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PATNA HIGH COURT
Meredith and V.Ramaswami JJ.
Abdul Kabir
Versus
Mt.Jamila Khatoon
Appeal from Original Decree No. 387 of 1946 ;
Decided On : JANUARY 05, 1950
PROPERTY LAW - TRANSFER OF PROPERTY ACT, 1882 - SECTION 43 - ESTOPPEL BY DEED - GIFT OF EQUITY OF REDEMPTION - VALIDITY UNDER MOHAMMADAN LAW - SALE DEED - CONSTRUCTION - DESCRIPTION OF PROPERTY - BOUNDARIES AND AREA - ERRONEOUS PART REJECTED AS SURPLUSAGE.
Fact of the Case:
Plaintiffs claimed title to holding No. 221, Giridih town, purchased from defendants 4 and 5 by registered kobala. Defendants 2 and 3 contested, claiming defendants 4 and 5 had no title. Defendant 1 claimed an oral gift of the entire holding from Bulaki at the time of her marriage. The Subordinate Judge held plaintiffs were entitled to 0/9/4 share of holding No. 221 and that defendants had made encroachment.
Finding of the Court:
The court held that defendants 4 and 5 had the legal right to convey the entire sixteen annas share of holding No. 221 by the registered kobala. The court also held that the deed of relinquishment executed by Mt. Hasiba was a valid gift of her share in favor of Jabbar under Mohammadan law. The court further held that Mohan was not alive at the time of the death of Bulaki and that Mohan made no gift of the land in dispute to Bibban. The court also held that the plaintiffs had acquired title only to 12 annas out of the share of Ishaq. The court also held that the plaintiffs were entitled to a decree for joint possession of twelve annas share with defendants 1, 2 and 3 of the land in dispute.
Issues: 1. Whether defendants 4 and 5 had the legal right to convey the entire sixteen annas share of holding No. 221 by the registered kobala? 2. Whether the deed of relinquishment executed by Mt. Hasiba was a valid gift of her share in favor of Jabbar under Mohammadan law? 3. Whether Mohan was alive at the time of the death of Bulaki and that Mohan made no gift of the land in dispute to Bibban? 4. Whether the plaintiffs had acquired title only to 12 annas out of the share of Ishaq? 5. Whether the plaintiffs were entitled to a decree for joint possession of twelve annas share with defendants 1, 2 and 3 of the land in dispute?
Ratio Decidendi: 1. The court held that the compromise petition expressly confers upon the two brothers the right to manage and not the right to sell the properties. In view of the express stipulation in the compromise decree, it is not possible to hold that there was an implied contract by which the two sisters authorized the brothers to sell. 2. The court held that the deed of relinquishment executed by Mt. Hasiba was a valid gift of her share in favor of Jabbar under Mohammadan law. The court relied on the Allahabad and Calcutta decisions which held that the gift of property attached by the Collector for arrears of revenue and taken possession of by him under a local law was valid and that possession in connection with Mohammadan law of gift meant such possession as the nature of the subject of the gift is capable of. 3. The court held that Mohan was not alive at the time of the death of Bulaki and that Mohan made no gift of the land in dispute to Bibban. The court relied on the rent receipts produced by the respondents which were found to be forged. 4. The court held that the plaintiffs had acquired title only to 12 annas out of the share of Ishaq. The court relied on the baimoqasa deed executed by Ishaq in favor of his wife Mt. Naboolan in lieu of her dower debt. 5. The court held that the plaintiffs were entitled to a decree for joint possession of twelve annas share with defendants 1, 2 and 3 of the land in dispute. The court relied on the case of Hulodhur Sein V/s. Gooroo Das Roy, 20 W. R. 126, Radha Proshad V/s. Esuf, 7 Cal. 414 and Naresh Chandra V/s. Haydar Sheikh Khan, 49 C. L. J. 83.
Final Decision: The court allowed the appeal and ordered that the plaintiffs should be granted a decree for a declaration that they are entitled to 0-12-0 annas share of the land in dispute and for joint possession of twelve annas share with defendants l, 2 and 3 of the land in dispute.
Ramaswami, J.
1. In the suit, which is the subject of this appeal, the plaintiffs claimed that on 16-2-1938, they had purchased holding No. 221 of Giridin town, area about 3 bigahs 8 kathas, by registered kobala from defendants 4 and 5, Md. Ishaw and Abdul Jabbar. The relationship of the parties will appear from the following pedigree.
MOHAN MIAN
|
---------------------------------------
Bulaki Bibban (D. 3)
(by 1st wife) |
|
Guldasta (D. 2)
----------------------------------------------------
| | | |
Ishaq Jabbar Mt. Jamila Mt. Hasiba
D. 4. D. 5. D. 1. D. 6.
The plaintiffs alleged that defendants 4 and 5 had previously sold 3 kathas of holding NO. 224 to Mohammad Qasim who in his turn sold to Guldasta and Mt. Bibban (defendants 2 and 3). After having made the purchase, defendants 2 and 3 encroached upon holding No. 221, built houses and garages thereon, cut down the trees of the orchard and appropriated the fish from the tank. The plaintiffs, therefore, asked for a declaration of their title to holding No. 221 described in schedule of the plaint and for possession thereof. Defendants 2 and 3 contested the suit on the ground that defendants 4 and 5 had no title to the land in dispute. When Bulaki died, his father Mohan Mian was alive and so inherited one-sixth of Bulakis share. In lieu of the share, Mohan obtained 2 1/2 bighas, of which he made a verbal gift to his daughter Mt. Bibban. The latter also purchased about 3 kathas from Md. Qasim and obtained settlement of 2 kathas from Equitable Goal Company. After amalgamating all the portions, Mt. Bibban constructed dwelling houses, garages and sunka well. Defendants 2 and 3 denied that they made any Encroachment on holding No. 221. Mossomat Jamila, defendant 1 alleged that Bulaki made an oral gift of the entire holding in her favour at the time she was married.
2 Upon these contentions, the learned Subordinate Judge held that the plaintiffs were entitled to 0/9/4 share of holding No. 221 and that defendants had made encroachment. As the plaintiffs failed to prove the exact measure of encroachment, the learned Subordinate-Judge refused to grant decree for ejecting the defendants. Against this decree, the plaintiffs have preferred this appeal. A cross objection has been filed on behalf of defendants 1, 2 and 3.
3. The first question to be examined is whether Ishaq and Jabbar had legal right to convey the entire sixteen annas share of holding No. 221 by the registered kobala. On behalf of the respondents, it was argued that Jabbar and Ishaq could make a valid transfer only of their shares and not of Hasiba or Jamila, who did not execute the kobala. It was pointed out that in the petition of compromise (Ex. 7) the two sisters had agreed that the Jharia property should be Bold to Md. Qasim, but as regards the Giridih property, the sisters had only authorised Abdul Jabbar to be the manager on their behalf. For the appellants, it was argued that since sisters had been benefited by the sale the brothers had the legal right to convey their shares, that they had implied authority to sell for the benefit of the joint estate. The argument has some attraction but it is invalid, for, the compromise petition expressly confers upon the two brothers the right to manage and not the right to sell the properties. In view of the express stipulation in the compromise decree, it is not possible to hold that there was an implied contract by which the two sisters authorised the brothers to sell.
4. On behalf of the appellants it was stated that subsequent to the execution of the kobala, Mt. Habiba executed a registered deed of relinquish
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