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gift by a Mohammedan is not required to be writing and need not be registered under the Registration Act, the learned counsel for the appellants relies on the decision Mahboob Sahab v. Syed Ismail and others AIR 1995 SUPREME COURT 1205 wherein the Hon’ble Supreme Court is held as follows; “Though gift by a Mohammadan is not required to be in writing and consequently, need not be registered under the Registration Act; a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor he should completely divest himself physically of the subject of the gift.”-The respondent/plaintiff’s mother Ameena Bee has been enjoying the aforesaid properties as an absolute owner till her death. Being an illiterate, she has not known Tamil and English languages to read and understand. She expired on 12.9.88 leaving behind her the respondent/plaintiff as her legal representatives to succeed her estate under Muslim Law.. The details of the legal heirs, and their relationship with the deceased Ameena Bee is as follows; —————————————————————————– Sl. Name Rank in Relationship No. this suit with deceased Shares ——————————————————————————– 1. S.G.Mahaboob Basha 1st Deft. Husband 4/16th Share 2. M. Ahmed Basha 2nd ” Son 2/16 ” 3. M. Abdul Razak 3rd ” Son 2/16 4. M. Mohamed Rafi 4th ” Son 2/16 5. M. Mohamed Zakir Hussain 5th ” Son 2/16 6. Azathunnissa 6th ” Daughter 1/16 7. Naseemunnissa 7th ” Daughter 1/16 8. Zeenathunnissa 8th ” Daughter 1/16 9. Najumunnissa 9th ” Daughter 1/16 —————————————————————————– 7. Accordingly, the respondent/plaintiff is entitled to 1/16th undivided share in the estate of the deceased Ameena Bee. The respondent/plaintiff is in joint possession of the suit property with the appellants/defendants. Since the gift through Exs B1 and B2 have not been proved to the satisfaction of this Court in regard to Item Nos.1 and 2 of the suit schedule properties, this Court comes to the resultant conclusion that the respondent/plaintiff is entitled to her 1/6th share in respect of the suit Item Nos.1 and 2 of the properties and inasmuch as , Ameena Bee, during her life time has gifted the jewels to the defendants and to others and since these jewels are not with them as specifically pleaded in their written statement and also as spoken to by the witness examined on the side of the defendants, this Court comes to the resultant conclusion that the respondent/plaintiff is not entitled to the relief of her 1/6th share in respect of item No.3 and these points are answered accordingly. 79. In the result, the appeal is dismissed . The appellants are directed to pay the proper Court fee under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act 1955 and also the respondent/plaintiff is also directed to pay the proper Court Fee under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act 1955.( after deducting the amount already paid in the plaint). The Registry shall take appropriate steps in this regard and to draft the decree. Considering the facts and circumstances of the case, there shall be no order as to costs. C.M.P.No.6655 of 2002 is

English: Chennai high court view taken by myse...

English: Chennai high court view taken by myself in a Nikon D 200 camera. (Photo credit: Wikipedia)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED :30.12.2009

CORAM

THE HONOURABLE MR.JUSTICE M.VENUGOPAL

A.S.NO.580 of 2002
AND
C.M.P.No.6655 of 2002
1. S.G.Mahaboob Basha (Died)
2. M. Ahmed Basha
3. M. Abdul Razak
4. M.Mohammed Raffi
5. M.Mohammed Jakir Hussain
6. Tmt. Asmathunissa
7. Zeenathunisa
(Appellants 2 to 7 are recorded as
legal representatives of the deceased
first appellant vide order of Court,
dated 29.07.2004 made in
Cmp.No.19450 of 2003) … Appellants

Vs

Tmt. Najumunnissa
(Sole respondent recorded as legal
representative of the deceased first
appellant and continued to be respondent
vide order of Court, dated 29.07.2004
made in CMP.No.19450 of 2003) … Respondent

This Appeal suit filed under Section 96 of the Civil Procedure Code, against the judgment and decree dated 20.09.2001 made in O.S.No.1935 of 2000 on the file of the VII Additional City Civil Court, Chennai.

For appellants : Mr.K.P.Gopalakrishnan

For respondent : Mr.N.S.M.Mohammed Jaffarullah

J U D G M E N T
The legal representatives of the deceased first appellant viz.,appellants 2 to 7 have preferred this appeal before this Court as against the judgment and decree dated 20.09.2001 made in O.S.No.935 of 2000 on the file of Learned VII Additional Judge City Civil Court, Chennai.

2. The necessary averments of the respondent/plaintiff case are set out hereunder:
The respondent/plaintiff is the daughter of the deceased first appellant/first defendant and sister of the other appellants/ defendants. The respondent/plaintiff and appellants/defendants are co-owners of the properties mentioned in the items 1 to 3 of the plaint schedule. The respondent/plaintiff is entitled to 1/16th share in these properties.

3. The first item is a house property bearing Door No.203, Angappanaicken Street, Mannady, Chennai-600 001, the first item is also a house property at door No.2, Adam Street, Mannady, Chennai-1, the third item is the Gold Jewellery weighing 30 sovereigns. The first item is a big building comprising of three floors and it is occupied by several tenants and they occupy first to third floors. The appellants/defendants 1 to 5 are carrying on business in the ground floor of the said premises and the rent for the portion under the occupation of the tenants in the said property will come to Rs.40,000/- per month. The second item is a house property where the defendants are staying.

4. The properties mentioned supra, originally belongs to the respondent/plaintiff’s mother Ameena Bee, who purchased the land in respect of the first item of suit property by means of a registered sale deed dated 25.2.65. She got the superstructure through a settlement deed dated 10.5.65. The said Ameena bee has demolished the existing superstructure and put up a new structure out her own funds and now the property is consisting of four floor buildings. The second item has been purchased by her through a sale deed dated 7.10.71. The gold jewellery described in item three of the plaint schedule has been owned and possessed by her during her life time.

5. The respondent/plaintiff’s mother Ameena Bee has been enjoying the aforesaid properties as an absolute owner till her death. Being an illiterate, she has not known Tamil and English languages to read and understand. She expired on 12.9.88 leaving behind her the respondent/plaintiff as her legal representatives to succeed her estate under Muslim Law.

6. The details of the legal heirs, and their relationship with the deceased Ameena Bee is as follows;
—————————————————————————–
Sl. Name Rank in Relationship
No. this suit with deceased Shares
——————————————————————————–
1. S.G.Mahaboob Basha 1st Deft. Husband 4/16th Share
2. M. Ahmed Basha 2nd ” Son 2/16 ”
3. M. Abdul Razak 3rd ” Son 2/16
4. M. Mohamed Rafi 4th ” Son 2/16
5. M. Mohamed Zakir
Hussain 5th ” Son 2/16
6. Azathunnissa 6th ” Daughter 1/16
7. Naseemunnissa 7th ” Daughter 1/16
8. Zeenathunnissa 8th ” Daughter 1/16
9. Najumunnissa 9th ” Daughter 1/16
—————————————————————————–
7. Accordingly, the respondent/plaintiff is entitled to 1/16th undivided share in the estate of the deceased Ameena Bee. The respondent/plaintiff is in joint possession of the suit property with the appellants/defendants. The first appellant/first defendant used to pay Rs.500/- every year towards share of a profit due to the respondent/plaintiff and she used to receive the same out of respect though same is meager. The respondent/plaintiff is keeping some of her household articles in Adam Street property. The respondent/plaintiff wanted her share to be separated by metes and bounds. Since the appellants/defendants have not heeded to the request of the respondent/plaintiff, a lawyer notice dated 9.9.99 has been issued by her to all the appellants/defendants, calling upon them to agree for the partitioning of the suit property. However, the appellant/defendant 1 to 5 has given a reply dated 18.9.99, whereby they allege that the respondent/plaintiff’s mother has gifted the properties in favour of the defendants 2 to 5. Though they allege of an existence of ‘HIBA’, they have not furnished the full particulars of the same. The date of such gift and other particulars have not been given. The encumbrance certificate already obtained by the respondent/plaintiff from the Sub-Registrar (North), Chennai does not refer the any Gift Deed at all. Moreover, the reply without specifying the nature, date and particulars in regard to the gift has made the respondent/plaintiff to apprehend that the appellant/defendant 2 to 5 are trying to create or fabricate the documents to defect her claim. The respondent/plaintiff’s mother has not made any ‘HIBA’ in regard to her properties at any time. If the appellants/Defendants 2 to 5 alleged any gift , then it is a case of the respondent/plaintiff that they have created or fabricated the same and that the said document is not true or a genuine one. The respondent has sent a rejoinder on 12.10.99 expressing her apprehension. Even thereafter, the appellants/defendants 2 to 5 have not come forward to furnish the particulars nor they have sent a copy of the alleged gift deed. The respondent/plaintiff’s mother has at no time gifted the properties. However the defendants 6 to 8 have not issued any reply.

8. The respondent/plaintiffs mother has no occasion to gift the properties in favour of her sons. The respondent/plaintiff’s mother being a richest lady, she has not taken a decision to part aware of her properties and to leave as a pauper. In fact the respondent/plaintiff’s mother wanted to have a hold upon her sons and daughters-in-law by holding her properties for her future and she has not dreamt of gifting the properties to anyone. The first appellant/deceased first defendant is the father of the respondent/plaintiff and is sick and bedridden and he cannot do anything independently. Hence, the respondent/plaintiff has filed a suit praying for passing of preliminary decree for partition of separate possession of her 1/16th share in the suit property etc.

9. The written statement pleas of the appellants/D1 to D6 and D8 are as follows:
The appellants/defendants do not admit the items mentioned in item three of the plaint schedule. It is true that the building in item one of the suit schedule properties have been occupied by the tenants of defendants 2 to 5. It is not correct to state that the rent derived from the tenants of the property described under first item of the suit schedule is at Rs.40,000 per month. It is true that the property mentioned in the second item of the suit schedule is under the occupation of Defendants 2 to 5. Further, the appellants/defendants denying the allegations made in the plaint that the deceased Ameena Bee demolished the existing superstructure and put up new superstructure in the properties mentioned under first item of the suit schedule out of her own funds and the respondent/plaintiff is put to strict proof of the same. Moreover, it is denied that the deceased Ameena Bee has been enjoying the suit schedule properties as an absolute owner till her death. The appellants/defendants do not admit the share mentioned in para 5 of the plaint.

10.The appellants/defendants deny that the respondent/plaintiff is not joint possession of the schedule properties and the first appellant/deceased first defendant used to pay Rs.500/- to the respondent/plaintiff every year towards her share. It is also denied that the respondent/plaintiff is keeping some of her household articles in the property described under the second item of the suit schedule. A reply dated 18.09.99 has been issued to the respondent/plaintiff for a notice dated 9.9.99. The appellants/Defendants 2 to 5 are in absolute possession and enjoyment of the properties described in the suit property except the jewels mentioned under the third item of the suit schedule. The property mentioned under the first item has been a vacant land with a superstructure namely, zinc sheet with small tiled building (Shed) in a demolishing condition. The deceased Ameena Bee has accepted a gift as per Mohammedan Law in respect of the property described under the first item of the suit schedule on 07.4.1995 in the presence of the elders, relatives and community people in favour of Defendants 2 to 5, who being her sons and the same has been recorded in writing on 21.4.1995. The appellants/Defendants 2 to 5 as donees have accepted the gift of the property by taking physical possession of the same under the first item of the suit schedule. The said gift has been completed as per law and the same is valid from the date of the gift executed by the deceased Ameena Bee. The appellants/defendants 2 to 5 have been in absolute possession and enjoyment of the same till this date as rightful owners. The appellants/Defendants 2 to 5 have obtained plan approval on 15.03.1996 from the competent authorities and they have constructed the present building in the property described under the first item of the suit schedule and they have also obtained patta, tax and other assessment in their favour.

11.The second item of the suit schedule is a tiled house of more than 100 years old and the appellants/defendants 2 to 5 are residing jointly in the suit property. The appellants/defendants 2 to 5 submits that the property described under the second item of the suit schedule has also been gifted by their mother Ameena Bee on 6.4.1998 in the presence of elders, relatives and community people as per Mohammedan Law.

12. The respondent/plaintiff and the first appellant/first defendant and Defendants 6 to 8 are well aware of the gifting of the properties made by the deceased Ameena Bee in favour of the appellants/Defendants 2 to 5 and till date none of them have challenged the same.

13. The jewellery mentioned in the third item of the suit schedule have been gifted by the deceased Ameena Bee to her daughters, daughter-in-law and relatives. The black beeds necklace of three sovereigns (not as five as mentioned in the plaint) has been taken by the wife of the fifth defendant, after the death of Ameena Bee as per the desire of the deceased. One necklace with stone of 42 grams (not as 7 sovereigns as mentioned in the plaint) has been gifted to daughter of the sixth defendant during her marriage. Two bangles of 21 grams (not as six and nine sovereigns as mentioned in the plaint) and one set of ear stud has been gifted to the eighth defendant. No such plain ear studs (each one and half sovereigns) has been owned by deceased Ameena Bee. The only set of studs of 12 grams has been gifted to the eighth defendant. One plain ring of half sovereigns (not as two number of each eight grams) has been gifted to the daughter of Sarahn Bee. One stone ring of half sovereigns (not as two numbers of each eight grams) has been gifted to the daughter of Mahamood. The jewelleries described in the third item of the suit schedule are not with them.

14. No payment of Rs.500/- has been made by the appellant/defendant to the respondent/plaintiff towards her share at any point of time. The respondent/plaintiff is not at all entitled to any share in the properties mentioned in the first and second items of the suit schedule. The plaintiff’s averments are contrary. Also the averments in the legal notices dated 9.9.99 and 12.10.99 issued by the respondent/plaintiff are contrary in nature and they are after thoughts. The second defendant has refused to take a girl of the plaintiff for the marriage of his son and due to the said enmity, the respondent/plaintiff has filed the suit.

15.The suit is not properly valued and is not properly stamped. The suit will not come under Section 37 (1) of the Tamil Nadu Court Fees and Suits valuation Act 1955 as the plaintiff is out of possession. The suit has not been properly framed and the relief sought for are unaffordable and they are not maintainable in law. The suit is hit by the reason of the failure in seeking further relief which are substantial in the facts and circumstances of the case. The declaratory relief of the respondent/plaintiff in respect of the suit schedule property and the relief of recovery of possession have not sought for. The suit is therefore, devoid of merits, lack of bonafides, and the same is unsustainable in law.

16. Before the trial Court, on the side of the respondent/plaintiff witness P.W.1 has been examined and Ex.A1 to A10 have been marked. On the side of appellants/defendants D.W.1 to 5 have been examined and Ex.B1 to B14 have been marked.

17. On an appreciation of oral and documentary evidence the trial Court, while decreeing the suit in part without costs has passed a preliminary decree in favour of the respondent/plaintiff in respect of the suit 1 and 2 items and in respect of the suit 3rd item it has dismissed the claim of the respondent/plaintiff and also ordered that steps be taken for appointment of an Advocate Commissioner for passing of a final decree pursuant to the passing of the preliminary decree and also for mesne profits.

18 . The points that arise for consideration in this appeal are:-
1. Whether the suit items 1 and 2 have been given to the D2 to D5 by the deceased Ameena Bee on 7.4.95, 6.4.98 through the Gift Deeds Ex.B1 dated 21.4.95 and Ex.B2 dated 5.5.98 ?
2. Whether the Respondent/plaintiff has valued the suit properly and has paid the correct Court fee as per under Tamil Nadu Court Fees and Suits Valuation Act 1955 ?
3. Whether the Respondent/plaintiff is entitled to the relief of partition and separate possession of her 1/16th share in the suit properties ?

19.Contentions, Discussions and Findinfs on Point Nos.1 to 3:
The learned counsel for the appellants urges before this Court that the judgment and decree passed by the trial Court in O.S.No.935 of 2000 is contrary to Law, weight and probabilities of the case and as a matter of fact the trial Court has committed an error in holding that the respondent/plaintiff is in joint possession of the suit property without even taking into consideration of the fact that the respondent/plaintiff has given a different address in the plaint than that of the suit property and also that the observation of the trial Court that fixed Court fee paid by the respondent/plaintiff is not correct and indeed, the respondent/plaintiff ought to have paid Court fees in the plaint under Section 37(4) of the Tamil Nadu Court Fees And Suits Valuation Act 1955 and the admissions of the respondent/plaintiff have not been properly appreciated by the trial Court and moreover, the trial Court after holding that Hibia to be valid should have three conditions, (1) It should be either be oral or in writing (2) The donee should accept it (3) Possession should have been given and also having held that under Ex.B1 ‘HIBA’ has been reduced in writing and that Donee has accepted the same and that possession has been given, committed an error in coming to the conclusion that there is no mention in the ‘HIBA’ deed that it has been given orally on an earlier date which is not required under the Mohammedian Law.

20. It is the further contention of the learned counsel for the appellants that the trial Court has committed a mistake in holding that Exs.B1 and B2 do not contain signature of the deceased Ameena Bee without any basis and it has also further held in not holding that the gifts have been completed, since the defendants have been paying taxes and having patta in Exs.B6 to B14 and added further, in Muslim Law ”HIBA” is not compulsorily registrable under the Registration Act, but these aspects of the matter have not been adverted to by the trial Court in a proper and real perspective which has caused miscarriage of justice and therefore prays for allowing the appeal to prevent an aberration of justice.

21. It is the case of the respondent/plaintiff that her mother has not informed anybody during her life time that she has gifted the properties and also that the Defendants 2 to 5 have not informed anyone during the life time of their mother that she has gifted the properties and D2 to D5 have fabricated the documents and therefore, the Gift Deeds are not valid in the eye of Law.

22. The pleas of the Appellants/Defendants are to the effect that D2 to D5 have been in an absolute possession and enjoyment of the properties described in the suit schedules except the jewels described in third item and in fact, the deceased Ameena Bee has executed the gift as per Muslim Law in respect of the property mentioned in the first item of the suit schedule on 07.04.1995 in the presence of the elders, relatives and community members etc., in favour of D2 to D5 who being her sons and the same has been put into writing on 21.4.1995 and D2 to D5 have accepted the said gift by means of taking physical possession of the property mentioned in the first item of the schedule and the gift has become complete and therefore, the same is valid in Law and likewise, the second item of the suit schedule property has been gifted by Ameena Bee on 06.04.1998 in the presence of elders, relatives and community members etc., as per Muslim Law and indeed D2 to D5 have accepted the gift and taken possession of the second item of the schedule mentioned property and the said gift has been executed by the deceased Ameena Bee on 06.04.1998 in favour of D2 to D5 have been recorded into writing on 05.05.1998 and the said gift has become complete and the same is valid in Law and really speaking the patta and other revenue records in respect of the first and second item of the suit schedule properties are in the name of D2 to D5 and the respondent/plaintiff and the deceased first defendant and D6 to D8 have been well aware of the gift of the properties and as such the respondent/plaintiff is not entitled to claim any relief in respect of the suit item 1 and 2 of the properties.

23. The respondent/plaintiff in her evidence as P.W.1 has deposed that the first item of the suit property namely, shop bearing Door No.203, Angappa Naicken Street, Madras  600 001 street has been purchased by her mother in the year 1965 through Ex.A1 document and as per Ex.A1 document her mother has purchased the land and superstructure has been given to her mother in the year 1965 by her father through the gift deed as per Ex.A2 and the second item of the suit property namely house bearing door No.203, Angappa Naicken Street, Madras  600 001 has been purchased by her mother in the year 1971 through Ex.A3 and that their item of property is the jewellery which belongs to her mother and that her mother has expired in the year 1998 and she has issued a lawyers notice, Ex.A6 on 9.09.99 demanding partition for which D2 to D5 have given a reply Ex.A7 and in Ex.A7 it is wrongly stated that her mother has given the properties to her brothers through gift and therefore, she has given the Ex.A8 rejoinder and inspite of the same, since her share of the properties have not been given to her she has filed the suit.

24. P.W.1 in her cross-examination has categorically stated that she is not aware of the gift during the life time of her mother and even after her mothers death she has not known the same and her father has informed that her mother has given the properties through a gift deed to D2 to D5 and hence informed her to file a suit before the Court and to seek the relief of partition and it is incorrect to state that she has no right in the suit properties.

25. It is the further evidence of P.W.1 (plaintiff) that even after marriage she has been leaving with her mother and some articles belonging to her was still in the second item of the house and presently she is leaving in a different house with some articles in her possession and that her father has given a sum of Rs.500/- per year and she has informed her father that she does not require the said amount and only requires a share in the properties and therefore, has filed the present suit and she has not received the sum of Rs.500/- per year after the death of her mother.

26. At this stage, it is useful to refer to the evidence of D.W.1 (deceased first appellant/first defendant and father of the respondent/plaintiff) to the effect that in the year 1971, the shop has been purchased in the name of his wife and the Angappa Naicken Street, shop has been purchased on loan from Kayalpattinam Samu Fathima Nachi and at the time of purchase of the said shop it has tin roofing and in that his sons have constructed a building and the house has also been purchased on loan and only his sons have discharged the loan and the shop has been given by his wife to his sons through gift in the year 1995, and at the time when the gift has been made, one religious priest, an advocate, Abdul Kadar and Gaja Mohidin have been present and in their presence she has made the said gifts and his wife have made the said gift through a written statement and that written statement has been given some time later and likewise, his wife has given the Adam Sahib Street house to her sons through ‘HIBA’ (Gift) in the year 1998 and he does not know the date and month and at the time of ‘HIBA’ the religious priest, an advocate, Abdul Kadar and Gaja Mohidin have been present, and this gift has also been made in writing by his wife after few days later and when his wife has given the ‘HIBA’ in respects of the two properties at that time he has been present and he has also signed as a witness and his sons are receiving the income from the shop and they have not given him any share from the said income and it is utter false to state that every year a sum of Rs.500/- has been given to the respondent/plaintiff from and out of the income received from the shop and that in the suit properties, himself or his three daughters have no right at all and that the suit properties are absolutely belonging to his sons and for the past 10 years P.W.1/plaintiff is not in the habit of visiting his house.

27. D.W.1 in his evidence has further deposed that Ex.B1 is the document dated 21.04.1995 in and by which his wife has given the Angappa Naicken Street shop as ‘HIBA’, and in Ex.B1 document at the fourth page his wife has signed over the place of Donor and in Ex.B1 his four sons have signed as Donees and Ex.B2 ‘HIBA’ document given by his wife is of the year 1998 and in Ex.B2 in page three, his wife has signed at the place of Donor and in Ex.B2 document his four sons and he himself has also signed as a witness therein and also that his wife has signed in all the pages of Ex.B1 document.

28. Ex.B1 is the memorandum of declaration of ‘HIBA’ dated 21.04.1995 made by Mrs. Ameena Bee to and infavour of D2 to D5 in respect of the house, ground and premises bearing municipal door No.203, Angappa Naicken Street, Madras  01 which reads as follows;
“AND WHEREAS the Donees are the sons of the Donor and whereas the Donor being desirous of giving the entire property absolutely to the Donees, made a declaration on 07.04.1995 to her intention to give her entire property being house, ground and premises bearing municipal door No.203, Angappa Naicken Street, Madras  600 001, of an extent of 1479 square feet, which is morefully described in the schedule hereunder equally to all the Donees and whereas in the presence of the elders, relatives and community people the said declaration of ‘HIBA’ was made on 07.04.1995 by the Donor in favour of the Donees, that is, the Donees shall take the Schedule mentioned property absolutely and in equal shares and whereas the Donees accepted the said Gift in the presence of the said elders, relatives and community people.
WHEREAS the DONOR (IJAB) wanted to make a record of ‘HIBA’ (GIFT) to evidence the nature of acquisition by the DONEES (QABULS).
THE RECORDING OF ‘HIBA’ WITNESSETH that the DONOR (IJAB) has made a declaration of “‘HIBA'” (GIFT) of the schedule mentioned property on 07.04.1995 before the witnesses and in the presence of elders, relatives and community people as mentioned above in favour of the DONEES (QABULS) and the DONOR (IJAB) also had delivered the possession (QABDA) and the DONEES (QABULA) had also taken the possession of the schedule mentioned property on the same day, the DONOR (IJAB) also delivered the title deeds of the Schedule mentioned property to the DONEES (QABULS) and the DONEES (QABULS) had received the same on the same day.”

29. A perusal of Ex.B1 memorandum of declaration of ‘HIBA’ dated 21.04.1995 shows that it has been executed before a notary through K.Balagopal, Advocate, Madras-21 and on the left hand side of the Ex.B1 document D2 to D5 has signed and before the signature and seal of the notary, Ameena Bee (Donor) is said to have signed the same.

30. Ex.B2 is the memorandum of declaration dated 05.05.1998, recording of the ‘HIBA’ made by Mrs.Ameena Bee in favour of D2 to D5 in respect of house, ground and premises bearing municipal door No.2 old door No.28, Adam Street, Muthialpet, Chennai-01 of an extent of 2068 sq.ft. and the same among other things reads thus;
“AND WHEREAS the Donor, her husband S.G.Mahboob Basha Sahib are well maintained by their four sons, the Donees herein and they have four daughters all of them are married and settled in their life. Their first daughter Mrs.M.Azmathunissa Begum lost her husband recently and however she has been staying with her children in her husband’s place.
AND WHEREAS the Donees are doing immense help to the Donor and therefore the Donor out of love and affection being desirous of giving her entire property being all that piece and parcel of house, ground and premises bearing municipal door No.2, old door No.28, Adam Street, Muthialpet, Chennai-600 001, of an extent of 2068 square feet, which is morefully described in the Schedule hereunder absolutely to the Donees, made a declaration on 06.04.1998 of her intention to give the Schedule mentioned property to the Donees and whereas in the presence of elders, relatives and community people the said declaration of ‘HIBA’ was made on 06.04.1998 by the donor in favour of the Donees, that is the Donees shall take the Schedule mentioned property jointly, equally and absolutely and whereas the Donees accepted the Gift in the presence of the said elders, relatives and community people.
WHERAS the Donor (IJAB) wanted to make a record of ‘HIBA’ (GIFT) to evidence the nature of acquisition by the DONEES (QABUL).
THE RECORDING OF ‘HIBA’ WITHNESSETH THAT the DONOR (IJAB) has made a declaration of ‘HIBA’ (GIFT) of the schedule mentioned property on 06.04.1998 before the witnesses and in the presence of elders, relatives and community people as mentioned above in favour of the DONEES (QABUL) and the DONOR (IJAB) also had delivered the possession (QABDA) to the DONEES (QABUL) and they had also taken the possession of the schedule mentioned property on the same day, the DONOR (IJAB) also delivered the title deeds of the Schedule mentioned property to the DONEES (QABUL) and the DONEES (QABUL) had received the same on the same day.”

31. The learned counsel for the appellants/defendants submits that the deceased first appellant/first defendant namely D.W.1 in his evidence has clearly spoken about the Ex.B1 and B2, memorandum of declaration of ‘HIBA’ dated 21.04.1995 and 05.05.1998 and he being the father of the respondent/plaintiff and D2 to D5 has given a cogent and clear cut evidence about the ‘HIBA’ made by his wife Ameena Bee and that his wife Ameena Bee has signed in these documents and that the gift given by the mother has been accepted by D2 to D5 and they have been acted upon and therefore, in law, the two gifts has been a complete and a valid one and that the Donor Mrs. Ameena Bee has parted with the possession of the properties and that the Donees have accepted the gift and have been in possession and enjoyment of the said properties and have been paying water and other taxes and consequently, revenue records are in their favour and therefore the respondent/plaintiff is not entitled to claim any relief in the suit and therefore, the suit has to be dismissed in right earnest.

32. In support of the contention that gift by a Mohammedan is not required to be writing and need not be registered under the Registration Act, the learned counsel for the appellants relies on the decision Mahboob Sahab v. Syed Ismail and others AIR 1995 SUPREME COURT 1205 wherein the Hon’ble Supreme Court is held as follows;
“Though gift by a Mohammadan is not required to be in writing and consequently, need not be registered under the Registration Act; a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor he should completely divest himself physically of the subject of the gift.”

33. He also cites the decision of Tek Bahadur Bhujil v. Debi Singh Bhujil and others AIR 1966 Supreme Court 292 at page 293 wherein the Hon’ble Supreme Court has among other things observed thus;
“Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties is to be founded. It is generally prepared as a record of what had been agreed upon, in order that there are no hazy notions about it in future. It is only when the family arrangement is reduced in writing with the purpose of using that writing as proof of what they had arranged where the arrangement is brought about by the document as such, that the document requires registration, because it is then that it would amount to a document of title declaring for future what rights and in what properties the parties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration under S.17 of the Registration Act.”

34. Continuing further, the learned counsel for the appellants seeks in aid of the decision A.C. Lakshmipathy and another v. A.M.Chakrapani Reddiar and others (2001) 1 M.L.J.1 wherein it is among other things held that;
“The family arrangement can even be made orally and in which obviously the question of registration does not arise. What is required to be seen is whether the family settlement is a bonafide one so as to resolve family dispute and rival claims at a fair and equitable decision or allotment of properties between the various members of the family. Similarly, the family arrangement should not be result of any fraud or undue influence etc., played on the member/members of the family. In other words, such a family arrangement must be voluntary and entered into by the parties on their own accord and free Will. It is only when the family arrangement is reduced into writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that the document requires registration, then it would amount to a document of title declaring for future what rights and what properties the parties to possess.
But, however after family arrangement if a mere memorandum is prepared for the purpose of record or for information of the Court making necessary mutation, such memorandum itself does not create or extinguish any rights in immovable properties and therefore, does not fall within the mischief of Section 17 of the Indian Registration Act and therefore, not compulsorily registrable. Similarly, a mere list prepared by the parties, not setting out the entire terms of the family arrangement need not registered.”

35. However, the learned counsel for the appellant brings it to the notice of this Court to the decision R.Deivanai Ammal (Died) and another v. G.Meenakshi Ammal and others (2004) 3 MLJ 507 wherein it is held hereunder;
“It is a well-established principle of law that where a party claims that any particular item of property is joint family property, the burden of proving that it is so rests on the party asserting it. Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus should be such that with its help the property claimed to be joint could have been acquired. A family house in the occupation of the members and yielding no income could not be nucleus out of which acquisitions could be made even though it might be of considerable value.”

36. Moreover, on the side of the appellants a reliance is placed on, to the decision Veronica Thomas Rajkumar v. Joseph John Peter Sandy and another (2004) 1 MLJ 301, wherein at page 310 at para 44 it is held as follows;
“Ex.A3 is not a mere declaration of the pre-existing right but creation and declaration of new right of the plaintiff in door No.23 and extinguishing the right of the defendant in door No.23. The admissibility of a document being a point of law could be urged at any stage notwithstanding that such document was admitted in the trial stage. Under Sec.49 of the registration Act no document required by Sec.17 or by any provision of the Transfer of Property Act, to be registered shall be received as evidence of any transaction affecting an immovable property Ex.A3 more in the nature of creating and extinguishing right. Registration is compulsory. For want of registration Ex.A3 is inadmissible.”

37. Per contra, the learned counsel for the respondent/plaintiff submits that the appellants/defendants in their Ex.A7 lawyer’s reply notice dated 18.09.99 have stated that the immovable properties (1) Door no.2, Adam Street, Mannady, Chennai-1 (2) Door no.203, Angappanaicken Street, Chennai-600 001 have been given as ‘HIBA’ (Gift) under Mohammedan Law by Mrs. Ameena Bee to her four sons jointly and equally and that they have been properly recorded by Mrs. Ameena Bee during her life time itself etc., and in fact nothing prevented the appellants in the reply notice to mention the date of gift said to have been given by Ameena Bee and the respondent/plaintiff has searched in the Sub-Registrars Office for obtaining necessary details in this regard but she has not been successful in this regard and the appellants/defendants have not taken the plea of oral ‘HIBA’ and no where in Ex.B1 and Ex.B2 Memorandum Of Declaration dated 21.04.1995, 05.05.1998 oral gift is mentioned and only when they have entered into the witness box in the trial Court and they have stated about the oral gift and in Exs.B1 and B2 Memorandum of Declaration, Ameena Bee has declared her intention only and in reality the same is not a gift and a reading of the recitals in Exs.B1 to B2 clearly point out that it is not a gift in strict sense of the term and moreover, it is for the appellants/defendants to prove that the signature of Ameena Bee in Exs.B1 to B2, since the Ameena Bee’s admitted signature Ex.B3 is very much available on record and as a matter of fact the trial Court has rightly disbelieved the plea of oral gift and therefore, prays for dismissing of the appeal.

38. Expatiating his submissions the learned counsel for the respondent/plaintiff submits that when a plea has not been raised in the pleadings then no amount of proof can substitute the same and in support of the said contention he cites the decision of Abubakar Abdul Inamdar (dead) by Lrs. And others v. Harun Abdul Inamdar and others AIR 1996 Supreme Court 112 at page 113 wherein the Hon’ble Supreme Court has held that ‘no amount of proof can substitute pleading which are foundation of claim of a litigating party.

39. He further relies on the decision of Hon’ble Supreme Court Subhra Mukherjee and another v. Bharat Coking Coal Ltd. and others AIR 2000 Supreme Court 1203 wherein it is held as follows;
“There can be no dispute that a person who attacks a transaction as sham, bogus and fictious must prove the same. But where the issue raised discloses that it is in two parts, the first part says, ‘whether the transaction in question, is bonafide and genuine one’ and the second part says ‘or is a sham, bogus and fictious’ transaction, it is only when the first part has been proved that the party alleging to be sham has to dislodge it by proving that it is a sham and victious transaction. When circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bonafide and genuine, it is unnecessary for the Court to find out whether the respondent has led any evidence to show that the transaction is sham, bogus or fictitious.”

40. Added further, the learned counsel for the respondent/plaintiff submits that if a gift by a Mohammedan pertains to an immovable property more than Rs.100/- and if the same is by means of a document then the same has to be compulsorily registered in the eye of lay and in the present case on hand Ex.B1 and B2 Memorandum of Declaration of ‘HIBA’, the properties are in fact worth more than Rs.100/- and they are not registered as required under the Registration Act and therefore, the same are inadmissible in evidence in law. To lent support to his contention he brings it to the notice of this Court to the decision Shaik Khadaru Masthan v. Smt. Sayyed Fathimun Bee AIR 2008 Andhra Pradesh 1 wherein it is observed as follows;
“Gift by a Mohammedan is not required to be in writing and consequently need not be registered under Registration Act. What is required is delivery of possession to complete the gift. But once the gift of immovable property worth more than Rs.100/- is evidenced by a document, it attracts section 17 of Act. The document is a compulsorily registrable one and since the same is not registered it is inadmissible in evidence”.

41. The learned counsel for the respondent/plaintiff cites the decision of this Court A.C.Lakshmipathy and another v. A.M.Chakrapani Reddiar and others (2001) 1 MLJ 1 wherein this Court has held thus;
“To effect a family settlement all that is necessary is that the parties must be related to one another in some way and have a claim or a possible claim to the property or even a semblance of a claim or spes succession is or even on some other ground as say, affection or ignorance of the parties of their right and with the purpose or object of maintaining peace and harmony in the family.
The family arrangement can even be made orally and in which obviously the question of registration does not arise. What is required to be seen is whether the family settlement is a bonafide one so as to resolve family dispute and rival claims at a fair and equitable decision or allotment of properties between the various members of the family. Similarly, the family arrangement should not be result of any fraud or undue influence etc., played on the member/members of the family. In other words, such a family arrangement must be voluntary and entered into by the parties on their own accord and free Will. It is only when the family arrangement is reduced into writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that the document requires registration, then it would amount to a document of title declaring for future what rights and what properties the parties to possess.

42. Moreover, on the side of respondent/plaintiff the decision Inspector General of Registration and Stamps Govt. of Hyderabad v. Smt. Tayyaba Begum AIR 1962 Andhra Pradesh 199 is relied on to the effect that if an oral gift is made by a Muslim lady and if the subsequent document evidencing transaction executed as ekararnama then the document has been held to be a gift deed liable to stamp duty and registration.

43. Further, the learned counsel for the respondent/plaintiff relies on the decision Ramdeo v. Smt. Dulari Devi AIR 1996 Allahabad 253 at page 256 wherein at para 17 to 19 it is held as follows;
“It is an established principles of law that when an illiterate person executes some document then the person in whose favour the document is executed has burden to prove that the document has been executed by the said executant. Vide Parasnath Rai v. Tilesara Kaur 1965 ALJ 1080;
‘Obviously it is not by reason of the pardah itself that the law throws its protection round a pardahnashin lady but the reason of those disabilities which a life of seclusion lived by a Pardahshin lady rise to, and which are consequently presumed to exist in the case of such a lady. But the disabilities which make the protection necessary may arise from other causes as well. Old age, infirmity, ignorance, illiteracy, mental deficiency, inexperience, dependance upon others, may by themselves create disabilities that may render the protection equally necessary. If, therefore, it is proved that a woman although she is not a pardahnashin lady suffers from the disabilities to which a pardahnashin lady is presumed to be subject, the validity and the binding nature of a deed executed by her have to be judged in the light of those very principles which are applied to a deed by a paradahnashin lady.’
Under the above circumstances, the burden to prove by independent evidence that Jhabbar Yasdav since deceased had executed the alleged agreement was on the plaintiff.
On the basis of the analysis of the entire evidence the lower appellate Court has recorded a finding that the plaintiff has failed to establish that Jhabbar Yadav had executed the agreement in favour of plaintiff.”

44. Countering the submissions of the learned counsel for the plaintiff, the learned counsel of the appellants/defendants contends that Ex.B1 and B2 Memorandum of Declaration dated 21.4.1995, 5.5.1998 do not create a new interest or right and only when the documents create rights in presenti the same will have to be registered and consequently the Exs.B1 to B2 Memorandum of Declaration do not require registration in the eye of law.
45. It is to be borne in mind that the term ‘HIBA’ and Gift are more often employed, but the term ”HIBA” is only of the kind of transactions which are covered by the general term ‘Gift’. ‘HIBA’ is confined only to transfer of rights of full ownership or corpus of any property. Such a transfer by means of ‘HIBA’ must be immediate and not contingent. It must be unconditional. Any conditions imposed in respect of corpus would be void.

46. As a matter of fact the burden of proving with the formalities of law have been complied with lies on the person claiming to be the Donee. The burden of proof is then shifted on those who challenge the validity of gift in the considered opinion of this Court. Really speaking, the burden of establishing that possession has been delivered is on the Donee of those who claim under him.

47. Whether the Donee holds a fiduciary position or is in a position to dominate the will of Donor the presumption of undue influence arises and it is incumbent to the Donee to satisfy the Court that the Donor had competent and independent advice.
48. It is necessary for the Donee to prove that the gift has been the result of free exercise of independent will. The most obvious way to prove this is by establishing that the gift has been made at the nature and effect of transaction has been fully explained to the Donor by some independent and qualified person so completely as to satisfy the Court that the Donor has been acting independantly of any influence from the Donee and with full appreciation o what he has been doing and in case where there are no other circumstances, this may be the only means by which the Donee can rebut the presumption.

49. Section 129 of the Transfer of Property Act lays down that no rule of Mohammedan Law shall be affected by chapter 7 of the Transfer of Property Act pertaining to Gifts.

50. In the decision Fatima Bibi v. Khairum Bibi and others 1923 Madras 52 it is held as follows;
“A deed executed by a Mohammedan lady purported to transfer certain property to her daughter in consideration of her promise to maintain the mother during her lifetime and pay her funeral expenses after her death. The possession of the properties was in fact handed over to the daughter. The rents payable by the tenants were collected by the daughter from the date of the document and all the ground rent and taxes in respect of the property were paid by her. Held: the deed of gift in presenti, as the daughter was given the immediate possession of the property. That being the condition in one of the two kinds of gifts under Mohammedan Law, namely, ‘HIBA’ and ‘HIBA’ bil iwas.”

51. In Syed Mustan and another v. Syed Mubarak 1997 (Vol.1) MLJ 92 it is held as follows;
“Normally, the question as to whether possession has been delivered to make the gift complete is considered relevant only when such an issue is raised between the donor or those claiming under him on the one side and the donee or those claiming under him on the other. Once the donee accepts the gift as shown in this case and was also specifically found to have been, even on the date of the gift deed, in possessing of the property, it is not given to persons other than the donor who was alive to challenge the validity of the gift on the ground of want of delivery of possession.”

52. In the decision Commissioner of Income Tax, Jaipur v. Sirehmal Nawalakha 2001 (3) CTC 694 the Hon’ble High Court has observed that;
“Section 4 of Gift Tax Act creates legal fiction and treats transactions as gift even if they do not fall within the ambit of Transfer of Property Act and transfer of immovable property can be effected only by due compliance of requirements imposed by Indian Stamp Act etc.”
53. In the decision Jaitunbi Fatrubhai v. FatrubhaiKasambhai and others( AIR (35) 1948 Bombay 114) it is held thus;
“When at the time of the marriage, a land is assigned by the bridegroom to the bribe in lieu of mahr, the assignment is a simple gift (‘HIBA’), and neither a sale nor a ‘HIBA’-bil-iwas. No writing is necessary for the validity of such a gift, since Section 129, T.P.Act, exempts a gift by a Mahimedan from the provisions of that Act, but such a gift is subject to the doctrine of Mushaa, and the gift would not be complete and valid without delivery of such possession as the subject of the gift is susceptible of”
54. In the decision Imbichimoideenkutty v. Pathumunni Umma and others AIR 1989 Kerala 148 it is held thus;
“‘HIBA’ or gift under Mohammedan Law is a transfer of property made immediately and without any exchange by one person to another and accepted by or on behalf of the latter. By virtue of Section 129 I.P.Act the chapter does not affect any rule of Mohammedan Law and therefore ”HIBA” of subject matter of whatever value need not be registered as required by Section 123. If, however, it is reduced into writing and relates to immovable property worth Rs.100/- or more the document is compulsorily registrable under Section17 of the Registration Act which applies. On the other hand, ‘HIBA’-bil-iwaz in India being a gift for an exchange is in the nature of a sale and if the subject matter is immovable property worth Rs.100/- or more, then, it can only be by a registered instrument as provided under Section54, T.P.Act. Oral gift in discharge of money owed to the donee being one for consideration amounts to a sale. It is not pure and simple ”HIBA” but a ‘HIBA’-bil-iwaz and if the property of value of Rs.100/- or more is involved it can only be by a registered document.”

55. In the decision Maimuna Bibi and another v. Rasool Mian and others AIR 1991 Patna 203 wherein it is held as follows;
“Under the Muslim Law, an oral ‘HIBA’ or gift is permissible. However, in order to constitute a valid gift, the donor should divest himself completely of all ownership and dominion over the subject of the gift. In order to constitute a valid gift, the three essential ingredients are; (i) a declaration of gift by the donor; (ii) an acceptance of the gift, express or implied, by or on behalf of the donee; and (iii) delivery of possession of the subject of the gift by the donor to the donee.
Where at the time of gift the donee was major it was essential for him not only to prove that the donor had made an oral gift in his favour but it was also essential for him to prove that he accepted the said gift and delivery of possession in relation to the property in question which was the subject matter of the gift, had also been effected. However, it was found that even after the alleged gift, the donor claimed title in respect of the property in question in a sale deed executed by him along with his grandson the alleged donee, who is claiming title on basis of the gift, as against the heirs of the said donor i.e. his daughters. In the said sale deed, the donee has claimed Mourasi (heritable) right in the property after the death of his father. Thus, the plea of oral gift had been set up by way of afterthought and the daughters of the said donor having acquired heritable interest in the property could execute sale deeds in respect of the same. And the purchasers could sue for partition of the property.”

56. In Sunkesula Chinna Budde Saheb v. Raja Subbamma 1954 2 MLJ 113 it is observed as follows;
“It is true that in order to create a valid gift of moveable or immoveable property writing is not essential under Muhammadan Law. The provisions of section 123 of the Transfer of Property Act do not apply to Muhammadan gifts vide section 129. The three essentials of a gift under Muhammadan Law are (1) a declaration of gift by the donor, (2) acceptance, express or implied by or on behalf of the donee and (3) delivery of possession of the subject of the gift by the donor to the donee. The registration of a deed of gift does not cure want of delivery of possession. But if a gift is reduced to writing, it requires to be registered under section 17 (i)(a) of the Registration Act. Even if by virtue of the terms of section 129 of the Transfer of Property Act, a deed of gift executed by a Muhammadan does not require to comply with the provision of section 123 of the Transfer of Property Act, still it requires to be registered under section 17 (i)(a) of the Registration Act when the gift relates to immovable property.
The document (the unregistered suit document styled as a gift deed) really effected immediate transfer of ownership and was not a record of a past gift according to the rules of Muhammadan Law. The document therefore directly falls under the terms of section 17(i)(a) of the Registration Act and is inadmissible in evidence under section 49 of the Registration Act.
Oral evidence as to the gift under the unregistered document would be inadmissible under the terms of section 91 of the Evidence Act.”
57. In the decision Ratan Lal Bora and others v. Mohd. Nabiuddin (AIR 1984 A.P. 344) wherein it is held as follows;
“Under the Mahomedan Law, gift of immoveable property can be made orally provided three ingredients are satisfied, namely (i) a declaration of gift by the donor (ii) acceptance of the gift by the donee and (iii) delivery of possession of subject-matter of gift to the donee. Even if actual possession is not given, possession which the property is capable of being given would satisfy the requirement. Unless the three valid requirements of declaration, acceptance and delivery of possession are satisfied oral gift under Mahomedan Law is not valid. In order to establish a declaration of gift it must be shown that the donor either in the presence of the witnesses or otherwise made a public statement that he gifted the property in favour of the donee and that he divested himself of the ownership of the property by delivering such possession as the property is capable of to the donee who accepted the gift. A declaration cannot be made unilaterally without making a public statement of the gift. Where the Plaintiff in the suit filed by him claimed to be owner of the house in suit under an oral gift made in his favour by his father, the statement of the father in Court that he had made an oral gift of his house to his son the plaintiff and that at the time of making the gift nobody was present is not sufficient to establish the oral gift because it is destructive of valid requirement of declaration.”
58. It is not out of place for this Court to point out that the main test to be applied is whether the parties regarded instrument Ex.B1 and B2 dated 21.4.1995 and 5.5.1998 documents in the present case on hand put a receptacle and adequate of the transactions. Is it intended to constitute the gift or has it been the one to serve as a record of a past evidence ?

59. In Ex.B1 Memorandum of Declaration ‘HIBA’ dated 21.4.1995 at page 2 it is mentioned that Donor (IJAB) has made a declaration of ‘HIBA’ (Gift) of the schedule mentioned property on 7.4.1995 before the witness and in the presence of elders, relatives and community people etc. Earlier also in Ex.B1 referred to supra at page 2 it is averred that “the Donees are the sons of Donor and whereas the Donor being desirous of giving the entire property absolutely to the Donees, made a declaration on 07.04.1995 to her intention to give her entire property being house, ground and premises bearing municipal door No.203, Angappa Naicken Street, Madras  600 001, of an extent of 1479 square feet etc.

60 . It is relevant to point out that the ingredients of section 17 of the Indian Registration Act requires among other things all non-testamentary instrument which purported to, or operate to create any right title or interest in immoveable property to be compulsorily registered. Therefore, this Court is constrained to examine the Ex.B1 and B2 documents in the light of the ingredients of section17 of Indian Registration Act. As a matter of fact in Ex.B1 and B2 Memorandum of Declaration there are recitals which relate to the past transactions. In fact, the Donor Mrs.Ameena Bee has not treated them as a Memorandum of complete ‘HIBA’ which is quite evident from the sentence like, ‘this Memorandum of recording of ‘HIBA’ (Gift) under Muslim Law made at Madras on 21.4.1995′ in Ex.B1 and likewise found in sentence in Ex.B2 to the effect that ‘this memorandum of recording of ‘HIBA’ (Gift) under Muslim Law given at Chennai on 5.5.1998 etc.

61. Therefore, the entire writing of recitals of Ex.B1 and B2 documents shows Mrs.Ameena Bee’s intention in regard to the execution of the two documents in issue and the two documents have been attested by five witness in Ex.B1 and four witnesses in Ex.B2 and consequently, these two documents have been duly attested by minimum number of two witnesses as required under section 123 of the transfer of Property Act. As such, the prime aim and desire of the executant Mr.Ameena Bee in regard to execute Ex.B1 and B2 Memorandum of Declaration is to serve as evidence of the Gift and not as a memorandum of past transaction and in that view of the matter this Court comes to the inescapable conclusion that Ex.B1 and B2 Memorandum of Declaration comes within the purview of section 17 of the Indian Registration Act, and therefore they are chargeable to duty as gift deed and they are required to be compulsorily registrable under Section 17 of the Indian Registration Act inasmuch as the two immovable properties worth admittedly more than Rs.100/-. Further, in view of the fact Ex.B1 and B2 documents are to be registered compulsorily and in reality since they have not been duly registered they are inadmissible in evidence in the considered opinion of this Court and the point is answered accordingly.

62. Coming to the issue of the mother of the plaintiff’s family viz., P.W.1 has executed Ex B1 Gift deed dated 21.4.1995,it is the specific evidence of P.W.1 that it is not correct to state that her mother Ameena Bee has given first item of the property through Gift in the presence of witnesses on 21.4.1995 and further it is not correct to state that her mother Ameena Bee has executed Gift deed in respect of second item of property on 6.4.1998 to defendants 2 to 5 in the presence of witnesses and more over it is not correct to state that her mother has given affidavits duly recording the gifts given by her.

63. P.W.1(first appellant(deceased husband of Ameena Bee) in his evidence has stated that his wife has given first and second items of properties through ‘HIBA’ and the necessary documents are Exs B1 and B2 and in Ex B1 and Ex B2 his wife has signed and in both the documents his four sons have signed and further he has signed as a witness in Ex B1 and Ex B2 and in suit items his sons alone have the right. In Exs B1 and B2, Ameena Bee has not signed in Tamil or in English language and her purported signature is seen in Urdu. Ex B3 is the simple mortgage deed dated 14.5.1965 for Rs.12,000/- executed by Ameena Bee in favour of the Mortgagor G.Khaja Mohideen and in that also the signature of Ameena Bee is seen in Urdu.

64. At this stage, it is significant for this Court to point out the recitals of Exs B1 and B2 memorandum of declaration of ”HIBA” are in English. Ex B3 simple mortgage for Rs.12,000/- with interest at 12%pa., has been discharged through Ex B4. In Ex B1 and Ex B2 documents the notary K.Balagopal, Advocate, Madras-21 has signed and the notary’s red rubber stamp are seen. After the signature of Ameena Bee in Urdu in the Notary Public K.Balagopal advocate has singed affixing his red rubber stamp. Significantly,the notary Public K.Balagopal, Advocate has not been examined before the trial Court to speak about the execution of two documents Ex B1 and ExB2 by Ameena Bee in front of him. In the instant case on hand, Ameena Bee(mother of Plaintiff and Defendants 2 to 5 ) is a Pardanashin woman. Therefore, a very heavy burden is cast on the defendants 2 to 5 who lay a claim on Exs B1 and B2 documents. It is for them to establish affirmatively and conclusively that Exs B1 and B2 have not only been executed but also the recitals of the said documents have been explained to her and she has understood the tenor of the documents. It is not known,in this case, whether the donor Mrs. Ameena Bee, has known English Language and has understood the contents of Ex B1 and Ex B2 documents which are admittedly in English. More over, it is for the donees to prove that Exs B1 and B2 memorandum of declaration of ‘HIBA’ have been the result of free, exercise of independent well. The clear cut way to establish the same is by proving that gifts have been made at the nature and effect of all transactions which has been fully explained to Mrs. Ameena Bee(Donor) by some independent and qualified person so complete then to satisfy the Court that the donor Ameena Bee has acted independently of any influence from the donees and with full appreciation of what she has been doing and in case, whether they are no other circumstance, this may only amount by which the donees can rebut the presumption in the considered opinion of this Court.

65. In the written statement filed by defendants 1 to 6 and 8, it is specifically stated that Ameena Bee has executed the gift deeds Exs B1 and B2 in respect of Item Nos.1 and 2 properties to her sons defendants 2 to 5 as per Mohammedan Law in the presence of elders, relatives and community people. But the oral gift has not been mentioned specifically in the written statement as well as in the lawyer’s notice. Significantly D.W.1/deceased first appellant(father of plaintiff) in his chief examination (before the Court) on 6.2.2001 has not whispered anything about the oral gift. Only during his chief examination on 27.2.2001, he has mentioned about the ”HIBA”. The other defendants’ side witnesses have also speak about the oral gift of properties given by Mrs. Ameena Bee. Only the exchange of legal notices also, the oral gift has not been mentioned.

66. Apart from the above, though in Exs B1 and B2, Mrs.Ameena Bee has reportedly affixed her signature but it is not mentioned specifically that Mrs. Ameena Bee has signed before the Notary Public. The non examination of the Notary Public as to the execution of Exs B1 and B2 documents is not a circumstance which is in favour of defendants 2 to 5 in the considered opinion of this Court. Therefore, this Court comes to the inevitable conclusion that the appellants/defendants have not proved the satisfaction of the judicial conscience of this Court that Mrs. Ameena Bee has affixed her signature in Exs B1 and B2 affirmatively and conclusively after appreciation of the contents and recitals of the said documents which are in English, have been explained to her in the language known to her.
67.The learned counsel for the appellants submits that the trial Court is not an expert to compare the signature of Mrs.Ameena Bee but it has committed an error in comparing the admitted signature of Mrs. Ameena Bee with that of the disputed ones and certainly the comparison by a Court in regard to the signature of a person is a hazardous one and generally the Court should be hesitant in venturing on comparison and since the trial Court has compared the admitted signature of Mrs.Ameena Bee with that of Exs B1 and B2 documents wherein her signatures are found, the said Act is clearly unsustainable in the eye of law.

68. However, the learned counsel for the respondent/plaintiff submits that there is no bar for a Court of Law to compare the admitted signature with that of the disputed signature and to lend to support his contention, he relies on the decision S.Murugesan-v-V.Vijay Sai(2006(5) CTC 560) wherein it is held as follows:
“Section 73 of the Indian Evidence Act contemplates that the Court may compare the disputed signature, writing or seal of a person with the signature, writings or seals which have been admitted or proved to the satisfaction of the Court to have been written or made by that person. The Court may rely upon its own comparison of signatures, writing or seal. There is no legal bar to the Court for using its own eyes to compare the disputed signature, writing or seal with the admitted signature, writing or seal under Section 73 of the said Act. Thus, the Trial Court after careful comparison of Ex A3 to A6 with Ex A1, came to the conclusion that the signatures found in Ex A1 and Exs A3 to A6 are not one and the same and they are not tallying with the admitted signature of the 1st defendant.”

69. He also relies on the decision of this Court Arul Jothi & Co., rep. by its Partner M.Chinnasamy-v- Sri Shanmugha Trading Co., rep by its Partner M.Thangavelu(1998 (1) CTC 432)
wherein this Court has held that’ lower Courts compared disputed signatures with admitted signatures to hold that acknowledgment letter was signed by one partner and such comparison by Court is valid and correct.’
70. Added further, he brings it to the notice of this Court to the decision reported in D.Pandi-v- The Dhanalakshmi Bank Limited by its Manager(2001 (2) CTC 12)wherein this Court has held that’ Section 73 of Evidence Act enables Court to compare disputed and admitted signature and the Court can also call upon party disputing his signature to writ any words or figures in Court for comparison purposes and that the trial Court did not commit any error in comparing signature and on comparison by High Court signature proved to be identical.’

71. On the side of the respondent/plaintiff, reliance is placed on to the decision reported in Central Bank of India-v- Antony Hardware Mart(2006(3) CTC 39) wherein it is held that ‘whether or not expert opinion is available, the Court is empowered to compare disputed signature with admitted signature and come to independent conclusion and in cases, especially where, defendant denies all signatures and attempts to defeat plaintiff claim, Court can compare signatures and give its finding and it is not necessary that plaintiff should take steps to get signatures compared by an expert.’

72. In Ex B3 below, the signature of Ameena Bee and there is one dot is seen. But no such dots are seen after the signature of the donor in Ex B1 and Ex B2 documents. Significantly, the trial Court has come to the definite conclusion that in the admitted signature the signature is seen as “Ameena Bee” but in the disputed signature it is seen as “Amana Bee” and therefore, it is held that the signature found in Exs B1 and B2 documents are not that of Ameena Bee.

73. It is true that the Court of Law cannot be an expert and base its conclusion merely of comparison of signature by itself. But in the instant case on hand, the trial Court had definitely compared the signatures in the light of other admitted evidence on record and therefore, the said action of the trial Court cannot be found fault with since by Section 73 of the Evidence Act. A Court of Law is well within its power to compare the disputed writings of the person with other writings which are admitted or proved to be the writings. Though, generally, a Court of Law will be hesitant to use its own eyes and merely on the basis of comparison decide an issue between the parties centering round in writing or signature of a person.

74. Coming to the contention of the appellants that the respondent/plaintiff has not properly valued the suit for the purpose of Court Fee and Jurisdiction, it is to be pointed out that the plaintiff as P.W.1 in her evidence has stated that she has some articles in the second item of the suit property and that she has resided in her husband’s house and in her mother’s house, after marriage and that she has not mentioned the details of the articles in the plaint. Ex A1 series are the telephone bills in the name of the respondent/plaintiff wherein the address of the second items of the suit property is found. The telephone is in the name of P.W.1(respondent/plaintiff).

75.However, the appellants/defendants deny the version of the respondent/plaintiff that she has been in joint possession of the suit properties. According to the appellants/defendants, their mother Ameena Bee has given 1 and 2 items of suit properties through Ex B1 and Ex B2 memorandum of declaration of ‘HIBA’ ‘ and they have accepted the gift and delivery of possession has been completed and since then, the appellants/defendants 2 to 5 have been in exclusive possession and enjoyment of the same till date as rightful owners and patta, water and sewerage and other revenue records in Item Nos.1 and 2 have been changed and it stands in the name of defendants 2 to 5 and therefore, the respondent/plaintiff is out of possession of Item Nos. 1 and 2 of the suit properties and therefore, the suit must be properly valued and proper court fee has to be affixed by the respondent/plaintiff.

76. In support of the contention that the Court Fee of Rs.200/- paid by the respondent/plaintiff under Section 37(2) of Tamil Nadu Court Fees and Suit Valuation Act 1955 is correct, the learned counsel for the respondent/plaintiff relies on the decision of Lakshmi Ammal -v- K.M.Madhavakrishnan (AIR 1978 Supreme Court 1607)wherein it is held that ‘plaintiff alleging that she is in joint possession and seeking partition and separate possession of her half share in the suit properties as heir of deceased, the Court Fee is payable under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act 1955’ and also learned counsel for the respondent/plaintiff cites the decision reported in Neelavathi-vs- N.Natarajan(AIR 1980 Supreme Court 691)wherein it is held that ‘all material allegations in plaint should be construed and taken as a whole’. In this connection, this Court points out in the decision reported in ‘ Nori Srirama Sastri-v Nori Lakshmidevamma (AIR 1955 Andhra 200)wherein it is held as follows:
“For ascertaining the court fee payable on a plaint the terminology used in the plaint is not of much relevance but it is the substance that matters. A plaintiff by a clear device and camouflage cannot evade court fee if in substance the relief he asks for falls under one or other of the provisions of the Court Fees Act.’

Also, it is well settled that in a suit for partition, the plaint allegations are deciding factors as regards the payment of court fee and indeed, the plaint should be carefully examined to see whether the substance of the plaint allegation amounts to ouster of the plaintiff from all any of the joint properties. In a case of joint family properties, the rule seems to be that Ad valorem fee is payable only whether the plaintiff has no possession of any part of the family properties and his right as a co-parcener has been denied by the Manager or other members in possession. There cannot be exclusion in respect of particular items by reason of other members claiming them as their exclusive and separate properties.

77. As far as the present case is concerned, the appellants/defendants 2 to 5 in respect of item Nos.1 and 2 have paid water and sewerage taxes and patta and revenue records stands in their name and they have claimed exclusive possession and enjoyment of the said properties , by virtue of Exs B1 and B2 memorandum of declaration of ‘HIBA’. Therefore, it is quite candidly clear that the respondent/plaintiff is clearly out of possession of suit properties Item Nos.1 and 2 and therefore, the payment of fixed Court fee of Rs.200/- to be paid by her before the trial Court in the plaint is not proper and instead she has to value the plaint as per Section 37(1) of the Tamil Nadu Court Fees and Suit Valuation Act 1955 and to pay necessary court fee. The Registry is directed to collect the deficit Court fee to be paid by the respondent/plaintiff under Section 37(1) of the Tamil Nadu Court Fees and Suit Valuation Act 1955 after deducting the amount already paid. Likewise, the appellants are also directed to value the plaint in this appeal accordingly and the Registry is directed to collect the payment of deficit Court fee in this regard as per Section 37(1) of Tamil Nadu Court Fees and Suit Valuation Act 1955 .

78. Since the gift through Exs B1 and B2 have not been proved to the satisfaction of this Court in regard to Item Nos.1 and 2 of the suit schedule properties, this Court comes to the resultant conclusion that the respondent/plaintiff is entitled to her 1/6th share in respect of the suit Item Nos.1 and 2 of the properties and inasmuch as , Ameena Bee, during her life time has gifted the jewels to the defendants and to others and since these jewels are not with them as specifically pleaded in their written statement and also as spoken to by the witness examined on the side of the defendants, this Court
comes to the resultant conclusion that the respondent/plaintiff is not entitled to the relief of her 1/6th share in respect of item No.3 and these points are answered accordingly.

79. In the result, the appeal is dismissed . The appellants are directed to pay the proper Court fee under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act 1955 and also the respondent/plaintiff is also directed to pay the proper Court Fee under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act 1955.( after deducting the amount already paid in the plaint). The Registry shall take appropriate steps in this regard and to draft the decree. Considering the facts and circumstances of the case, there shall be no order as to costs. C.M.P.No.6655 of 2002 is closed.

30-12-2009
Index:yes
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sg
To Registrar, City Civil Court, Chennai

M.VENUGOPAL,J
prm/sg PRE DELIVERY
JUDGMENT in
A.S.NO.580 of 2002

30-12-2009 predePRE DELIVERY JUDGMENT IN A.S.No.580 of 2002
To
The Hon’ble Mr.Justice M.VENUGOPAL

Most respectfully submitted
P.A.

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