( 1 ) sa416.89 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 416 OF 1989 1. Inayatali Karimbhai Bohari .. Appellants (died – his L.Rs. Appellant Nos. 2 to 9) 2. Sarabai Inayatali Bohari 3. Kalimuddin Inayatali Bohari 4. Saifuddin Inayatali Bohari 5. Fakhruddin Inayatali Bohari 6. Husamuddin Inayatali Bohari 7. Hamimbhai Inayatali Bohari 8. Burhanbhai Inayatali Bohari 9. Asmabai Inayatali Bohari 10. Hazzbhai Mulla Munawarali (No. 1 to 9 residing at 3181, 3182, Old Juna Kapad Bazar, Ahmednagar, No. 10 residint at Peersha Khunt, Ahmednagar). ( 2 ) sa416.89 Versus 1. Subhash Zumberlal Mutha .. Respondents Residing at 2805, Ganj Bazar, Ahmednagar. 2. Asgarali Abdul Husain Bohari Residing at 3181, 3182, Juna Kapad Bazar, Ahmednagar. a) Mrs. Jainab Bai Asgar Bhai, Age. 73 years b) Mr. Moizebhai Asgar Bhai, Age. 50 years, Both residint at 3181, 3182, Juna Kapad Bazar, Ahmednagar – 414 001. 3. S.A. Pirani, Residing at Motchigalli, Ahmednagar. 4. Lajwantibai Atmaram Batheja C/o. Atma Tailors, Talikhunt, Ahmednagar. 5. Yusufbhai Hajee Mulla Kurban Husain, Residing at 3182, Juna Kapad Bazar, Ahmednagar. Mr. M.V. Deshpande, Advocate for the appellants. Mr. A.S. Bajaj, Advocate for respondent Nos.1 Mr. V.S. Bedre, Advocate for respondent Nos. 2a & 2b. ( 3 ) sa416.89 CORAM : A.V. NIRGUDE, J. RESERVED ON : 13.07.2011 DELIVERED ON: 09.08.2011 J U D G M E N T :- 1. The facts leading to this litigation in short can be narrated as under :- 2. For convenience sake, I am referring to the parties by their designation in the Trial Court. 3. Respondent No.1 is the plaintiff and who filed Special Civil Suit No. 260 of 1976 against the rest of the rest of the parties here on the following cause of action. 4. The “suit property” is a two storied building at Ahmednagar, bearing City Survey No. 2911, 2912 and 2913. As the numbers suggest earlier these were three separate house properties. Out of them, house City Survey No. 2911 & 2912 originally belonged to one Hamjabhai Gulam Hussain. ( 4 ) sa416.89 5. It is the case of respondent No.1/plaintiff that Hamjabhai gifted the building bearing Nos. 2911 and 2912 and one more property bearing City Survey No.2915 (which was situated at some distance from this twin and adjacent city survey numbers) to his son Kamruddin on or about 26th October, 1920. The gift deed in writing was registered on 26th October, 1920. Then the possession of the gifted property was also delivered to Kamruddin – the donee. Unfortunately, Kamruddin died soon thereafter on 29th November, 1921. Hamjabhai, at that time, had three more sons and three daughters. 6. Kamruddin thus become owner of the property C.T.S. No. 2911,2912 and 2915. On his death in 1921, his only son Ibrahim became owner of these properties. He then sold property City Survey No.2915 and purchased property City Survey No.2913 which lay adjacent to the other two properties. He then amalgamated the three properties which were described by City Survey No.2911.2912 and 2913 and thus it became one block- one unit which is the “suit property”. Ibrahim, as owner of the suit property enjoyed it till his death in 1948. Ibrahim had two sons and two daughters. After Ibrahim’s death, his children became owners of the suit property. On 7th October, 1967 one of the sons of Ibrahim sold ( 5 ) sa416.89 his 5½ anna share in the suit property to one Ramniklal. It was a registered sale-deed. Other son of Ibrahim sold his 5½ anna share in the suit property to Ramniklal by another registered sale-deed, on 14th August, 1974. Ramniklal, thereafter, on 11.06.1976, purchased 2½ anna share in the suit property of one of the daughter of Ibrahim and the last share in the suit property of the second daughter of Ibrahim ( 2½ anna) was purchased by registered deed dated 17th September, 1976. The remaining fourth daughter of Ibrahim sold her 2 ½ anna share in the suit property directly to the plaintiff on 17.09.1976. Soon thereafter Ramniklal also sold his 13½ anna share to the plaintiff on 22.09.1976. Thus, the plaintiff purchased the entire suit property from the previous owners. 7. It is the case of plaintiff that the ground floor of the suit property is in possession of defendant Nos. 12 and 13, who are tenants and he is receiving rent from them. They are formal parties to the suit. Defendant Nos. 1 to 9 are members of one family and they are occupying third floor of the suit property. Defendant No.10 and 11 are occupying first floor.(The case of the plaintiff as against them is different and is not discussed here. It is the cause of action for other suit out of which the Second appeal No.417 of 89 has arisen and is decided by a separate judgment.) The plaintiff says that they ( 6 ) sa416.89 all are interested in denying the plaintiff’s title. The plaintiff says that defendant Nos. 1 to 9 had repeatedly admitted the ownership of the plaintiff’s predecessors, namely, Ibrahim and his children before 1973. For the first time in 1973, they denied the title of the plaintiffs as well as the predecessors. So, their possession of the suit property since 1973 is illegal, unauthorized and that of trespassers. 8. On this cause of action, the suit was filed for declaration that the plaintiff is absolute owner of the suit property and for recovery of possession of such portion of the suit property which is in possession of defendant Nos. 1 to 11 on 28th October, 1976. 9. Defendant No.1(for his family members) filed written statement and took up the following defence. Admitting the fact that the suit property belonging to Hamjabhai Gulam Hussain, he asserted that Hamjabhai till his death was owner and possessor of suit property and that he gift in favour of his son Kamruddin was invalid. He said Hamjabhai had never transferred possession to Kamruddin either on the date of gift deed or thereafter at any time. Defendant No.1 stated that Hamjabhai, his sons, their wives and children were residing in a part of the suit property in those days and some part of the ( 7 ) sa416.89 suit property was let out to different tenants, who were inducted by Hamjabhai and who were paying rent directly to Hamjabhai during his lifetime. Defendant No.1 even denied that Ibrahim was only legal heir of Kamruddin. In view of this, defendant No.1 also denied that after Ibrahim, his four children became absolute owners of the suit property. It is a case of defendant No.1 that he is one of the heirs and sharers being son of daughter of Hamjabhai in the suit property along with many other sharers. He said, in such capacity, he has been residing in suit property since 1936, uninterruptedly, peacefully and openly. He said, he has spent thousands of rupees on renovation of second floor of the suit building. He further contended that since there was no valid gift in favour of Kamruddin, the suit property belonging to Hamjabhai till his death, which occurred in 1924. He said Hamjabhai died intestate and according to Mohammedan Law, the same would devolve on his surviving three sons and two daughters. He said, since Kamruddin, the fourth son of Hamjabhai had died during lifetime of Hamjabhai, Kamruddin and his children would not get any right to the property and also the plaintiff would not get any right to the property. 10. In view of this controversy, learned Judge of the Trial Court framed various issues, but the following are prominent ( 8 ) sa416.89 ones along with the findings :- 1 Does the plaintiff prove that after Kamruddin’s death his son Ibrahim became exclusive owner? Yes 2. Does plaintiff prove that after Kamruddin’s death, his son Ibrahim became exclusive owner? Yes, but co-owner 3. Does plaintiff prove that after Ibrahim’s death his four children became owners of the suit property? Yes, co-owners with other sharers 4. Does plaintiff further prove that the children of Ibrahim perfected their title by adverse possession against true owners? No 5. Does the plaintiff prove that the sale-deed of 07.06.1967, 11.06.1976, 14.08.1974, 22.09.1976 and 17.09.1976? Yes 6. Does plaintiff prove his title to the suit property? Yes, but only to the extent of 5/6th share. 7. Is plaintiff entitled to possession of the suit from defendant Nos. 1 to 9? No 8. Do defendant Nos. 1 to 9 and 14 prove that after death of Hamjabhai, the suit property devolved to his three surviving sons and two daughters? Yes, only 1/6th share of the suit property 11. In other words, learned Judge of the Trial Court held that the gift between Hamjabhai and Kamruddin was valid and ( 9 ) sa416.89 complete and thereby Kamruddin became exclusive owner of the suit property. However, the learned Judge also held that since after Hamjabhai survived Kamruddin, he would get 1/6th share in the suit property being his father. He also held that this 1/6th share in the suit property belonging to Hamjabhai got further devolved on his surviving children and not on Kamruddin’s children Ibrahim etc. He, thus, held that on the death of Kamruddin on one hand 5/6th share of the suit property went exclusively to the children of Kamruddin; whereas the remaining 1/6th share came back to Kamruddin’s father Hamjabhai and upon Hamjabhai’s death it went to his other children. He, thus, held that the defendant No.1 being grand-son of Hamjabhai would have certain undivided share in the suit house and since he and his family members are occupying part of the suit property, they would do so pursuant to their right to the property, they cannot be termed as trespassers and therefore they cannot be evicted from the suit property. 12. The plaintiff preferred appeal against this judgment and decree being Regular Civil Appeal No. 83 of 1985. The learned Judge of first appeal Court allowed the appeal and decreed the suit of the plaintiff directing defendant Nos. 1 to 9 to deliver possession of the portion of the suit property in their ( 10 ) sa416.89 possession. 13. The learned Judge, inter alia, held that the plaintiff had proved that the children of Ibrahim perfected the title to the suit property by adverse possession even to the extent of 1/6th share of the suit property. In other words, he held that though after Hamjabhai’s death his surviving children would get share in the suit property, they lost their right to the suit property at the hands of Ibrahim’s children, because they acquired it by adverse possession. 14. When this appeal was admitted on 29.04.1987, the following substantial questions of law were formulated. (1) Is the District Court wrong in holding that the sale deeds Exhs. 178, 179, 180, 181 & 182 are duly proved, notwithstanding that the respective vendors have not been examined? (2) Did the District Court err in holding that the possession of the property was duly handed over by Mulla Hamzabhai to Kamruddin according to the requirements of Mohamedon Law and that the gift deed dated 20th October, 1920 is valid? (3) Assuming the gift deed to be valid, is the finding of the District Court right that the title to the ( 11 ) sa416.89 1/6th share which Mulla Hamzabhai inherited on the death of Kamruddin, has got extinguished by ouster of the heirs for more than 12 years? (4) Was the District Court right in pressing in aid the provisions of section 41 of the Transfer of Property Act in favour of the plaintiffs’ Vendors, in absence of pleadings and or issue in that behalf? QUESTION NO. 2 :- 15. Question No.2 relates to validity of gift. As said above, it is common ground that Hamjabhai was owner of the suit property at least to the extent of City Survey No. 2911 and 2912. Though defendant Nos. 1 to 9 staunchly denied the execution of the gift deed, delivery of possession etc. Both the Courts below held on facts that the gift was valid in all respect. In order to examine the correctness of these findings, I am constrained to look into evidence on this point. The Trial Court recorded evidence in February, 1984. The plaintiff was then 31 years old and so was unable to throw light on the event which took place in 1920. In his deposition, he stated that Hamjabhai had gifted property C.T.S. No. 2911, 2912 and 2915 to Kamruddin and the gift deed was presented for registration on ( 12 ) sa416.89 26th October, 1920. He also stated that the deed was registered on 28.10.1920. He further asserted that actual possession of the property was delivered to Kamruddin. In- deed, since he was not even born during those days, his oral testimony cannot be utilized to prove the fact of execution of gift deed, registration of the gift deed as well as delivery of possession etc. He could not produce original gift deed on record. He said that he could not produce the same because he could not get it though he made efforts to find it. He, therefore, produced on record certified copy of the gift deed. This certified copy was issued by the Sub-Registrar of Ahmednagar. Thus, this witness was unable to prove the gift, the execution of gift, registration of the gift and so also the delivery of possession etc. 16. Witness No.2 of the plaintiff was the predecessor in title of the plaintiff who also could not throw much light on the event of 1920. But witness No.5 is examined to prove the issuance of certified copy of the gift deed. Witness No.5 Hari had worked as Record Keeper of Sub-Registrar’s Office. He said that since 1957 he worked as Record Keeper. He brought with him to the Court original record of 1920 of the Sub- Registrar’s Office. He said that after referring to the contents of the record that the certified copy, which was produced on ( 13 ) sa416.89 record was issued as per the original record. He also stated that the certified copy bore Sub-Registrar’s signature, which he identified. He said, the Gift deed was registered at the office of the Sub-Registrar. He thus proved that the certified copy, which was brought on record was a genuine certified copy issued by the Sub-Registrar of Ahmednagar in 1976. Thus, the signature he could identified. The question is whether this would prove that in 1920, the deed was actually executed by Hamjabhai and that the deed so executed was brought for registration to the office of Sub-Registrar on 26th October, 1920. 17. The plaintiff examined no other witness who could depose before the Court that he had seen Hamjabhai executing the document of gift deed, the gift deed being produced before the Sub-Registrar for registration and above all Hamjabhai had delivered the possession of the suit property to Kamruddin. I am aware that the plaintiff being not related to Hamjabhai and others would find it difficult to prove the factum of gift etc. I am also aware that there is strong possibility of losing or destruction of the original document – gift deed. Since the certified copy of gift deed has come on record, it can be presumed that the original gift deed was presented for registration to the Sub-Registrar on 26th October, ( 14 ) sa416.89 1920. The certified copy, which is thus proved by the plaintiff can also be said to be a secondary evidence of the original gift deed. This secondary evidence as said above would prove that the original gift deed was presented for registration before the sub-registrar at the relevant time. I do not find it difficult to accept the finding of the courts below that the gift deed and its contents are proved properly. 18. The concept of gift in Mohammedan Law and its ingredients are quite peculiar and stringent. As per the Mohammedan Law, the gift is defined by Article 138 of the Mulla’s Principle of Mohammedan Law as under :- “138. Hiba or gift. - A hiba or gift is “a transfer of property, made immediately, and without any exchange,” by one person to another, and accepted by or on behalf of the latter.” 19. Article 142 of the above mentioned book give extent of donor’s power to make gift. It reads as under :- “142. Extent of donor’s power – A gift as distinguished from a will, may be made of the whole of the donor’s property, and it may be made even to an heir.” 20. The relevant Articles are enumerated below to explain as to what are essential ingredients of valid and ( 15 ) sa416.89 complete gift. “147. Writing not necessary. - Writing is not essential to the validity of a gift either of movable or of immovable property.” “148. Relinquishment by donor of ownership and dominion. - It is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift.” “149. The three essentials of a gift – It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Sec. 150. If these conditions are complied with, the gift is complete.” “150. Delivery of possession.- (1) It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. As observed by the Judicial Committee, “the taking of possession of the subject-matter of the gift by the donee, either actually or constructively,” is necessary to complete a gift.” 21. In this case, since the gift deed and its contents are the only evidence for proving the validity of the gift. I am quoting the relevant portion of the gift deed. (a) Endorsement of gift :- “Presented in the Sub-Registry of Ahmednagar between 3 and 4 p.m. on the date 26th Oct. 1920.” ( 16 ) sa416.89 (b) Declaration of gift :- “The executant Hamjabhai Gulam Hussein Bohri, business, a bohri, aged 80 r/o. Nagar, admits execution of this document. (Thumb-mark) (sd/- in Gujarati) Govind Janardan Sahastrabuddhe, business, resident of Nagar, was examined as to the identify of the above executant. The witness is known to the Sub-Registrar” (Following are the important portions of the deed:) (c) “I give the Gift deed in writing for the following reasons. You are my son by former wife. After your mother’s death I married again. Three sons were born of her, the elder son is named Kurban Hussein, Mulla Hamjyabhai, age 45 years, followed by the second son by name Munwar Hussein Mulla Hamjyabhai, age 35 years and the third son by name Nissar Hussein Mulla Hamjyabhai, age 25 years. I have grown old now and besides, the times are very bad. So I don’t feel any certainty what will happen and when. After my death you and the three abovenamed sons by my second wife i.e. you step brothers, will not be able to pull on amicably together and hence disputes will arise among you. Therefore, of my free will and pleasure and in a sound state of mind I have gifted to you and delivered to you possession of the below mentioned two shops out of my self- acquired estate in order that you may remember me.” (d) Detailed description of the property :- “There were two shops bearing city survey No. 2911, Municipal Committee No. 3180 and City Survey No. 2912 of Municipal Committee No. 3181, facing the north and situated on the southern side of the road in the old Ahmednagar. The Taluka and Sub-District Ahmednagar, Dist. Ahmednagar. The said two shops, which I had built formerly, were demolished and a single ( 17 ) sa416.89 new three storied shop, made up of the said two (former) shops bearing the two numbers, has been built. It is 65, sixty five feet long from south to north and 17, eighteen feet wide from east to west. It contains teak-wood ceiling and flooring: Two of the (lower) storeys are together comprise of 24 ‘Khans’ (compartments) in all and above the same there is, the third, upper storey made of iron sheets and containing 8 ‘khans’ (compartments) in all. The total number of ‘khans’, including those in the third storey made of iron sheets is 32, thirty two. It is bounded on the east by the shop-cum-house of Mulla Kambar Alli Mulla a Badroodin Bohri, in the south the rear door, two latrines and a ‘mori’ and in front thereof, an ota which is 2’10”, two feet and ten inches wide from south to north and its length is equal to that of the house, and beyond a lane, on the west the house-cum-shop of Mulla Noor Alli Bohri, and on the north the frontage of the said shop and stair case and an ‘ota’ in front which is 2’ 10” - two feet and ten inches wide from south to north and its length is equal to the width of the shop. There are stairs and a ‘padvi’ (Verandah) on the ota and beyond that there is a road. The shop is enclosed within the said four boundaries.” (e) Declaration continues further as under :- “I have this day given the same (two properties) as gift to you, of my free will and pleasure for your maintenance as you have lived with me till today according to my wish and complying with my commands and looking after and serving me.” “I have today gifted the said properties to you for your maintenance and have delivered possession thereof to you for your enjoyment. Henceforth, I have no right, title, interest, claim or inheritance whatever left in respect of the said gifted properties. From today you are fully entitled as owner to deal with the said property in any way you like. The above named sons, born of my second wife also have no right to, or interest in the said gifted property. All the title-deeds of the said gifted properties such as three ‘sanads’ of enquiry, sale-deeds, ( 18 ) sa416.89 conveyance, deeds in respect of rent (Leases) etc. for the purpose of certificate (title) are delivered. I have given this gift-deed in writing of my free will and pleasure and in a sound state of mind and consciences.” 22. The above mentioned declaration of gift is quite sufficient one as contemplated by Article 149 referred to above. The second question is – whether Kamruddin accepted the gift? In order to prove the acceptance, the plaintiff placed reliance on Kamruddin’s signature on the document. On perusal of the document, it is seen that Kamruddin presented the document and put his signature on it for presentation. He has not put his second signature at the end of the document for acknowledging the acceptance of the gift. However, it has come on record that Kamruddin, thereafter, made application to the Municipal Council, Ahmednagar and requested them to mutate his name as owner of the property. This fact is sufficiently proved and so there is no hesitation to come to the conclusion that the plaintiff has proved even acceptance of the deed by the donee – Kamruddin. 23. The third and most important ingredient is delivery of possession of the subject of the gift by the donor to donee. In the gift deed, the donor mentioned that he had delivered the possession of the subject of gift to the donee. In addition ( 19 ) sa416.89 to it, he also stated that he had delivered the title deed of the gifted property to the donee. Besides, this statement, there is practically no evidence on record to show that by certain overt