1 O.S.No.3158 of 2004
IN THE COURT OF VII SENIOR CIVIL JUDGE : CITY CIVIL COURT
AT : HYDERABAD
PRESENT: SMT. G. BHANUMATHI,
IV SENIOR CIVIL JUDGE,
FAC VII SENIOR CIVIL JUDGE,
HYDERABAD.
Monday, the 30th day of December, 2019.
O.S.No.3158 of 2004
Between:
Mrs. Ayesha Akbari, W/o. K.M. Ziaullah Khan, Muslim, aged about 65 years, Occ: Pensioner, R/o.H.No.23-2-218, 219, Moghalpura, Near Sultan Shahi, Hyderabad.
… Plaintiff. AND
1. Smt. Meherunnisa, W/o. Late Ibrahim Khaleelullah, Muslim, aged about 60 years, Occ: Household, R/o. C/o. M.A. Rasheed, 1-10-75, Begumpet, Hyderabad.
2. Kaleemullah, S/o. K.M. Osman Khan, Muslim, aged about 64 years, Occ: Business, R/o. H.No.20-7-118/1, Opp. Araboon Ki Masjid, Qazipura, Shalibanda, Hyderabad.
3.Smt. Mumtaz Begum, W/o. M.A. Rasheed, R/o. Green Heges, 1-10-75 AND 1-10-75/1, Begumpet, Hyderabad. (Respondent No.3 impleaded as per Orders in I.A.No.877 of 2007 dated 9 th June, 2009).
... Defendants.
This suit is coming for final hearing before me on 16.12.2019 in the presence of Sri Md. Osman Shaheed, Advocate for Plaintiff and of Sri E. Sree Ramulu, Advocate for Defendant No.1, Sri G.M. Mohiuddin, Advocate for Defendant No.2 and of Sri P. Prem Raj, Advocate for Defendant No.3 and upon hearing the counsel for both sides and the matter stood over for consideration till this day, this Court delivered the following:- : JUDGMENT : :
The suit filed by the plaintiff against the Defendants No.1 and 2 for partition and separate possession with metes and bounds with respect to the suit schedule property and allotment of 1/3rd share to the plaintiff.
2 O.S.No.3158 of 2004
2.Originally the suit filed by the plaintiff against Defendants No.1 and 2.
During the pendency of the suit as per the Orders passed in I.A.No.877 of 2007
dated 09.06.2009, Defendant No.3 was impleaded in the suit proceedings. The
plaint was amended and neat copy of amended plaint filed. For the purpose of the discussion, the averments made in the amended plaint are taken into consideration.
3.The brief averments of the amended plaint are as follows:
The plaintiff’s husband namely K.M. Zialluah Khan and his brothers by name Ibrahim Kaleelullah Khan and Md. Kaleemullah Khan(Defendant No.2) all jointly purchased a house bearing M.C.No.23-2-280, 219 admeasuring 540 sq.yards situated at Moghalpura, near Sultan Shahi through a registered Sale
Deed vide Document No.3027 of 1968 dated 11.10.1968. The original of the sale deed is misplaced. The plaintiff has been residing in the said house since the date of her marriage with the defendant which took place on 24.10.1976. On 02.08.1982 on the Eve of ‘Manjeh’ceremony of plaintiff’s daughter, the plaintiff’s husband and his two brothers who were the joint owners of the entire house had a get together and in the presence of several relatives divided the suit house into 3 portions as marked in Green, black and red colours. The red colour portion fell to the share of plaintiff’s husband. It was not divided with the metes and bounds. Since it was not practical at that time. But on 03.08.1982 the plaintiff’s husband orally gifted the portion that fell to his share, total 180 square yards in favour of the plaintiff after making declaration in the presence of other relatives and well wishers of family including M/s. Md Farooq Moinuddin
Siddiqui and Dr. Mohd Abdul Nayeem Khan. The said gift was accepted by the plaintiff and followed by delivery of possession. Since 05.08.1982 the plaintiff has been in physical possession gifted the portion of suit premises as lawful and 3 O.S.No.3158 of 2004 absolute owner. She has been paying the property tax. One of the joint owners by name Sri Ibrahim Kaleelullah died in the year 1996. After his death disputes arose between the parties to the suit on sharing the payment of electricity consumption charges, water, cess charges and they reached to such an extent that all of they refused to pay the said charges which ultimately resulted into disconnection of both services somewhere in the year 1999. Meanwhile the plaintiff’s husband sustained paralysis attack and became bed ridden in the year 1966. Attack was so severe that he almost lost his speech and he was unable to walk and move. He was mentally dearanged. He gradually recovered. For the last 2 years regained his speech to some extent. As nobody agreed for settlement of disputes and separation of suit house by metes and bounds, the plaintiff has ultimately called upon the defendants on 01.07.2004 to divide the suit house into 3 equal shares and get their shares separated. But the defendants No.1 and 2 did not agree. The plaintiff has no other go, but except file this present suit. Hence this suit.
4.Written statements filed by Defendants No.1 to 3. The main contention of the Defendants No.1 to 3 are as follows:
Late K.M. Ziaullah Khan, Defendant No.2 and late Ibrahim Khaleelulla
Khan purchased the suit schedule property jointly through a registered sale deed
dated 11.10.1968. The original sale deed was not delivered to the plaintiff as
her husband never gifted the suit building.When the deceased Ibrahim
Khaleelullah Khan the husband of the Defendant No.1 and Defendant No.2 wanted the original sale deed for the purpose of mutation, the third brother late
K.M. Ziaullah Khan, who is the brother of Defendant No.2 searched for the same and told that it was misplaced. The plaintiff is permitted to reside in a portion of the suit building that was allotted to Defendant No.2 in the oral 4 O.S.No.3158 of 2004 partition effected on 10.05.1996 which was later confirmed by a Memorandum of Partition Deed dated 07.07.1996 executed by all three brothers, Sri K.M.
Ziaullah Khan, the husband of the plaintiff, Defendant No.2 and the husband of the Defendant No.1. The husband of the plaintiff was quite hale and healthy at the time of the oral partition i.e on 10.05.1996. He was attacked with paralysis on 27.05.1996 and 15 days thereafter he recovered and was able to move in wheel chair. His speech and mental condition was effected on. He subscribed his thumb impression on Memorandum of Confirmation of oral partition dated 07.07.1996 in a sound mental condition. In the said partition amount the three brothers, Eastern portion of the suit building is fell to the share of late Sri K.M.
Ziaullah Khan, who is the husband of the plaintiff, the Western portion of the suit building fell to the share oflate Sri Ibrahim Khaleelullah Khan, the husband of the defendant No.1 and the middle portion fell to the share of Defendant No.2 as shown in the Memorandum of Partition dated 07.07.1996. It was divided by metes and bounds. The defendant No.2 permitted the plaintiff to continue to reside in his middle portion i.e one varandah, one room, one kitchen at her request on condition of her vacating the same whenever the defendant No.2 wanted to construct a pucca building. The remaining rear portion of the middle portion of the suit building is in the possession of Defendant No.2. There was no get together on 02.08.1982 nor on any other date and there is no division of house property into 3 portions and there is no division of green, red and black portions as alleged by the plaintiff. No red colour portion fell to the share of the plaintiff’s husband. All the 3 brothers were jointly enjoying the suit building till 10.05.1996. The Defendant No.2’s son namely Mohd. Nayheemullah Khan was having manufacturing unit of Automobuile Filters and Raghavendranagar,
Opposite to National Police Academy, Shivarampally. Defendant No.2 shifted 5 O.S.No.3158 of 2004 his residence to Raghavendranagar in the year 1997. But the Agarbathi
Manufacturing unit under the name and style of “A-1” Agarbathi company is being continued in the same building. The Defendant No.1 who is the wife of late Ibrahim Khaleelullah Khan is one of the partners of the said A-1 Agarbathi
Company. Defendant No.2 is the Managing Editor of Urgu Daily, Rafeeq-E-
Deccan, Mogalpura located in a portion of the suit building which is established in the year 1985. Defendant No.2 has been attending the management of the said Urdu Daily paper, besides the sale of Agarbatties. There was no oral gift by the husband of the plaintiff to the plaintiff on 03.08.1992. The allegations of the plaintiff that her husband gifted his share of 180 square yards in favour of the plaintiff in the presence of the relatives and well wishers especially in the presence of M/s. Mad. Farooq Moinuddin Siddiqui and Dr. Mohd. Abdul
Nayeem Khan and possession was delivered and since from the date of possession i.e from 05.08.1982 the plaintiff has been in possession of the said property was false. Her husband never gifted any portion of the suit property to the plaintiff. The plaintiff did not choose to implead her husband namely K.M.
Ziaullah Khan in the suit. The plaintiff never paid the property tax prior to 2004. First time in the month of April, 2004, the plaintiff paid property tax together with the arrears with an ulterior motive for filing of the present suit.
The Defendant No.2 wanted to demolish and construct a house in the portion gifted to him by Late K.M. Ziaullah Khan, the husband of the plaintiff.
5.After some time of the marriage of the plaintiff and her husband, the relationship between the plaintiff and her husband became strained. The husband of the plaintiff shifted to Bangalore in the year 1980 and was living with his brother Ibrahim Khaleelullah Khan. The husband of the plaintiff used to work in Salar Urdu Daily Newspaper. The plaintiff came to Banglore and 6 O.S.No.3158 of 2004 demanded her husband for money for the marriage of her daughter from her former husband that took place in the month of August, 1992. The plaintiff and
K.M. Ziaullah Khan had no issues. The plaintiff could not have paid the electricity and water consumption charges as she was permitted to continue in the front portion of the middle of the suit portion of the building that fell to
Defendant No.2. The husband of the plaintiff was not residing with the plaintiff from the year 1996 till his death on 06.08.2004 and he was residing in the house of his sister Smt. Mumtaz Begum at Bangumpet and undergoing treatment.
Some times he used to reside with Defendant No.2. The husband of the Mumtaz
Begum is the brother of Defendant No.1. Defendant No.2, his son Mohd.
Nayeemullah Khan and his nephew M.A. Aziz, who is also the nephew of K.M.
Ziaullah Khan and his sister Smt. Mumtaz Begum were looking after the husband of the plaintiff in the house of Smt. Mumtaz Begum. Plaintiff never cared even to enquire about the health of her husband. When there was a necessity for operation of K.M. Ziaullah Khan in the year 1997 when he wanted to get his money and his gold of 55 tulas including Diamond Necklace and ear rings from the plaintiff for operation charges, the plaintiff refused to give any cash or gold. The above said persons bear all the expenses for his operation. All the medical receipts and bills etc are available with them. Even after operation, the plaintiff never stayed in the hospital even for a day to serve and take care of his husband. Whenever she met her husband, she used to verbally abuse, ill-treat and mentally torture him. As such, the said K.M. Ziaullah Khan refused to accept the plaintiff as his wife. The plaintiff also never treated K.M. Ziaullah
Khan as her husband and this is evident from her savings pass book of 1997, where she described herself as a daughter of Ahmed Khan and not wife of K.M.
Ziaullah Khan. The husband of the plaintiff got paralysis attack in the year 1996, 7 O.S.No.3158 of 2004 but it is denied that the plaintiff’s husband almost lost his speech and even move and that he was mentally deranged is quite false. He recovered within 15 days and was discharged from the hospital. He was mentally quite sound and speaking normally. He used to eat his food with his left hand and he used to get up from the bed and sit on his own. It is also false to allege that he regained his speech to some extent for the last 2 years. His speech and mental conditions were not effected. He attended his ailing brother Ibrahim Khaleelullah Khan the husband of the Defendant No.1 at Bangalore who was admitted in Apollo
Malayya Hospital in the month of November, 1996 and he died on 20.11.1996 and stayed at about 1 ½ month till 40th day of his brother’s death. He returned to his brother’s house at Begumpet, Hyderabad after attending the 40th day function of Ibrahim Khaleelullah Khan at Bangalore. It is false that nobody cared for settlement of disputes and separation of suit house by metes and bounds, as such, the plaintiff has ultimately called upon both the defendants on 01.07.2004 to divide the suit house into 3 equal shares and get their shares separated and that defendants No.1 and 2 did not agree and the plaintiff has no other go but to file the suit to get her share separated. Defendant No.1 is the permanent resident of Bangalore from the year 1963 when she married Ibrahim Khaleelullah Khan the brother of Defendant No.2 and late K.M. Ziaullah Khan. The question of plaintiff calling upon both the defendants to divide the suit house etc does not arise as the defendant No.1 was not present on 01.07.2004 at Hyderabad.
Plaintiff is aware of her husband K.M. Ziaullah Khan gifting Eastern portion of suit building to Defendant No.2 by way of Gift Settlement Deed dated 28.06.2001 and also other transaction in respect of other portions of the suit building evidencing by registered deeds. The plaintiff did not choose to question the said Gift Settlement Deed dated 28.06.2001 executed by K.M.
8 O.S.No.3158 of 2004
Ziaullah Khan in favour of Defendant No.2 and other transactions, the suit is not maintainable. The plaintiff has obtained the certified copies of Gift Settlement
Deed dated 28.06.2001 on 24.07.2004 from the Office of the Joint Sub-
Registrar, Mozam Jahi Market, Hyderabad by making an application vide volume No.24 Serial No.5523 dated 24.07.2004, before filing this suit on 03.08.2004. The plaintiff did not choose to implead K.M. Ziaullah Khan though he is a necessary and proper party to this suit. The suit is bad for non-joinder of necessary parties. After partition of the suit building on 10.05.1996 late Ibrahim
Khaleelullah Khan gifted his Western portion of the suit building to his wife who is first defendant on 12.05.1996 the day of their marriage anniversary.
Subsequently, on 15.08.1996 on the birth day of the defendant No.1, her husband executed Memorandum of Gift confirming the said oral gift dated 12.05.1996. The husband of the plaintiff K.M. Ziaullah Khan gifted his Easter portion to Defendant No.2 on 28.06.2001 by way of Registered Gift Deed.
Defendant No.2 gifted his middle portion to his sister Smt. Mumtaz Begum on 19.07.2004 by way of Registered Gift Settlement Deed. There is no property available for partition in the suit building. The plaintiff is residing away from her husband for the last 8 years without caring even to enquire about his welfare.
The plaintiff was not even coming on festive occasions to meet and greet the husband. Defendant No.1 came to know that two days before filing of the present suit, the plaintiff along with her sister who came from America came to her husband to his sister’s house at Begumpet. The plaintiff has taken photographs in the company of her husband and went away, within two or three days, the plaintiff filed this suit. The plaintiff taking photographs is shows that she had a cordial relationship with her husband with K.M. Ziaullah Khan.
Defendant No.1 came to know that defendant No.2 received suit summons and 9 O.S.No.3158 of 2004 status-quo order on 04.08.2004 and that he showed them as K.M. Ziaullah Khan on the same day at his sister’s house at Begumpet and that late K.M. Ziaullah
Khan was astonished and assured to defendant No.2 that he would come and give evidence to court that there was partition of the suit building long back and gifting his portion to defendant No.2. The said K.M. Ziaullah Khan called for the plaintiff on 05.08.2004 through Defendant No.2’s son Mohd. Nayeemullah
Khan but the plaintiff did not come as she knew very well that for what reasons her husband was calling her. But unfortunately K.M. Ziaullah Khan died on 06.08.2004. After the death of K.M. Ziaullah Khan, plaintiff’s daughter
Sameena Basith along with her husband Dr. M.A. Basith met Defendant No.2 on 10.08.2004 at the suit building and demanded Rs.10 lakhs on behalf of the plaintiff and said that if the said amount is paid, the suit will be withdrawn immediately by the plaintiff. The plaintiff attended the obsequies but did not attend the 10th, 20th and 40th day ceremonies though she got published the death of her husband in Siasat Daily Newspaper on 07.08.2004. Smt. Mumtaz Begum is is in lawful possession of the rear portion of the middle portion of the suit building by virtue of Registered Gift Deed dated 19.07.2004. She is also necessary and property party for the suit proceedings. The suit is liable to be dismissed for non-joinder of necessary and proper parties.
6.After filing of the written statement of Defendants No.1 to 3, the plaintiff filed rejoinder. It is false that the plaintiff was permitted to reside in a portion of building alleged to have been allotted to Defendant No.1 in pursuance of the oral partition. There is no partition took place on 10.05.1996. The memorandum of partition dated 07.07.1996 is a false document. The plaintiff’s husband was not physically not fit to execute such document. He was suffering with paralytic attack by that time. It is false to say that husband of the plaintiff Ziaullah Khan 10 O.S.No.3158 of 2004 put his thumb impression on the alleged Memorandum of Confirmation of Oral partition dated 07.07.1996. It is also denied that the Eastern portion of the suit building fell to the share of plaintiff’s husband and that Western portion fell to the share of Ibrahuim Kaleelullah and middle portion fell to the share of
Defendant No.2. The house in question was never partitioned by metes and bounds. The defendant has been residing in suit premises being its absolute and lawful owner and possessor but not because of permissive possession. There is no A1 Agarbathi Company existed in suit premises. It is also denied that the defendant No.1 is the Managing Editor of Urdu Daily Rafeeq-e-Deccan and it is located in a portion of the suit building. The plaintiff has filed the suit for partition. The suit building was never partitioned before the death of plaintiff’s husband. It is denied that the plaintiff’s husband was not residing in the suit premises from 1996 to 2004. All the medical expenses were born by this plaintiff only out of her earnings. Defendant No.1 used to come now and then to
Hyderabad. She was present on 01.07.2004 at Hyderabad. Hence, the notice got issued by the plaintiff for demanding the partition was served on the defendant
No.1. There is no necessity to challenge the Gift Deed executed by the husband of the plaintiff in favour of Defendant No.2 and a Gift registered Settlement
Deed executed by Defendant No.2 in favour of Smt. Mumtaz Begum. The plaintiff was having a cordial relationship with her husband till his death. Smt.
Mumtaz Begum is not a lawful possession of the rare portion of the middle portion of the gift deed by virtue of gift registered Settlement Deed as alleged.
As such she is not the necessary party. The suit is properly valued and suit is liable to be decreed.
7.Basing on the pleadings the following issues are framed for consideration for trial:
11 O.S.No.3158 of 2004
1.Whether the suit property is entitled to be undivided property for partition?
2.Whether the plaintiff is entitled for partitin and separate possession?
3.Whether the Gift deed dated 28-06-2001 in favor of D2 is true, valid and binding on the plaintiff?
4.Whether the suit is bad for non-joinder of the necessary parties?
5.To what relief?
8.During the course of trial on behalf of the plaintiff, PW.1/Mrs. Ayesha
Akbari, PW.2/Mohd. Farooq Mohiuddin Siddiqui examined. Ex. A1 to Ex.A40 marked on behalf of the plaintiff. On behalf of the defendants, DW.1/M.A.
Aziz, DW.2/Kaleemullah Khan, DW.3/M.A.Khayum, DW.4/Smt. Mumtaz
Begum evidence eschewed. Ex. B1 to B30 marked. (Ex B1 affidavit marked through the cross-examination of PW.2 and Ex.B1 Deed of Partnership, dated 25-06-1982 marked through DW.1.) Hence for the purpose of the discussion
Ex.B1 affidavit treated as Ex. B1, (1) and Ex. B1 Deed of Partnership treated as
Ex. B1 (2).
9.Heard both sides. Written arguments filed by both parties. Perused the entire record.
10.For the sake of the convenience and in order to avoid the repetitions the
Issues No.1 to 3 are discussed together and has given the common finding.
ISSUES NO. 1) Whether the suit property is entitled to be undivided 1 TO 3: property for partition?
2) Whether the plaintiff is entitled for partition and separate possession?
3) Whether the Gift deed dated 28-06-2001 in favor of D2 is true, valid and binding on the plaintiff?
12 O.S.No.3158 of 2004
The main contention of the plaintiff is that the suit schedule property bearing M.C.No. 23-2-218, 219 admeasuring 540 Square yards, situated at
Moghalpura, near Sultan Shahi, Hyderabad is liable for partition and the plaintiff is entitled for 1/3rd share in the above said property.
11. Sri. K.M.Ziaullah Khan, Ibrahim Kaleelullah Khan and Sri. Md.
Kaleemullah Khan are brothers. The plaintiff namely Ayesha Akbari is the wife of the K.M.Ziaullah Khan. Ibrahim Kallelullah Khan died even prior to filing of the suit. The first defendant namely Meherunnisa is the wife of Ibrahim
Kallelullah Khan. Defendant No. 2 is the Kaleemullah. During the pendency of the suit defendant No. 3 impleaded in the suit who has claimed herself to be the owner of the suit property by virtue of gift deed executed by her brother who is the defendant No.2.
12.The suit property bearing No. 23-2-218/219 admeasuring. 540 Sq.Yards purchased by the three brothers namely K.M.Ziaullah Khan and Ibrahim
Kallelullah Khan and Md. Kaleemulluah Khan all jointly purchased under a registered sale deed vide document No. 3027/1968. There is no dispute between the parties with regard to the original ownership of the property. Ex.A1 is the certified copy of sale deed dated 11-10-1968 and the certified copy of sale obtained on 24-07-2004. Ex.B6 filed by the defendant and it is the same document of the Ex. A1 certified copy of sale deed.
13.The plaintiff further contended that she is the wife of K.M.Ziaullah Khan and her marriage with the said K.M. Ziaullah Khan took place on 24-10-1976.
There is also no dispute with regard to the same. The plaintiff is the second wife of the said K.M.Ziaullah Khan. It is also an admitted fact. Her first husband died in car accident. Her first husband died after two years of her marriage.
13 O.S.No.3158 of 2004
By that time she is having one daughter (the plaintiff in the plaint in 4th para second page wrongly mentioned that her marriage took place with the defendant on 24-10-1976). Ex. A3 is the marriage certificate.
14.Further contention of the plaintiff is that on 2-8-1982 on the eve of “Manjeh” ceremony of the plaintiff’s daughter, the plaintiff’s husband and his two brothers named above who were the joint owners of the entire house had a get together and in presence of several relatives divided the suit house into three portions as marked in green, black and red color in the plan. The red color portion fell to the share of the plaintiff’s husband. The said portions shown in
Ex.A2 certified copy of plan. There is no documentary proof to show that partition took place on 02-08-1982. The plaintiff in written arguments mentioned that it was oral partition. If really the partition took place on 02-08-1982, the three portions would separately divided between three brothers and their names would have mutated in concern records. There was no mutation of names of three brothers with regard to their respective shares. There is no documentary proof before the court that the partition took place and three brothers have been in their respective share in possession and enjoying their share. Hence, it is held that the plaintiff failed to establish the oral partition on 02-08-1982.
15.Further more the plaintiff pleaded that on 03-08-1982 the plaintiff’s husband orally gifted the portion that fell to his share total admeasuring 180 Sq.
Yards in favor of plaintiff after making declaration in presence of several relatives and well wishers of family including M/s. Md. Farooq Moinuddin
Siddiqui and Dr. Mohd Abdul Nayeem Khan and the same was accepted by the plaintiff and followed by delivery of possession. Since 05-08-1982 the plaintiff has been in enjoyment of physical possession of the gifted portion of suit 14 O.S.No.3158 of 2004 premises as lawful and absolute owner. She has been paying property tax. The plaintiff filed the suit for partition of the suit property with meets and bounds as it was not divided with meets and bounds as practically not possible at that time.
16. In Muslim Law the ORAL HIBA is valid if three conditions fulfilled.
Declaration of the gift by the donar. Acceptance by the donee, there must be the delivery of possession either constructive or physical possession. Here in this case as per the contention of the plaintiff, the property was not divided with meets and bounds at that time. But divided between three brothers and partition took place. There is no documentary proof before the court that the plaintiff accepted the gift, and possession delivered. There is no mutation of the name of the plaintiff in revenue records. The electricity connection did not stands in the name of the plaintiff. The water connection was not in the name of the plaintiff.
In any of the government records the name of the plaintiff did not mutated. The husband of the plaintiff who alleged to gifted the property, is not supporting the oral gift, he did not shown neither as a plaintiff nor the defendant.
17.The plaintiff in support of her contentions filed Ex. A4 and Ex.A14 Copy of bank Pass Books. The pass books shows the plaintiff address as suit schedule property. The pass book shows the suit property house number. But it does not shown the bye number of the suit property. As the plaintiff and her husband has been residing in the suit property her bank pass book shown the suit property as her address. Ex. A5 is the electoral voter list. Ex.A13 original identity card issued by the election commissioner for the husband of the plaintiff. The plaintiff name shown in voter list in the suit property address.
Ex. A6 the original property tax bill, Ex. A7 original property tax, Ex. A8 original property tax 28-09-1992, Ex. A9 original property tax 1992, Ex. A10 original property tax, Ex. A11, original property tax 1992, Ex. A12 original 15 O.S.No.3158 of 2004 property tax December, 1993. The property demand notices given in the name of the husband of the plaintiff. Property tax also paid in the name of the husband of the plaintiff. The plaintiff who examined as PW.1 in her cross- examination admitted that the arrears of the property tax paid in the year 2004
before the filing of the suit. Prior to that she did not paid any property tax to the
property allotted to her husband in partition and gifted to her on the next day.
She paid the property tax in the name of her husband for the entire suit property but not towards her share. Ex. A15 is the original envelop cover, Ex. A16 original form of application for payment of provident fund, Ex. A17 Electricity bill dated 14-04-1999, Ex.A18 original stock holding corporation, Ex. A19 original identity card 2003, Ex. A20 copy of demand notice issued by MCH,
Ex. A21 copy of demand notice dated 22-12-2003, Ex. A22 original letter form stock holding, Ex. A23 original letter from stock holding, Ex. A24 property tax bill October, 1993 to March, 1994. Ex.A25 property tax bill dated 29-12-1993,
Ex. A26 is the demand notice to MCH dated 17-11-2006, Ex. A36 is original property tax dated 13-05-2011, Ex.A37 is encumbrance certificate dated 18-01-1999, Ex. A38 is application for general search, dated 22-01-1999, Ex.
A39 is original MCH assessment record, 04-10-1997, Ex. A40 is original encumbrance certificate dated 13-04-2004. All these documents did not shown the plaintiff exclusive possession over her share. There is no documentary proof to show that possession delivered to the plaintiff by her husband and partition took place between the husband of the plaintiff and his two brothers.
18. In support of their contentions the plaintiff also examined the
PW.2/Mohd. Farooq Mohiuddin. He deposed in his chief examination that he was present at the time oral partition and also at the time of the oral HIBA. He also deposed that in oral partition middle portion of the said house fell to the 16 O.S.No.3158 of 2004 share of the plaintiffs husband and the other two portions fell to the share of other two brothers. No document was written on that date. On 03-08-1982 the plaintiff’s husband orally gifted the property. The same was accepted and possession delivered in favor of the plaintiff. But the plaintiff after taking the possession did not mutated her name in revenue records for the reasons best known to them. Moreover during the cross examination of PW.2 Ex. B1(1) affidavit confronted to the witness and he admitted the same. The said affidavit was given on 4-08-2004 and notarized on 23-08-2004. what is the necessity to
PW.2 and another witness to give such affidavits before the filing of the suit no where mentioned. He admitted in the affidavit that he did not mentioned that oral partition took place between the three brothers and that middle portion fell to the share of the husband of the plaintiff. No where the PW.2 did not mentioned about the affidavit in chief examination. He also admitted that on which date Ex. B1 prepared. The evidence of PW.2 is not reliable why because on that alleged date so many persons present and relatives of all the brothers present. But no independent persons examined. Moreover the evidence of the
PW.2 did not supported by the documentary evidence. With regard to the affidavits also the PW.2 did not mentioned in his chief examination. Hence the evidence of the PW.2 is not reliable and not trust worthy.
19.Per contra, the defendant contended that there was no oral partition on the alleged date 02-08-1982 and also there was no oral HIBA on that date i.e 03-08-1982. Admittedly both parties did not filed the original sale deed. The plaintiff was permitted to reside in a portion of the suit building which was allotted to the defendant No.2 under oral partition, which was affected on 10-05-1996 and later on confirmed through a memorandum of partition dated 7-7-1996 which was executed by all three brothers, confirming the partition that 17 O.S.No.3158 of 2004 took place on 10-05-1996. As per partition the eastern portion was allotted to the plaintiff husband. Western portion allotted to the Ibhrahim Khallellulah
Khan who is the husband of the first defendant. And middle portion fell to the share of the defendant No.2 and it was divided by metes and bounds. The defendant no. 2 permitted the plaintiff to reside in the middle portion of the said house comprising of one verandah, one room and one kitchen on the condition that one ever defendant No.2 wants to construct a pucca building, the plaintiff should vacate the same. The remaining rear portion of the middle portion of the suit building is in possession of the defendant No.2. The son of the defendant
No.2 namely Nayeemullah Khan was having a manufacturing unit of automobiles filters at Ranghavendra Nagar, and defendant No.2 shifted to
Raghvendra Nagar in the year 1997, but the Agarbathi company in the year 1997 under the name and style of A1 Agarbathi is being continued in the suit building. Defendant no. 1 is a partner of the said company. The defendant No.
2 is also a Managing Editor of Urdu Daily news Paper, Rafeeq-E-Deccan, which is located in a portion of the suit building and established in the year 1985. The defendant no. 2 has been attending to the management of the said Urdu Daily
News Paper business business besides sale of inscent sticks. The relation between the plaintiff and her husband was not good. The plaintiff never paid any property tax. The husband of the plaintiff was working in Salar Urdu Daily at Banglore and his obituary information was published on 07-08-2004. After partition the husband of the plaintiff executed a gift settlement deed in favor of the defendant No.2 and it is true and binding on the plaintiff. The defendant
No. 2 gifted the middle portion of his share to the defendant No.3 through the registered gift deed, so there is no property available for partition.
18 O.S.No.3158 of 2004
20.In support of the contentions of the defendants, the defendants examined the DW. 1 to 4. DW.4 is the defendant No. 3 and she filed the chief examination affidavit. But latter she did not come forward to face the cross examination. As such her evidence eschewed. DW.1 is son of the defendant No. 3. DW.1 is the
General Power of Attorney holder of the defendant No.1. Ex. B5 is the General
Power of Attorney. DW.1 in his chief examination reiterated all the averments of the written statement. The learned plaintiff counsel contended that DW.1 is not competent witness to depose on behalf of the defendant No.1.
In this context the learned counsel for plaintiff relied on following citations:-
AIR 2005 SUPREME COURT 439 BETWEEN JANAKI VASHDEO BHOJWANI
AND ANOTHER VS INDUSLAND BANK LIMITED AND OTHERS in which it is held that “if the power of attorney holder had rendered some ‘acts’ in pursuance to power of attorney, he may deposed for the principal in respect of such acts, but he can not depose for the principal for the acts done by the principal and not by him. Similarly he can not depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross examined”. This citation not applicable to the present facts of the case. The present facts of the case relates to the family matter and partition and not pertains to the commercial matter. The family members and relatives having the knowledge about the family affairs. As such this citation not applicable to the present facts of the case. DW.1 is the competent witness to depose on behalf of the first defendant No.1. Moreover the defendant No. 2 is also deposed as DW.2 and he is having the knowledge about the facts of the case and DW.1 to 3 are sailing in the same boat. DW. 1 to
DW.3 deposed that there was no partition as alleged by the plaintiff on 19 O.S.No.3158 of 2004 02-08-1982 and also there was no gift of ORAL HIBA in favor of the plaintiff by her husband on 03-08-1982. The plaintiff and her husband were permitted to reside in middle portion of the suit property. The plaintiff was permitted to reside in a portion of the suit building which was allotted to the defendant NO.2 under oral partition, which was affected on 10-05-1996 and later on confirmed through a memorandum of partition dated 7-7-1996 which was executed by all three brothers, confirming the partition that took place on 10-05-1996. As per partition the eastern portion was allotted to the plaintiff husband. Western portion allotted to the Ibhrahim Khallellulah Khan who is the husband of the first defendant. And middle portion fell to the share of the defendant No.2 and it was divided by metes and bounds. The defendant No. 2 permitted the plaintiff to reside in the middle portion of the said house comprising of one verandah, one room and one kitchen on the condition that one ever defendant No.2 wants to construct a pucca building, the plaintiff should vacate the same. The remaining rear portion of the middle portion of the suit building is in possession of the defendant No.2. The son of the defendant No. 2 namely Nayeemullah
Khan was having a manufacturing unit of automobiles filters at Ranghavendra
Nagar, and defendant No.2 shifted to Raghvendra Nagar in the year 1997, but the Agarbathi company in the year 1997 under the name and style of A1
Agarbathi is being continued in the suit building. Defendant No. 1 is a partner of the said company. The defendant No. 2 is also a Managing Editor of Urdu
Daily news Paper, Rafeeq-E-Deccan, which is located in a portion of the suit building and established in the year 1985. The defendant No.2 has been attending to the management of the said Urdu Daily News Paper business business besides sale of inscent sticks. The relation between the plaintiff and her husband was not good. The plaintiff never paid any property tax. The 20 O.S.No.3158 of 2004 husband of the plaintiff was working in Salar Urdu Daily at Banglore and his obituary information was published on 07-08-2004. After partition the husband of the plaintiff executed a gift settlement deed in favor of the defendant No.2 and it is true and binding on the plaintiff. The defendant No. 2 gifted the middle portion of his share to the defendant No. 3 through the registered gift deed, so there is no property available for partition.
21. In support of their contentions the defendants filed Ex. B1 to B30. Ex. B7 is memorandum of confirmation of oral partition dated 07-07-1996. As per
Ex. B7 partition Eastern portion of house allotted to the husband of the plaintiff.
Middle portion of the property allotted to the husband of the defendant No.1.
Western portion of the property allotted to the defendant No. 2. The husband of the plaintiff put his thumb impression on the said memorandum of confirmation of oral partition. The other two brothers signed on the same document. There are no grounds to disbelieve the Ex. B7. Under Ex. B8 certified copy of the gift settlement deed dated 28-06-2001 the husband of the plaintiff executed his share of the property to the defendant No. 2. Under Ex. B2 Memorandum of Oral gift
dated 15-08-1996 the defendant No. 2 gifted his share of the property to the
defendant No.3. The same was registered under Ex. B9 certified copy of Gift settlement deed dated 19-07-2004. Ex. B1 the deed of partnership dated 25-06-1982 and Ex. B16 Office copy of Form A2 dated 13-07-1977.
22. Ex. B17 Office copy of Form A2 dated 12-09-1977, Ex. B18 Office copy of Form A2 dated 15-10-1977, Ex. B19 Office copy of Form A2 dated 15-11-1977, Ex. B20 Office copy of Form CST VI dated 21-11-1977, Ex. B21
Office copy of Form A2 dated 11-02-1980, Ex. B22 Office copy of Form CST
VI dated 11-02-1980, Ex. B 23 Office copy of Form A2 dated 11-04-1980,
Ex. B24 Office copy of Form CST IV, dated 11-04-1980, Ex. B25 Office 21 O.S.No.3158 of 2004 copy of Form CST IV dated 15-01-1985, Ex.B26 office copy of Final
Assessment Order from Commercial Tax Department, dated 14-02-1986,
Ex. B27 office copy of Division Proceedings of Commercial Tax Officer (f.a.c.) Charminar Circle, Hyderabad, dated 22-09-1988, shows that in the suit property in one portion the A1 Agarbathi company has been running and the defendant No.1 and some others are the partners of the property. It shows that the defendant No. 1 and son of the defendant no.3 has been in possession of the suit property.
23.The documents filed by the defendant i.e. Ex. B1 to B8 shows that there was a partition between the parties. After partition between the parties the husband of the plaintiff who was the original owner of the property executed a gift settlement deed in favor of the defendant No.2. The plaintiff failed to prove the oral partition and also oral HIBA as such the gift deed executed in favor of the 2nd defendant No. 2 is valid and binding on the plaintiff. The registration of the said gift deeds reflected in Ex. B30 encumbrance certificate from 24-03-1994 to 02-01-2017.
24.Admittedly the the husband of the plaintiff was in the house of the defendant no. 3 by the date of his death. The plaintiff did not possessed any medical record of her husband. The explanation given by the plaintiff that he had taken the treatment near by the house of the defendant No. 3 is not satisfactory. If really the plaintiff along with her husband has residing in the suit portion property, she would have the medical record. There is no necessity to her to file the separate photos which were taken with her husband. Her husband was not shown as party neither as defendant nor as plaintiff. The husband of the plaintiff did not supporting her. There were no cordinal relation between the plaintiff and her husband. It is established by the defendant. The husband of the 22 O.S.No.3158 of 2004 plaintiff in his last stage had resided with the defendant No. 3. In pursuance of the same he had executed the said gift deed in favor of the defendant No. 2 with respect of his property. Defendant No.2 in turn executed the gift deed with respect of the suit property in favor of the defendant No.3. Towards the gratuity they executed the gift deed in favor of the defendant No.3.
25.The plaintiff has to establish his own case, as she approached the court.
The plaintiff is not entitled to depend upon the weakness of the defendant. The plaintiff is not entitled for the admissions of the defendant witness to prove his case. The plaintiff was working as a Government Teacher and she used to work at different places. She admitted that she worked some time at Nizamabad.
Ex. B28 publication in the daily Salar along with English Transalation dated 07-08-2004, Ex. B29 publication in the Siasat Daily (Obituary of SM Ziaullah
Khan dated 10-08-2004 shows that he worked some time in the said news papers. There was no continuous possession of the plaintiff in and over the portion of his schedule property. The plaintiff did not established before the court whether it is the physical possession or symbolic possession.
26.The learned counsel for plaintiff relied on some citation with regard to admissibility of the Memorandum of partition deed, and gift settlement deed and admissibility of the un-registered documents. He relied on following citations:
1. AIR 1970 ALL 270 BETWEEN Mst.NOOR JAHAN BEGUM VS
MUFTKHAR DAD KHAN AND OTHERS in which it was held that in
Mohammedan Law of ORAL HIBA delivery of possession which is an essential element in gift, but registration or mutation cannot become substitute over possession and it need not be physical delivery even constructive or symbolic delivery hold good. The intention of the donor and consideration of subsequent conduct of the donor is relevant in determining whether possession has been delivered and valid gift completed. Subsequent conduct has great 23 O.S.No.3158 of 2004 importance in determining whether possession has been delivered and alid gift completed and donor should divest himself completely of all ownership and domain over the subject of the gift. Here in this facts of the suit, the plaintiff failed to establish her possession over the suit property after oral gift. Moreover the plaintiff failed to establish the oral gift.
2. ALD 2003 631 BETWEEN BEPARI SHAIK PEERRN VS
KAMALAPURAM MAHABOOB BI in which it was held that mere no delivery of the possession does not invalidate the document. But here in this case there is no document in favor of the plaintiff. And there is no oral and documentary evidence in support of the contentions of the plaintiff.
3. CGLJ, 2006 (2) 145 BETWEEN BUGGA BAI VS BAKRID KHAN in which it is held that possession of property being delivered subsequent to oral gift made by father should not be held to be invalid. There is no proof in this case for oral gift in favor of the plaintiff by her husband.
4. ALD 2004 (4) 84 BETWEEN KHAJA HABEEBUDDIN VS MD.
IBRAHIM in which it is held that the whole process of partition contemplates three phases, 1. severance of status, division of joint property by metes and bounds, nature of possession of the various sharers. The plaintiff filed the present suit by stating that the partition took place between the brothers on 02-08-1982 and it was not divided with metes and bounds, as such she filed the present suit. But all the three brothers including her husband denied the partition
dated 02-08-1982. Subsequently another partition took place between the joint
owners. As such the present facts not applicable to the case on hand.
5. 2014 (10) SUPREME COURT CASES 459 RASEEDA KHATOON
(DEAD) THROUGH LEGAL REPRESENTATIVES VS ASHIQ ALI (DEAD)
THROUGH LEGAL REPRESENTATIVES in which it was held that at the time of oral execution of oral gift thereof, donor act of granting actual control over the property to donee thereby divesting himself of such control held, is indicative of taking of constructive possession by donee. There is no evidence
before the court about the oral gift. Hence the cited facts are not applicable to
the present facts of the case.
24 O.S.No.3158 of 2004
6. AIR 1980 MADRAS 66 BETWEEN NOOHU PATHUUMMAAL AND
OTHERS VS UMMATHU AMEENA AND OTHERS in which it is held that no mutation of names is necessary if the deed of gift declares that the husband delivered possession to the wife and the deed is handed over to her and retained by her. Similarly in the case of a gift to a minor bonafide to a minor child by father no delivery of possession is required and all that is necessary is to establish a bonfide intention to give. The cited facts applicable to the present facts of the case when the plaintiff proved the oral gift and partition. But the donor himself did not supporting the plaintiff case.
7. AIR 1974 ANDHRA PRADESH 23 BETWEEN AMIR ALI KHAN AND
OTHERS VAS SHAHALAM KHATOOM AND ANOTHER in which it is held that in a case of gift of immovable property in possession of mortgagee, delivering of property can be only symbolic and not actual or physical. Thus where there is declaration of gift and further its acceptance followed by delivery of gift deed the gift will have satisfied all the requisites so as to make it valid.
The oral gift not proved by the plaintiff, hence the cited facts not applicable to the present facts of the case.
8. 2016 (4) SUPREME COURT CASES 549 KHURSIDA BEGUM (DEAD)
BY LEGAL REPRESENTATIVES AND OTHERS VS MOHAMMAD FAROOQ
(DEAD) BY LEGAL REPRESENTATIVES AND ANOTHER in which it was held that gift of undivided share in the property made by father to his minor son by executio of registered deed. The plaintiff failed both partition and oral Hiba hence the facts not applicable to the present facts of the case. Moreover all these citations applicable to the facts of the defendant, why because after partition the property gifted by the husband of the plaintiff in favor of the defendant No. 2. There is no necessity of the delivery of possession.
9. AIR (AP) 1973 198 BETWEEN MASSON SAB VS MADAR SAB in which it is held that “A gift to two or more donees jointly is valid, notwithstanding that the donor has not divided the shares of the donees, nor given separate possession. A gift may be validly made in India to two donees, notwithstanding the fact that the two donees are to hold the property as tenants in common. Whether the shares given to the donees be equal or unequal, once 25 O.S.No.3158 of 2004 the donor has parted with complete possession in favor of the donees, the donees become transferees of the property and the gift is complete”.
10.LAWS(SC) 2016 2 KHURSIDA BEGUM (D) BY LRS. AND ORS.
VERSUS KOMAMMAD FAROOQ (D) BY LRS. AND ANR. In which it is held that it is settled principle of Muslim Law that gift of undivided share in property, which is capable of division is invalid except in 4 cases i.e where it is made by one co-sharer in the property to another; where the property admits of definite ascertainment of shares and is capable of separate enjoyment without division; where it is made to a minor who is under the custody of the donor and to whom the donor transfers a part of the property; where the property is freehold property in large commercial town.
11. LAWS (APH) 2010 (2) 88 PARITI SURYAKANTHAMMA VS
SARIPALLI SRINIVASARAO in which it is held that instrument of partition means any instrument whereby co-owners of any property divide or agree to divide such property in severally, and includes also a final order for effecting a partition passed by any revenue authority or any civil court and an award by an arbitrator directing a partition and a memorandum regarding past partition is also brought within the definition of instrument of partition by A.P.
Amendment Act 17 of 1986. By virtue of the said amendment, a memorandum regarding past partition also amount to instrument of partition requiring same duty as a bottomry bond for the amount or the market value of the separate share or shares. Even assuming that the dispute document is only a memorandum of past partition,still it is required to be drafted on stamp paper as per the market value of the share.
12. In a citation reported in 2010 (2) ALD 847 BETWEEN PARITI
SURYAKANTHAMMA AND ANOTHER VS SARIPALLI SRINIVASA RAO
AND ANOTHER in which it is held that the memorandum of past partition would come with in the definition of instrument of partition by virtue of state amendment and it is also compulsory registrable document and it is not admissible in evidence.
13. 1998 (5) ALD 223 MOHD. JAMAL AND OTHERS VS MOHD.
SHARFUDDIN AND OTHERS in which it is held that unregistered partition deed among members of a muslim family can not be looked in to for want of 26 O.S.No.3158 of 2004 registration. It cannot be considered even for the purpose of showing division in status, as the parties are governed by muslim law and there is no question of joint family as in Hindu Law.
14. 1992 AIR SCW 846 RAMESH HIRANAND KUNDANMAL VS
MUNICIPAL CORPORATION OF GREATER BOMBAY AND OTHERS in which it is held that the person who has no interest in the property is not the proper and necessary party.
15. 2011 (3) ALD 547 KOLLI RANGA RAO AND ANOTHER VS
KOLLI VARALAKSHMI JANANI in which it is held that when a signature or thumb impression on a document is denied, it has to be proved as a fact whether the signature or the impression is that of the person who had alleged to have put his signature or thumb impression. It becomes an important point to decide the case on merits. Of course, the same has to be appreciated along with other evidence on record.
16. LAWS (APH) 2013 7 UPPULA RAMESH VS ELAGANDUL
HARINATH in which it is held that affidavit of living person is not admissible in evidence.
17. LAWS (APH) 1999 (4) 29 KANADAPUDI BHARATHY, GUDIVADA
VS AUTHORITY UNDER SECTION OF A.P.S.E.ACT-CUM- LABOUR
OFFICER, MACHILIPATNAM in which it is held that power of attorney holder of a party can appear only as a witness in his personal capacity to speak about the facts which are within his personal knowledge about the case, but he cannot appear as witness on behalf of a party in the capacity of that party.
18. LAWS (APH) 2008 (6) 84 MADA YADAIAH VS THOOMUKUNTLA
KARUNAKAR REDDY in which it is held that the evidence must be supported by the pleadings.
19. LAWS (SC) 1953 (1O) 20 DEPUTY COMMISSIONER, HARDOS,
INCHAARGE COURT OF WARDS, BHARAWAN ESTATE VS RAMA KRISHNA
NARAIN in which it is held that all the rules insist upon is that all persons should be joined as defendants against whom any right to relief is alleged to exist, provided that such right arises in respect of the same act or transaction 27 O.S.No.3158 of 2004 or series of acts or transactions and the case is one where common question of law or fact would arose.
20.LAWS (APH) 1954 (9) 11 KALTHOORU RAGHAVAREDDY VS
KALATHOORU VENKATA REDDY in which it is held that in a suit for declaration that the plaintiffs are entitiled to a specific item alleged to have been allotted to them in the partition is not maintainable.
21. 2009 (3) ALT 562 N.SRIHARI (DIED) PER L.Rs. AND OTHER VS
N.PRAKASH AND OTHERS in which it is held that separate suit for cancellation document, when a party basing his title on a particular document and when genuineness of the said document is disputed by the other side, burden is on the party relying on the document establish that it is a true and valid document and binding on the other party. Other party need not lie a separate suit for cancellation.
22. 2002 (6) ALT 116 BEPARI SHAIK PEERAN VAS KAMALAPURAM
MAHABOOB BI AND OTHERS in which it is held that right enjoy the property by donee postponed as donor retained the limited right to enjoy the income from the property towards her maintenance during her life time, however the donor has no right of alienation.
23. AIR 197 SUPREME COURT 1865 SAIT TRAJEE KHIMCHAND
AND OTHERS VS YELAMAR SATYAM AND OTHERS in which it is held that mere marking of a document as exhibit does not dispense with proof.
24. ALT 2003 (5) 266 PRDESHYA INDUSTRIAL INVESTMENT
CORPORATION OF U.P. LIMITED VS SUCHITRA ELECTRONICS PVT. LTD.
JEEDEMIETLA in which it is held that in the absence of the specific plea, the evidence adduced is not considerable.
25. AIR (SCW) 2014 6261 RASHEEDA KHATOON VS ASHIQ ALI in which it is held that there is no necessity to advert to the aspect whether the instrument in question required registration or not because there can be certain circumstances a deed in writing may require registration.
All the citations are not applicable to the present facts of the case if the plaintiff proves the partition and oral gift. Even in the absence of the partition deed, the husband of the plaintiff is entitled to execute the gift deed in favour of 28 O.S.No.3158 of 2004
Defendant No.2 in his undivided share. Here the above citations are not applicable to the present facts of the case.
27.The plaintiff has approached the court and he has to establish the case.
The plaintiff initially has to establish the partition. But the plaintiff failed to establish the partition. Later the plaintiff also failed to establish the oral HIBA.
The plaintiff is not entitled to depend upon the weekness of the defendant. Even the partition took place between the brother, not taken in to consideration, the husband of the plaintiff has executed the gift settlement deed in favor of his brother under registered gift settlement deed towards his share. Once the husband of the plaintiff, executed the gift settlement deed in favor of his brother the plaintiff is not entitled to claim the share in the said property and the suit filed by the plaintiff for the partition is not maintainable and liable to be dismissed. All the citations, relied on by the counsel for the plaintiff is not applicable to the present facts of the case as the plaintiff is failed to prove her contentions of partition and of ORAL HIBA. The plaintiff contended that the defendants memorandum of partition is not reliable document as per the above citations. It is settled that the past oral memorandum partition is compulsory registrable document. Even in the absence of the memorandum of partition, the husband of the plaintiff is entitled to execute the gift settlement deed in favor of his brother in his undivided share.
28. In this context the learned counsel contended that the delivery of possession is one of the essential ingredients of Hiba but it can it be said to invalidate Hiba, if possession is delivered subsequent to declaration and acceptance of a gift. In the case of Bagga Bai Vs Bakrid Khan AIC Chattisgarh
HC 638 it was ruled that delay in delivery of possession can not vitiate the gift.
In a citation reported in 1973 (1) AN WR 337 DB in which it is held that no 29 O.S.No.3158 of 2004 physical delivery of possession of gifted property is require. In a citation reported in AIR 1980 Madras 66 in which it was held that no mutation of name is necessary if the deed of gift declares that the husband delivered possession to the wife and the deed is handed over to her and retained by her. These citations not applicable to the present facts of the case why because the property is the self acquired property of the husband of the plaintiff. When it is the self acquired property of the husband of the plaintiff, subsequent to the alleged gift in favor of the plaintiff, one more gift alleged to be executed by the husband of the plaintiff. In those circumstances the plaintiff has to establish her gift beyond reasonable doubt and she has to establish her exclusive possession over the property.
29. The plaintiff counsel also relied on DOCTRINE OF MUSHA. The learned counsel contended that even if the oral partition dated 2-8-82, is not believed for any reason, and attacked by the other side as not valid, then it can be safely concluded that the oral gift under the doctrine of Mushaa in respect of undivided share of plaintiff’s husband is also valid as principles of
Mohammedan Law by Mulla, which reads as under: A gift of an undivided share in property which is capable of division is irregular but not void. The gift being irregular and not void. The gift being irregular and not void,, it may be perfected and rendered valid by subsequent partition and deliver to the donee of the share given to him. If possession is once taken the gift is validated. Hence if the plea of Oral gift becomes irregularly and present suit can be treated as step for regularizing the irregular gift.
30.All the citations relied by the learned plaintiff counsel not applicable to the present facts of the case, as there was subsequently valid partition and oral 30 O.S.No.3158 of 2004 gift between the parties. The claim of the plaintiff is not maintainable and liable to be dismissed.
31.ISSUE No. 4: Whether the suit is bad for non-joinder of the necessary parties?
The husband of the plaintiff died after three days of the filing of the suit.
He was alive by the date of the filing of the suit. The plaintiff did not shown him as a party to the proceedings, and contended that he has no interest in the property as such he is not the necessary and proper party to the proceedings.
He made oral HIBA as per the contention of the plaintiff. As such he was the proper and necessary party to the maintainability of the suit. Accordingly this issue answered infavor of the defendants against the plaintiff.
32.ISSUE No.5: To what relief?
In view of the findings in issues No. 1 to 4, the suit deserves to be dismissed.
33. IN THE RESULT, the suit is dismissed with costs.
Typed to my dictation, corrected and pronounced by me in the open Court on this 30th day of December, 2019.
Sd/-
IV SENIOR CIVIL JUDGE,
FAC VII SENIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.
APPENDIX OF EVIDENCE
Witnesses examined
FOR PLAINTIFFS: FOR DEFENDANTS:
PW.1: Mrs. Ayesha Akbari.DW.1: M.A. Aziz.
PW.2: Mohd. Farooq Mohiuddin Siddiqui.DW.2: Kaleemullah Khan.
DW.3: M.A. Khayum.
DW.4: Smt. Mumtaz Begum.
31 O.S.No.3158 of 2004
DOCUMENTS MARKED
FOR THE PLAINTIFFS:
Ex.A.1: Certified copy of Sale Deed dated 24.07.2004.
Ex.A.2: Certified copy of plan.
Ex.A.3: Original Marriage certificate.
Ex.A.4: Copy of Bank pass book.
Ex.A.5: Electoral voter list.
Ex.A.6: Original property tax bill.
Ex.A.7: Original property tax.
Ex.A.8: Original property tax dated 28.09.1992.
Ex.A.9: Original property tax for the month of December, 1992.
Ex.A.10: Original property tax.
Ex.A.11: Original property tax for the month of December, 1994.
Ex.A.12: Original property tax for the month of December, 1993.
Ex.A.13: Original identity card issued by the Election Commissioner.
Ex.A.14: Original SBH pass book.
Ex.A.15: Original envelop cover.
Ex.A.16: Original form of application for payment of provident fund.
Ex.A.17: Electricity bill dated 14.04.1999.
Ex.A.18: Original stock holding corporation.
Ex.A.19: Original identity card for the year 2003.
Ex.A.20: Copy of demand notice issued by MCH.
Ex.A.21: Copy of demand notice dated 22.12.2003.
Ex.A.22: Original letter from stock holding.
Ex.A.23: Original letter from stock holding.
Ex.A.24: Property tax bill from October, 1993 to March, 1994.
Ex.A.25: Property tax bill dated 29.12.1993.
Ex.A.26: Demand notice to MCH dated 17.11.2006.
Exs.A.27Photos. to A.35:
Ex.A.36: Original property tax, dated 13.05.2011.
Ex.A.37: Encumbrance certificate dated 18.01.1999.
Ex.A.38: Application for general search, dated 22.01.1999.
Ex.A.39: Original MCH Assessment record dated 04.10.1997.
Ex.A.40: Original encumbrance certificate dated 13.04.2004.
32 O.S.No.3158 of 2004
FOR THE DEFENDANTS:
Ex.B.1(1):Affidavit. Ex.B.1(2):Deed of partnership dated 25.06.1982.
Ex.B.2: Memorandum of Oral gift(Hiba) dated 15.08.1996.
Ex.B.3: Wedding card dated 12.05.1963.
Ex.B.4: Death Certificate of 1st defendant’s husband dated 20.11.1996.
Ex.B.5:G.P.A.
Ex.B.6:Certified copy of Sale Deed dated 11.10.1968.
Ex.B.7:Memorandum of Confirmation of Oral Partition dated 07.07.1996.
Ex.B.8:Certified copy of Gift Settlement dated 28.06.2001.
Ex.B.9:Certified copy of Gift Settlement dated 19.07.2004.
Ex.B.10:Death certificate of K.M. Ziaullah Khan.
Ex.B.11:Medical records of K.M. Ziaullah Khan(17 sheets).
Ex.B.12:Medical records of K.M. Ziaullah Khan(4 sheets).
Ex.B.13:Medical records of K.M. Ziaullah Khan(12 sheets).
Ex.B.14:Medical records of K.M. Ziaullah Khan(12 sheets).
Ex.B.15:Medical records of K.M. Ziaullah Khan(3 sheets).
Ex.B.16:Office copy of Form A-2 dated 13.07.1977.
Ex.B.17:Office copy of Form A-2 dated 12.09.1977.
Ex.B.18:Office copy of Form A-2 dated 15.10.1977.
Ex.B.19:Office copy of Form A-2 dated 15.11.1977.
Ex.B.20:Office copy of Form CST VI dated 21.11.1979.
Ex.B.21:Office copy of Form A-2 dated 11.02.1980.
Ex.B.22:Office copy of Form CST VI dated 11.02.1980.
Ex.B.23:Office copy of Form A-2, dt: 11.04.1980.
Ex.B.24:Office copy of Form CST VI dated 11.04.1980.
Ex.B.25:Office copy of Form CST VI dated 15.01.1985.
Ex.B.26:Office copy of Final Assessment Order from Commercial Tax Department, dated 14.02.1986.
Ex.B.27:Office copy of Division Proceedings of Commercial Tax Officer (FAC) Charminar Circle, Hyderabad, dt: 22.09.1988.
Ex.B.28:Publication in the daily salar along with English Translation
dated 07.08.2004.
Ex.B.29:Publication in the Siasat Daily (Obituary of SM Ziaullah Khan)
dt: 10.08.2004.
Ex.B.30:Encumbrance certificate from 24.03.1994 to 02.01.2017.
Sd/-
IV SENIOR CIVIL JUDGE,
FAC VII SENIOR CIVIL JUDGE,
CITY CIVIL COURT, HYDERABAD.