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High Court Of Delhi
ZINAT KAUSER DEHLI - Appellant
Versus
YUNUS DEHLVI - Respondent
Interim Application 2020 of 1996
Decided On : 02/27/1997
HIBA - GIFT - SECTION 54 OF THE TRANSFER OF PROPERTY ACT - GIFT OF HALF SHARE IN PROPERTY - ORAL GIFT - HIBA-BIL-IWAZ - TEMPORARY INJUNCTION - BALANCE OF CONVENIENCE - IRREPARABLE LOSS - SALE OF SUIT PROPERTY - INFRUCTUOUS SUIT.
Fact of the Case:
Plaintiff, the wife of the defendant, filed a suit seeking a declaration that she is entitled to half share in the suit property, a bungalow at 11, Sardar Patel Marg, New Delhi. She claimed that the defendant had gifted her half share in the property in January 1956, and that she had accepted the gift and taken possession of the property. The defendant denied the gift, claiming that it was actually a hiba-bil-iwaz (gift for consideration) which required registration under Section 54 of the Transfer of Property Act.
Finding of the Court:
The court found that the plaintiff had made out a prima facie case for a temporary injunction restraining the defendant from disturbing her possession of the suit property and from selling or alienating it. The court noted that the plaintiff was in possession of the property, that she had sold all her own properties to provide funds for the construction of the bungalow, and that the defendant had denied the gift but had not challenged its validity on the ground that it was a hiba-bil-iwaz. The court also found that the balance of convenience was in favor of the plaintiff, as she would suffer irreparable loss if the injunction was not granted and the suit property was sold.
Issues: 1. Whether the transaction alleged by the plaintiff was a hiba (gift) or a hiba-bil-iwaz (gift for consideration). 2. Whether the plaintiff had made out a prima facie case for a temporary injunction.
Ratio Decidendi: 1. The court held that the issue of whether the transaction was a hiba or a hiba-bil-iwaz could only be determined after the parties had led evidence and the trial had concluded. 2. The court found that the plaintiff had made out a prima facie case for a temporary injunction because she was in possession of the property, she had sold all her own properties to provide funds for the construction of the bungalow, and the defendant had denied the gift but had not challenged its validity on the ground that it was a hiba-bil-iwaz. The court also found that the balance of convenience was in favor of the plaintiff.
Final Decision: The court granted the plaintiff's applications for a temporary injunction restraining the defendant from disturbing her possession of the suit property and from selling or alienating it.
( 1 ) BY this order I propose to dispose of the two applications filed by the plaintiff a gainst the defendant under Order 39, Rules I and 2 of the Code of Civil Procedure praying for Assuance of temporary injunction restraining the defendants, his servants, agents from selling, transferring, alienating, disposing of or creating any third party interest in respect of the property bearing No. II, Sardar Patel Marg, New Delhi.
( 2 ) THE plaintiff instituted the present suit against the defendant seeking for declaration that the plaintiffis entitled to half share in the suit property, namely, II, Sardar Patel Marg, New Delhi.
( 3 ) THE plaintiff is the wife Of the defendant and they were married under the Sunni Muslim Law in July, 1952: At the time of marriage the plaintiff was 16 years old and she went to the marital home of the defendant after the Rukhsati ceremony which took place on 22nd July, 1953.
( 4 ) IN or about 1954, the defendant acquired a plot of land at II, Sardar Patel Marg for a sum of Rs. 40,000. 00 and the defendant commenced construction of a bungalow on the said plot in the year 1955. As the defendant did not have money to continue the construction of the building on the said plot, the defendant pleaded with the plaintiff and her mother for funds. As the plaintiff was at that point of time a minor, her mother was her guardian and her properties were controlled and managed by her mother who was legally appointed as her guardian.
( 5 ) THE father of the petitioner who expired on 21st January, 1953 was a wealthy and influential businessman and at the time of his death, he left behind substantial properties in the names of his children and widows, and in pursuance thereof, the plaintiff possessed various properties gifted to her by her father in his lifetime as well as inherited by her after her father s death. During the period" from 19. 3. 1956 to 18. 4. 1958, all the properties of the plaintiff were sold in order to provide funds for the construction of the house at II, Sardar Patel Marg.
( 6 ) THE defendant gifted half share in the said property situated at II, Sardar Patel Marg in favour of the plaintiff in January, 1956. The plaintiff was also working in the company known as Shama Publications. which was owned and being run and managed by the defendant s father Mr. Yusaf Delhvi and all the salary due to the plaintiff for working in the said firm was also utilised for the aforesaid purpose.
( 7 ) WITH the aforesaid statements the plaintwas filed in the present case seeking for a declaration that the plaintiff is entitled to a moity, i. e. half share in the said plot of building situated at II, Sardar Patel Marg, New Delhi. Alongwith the plaint, the plaintiff also filed an application registered as I. A. 6351 /1994 under Order 39, Rules I and 2 of the Code of Civil Procedure contending inter alia that in view of the hiba of half share in the suit property made by the defendant in favour of the plaintiff which is accepted by her and received possession thereof as well and at present living in the said property, a temporary injunction was prayed for restraining the defendants, his agents and servants from transferring, alienating, disposing of or creating any third party interest in respect of the said property. This Court by order dated l7th June,1994 issued notice on the application filed by the plaintiff under Order 39, Rules I and 2 and passed an order directing that the plaintiff shall not bedispossessed from the suit property. Subsequently, the plaintiff filed another application registered as I. A. 2020/1996 under Order 39, Rules I and 2 against the defendant seeking for an injunction restraining the defendant from selling his share in the property.
( 8 ) THE defendant has filed his reply to the aforesaid applications and accordingly the aforesaid two applications were taken for arguments and for disposal.
( 9 ) THE Counsel appearing for the parties were heard at length. The case of the
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