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High Court Of Madhya Pradesh
H. R. Krishnan, J.
HUSSAIN BANU, IBRAHIM RANGREZ - Appellant
Versus
SHIVNARAYAN, KESRIMAL MAHAJAN - Respondents
Second Appeal 467 Of 1961
Decided On : 08/17/1964
(2) Practice-new plea-what is-when may be allowed to be raised.
When a new plea is a new ground of law pure and simple, Court always allows it subject of course to the other party being beard. Where it is a ground based on new facts, Courts do not usually allow it unless there is strong case for remand for further evidence or fresh issues on facts and like. But where it is a mixed question, there may be some difficulty The purely legal aspects of the mixed question can without difficulty be canvassed at any stage, but often they are based on facts. If the fact themselves are pre-existent on the record there should be no difficulty in permitting the party to raise a ground, which has not been expressly pleaded at the appropriate stage. In fact, it is only loose usage to call this a new ground; it is only a new legal interpretation of the facts already on record and fully noticed by both parties.
The Court should always be in favour of entertaining a plea, even if it is new, if it is only one directly emerging from the facts on record or as found by the lower appellate Court as the last forum for questions of fact. Certainly the other party should be given opportunity and care should be taken that this is not made a pretext for an interested party taking his case entirely over new ground. But where the facts are patent, merely because the party has been clumsy in presenting its legal implications in the lower Courts, the Court would not obstruct its placing a new legal interpretation on the facts on record even in second appeal. 1955 MBLJ 376 relied on. [Para 8]
(3) Transfer of Property Act, 1882 - S. 53-A - 'transfer' for purposes of this section-what is - compromise may be a transfer-one party relinquishing right in houses and retaining ornaments - other party taking possession of the houses-matter falls under section 53-A.
It is not a general rule that whenever there is a compromise or settlement between parties claiming property there cannot be a transfer. Whether a settlement or compromise is one in clarification of doubtful rights or in mutual acknowledgement of the parties' respective rights or one in which there is actual transfer is a question of fact to be answered with due regard to the circumstances of each case and the actual effect of the compromise. AIR 1937 All. 578 and AIR 1948 Oudh 54 relied on. [Para 10]
A transfer obviously can be in different forms; but the essence of the transaction is that the title to certain property which till that moment has vested in one of the parties goes to the other. It might even be that there is no handing over or physical delivery of possession because transferee being already in possession may continue to be so in part performance of the contract acquiring by this transaction a mw title valid against the transferee.
Where in pursuance of the agreement the plaintiff who was claiming whole of the properties, relinquished her claims to the houses and took ornaments and other movables and the other party gave up the movables and ornaments and continued in possession of the houses in accordance with the agreement and in exercise of the title he had acquired by the relinquishment by the plaintiff, it is certainly a case falling within the scope of section 53-A. AIR 1946 Mad. 452 relied on. [Para 11]
(4) Transfer of Property Act, 1882 - S.53-A - benefit under-goes to the person claiming under the transferee.
The benefit of section 53-A goes not only to the party to the transfer for consideration, but also to one who is claiming under the party. [Para 13]
(5) Transfer of Property Act, 1882 - S. 122- gift - what is – relinquishment by a party its rights in house by agreement-is not gift.
(6) Mohamedan Law-Hibabilewaz-is a gift - relinquishment-is not gift.
An arrangement on mutual consideration whereby one party relinquishes rights in the house and retains ornaments and money, by its very nature excludes gift. A gift properly so called implies, among other elements, the animus of giving away, that is to say on the part of the donor or parting with his property without any consideration from the other. Even when there are mutual gifts as in the well known instance of hibabilewaz under the Muslim Law, it is not a case of balancing of considerations but of two voluntary gifts which happened one after the other. By the nature of this transaction it cannot be called a gift. [Para 14]
(7) Transfer of Property Act, 1882 - Ss. 41 and 53 - distinction between the two provisions.
Whereas under section 41 a person is only the ostensible owner, under the other section he is really the equitable owner whose position is as strong as the legal owner's in so far as he wants to defend his title [ Para 16]
( 1 ) THIS is a second appeal by the plaintiff whose suit for the declaration of title and recovery of possession of a house in Mahidpur (about the identity of which there is no dispute) has been dismissed by both the lower Courts by judgments whose effect is concurrent though the emphasis is somewhat different. The points for decision before us are, firstly, whether all the relevant facts are so clearly on the record that the contesting defendant may be permitted to support the decision on the principle of part of performance under Section 53-A of the Transfer of Property act though he had not expressly pleaded it in either of the two lower Courts. Secondly, if the contesting defendant is not permitted to invoke Section 53-A of the Transfer of Property Act, whether he has proved that his transferor Shafi mohammad has got the house from the plaintiff by gift which need not be evidenced by a registered deed when it is by a Muslim. Thirdly, whether the plaintiff can be held to be barred by estoppel of out: of the two kinds (a) under section 41 of the Transfer of Property Act by her having acquissed in Shafi mohammad transferring the properly as the ostensible owner; or (b) by telling the transferee when he went to consult her, that Shafi Mohammad was the owner of the house and was competent to do what he liked with if.
( 2 ) THE facts of the case are on the whole beyond controversy and at all events it would be proper to accept them as found by the lower appellate Court. The lower courts have dismissed the suit under different and apparently alternative grounds to some extent by the general impression that the claim set up by the plaintiff with the obvious collusion and support of the transferor Shafi Mohammad is unconscionable and cannot be allowed on any principle of fair dealing. This not being sufficient, they have tried to fit this in with one or the other of the possible legal interpretations of the circumstances, and the contents of the unregistered deed D/1 to which the plaintiff and Shafi Mohammad were parties. They have had at places to labour to the decision, which is certainly correct; this is because they have overlooked Section 53-A of the Transfer of Property Act which contains the equitable principles that are a complete answer to the plaintiff.
( 3 ) THERE used to live one Khudabax Rangrej in village Mahidpur. The house that is the subject matter of this litigation originally belonged to him, being in fact one of his three houses. The plaintiff is his daughter. At the time of his death in 1950 there was one Shafi Mohommad living with this Khudabax. His father also was named Khudabax; but that was another person. It is common around that Shafi mohammad was unconnected with this family. However, Khudabax father of the plaintiff brought him up so that at the time of his (Khudabax's) death Shafi mohommad was in the house. The plaintiff herself had been married at Indore and as usual was living most of the time with her husband. During the years preceding khudabax's death Shan Mohommad had been entertaining hopes of getting something out of his foster-father's properties though there does not seem to have been any will or similar disposition in his favour. The plaintiff being the only heir of Khudabax there were differences between her and Shafi Mohommad which however, were settled by mediation:-I say "mediation" though at places in the evidence and the judgment the word "arbitration" has been used, because the resultant disposal was by a document to which the plaintiff and Shafi Mohommad were parties and was not by any award. This is Ex. D/1 executed on 25-4-50, shortly after Khudabax's death which has been the subject matter of very lengthy arguments. The plaintiff seems at one stage to have denied having executed any such document but now it is established that she had, and had further implemented by relinquishing the houses, and taking the movables allotted to her by that agreement. The details
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