IMPORTANT POINTS
Although an oral gift, Hiba, is permissible in law but a heavy burden lay on the person receiving such gift to prove the same.
Acquisition of such ownership by way of gift and, thus, wholly without consideration, is not expected of a society registered under the Societies Registration Act.
Apart from an owner making an oral gift of the property in favour of his tenant being wholly unlikely, actual delivery of possession is imperative.
If a person does not acquire title, the same cannot be vested, in law, only by reason of acquiescence or estoppel on the part of other.
By reason of presumption alone, the burden is not discharged and a title is not created.
Article 67 of Limitation Act, 1963 would not be attracted in a case where a tenant remains a statutory tenant, rather Article 65 would apply.

Headnote:Gift – Although an oral gift, Hiba, is permissible in law but a heavy burden lay on the person receiving such gift to prove the same – Respondent No. 1 being an educational society running an institution on the suit property, it was expected of it that it would insist on execution of a registered deed of gift – Trial Judge did not place reliance on depositions of the witnesses examined on behalf of the Respondents to prove oral gift as they were interested persons and the High Court did not deal with the matter neither it cold have done so – Conduct of the parties would be relevant, but what would be more relevant is the conduct of a party, who from his status of a tenant claims to have acquired the status of the owner of the property – Acquisition of such ownership by way of gift and, thus, wholly without consideration, is not expected of a society registered under the Societies Registration Act – No-production of the letter acknowledging the oral gift rightly led to adverse inference against respondent no.1.(Paras 16 to 18 and 21).
       (1988) 1 SCS 19; 1968 (3) SCR 862; (2003) 8 SCC 204; (2004) 1 SCC 12 – Relied upon.
       Gift – Apart from an owner making an oral gift of the property in favour of his tenant being wholly unlikely, actual delivery of possession is imperative – There being nothing on record to show delivery of possession by Respondent No. 3 to Respondent No. 1, it continued to be a tenant – The onus lay heavily on him to prove the same which it failed to discharge. (Para 21).
       Title – The fact of Respondent no. 1 neither applying for mutation nor letting anybody or any authority know about its change of status from tenant to owner and its continued payment of rent to respondent no. 3 leads to presumptions adverse to it – If a person does not acquire title, the same cannot be vested, in law, only by reason of acquiescence or estoppel on the part of other. (Para 22, 23, 26).
       Title – Non-examination of Respondent No. 3 indisputably would give rise to a presumption, but by reason of presumption alone, the burden is not discharged and a title is not created – A claim of title by prescription by Respondent No. 1 again is not tenable as it based its claim on a title and therefore prima facie it had no animus possidendi. (Paras 28 and 29).
       AIR 1927 PC 23; (1999) 3 SCC 573 – Relied upon.
       Limitation Act, 1963 – Article 67 and 65 – Article 67 would not be attracted in a case where a tenant remains a statutory tenant, rather Article 65 would apply – As the claim of Respondent No.1 was based on a title, the onus was on him to prove the same – Respondent No. 1 having failed to discharge the same, the Trial Judge committed no error in passing a decree in favour of the plaintiff. (Para 30).
       (1987) 3 SCC 211 - Distinguished.
       Code of Civil Procedure, 1908 – Section 100 – The question of jurisdiction of civil court in rent control case having not been raised in courts below, cannot be permitted to be raised before the Supreme Court. (Para 33).
       (2005) 7 SCC 653; AIR 1981 SC 1862; AIR 1956 SC 593 – Relied upon
       Facts of the case :
       Respondent No. 3 was the owner of the property which is situated at Bagh Lingampalli, Hyderabad. It was let out to Respondent No. 1, where an educational institution was being run, on a monthly rent of Rs.1,200/- by a deed of lease dated 16.05.1973. The period of lease was initially for 11 months, which expired in 1975. Respondent No.1, however, did not surrender the tenancy or deliver vacant possession of the tenanted premises to Respondent No.3. It tendered rents till December 1976. No rent was demanded by Respondent No. 3 from Respondent No.1. Several constructions were raised by it from time to time.
        Respondent No. 3 entered into a development agreement with the managing partner of the appellant and other persons on 01.04.1986. A deed of partnership was executed on 21.04.1986. Disputes and differences having arisen between the partners, the same were referred to an arbitrator. An arbitration award was passed on 22.11.1987, in terms whereof a sum of Rs.4,00,000/- was awarded in favour of Respondent No. 3. The said award was made the rule of court in terms of Section 14(2) of the Arbitration Act, 1940 by an order dated 29.02.1988. Allegedly, by reason of the said award, the appellant became the owner of the property. Respondent No. 1 was called upon to pay rents in respect of the suit property by a notice dated 22.11.1987. The tenancy was terminated by a notice dated 30.10.1988. On or about 08.12.1988, Respondent No. 1, in reply to the said notice, asked the appellant to furnish the particulars in regard to the ownership of the suit property. It, however, not claimed that it had acquired any ownership by reason of a purported oral gift made by Respondent No. 3 as appears to be the case now. As it failed to vacate the premises, a suit for recovery of possession and arrears of rents and also for damages for wrongful use and occupation of the property was filed by the appellant. In the written statement filed in the suit, it was contended that Respondent No. 3 made an oral gift in its favour on or about 01.10.1975. In the alternative, it was contended that it had acquired an indefeasible title in respect of the property in question by adverse possession. Respondent No. 3 in its written statement supported the case of the appellant denying and disputing the claim of Respondent No. 1 that he made an oral gift in its favour. The suit of the appellant was decreed. The High Court reversed the said judgment.
       Findings of the Court :
       Respondent no. 1 failed to prove his title and therefore trial court was correct in passing decree in favour of the plaintiff.

JUDGMENT

S.B. SINHA, J.—

1.This appeal is directed against the judgment and order dated 31.12.1999 passed by the High Court of Andhra Pradesh, allowing the appeal from a judgment and decree dated 05.09.1998 passed by the IV Senior Civil Judge, City Civil Court, Hyderabad in O.S. No. 161 of 1989.

2.Respondent No.3 herein was the owner of the property which is situated at Bagh Lingampalli, Hyderabad. It was let out to Respondent No.1, where an educational institution was being run on a monthly rent of Rs.1,200/- by a deed of lease dated 16.05.1973. The period of lease was initially for 11 months, which expired in 1975. Respondent No.1, however, did not surrender the tenancy or deliver vacant possession of the tenanted premises to Respondent No.3. It tendered rents till December 1976. No rent, however, was demanded by Respondent No. 3 from Respondent No.1. Several constructions were raised by it from time to time.

3.Respondent No. 3, however, entered into a development agreement with the managing partner of the appellant and other persons on 01.04.1986. A deed of partnership was executed on 21.04.1986. Disputes and differences having arisen between the partners, the same were referred to an arbitrator. An arbitration award was passed on 22.11.1987, in terms whereof a sum of Rs. 4,00,000/- was awarded in favour of Respondent No. 3. The said award was made the rule of court in terms of Section 14(2) of the Arbitration Act, 1940 by an order dated 29.02.1988. Allegedly, by reason of the said award, the appellant became the owner of the property. Respondent No. 1 was called upon to pay rents in respect of the suit property by a notice dated 22.11.1987. The tenancy was terminated by a notice dated 30.10.1988. On or about 08.12.1988, Respondent No.1, in reply to the said notice, asked the appellant to furnish the particulars in regard to the ownership of the suit property. It, however, not claimed therein that it had acquired any ownership by reason of a purported oral gift made by Respondent No. 3 herein, as appears to be the case now. As it failed to vacate the premises, a suit for recovery of possession and arrears of rents and also for damages for wrongful use and occupation of the property was filed by the appellant. In the written statement filed in the suit, it was, inter alia, contended that Respondent No. 3 herein made an oral gift in its favour on or about 01.10.1975. In the alternative, it was contended that it had acquired an indefeasible title in respect of the property in question by adverse possession. Respondent No. 3 in its written statement supported the case of the appellant, inter alia, denying and disputing the claim of Respondent No.1 herein that he made an oral gift in its favour.

4.In the suit, inter alia, the following issues were framed :

“I.Whether the oral gift by the third defendant in favour of first defendant is true and valid and binding on the plaintiff ?

II.Whether the documents relied upon by the plaintiff are brought into existence in between the plaintiff and third defendant in the circumstances alleged in W.S. ?”

5.Respondent No.1 admittedly did not examine himself. The suit of the appellant was decreed. The learned Trial Judge opined :

i)The burden was on Respondent No.1 to prove the oral gift.

ii)There was no reason for it not to disclose thereabout in its reply to the notice issued by the appellant.

iii)No declaration was filed by Respondent No.1 before the Urban Land Ceiling Authority in the year 1976.

iv)A purported letter written by Respondent No.3 confirming the oral gift had not been produced.

v)Although constructions were raised by it on the suit premises, in none of the applications, the right to make constructions was based on the ownership of the property derived by reason of the oral gift.

vi)No disclosure was made in regard to the ownership of the property, in the return filed by it before the Registrar under the Societies Registration Act.

vii)No resolution had been passed by the Governing Bod

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2007 Supreme(SC) 819

Cases Referred (8)