Rasheed Khan vs Sheikh Kabir on 24 April, 2017

Madhya Pradesh High Court

Rasheed Khan vs Sheikh Kabir on 24 April, 2017
WP-8777-2015
(RASHEED KHAN Vs SHEIKH KABIR)

24-04-2017
ORDER

(24.04.2017.) Per : Sujoy Paul J.

This petition filed under Article 227 of the Constitution impugns the validity and propriety of order
dated 5.5.2015 whereby the application filed by the petitioners/ Defendants No.1 and 2 under
section 151 CPC, has been dismissed by the trial court and an unregistered and unstamped
document i.e “Hibanama†has been held to be admissible in evidence.

2. In short, the relevant facts are that respondent No.1/ plaintiff, instituted a suit claiming relief of
declaration and permanent injunction to the effect that he is owner and in possession of the suit
house on the strength of Hibanama dated 5.6.1980. The petitioners filed the written statement and
opposed the claim of the plaintiffs. It is averred in written statement that no Hibanama has ever
been executed by Shri Bashirullah. The right, title and interest claimed by the plaintiff over the suit
property was denied.

3. The petitioners filed an objection regarding admissibility of said Hibanama on 16.4.2015

(Annexure P/4). Shri Sankalp Kochar, learned counsel for the petitioner by placing reliance on
Hibanama (Annexure P/3) submits that said document is not a memorandum of remembrance of
Hiba, which was orally made by Mohd. Bashirullah- the donee of the property. He submits that the
said document was inadmissible in evidence and could not have been allowed to be exhibited by the
trial court in view of the categorical bar under section 17-A of the Registration Act.

4. Shri Kochar submits that the court below has erred in rejecting the said objection by impugned
order dated 5.5.2015. It is urged that the order of court below runs contrary to the judgment of the
Supreme Court in Hafeeza Bibi and others Vs. Shaikh Farid-(AIR 2011 SC-1695). He submits that
said judgment has no adverse application in the facts and circumstances of the instant case.

5. By taking this court to the contents of “Hibanama†, it is contended that it creates an interest
in favour of respondent No.1/ plaintiff and since interest is created by the said document, which is
contemporaneously written then there is no iota of doubt that the said document is compulsorily
registerable and is inadmissible in evidence in absence of its registration.

6. Shri Kochar during the course of the arguments relied on section 2 of the Transfer of Property
Act. He placed reliance on section 122 and 123 of the said Act by contending that the Hibanama was
compulsorily registrable and, in absence thereto, it cannot be marked as exhibit. He placed reliance
on the judgments Kishore Kirtilal Mehta and others Vs. Lilavati Kirtilal Mehta Medical Trust and
others-2007(10) SCC-21, K.G.Shivalingappa and others Vs. G.S.Eswarappa and others-(2004) 12

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 Rasheed Khan vs Sheikh Kabir on 24 April, 2017

SCC 189 and Omprakash Vs. Laxminarayan and others -(2014) 1 SCC 618.

7. Per contra, Shri Sahu, learned counsel for the respondents supported the impugned order. He
placed reliance on Hafeeza Bibi (supra). It is submitted that as per section 129 of the Transfer of
Property Act, the Hibanama was not required to be registered. The court below has not committed
any legal or jurisdictional error and, therefore, no interference can be made. In support of his
contention, he relied on Rasheeda Khatoon Vs. Ashiq Ali-2015(1) MPLJ-521, Hafeeza Bibi and
others Vs. Shaikh Farid- AIR 2011 SC 1695, State of UP and others Vs. Rakesh Kumar Keshari and
another-AIR 2011 SC 1705, Ajijanbai Vs. Abdul Shakoor-1984 MPWN-78, State of M.P Vs. Bhagwan
Singh-1984 MPWN-79, Abdul Habib and others Vs. Abdul Baddu-1983 RN 264, Dinbandhulal Vs.
State of M.P and others-1983 RN-267, Ghulam Ahmad Sofi Vs. Mohd. Sidiq Dareel and others- AIR
1974 Jammu and Kashmir-59, Mohammed Zarif Vs. Union of India-2002(4) MPLJ-359, Narendra
Kumar Singore Vs. State of M.P-2002(4) MPLJ 361, Md, Hesabuddin and others Vs. Md
Hasaruddin and others- AIR 1984 Gauhati-41.

8. No other point is pressed by learned counsel for the parties.

9. I have heard learned counsel for the parties and perused the record.

10. The bone of contention of Shri Kochar, learned counsel for the petitioner is that if the Hibanama
in question is only a recital of a prior oral gift then such deed does not require compulsory
registration but in the present deed, for the first time, the rights are created and accrued. Hence,
Hibanama is compulsorily registrable. He relied on the judgment of Omprakash (supra) which is not
related with Mohammedan Law. In the case of K.G.Shivlingappa (supra), the Apex Court considered
the question of compulsory registration of a deed relating to Hindu Law. Hence, this judgment
cannot be pressed into service. However, it is noticed that the principle laid down in the said case is
sought to be applied by Shri Kochar in the instant case. In the aforesaid case, the partition deed was
reduced to writing in a form of document which is intended to be evidence of partition, it was held
that it is compulsorily registrable.

11. The question regarding registration of gift or Hiba in Mohammedan Law was considered by the
Supreme Court in the case of Hafeeza Bibi (supra). In the case of Hafeeza Bibi (supra), the judgment
of Andhra Pradesh High Court was called in question before the Supreme Court. The matter
travelled from the trial court. A suit was filed before the trial court. The trial court framed four
issues. The issue relevant for the present purpose was whether Hiba in question is proper, valid and
binding on the plaintiffs. The trial court after recording evidence and on hearing the parties,
answered issue No.2 in affirmative and held that plaintiffs were not entitled to the shares claimed in
the plaint. By judgment and decree dated 27.4.1988 the trial court dismissed the plaintiffs' suit. The
judgment and decree was called in question before the High Court. The basic contention before the
High Court was that the gift in question was a written document and it was compulsorily required to
be registered and stamped and in absence thereof, the gift deed could not be accepted or relied upon
for any purpose and such registered gift deed would not confer any title upon the defendant No.2.
High Court was persuaded by the argument and held that unregistered gift deed would not pass any
title to defendant as pleaded by him. Accordingly, the High Court set aside the order of the trial

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 Rasheed Khan vs Sheikh Kabir on 24 April, 2017

court and remitted the matter back for the purpose of passing a preliminary decree. In Hafeeza Bibi
(supra) the Apex Court has taken stock of various judicial pronouncements on the subject. A catena
of judgments of various High Courts from 1922 were considered. The judgment of Calcutta High
Court in the case of Nasib Ali vs. Wajed Ali, reported in AIR 1927 CAL 197 and judgment of Andhra
Pradesh High Court in the case of Inspector General of Registration and Stamps, Govt. of
Hyderabad vs. Smt. Tayyaba Begum, reported in AIR 1962 A.P. 199 were also considered by the
Supreme Court. Calcutta High Court in the case of Nasib Ali (supra) opined that a deed of gift by a
Mohammedan is not an instrument effecting, creating or making the gift but a mere piece of
evidence. This is so opined by the Apex Court in para 19 of the judgment in Hafeeza Bibi (supra). In
para 21 of Hafeeza Bibi, the Apex Court dealt with the Full Bench judgment of A.P. High Court in the
case of Smt. Tayyaba Begum (supra). After dealing with various other judgments on the subject, the
Apex Court opined that Court is unable to approve the view taken by A.P. High Court in the case of
Smt. Tayyaba Begum and approved the view of Calcutta High Court in the case of Nasib Ali (supra).
In the course of reasoning, the Apex Court considered yet another judgment delivered by High Court
of Kerala in the case of Makku Rawther's Children: Assan Ravther and others vs. Manahapara
Charayil, reported in AIR 1972 KERALA 27. Justice V.R. Krishna Iyer (as His Lordship then was)
opined that “the logic of the law matters more than the judicial numbers behind a view.†The
Kerala High Court agreed with the finding of Calcutta High Court and disagreed with the finding of
Full Bench of A.P. High Court delivered in the case of Smt. Tayyaba Begum (supra).

12. As per the principles laid down in Hafeeza Bibi (supra), it is clear like noon day that in the
Mohammedan Law, for the purpose of determining whether the gift was Hiba, three essential
ingredients must be there. These are (i) declaration of gift by the donor, (ii) acceptance of the gift by
the donee and (iii) delivery of possession.

13. Learned counsel appearing before this court took a common stand that these three ingredients
are avaliable in the present Hibanama. They took diametrically opposite stand on the question of
requirement of compulsory registration of Hibanama. In para 29 of the judgment in Hafeeza Bibi
(supra) the Apex Court opined that “the distinction that if a written deed of gift recites the factum
of prior gift then such deed is not required to be registered but when the writing is
contemporaneous with the making of the gift, it must be registered, is inappropriate and does not
seem to us to be in conformity with the rule of gifts in Mohammedan Law.†In para 34 of the
judgment of Hafeeza Bibi (supra) the Apex Court, in the facts and circumstances of the case,
examined and found that the aforesaid three ingredients of declaration, acceptance and delivery are
available. Then it is opined that Nasib Ali (Supra) (decided by Calcutta High Court) is the correct
authority. In addition, in para 31 it is mentioned that Section 129 of Transfer of Property Act
preserves the rule of Mohammedan Law and excludes the applicability of Section 123 of T.P. Act to a
gift of an immoveable property by a Mohammedan. The Supreme Court approved the statement of
law reproduced in the said judgment by placing reliance on Mulla, Principles of Mohammedan Law
(19th Edition), page 120. In other words, it is held that it is not the requirement that in all cases
where the gift deed is contemporaneous to the making of the gift then such deed must be registered
under Section 17 of the Registration Act. It is held that each case depends on its own facts.

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14. The court below in the impugned order held that as per section 129 of the Transfer of Property
Act, Chapter of gift is not applicable on Mohammedans. It is further held that oral gift is reduced in
writing contemporaneously and hence as per the judgment of Hafeeza Bibi, the document does not
require registration. At the cost of repetition, it is condign to mention that in Hafeeza Bibi (supra),
the Apex Court has made it clear that in all cases where the gift deed is contemporaneous to the
making of the gift then such gift must be registered under section 17 of the Registration Act, is not a
rule of thumb. Each case needs to be considered on its own facts. In the said case, a declaration of a
donor was reduced in writing. It was accepted by the donee and then possession was handed-over.

15. In the present case, the Hibanama shows that all the three conditions aforesaid are satisfied. I
am satisfied that the contents of Hibanama shows that it was written contemporaneously and,
therefore, in my view, the court below has taken a plausible view which is in consonance with law
laid down in Hafeeza Bibi (supra).

16. In Rasheeda Khatoon (supra), the Apex Court followed the principles laid down in relation to
three essential features for a vaild Hibanama. The Apex Court has not taken a different view in
Rasheeda Khatoon. The real thrust in the case of Rasheeda Khatoon was on the question whether
the essential ingredients of the gift, as is understood in the Mohammedan Law, have been satisfied.
Thus, this judgment is of no assistance to the petitioner.

17. Shri Sahu, learned counsel for the respondents although relied on certain High Court judgments,
in my view, curtains are finally drawn on this issue by the Supreme Court in the case of Hafeeza Bibi
(supra). Thus, it is not necessary to separately deal with the judgments of the High Court relied
upon by Shri Sahu.

18. In the light of judgment of Hafeeza Bibi (supra), in my judgment, the view of court below is in
consonance with the legal position laid down in the said case. The distinction pointed out by Shri
Kochar, has no application as held in Hafeeza Bibi (supra) in para-29. It is also relevant to note that
the Apex Court by following the principle laid down in Nasib Ali (supra) allowed the appeal and set
aside the judgment of High Court.

19. On the basis of foregoing analysis, I am unable to hold that the impugned order suffers from any
jurisdictional error, procedural impropriety or perversity. The order cannot be said to be contrary to
law. Hence, interference under Article 227 of the Constitution is declined. Petition is dismissed.

(SUJOY PAUL) JUDGE MKL

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