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2007 Supreme(Bom) 435
Bombay High Court
Anoop V. Mohta
AZIZUNISSA ADBURRAHMAN KADRI -Appeallant
Versus
JAMILA ABDUL HUSSEIN SHAIKH -RESPONDENTS
Suit 331 Of 1984
Decided On: 03/28/2007
KANGA, PARITOSH JAISWAL, R.A.BHAGATJI, SHAILESH SHAH
Headnote:Transfer of Property Act, 1882 - Section 7 - Title to immovable property - Authorities of Income Tax - Jurisdiction of - Authorities cannot decide or declare title of any immovable property - Authorities have limited jurisdiction under respective revenue laws. - The findings recorded by the said two authorities was for the purpose of taxing and revenue and that itself cannot be the foundation for claiming right on the property of the deceased and of defendant No. 1 by the plaintiff. The submission that in view of the Income Tax Authorities’ decision that the entire properties are belonging to the deceased, is final and binding is not correct. Such authorities cannot decide or declare the title of any immovable property. They have limited scope and jurisdiction under the respective revenue laws.
Transfer of Property Act, 1882 - Section 122 - Gift - Mohammedan Law - Oral gift - Permissible in law - Valid under Mohammden Law - Oral gift recorded afterwards in writing - That by itself cannot take away rigour of oral gift - Because all ingredients of valid oral gift proved. - As the oral gift is permissible and by this document the said oral gifts have been reflected in writing and the parties in whose favour the said gift has been made and as they are living/residing in the said property, itself, no physical departure or formal entry is necessary. Such arrangement is, therefore, valid under the Mohammedan Law. Once oral Hiba (gift) is permissible and as declaration was given by the owner of the property, defendant No. 1 and as the same has been accepted by the donee, this amounts to a valid oral gift and in absence of any specific bar under the Mohammedan Law. All essentials of the oral gifts under the Mohammedan Law have been complied with. The contention that such unregistered deed need not be accepted or creates no rights, is rejected. As it fulfils the essential conditions and, therefore, the oral gift of immovable property is proved and needs to be accepted. The plaintiff failed to discharge its burden to prove otherwise. Once the oral gift is valid under the Mohammedan Law it need not require any writing or in documents. Therefore, only because it has been reflected in writing later on, that itself cannot destroy the oral gift or intention of the donor.
( 1 ) ONE Abdul Hussein Kasam Sheikh, died intestate at bombay on 30th August, 1983 at the age of 84 years, (the deceased ). The plaintiff, the daughter from first wife of the deceased, has filed the present suit for administration of the estate on 3rd February, 1984 as the deceased left diverse movable and immovable properties in Bombay (Khar) and at (Karad)Satara, as described in Exhibit "a". The plaintiff has restricted her claim to the said immovable properties.
( 2 ) DEFENDANT No. 1 Jamila Shaikh was third wife of the deceased. She died on 18th july, 2003; defendant Nos. 2 to 12 are the other heirs of the deceased being the deceased brother's children. As pending the suit, defendant No. 1 by way of a memorandum of oral family settlement dated 18th august, 1999 alongwith the declaration, alleged to have transferred the properties to defendant Nos. 1 (G) to 1 (J ). Therefore, after her death these defendants have been brought on record.
( 3 ) ADMITTEDLY, the parties are governed by the Sunni Hanafi ohamedan Law. Defendant No. 1 had no issue. Plaintiff has also no issue. As per the plaintiff, the respective shares in the estate left by the deceased is described in para 3 of the plaint.
( 4 ) DEFENDANT No. 1 married the deceased on 13th June, 1940. She was the third wife. The plaintiff married some time in December, 1956. By a registered documents dated 29th march, 1957, the deceased and defendant No. 1 purchased the property situated at 14th Road, khar. Defendant No. 1 till her death, since the day of the purchase of property, occupied the said Khar Property as joint tenants with the deceased alongwith other defendants specially defendant Nos. 1 (G) to 1 (J ).
( 5 ) AS per the said registered documents the said premises/property is for "the use and benefit of the purchasers as joint tenants/ownership forever so that on the death of one of the purchasers, the survivor of them, should become entitle to the whole, of the premises". In view of the clear terms of the said documents after the death of the deceased, defendant No. 1 became the exclusive owner of the said property. She was occupying and using the said premises with the knowledge of the plaintiff.
( 6 ) THE deceased, on 9th May, 1972, had purchased a flat from Shalimar Builder for plaintiff being the daughter from first wife. Various other movable properties had also been provided to the plaintiff, including cars and shares. There are various shares purchased in the joint name of the deceased and the plaintiff as well as defendant No. 1.
( 7 ) THE deceased sold FSI of the Khar property on 17th December, 1981. The Suit no. 1276/1983 in respect of the FSI is still pending.
( 8 ) THE deceased in the name of defendant no. 1 purchased the Karad property on 18th december, 1981 out of the consideration received from the sale of FSI of Khar property. The deceased died on 30th August, 1983.
( 9 ) THE plaintiff filed the suit on 3rd February, 1984, that is after the death of deceased.
( 10 ) BY minutes of order dated 20th December, 1984 in Notice of Motion No. 481 of 1984 in Suit No. 331 of 1984, defendant No. 1 undertook as under :-
"2, 1st defendant undertakes to this Hon'ble court not to transfer alienate, part with possession, encumber, and/or create any third party rights in respect of the immovable properties described at Item II in Exhibit "a" to the plaint The 1st defendant undertakes to maintain accounts of the rents received by her. 5. The above is without prejudice to the rights and contentions of the parties to the suit. "
The said order remained unchallenged.
( 11 ) DEFENDANT No. 1 by the memorandum of oral family settlement dated 18th August, 1999 alongwith declaration, alleged to have been transferred the Khar property to defendant Nos. 1 (G) to 1 (J ). Defendant No. 1 filed her written statement on 29th September, 1999. Defendant No. 1 died on 18th July, 2003. Therefore, defendant Nos. 1 (A) to 1 (F)have been added as heirs and representative of
