Dismissed

Smt. Fazlun Bi v. Smt. Saheeb Bi

Karnataka HC7 Sept 2023RSA/474/2015

Case brief

AI extract

What is this about?

In this regular second appeal regarding title to suit property, the High Court of Karnataka upheld the lower courts' findings. The appellant, heir to the original purchaser, proved ownership. The respondent failed to substantiate an alleged oral gift by her father, specifically lacking proof of the co-owner's consent and delivery of possession. Consequently, the appeal was dismissed.

What the court decided

AI extract

Smt. Fazlun Bi Vs Smt. Saheeb Bi — Partition | Karnataka HC (2023)

¶1

1 - NC: 2023:KHC:32227 RSA No. 474 of 2015

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 7^TH DAY OF SEPTEMBER, 2023

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE ASHOK S.KINAGI

¶6

REGULAR SECOND APPEAL NO. 474 OF 2015 (DEC)

¶7

BETWEEN:

¶8

SMT. FAZLUN BI W/O BASHA SAB, AGED ABOUT 68 YEARS, R/O GANDHINAGARA, HARIHARA-577 601

¶9

…APPELLANT

¶10

(BY SRI. KALEEMULLAH SHARIFF, ADVOCATE)

¶11

AND:

¶12

Digitally signed by R DEEPA Location: High Court of Karnataka

¶13

SMT. SAHEEB BI W/O LATE GAYAK SAB ALLA BAKSHA, AGED 78 YEARS, R/O TIPPUNAGAR, DAVANAGERE, REP. BY SPECIAL POWER OF ATTORNEY HOLDER SRI NASIR QURESHI S/O KAREEM SAB QURESHI, 53 YEARS, R/O 3^RD CROSS, BASHANAGARA, DAVANAGERE.

¶14

…RESPONDENT

¶15

(BY SRI. D P MAHESH, ADVOCATE)

¶16

THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 1.12.2014 PASSED IN R.A.NO.59/2010 ON THE FILE OF THE I ADDL. DISTRICT & SESSIONS JUDGE, DAVANGERE, DISMISSING THE APPEAL AND

¶17

¶18

NC: 2023:KHC:32227 RSA No. 474 of 2015

¶19

CONFIRMING THE JUDGEMENT AND DECREE DTD 8.7.2010 PASSED IN O.S.NO.143/2004 ON THE FILE OF THE SENIOR CILVIL JUDGE, HARIHARA.

¶20

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶21

JUDGMENT

¶22

This second appeal is filed by the appellant challenging the judgment and decree dated 01.12.2014, passed in R.A.No.59/2010 by the I Addl. District & Sessions Judge, Davanagere, confirming the judgment and decree dated 08.07.2010, passed in O.S.No.143/2004 by the Senior Civil Judge, Harihar.

¶23

For the sake of convenience, the parties are referred to as per their ranking before the trial Court. The appellant is the defendant and respondent is the plaintiff.

¶24

The brief facts leading rise to filing of this appeal are as under:

¶25

The plaintiff filed a suit for declaration, possession and mesne profits in respect of the suit schedule property. It is the case of the plaintiff that the plaintiff is the owner

¶26

3 - NC: 2023:KHC:32227 RSA No. 474 of 2015

¶27

of the suit schedule property. The suit property was purchased in the name of plaintiff's husband under registered sale deed dated 21.06.1950 and husband of the plaintiff constructed a house in the said property. The husband of the plaintiff died leaving behind the plaintiff as his legal heir. After his death, plaintiff inherited the same and became the absolute owner of the said house. The plaintiff requested the defendant to vacate the premises and handover the same, but the defendant refused to vacate the suit schedule property. The plaintiff got issued a legal notice dated 03.09.2004, calling upon the defendant to vacate and handover the possession of the suit schedule property. The defendant gave a reply to the legal notice denying the title of the plaintiff and refused to deliver the vacant possession. Hence cause of action arose for the plaintiff to file the suit.

¶28

Defendant filed written statement contending that

¶29

the suit schedule property was purchased by the father-inlaw of the plaintiff in the name of plaintiff's husband and

¶30

4 - NC: 2023:KHC:32227 RSA No. 474 of 2015

¶31

the said property was gifted by Moulasab i.e., the fatherin-law of plaintiff in favour of the defendant and she is the absolute owner of the suit schedule property on the basis of the oral gift and she is residing in the suit schedule property as owner. It is contended that the defendant is in peaceful possession and enjoyment of the suit schedule property without any interruption for last more than 12 years. She has perfected her title by way of adverse possession and hence prayed to dismiss the suit.

¶32

The Trial Court, on the basis of the above said

¶33

pleadings, framed the following issues:

¶34

(1) ªÁ¢AiÀÄÄ zÁªÁzÀ D¹Û ªÀiÁ°ÃPÀjgÀÄvÁÛgÉAvÀ ¸Á©ÃvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?

¶35

(2) zÁªÁzÀ D¹ÛAiÀÄ£ÀÄß ¥ÀæwªÁ¢AiÀÄ vÀAzÉ 1978 gÀ°è CªÀgÀ ªÀÄzÀÄªÉAiÀiÁzÀ £ÀAvÀgÀ ¨Á¬Ä ªÀiÁw£À ªÀÄÆ®PÀ zÁ£À PÉÆnÖgÀÄvÁÛgÉAvÀ ¥ÀæwªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ ¥Àr¹zÁgÉAiÉÄÃ

¶36

(3) ªÁ¢AiÀÄÄ vÀ£Àß ªÀÄPÀÌ¼À£ÀÄß zÁªÁzÀ°è ¸ÉÃj¸ÀzÉÃ EzÀÄÝzÀjAzÀ zÁªÉ HfðvÀªÁUÀÄªÀÅ¢®è CAvÀ ¥ÀæwªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?

¶37

(4) zÁªÁzÀ D¹ÛAiÀÄÄ vÁ£ÀÄ «gÀÄzÀÝ PÀ©ÓAiÀÄ ªÀÄÆ®PÀ ªÀiÁ°ÃPÀ¼ÁVgÀÄvÉÛÃ£ÀAvÀ ¥ÀæwªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ ?

¶38

(5) zÁªÁzÀ D¹ÛAiÀÄ°è vÀ£ÀUÀÆ ¸ÀºÀ ¥Á®Ä ºÁUÀÆ ºÀPÀÄÌ EgÀÄªÀ PÀÄjvÀÄ ¥ÀæwªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ ¥Àr¹zÁÝ¼ÉAiÉÄÃ?

¶39

5 - NC: 2023:KHC:32227 RSA No. 474 of 2015

¶40

(6) £ÁåAiÀiÁ®AiÀÄ ±ÀÄ®Ì PÉÆnÖgÀÄªÀÅzÀÄ ¸ÀjAiÀiÁVgÀÄªÀÅ¢®è CAvÀ ¥ÀæwªÁ¢AiÀÄÄ ¸Á©ÃvÀÄ ªÀiÁrzÁÝgÉAiÉÄÃ ?

¶41

(7) F zÁªÉAiÀÄ PÁ®«Äw ¨Á»gÀ¢AzÀ PÀÆr¢AiÉÄÃ ?

¶42

(8) F zÁªÉ ¸À°è¸À®Ä ¸ÀPÁgÀt GAmÁVzÉAiÉÄÃ ?

¶43

(9) zÁªÁzÀ°è ¨ÉÃrPÉ ªÀiÁrzÀ ¥ÀæPÁgÀ ªÁ¢AiÀÄÄ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ ?

¶44

(10) CAwªÀÄ DzÉÃ±À CxÀªÁ rQæ K£ÀÄ ?

¶45

In order to prove the case of the plaintiff, her special power of attorney was examined as PW-1 and one witness was examined as PW-2 and got marked 12 documents as Exs.P1 to P12. Defendant examined herself as DW-1 and 3 witnesses as DW-2 to DW-4 and got marked 23 documents as Exs.D1 to D23. The trial Court, considering the oral and documentary evidence of the parties, answered issue Nos.1 and 8 in the affirmative, issue Nos.2, 3, 4, 6 and 7 in negative, issue No.9 partly in affirmative, and consequently decreed the suit of the plaintiff. It is ordered and decreed that the plaintiff is the absolute owner of the suit schedule property and directed the defendant to handover the possession of the suit schedule property within one year from the date of the

¶46

6 - NC: 2023:KHC:32227 RSA No. 474 of 2015

¶47

judgment and dismissed the suit in respect of mesne profits.

¶48

The defendant aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.59/2010. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

¶49

1. Whether the plaintiff proves that she is the owner and in possession over the suit schedule property?

¶50

1. Whether the defendant proves that in the year 1978 after her marriage the suit schedule property was gifted by her father in her favour?

¶51

1. Whether the judgment and decree passed by the trial Court is illegal, perverse and the same calls for interference by this Court?

¶52

1. What decree or order?

¶53

The First Appellate Court, after re-appreciating the oral and documentary evidence, answered point No.1 in affirmative and point Nos.2 & 3 in negative and consequently, dismissed the appeal confirming the

¶54

¶55

NC: 2023:KHC:32227 RSA No. 474 of 2015

¶56

judgment and decree passed by the trial Court. The defendant, aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal.

¶57

Heard learned counsel for the defendant.

¶58

Learned counsel for the defendant submits that

¶59

the father of the defendant purchased the suit schedule property in the name of plaintiff's husband when he was aged about 4½ years. He submits that the father of the defendant was the owner of the suit schedule property and he orally gifted the suit schedule property in favour of the defendant and defendant is in possession of the suit schedule property and she has perfected her title by way of adverse possession. He submits that the courts below have committed an error in not properly considering the evidence on record. Hence, the judgments and decrees passed by the courts below are arbitrary and erroneous. Hence on these grounds, prays to allow the appeal.

¶60

8 - NC: 2023:KHC:32227 RSA No. 474 of 2015

¶61

Perused the records and considered the

¶62

submissions of learned counsel for the defendant.

¶63

It is not in dispute that the father of the defendant had purchased the suit schedule property in the name of plaintiff's husband and plaintiff's husband constructed the house in the suit property. After constructing the house, the plaintiff's husband permitted the defendant to reside in the premises on a condition that she should vacate the same when she gets an alternative accommodation. After the death of the plaintiff's husband, the plaintiff requested the defendant to vacate the suit schedule property. But the defendant refused to vacate the suit schedule property. The plaintiff got issued a legal notice calling upon the defendant to vacate and handover the suit schedule property. The defendant gave a reply to the said legal notice denying the title of the plaintiff over the suit schedule property. The plaintiff in order to prove her case, examined the power of attorney holder as PW-1 and PW-1 has reiterated the plaint averments in the

¶64

9 - NC: 2023:KHC:32227 RSA No. 474 of 2015

¶65

examination-in-chief and produced the documents as Ex.P1 is the special power-of-attorney executed by the plaintiff in favour of PW-1 authorizing to depose on behalf of her, Ex.P2 is the certified copy of the registered sale deed executed in favour of husband of the plaintiff on 21.06.1950, Ex.P3 is the legal notice issued to the defendant calling upon the defendant to vacate and handover the suit schedule property in favour of the plaintiff, Ex.P4 is the postal receipt, Ex.P5 is the postal acknowledgement, Ex.P6 is the reply issued by the defendant to the learned counsel for the plaintiff, Ex.P7 is the endorsement issued by the City Municipality, Harihar on 30.09.1991, Ex.P8 is the tax paid receipt, Ex.P9 is the receipt of patta book, Ex.P10 is the house tax payment extract particulars for the year 2005-06 which discloses the name of the plaintiff as the owner of the suit schedule property, Ex.P11 the self assessment property extract particulars, Ex.P12 is the self assessment tax paid receipt for the year 2005-06. It is suggested to PW-1 in the course of cross-examination that the said property was

¶66

10 - NC: 2023:KHC:32227 RSA No. 474 of 2015

¶67

purchased by the father-in-law i.e., Moulasab in the name of Allabaksha i.e., the husband of the plaintiff in the year 1950 and it is further suggested that the said Moulasab orally gifted the suit schedule property in favour of the defendant. The said fact has been denied by PW.1. Further, in order to prove that the plaintiff is the owner of the suit schedule property, examined one Nayaz Ahmed @ Abdulla as PW.2, and he has deposed that the suit schedule property was owned by Allabaksha i.e., husband of the plaintiff and he orally permitted the defendant to reside in the suit schedule property and she should vacate

¶68

the suit schedule property whenever she gets an alternative accommodation. Nothing has been elicited from the mouth of this witnesses.

¶69

In rebuttal, the defendant was examined as DW.1. She has deposed that the suit schedule property was purchased by Moulasab i.e., the father of defendant in the name of plaintiff's husband when he was aged about 4½ years and he was the absolute owner of the suit

¶70

11 - NC: 2023:KHC:32227 RSA No. 474 of 2015

¶71

schedule property. Her father orally gifted the suit schedule property in favour of the defendant, on the basis of oral hiba, the defendant became the absolute owner of the suit schedule property and she is in possession and enjoyment of the suit schedule property as a owner. The defendant in order to prove the execution of oral gift by the father in her favour examined the witnesses who were alleged to be present at the time of oral hiba. From the perusal of evidence of DW.2 to DW.4 as per the case of the defendant that the father has orally gifted the suit schedule property on 01.10.1978. From the perusal of the impugned judgments and decrees, the courts below have recorded a finding that as on the date of alleged oral gift, i.e., 01.10.1978, DW.2 to DW.4 were minors and not capable of understanding things. Hence the question of considering the evidence of DW.2 to DW.4 to prove the oral gift cannot be accepted.

¶72

In order to prove a valid gift under Mohammedan Law it is necessary to examine the

¶73

12 -

¶74

NC: 2023:KHC:32227 RSA No. 474 of 2015

¶75

provisions of Mohammedan Law. Section 149 of Mulla's principles of Mohammedan Law reads as under:

¶76

"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."

¶77

Section 149 provides three essential requisites

¶78

for a valid gift are (1) offer of the gift (2) acceptance thereof (3) delivery of possession in pursuance there under. In the instant case, the defendant has failed to prove that her father had a right to gift the suit schedule property, as the suit property was owned by plaintiff's husband. The defendant has failed to prove that her father offered the gift and she accepted the gift and delivery of possession. Further as on the date of alleged gift, the plaintiff's husband was major. It is the case of the defendant that defendant's father, with the consent of

¶79

13 - NC: 2023:KHC:32227 RSA No. 474 of 2015

¶80

plaintiff's husband, gifted the suit schedule property in favour of the defendant, but the defendant has not produced any material to prove that plaintiff's husband has consented for the gift. The defendant has failed to prove the three essentials requisites of a valid gift . The defendant has not produced any records to establish that pursuant to the alleged oral gift by the father, the revenue entry was changed in the name of defendant. Thus it is clear that the defendant's father has not gifted the suit schedule property in favour of the defendant.

¶81

The trial Court has rightly recorded a finding that the plaintiff along with the legal heirs have proved that after the death of plaintiff's husband, she and her legal heirs have succeeded to the suit schedule property and became the absolute owners of the suit schedule property and they are entitled for possession of the suit schedule property and further, rightly recorded a finding that the defendant has failed to prove the execution of alleged oral gift by Moulasab in favour of the defendant

¶82

14 -

¶83

NC: 2023:KHC:32227 RSA No. 474 of 2015

¶84

and rightly decreed the suit. The First Appellate Court on re-appreciation of the material on record has rightly dismissed the appeal. Hence, I do not find any substantial question of law that arise for consideration in this appeal.

¶85

In view of the aforesaid facts and circumstances,

¶86

I proceed to pass the following:

¶87

ORDER

¶88

The appeal is dismissed.

¶89

The judgments and decrees passed by the courts below are confirmed.

¶90

No order as to the costs.

¶91

SD/JUDGE

¶92

RD/SSB

Smt. Fazlun Bi v. Smt. Saheeb Bi

Case brief

What is this about?

What the court decided

Smt. Fazlun Bi v. Smt. Saheeb Bi

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Ramakrishna Ayurvedic Medical College Vs Rajiv Gandhi University of Health Science

The Karnataka State Association of the Management of Nursing and Allied Health Science Institutions Vs the State of Karnataka

Mr Bhargav Pendayala Vs Rajiv Gandhi University of Health Sciences

Sri Jatangi Rameshwara Rural Education Society Vs Union of India

H.Srinvas Vs R.Nagaraj

Sri. Pujari Channabasappa Vs Sri. Pujari Basavalingappa