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2007 Supreme(Bom) 1631
IN THE HIGH COURT OF BOMBAY
C.L.PANGARKAR,J
Khurshid Bano wd/o Mohd.Ayub -Appellant
Versus
Mohd.Afsar s/o Mohd.Samsher - Respondet
SECOND APPEAL NO. 13 OF 1996.
Decided on: 27th November, 2007.
Advocate Appeared
Mr.B.S.Deshpande, Advocate for the appellants.
Mr.A.V.Bhide, Advocate for the respondents.
Headnote:Transfer of Property Act, 1882 - Section 8 - Relinquishment of interest - Immovable property - Suit for possession - Relinquishment of right in immovable property made in favour of a person having no interest in it - Amounts transfer of property - Absence of registration of relinquishment or surrender - Renders relinquishment or oral surrender invalid. - The Judge of the trial Court was right in holding that the evidence with regard to surrender was not reliable. The cross-examination of DW 1 Abdul Sattar would clearly suggest that theory of surrender is patently false. He states in cross-examination that his father Samsher opened the topic with Mohd. Ayub with respect to the property of Pyar Mohd. and questitioned his as to what should be done with that property. He also states that Mohd. Ayub said that his brother will look after the property and enjoy it. As stated earlier there is no pleading that property belonged to Pyar Mohd. For want of pleading such evidence becomes inadmissible. It is his evidence that there were 100 persons present at the time of alleged statement made by Mohd. Ayub and about 5 to 6 persons out of them are still alive but none of them is examined by defendants at all. The best evidence was in the form of these persons who were independent witnesses and who could have thrown light on the talk between Mohd. Ayub and Samsher. The defendant have examined PW 2 who could be said to be an independent witness but his evidence appears to be hearsay for he clearly states that he learns that Mohd. Ayub had said that his brother would enjoy the property. This evidence is inadmissible. The trial Judge, therefore rightly rejected the evidence about the surrender. In view of this, I find that there is no evidence whatsoever of surrender and if at all there is one, the said surrender is invalid being oral. In view of the finding that there was no surrender and if at all there was one it was invalid, the appeal must succeed. The appeal is allowed. The judgment and decree of the first appellate Court is set aside and that of the trial Court restored.
1. This Second appeal is at the instance of the original plaintiffs.
2. A few facts may be narrated thus - The plaintiffs are the heirs of one Mohd.Ayub s/o Pyar Mohammad. Mohd.Ayub owned the property described in the plaint namely Plot No.171/1 on Nazul Sheet No.21/C at Shegaon. The said plot was purchased by Mohd.Ayub in the year 1951 by registered sale-deed. There was a small structure in a dilapidated condition on the said plot. Mohd.Ayub was for some time running a floor mill in the said house. Later he shifted to Bombay and stopped running the said floor mill. He died in the year 1965. The plaintiffs, who are the heirs of Mohd.Ayub also shifted to Bombay along with him. Defendant no.7 is also one of the heirs of deceased Mohd.Ayub. Each of the plaintiffs and defendant no.7 has 1/7th share in the suit property. Deceased Mohd.Ayub had a real brother by name Mohd.Samsher. He was, however, residing at Shegaon only. Mohd.Ayub had allowed said Mohd.Samsher and defendant no.7 to use the said property. Mohd.Samsher, however, had no right, title or interest in the said property. It is alleged that defendants no.1 to 6 started showing antagonistic attitude. Hence, the plaintiffs served notice upon them calling upon them to handover the possession. Notice was also served to defendant no.7 to partition the said property. She acceded to the request of the plaintiffs. Defendants no.1 to 6, however, failed to vacate the premises. Hence, the plaintiffs instituted a suit for possession.
3. Defendants no.1 to 6 resisted the suit. They admit the relationship between the parties. They, however, deny that the said property was purchased by Mohd.Ayub and that he was the owner thereof. They also deny that he was running a floor mill there. They also deny that they are occupying the premises as licensees of Mohd.Ayub. It is their contention that Mohd.Ayub had come to Shegaon when his father Pyar Mohd. died. At that time he relinquished his right in the property in favour of defendants no.1 to 6. As a result, it is the contention of the defendants that the suit of the plaintiff is not maintenable.
4. The learned judge of the trial court, after recording the evidence found that the defendants no.1 to 6 were the licensees. Plaintiffs had 5/6th share in the property and defendants had failed to prove the surrender of interest by Mohd.Ayub in their favour. He, holding so, decreed the suit.
5. The defendants preferred an appeal before the District Judge. The Additional District Judge, who dealt with the appeal set aside the judgment and decree passed by the trial court and held that there was surrender of interest by Mohd.Ayub in favour of the defendant. Holding so, he allowed the appeal and dismissed the suit. It is because of the dismissal of the suit, the plaintiffs have preferred this second appeal.
6. The appeal was admitted by this court on the following substantial question of law.
Whether there can be oral relinquishment or voluntary surrender of interest in immovabele property of the value of more than Rs.100/- in view of the Transfer of Property Act ?..
7. I have heard Mr.B.S.Deshpande, Advocate for the appellants and Mr.A.V.Bhide, Advocate for the respondents.
8. It is not disputed that the suit property is an immovable property. It cannot be disputed that a surrender or relinquishment of right in immovable property is a transfer of property if it is made in favour of a person having no interest in it. Any transfer of immovable property worth more than Rs.100/- requires registration. A relinquishment of share in the joint family property of Hindu may not require registration whenever such surrender is effected at the time of partition, since it is a transfer of interest in favour of person having an interest in it. This perhaps is the only exception where a registration of relinquishment or surrender will not be required. In all other cases, registration would be required for it involves transfer of interest in immovable prope
