JUDGMENT
U.C. Maheshwari, J.
1. This appeal is directed by the appellants/defendants under Section 96 of the CPC being aggrieved by the judgment and decree dated 31.10.1998 passed by the Ist Additional District Judge, Sagar in Civil Original Suit No. 32-A/96 whereby the suit for declaration and injunction filed by Mohd. Hanif, the principle plaintiff the predecessor of the respondents has been decreed against them.
2. The facts giving rise to this appeal in short are that the predecessor of the respondents namely Mohd. Hanif filed the aforesaid suit for declaration and injunction against the appellant No. 1, 3 to 7 and one Jagdish the deceased appellant No. 2 in respect of the house situated in Vivekanand Ward Sagar described in the plaint and its annexed map. Here in after the deceased the principle respondent is being stated the principle plaintiff.
3. As per averments of the plaint initially the aforesaid house was the property of late Kale Khan, the father of the principle plaintiff Mohd. Hanif and the appellant No. 1 who in his life time gifted the same with possession to the principle-plaintiff, vide registered gift deed dated 19.10.64. The front part of such house was shown to be in dilapidated condition as it was damaged because of fire, while one tenant Hedar was residing in it’s rear p Article In the month of September 1994 the appellant No. 1 claimed such house to be his property on the strength of a registered Hibanama (Baksisnama), dated 26.2.1954 executed by said Kale Khan whereas such document was not the document of disputed house. The possession of the house was never remained with the appellant No. 1 and the gift deed on which he is claiming the house is ab initio void document. According to the Muslim Personal Law the possession of the property was never delivered by Kale Khan through Hiba to the appellant No. 1. Thus, appellant No. 1 did not have any title in such property. The taxes of such house are being regularly paid to the municipal corporation by the principle-defendant. The appellant No. 1 did not have any right to alienate or transfer of such house. Thus, the sale deeds executed by him in favour of the deceased appellant No. 2 to 6 had not conferred any right to them as the same are executed by the appellant No. 1 without having any authority in respect of such property. The aforesaid purchasers on the strength of such sale deeds are making construction on the open space of such property. The appellant No. 7 has also made some construction on the strength of sale deed executed by the respondent No. 4 in his favour. With these averments the principle plaintiff prayed for declaring him to be the owner and occupier of said house and the appellant No. 1 did not have any right or authority to interfere in his possession and also not having any right to transfer the same by way of sale or otherwise. The alleged Hibanama dated 26.2.1954 the doucment of appellant No. 1 be also declared ab initio void. In pursuance of it, the perpetual injunction restraining the appellants to interfere in his possession of such property either by sale or otherwise is also prayed. During pendency of suit the prayer for possession is also amended against the appellants No. 2 to 6.
4. By filing the written statement the appellant No. 1 stated that such property with possession was given to him executing the registered Bashasisnama (the gift deed) dated 26.2.1954 by Kale Khan. Such document is not related with any other house. The then the disputed house was three storied building alongwith some open land and it was known in the name of Jilliwala Makan and Babuwali Atari. The principle plaintiff was never remained in possession of this house in any manner. The alleged gift deed dated 19.10.1964 is forged and fabricated document. It does not bear the signature of Kale Kha. The execution of the Hibanama dated 26.2.1954 in favour of the appellant No. 1 was in the knowledge of the principle defendant from the date of its execution and the same was never objected by him. In the record of the municipal corporation, Sagar such house is recorded in the name of the appellant No. 1 as owner of it. Haidar was residing in part of such premises as his tenant. It is also stated that the house of Khana bai situated at the backside of the disputed house but he does not know the real owner of it. He sold the disputed property by way of executing the sale deed in favour of the appellant No. 2 to 6 under his right of ownership. All other averements of the plaint contrary to his rights are denied. In such premises the prayer for dismissal of the suit is made.
5. In joint written statements of appellant No. 2 to 6 the title of the principle plaintiff regarding such house is denied. It is also stated that they acquired its title and possession from the appellant No. 1 through registered sale deed who sold the same on the strength of Hibanama dated 26.2.1994 and prayed for dismissal of the suit.
6. The respondent No. 7 in his written statement denied the title and possession of the principle plaintiff on such house. He further pleaded that he purchased some part of this property through registered sale deed from the appellant No. 4 who purchased the same with possession from the appellant No. 1. In such premises he prayed for dismissal of this suit and also claimed the compensatory cost of Rs. 3000 against the principle-defendant.
7. In view of the pleadings of the parties as many as eight issues were framed by the trial court on which the evidence was adduced by the parties, on appreciation of the evidence the suit was decreed by holding the house was given to the principle-plaintiff by Kale Khan, vide gift deed dated 19.10.1964 and the alleged gift deed dated 26.2.1954 is not binding against him and in such premises it was also held that the sale deed dated 6.10.1994 executed by the appellant No. 1 in favour of the appellant No. 2 to 6 and the sale deed dated 10.2.1995 executed by the appellant No. 4 in favour of the appellant No. 7 are not binding against the principle-plaintiff. Consequently by giving the decree for possession of the disputed property in favour of the principle-plaintiff the perpetual injunction is also issued against the appellants restraining them to interfere in his possession of the aforesaid property. Being dis-satisfied with the judgment and decree the appellants have come forward toThis Court with this appeal.
8. During pendency of the appeal the appellant No. 2 Jagdish and the principle plaintiff-respondent Mohd. Hanif died on which their representatives were brought on record.
9. It is noted that on earlier occasion this case was finally heard by some other bench ofThis Court and vide judgment dated 2.9.05 by allowing the application of the appellants filed under Order 41 Rule 27 of the CPC the original Hibanama dated 26.2.1954 of the appellant No. 1 was taken on record and the case was sent to the trial court with a direction to frame additional issues regarding identity of the houses mentioned in both the hibanama and on such issues after extending the opportunity for adducing the evidence to the parties, the case be sent back with its findings toThis Court. In compliance of such order the findings of the trial court dated 5.10.06 have been received, according to which the house mentioned in both the hibanamas was found to be the same house. Against such finding some additional objections are also filed by both the parties the same are to be considered while deciding this appeal.
10. Shri A.D. Deoras, learned Senior Counsel assisted by Shri M. Ahmad, counsel for the appellants assailed the impugned judgment saying that initially this property was belonging to late Kale Khan As per case of the appellant No. 1 the same was gifted to him by Kale Khan by registered Bakshishnama (gift deed) dated 26.2.1954 (Ex. D/1). The map is also annexed with such gift deed. As per further submission at the time of gifting the property its possession was also given and the same was accepted by the appellant No. 1. Subsequent to it late Kale Khan did not have any right to transfer the same by way of gift or any other manner to the principle-defendant or any other person. If any documentation is carried out by him subsequent to aforesaid gift then the same is not binding against appellant No. 1 as he acquired the title over such property prior to execution of the gift deed dated 19.10.1964. The gift deed of the appellant No. 1 shall prevail over the gift deed of the respondent. By referring the annexed maps of both the gift deed, he demonstrated that the property mentioned in both the maps are the same and on earlier occasion when the suit was decided by the trial court the original gift deed of the appellant No. 1 was not on record, hence in the lack of such document the impugned decree was passed but subsequently on remitting back the matter, on examination the identity of the property mentioned in both the documents has been established to be the same property. Such subsequent findings of the trial court is based on proper appreciation of the evidence and in conformity with law. It does not require any interference at this stage. In view of such findings, the initial impugned judgment and decree deserves to be set aside. He also argued that the principle-plaintiff and the appellant No. 1 with their father are governed by the Mohamdam Personal Law and according to such law the gift of the immovable property by way of oral Hiba is permissible. In the year 1954 according to Shariyat and the Personal Law hiba was completed in favour of the appellant No. 1. Subsequent to it, such property could not be given by Kale Khan to the principle-plaintiff by way of hiba or otherwise. Therefore the claim of the respondent based on a subsequent document does not have any force against the right of the appellants. Besides the aforesaid arguments he also said that on remanding the matter alongwith an application different gift deeds executed by late Kale Kha on dated 26.2.1954 in favour of different persons of the family were filed by the appellant No. 1 but the same was dismissed by the trial court under wrong premises and such documents were not taken on record. The same are very relevant to examine the bonafide of the appellants. Thus, he also filed his cross objection under Order 41 Rule 26 of the CPC in this regard and prayed to allow the same. With these submissions he prayed for dismissal of the respondents’ suit by setting aside the impugned judgment and decree by maintaining the finding of the trial court given on dated 5.10.06 and prayed for allowing his appeal accordingly.
11. Responding the aforesaid arguments Shri A.S. Usmani with Shri Adeel Usmani, leaned Counsel for the respondents justified the initial judgment and decree of the trial court and said that the same is based on proper appreciation of evidence and is in conformity with law. The same do not require any interference at this stage but he assailed the subsequent finding of the trial court given on dated 5.10.06 saying that the Bakshishnama (hiba) (gift deed) dated 26.2.1954 as alleged executed by Kale Kha in favour of the appellant No. 1 did not give any right to him in respect of the alleged house. According to him firstly the property mentioned in such Hibanama is not the same property which was given to the principle-plaintiff by the registered Hibanama dated 19.10.1964, (Ex. P/1). The Hibanama executed in favour of the appellant No. 1 was related with some other property and not for the disputed property. By referring the deposition of the appellant No. 1 Mohd. Azij recorded after remanding the matter he said that it has not been proved that the house mentioned in both Hibanama is the same house. As there is no evidence for holding that both the documents are relating to the same property. By elaborating his arguments he said that the deed executed in favour of the appellant dated 26.2.1954 had not given any right to him because such Hiba did not take place in accordance with the provision of Mohamdam Personal Law as there is no evidence about delivery of the property and the acceptance by the appellant No. 1 while as per Personal Law the declaration of Hiba, delivery of the property and acceptance by donee are the material ingredients of it. In the absence of any ingredients such Hiba could not be held to be a complete transaction. In such premises the appellant No. 1 did not acquire any right in the disputed house and in pursuance of it the sale deed executed by appellant No. 1 in favour of the appellant No. 2 to 6 and on the strength of such sale deed the sale deed executed by the appellant No. 4 in favour of the appellant No. 7 did not confer any right to them in the property while the gift deed dated 19.10.1964 (P/1) executed by Kale Kha in favour of the deceased, principle-plaintiff Mohd. Hanif is a complete transaction of Hiba as it was carried out in accordance with Mohamdam Personal Law for which sufficient evidence is available on the record, therefore, the finding of the trial court given on dated 5.10.06 deserves to be set aside. With these submissions he prayed for allowing his cross objections by dismissing this appeal.
12. Having heard, Learned Counsel I have carefully examined the record and also perused the impugned judgment and decree. The material question involved in this appeal is the identity of the house property mentioned in both the gift deeds (Bakhsisnamas) dated 26.2.1954 and 19.10.1964. Whether the deeds of appellant No. 1 and the principle-defendant respectively are executed by Kale Khan for the same property or for the different properties.
13. It appears from the pleadings of the parties and the available evidence that execution of both the deeds by Kale Khan is not under dispute but as per contention of the principle-plaintiff the property mentioned in the deed of the appellant No. 1 dated 26.2.1954, Ex. D/1 is not a disputed house but the same is related with some other house property while the property mentioned in his gift deed dated 19.10.1964, Ex. P/1 is the disputed house.
14. After recording the evidence at first round when the matter was adjudicated by the impugned judgment and decree, the original gift deed of the appellant No. 1, Ex. D/1 was not on record as the same was neither produced nor proved by the appellant. In such premises, in the lack of such document the case of the defendant-appellant No. 1 was not found to be proved. Although his case was also discarded on some other ancillary grounds and in pursuance of it the sale deed executed by the appellant No. 1 on the strength of his gift deed, Ex. D/1 in favour of the appellant No. 2 to 6 and on the strength of such sale deed the sale deed executed by the appellant No. 4 in favour of the appellant No. 6 were declared to be ab initio void and were set aside. In such premises the decree for possession of such property was also passed in favour of the respondent-principle plaintiff and against the appellants. Such impugned judgment and decree dated 31.10.1998 was challenged by the defendant-appellants by way of this appeal. During pendency of this appeal the aforesaid original gift deed, Ex. D/1 dated 26.2.1954 alongwith an application IA No. 985/99 under Order 41 Rule 27 of the CPC was filed by the appellant No. 1. The same was heard alongwith merits of this appeal on dated 11.7.05 and by earlier, judgment dated 2.9.05 by allowing such application said gift deed was taken on record and the case was sent back to the trial court to ascertain the identify of the property mentioned in both the deeds by framing the additional issues and extending the opportunity to the parties for adducing their evidence and send back the case with it’s findings on the aforesaid question. In compliance of such order the findings of the trial court dated 5.10.06 have been received and placed on record. According to such findings the property mentioned in Bashishanama (gift deed) dated 26.2.1954, Ex. D/1 and in the gift deed dated 19.10.1964 are found to be identical and the same property.
15. Although subsequent findings of the trial court has been assailed on behalf of the respondents by filing the cross objection under order 41 Rule 26 of the CPC stating that the evidence led by the appellants has not been appreciated by the trial court in accordance with law. It was also stated that the properties mentioned in both the gift deeds are not tallied with each other regarding its boundaries, open areas and its constructed structure. The trial court has not considered even the admission of the appellant No. 1 made by him in para 8, 9 and 10 of his deposition. It was also not considered by the trial court that according to gift deed, Ex. D/1 the built house was gifted to the appellant No. 1 by Kale Kha. While the appellant No. 1 transferred the same to other appellants stating the same as dilapidated house/plot. The findings are also challenged on account of the name of the disputed house saying that the same was known as Jhilliwala house while in Ex. D/1 some other name is mentioned. The same has not been considered with proper approach.
16. On going through the aforesaid entire objections, it appears that the respondents tried to distinguish the identity of the property mentioned in the aforesaid both the documents. The same may be resolved by comparing the maps annexed with their respective gift deeds keeping in view the measurement and boundaries and other facts mentioned in the maps.
17. In the gift deed of the appellant No. 1, Ex. D/1 the house was mentioned in the name of Jhilliwala three storied building and in annexed map the name of Jhilliwala is mentioned on the top of the embarse stamp. According to this map a house is shown by mentioning the Babuwali Atari. It’s eastern side the house of Bhure was shown. The length of this house towards north to south is mentioned 23 feet 3 inch while width towards east to west is mentioned 17 feet and 9 while other mentioned properties are described with their measurement in some other names.
18. On the other hand in P/1 dated 19.10.1964 the gift deed of the deceased principle-plaintiff, it is mentioned that the house has been burnt and lying in dilapidated condition. In its annexed map the disputed house was shown towards the western side of the house of Khana Bai. It is undisputed fact between the parties that Khana Bai is the wife of Bhure (who passed away before 1964). Its length toward north to south is mentioned 23 feet by 3 while the width towards south to west is mentioned 17 feet and 9. In the map it is also mentioned that except the house of Khana Bai all other adjoining properties were already gifted by late Kale Khan.
19. I have been apprised by the parties that in 1954 aforesaid Bhure was alive. Subsequently he had died and in 1964 his wife was alive. I have found one distinguishable feature in both the documents. In the gift deed, Ex. D/1 the aforesaid disputed house is mentioned as Jhilliwala Makan and Babuwali Atari appears to be built house while in the subsequent document, Ex. P/1 the same is mentioned as dilapidated plot with contention that the house has been burnt in some fire incident. This distinguishable feature gives the circumstance to draw inference that in the year 1954 when the earlier gift deed, Ex. D/1 was executed by Kale Kha in favour of the appellant No. 1 such house was in existence and later it was burnt and destroyed and such place has become dilapidated, hence in Ex. P/1 it was mentioned in the aforesaid manner. But on account of this distinction no benefit can be extended in favour of the respondents. It was also argued on behalf of the appellants that some riot took place in the year 1961-62 in which the aforesaid house was burnt and became dilapidated.
20. In view of the aforesaid after comparison both the documents and their maps I am of the considered view that the house mentioned in both the documents is the same house.
21. It is undisputed fact on record that after remitting back the matter for calling the findings regarding identity of the house, no evidence was adduced on behalf of the respondents in their support while the appellant No. 1 entered in the witness box and categorically said that the house mentioned in his gift deed, Ex. D/1 and Ex. P/1 are the same, although some minor discrepancies have come in his cross examination but the same are not sufficient to discard his testimony, specially when his testimony is unrebutted on record. Non production of any evidence on behalf of the respondents in rebuttal in this regard is one of the circumstance to draw inference against them that the properties mentioned in both the documents is the same that is why they did not enter in the witness box.
22. In view of the aforesaid discussion it has been revealed that the disputed property was already gifted in the year 1954 to the appellant No. 1 by Ex. D/1 and subsequently by executing the another deed in 1964, Ex. P/1 Kale Kha tried to gift the same to the deceased-respondentprinciple plaintiff.
23. It is settled position of law as defined under Section 7 of the Transfer of Properties Act that the person having the right to transfer the property may transfer and in the above mentioned circumstance when the property was already transferred by Kale Kha in 1954 in favour of the appellant No. 1 then subsequent to such transfer the Kale Khan did not have any right to deal with that property, hence even on executing the gift deed in favour of the deceased respondent plaintiff in the year 1964 such deed did not give any right or title to him in the aforesaid property. To give answer of this question, I deem fit to take assistance of Section 48 of the Transfer of Property Act which says that right of subsequent transferee shall be subject to the rights previously created by the transferor and in such premises the earlier transfer relating to same property will prevail over the subsequent transfer if it is made by the same person with same right regarding the same property. Such Section is read as under:
48. Priority of rights created by transfer. Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.
24. Coming to another question, whether the gift deed, Ex. D/1 executed by Kale Kha in favour of the appellant No. 1 is a complete document of hiba and created title in favour of the appellant No. 1. As per Mohamdam Personal Law the oral hiba is permissible. It does not require any registration or document in writing. In order to complete the hiba there are three requirements of the law which are as under:
(1) The declaration of hiba by the donner in respect of some property of his own,
(2) Delivery of the property to the transferee/donee,
(3) Acceptance of the transferee/donee by receiving the property.
25. Such question is also answered by the Apex Court in the matter of Mahboob Sahab v. Syed Ismail in which it was held as under:
5. Under Section 147 of the Principles of Mahomedan Law by Mulla, 19th Ed. Edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential, to the validity of a gift, that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a 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 complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only gift is complete.
26. In the case at Hand both the documents, Ex. P/1 and D/1 are situated on the same footing. Only the difference is that Ex. D/1 the document of the appellant No. 1 was executed on earlier point of time while the document, Ex. P/1, the document of the deceased respondent-principle plaintiff was executed later subsequent to the execution of Ex. D/1. There is sufficient evidence on record to draw the inference that on the date of the execution of the document, Ex. D/1 by handing over the original document the possession of the property was delivered to him by Kale Khan and the same was accepted by him, Although the same argument was advanced by the respondents’ counsel in respect of the Hiba by Ex. P/1 in favour of the principle plaintiff. It is settled proposition of law that under the Mohamdam Law to carry out the hiba, the declaration of the Hiba, the delivery of the property and its acceptance are not required in writing. Besides this subsequent to execution of Ex. D/1 no action was taken either by Kale Khan or by any other person challenging the title or the possession of the appellant No. 1 in any manner. It gives circumstances to draw an inference that Kale Khan at the time of declaration of Hiba handed over the possession of said house to the appellant No. 1 and the same was accepted by him on 26.2.1954. The same could be inferred considering the circumstances that hibanama was also handed over to the appellant No. 1 by Kale Khan. Although the provision of the Transfer of Property Act is not directly applicable to the present matter but for examining the question about operation of the transfer the assistance of Section 8 may be useful. Section 8 of the T.P. Act is read as under:
8. Operation of transfer. Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, when the property is land, the easements annexed thereto the rents and profits thereof accruing after the transfer, and ill things attached to the earth; And, where the property is machinery attached to the earth, the moveable parts thereof; And, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith; And, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; And, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.
27. In view of aforesaid discussion, it is held that in 1954 by Ex. D/1 the property was gifted to the appellant No. 1 by Kale Khan in accordance with the procedure prescribed for Hiba under the Mohamdam Personal Law and thereafter Kale Khan did not have any right to deal with such property. Hence principle respondent -plaintiff did not acquire any right even after execution the deed, Ex. P/1 by Kale Khan.
28. In pursuance of the aforesaid findings it is held that all the sale deeds executed by the appellant No. 1 in favour of the appellant No. 2 to 6 on the strength of the aforesaid gift deed, Ex. D/1 are valid documents and the same have conferred right to the respective purchasers. In pursuance of it the deed executed by the appellant No. 4 in favour of the appellant No. 6 is also held to be in order. In such premises, the decree of the trial court directing the appellants to deliver the possession of the disputed property is also perverse.
29. In view of the aforesaid findings the cross-objections dated 9.5.07 filed on behalf of the respondents under Order 41 Rule 26 are not sustainable. Simultaneously the objection filed under the same provision by the appellants dated 23.8.07 does not require any further consideration, hence such objections of both parties are hereby dismissed.
30. In view of the aforesaid the findings of the trial court given on dated 6.10.05 are hereby affirmed while the findings given in the impugned judgment and decree dated 31.10.1998 being perverse and contrary to record and law both deserve to be set aside. Therefore, this appeal is allowed and by affirming the findings of the trial court given on dated 6.10.05, the impugned judgment and decree of the trial court dated 31.10.1998 are hereby set aside, resultantly the suit of the respondents is also dismissed with cost. The respondents shall bear their own cost of this appeal throughout and shall also bear the cost of the appellants, the same is quantified Rs. 5000/-. The decree be drawn up accordingly.
31. Appeal stands allowed.