1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 330 OF 1988 Ismailkhan Chandkhan Navgaonkar age major,resident of Kasaiwada, Paithan, Taluka Paithan, Dist. Aurangabad, since deceased, through legal heirs :- 1. Zaitunbi w/o Ismailkhan age major, occup. household, r/of Kasaiwada, Paithan. 2. Raufkhan s/o Ismailkhan 3. Babukhan s/o Ismailkhan 4. Ibrahimkha s/o Ismailkhan 5. Salamkhan s/o Ismailkhan 6. Sofiabegum s/o Yazadanikhan Nos. 1 to 5 resident of Appellants/ori. Kasaiwada, Paithan Defendants versus 1. Kazi Ataulla s/o Kazi Amanulla age major, r/of Kasaiwada, Paithan 2. Kazi Inayatulla s/o Kazi Amanulla, age major, Respondents/ori. r/of Kasaiwada, Paithan. Plaintiffs. ------------------------------------------ Shri A.M.Dabir, Advocate, for Appellants. Shri B.V. Dhage, Advocate for Respondents. ------------------------------------------ 2 Coram : P.R.Borkar, J. Date : May 04, 2010 ORAL JUDGMENT 01. This second appeal is filed by original defendants against whom decree of declaration of title of plaintiffs and for delivery of possession and mesne profits is passed by the learned Joint District Judge, Aurangabad while deciding Regular Civil Appeal No.237 of 1986 decided on 21.11.1988; thereby reversing the judgment and decree of dismissal of suit passed by the learned Civil Judge, Junior Division, Paithan in R.C.S. No.132 of 1980 decided on 30.4.1988. 02. Present Respondents are brothers' sons of deceased Kazi Amanulla. It is not disputed that one Shukrulla had two sons, namely, Kazi Amanulla (father of Plaintiffs-respondents) and Kazi Saiduddin. Kazi Saiduddin was survived by his widow Fatemabi and they were issueless. The house property bearing municipal number 320 (old) and 867 (new), Kasaiwada, Paithan which is fully described in plaint para.1 was owned by Saiduddin. Plaintiffs-respondents claimed that they were the heirs of both Saiduddin and his widow 3 Fatemabi. Plaintiffs claimed that Fatimabee had bequeathed her share in the suit property in their favour by a will and remaining part of the property she had sold to one Suleman Baig who, in turn, sold the same to plaintiffs-respondents by registered sale deed dated 12.5.1980. Thus, the plaintiffs have become owner of the property. It is stated that in or about 1978, they were dispossessed and so notice was given to defendants for putting the plaintiffs in possession and since defendants refused, the suit was filed for declaration of title, possession and future mesne profits. 03. Original Defendant Ismailkhan, who died pending appeal before the District Court, made out a case that Saiduddin had gifted the suit property to his father Chandkhan by a deed dated 11.2.1951 (Exh. 112) and thus the suit property is inherited by the defendant. It is also stated that from 1951, the defendant has been in adverse possession of the suit property and thus perfected his title also by adverse possession. 04. The trial court held that the gift deed dated 11.2.1951 is 30 years old document and, 4 therefore, it relied upon the same; and at the same time it also held that defendant has perfected title by adverse possession. The first appellate court came to the conclusion that the gift deed is a document of suspicious nature; it was not duly proved; it was not valid as possession of the property was not delivered. In the circumstances, it refused to rely upon gift deed (Exh.112). The first appellate court also held that the defendant has not perfected title by adverse possession for more than 12 years before filing the suit. On the other hand, the court held that the will is not duly proved, but the sale deeds executed by Fatimabee in favour of Suleman Baig and by Suleman in favour of the plaintiffs are proved. In the circumstances,regular civil appeal was allowed by setting aside the judgment and decree of the trial court. 05. This second appeal is admitted by order dated 7.4.1989 on following substantial questions of law involved in grounds No. 4 in appeal memo and additional ground Nos.VII and VIII which are as under; (4) The Courts below erred in not taking into consideration the evidence on record such as will-deed said to have been executed 5 by Fatimabee in favour of the Respondents and one registered sale-deed was executed by one Mirza Alia Baig in favour of one Respondent. That the Appellate Court ought to have considered the fact that the Respondents have taken diametrically opposite stand so as to establish their claim of ownership of the suit land on the one hand by inheritance, under will-deed executed by Fatimabee and under sale-deed executed by (Suleman) Mirzaali Baig, which itself gave right to their claim. (VII) Whether the appellate Court erred in law in relying upon inadmissible evidence on record. (VIII) That the appellate Court judgment is perverse in as much as the appellate Court ought to have held that there is absolutely no evidence of title of the respondents to the suit home. 06. Heard Shri A.M. Dabir and Shri B.V. Dhage learned counsel for respective parties. 07. So far as gift deed is concerned, it may be noted that title of Saiduddin as a owner of suit house is not at all challenged. It is stated that Saiduddin had gifted property to Chandkhan-the father of Defendant Ismailkhan. Besides his deposition at Exhibit 111, witnesses Gulab and Ahmedkhan are examined at Exhibits 121 and 127 respectively to prove the alleged gift deed. If we have look at the gift 6 deed, it is clear that the same is on a simple paper. There appears to be signature on revenue stamp affixed on the plain paper. It is not a registered document. Witnesses Gulab and Ahmedkhan examined by defendant have not signed the same as attesting witnesses. Defendant has further stated that none of the attesting witnesses was alive and that he did not know the scribe of the document or whether the scribe was dead or alive. So, the two witnesses examined by defendant have not signed the gift deed and the attesting witnesses to the document are not alive. It is also noted that defendant and his both witnesses are residents of village Naygaon where defendant Ismailkhan was residing and not of Paithan where Saiduddin was residing. The gift deed is rejected mainly because of improbabilities. It is observed by the learned District Judge in para. 11 of his judgment that though the gift deed is dated 11.2.1951, it did not see the light of the day till it was produced in the trial court in the present proceedings. The father of the defendant had not made any attempt to mutate his name in the municipal record on the basis of the gift deed. It has come in the evidence that Defendant applied for mutating his name in the municipal record, 7 but without any success. The defendant said that he made application, but subsequently withdrew the same. The gift deed (Exh.112) does not bear any endorsement regarding production of the same as a part of evidence, before any authority. 08. One of the major things which weighed with the District Court for rejecting the gift deed is that though Kazi Saiduddin had lived with Fatemabi till his death, he had not made any provision for her before gifting the house property and it has also come in the evidence of defendant himself that for 20 years after the gift deed, Saiduddin was residing in the suit property. It is not that there was any other house owned by Saiduddin. There was no immediate need to gift house in which Saiduddin was residing with his wife. So, that raises a serious doubt regarding intention to gift and genuineness of the gift deed (Exh.112). 09. Then, in paragraph 14 of his judgment, the learned District Judge observed that as per Mahomedan law, though gift can also be oral, gift is not 8 complete unless the donee is put into possession of the property. Defendant in his cross examination has admitted that Kazi Saiduddin resided in the suit house for 20 years after the gift and Fatemabi died six years after the death of Saiduddin. So, it is clear that possession did not accompany the gift deed. 10. In paragraph 13, 14 and 15 of his judgment, the learned District Judge has extensively discussed evidence about possession and observed that except bare interested word of defendant, there is nothing on record to indicate that he was in possession of suit house prior to 1978 and suit is filed in 1980. The learned judge also refused to believe that the defendant was in adverse possession for more than 12 years prior to filing of the suit. 11. So far as plaintiffs are concerned, it is no more disputed that Fatemabi was widow and plaintiffs were brothers' sons of deceased Saiduddin. So, the plaintiffs-respondents were residuary heirs. In Section 65 of Mulla's Principles of Mahomedan Law, we find entry of "Full Brother's" son in table of 9 residuaries in the order of succession by descendants under Sunni Law at clause III (9). (Mulla's principles of Mahomedan Law, 19th Edition pages 54,54-A). As per the table of sharers under Section 63 of the said Act, we find that wife has 1/4th share, if there is no child. So, even if it is held that there was no sale to Suleman or will in favour of plaintiffs, Fatemabi had 1/4th residuary and plaintiffs had 3/4th share in the suit property after death of Saiduddin. The alleged will deed executed by Fatemabi is disbelieved by the District Court. However, it is held that the Plaintiffs-respondents have proved that Fatimabee had sold the suit property to one Suleman Baig who sold the same to the plaintiffs. 12. Once we disbelieve the gift deed and the claim of the appellant-defendant of his having become owner by adverse possession, the plaintiffs would be even natural heirs of deceased Fatemabi. In the circumstances of the case, it cannot be said that the judgment of the District Court in any way requires interference at the hands of this court. 10 13. Having gone through the reasons given by the learned District Judge, it cannot be said that his judgment is perverse. The judgment is a well reasoned judgment. In my opinion, therefore, this appeal must fail. 14. Hence, second appeal is dismissed. Parties to bear their own costs. pnd/sa330.88 (P.R.BORKAR, J.)