IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.70 of 2003 1. HABIBUR RAHMAN, SON OF LATE ABDUL RAHMAN. 2. INTEKHABUR RAHMAN, SON OF HABIBUR RAHMAN. 3. NOUSHABA BEGUM, DAUGHTER OF HABIBUR RAHMAN. 4. FARHANA BEGUM, DAUGHTER OF HABIBUR RAHMAN. 5. SHABNAM SHAHEEN, DAUGHTER OF HABIBUR RAHMAN. ALL RESIDENT OF BAKHTIARPUR, POLICE STATION- BAKHTIARPUR, DISTRICT-PATNA. …………………….DEFENDANT-APPELLANTS-APPELLANTS. Versus 1. SALIMUDDIN, SON OF LATE ABDUL RASHID. 2. GHOUSIA KHATOON, DAUGHTER OF SALIMUDDIN AND WIFE OF MUSTAFA. BOTH RESIDENT OF BANOULIA, P.S. BIHAR, DISTRICT- NALANDA. AT PRESENT-BIGHA, P.S. BAKHTIARPUR, DISTRICT- PATNA. 3. MD. NASIMUDDIN. 4. NASIMUDDIN. 5. JAMALUDDIN. 6. SHAHABUDDIN. ALL SONF OS MD. SALIMUDDIN, RESIDENT OF MOHALLA-BANOULI, P.S. BIHARSHARIF, DISTRICT- NALANDA. 7. NASIMA KHATOON, DAUGHTER OF MD. ALI AND WIFE OF MD. ABBAS, RESIDENT OF MOUZA-TIURI, POLICE STATION-MANPUR, DISTRICT-NALANDA AT PRESENT MOHALLA-BANOULIA, P.S. BIHAR, DISTRICT-NALANDA. 8. BIBI ASMA KHATOON, WIFE OF MD. SALIM. RESIDENT OF MOUZA MAIRA, P.S. GIRIAK, DISTRICT- NALANDA. ......PLAINTIFF-RESPONDENT-RESPONDENTS IST PARTY. 9. UMESH PRASAD SINGH, SON OF JAMUNA PRASAD SINGH. 10. BRAJ NANDAN PRASAD SINGH, SON OF SHIV KUMAR SINGH. BOTH ARE RESIDENT OF VILLAGE-TIURI, P.S. MANPUR, DISTRICT-NALANDA. - 2 - 11. RAMAUTAR SINGH, KATIB, SON OF NOT KNOWN, RESIDENT OF VILLAGE-GIRIHPUR, P.O. AND P.S. PHULWARI, DISTRICT-PATNA. 12. MASIHUDDIN, SON OF AYUB MIAN, RESIDENT OF AHIJAN, P.O. AND P.S. ATHMAL GOLA, DISTRICT-PATNA. ………………………………………………………………………… RESPONDENT PLAINTIFF-RESPONDENTS-RESPONDENTS IIND PARTY. -------------- For the Appellants : M/s. Ram Suresh Roy, Senior Advocate and Raj Nandan Prasad, Advocate. For the Respondent : M/s. R.K.P. Singh, Bal Bhushan Nos.1 to 7 Choudhary and Manish Kishore, Advocates. ---------------- 12. 3.8.2010. The defendant-appellants preferred this appeal against the judgment and decree dated 22.2.2003 passed by the District Judge, Nalanda at Biharsharif in Title Appeal No.14 of 2000 affirming the judgment and decree dated 26.2.2000 passed by the Munsif, Nalanda at Biharsharif in Title Suit No.118 of 1988. The original plaintiff (since having died) had brought the Title Suit No.118 of 1988 and had sought two declarations; firstly, that the disputed land is joint family property of the plaintiff and defendant (performa) and secondly, that the sale deed [deed of sale for dower debt (bai mokasa)] is void ab initio being obtained by fraud and coercion. The original plaintiff and the contesting defendant no.1 (both had died during the - 3 - pendency of the suit) were husband and wife. The admitted fact is that the properties including the disputed land were either inherited or gifted to the father of the plaintiff. Further, admitted fact is that the plaintiff (since dead) and the defendant no.1 (since dead) were married in the year 1975, however, the conjugal relationship between them was not congenial. The plaintiff‟s case is that after their marriage was performed, since the relationship between the husband and the wife was not congenial, a demand of prompt dower was made by the wife. A litigation cropped up in this regard as a Money Suit bearing No.94 of 1984 was brought by the defendant-wife against the plaintiff which was decreed ex-parte accepting the claim of the wife for demand of prompt dower. The decree was challenged by the plaintiff upto this Court and, subsequently, the entire amount to the tune of Rs.22,964.40/- was deposited in the concerned execution case and, thereafter, it is stated that the husband and the wife, both came at a talking terms. As per the case of the plaintiff, the reason behind the strained relationship between the husband and the wife was that the plaintiff was sexually weak. Thus, subsequently, upon persuasion of the father-in-law, the plaintiff became ready for his treatment at - 4 - Patna and after being examined by one doctor, some medicine was induced by the father-in-law due to which the plaintiff lost his mental balance and in such a state of mental condition, it is alleged, his signatures were taken on several papers as the plaintiff remained in Bakhtiarpur, at his in-laws‟ house, for several days in an intoxicated condition. Subsequently, upon his return to native place, plaintiff heard a rumour that his lands are being sold and, thereafter, a certified copy of the deed of sale for dower debt (bai mokasa) was obtained. The same has been challenged chiefly on the ground that there was no question of Patna being the jurisdiction for registration of the concerned sale deed as the plaintiff has no land situated in Patna jurisdiction. In fact, the small piece of land at Bakhtiarpur, which is shown to have sold with other lands of plaintiff for creating a jurisdiction at Patna is fraud as no land was ever gifted to the plaintiff by his in-laws at Bakhtiarpur. Secondly, the properties in deed are in jointness with the family members of the plaintiff including the performa defendants, who are mother and sister of the plaintiff. Third ground was that the sale deed itself has been obtained by fraud and coercion and lastly, that since there was no dower debt on the date of execution of - 5 - the sale deed, there was no question for executing a „bai mokasa‟. In fact, the prompt dower has already been given by the plaintiff in the execution of the decree of the aforesaid money suit and the deferred dower accrues either after the death or at the time of divorce. Since none of the aforesaid cases existed at the time of the execution of the sale deed, it could not be assumed that the deed was valid for having been executed in lieu of deferred dower. The defendant no.1 appeared and filed a written statement refuting the allegations made in the plaint and taking the plea that the deed concerned was executed under free consent and will of the plaintiff. It has been stated that the marriage was performed with total Rs.41000/- as dower (1/2 of the amount being prompt and 1/2 of the amount being deferred dower). Though the prompt dower was satisfied in the execution case, however, the deferred dower remained still due. The allegation of the story of obtaining the deed by fraud and coercion was false. The trial court after appreciation of the materials on record had recorded a finding that there was no occasion for the payment of deferred dower by the husband at the time of the - 6 - execution of the sale deed for the reason that prompt dower had already been paid in satisfaction of the money decree and there was no question of payment of deferred dower at that point of time as neither the marriage was dissolved nor death had occurred, which were the conditions preceded for payment of or demand of such deferred dower. Lastly, it was also urged by the defendant that the aforesaid deed was executed for maintenance of the wife by the husband. However, the trial court has also rejected this story on the ground that there was no whisper either in the deed concerned or in the pleading of the plaintiff regarding this fact. Thus, it was held that there was no occasion for the plaintiff to execute a deed for payment of subsistence allowance or maintenance. Regarding the jurisdiction, it has been held that the plaintiff was not having any land in Patna district. Such allegation in the plaint had not been specifically controverted by the defendant in her pleading also. The only plea taken by the defendant is that the plaintiff had already submitted to Patna jurisdiction. Of course, during the course of examination, the D.W.1 had disclosed that the land at Bhakhtiarpur (Patna jurisdiction) was given to the plaintiff by his father-in-law in “Kheer Khilaai”, however, this story was - 7 - disbelieved by the trial court since nothing of this sort stood stated in the pleading. So far as the story of plaintiff regarding fraud and coercion is concerned, on consideration of entire evidence and pleading of the parties, the court concerned has come to the conclusion that the transaction is not righteous one and, thus, has held that the deed in question is not valid and genuine. Accordingly, the suit was decreed. The defendant no.1 challenged the judgment and decree by preferring Title Appeal No.14 of 2000, however, the same was also dismissed. The appellate court has also held that there was no land of the plaintiff at Bakhtiarpur and presentation of document before the Sub Registrar, Patna, was not proper as only the Sub Registrar, Biharsharif, was having jurisdiction in this regard. The other findings of the trial court were also affirmed. Further, it has been held that it is not imaginable that such valuable property could be transferred by a party to one who is on litigating term. Upon consideration of all the materials on record, the appellate court has also held that the disputed „bai mokasa‟ deed was not executed by the plaintiff in his proper frame of mind. I have heard the parties and perused the records of this - 8 - case. Learned counsel appearing on behalf of the appellants submitted that the recital of the deed itself goes to show that deed was being executed for satisfying or liquidating the deferred dower debt and, as such, both the courts below have committed serious error in holding that the deed was not valid on that ground. That apart, it has also been submitted that the plaintiff is the only son of his father. Therefore, it cannot be assumed that the property was joint alongwith the performa defendant as in the Mahomedan Law, there is no concept of jointness which is available under Hindu Law. Apart from the above, it has also been urged that the husband has every right to gift or sale any land or his property in favour of his wife in lieu of her maintenance and no law prohibits that. Thus, it is contended that the courts below have committed serious error in holding that the land could not have been given by the sale deed executed in favour of the wife even in lieu of subsistence allowance. It is further submitted that it has come during the course of examination of witnesses that a piece of land of Bakhtiarpur sold alongwith other lands of the plaintiff was given to the plaintiff in “Kheer Khilaai” by the father-in-law and - 9 - the plaintiff had come in possession thereafter . As such, there is no fraud on the law of Registration by including the land at Bakhtiarpur for sale alongwith other lands. On the other hand, learned counsel appearing on behalf of the Respondents submitted that the plaintiff was not having any land at Bakhtiarpur and the said land was included in the deed for the purpose of playing fraud upon the Registration Authority as registration of the deed was convenient for the father-in-law of the plaintiff to be at Patna jurisdiction while the plaintiff was in an intoxicated condition. It is submitted that there is no whisper in the written statement of the defendant regarding the oral gift of the properties of Bakhtiarpur in favour of the plaintiff and only during the course of examination of one of the witnesses the story of land given to the plaintiff in “Kheer Khillai” has been set up. However, there is no evidence also on record to suggest that the plaintiff came in possession of such property. That apart, it is submitted that even in Mahomedan Law oral gift with regard to agricultural land would not be valid, since there is a bar to oral transfer of the occupancy holding as contained in Section 26 (A) read with Section 12 and other provisions of Bihar Tenancy Act, 1885. In support of his - 10 - submission, learned counsel for the respondents has placed reliance upon the few decisions of this Court, which are as follows: (I). A.I.R. 1960 Patna 297 (Mt. Bibi Sharifan Vs. Sheikh Salahuddin and others). (II). 1985 PLJR 653 (Dasrath Sao and another Vs. The Additional Member, Board of Revenue, Bihar and others). (III). 1997(1) PLJR 361 (Sri Lakhan Yadav and others Vs. Most. Rajkala Devi and others). It has been submitted that the story of the aforesaid oral gift is also not tenable for another reason that the ingredients of a valid gift as envisaged in Section 149 of Mahomedan Law are completely missing in this case. It is submitted that Section 149 of the Mahomedan Law clearly stipulates that it is essential to the validity of a gift that there should be a declaration of gift by the donor, an acceptance of the gift, express or implied, by or on behalf of the donee, and delivery of possession of the subject of the gift by the donor to the donee, in terms of Section 150 and such taking of possession of the subject matter of gift by the donee should be, either actually or constructively. It is - 11 - submitted that in the absence of any evidence on record to show that possession was ever given or accepted by the donee, the story put forward by the defendant regarding the possession in terms of oral gift would not be tenable in law. Once it is held as such, then the registration before the Patna Authority would come in the teeth of law as laid down by this Court in 1997(1) PLJR 361 (Sri Lakhan Yadav and others Vs. Most. Rajkala Devi and others) as it has to be held thereafter that the said small piece of land at Bakhtiarpur has only been included in the sale deed for the purpose of conferring jurisdiction at Patna Registry Office because the bulk of the property lies outside the territorial limits and, thus, the sale deed concerned would have to be declared legally defective for want of proper registration. It has further been contended that so far as the question of execution of the sale deed for maintenance, as alleged by the defendant, is concerned, there is neither whisper regarding such fact in the concerned document nor is the same available in the pleading of the party. Thus, the same has to be rejected at the outset. This Court finds substance in the submission raised on behalf of the respondents. The oral gift story has to go due to - 12 - the bar set up by the statute and its interpretation in Mostt. Bibi Sharifan (supra) and Dasrath Sao (supra) and also as ingredients of valid gift under Mahomedan Law are missing as has been discussed above. Once having held so, it would have to be held that a small piece of land of Bakhtiarpur has been deliberately included in the concerned sale deed for the purpose of conferring jurisdiction upon Patna Registration Authority. On consideration of the submissions raised on behalf of the parties, this Court is also of the opinion that the decision of the courts below are concluded by concurrent findings of fact and in view of the aforesaid discussions, no substantial error could be pointed out by the appellants which may lead to a substantial question of law. Thus, this appeal, being devoid of any merit, is accordingly dismissed. P.S. (Dr. Ravi Ranjan,J)