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IN THE COURT OF THE JUDGE, FAMILY COURT, KUNROOL.
Present: - Smt.S.Premavathi, M.Com., L.L.M.,
IV Additional District Judge, Kurnool
Thursday, the 1st day of October, 2015
A.S.No.42/2008.
1. Imtiaz Raja, aged 13 years, minor,
2. Parvez, aged 11 years, minor, Both are minors, Rep. by their mother Defacto guardian Smt. Parveen, W/o.Mahaboob Basha, R/o. Kunool.… Appellants.
-Versus-
1. Noor Ahmed.
2. Malan Bi.
3. Mahaboob Basha.
* 4. Khajabi.
* 5. Ameer Bi.
(* Added as L.Rs of 2nd Respondent as per orders
Made in I.A.No.181/2011, dated 05-09-2011).
…Respondents
On appeal preferred as against the order and decree dated 28-08- 2006 passed in E.A.No.109/06 in E.P.No.213/2005 in O.S.No.199/2002 on the file of Additional Senior Civil Judge’s Court, Kurnool.
1. INtiaz Raja, aged about 12 years, minor,
2. Parvez, aged 10 years, minor, Both are minors, Rep. by their mother Defacto guardian Smt. Parveen, W/o.Mahaboob Basha, aged about 48 years, R/o. D.No.13/207, Mandi Bazar, Kunool.… Petitioners.
-Versus-
1. Noor Ahmed, S/o.Subhan Miah, Aged about 40 years, H.No.13/207, Peta, Kurnool.
2. Malan Bi, W/o.Late Abdul Razack, Aged about 80 years, H.No.13/207, Peta, Kurnool.
3. Mahaboob Basha, S/o. Late Abdul Razzack,
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Aged about 45 years, H.No.13/207, Peta, Kurnool. * 4. Khajabi, W/o.Jabbar Miah, Aged about 62 years, Muslim, House-wife, R/o. Aligarh Bagh, Mandimetta, Kurnool.. * 5. Ameer Bi, W/o.Noor Ahmed, Aged about 40 years, Muslim, House-wife, R/o.D.No.13/207, Peta, Kurnool. (* Added as L.Rs of 2nd Respondent as per orders
Made in I.A.No.181/2011, dated 05-09-2011).
…Respondents
R.2 died.
This case coming on this day i.e., on 05.08.2015 for final hearing
before me in the presence of Sri.D.Yella Reddy, Advocate for the
appellants/petitioners and of Sri.M.Sreenivasan, Advocate for the respondent No.1 and Sri. Mahaboob Basha, Advocate for the respondent
No.3 and respondent No.4 remained exparte and upon hearing the arguments and having stood over for consideration till this day, this
Court delivered the following:-
J U D G M E N T
1.This present appeal is preferred against the decree and order
dated 28-08-2006 made in E.A.No.109/06 in E.P.No.213/05 in
O.S.No.199/02 passed by the Additional Senior Junior Civil Judge, Kurnool
by the appellants/petitioners.
2. The appellants herein are the petitioners and the respondents herein are the respondents before trial Court. The parties herein after referred to as petitioners and the respondents for the sake of convenience as arrayed in E.A.No.109/06 before the trial court.
3. The brief averments of the Execution Application are that:
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The minor petitioners No.1 and 2 are represented by their mother defacto-guardian Smt.Parveen. First respondent is the son-in-law of the second respondent. The second respondent is the paternal grand mother, 3rd respondent is the father of the minor petitioners. The 3rd respondent is the father of the minor petitioners is addicted with alcohol so he neglected about the welfare of minors and so the second respondent being the paternal grand mother observing the bad habits of 3rd respondent with a love and affection executed a gift deed in favour of the petitioners on 23-07-1999 by appointing the defacto-guardian Smt.
Parveen as a guardian to the southern portion of her house bearing
No.13/207 on the same day and she delivered the possession of scheduled property to the minors. The minors and their mother who is representing them accepted the gift on behalf of minors. From then they have enjoying the scheduled property with absolute without any interruption . The mother of the minor petitioners further submitted that second respondent keeping the northern portion of door No.13/207 in her possession and has been enjoying with that property. Apart from that her elder daughter and first respondent’s families have been residing in the said portion. The mother of the minor petitioners further submitted that she is an illiterate and doing beedi rolling work and earnings on beedi rolling work is the source of their livelihood.
4.She further submitted that since 23-07-1997 herself, minors and 3rd respondent have been residing in the said house. The revenue authorities also issued ration card to prove their possession and enjoyment over the scheduled property. The first respondent with a malafide intention to grab the entire house of the second respondent obtained a mortgage deed in his favour and filed a suit and brought the said property for sale. Actually from 23-07-1997 neither the second
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respondent nor the 3rd respondent have right over the said property as the said property was an absolute property of minors. The second respondent delivered the possession of the said property on the day itself. So obtaining decree over the entire property by the first respondent is illegal and void and also it is against natural justice. In the month of November, 2005 the second petitioner fell in sick and so to take treatment herself and petitioners went to her parents house there her parents gave treatment with eminent doctors. After reaching their house they came to know the first respondent brought the scheduled property along with property of second respondent for sale and the same was posted before the Hon’ble Court of Prl.Senior Civil Judge,
Kurnool on 23-01-2006.
5.She further submitted that actually the property is not belongs to second respondent after 23-07-1997 as she has given the said property by way of gift on the said day and possession was also delivered to the minors but without having the knowledge of the same the first respondent in order to grab the property took signatures of 2nd and 3rd respondents on the alleged mortgage deed, so the mortgage deed is not binding on the minors as he has no right to brought the property for sale. She further submitted that equity and balance of convenience are only in favour of the minor petitioners, she filed the present petition on behalf of the minors praying the Hon’ble Court to raise attachment over the petition schedule property in the interest of justice.
6. Counter filed by the first respondent resisting the petition and inter-alia submitted that petition filed to delay the justice and to abuse the court process. He contended allegations that minors are absolute owners of the petition schedule property and the 3rd
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respondent who is the father of minor petitioners is addicted to alcohol and neglected his children and that second respondent executed a gift deed in favour of the petitioners on 23-07-1997 by appointing
Smt.Parveen as guardian of southern portion of her house bearing No.
13/207. He submitted that no guardian cannot be appointed for portion of the house and it is unnecessary and ridiculous to cite the contents of paras No.2,3 and 4 as it is waste of Hon’ble Court’s time and those are denied as false and concoted for the sake of petition. He submitted his case as follows:
(a) The alleged gift deed dated 23-07-1997 is written on insufficient stamp papers.
(b) Strangely, the stamp papers were purchased by none other than the 3rd respondent, which cannot be expected to buy stamp papers in his own name for execution of this type of deed. Therefore it is submitted these two stamp papers were salvaged from the papers of the 3rd respondent by the so called defacto guardian, who is no other than the wife of the 3rd respondent. She could easily solvage these two stamp papers from the old papers of 3rd respondent and now with a crooked advice of somebody cooked up this documents. The petition is collusive as they live in the same premises.
(c) O.S.No.199/02 is being litigated since the year 2002 filed against 2nd and 3rd respondent by the first respondent. The second and third respondents filed written statements, counters during trial of the suit. At no point of time 2nd and 3rd respondents came up with his plea.
They have came up with this very new idea at this stage of case clearly to delay the justice which is nothing but abusing the Court.
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(d) The second respondent gave criminal complaint against 1st respondent and C.C.19/03 was filed. It was never mentioned by the complainant either while lodging complaint to the police or while deposing before the Court that the property belongs to minors as is now alleged in the affidavits.
(e) The first respondent filed a suit against second respondent for declaration that the first respondent and his wife are the absolute owners of 35% share of the petition schedule house in O.S.No.196/2003 on the file of the II Additional Civil Judge, Kurnool. The second respondent filed written statement during the time of trial of suit at no point of time, second respondent came with this plea. He also denied the delivery of possession and sought to dismiss the petition with costs.
7.The impugned order disclose that for the respondents No.2 and 3 no notice was given in Execution Application for the reason that respondents No.2 and 3 who are J.Drs 1 and 2 in the main E.P.,
No213/05 in O.S.No.199/02 remained exparte. But second respondent examined as P.w.3 in E.A.
8.Further it disclose that on behalf of petitioner P.Ws.1 to 3 were examined and Ex.A1 and A2 were marked. On behalf of respondent, R.w.1 was examined and Exs.B1 to B3 were marked.
9.The trial court framed the following points for consideration:
(1) Whether Ex.A1 unregistered gift deed dated 23-7-1997 is admissible in evidence. ?
(2) Whether the petitioners are entitled for raising of attachment over the petition schedule property.
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10.After considering the entire evidence before the trail court the trial court since felt that petitioners are failed to prove the alleged gift deed executed in their favour and the said gift deed dated 23-7- 1997 is not at all admissible in evidence so petitioners are not entitled for the relief as prayed them and dismissed the petition with costs.
11.Aggrieved by the same the petitioners in E.A., are preferred this appeal with following grounds:
(1)The trial court ought to have accept the evidence of P.Ws.1 to 3 in toto and ought to have reject the evidence of R.w.1.
(2)The trial court ought to have held the second respondent has gifted and executed the gift deed dated 23-7-1999 in respect of the southern portion of the house bearing Door
No.13/207 in favour of the appellants/petitioners and the said gift deed was accepted by the mother of the appellants/petitioners namely Smt.Parveen on behalf of the minor appellants/petitioners and the second respondent has also delivered the possession of the minor appellants /petitioners and on their behalf their mother took possession and the gift deeds were accepted and it is proved under
Ex.A2 ration card.
(3)The trial court ought to have held that Ex.A1 does not require any registration as under Mohamadan Law oral gift allowed by possession is sufficient to complete the essential gift.
(4)The trial court ought to have held that as the gift deed is marked and question of admissible in evidence as it is already marked as Ex.A1 and the trial court has also not called for the appellants/petitioners to pay the stamp duty and penalty and the trial court has not property interpreted the case laws submitted by both parties.
(5)The trial court ought to have held that respondents No.2 and 3 have no salable interest over the petition schedule
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property as on the date when the property was obtained and brought for sale.
(6)The trial court ought to have held that first respondent has played fraud with the respondents No.2 and 3 and obtained the alleged mortgage deed and obtained fraudulent deed against the respondents No.2 and 3, as the first respondent knows that the second respondent gifted away the petition schedule property.
(7)The trial court ought to have held that appellants/petitioners are the owners and have possession of the E.P.,schedule property and s 2nd and 3rd respondents have no right or title over E.P., schedule property on the date of alleged mortgage deed, attachment and also on the date of property was brought for sale.
12.Now the points for consideration are
1.Whether the petitioners are entitled for raising of attachment over the petition scheduled property ?
2.Whether there is need to interfere the order dated 28- 08-2006 passed in E.A.No.109/06 in E.P.No.213/2005 in
O.S.No.199/2002 on the file of Additional Senior Civil
Judge’s Court, Kurnool of trial court ?
13. Before going into the discussion I feel it is appropriate to get separate the admitted facts. The admitted facts are that
i)There is no dispute with regard to the relationship between the petitioners and the respondents ii)The first respondent is the son in law of the second respondent.
iii)Second respondent is the mother of the third respondent.
iv)The petitioners 1 & 2 are the grand children of second respon- dent and sons of third respondent.
v)Petitioners 1 & 2 are the minors they represented by their mother as guardian.
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vi)The first respondent married youngest daughter of second re- spondent.
vii)The second respondent filed suit O.S.No.199/2002 against the respondents 2 & 3 on the strength of mortgage deed alleged to have executed by respondents 2 & 3 by borrowing an amount of Rs.50,000/- on 15-12-1997.
viii)The suit O.S.No.199/2002 was decreed in favour of first respon- dent.
ix)The first respondent after obtaining decree filed
E.P.No.213/2005 for sale of the mortgaged schedule property
under Order-21 Rule-66 of CPC.
x)In the execution proceedings the J.Drs 1 & 2 i.e., respondents 2 & 3 remained exparte and not contesting the case.
xi)Sale was held on 23-01-2006 in the E.P.No.213/2005.
xii)The second respondent filed C.C.No.179/2003 against the first petitioner the same is ended in acfquittal.
xiii)The first respondent filed suit O.S.No.196/2002 for declaration of his right and title over 35% of share in the schedule men- tioned property against second respondent and the said suit was also decreed in favour of first respondent.
14. POINT No.1:- “Whether the petitioners are entitled for raising of attachment over the petition scheduled property ?”
I feel it is appropriate to refer the Rule 58 of Order 21 of C.P.C.
Rule 58 says as follows “(i) where any claim is preferred or (ii) any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim, or objection in accordance with provisions herein contained.
(1) Provided that no such claim or objection shall be entertained-
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(a) Where before the claim is preferred or objection is made the property attached has already been sold or
(b) Where the Court considers that the claim or objection or designedly or unnecessarily belayed.
(2) All the questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.
(3) Upon the determination all the questions referred to in Sub- rule(2), the court shall in accordance with such determination –
(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it things fit or
(b) disallow the claim or objection or
(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person or
(d) pass such order as in the circumstances of the case it deems fit.
So the main ingredient to deal with the prayer to raise attachment the petitioner/appellant has to prove (1) attachment over the petition scheduled property. (2) Right , title or interest over the property attached i.e., petition scheduled property herein. The case of the petitioners is that first respondent with malafide intention obtained mortgage deed from second respondent and filed the suit and also obtained decree in his favour. According to them, the said decree over the entire property is illegal and void, hence, first respondent can not
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put the property for sale in the execution proceedings and the attachment has to be raised.
15.But as already stated supra first of all to seek the attachment to be raised the petitioner has to prove that E.P. schedule property is under an attachment before judgment in the suit filed by the first respondent. Here the first respondent contends that he filed suit for simple mortgage and there is no attachment sought by him in the said suit and the suit was decreed in his favour. In support of his version he relied upon the decisions reported in AIR 1984 SC 117 . But the said case differs from the facts and circumstances of this case. In the said case there is involvement of two suits and the appellant before the Hon'ble Supreme court is only a mortgagee with regard to the simple mortgage property so their lordships held that he is not entitled to object to the attachment of the equity of redemption.
16. But the other decision reported in AIR 1991 Madras 275
M.S.Doraisami Iyer Appellant v/s A.R.Arunachalam Chettiar and
others, Respondnents. Wherein their lordships held that
“ …..the application filed by the appellant in the
executing court was itself not maintainable. The
application is one under Order 21 Rule 58 ,C.P.C. No
such application can be maintained in a proceeding
in execution of a mortgage decree. Rule 58 of Order
21 C.P.C. can come into play only when there is an
attachment. In the case of mortgage there is no
question of attachment and in this case, there was
no attachment as such. Consequently, the
application was not maintainable. The appeal by the
appellant before the lower Appellate court was also
not maintainable.”
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17.Hence following the dictum of the above said judgment and absence of any attachment with regard to the petition scheduled property before its judgment in O.S.No.199/02 the present claim petition is not maintainable. Hence the point is answered against the petitioners.
18.Whether the gift document Ex.A1 is true/genuine, valid and intended to acted upon and binds the 1st respondent ?
To prove the same the petitioners No.1 and 2 who are the minors represented by their natural guardian mother Smt. Parveen examined herself as P.w.1 and also got examined one D.A.Sukhar as P.w.2 who is said to be eye witness to Ex.A1 and second respondent in the above
E.A.No.109/2006 as P.w.3 i.e., executor of Ex.A1 who is none other than the grand mother of minor petitioners No.1 an 2. PW 1 main case is that 3rd respondent addicted to drinks and neglected the petitioners and her self for that reason the second respondent executed a gift deed in favour of the petitioners on 23-07-1997 in respect of southern portion of her house bearing door No.13/207, keeping the northern portion of the house for her sake and PW1 being mother of the petitioners No.1 and 2 accepted the gift on behalf of petitioners No.1 and 2 and took possession of the scheduled mention property. Ever since the gift, petitioners are in possession and enjoyment of the property and they became absolute owners and none others have got any right over the property. first respondent who is son-in-law of the second respondent is residing in a portion of the house along with his family members in the house bearing door No.13/207. but the first respondent with a malafide intention obtained mortgage deed from second respondent and filed the suit and also obtained decree in his favour and brought it for sale. She further submitted that infact the property exclusively belongs to the
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petitioners as per gift deed executed by 2nd respondent in favour of the petitioners the second respondent has no right over the said portion covered by the gift deed, as such the mortgage deed is not binding on them and thereby the first respondent can not put the property for sale in the execution proceedings. But the contention of the first respondent is that the alleged gift deed is a created and collusive document and it was brought into existence in collusion of PW1, 2nd and 3rd respondents.
He submits that earlier he filed O.S.No.199/2002 against the respondents 2 and 3 for realization of the amount due under a mortgage deed in that suit respondents 2 & 3 filed written statement, but, they never contended that second respondent executed a gift deed in favour of the petitioners in respect of Southern portion of the schedule mentioned house. He also submitted that second respondent gave criminal complaint against him and the same was numbered as
C.C.No.179/2003. In that complaint also the second respondent never pleaded that she executed a gift deed in favour of petitioners 1 & 2 in respect of the Southern portion of the house. Further first respondent submits that he filed a suit against the second respondent for declaration of his right and title over 35% of share in the schedule mentioned house. The said suit was numbered as O.S.no.196/2003 on the file of Ii Additional Junior Civil Judge’s Court, Kurnool and the second respondent filed her written statement and at no point of time she came up with plea that she executed the impugned gift deed in favour of the petitioners. He denies that possession was delivered to the petitioners and that the respondents 2 & 3 are not having right over Southern portion of the house.
19. No notice was given to the 2nd and 3rd respondents in the impugned E.A petition for the reason that respondents 2 & 3 who are
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J.Drs 1 & 2 in the main E.P.No.213/2005 in O.S.No.199/2002 remained exparte. But it is an admitted fact that second respondent examined as
PW3 in the impugned E.A.
20. Chief-examination filed in the form of chief affidavit of PW1 is replica of averments in her petition. In support of her version she also deposed that revenue authorities also issued ration card to prove their possession and enjoyment over the schedule property. She also says that since in the month of November, 2005 the second petitionerfell in sick and so to take treatment she and petitioners went to her parents house and her parents provided treatment with eminent Doctors and after reaching their house they came to know the first respondent brought the suit schedule property along with the property of second respondent for sale and it was pending before Principal Senior Civil
Judge’s Court, Kurnool and posted to 21-01-2006 . She further stated
that the first respondent with a malafide intention to grab the entire house of second respondent obtained a mortgage deed in his favour and so obtaining decree over the property by the first respondent is illegal and void and does not bind the minor petitioners. But her own evidence in her chief examination affidavit is that not knowing the fact of gift deed and delivery of possession to the minors the first respondent brought the property for sale which is contradicting with each other .To prove her case she got marked Ex.A1 unregistered gift deed dated 23-07-1997 alleged to have executed by second respondent in favour of the minor petitioners 1 & 2.
21.In cross-examination it was elicited that her marriage solemnized about 13 years back and even prior to her marriage the first respondent and his wife who is the younger sister of her husband were staying in the scheduled house along with his children. She denied the suggestion
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that to evade the payment of mortgage debt herself, respondents 2 & 3 colluded together and created Ex.A1 gift deed about 3 years 3 months back just for the purpose of this case and she deposes false. She pleaded ignorance that who was the scribe of Ex.A1 but deposed that one Sukoor (PW2) signed as attestor in Ex.A1 and third respondent brought the attestor Sukoor (PW2) and they came along with her to the court on the date of her deposition. She admitted that first respondent is still residing in his 35% portion in schedule mentioned house and they are residing in their share of portion. She denied the suggestion that from the beginning herself, third respondent residing along with second respondent in the said portion of the house and that she had not taken possession of the said portion under Ex.A1 document. She also admitted that she has not filed any documentary proof to show that she went to her parental house for treatment to her son in the month of November, 2005 and de4nied the suggestion that she never gone to her parental house in the month of November, 2005 and denied that she is deposing falsehood.
22.The evidence of B.A.Sukoor (PW2) who is said to be attestor of
Ex.A1 is corroborating with the pleading and evidence of PW1 he deposed that in the presence of all the persons second respondent
pronounced that she had been giving the Southern side portion of her
house to grand children i.e., petitioners 1 & 2 in D.No.13/207 and immediately they three persons i.e., 2nd,3rd respondents and himself went to the office of document writer Mohaboob Basha brought the stamp papers as per the advice of second respondent and on the instructions of second respondent the document writer drafted the gift settlement deed and read over the contents of the deed and there after
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2nd respondnet put her thumb impression underneath of the each page of the document and he attested the same.
23.In cross-examination it was elicited that third respondent is working as Clerk in his business since 1985 and he do not know the contents of gift deed. It is contradicting his chief -examination why because at the time of his chief examination he deposed that document writer read over the contents of the deed and there after only the second respondent put her thumb impression underneath the each page of the document and he attested the same as attestor. According to PW2, at the time of execution of gift deed himself, respondents 2 & 3 ,pw1 and document writer were present. He pleaded ignorance that in whose names the stamp papers were purchased but at the very next movement he again deposed that the stamp papers purchased in the name of three children. His evidence further disclose that he even do not know the names of children . Here the case of the petitioner itself is that gift deed excuted in favour of the 2 children. Hence it is clear that
PW2 evidence is not corroborated the version of PW1 in material aspect why because when PW2 is claiming he was attestor of ex.A2 generally he is expected to have the knowledge of the facts that in whose favour the property is being gifted . But Pw2 failed to depose the same. Hence his evidence fails to inspire the court confidene.
24.The evidence of PW3 assumes much importance and it is crucial to prove the case of the petitioners. She categorically deposed at the time of her chief examination by filing chief affidavit staing that at about 10 years back she gifted some portion of house to her grand sons as their father is addicted to alcohol. She felt to uplift his family gifting away the petition schedule property in favour of the minor petitioners 1 and 2 is the only solution so she called PW2 who is his
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neighbor and in the presence of PW2, minors petitioners 1 and 2 ,PW1 and third respondent she declared that she is giving the Southern portion of house to her grand-children and her grand children accepted same through their mother PW1 and immediately they joined in the said portion by vacating from the another room of the same house.
Thereafter herself, PW2, third respondent and PW1 went before the document writer and prepared the document and there she signed and document writer read over and explained the contents to her.
25.At the time of cross-examination it was elicited that the marriage of first respondent with her younger daughter took place in the year 1982 and from then onwards they are residing in one portion of the scheduled house till date. She admitte4d that herself and third respondent jointly borrowed an amount of Rs.50,000/- from first respondent on 15-12-1997 but she pleaded that she do not remember whether they executed the registered mortgage deed in favour of first respondent mortgaging 65% of share in scheduled house towards security. She also admitted that first respondent issued a notice to them demanding the repayment of amount due under mortgage deed and they issued a reply through their advocate. Subsequently first respondent filed suit against her and third respondent for realization of the amount due under the mortgage. She also deposed that in that suit herself and her son engaged advocate and filed written statement and contested the case. But she deposed that she do not remember whether she pleaded in her reply notice and in her written statement in the suit filed by first respondent stating that already she gifted away the scheduled mentioned house in favour of her grand sons even prior to the date of mortgage. This version of PW3 strengthens the defendant's version. Why because if really 2nd respondent was already
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gifted away the petition schedule property in favour of the minor petitioners then certainly she would not have missed to mention the same in the written statements filed by her contesting the suit filed by the 1st respondent and also in the complaint filed by her against the 1st respondent. From the pleading and evidence of RW1 it is clear that second Respondent is the owner of the house bearing D.No.13/207 including the petition scheduled portion and prior to his marriage
Respondents 2 & 3 and his sister in law were residing in the said house and one month after their marriage the second Respondent executed gift deed in his favour regarding North-West portion of the main building and in Southern side portion and Eastern side portion Respondents 2 & 3 were residing and in the year 1997 the Respondents 2 and 3 executed a mortgage deed in his favour in connection with the debt amount of
Rs.50,000/- from him. He admitted that he has not obtained encumbrance certificate before obtaining mortgage deed in his favour from Respondents 2 & 3 but there is no document brought on record by the Petitioners that prior to mortgage deed there were encumbrances with regard to the scheduled property.
26.The written statement (Ex.B1) in O.S.No.199/2002 filed by
Defendants 1 & 2 therein who are the Respondents 2 & 3 herein does not disclose with regard to the execution of Ex.A1 i.e., gift deed in this case. Further i.e., written statement filed by the Defendant therein who is the second Respondent in the present E.A also does not contain any recital with regard to the alleged impugned gift deed. Further Ex.B3 also not disclosing the execution of Ex.A1 though they came into existence after the alleged date of execution of Ex.A1. Had the second Respondent really executed the impugned gift deed in favour of the Petitioners 1 & 2 by appointing PW1 as a guardian to the Petitioners 1 & 2 and delivered
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the possession thereof immediately after its execution and if it was really accepted by the PW1 on behalf of the minors it would definitely found place at least in any one of the documents i.e., Exs.B1 to B3.
Nothing prevented the Respondents 2 & 3 to got recited in their alleged written statement when they chose to contest the cases filed against them by the first Respondent. Therefore it suggests that PW3 not deposing truth. Further she denied the suggestion that the gift deed was created about 8 months back for the purpose of this case. But finally she admitted that she was informed that to stop the sale in this
E.P., she has to execute a gift deed in favour of her grand children and so she executed the gift deed. Hence, from the evidence of PW3 it is crystal clear that in order to stop the execution proceedings initiated by the first respondent only the execution of Ex.A1 brought in to light by the PW1 in connivance with respondents 2 and 3.
27. Mere filing Ex.A2 disclosing the Petitioners are residents of scheduled property is not sufficient to prove the alleged gift deed and it no way comes to help the petitioners case.
28. Hence, in these circumstances and clear admission of PW3 it can be concluded that Ex.A1 is a collusive one intended to defeat the rights of 1st respondent The petitioners are failed to prove that Ex.A1 came into force and acted upon. Hence the point is answered against the petitioners.
29. POINT No.2:-
Whether the petitioners are succeeded in establishing their right, title or interest over the petition scheduled property on the date of filing of the claim petition. In view of the finding in point no. the petitioners
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are failed to establish their right , title or interest over the petition schedule property on the date of filing of the claim petition.
1. Now the point to be discussed is whether unregistered gift deed dt.
23-7-1997 is admissible in Evidence
In the present case unregistered gift deed was marked as Ex.A1 subject to objection and the objection will be decided at the time of final orders. The objection is that the said document is not at all admissible in evidence as the document was written on insufficiently stamped papers and further it is hit by section 17 and 147 of Indian
Registration Act and therefore, the document cannot be received in evidence.
30. On perusal of Ex.A1 it is found that it executed on Rs.2/- (two rupees) two stamp papers which is in sufficient and it Is unregistered and it is not in dispute. It is executed in favour of the minor petitioners 1 and 2 by the 2nd respondent keeping the PW1 as guardian for the minor petitioners with regard to the southern portion of the house bearing door No.13/207. The stand of the petitioners is that as per
Mohammedan Law under section 147 the gift deed need not be registered , the declaration ca be made orally or in writing but the ingredients required for proving the gift there must be relinquishment by donar, the donee must accept the gift there must be delivery of possession to the donee and all the ingredients under a gift is proved ,therefore, the document Ex.A1 can be received in evidence, no registration is required under Registration Act. Their further stands that even under Transfer of Property Act, the unregistered document is valid and the same is supported by a decision reported in AIR 1995
Allahabad ,333 hence the Ex.A1 is admissible in evidence and it an be received.
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31.But the 1st respondent submitted that according to Sec.350 of
Mohammadan Law
“if gift is made by an instrument in respect of
immovable property situate in a district to which
Registration Act applies, registration of a document
is necessary, without registration, the document
cannot be admitted in evidence”
32. Further he contended that under Mohammedan Law gift of immovable property can be made orally and there is no need to execute a registered instrument. But if a Mohammedan instead of orally gifting the property, if gift is made by executing a document, such document will come under Transfer of Property Act and it requires sufficient stamp duty and registration, otherwise, it is invalid. Apart from this he also contended that under Sec.17 of Registration Act, every deed of gift must be registered and the provisions of Transfer of
Property Act will come into force. Sec.129 of Transfer of Property Act requires a gift deed must be registered even in a case of Mohammedan and the document must be proved according to provisions of Sec.68 to 71 of Evidence Act. Therefore in the present case the alleged gift deed was written on four rupee stamp paper, which is insufficiently stamped and it is not registered and therefore it is not admissible evidence.
33.After hearing both sides the trial court felt that as per settled proposition of law that an oral gift is admissible under Mohomedan law under sec.347,348 and 349, provided, there must be declaration by the donar of the gift and there must be acceptance of gift by the donee and it must follow delivery of possession and there must be atleast two witnesses at the time of gift, but at the case on hand , instead of
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oral gift, the second respondent alleged to have executed Ex.A1 document in respect of the gift so relied upon the decision reported in 1996(2) ALT 674 where in his lordship held that “...............”and decision reported in 1997(2) ALT 259 (D.B.) where in his lordships held that “.......”” which were relied by the 1st respondent hence trial court came to the conclusion those two decisions are squarely applicable to the case at hand so, felt the document Ex.A1 is hit by sec.17 of Indian
Registration Act and falls under sec.129 of Transfer of Property Act and therefore the document is in admissible in evidence, and, the petitioners should pay the stamp duty and penalty over the document
Ex.A1 and since it was marked subject to objection felt that even at the stage of order also petitioners can be directed to pay the balance stamp duty and penalty due under Ex.A1.
34.But at the appellate stage the counsel for the appellants (petitioners before the trial court) relied on the decision reported in 1997(5)ALT pg.628. Wherein their lordships held that “once a document is admitted in evidence rightly or wrongly with or without objection, rejection of the same later either by trial court, appellate court or revisional court on the ground that it has not been duly stamped impermissible except as provided in section 61 of the Act.
Question whether any document is admissible in evidence or not regarding sufficiency of stamp has to be decided
before admission only i.e., before it is marked and proved
and not at the time of rendering judgment taking into account evidence adduced by both parties”.
35.Hence submitted that as the gift deed is admitted in evidence and the same is marked as exhibit. So now it cannot be aid at the time of rendering the judgment taking into account, evidence adduced by
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both parties and further submitted that trial court has committed error in coming to the conclusion that Ex.A1 is inadmissible in evidence and
Document Ex.A1 can not be considered by the court. He further submitted that as the gift deed is admitted in evidence and marked as
Ex.A1 the document , the court can looked into the contents of Ex.A1.
36.Further at the appellate stage the appellant relied upon the decision of our Hon'ble Supreme Court reported in AIR 2011 Page 1695.
Where in their lordships after discussing various Hon'ble High Court decisions, privy council decisions and principles of Mohammdan Law held that
“In our opinion, merely because the gift is
recued to writing by a Mohammadan instead of it
having been made orally, such writing does not
become a formal document or instrument of gift .
When a gift could be made by Mohammadan orally,
its nature and character is not changed because of
it having been made by a written document. What
is important for a valid gift under Mohammadan Law
is that three essential requisites must be fulfilled.
The form is immaterial. If all the three essential
requisites are satisfied constituting valid gift, the
transaction of gift would not be rendered invalid
because it has been written on a plain piece of
paper. The distinction that if a written deed of gift
recites the factum of prior gift then such deed is not
required to be registered but when the writing is
contemporaneous with the making of the gift , it
must be registered, is inappropriate and des not
seem to us to be in conformity with the rule of gifts
in Mohammadan Law.”
37.Hence following the ratio laid down by the Hon'ble Supreme
Court the observation of the trial court that unregistered Document
Ex.A1 is not admissible in evidence can be set aside.
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38. But as the point No.1 and resulted against the petitioners as stated supra the appeal is liable to be dismissed.
39.In the result, the appeal is dismissed by confirming theorder and decree dated 28-08-2006 in E.A.No.109/06 in E.P.No.213/2005 in
O.S.No.199/2002 passed by Additional Senior Civil Judge’s Court,
Kurnool.
Typed to my dictation by the Personal Assistant, corrected and
pronounced by me in open Court, this the 1st day of October, 2015.
IV Addl.District Judge, Kurnool.