1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1056 OF 1987 M/s. M.J.Builders ...Plaintiffs Vs. Aziz Moosa & Ors. ...Defendants Mr. Rajiv Kumar with Ms. Neeta Solanki with Kiran Jain i/b. Kiran Jain & Co., for Plaintiffs Mr. M.U.Pandey for Defendants 6A to 6F Mr.Samir Vaidya with Mr. S.P.Dalal i/b. Dalal & Co., for Defendant No.9 AND SUIT NO. 3202 OF 1989 Mohammed Jumman Haji Abdul Sattar ...Plaintiff Vs. M/s. M.J. Builders & 2 Ors. ...Defendants Mr. Samir Vaidya with Mr. S.P. Dalal i/b. Dalal & Co., for Plaintiff Mr. Rajiv Kumar with Ms. Neeta Solanki i/b. Kiran Jain & Co., for Defendant No.1 Mr. A.J. Almeida for Defendant No.3 CORAM: SMT.ROSHAN DALVI, J. DATED: 12 TH FEBRUARY, 2009 J U D G M E N T: 1. Several parties have been claiming in several capacities the land which initially stood admittedly in the name of one 2 Haji Abdul Sattar Ali Mohammed Chamadia (in short Haji) since 5 th November 1960 under the Conveyance executed in his favour on that date. There have been 3 suits filed by 3 such parties claiming the said property. The above 2 suits are 2 of them. The 3rd suit was filed by one Aziz Moosa being Suit No.1035/1990, which has been dismissed for default of his appearance upon non- prosecution of his claim. 2. The above 2 suits have been filed against various parties also claiming diverse rights in the suit property. Several Defendants have since given up their defence. The main 3 contesting parties are the Plaintiff in Suit No.1056/1987 one is a Builder and Developer and who claims interest in the suit property initially from an Agreement for Sale dated 20th December 1978, which culminated in a Consent Decree with the successors in title of the aforesaid Haji under a Consent Decree passed by this Court on 10 th June 1982. The other claimant is Defendant No.6 in the aforesaid Suit No.1056/1987 who initially claimed fishing rights in the suit property followed by an option to purchase the said property, which he claims to have exercised during the life time of the Haji. The 3 rd claimant is the Plaintiff in Suit No.3202/1989 who claims to be the only son left by the Haji as his sole heir and legal representative. He is also Defendant No.9 in Suit No.1056/1987. 3 3. There are several Defendants in Suit No.1056/1987, who have not defended the suit and who need not be considered, save and except Defendant Nos.6 and 9 aforesaid. The successor in title of the aforesaid Haji who was his second wife is the Defendant in both the Suits. She has expired pending the suits. She as well as her daughter are made party Defendants in Suit No.3202/1989. 4. The suit property is an open land admeasuring about 53 acres 30 gunthas under Survey No.44 of village Darauli near Malwani at Malad, Mumbai described in the aforesaid Conveyance and the later documents as being a land in Taluka Borivali, Bombay Suburban Division as also in Taluka: Satara, Dist: Thane. The boundaries of the suit land are admittedly the boundaries of Survey No.15, Survey No.45, Survey No.51 and Malwani village to the East,West,North and South respectively of the suit property. All the claimants of the suit land have no issue with regard to the identification of the suit land and claim the same land from the same common predecessor in title, the aforesaid Haji Abdul Sattar Ali Mohammed Chamadia. 5. The Plaintiff in Suit No.1056/1987 shall be referred to as the Builder. The Plaintiff in Suit No.3202/1989, who is also 4 Defendant No.9 in the other suit, shall be referred to by his name Jumman. The Defendant No.6 in the suit of the Builder (and who has not filed any suit himself) shall be referred to by his name Koli. 6. Each of the aforesaid parties have challenged the right claimed by the others. The successors in title of the Haji have accepted and admitted the claim of the Builder with whom they have entered into the agreement for sale and later the Conveyance by way of the Consent Decree. Based upon the respective claims of the aforesaid parties Justice R.G. Vaidyanatha framed separate issues in the aforesaid 2 suits which are answered as follows:- ISSUES IN SUIT NO.1056 / 1 9 8 2 FINDINGS 1. Whether Plaintiff is a registered firm. Yes 2. Whether Plaintiffs firm is the owner of suit property having acquired it from the 4 th Defendant under an agreement of sale dated 20.12.1978 followed by decree in suit No.1093 of 1982. Yes 3. Whether Plaintiff's Vendor Hazarabai (4th Defendant) was the wife of the original owner Haji Abdul Sattar Ali Mohammed as alleged in the Plaint. Yes 4. Whether the said original owner Haji Abdul Sattar Ali Mohammed gifted the suit property in favour of Hazarabai on 5 15.4.1968 as alleged in para 7 of the Plaint. Yes 5. Whether Haji Abdul Sattar Ali Mohammed executed a Will dated 18.4.1968 as alleged in paragraph 7 of the plaint. Yes 6. Whether the Will dated 18.4.1968 is a forged and got up document as alleged in the written statement. No 7. Whether the Plaintiff proves that he was put in possession of suit property and continued to be in possession of the suit property as alleged in the plaint. Yes 8. Whether the consent decree in suit No.1093/1982 was a collusive and fraudulent as alleged in the written statement. No 9. Whether the consent decree in Suit No.1093/1982 is void being in contr- -avention of Urban Land Ceiling Act and the Contract Act as alleged in paragraph 3 of the written statement of 6 th Defendant. No 10. Whether Plaintiff proves that Haji Abdul Sattar Ali Mohammed died in 1968. Yes 11. Whether Haji Abdul Sattar Ali Mohammed died in 1986 as alleged in the written statement. No 12. Whether the 6th Defendant has been in possession of the suit property since 1968. No 6 13. Whether 6 th Defendant is a licencee of suit property for fishing purposes under an agreement dated 30.9.1968 executed by Haji Abdul Sattar Ali Mohammed with an option to purchase the land as alleged in paragraph 27 of the written statement of 6 th Defendant. No 14. Whether 6 th Defendant exercised option to purchase the land and paid consid- -eration amount to Haji Abdul Satar Ali Mohammed as alleged. No 15. Whether 9 th Defendant is the son of Haji Abdul Sattar Ali Mohammed and is the sole heir of the original owner as alleged in his written statement. No 16. What relief ? ISSUES IN SUIT NO.3202 / 1 9 8 9 FINDINGS 1. Whether the real name of the Plaintiff is Mohammed Jumman Abdul Satar as alleged by him. No 2. Whether the Plaintiff is the only son or sole heir or legal representative of the deceased Haji Abdul Sattar Ali Mohammed as alleged in paragraph 1 of the plaint . No 3. Whether Haji Abdul Sattar Ali Mohammed expired on or about 2nd May 1968 as alleged in paragraph 1 of the plaint. No 7 Or Whether Haji Abdul Sattar Ali Mohammed died on 2nd May 1986 No Or Whether Haji Abdul Sattar Ali Mohammed died on 15 th May 1968 as alleged in the written statement. Yes 4. Whether the document annexed as Ex.'A' 'B' and 'C' to the plaint are genuine documents as sought to be represented in paragraph 1 of the plaint. No 5. Whether the documents marked as Exhs. 'A','B' & 'C' to the plaint are fabricated or caused to be made by the Plaintiffs with the full knowledge of their falsely as alleged in paragraph 5 of the written statement. Yes 6. Whether the Plaintiff's father was owner Need not be of the suit land as alleged in paragraph answered 2 of the plaint. except that the Haji was not the Plaintiff's father 7. Whether the Plaintiff's father during his No life time or after his death the Plaintiff Except has been in continuous or uninterrupted that the occupation, possession or enjoyment of possession the suit property as alleged in para 5 of of the Haji the plaint. is admitted 8. Whether the father of the Plaintiff had entrusted those defendant with the original conveyance of the suit land as 8 'Amanat' as alleged in paragraph 6 of the plaint. No 9. Whether these Defendants administered or caused to be administered any threats to the Plaintiff as alleged in paragraph 11 of the plaint. No 10 .Whether 1 st Defendants have misused the title deeds in collusion with Defendant No.2 and 3 as alleged in paragraph 21 of the plaint. No 11 .Whether Plaintiff is the owner of the suit property or entitled to declaration to that effect as alleged in paragraphs 24 & 25 of the plaint. No 12 .Whether Plaintiff is in possession of the suit property as alleged in paragraph 25 of the plaint. No 13 .Whether the Defendant No.1 was at all material times in possession of the suit property till they handed over possession to Shri A.P. Yagnik, the Private Receiver appointed by this Hon'ble Court as alleged in paragraph 19 of the written statement of Defendant No.1. Yes 14 .Whether the claim of the Plaintiff is barred by Law of Limitation as alleged in paragraph 21 of the written statement. No 15 .Whether Plaintiff has not valued the subject matter of the suit property for payment of the Court fees as alleged in paragraph 22 9 of the written statement. Yes 16 .Whether Defendant No.2 is widow of the original owner of the suit property viz. Haji Abdul Sattar Ali Mohammed. Yes 17 .Whether the original owner Haji Abdul Sattar Ali Mohammed gifted the suit property by oral gift in favour of Defen- -dant No.2 on 15 th April 1968 as alleged. Yes 18 .Whether the first Defendant acquired the suit property by entering into agre- -ement of sale with Defendant No.2 followed by a Consent Decree in Suit No.1092/1982 as alleged. Yes 19 .Whether the first Defendant was put in possession of the suit property and continued in possession till the Receiver was appointed by the Court. Yes 20 .What relief ? 7. The Builder has led extensive evidence not only to prove his right, title and interest in the suit property, but also to disprove the right claimed by Jumman. He has accordingly examined 9 witnesses. He has got produced documents of the Haji with regard to the suit property by himself and through the Tahasildar of the Urban Land Ceiling Department and one Architect and licenced Surveyor. He has got produced further documents from the Trustee of the Cemetery where the Haji 10 was stated to have been buried, the Officer of Tata Memorial Hospital where the Haji was admitted for treatment of Cancer which he suffered, a Police Inspector who investigated the private complaint filed by the Builder against the Jumman with regard to the alleged fraud and fabrication of the documents made by Jumman and one independent witness from the native village of the Haji, being village Dhoraji in Gujarat. 8. He has been extensively cross examined on behalf of Koli as well as Jumman. The other witnesses also have been similarly cross examined though they have essentially only produced the documents and gave direct evidence to prove them, save and except the independent witness from the village of the Haji who has deposed with regard to his knowledge about the family of the Haji and the execution of certain documents by the Haji during his life time. 9. The Koli has led evidence essentially to prove the execution of the licence for fishing granted by the Haji to him and the option to purchase exercised by him. He has also relied upon the Revenue records as also the Revenue proceedings. 10. Jumman has not examined himself. He has not produced 11 or tendered any documents. He has essentially sought to rely upon the documents got produced by the Builder to show the alleged fraud practiced by him in fabricating documents to show him to be the son of the Haji. 11. Aside from challenging the claim of the Builder, Koli has also sought to challenge the right claimed by the Builder upon his transaction with the successors in title of the Haji under the Urban Land (Ceiling and Regulation) Act, 1976 (ULCRA). He has contended that the decree sought to be obtained by the Builder with the predecessors in title of the Haji (his wife one Hazarabai and her daughter Kulsumbai who are both Defendants in the aforesaid Suits) is a collusive decree. He has contended that the Builder could not obtain possession of the suit property under such a collusive decree and his transaction is void under ULCRA. The Builder has denied any fishing rights having been granted by the Haji to Koli or Koli having accepted the same and exercised his option to purchase the suit property from the Haji. The Builder has also challenged Jumman's claim as the son of the Haji. 12. Since common evidence has been led, the issues from the aforesaid 2 suits would also be required to be answered in common, since several of the issues are common to both the Suits. These are with regard to the ownership of the suit 12 property claimed by each of these parties, the possession of the Suit property also claimed by each of them, the execution of the Consent Decree in collusion or otherwise, the execution of a Gift and later a Will by the said Haji, whether the successors in title of the Haji who claim to be his widow and daughter were indeed his wife and daughter and whether Jumman is the son of the said Haji by that name under the documents which he claims. Aside from these main issues the issue relating to the bar of limitation as well as the inadequate valuation of Jumman's Suit would also have to be decided. 13. The admitted fact in this Suit is the title of the Haji under the aforesaid Conveyance dated 5th November 1960. The partnership firm of the Builders is also not in issue. The aforesaid issues shall, therefore, be answered accordingly. 14. ISSUE NO.1 IN SUIT NO.1056 / 1 9 8 7 : RE: Partnership Firm : Upon the undisputed extract of the Firm Exhibit- A, the issue is answered in the Affirmative . 15. ISSUE NOS.4,5 & 6 IN SUIT NO.1056 / 1 9 8 7 AND ISSUE O.17 IN SUIT NO.3202 / 1 9 8 9: RE : Gift and Will of Haji:- Originally the property belonged to the Haji, since 1960, who is stated to have gifted it to his wife, Hazarabai. He later executed a Will reciting the fact of the execution of the Gift 13 thereunder. Accordingly Hazarabai came to be the owner of the suit property. The Haji is stated to have expired in 1968. Hazarabai sought to sell the Suit property a decade thereafter. It would, therefore, be material to consider the title of the Hazarabai. 16. The Builders have sought to prove the Will through one Haji Ismail Haji Ibrahim Pothiawala as P.W. No.9. The Will is in Gujarati language. It is registered. It is executed by the Haji on 18 th April 1968. It is witnessed by 2 witnesses, both of whom have died. The Will is, therefore, required to be proved as any other document as per the provisions of Section 69 of the Evidence Act. The P.W. 9 knew the Haji as well as his family. He has identified the signature of the Haji on the Will. He has been shown the signatue of the Haji on the earlier admitted documents which are Agreement for Sale and the Conveyance in favour of the Haji. He has deposed that both these signatures are of the same person. He was not present at the time of the execution of the Will. However, he was present at the time of registration when the execution of the Will was admitted. He has seen the Haji sign on the first page of the Will before the Registrar at Dhoraji. He has identified that signature on the original Will. P.W. 9 has also identified the signatures of the attesting witnesses. He has also given the relationship of the attesting witnesses whom he knew. They were the brother and nephew of the Haji. Accordingly 14 the Will of the Haji dated 18 th April 1968 has been proved. 17. The Will mentions about the family of the Haji – he had 2 wives, both named Hazarabai. He has stated the names of his children from both the wives and what they were then doing. He has specified 2 properties owned by him, one in Dhoraji and one in Mumbai being the suit property. The property has been described as open land in Mumbai, Thane District Satara, Tal: Borivali bearing Survey No.44 admeasuring 53 acres and 30 gunthas purchased by him under the Conveyance dated 5th November 1960 for Rs.1,063/- and which was then of the market value of Rs.32,000/- . It is further recited in the Will that on 15 th April 1968 he has gifted both those properties to his 2nd wife Hazarabai Abu Fazal and which has been accepted by her. He has given her the possession (KABJO) of the property and she has accepted the same. The Will further recites that there is no other immovable property owned by the Haji. The Will deals with certain furniture, cash, obsequial ceremonies etc., with which we are not concerned. Consequently it is seen that the Suit property, then owned by the Haji was gifted by him to his 2nd wife Hazarabai Abu Fazal, Defendant No.4 in Suit No.1056/1987 and Defendant No.2 in Suit No.3202/1989. It will have to be seen whether such a gift is a valid gift under the Muslim Personal Law. 15 18. Section 135 in Chapter XI of Mulla's Principles of Mahomedan Law sets out the definition of a Gift or Hiba thus:- “A Hiba or Gift is “a transfer of property, made immediately, and without an exchange, by one person to another and accepted by or on behalf of the latter.” 19. Under Section 149 of Mahomedan Law the 3 essentials of a Gift are (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. Upon these 3 conditions being complied, the Gift would be complete. Under Section 150 thereof it is essential that there should be a delivery of possession of a subject of the Gift. This has been held also in the case of Abdul Sattar Vs. The Vth Additional District Judge, Lucknow, 1978 ALL. L.J.543 . 20. In the case of Fatimabibi Vs. Abdul Rehman Abdul Karim, AIR 2001 Gujarat 175 upon considering the aforesaid 3 essentials of a valid Gift it has been held that after an oral Gift by the husband in favour of his wife, the execution of a Deed of Declaration and mutation in the name of the wife followed by delivery of possession would make the Gift complete. The fact that the acceptance of the Gift by the wife was mentioned in the Deed of Declaration, it would not 16 require further evidence as to acceptance by the Donee in view of the relationship of the parties. It is further held that after the Deed was registered all the ingredients of a valid gift are established. In this case the Haji made an oral Gift in favour of his wife prior to the execution of his Will. He recited that fact in his Will followed by the fact of acceptance of the Gift as also the possession of the property by the wife. The Will has been registered. The Gift is complete. 21. In the case of Hayatuddin Haji Shujauddin Vs. Abdul Gani Abdul Hafiz 1975 Mh. L. J 345 a Gift of an undivided share in the property by reciting that it was so made together with an intention to divest the property being made clear was held to be a valid gift. In that case the property was held by 2 wives and a sister of one deceased Lalmiya who succeeded to his estate. 2 of the persons gifted their share in favour of the Plaintiff. The 3rd co-sharer continued in the property. The Gift Deed of the undivided share showed the possession being given to the Donee, after separation from the 3rd owner. That was the value of 14 annas share in the property. The Donee sued for declaration of his ownership in the property and in the alternative for partition and separate possession of his share. It was held that the Gift was validly made under Sections 159 and 160 of Mahomedan Law. 17 22. In the case of Cantonment Board Vs. G. Venkatram Reddy (1995) 4 SCC 561 the essentials of the valid gift under Mohammedan law are set out in Paragraph 5. All it requires is the delivery of possession of the subject of the gift and taking of possession of the gift by the Donee, actually or constructively, for completion of the gift. Hence, the execution of the Power of Attorney by Hazarabai shows the constructive acceptance of the gift by her. No further act is necessary. 23. Mr. Pandey argued that no overt acts are shown by Hazarabai by way of mutation entries or otherwise constitute acceptance of the gift for a period of as long as 10 years. However, since acceptance of a gift can be made even constructively, a single act showing dominion over the property gifted such as to deal with the property would suffice. 24. In this case the entire suit property has been gifted to Hazarabai as aforesaid. The Will has been marked Exhibit- U21 in evidence upon it having been proved under Section 69 of the Evidence Act. Hence Issue Nos.4 & 5 in Suit No.1056/1987 & Issue No.17 in Suit No.3202/1989 are answered in the Affirmative and Issue No.6 in Suit No.1056/1987 is answered in the Negative . 18 25. ISSUE NOS.2,8 & 9 IN SUIT NO.1056 / 1 9 8 7 & ISSUE NOS.10 &18 IN SUIT NO.3202 / 1 9 8 9: Re: Ownership and Acquisition of the Suit property : The Builders have led evidence through their Partner P.W.1 to show how the Suit property came to be acquired by them. In October 1978 he met one Fida Hussainbhoy who was a Broker. He knew the suit plot as well as its owners. The Builders approached him. He showed them the suit site. The Builders approved the plot. They were informed that the owner was from Dhoraji, Saurashtra, Gujarat. They were also informed that the owner was one Hazarabai. She had given her Power of Attorney to her daughter Kulsumbai. Kulsumbai met the Partner of the Builders along with her husband Yunusbhoy. The deal was settled for Rs.1,50,000/- . They were taken to the Advocate of Kulsumbai, one Abbas Talim. He prepared the draft agreement between the parties. That agreement was signed by the parties. The P.W. 1 has identified his own signature as well as the signature of Kulsumbai, who was the Constituted Attorney of Hazarabai , but who has signed the Agreement not showing that she was such Constituted Attorney. She has signed in her personal capacity. The Agreement dated 20 th December 1978 has been accordingly proved. The Builders gave to Kulsumbai a cheque of Rs.10,000 /- towards earnest. He requested for the Power of Attorney in favour of the Builders, which came to be executed on the next day by 19 Kulsumbai. Kulsumbai is a party Defendant in Suit No.3202/1989. She has accordingly been