rescission of a contract. | Three years | When the facts entitling the Plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. |
In the instant case Plaintiff has pleaded that cause of action for the suit arose when on 23-9-1991 the date of Hiba and on subsequent dates when the khata of suit schedule property was transferred to their names and also on 10-3-1997 when application for impleading in H.R.C. 10357/1995 was rejected by the Court of Small Causes. Certain undisputed dates which are required to be noted for the purpose of examination of this point would be as follows :
(i) 23-9-1991: Date of Hiba.
(ii)28-1-1994: Date of sale deed from second Defendant to first Defendant selling the suit schedule property.
(iii)9-2-1996: I.A. filed by Plaintiffs under Order 1 Rule 10 Code of CPC filed in H.R.C. No. 10357/1995.
(iv)10-3-1997: I.A. for impleading filed in H.R.C. 10357/1995 was dismissed.
(v)20-6-1997: Present suit filed.
34. In so far as suits relating to declaration is governed by Part III of the Schedule to Limitation Act, 1963. Article 58 stipulates three years period of limitation to obtain any other declaration and it would begin to run when the right to sue first accrues. In the instant case sale deed Ex.D.1 has been executed by the second Defendant in favour of the first Defendant on 28-2-1994 which Plaintiffs claim as null and void. Thus, it would be necessary to examine as to when Plaintiffs came to know about their father having sold the property to the first Defendant. In the cross-examination of P.W.1 dated 20-9-2005 Plaintiff admits that in the year 1994 itself he came to know about his father having sold the property to the first Defendant. His admission reads as under :
In the year 1994, I came to know that my father sold the schedule property to the first Defendant
Thus, when the Plaintiff does not specify either in the pleading or in his evidence as to the exact date on which he came to know about the sale made by the second Defendant in favour of the first Defendant it has to be inferred from facts that as on the date of execution of the sale deed itself Plaintiff was aware of the said fact. Sale deed in respect of suit schedule property came to be executed by 2nd Defendant in favour of 1st Defendant on 28/2/1994 and suit ought to have been filed within three (3) years from date of execution of sale deed, i.e, on or before 28/2/1997. Admittedly, suit has been filed on 26-9-1997 and hence it was barred by limitation.
35. Under Article 58 of the Limitation Act, the right to seek declaration would accrue when the right to sue first accrues. In the instant case, the Plaintiff No. 2 i.e., P.W.1 in his cross-examination dated 20-9-2005 has admitted he came to know about sale in 1994 itself. Thus, it would emerge that right of the Plaintiff to sue the Defendants accrued in the year 1994. Plaintiff has neither stated in the present suit or in his examination-in-chief as to the exact date of his knowledge namely, the date on which he came to know about execution of the sale deed. Thus, it is to be presumed the date of knowledge is the date of execution of sale deed since it is a registered document. Though in the examination-in-chief he contends that only when the process server attempted to serve the summons of HRC No. 10357/1995 in 1997 enquiries were made and he came to know about the sale deed executed by his father in favour of the first Defendant and as such knowledge is to be attributed to the year 1997 same cannot be accepted since, Plaintiff himself admits in the cross-examination as extracted herein above that he came to know about the execution of the sale deed by his father in favour of first Defendant in 1994, Plaintiff ought to have explained this admission. In view of the same not having been explained, the trial court was justified in arriving at a conclusion that suit was barred by limitation. On reappreciation of evidence and the contention raised by the parties, I am not inclined to take a different view from the one taken by the trial Court.
36. Though Mr. Shariff would contend Section 14 of the Limitation Act would have application since under a bonafide belief Plaintiffs were adjudicating before the Court in HRC. No. 10357/1995 by filing an application for impleading and getting it adjudicated between 9-2-1996 to 10-3-1997 which period has to be excluded, this Court is not inclined to accept the said contention since Plaintiffs were not prosecuting a right claim before a wrong forum. But on the other hand they were adjudicating their right for being impleaded in the eviction proceedings on the ground that they possessed a valid gift made by their father in respect of suit property. Hence, the decisions relied upon by the learned Counsel for the Appellants in this regard would be inapplicable to the facts of the case. Accordingly on point No. 4 it is to be held that suit was barred by limitation under Article 58 of Limitation Act, 1963.
37. Re:Point No. 5.:. The trial Court has considered the evidence placed by the parties in its entirety and while answering issue No. 1 and has held that Plaintiffs were unable to prove that they are the absolute owners of the suit schedule property and has answered the same in the negative as discussed herein above while answering Point Nos. 1 to 3 and on re-appreciation of entire evidence, this Court has come to a conclusion that issue No. 1 held by the trial Court in negative requires to be affirmed in view of points 1 to 4 herein being answered in favour of the Respondents and against the Appellant Plaintiffs and in view of the discussion made herein above, I am of the considered view that judgment and decree passed in O.S. No. 4692/1997 does not suffer from any infirmity either on facts or in law whatsoever and same deserves to be confirmed and accordingly it is confirmed.
38. In view of the above discussion, following order is passed.
ORDER
Appeal is dismissed. Judgment and decree passed in O.S. No. 4692/1997 dated 10-4-1997 by VII Additional City Civil Judge, Bangalore City is hereby confirmed. No order as to costs, in the peculiar facts and circumstances of the case and also considering the relationship between second Defendant and Plaintiffs being that of father and sons. Registry to draw the decree accordingly.
