Shamim Banu v. Abdul Hasim

1. This second appeal is filed under Section 100 CPC,1908 impugning the concurrent judgments of the courts below; of the trial court dated 12.5.2005 and the first appellate court dated 15.2.2007; by which the suit of the appellant-plaintiff for possession with respect to the property no.B-28, Welcome Colony, Seelampur, Kabootar Market, Shahdara, Delhi has been 2014:DHC:2654 dismissed. The defendant-respondent in the suit is the brother of the appellant-plaintiff.

2. Appellant-plaintiff as per the plaint claimed to have purchased this property on payment of consideration of Rs.1,50,000/-. Though the suit plaint does not state from whom the suit property is purchased, as per the set of documents which have been filed alongwith the suit, and which are dated 22.12.1999, plaintiff claims to have purchased this property from her mother Kaneez Fatma. In the year 2000, when the subject suit for possession is filed, appellant-plaintiff was 25 years of age, and meaning thereby, appellant-plaintiff claims at the age of 24 years to have paid Rs.1,50,000/- to her mother in December, 1999 for purchasing the suit property.

3. Respondent-defendant contested the suit and denied the ownership of the appellant/plaintiff as also of the mother of the parties Smt. Kaneez Fatma with respect to the suit property. It was pleaded that the suit property was in fact the property of the father of the parties late Sh. Mir Mohammad. The father was also the owner of another property bearing no. B-29, and both these properties by virtue of the settlement agreement dated 12.4.1993 were divided by the father Mir Mohammad between the two brothers i.e two sons of Mir Mohammad in the presence of as many as 8 witnesses. Respondent/defendant is one son of Mir Mohammad and the brother of the appellant/plaintiff.

4. The trial court framed the following issues in the present case. “Issue No.1 Whether the plaintiff is entitled to possession as prayed for?OPP Issue No.2: Whether there was any family settlement in respect of the suit property? OPD Issue No.3 Relief.”

5. Both the courts below have dismissed the suit on the ground that the documents which are relied upon by the appellant-plaintiff being the agreement to sell, power of attorney, Will etc proved and exhibited as Ex.PW1/2 to Ex.PW1/7 cannot be looked into because these documents do not amount to a sale deed for transfer of the suit property. So far as Faisalanama Ex.PW1/D-1 dated 12.4.1993 is concerned, the same has been accepted to be correct by the trial court, and which finding has not been disturbed by the first appellate court. 6.(i) In my opinion, though the courts below have arrived at the correct conclusions, however, the reasoning is not correct that the documents Ex.PW1/2 to Ex.PW1/7 being the agreement to sell, GPA, Will etc dated 22.12.1999 do not confer title. These documents can confer ownership rights in the suit inasmuch as these documents have been executed prior to 24.9.2001, when Act 48 of 2001 was enacted by the legislature amending Section 53 A of the Transfer of Property Act,1882 whereby after 24.9.2001, the agreement to sell in the nature of part performance was required to be registered and stamped. Since the documents in question are prior to 24.9.2001, the documents dated 22.12.1999 can confer title upon the appellant-plaintiff.

(ii) The question however is that was the mother of the parties owner of the suit property B-28 for her to have transferred title of the suit property B- 28 to the appellant. A reference to the evidence which is led in the court below shows that the appellant-plaintiff has not filed any proof whatsoever that the mother of the parties was the owner of the suit property no. B-28. Even when we look at the documents Ex.PW1/2 to Ex.PW1/7, they do not show as to how the mother of the parties Smt. Kaneez Fatma had become the owner of the suit property. Also, there is no proof filed by the appellantplaintiff of the suit property showing that the house-tax records are in the name of the mother Smt. Kaneez Fatma. Once the mother was not the owner of the suit property, then even assuming the documents dated 22.12.1999 have been executed in favour of the appellant-plaintiff by the mother, these documents cannot confer title in the suit property B-28 to the appellant-plaintiff. Though it would not be relevant, I would like to state that I doubt that the appellant who was 24 years of age when the documents were executed would have had with her a sum of Rs.1,50,000/- to pay her mother, and it may be noted that the documents dated 22.12.1999 only refer to consideration as having been paid, and which thus must be cash consideration, and therefore, it is not proved that the appellant-plaintiff had with her an amount of Rs.1,50,000/- and which amount was paid as consideration by her to her mother Smt. Kaneez Fatma.

7. In view of the fact that the Faislanama dated 12.4.1993 has been proved on record as Ex.PW1/D[1], and the fact that the appellantplaintiff has failed to prove on record that mother Smt. Kaneez Fatma from whom the appellant-plaintiff purchased the suit property was the owner, it is held that the mother Smt. Kaneez Fatma was not the owner of the suit property and hence appellant-plaintiff cannot be the owner of the suit property for claiming any title to the suit property.

8. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs. MAY 19, 2014 VALMIKI J. MEHTA, J. ib