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Andhra Pradesh High Court
Judges : B.K.SOMASEKHARA
Usman - Appellant
Versus
Anwar Baigh - Respondent
Decided On : 02-14-96
GIFT DEED - MOHAMMEDAN LAW - VALIDITY - ESSENTIAL CONDITIONS - DELIVERY OF POSSESSION - BURDEN OF PROOF - ONUS OF PROOF - SHIFTING OF BURDEN OF PROOF - INFERENCE - PROBABILITY - CIRCUMSTANTIAL EVIDENCE - APPRECIATION OF EVIDENCE - SECOND APPEAL - INTERFERENCE WITH FINDINGS OF FACT - BENAMI TRANSACTION - DISTINCTION - SHAM TRANSACTION - DISTINCTION - GIFT - HIBA - TRANSFER OF PROPERTY - DECLARATION OF GIFT - ACCEPTANCE OF GIFT - DELIVERY OF POSSESSION - OVERT ACT - RECITALS IN GIFT DEED - PRESUMPTION OF CONTINUATION OF STATE OF AFFAIRS - REBUTTAL OF PRESUMPTION - DOCTRINE OF FAISUS OMNIBUS - APPLICATION IN CIVIL PROCEEDINGS - EXTENT OF INTERFERENCE IN SECOND APPEAL.
Fact of the Case:
Plaintiffs filed a suit for declaration that the gift deeds executed by Khatija Bibi in favor of defendants 1 and 2 are sham, nominal and not binding on Khatija Bibi or the plaintiffs and for partition and separate possession of the plaintiffs' half share in the plaint schedule property and for recovery of an amount of Rs. 504/- being the value of 12 bags of paddy due for the year 1971 payable in January, 1972 with interest on that amount at the rate of 5 per cent per annum from the date of suit till the date of recovery and for future mesne profits, etc. The suit was resisted by defendants 1 and 2 and defendant No. 3 remained ex parte.
Finding of the Court:
The Courts below have believed the case of the plaintiffs that Exs. A-2 and A-3 were sham, nominal, not intended to be acted upon and actually not acted upon and Khatijabibi continued to be the owner of the same till she died and, therefore, the plaintiff is entitled to a decree as prayed for.
Issues: 1. Whether Exs. A-2 and A-3 are (A) sham and nominal; (B) not intended to be acted upon: (C) not acted upon; and (D) void under Mahommedan Law (E) Whether the questions covered by (1) (a) to (d) are pure questions of law or questions of fact or mixed questions of law and fact? If the findings by the Courts below on them can be interfered with in a second appeal under Sec. 100 CPC? (F) Whether the learned Judges of Courts below have committed any error in formulating any substantial questions of law or deciding them to lead to the findings and decisions in the case? (G) Whether the findings of the learned Judges of the Courts below on issues were justified? If not which finding is not correct and deserves to be interfered with? To what extent?
Ratio Decidendi: 1. The essential conditions for a valid gift under Mohammedan Law are: (a) a declaration of the gift by the donor; (b) acceptance of the gift express or implied by or on behalf of the donee; and (c) delivering of possession of the subject of gift by the donor to the donee. 2. The burden of proof lies on the person who sets up a plea of benami transaction. 3. The onus of proof may shift during the course of the evidence. 4. Inferences and probabilities can be drawn from proved or admitted facts to determine the truth or otherwise of a case. 5. Findings of fact by the trial court and the first appellate court will not be interfered with in a second appeal unless they are perverse or based on no evidence. 6. A benami transaction is a real transaction where the property is transferred to one person but the consideration is paid by another person. A sham transaction is a transaction which is not real and is not intended to be acted upon.
Final Decision: The appeal is dismissed. However, having regard to the relationship of all the parties they shall bear their own costs throughout.
( 1 ) THE judgmentof the learned District Judge. Krishna district. Machilipatnam in A. S. NO. 101 of 1986 and the cross objections dated 27-2-1987 are in challenge in this appeal. Appellants are the Defendants Nos. 1 and 2 in O. S. No. 90 of 1975 and the Respondents No. 1 to 7 were the Plaintiffs Nos. 2 to 8 in the suit and respondentno. 1 is the sonof Plaintiffno. 1 Ibrahim Beigh. Respondents No. 8 and 9 are the legal representatives of Plaintiff No. 8. who died pending suit. The convenience warrants the reference to the parties as Plaintiffs and Defendants as they occupied in the trial Court.
( 2 ) ORIGINALLY. Plaintiff No. 1 viz. . Ibrahim Beigh filed the suit and on his death the other Plaintiffs were brought on record as his legal representatives. The defendants No. 2 and 3 Jaibunnisa and Sabrunnessa are the sisters of Plaintiff no. 1. Khadar Baigh and Khatija Bibi are their parents. Defendant No. 1 is the husband of Defendant No. 2. Plaintiffs No. 2 and 8 are the sons and Plaintiffs no. 3 to 7 are the daughters of the 1st plaintiff. The suit was filed for declaration to declare that the gift deeds dated 16-2-1963 and 29-4-1963 executed by Khatija bibi in favour of Defendantnos. 2 and 1 respectively are sham. nominal and not binding on Khatija Bibi or the plaintiffs and for partition and separate possession of the plaintiffs half share in the Plaint a schedule property and for recovery of an amount of Rs. 504/- being the value of 12 bags of paddy due for the year 1971 payable in January. 1972 with interest on that amount at the rate of 5 per cent per annum from the date of suit till the date of recovery and for future mesne profits. etc. The suit was resisted by Defendant Nos. 1 and 2 and Defendant No. 3 remained ex parte. The parties went to trial after the settlement of issues. wherein the wife of Plaintiff No. l was examined herself as p. W. I and four other witnesses as per P. W. 2 to F. W. 5 and got marked as many as 21 documents as per Exs. A-1 to A-21 for the plaintiffs and the Defendants nos. 1 to 3 examined themselves as D. Ws. l to 3 and witnesses as per D. W. No. 4 to 10 respectively and got marked Exs. B-1 to B-23 respectively. After hearing both sides and on the basis of the materials before him. the learned District munsif. Gudivada has decreed the suit as prayed for with certain directions. The aggrieved defendants took up the matter in appeal before the learned district Judge who. after hearing both sides and on considering the materials before him including the judgment and decree passed by the trial Court. dismissed the appeal and at the same time allowed the cross-objections filed by respondents Nos. 1 to 7 in appeal with costs. The judgment and decree of the trial Court was modified to the extent of allowing the cross-objections. That is how. the present appeal has come up to be presented to this Court.
( 3 ) THE Plaint a schedule property is an agricultural land bearing R. S. No. 10 with an extent of 2 acres and 0. 809 hectares situated at Lankadoddi. Hamlet of dokiparru village in Krishna district. The Plaint b schedule properties are movable properties comprising wearing clothes viz. . shirts and pants. It is not in dispute that Plaintiff No. 1 Ibrahim Beigh was the absolute owner of Plaint a schedule property and he gifted it to his mother with absolute rights for her maintenance. She died on 18-1-1972. It appears that she was in possession and enjoyment of the land till she died. It appears that one Cherukuri Srinivasa Rao filed O. S. No. 94 of 1961 against Khatija Bibi and the 3rd defendant on the foot of a Promisory note for recovery of certain amounts said to have been borrowed by them. It is alleged that such promisory note was forged one and to avoid the decree. the Defendants Nos. 1 and 2 instigated Khatija Bibi to execute two gift deeds in their favour nominally to safeguard her property from the creditor viz. . Cherukuri Sreenivasa Rao from being operated in c
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