- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Mohd. Ibrahim Khan & Ors. Vs. LRs of Azad Rasul & Ors. S.B. CIVIL FIRST APPEAL NO.176/2003 AGAINST THE JUDGMENT AND DECREE PASSED BY SHRI GYAN PRAKASH PANDE, RHJS, LEARNED DISTRRICT & SESSIONS JUDGE, RAJSAMAND IN CIVIL ORIGINAL SUIT NO.37/1999 DATE OF ORDER : 19th Sept., 2007 REPORTABLE PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA Mr.RS Makad ] Mr.Dilip Kawadia ], for the appellants. Mr.Sandeep Bhandawat ] Mr.Rajendra Pareekh ], for the respondents. <><><> BY THE COURT: Heard learned counsel for the parties. This regular first appeal is directed against the preliminary decree for partition granted by the trial court, the District & Sessions Judge, Rajsamand dated 21st April, 2003 by which the trial court granted preliminary decree for partition and perpetual injunction in favour of the plaintiffs- respondents nos. 1and 2. Brief facts of the case are that ancestor of the plaintiffs - 2 - and defendant Rahim Khan died in the year 1969 living behind four sons Bhure Khan, Mohd. Ismail Khan, Azad Rasul and Dauid Khan @ Dinesh (after conversion) and one daughter Smt. Zenab. Bhure Khan died in the year 1985 and his decedents are defendants. Mohd. Ismail Khan died in the year 1998 and his one of the son is plaintiff no.1 and rest of the decedents are defendants no. 10 to 14. Daud Khan converted himself to be Hindu by adopting Arya Samaj and he did not claim any share in the property of deceased Rahim Khan. The suit has been filed by Azad Rasul who is as stated above son of Rahim Khan and Mohd. Suleman Khan who is son of deceased Mohd. Ismail Khan. So far as properties involved in the present litigation are concerned, they are not in dispute that they were belonging to Rahim Khan except one property for which it is stated that said property was purchased by Bhure Khan from his money but in the name of Rahim Khan. That plea was not accepted by the trial court and the suit was decreed for all the properties of Bhure Khan mentioned in the schedule 'Ka' and 'Kha' annexed with the plaint. The plaintiffs' case was that after the death of Rahim Khan, the property was never divided and they requested to divide the property by serving notice upon the defendnats - 3 - dated 6th Oct., 1998, but the defendants did not agree for partition and, therefore, the suit was filed. Defendants nos. 1 to 6 and 7 filed written statement admitting the pedigree of Rahim Khan. It is stated that the properties mentioned in para no.2 'ka' and 'kha' were the properties of Rahim Khan but before his death those all properties were gifted (by Hibba) to Bhure Khan s/o of Rahim Khan in the year 1958. After the death of Rahim Khan, Bhure Khan alone remained in possession of all the properties. Not only that oral Hibba was there of the year 1958, but memorandum admitting Hibba was executed by deceased Rahim Khan after 10 years in the year 1968 which is precisely on date 6th Sept., 1968. This memorandum of Hibba was handed over to daugher of Ramhim Khan Smt. Zenab, who is also defendant in the suit. According to the contesting defendants decedents of Bhure Khan including defendant Zenab, memorandum of Hibba remained in the custody of Zenab from the year 1968 till a notice was received by the contesting defendants from the plaintiffs seeking partition of the properties in the year 1998. The decedents of Bhure Khan defendants had no knowledge of either Hibba of 1958 or about memorandum of Hibba dated 6.9.1968. After receipt of notice only, the decedents of Bhure Khan came to know about - 4 - memorandum of Hibba as that was given by Zenab to one of the son of Bhure Khan named Mohd. Tahir Ali. In view of the above reasons according to the defendants, the suit of the plaintiffs deserves to be dismissed as the plaintiffs had no right, title or interest in the property in dispute. The defendants further submitted that since last more than 40 years none of the plaintiffs or decedents of Azad Rasul or decedents of Mohd. Ismail Khan ever remained in possession of the properties involved in the present suit and, therefore, the contesting defendants became owner of the property by adverse possession. The defendant no.8 Dinesh Kumar submitted written statement and stated that since he relinquished Muslim Religion and, therefore, neither he is entitled to any share in the property in dispute nor he is claiming any share. The defendants nos. 10 to 14 admitted the plaint allegations. In the trial court issues were framed whether the property in question was joint family property of the plaintiffs and defendants, whether the plaintiffs are entitled to seek partition by meets and bounds and are entitled to the possession of the property from the defendants, whether the property in dispute were given to Bhure Khan by deceased Rahim Khan in the year 1958 by oral Hibba which was - 5 - followed by the memorandum of Hibba dated 6th Sept., 1968, whether the defendants become owner of the property by adverse possession and whether the defendant no.8 relinquished his share in the property. In addition to above an issue for prohibitory injunction and on the question of court fees was also framed by the trial court. In the trial court the plaintiffs produced PW-1 Azad Rasul who is plaintiff no.1, PW-2 Mohd. Suleman, who is plaintiff no.2, PW-3 Nazim Ali, PW-4 Vinod Kumar, PW-5 Mohd. Ali Saddiki and PW-6 Anil Kumar – hand writing expert. In support of plaintiffs' case, the plaintiffs produced letter Ex.1 written by defendant no.5 – Mohd. Faruqe, Ex.2 the letter written by deceased Bhure Khan, letter Ex.7 written by defendant no.1 Mohd. Ibrahim Khan dated 13.2.1997 and hand writing exports report Ex.14 was also produced. From the side of defendants, the defendant no.7 Zenab gave her statement as DW-1 and defendant no.2 Tahir Ali also appeared in the witness box. The defendants also produced DW-3 Umrao Khan, DW-4 Ahmed Khan, DW-5 Tahir Khan and DW-6 Kale Khan. The defendants also produced copy of the memorandum of Hibba as Ex.A/1. It appears from the facts that substantially there was no dispute about the fact that the property was originally - 6 - belonging to Rahim Khan and he died in the year 1969. In view of the above in fact issue no.1 was not very much necessary issue in the light of even pleadings of the parties. Be that as it may be, while deciding issue no.1, the trial court held that the property is joint family property. The joint family property, the concept which is applicable to joint Hindu family property but that finding will be of no consequence in view of the fact that whatever the nature of the property in the hands of any of the party of the suit, it is not disputed that in case Hibba is not accepted then all the parties have share in accordance with the Mohammedan law governing Sunnis. Therefore, the issues nos. 4 and 5 are the most important and crucial issues by which the defendants' claim that the plaintiffs lost their right to claim any share in the property. The trial court in detail considered the evidence of all the witnesses as well as documentary evidence and found that the defendants measurably failed to prove the oral Hibba of the year 1958 as well as the memorandum of Hibba produced is not a reliable document. The trial court also observed that the witnesses of the defendants who tried to prove the memorandum of Hibba as well as the statement of Zenab are not sufficient proof for Hibba at all. Learned counsel for the appellants-plaintiffs vehemently - 7 - submitted that the defendant no.7 Smt. Zenab had equal relation with both the plaintiffs and the defendants. She was an old lady of the year 85 when she gave her statement by admitting Hibba. She also had right in the property left by the deceased Rahim Khan but because of Hibba and there is no enmity of Zenab with the plaintiffs or decedents of Mohd. Ibrahim Khan then the trial court committed serious error of law by not relying upon the statement of Zenab. It is submitted that in ordinary course if the memorandum of Hibba was given to Smt.Zenab one of the member of family at that time then that is not unusual course adopted by the parties. It is also submitted that two witnesses gave their statements to prove deed and those statements have not been rebutted by the plaintiffs. It is submitted that writing of Hibba is proved by the scribe and attesting witness proved his signature. In view of the above facts, it is clear that in fact the property was gifted to Bhure Khan by Rahim Khan in the year 1958 by oral Hibba and this fact is corroborated by written document of the year 1968. Learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Mohbood Sahab Vs. Syed Ismail & Ors reported in JT 1995 (3) SC 168 wherein it has been held that for gift by a Muslim - 8 - by way of Hibba, a written document is not necessary. The only requirement is that the donor must declare his intention to gift the property and the donee must accept the gift and this must be made known. Learned counsel for the appellants further relied upon the judgment of the Calcutta High Court delivered in the case of Abdul Sattar Ostagar & anr. Vs. Abu Bakkar Ostagar & Ors reported in 1977 Calcutta 132 in support of his contention that since the property was gifted in the life time of Rahim Khan and at that time Rahim Khan – the donor and the donee Bhure Khan both were living in the same house then it was not necessary that Rahim Khan should have parted with the possession of the property. The same view was taken by the Madras High Court in the case delivered in Azeshabi & Ors Vs. Saprakara Kathoonbi & Ors reported in AIR 1966 Madras 462 wherein it has been held that physical departure from house by donor is not necessary and person other than legal guardian can accept the gift on behalf of minor or even minor himself can accept the gift. In support of his argument that the trial court committed error of law while deciding issue no.1, learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Bhagwan Kaur VS. Shri Maharaja Krishan Sharma & Ors reported in AIR 1973 SC - 9 - 1346 wherein the Hon'ble Apex Court held that the nature of the property in the hands of the decedents of a Muslim is not as of a decedents of a Hindu. With the help of the judgment of the Hon'ble Supreme Court delivered in the case of Tej Narain & anr. Vs. Shanti Swaroop Bohre & Anr. reported in AIR 2004 SC 5113, learned counsel for the appellants submits that the suit of the plaintiffs was barred by time as the defendants also became owner of the property by adverse possession. It is also submitted that the jointness of the property is presumed in the case of Hindu Succession and the legal position in the case of Muslims is different as held by this Court in the case delivered in Gulab Vs. Lal Mohammad reported in RLW 1950 334. Learned counsel for the appellants read over the statements of the witnesses in detail to show that the plaintiffs themselves have clearly admitted that since 1965 they did not enter into the property and thereby they admitted that they had no possession since 1965. Not only this, the plaintiffs in their own statements very specifically admitted that the defendants are not allowing them to enter into the properties in dispute. Further, the plaintiffs very specially admitted that the defendants have forcibly occupied the property in dispute . In view of the above facts, it is clear - 10 - that the plaintiffs left the properties as well as the State of Rajasthan itself before the property was gifted by Rahim Khan to Bhure Khan. In view of the above admission of the plaintiffs,the plaintiffs' suit was barred by time as well as the defendants became owner of the property by adverse possession. The trial court has not considered this very aspect of the matter in correct perspective and thereby committed serious error of law in decreeing the suit of the plaintiffs for partition of the properties. Learned counsel for the respondents submitted that the alleged Hibba was not even in the knowledge of the defendants', any of the decedents of Bhure Khan, is the statements of all the decedents of Bhure Khan before the trial court. Not only this, even the defendant no.5 Zenab from whose possession the said memorandum of Hibba came out after 30 years, all of sudden when plaintiffs served notice for partition upon the defendants, specifically admitted that except Bhure Khan none of his decedent was knowing about the Hibba. Learned counsel for the respondents-plaintiffs pointed out from the statement of DW-2 Tahir Khan himself who states that only when they came to know about Hibba, they told to the plaintiffs that they are owner of the properties of Rahim Khan and specifically admitted that before that they - 11 - never said this fact to the plaintiffs. Meaning thereby, they never asserted their title nor denied the plaintiffs' title or interest prior to 1998. In view of the above, the plea of the adverse possession is destroyed by the statement of defendants' own pleading as well as their evidence. It is also submitted that by not visiting the properties by the plaintiffs, the rights of the plaintiffs cannot extinguish. Learned counsel for the respondents-plaintiffs further submitted that three letters were written by Bhure Khan and his two sons were produced by the plaintiffs in evidence. Bhure Khan died before filing of the suit, but his two sons Mohd. Farooq and Ibrahim Khan were alive and were defendants in the suit,but did not appear in the witness box to deny those letters which written by them. Therefore, till the year 1997, the decedents of Bhure Khan requested to plaintiff for partition of the properties. In view of the above reasons their arises no question of having any Hibba in existence and the document of Hibba appears to have been fabricated only. I considered the submissions of learned counsel for the parties and perused the reasons given by the court below as well as the entire record. As stated above, it is undisputed that the properties involved in the suit were of deceased Rahim Khan. He died in - 12 - the year 1969 but for Hibba all the parties to suit, except defendant no.8 Dinesh, have share in the property. The burden was upon the defendants to prove valid Hibba (gift) in favour of Bhure Khan. For this, the defendant's case is that there was oral gift in the year 1958. To prove that oral gift the only witness is defendant no.7 Smt. Zenab, the daughter of Rahim Khan who was having relation with all the parties to the suit, therefore, by relation, the impartiality of Zenab can be presumed. The requirement of valid Hibba is that the donor must declare that he gifted the property to donee and the possession is required to be handed over to the donee but in a case where the possession is already with the donee and both of them are living together then there is no need to hand over the possession of the property to the donee. In this situation where actual physical possession is not given by the donor to donee on account of their living together then some overt act in furtherance to Hibba is essential to complete the gift. Here in this case, not only there is absence of overt act of the parties in furtherance or after the Hibba of the year 1958, but it is clear from the statement of witnesses that the Hibba was not known to anybody till the death of Rahim Khan in the year 1985 and till the year 1998 even after the death of Bhure Khan. There appears to be no explanation from the - 13 - defendants how such an important event creating title in favour of Bhure Khan was kept secret by Bhure Khan from 1958 to 1985 from all his children. Nor there is any explanation why the said deed of Hibba which alleged to has been executed in the year 1968 remained in possession of Zenab and was not taken by Bhure Khan after the death of Rahim Khan. After the death of Rahim Khan, Bhure Khan would have certainly looked to his title deed, but he did not demand Hibba and kept in possession of lady, though her sister, but she was of a advance age. The Hibba in the first instance came in the knowledge of the defendants in the year 1998 and that too, when the plaintiffs served notice for partition of properties. There is no explanation why Zenab did not hand over this memorandum of Hibba to the decedents of Bhure Khan after the death of Bhure Khan because when Mst. Zenab became too old as she was of age of 85 years when she gave statement. The statement of Zenab that she forget the Hibba for 30 years itself creates heavy doubt about the credibility of her statement. She admitted that she was keeping Hibba in her trunk in which she used to keep her cloths then for 30 years, the said memorandum of Hibba now could not come her notice? Apart from above, the witnesses produced by the - 14 - defendants to prove memorandum of Hibba are also peculiar because of the reason that admittedly they are stranger to the family. They both are living far away and not at the place where the deceased Rahim Khan was residing. The attesting witness is the brother in law of the scribe. The scribe DW-4 Ahemad Khan stated that he used to visit to the house of Rahim Khan to take some medicines as Rahim Khan was giving medicines for the animals. For that purpose, he used to travel from his village to Rahim Khan's place. Be that as it may, Ahemad Khan's bother in law the attesting witness DW- 3 Umrao Khan was a labour in bicycle shop and he is residing away about 70 to 100 kms at Udaipur from Kankroli. All the witnesses including attesting witnesses and the defendant Zenab clearly stated that they never disclosed about Hibba to anybody for 40 years. There is no explanation why the said event was kept secret by them and what was apprehension in case it was disclosed. In the above facts, the presence of DW-3 Umarao Khan and DW-4 Ahmed Khan with the deceased Rahim Khan on relevant date of execution of Hibba itself cannot be believed as there is no explanation for getting the deed executed by the scribe and getting a sign of a person as attesting witness which they might not even have traced in case of need looking to their reason for visiting - 15 - Rahim Khan. Be that as it may be, the defendants very conveniently produced both the witnesses. When original Hibba of the year 1958 itself is not proved the only corroborative evidence of recording Hibba in the year 1968 and which could not see the light of the day for 30 years were rightly not relied upon by the trial court. The trial court very carefully considered oral statement of the parties as well as the documents produced. The defendants produced the letters written by the deceased Bhure Khan Ex 2/A and letter written by Farooq Ex.A/1 and letter written by Ibrahim Khan Ex.7. The defendants Farooq and Ibrahim Khan did not deny their writings on the letters. Therefore, adverse inference could have been drawn and on the basis of adverse inference alone, the sending of these letters by these two persons could have been drawn even without help of any hand writing experts . However, hand writing expert was also produced. It is true that hand writing expert's opinion is not as reliable as opinion about thumb impression, but in the present case, the hand writing expert's opinion is a corroborative evidence as the plaintiffs stated that they received the letters at the relevant time and they stated that letters were written by the defendants Farooq and Ibrahim Khan then it was the burden - 16 - of said Farooq and Ibrahim Khan to deny their hand writings. Be that as it may be, the plaintiffs also produced one witness PW-3 Nazim Ali who stated that he was well acquainted with the writings of the writers of the letters. The credibility of this witness was challenged by the appellants heavily on the ground that the witness was brother of the counsel for the plaintiffs and further on the ground that his statement are false because he said that even at the age of 10 to 12 years Rahim Khan used to discuss for property matter with him. It appears from the statement of PW-3 that he stated that he himself is an advocate and he had occasion for discussion with the author of the letters in the various matters and, therefore, he is well acquainted with the writings of the author of the letters. He stated that these letters were written by the author of the letters named above. In this case, thus the statement of PW-3 cannot be rejected in view of the fact that the witness was advocate and his father was also advocate. Even if the statement of PW-3 is ignored even then there is no reason for not drawing adverse inference against the defendants on account of their non-producing the best evidence – the witness Farooq and Ibrahim to dispute the letters which plaintiffs say that they were received by them in ordinary course through Dak. - 17 - Not visiting the properties by the plaintiffs in the facts of this case, is of no consequence, particularly, in the light of the letters Ex.1A and Ex.7 and the admission of Tahir Ali that before 1998 they never claimed title over the property nor they brought their alleged claim to the property in the knowledge of the plaintiffs before 1998. In view of the above reasons virtually from the evidence of the defendant Tahir Ali himself the plea of adverse possession has been destroyed totally. Apart from above fact there are no sufficient pleading and assertion about claim of history title. In view of the above reasons, the trial court rightly decided issues nos.4 & 5 against the defendants. No other point has been raised and trial court rightly decided other issues and decreed the suit. In view of the above reasons, the appeal deserves to be dismissed, hence, dismissed. (PRAKASH TATIA), J. c.p.goyal/-