MIS. TARAKNATH AND ANR.

SUSHIL CHANDRA DEY BY LRS. AND ORS.

APRIL 8, 1996

[K. RAMASWAMY AND G.B. PATIANATK, JJ.]

Mohammedan Law :

_ Gift-Relinquishment of right by sisters in the property left by their fathei in favour of their brothers-Held, it would be open to sisters to relinquish their 1ight by way of gift, even oral, which is valid in personal law-Since tenant has been in occupation, it would be constntctive delivery of possession--Delivery of physical possession to brothers not warranted.

Family settlement :

Property left by Mohammedan father-Held, it would be open to. brothers to resolve the prospective dispute by way of family settlement.-lt is not necessary that all brothers be presellt at the settlement-One of the brothers living abroad can auth01ise other brothers to settle the dispute.

Registration Act, 1908 E

S.17-Registered sale deed-Effect of--One of the brothers selling property allotted to him under family arrangement and govemed by Mohammedan law through registered sale deed-Suit by vendee for declaration of title and ejectmenH!eld, sale deed is registered conveyance for valid consideration-Vendee by operation of s.17 gets valid title to property-Pre-exist- F ing light, title and interest in property by ve11dor a11d his brothers stood extinguished by operation of law.

CIVIL APPELLATE .JURISDICTION : Civil Appeal No. 7521 of 1996.

From the Judgment and Order dated 24.7.95 of the Assam High Court in L.P.A. No 10 of 1993.

Sunil K. Jain and Jitender K. Bhatia for the Appellants.

P.K. Goswami, Rajiv Mehta, C.K. Sasi and Kailish Vasdev for the H 97

A Respondents.

The following Order of the Court was delivered :

Leave granted

We have heard learned counsel on both sides. This appeal by special leave arises from the judgment and order dated 24.7.1995 made in L.P.A.

No. 10/93 of the High Court of Guwahati: The admitted facts are that the property originally belonged to one Syed Md. Mi!hibullah. After his demise, the property passed on to his widow, five daughters and five sons.

C His widow died in 1971. Subsequently, it would appeat that the sisters have relinquished their rights in the properties in favour of their five brothers.

It is the case of the appellant that at a family settlement among the brothers, on December 6, 1977, the suit property was allotted to Syed Baitul Alam who had sold the said property under registered sale deed to D the appellant on August 6, 1979. He laid the suit for declaration of his title and for ejectment of the respondent. The trial Court decreed the suit. On first appeal, the learned single Judge confirmed the decree. The Division Bench in the above L.P.A. reversed the decree and dismissed the suit. The Division Bench came to the conclusion that relinquishment of the property E would operate as a gift by the sisters and delivery of possession is a pre-condition. Since possession was not delivered IQ the brothers, the gift by the sisters is not valid in law. As regards the family settlement between the brothers, the Division Bench has held that since there is no dispute pending or prospective, between the brothers, the family settlement is not

F valid in law and, therefore, the appellants cannot derive any title from one of the brothers to whom the property had fallen to his share through the said settlement. Consequently, the sale to the appellants on August 6, 1979 is not also valid. On that premise, the suit came to be dismissed.

It is contended by Mr. P.K. Goswami, learned Senior counsel appear- G ing for the respondents, that from the evidence it is clear even assuming that the dispute between the brothers has not been properly existing, since one of the brothers who is admittedly staying in London did not participate to settle the dispute and even in the plaint his address was of Guwahati while he was staying in London, it is not a bona-fide settlement. It is also H contended that the sisters having not delivered possession of the property

TARAKNATH v. S.C. DEY 99

to the brothers under the personal law, the gift is not complete. Therefore, A the appellant cannot get any valid title. Since the respondent had not acknowledged the title of the appellants, there is no estoppel under section 116 of the Indian Evidence Act. Since the appellants get derived no title, it would be open to the respondent to assailthe validity of the sale. The High Court, therefore, was right in dismissing the suit.

Having regard to the contention, the question arises : whether the High Court was correct in law in upsetting the judgment of the learned single judge and the trial Court in dismissing the suit ? It is true that there is no actual delivery of the possession pursuant to the gift said to have been C made by five sisters in favour of five brothers. The property admittedly belonged to father Syed Md. Mahibullah who died in 1954. Thereby all the brothers and sisters become owners to the extent of their shares they had succeeded to the property. Thus all of them are co-owners. It would be open to the sisters to relinquish their right by way of gift, even oral, which is valid in personal law. Since the tenant has been in occupation, it would D be constructive delivery of the possession. Delivery of the physical possession to the brothers, in the circumstances, is not warranted. As regards the family settlement of the brothers, it would open to the brothers to resolve the prospective dispute by way of family settlement. The brothers having agreed for the settlement, though they have been impleaded as party- E respondents to the suit, they have not challenged the family settlement nor have they contested the validity thereof. It is not necessary, in the circumstances, that all the brothers be present at the settlement. One of the brothers living in London can authorise his other brothers to settle the dispute and he was a consenting party to it. Under those circumstances, F we are of the view that the brothers obviously had a settlement pursuant to which the demised property has been allotted to the share of Syed Baitul Alam who had sold the property to the appellant under the sale deed dated August 6, 1979. The sale deed is a registered conveyance for valid consideration. Under those circumstances, by operation of section 17 of the Registration Act, the appellant gets valid title to the property. The pre- G existing right, title and interest in the property of Syed Baitul Alam and his brothers stood extinguished by operation of the law. Thereby, the appellants get valid title to the property. Since the respondent was continuing as a tenant, obviously, he is bound by the title since the suit has been laid for eviction of the respondent and decree for eviction was rightly granted.

A The appeal is accordingly allowed,. The order of the Division Bench is set aside and the order of the learned single Judge stands restored. Six months time from today is granted to the respondents, lo vacate the premises on filing usual undertaking within four weeks from today. No costs.

R.P.

A-ppcal allowed.