1. The unsuccessful plaintiff has filed this Appeal Suit assailing the judgment and decree dated 03.06.2014 in OS No.474 of 2012 on the file of the learned VII Senior Civil Judge, City Civil Court at Hyderabad.
2. The plaintiff has filed the original sit for partition and separate possession of his share in the suit schedule property, house with municipal No.18-12-418/D/1/10 admeasuring 250 square yards situated at Hafez Babanagar, Hyderabad (hereinafter referred to as ‘suit schedule property’). The plaintiff married the defendant in the year 2003, however, after the marriage the plaintiff came to know that the defendant has already contracted three marriages with Arab nationals and obtained divorce. When questioned by the plaintiff, she requested for mercy, accordingly, the plaintiff and the defendant lived together, lead marital life and they were blessed with two children. The plaintiff and the defendant are in joint possession of the suit schedule property, but actually the defendant along with her children are staying in the same and the plaintiff was paying maintenance to them. Despite providing all comforts, the defendant started showing disrespect towards the plaintiff. Accordingly, he divorced her on 03.03.2009 as per Shariath Law. He has also filed a petition in OP No.132 of 2012 on the file of the learned Judge, Additional Family Court, Hyderabad claiming the custody of his minor children and the defendant refused to settle the OP before the Lok Adalat. Hence, the suit is filed for partition and separate possession of the half share of the plaintiff in the suit schedule property.
3. The defendant has resisted the suit and filed a detailed written statement denying the plaint averments admitting her marriage with the plaintiff. It is denied by the defendant that she has already contracted three marriages with Arab nationals and obtained divorce. In fact, the defendant is divorcee and the plaintiff is aware of the same. During subsistence of marriage, the suit schedule property was purchased by the defendant only. However, at the request of the plaintiff, his name was also included in the sale deed as joint owners. In fact, she has contributed the sale consideration by selling her gold ornaments, as such question of plaintiff’s spending money for purchase of suit schedule property does not arise. Further, during subsistence of the marriage itself on 12.01.2009 the plaintiff has gifted his undivided and unspecified half share in the suit schedule property orally to the defendant in the presence of two witnesses viz., Mohd. Ahmed and Mohd. Sajid and from the date of oral gift she is in exclusive possession and enjoyment of the suit schedule property, there was no such demand by the plaintiff for partition at any time. Hence, the suit is not maintainable and liable to be dismissed.
4. The trial Court after full length trial dismissed the suit of the plaintiff with an observation that the defendant is able to establish that she has become the owner of the entire suit schedule property by virtue of oral hiba dated 12.01.2009 and the plaintiff is not entitled for partition and separate possession of the half share in the suit schedule property. Accordingly, both the issue Nos.1 & 2 were answered in favour of the defendant and against the plaintiff.
5. Feeling aggrieved by the judgment and decree of the trial Court, this appeal is filed by the appellant/plaintiff on the following grounds:
i) that the trial Court erred in dismissing the suit filed by the appellant/plaintiff ignoring the oral and documentary evidence and failed to appreciate the evidence in deciding the issue relating to the oral gift;
ii) that the trial Court has erroneously held that the defendant has established her plea of oral gift, even though she has failed to plead and prove the essential ingredients of oral gift as held by various High Courts;
iii) that the trial Court has failed to take into consideration that one of the witnesses of the alleged oral gift died and another witness failed to support the plea of defendant; and
iv) the trial Court has failed to consider that the plaintiff has dishonestly and fraudulently ignored her name in the sale deed.
6. Heard the learned counsel for the appellant/plaintiff and the respondent/defendant. Perused the material available on record. The submissions made on either side have received due consideration of this Court.
7. For the sake of convenience, the parties are hereinafter referred to as the plaintiff and the defendant as arrayed in the original suit.
8. In the light of the rival contentions raised, the material available on record and the submissions made by the learned counsel on both sides, the points that arise for consideration are
i) whether the trial Court has rightly appreciated the plea of oral hiba in favour of the defendant in respect of the suit schedule property by applying the settled principles of law
ii) whether the impugned judgment and decree is sustainable and
Point Nos.(i) & (ii):
9. Since both the points were inter-related, for the sake of brevity, they are answered together as under.
10. The plaintiff has filed the original suit for partition and separate possession of his half share in the suit schedule property. The case of the plaintiff is that he has married the defendant as per the tenets of Islam in the year 2003 and after marriage, out of love and affection he has purchased the suit schedule property on 09.06.2003 with his own earnings. However, out of love and affection and considering the request of the defendant, her name is also recorded as joint purchaser along with him though has paid the entire sale consideration. They were blessed with two children. Despite providing all comforts, the defendant started showing disrespect, accordingly due to unavoidable circumstances, he divorced her on 03.03.2009. He has also filed OP No.132 of 2012 claiming the custody of his minor children, but the defendant failed to cooperate for settlement before the Lok Adalat on 18.03.2012.
Accordingly, the original suit is filed for partition and separate possession of 50% share of the plaintiff.
11. The trial Court considering the pleadings on both sides has framed the following issues:
i) Whether the plaintiff is entitled for half share in the suit schedule property
ii) Whether the plaintiff is entitled for preliminary decree as prayed for, if so what are the shares to which the plaintiff and defendant are entitled to in the suit schedule property and
iii) To what relief
12. During trial on behalf of plaintiff, he himself got examined as PW.1 and the vendor under Ex.A.1 is examined as PW.2 and reported closure of plaintiff’s evidence. Thereafter, on behalf of the defendant, she herself examined as DW.1 and one of the witnesses to the oral hiba is examined as DW.2 stating that another witness died. On behalf of the plaintiff, Ex.A.1 document is marked, whereas on behalf of the defendant, Exs.B.1 to B.5 are marked.
13. Upon hearing both sides and on careful appreciation of the oral and documentary evidence available on record, the trial Court has dismissed the suit of the plaintiff with an observation that the defendant is able to establish her plea of oral hiba, she is in exclusive possession of the suit schedule property from the date of oral hiba and the plaintiff is not entitled for partition and separate possession of the half share in the suit schedule property.
14. Now let us examine the oral and documentary evidence available on record. In support of his evidence, the plaintiff himself got examined as PW.1 and filed his evidence affidavit in lieu of chief examination. Ex.A.1- certified copy of the sale deed dated 09.06.2003 is marked in his evidence. In the cross-examination, this witness has stated that he is doing business in Dubai for the last 44 years. He is Indian national, having Indian passport, used to visit India twice or thrice in a year. Further stated that he is having one wife and four children, through her at Dubai. The defendant is the second wife and again he has married another woman in the year 2006. He further stated that he does not remember on which date he purchased the suit schedule property, but it was purchased after four months of their marriage in the year 2003. He denied the suggestion that the entire sale consideration was paid only by the defendant by selling her gold ornaments.
15. The witness (PW.1) further stated that he does not remember whether he was in India or Dubai during January 2009 and explained that his arriving and exit from India will be available on his passport. He denied the suggestion that deliberately he did not produce his passport at the time of giving evidence. The witness further stated that the Consulate at Dubai has seized his passport at the time of issuing new passport and he denied the suggestion that there is no such practice of seizure of old passport. The witness has explained that the original of Ex.A.1-sale deed is kept with the defendant only from the year 2003 onwards. He denied the suggestion that on 12.01.2009 he orally gifted the suit schedule property in favour of the defendant in the presence of two witnesses and handed over the undivided share to her. He further stated that he has filed a case for the custody of his children and he is interested to take his daughter to Dubai. The witness fairly admitted that he has not filed any documentary evidence to show that he is in possession of a room in the suit schedule property.
16. PW.2 is the vendor who executed the original of Ex.A.1. In the cross-examination, this witness stated that he executed Ex.A.1-sale deed only in favour of the plaintiff and its contents are true and correct. He knows the plaintiff only from the date of Ex.A.1. He does not know whether the suit schedule property was jointly purchased by the plaintiff and defendant, but the cheque was given by the plaintiff. The witness clearly explained that since the cheque was issued by the plaintiff he saying that the cheque amount belongs to him.
17. Whereas, on behalf of the defendant, she herself got examined as DW.1 and filed her evidence affidavit in lieu of chief examination. In the cross-examination, she has stated that she does not have any proof to show that she sold her gold ornaments for payment of sale consideration of the suit schedule property and she did not mention the details of the purchaser of gold ornaments in the written statement. She admitted that the contents of Ex.A.1 sale deed are true and on 09.06.2003 itself she came to know that the name of the plaintiff was inserted in the sale deed, but she never took any steps for deleting his name. She admitted that the plaintiff has paid the sale consideration of Rs.10 lakhs through his NRI account under cheque dated 09.06.2003 to PW.2 and explained that she has paid cash to the plaintiff who in turn paid the same to the vendor by way of cheque. She has admitted the suggestion that she is in possession of entire suit schedule property since the date of purchase. She has also admitted about pending cases between herself and the plaintiff before the Family Court with regard to maintenance and custody of children stating that they were filed earlier to this suit.
She has also admitted that the plaintiff has divorced her on 23.03.2009 and even after divorce also, no steps were taken by her for rectification of the original of Ex.A.1.
18. DW.2 is one of the witnesses to the oral hiba. This witness has stated that on 12.01.2009 he was invited by the plaintiff and defendant in his presence and in the presence of late Mohd. Ahmed, second witness, the plaintiff has orally gifted undivided and unspecified half share in the suit schedule property, handed over the title deed of the house to the defendant and that only to harass her, the present suit is filed. In the cross-examination, the witness stated that on 12.01.2009 there was a naming ceremony of the son of the defendant and plaintiff, for that function he was invited, the plaintiff was present at Hyderabad on that day and no incident occurred in that ceremony before he left.
19. The learned counsel for the appellant/plaintiff strenuously contends that though the defendant has taken a plea of oral hiba, she is not able to prove the same and DW.2. The defendant also failed to establish her plea of paying consideration by selling the gold ornaments. The oral evidence of PW.2 itself is sufficient to establish that the entire sale consideration was paid only by the plaintiff, merely because the name of the defendant is also included in the sale deed as one of the purchasers, the present suit is filed for partition and separate possession of half share of the plaintiff. But the trial Court failed to appreciate the oral and documentary evidence adduced on behalf of plaintiff and relied on the evidence of DW.2 as to the oral hiba. The essentials of oral hiba are not established, prayed to allow the appeal by setting aside the judgment and decree of the trial Court.
20. Per contra, the learned counsel for the respondent/ defendant seeks to submit that though the property was purchased under the original of Ex.A.1 by the defendant alone, the name of the plaintiff was inserted, the defendant did not object the same, during subsistence of marriage she has sold her gold ornaments and paid the purchase money. Thereafter, out of love and affection, the plaintiff has orally gifted his half share in the suit schedule property in favour of the defendant on 12.01.2009 in the presence of DW.2 and another witness, who reportedly died. Since the defendant is a parda nashin lady, she could not go to the Sub-Registrar’s office and the sale transaction was held through the plaintiff and he deceived her. The trial Court has rightly believed the plea of oral hiba and there are no infirmities in the findings recorded by the trial Court, accordingly, prayed for dismissal of the appeal suit.
21. Ex.A.1 is the certified copy of sale deed dated 09.06.2003. Admittedly, the original of Ex.A.1 is with the defendant. Though the plaintiff is claiming that it was with the exclusive possession of the defendant ever since the time of execution of the same, DW.2 has categorically stated that in their presence the plaintiff orally gifted his undivided and unspecified half share in the suit schedule property and handed over the original of Ex.A.1. Though DWs.1 & 2 were cross-examined at length, their evidence withstood the entire cross-examination. On overall consideration of facts and circumstances of the case, I do not find any reason to disbelieve the oral evidence of DWs.1 and 2 as to the oral hiba made by the plaintiff in favour of defendant in respect of his half share in the suit schedule property.
22. Undisputedly, the plaintiff has also admitted that the entire suit schedule property is in the possession of the defendant, he used to visit India two or three times in a year and out of the wedlock, they were blessed with two children. He has filed a case before the Additional Family Court, City Civil Court at Hyderabad for the custody of his minor children, as the defendant failed to cooperate for settlement before the Lok Adalat, he has filed the present suit showing the cause of action as 18.03.2012. Thus, even according to the pleadings in the plaint and evidence of PW.1, though he divorced the defendant on 03.03.2009, till the year 2012, he did not take any steps for partition and separate possession of his half share in the suit schedule property and it is only on 18.03.2012 when the defendant refused to cooperate for settlement before the Lok Adalat in OP No.132 of 2012, the present suit is filed.
23. It is a fact that PW.2 has categorically stated that he received the entire sale consideration through a cheque from the plaintiff and he is not aware whether the defendant has contributed the entire sale consideration by selling her gold ornaments. It is also a fact that the defendant failed to establish that she has sold the gold ornaments to a particular individual in a shop and received Rs.10 lakhs or more amount and with that amount only, the entire sale consideration was paid to PW.2. Undisputedly, the name of the plaintiff and defendant are mentioned as purchasers. Therefore, considering the principles laid under Sections 91 and 92 of the Indian Evidence Act in the circumstances state above, it can be safely concluded that both the plaintiff and defendant are the joint purchasers of the suit schedule property under the original of Ex.A.1 and ever since the date of purchase, the defendant is in exclusive possession and enjoyment of the suit schedule property and the original of Ex.A.1 is also with her.
24. Be it stated that as per the evidence of DW.1 and DW.2, in the presence of witnesses, the plaintiff has orally gifted his unspecified/undivided share in the suit schedule property and handed over the original of Ex.A.1 on 12.01.2009. Though DWs.1 & 2 were cross-examined, their testimony remained consistent, nothing is elicited to disbelieve the case of the defendant as to oral hiba by the plaintiff in favour of the defendant in respect of his undivided and unspecified half share in the suit schedule property.
25. The three essentials of a gift under Mohammadan Law are: (i) declaration of the gift by the donor; (ii) acceptance of the gift by the donee; and (iii) delivery of possession. Section 206 of the Muslim Law, which deals with Hiba of undivided property (hiba-bil-mushaa), is extracted below:
“206. Hiba of undivided property (hiba-bil-mushaa).—Subject to the provisions of Section 207, a hiba of an undivided share in property which is capable of division is invalid except in the following cases:
(a) Where it is made by one co-sharer in the property to another;
(b) Where the property admits of definite ascertainment of shares and is capable of separate enjoyment without division;
(c) Where it is made to a minor who is under the custody of the donor and to whom the donor transfers a part of the property;
(d) Where the property is freehold property in a large commercial town (c).”
26. Thus, it is well settled principle of Muslim Law that gift of undivided share in property, which is capable of division is invalid except in the four aforesaid circumstances. One of the exceptions is where such hiba is made by one co-sharer in the property to another cosharer. As per Ex.A.1, plaintiff and defendant are shown as joint purchasers, accordingly, in my view, the disputed oral hiba fits within the exception-(a). That part, it is an admitted fact that the defendant has been in exclusive possession of suit schedule property right from the date of execution of Ex.A.1 and on the date of oral hiba i.e., on 12.01.2009 the original of Ex.A.1 was handed over by the plaintiff to the defendant. Thus, the defendant is able to establish that the plaintiff has orally gifted his half share in the suit schedule property in the presence of DW.2 and another witness and also handed over the original title deed of Ex.A.1 and that she has accepted the same, ever since the date of oral hiba, she along with her children are in exclusive possession and enjoyment of the entire suit house.
27. In a recent decision of the Hon’ble Supreme Court in D.N. Joshi (dead) through Legal Representatives and others v. D.C. Harris and another (2017) 12 SCC 624 [LQ/SC/2017/883] while referring to its earlier judgment in Hafeeza Bibi v. Farid (2011) 5 SCC 654, [LQ/SC/2011/669] the Apex Court has dealt with the three essential aspects for a valid gift deed in respect of immovable property under Mohammadan Law. They are (1) declaration of the gift by the donor; (2) acceptance of the gift by the donee; and (3) delivery of possession.
28. In the case on hand, as per the oral evidence of DWs.1 & 2 and the pleadings in the written statement, all the three essentials indicated above are established by the defendants. The trial Court has rightly appreciated the oral and documentary evidence available on record. The defendant has also filed the death certificate of second witness to oral hiba as Ex.B.1 stating that she could not examine the second witness as he died. The defendant has issued a legal notice dated 09.04.2013 to the plaintiff with a request to produce his passport so that it will be established on 12.01.2009 he was in India, but despite receipt of notice, the plaintiff has failed to produce his passport. Though he stated in his evidence that his earlier passport was seized by the Consulate at Dubai, no proof is filed to that effect. He has also failed to produce his current passport, in support of his contention that he was not in India on that particular date and there was no such oral gift on 12.01.2009.
29. In view of the foregoing discussion, I find that the oral testimony of DW.1 supported by testimony of DW.2, is sufficient to establish the oral hiba of undivided and unspecified half share in the suit schedule property in favour of the defendant on 12.01.2009 in the presence of DW.2 and another witness and that she has accepted the same, the plaintiff has delivered the original of Ex.A.1 to her and she is in exclusive possession and enjoyment of the suit schedule property.
30. Even assuming that the plaintiff has only mentioned the name of defendant having paid the entire sale consideration by him under Ex.A.1 and incorporated the name of defendant on her request, the purchase of property by a person in the name of his wife or unmarried daughter is presumed unless otherwise rebutted to be the purchase made for the benefit of wife or unmarried daughter as the case may be, thereby making the wife or unmarried daughter in whose name the property is purchased to be the real owner with the consequence that the property thus purchased shall not be construed to be a property held benami by such wife or the unmarried daughter for the husband or the father as the case may be (Nand Kishore Mehra v. Sushila Mehra AIR 1995 SC 2145 [LQ/SC/1995/684] ).
31. The resultant position shall be that the wife or the unmarried daughter as the case may be shall be the absolute owner and the husband cannot claim title as against the wife or unmarried daughter as the case may be stating that he has paid the purchase money and only the name of his wife or unmarried daughter is incorporated. Therefore, because of the statutory presumption contained under sub-section (2) of Section 3 of the Prohibition of Benami Transactions Act, 1988 unless the contrary is proved that the purchase of the property by a person in the name of wife or unmarried daughter as the case may be for their benefit.
32. Therefore, the burden is on the plaintiff to rebut the presumption under Section 3 (2) of the Prohibition of Benami Transactions Act and to establish that it was a benami transaction. In other words, such person cannot succeed in the suit unless he proves that although he has purchased the property in the name of his wife, the same had not been purchased for her benefit. Here in the case on hand, no such evidence is available on record on behalf of the plaintiff. On the other hand, the plaintiff himself has admitted that from the date of purchase under the original of Ex.A.1, the suit schedule house is in the exclusive possession of the plaintiff and coupled with the above the oral evidence of DWs.1 & 2 is very much clear that on 12.01.2009, the plaintiff orally gifted his undivided/ unspecified half share in the suit schedule property in favour of the defendant. She accepted the gift and she is in exclusive possession of the suit schedule property and the original of Ex.A.1 was also handed over to her.
33. Accordingly, when the facts of the case on hand are tested on the touchstone of the principles laid by the above decisions, the answer is in the positive. The defendant is able to establish all the essentials of valid oral hiba in respect of undivided share of the plaintiff in favour of the defendant. Thus, the plaintiff having gifted his half share in the suit schedule property orally now not entitled for partition and allotment of half share in the suit schedule property. Therefore, both the points are answered against the plaintiff and in favour of the defendant and consequently the judgment and decree of the trial court is sustained.
34. In the result, the Appeal Suit is dismissed confirming the impugned judgment and decree dated 03.06.2014 in OS No.474 of 2012 on the file of the learned VII Senior Civil Judge, City Civil Court at Hyderabad. However, in the circumstances of the case, there shall be no order as to costs.
35. As a sequel, interlocutory applications, if any pending in this appeal, shall stand closed.
