1938 (8) TMI 21 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the 1915 gift deed (hiba-bil-iwaz) to Mt. Ghulam Aisha.
2. Whether the properties were in possession of Mt. Ghulam Aisha or Haji Muhammad.
3. Whether the suit was time-barred by adverse possession.
4. Ownership of the movable property (hundis) found in Mt. Ghulam Aisha's possession.

Issue-wise Detailed Analysis:

1. Validity of the 1915 Gift Deed (Hiba-bil-iwaz):
The appellant contended that the lower court erred in upholding the 1915 gift deed as a pure hiba after determining it failed as a hiba-bil-iwaz due to the void marriages of Mt. Ghulam Aisha with Haji Muhammad. The court noted that the deed was registered and possession was transferred, which are essential elements of a valid gift under Mahomedan law. The court found no substance in the argument that the lower court made a new case for the plaintiff, as the transaction was consistently relied upon as a valid gift from the beginning. The court referenced legal precedents indicating that a transaction described as a hiba-bil-iwaz necessarily includes the allegation of being a hiba valid under Mahomedan law.

2. Possession of Properties:
The appellant argued that the properties were never in Mt. Ghulam Aisha's possession but remained with Haji Muhammad until his death. The court examined extensive documentary evidence, including the deed itself, which recited that Haji Muhammad had given up possession to Mt. Ghulam Aisha. Subsequent documents and agreements showed Haji Muhammad acting as Mt. Ghulam Aisha's attorney, reinforcing the transfer of possession. The court found the appellant's evidence vague and insufficient to counter the clear intention and actions of Haji Muhammad to divest himself of ownership and possession.

3. Time-barred by Adverse Possession:
The court held that the plaintiff's claim was barred by adverse possession regarding the properties covered by the 1915 deed. The court noted that the deed's registration and subsequent mutations in the Record of Rights established a presumption in favor of Mt. Ghulam Aisha's possession. The court found that the plaintiff could not succeed in claiming properties in Mt. Ghulam Aisha's possession at the time of Haji Muhammad's death, as the suit was for partition of properties left by the deceased.

4. Ownership of Movable Property (Hundis):
The appellant contended that the hundis found in Mt. Ghulam Aisha's possession were actually Haji Muhammad's property, with Mt. Ghulam Aisha acting as a benamidar. The court found no evidence to support this claim, noting that Mt. Ghulam Aisha had her own substantial funds and extensive dealings in hundis. The court emphasized that for a transaction to be held benami, it must be shown that it was for the benefit of the alleged true owner, which was not the case here. The court upheld that the hundis were Mt. Ghulam Aisha's property and not part of Haji Muhammad's estate.

Conclusion:
The court dismissed the appeal, affirming the lower court's judgment that upheld the 1915 gift as a valid hiba, recognized the transfer of possession to Mt. Ghulam Aisha, and found the suit time-barred by adverse possession. The court also confirmed that the hundis were the property of Mt. Ghulam Aisha and not part of Haji Muhammad's estate. The appeal was dismissed with costs.