2018 (8) TMI 2163 - HC - Indian Laws

Suit for possession and mesne profits filed by the respondent/plaintiff with respect to the suit property - Section 96 of the Code of Civil Procedure, 1908 (CPC) - validity of oral gift/Hibba by Laiq Ahmed to his brother, the appellant/defendant - Reliability of unregistered documents by the respondent/plaintiff - HELD THAT - Trial court has disbelieved the case of the appellant/defendant that the suit property was gifted to the appellant/defendant by his brother Laiq Ahmed - the reasoning and conclusions of the trial court is agreed because trial court has referred to the fact that the stand of the suit property being gifted to the appellant/defendant was taken up for the first time only in the written statement and no such case was taken up by the appellant/defendant when he gave a Reply dated 24.4.2008 (Ex. PW1/O) to the Legal Notice dated 16.4.2008 (Ex. PW1/N) sent by the respondent/plaintiff - the conclusion of the trial court that appellant/defendant has failed to prove that the suit property was gifted to him by his brother is agreed. Whether respondent/plaintiff can rely upon the unregistered documents dated 20.2.2008 being the Agreement to Sell (Ex. PW1/F), General Power of Attorney (Ex. PW1/G), Affidavit (Ex. PW1/H), Will (Ex. PW1/I), Receipt (PW1/J) in view of the Act 48 of 2001 becoming effective from 24.1.2001 and by which Act, documents such as agreement to sell cannot be looked into for conveying the title of part performance under Section 53A of the Transfer of Property Act, 1882 of the property unless the same are duly stamped and registered? - HELD THAT - Trial court in this regard has held that the judgment of the Supreme Court in the case of Suraj Lamps Industries Pvt. Ltd. Vs. State of Haryana and Anr. 2011 (10) TMI 8 - SUPREME COURT being only prospective in nature and therefore will not affect the validity of the subject documents executed in 2008, however this reasoning is questionable, but the subject suit for possession still had to be decreed because respondent/plaintiff can definitely be said to be suing as an attorney for and on behalf of the owner Laiq Ahmed, and Laiq Ahmed is not in any manner objecting to the respondent/plaintiff taking possession of the suit property. Respondent/plaintiff therefore clearly is held to have an entitlement to take possession of the suit property, not only on behalf of the Laiq Ahmed but also because he had a better title to possession of the suit property than the appellant/defendant. Respondent/plaintiff therefore clearly is held to have an entitlement to take possession of the suit property, not only on behalf of the Laiq Ahmed but also because he had a better title to possession of the suit property than the appellant/defendant - Trial court therefore was justified in decreeing the suit for possession and mesne profits. There is no merit in the appeal and the same is therefore dismissed.

Summary

Issues:
Validity of oral gift/Hibba by Laiq Ahmed to his brother, the appellant/defendant.
Reliance on unregistered documents by the respondent/plaintiff.

Analysis:

Validity of oral gift/Hibba:
The respondent/plaintiff claimed ownership of the suit property based on documents showing purchase from Laiq Ahmed, who allegedly acquired it from Islauddin Safi. The appellant/defendant, Laiq Ahmed's brother, asserted that the property was gifted to him orally in 1997. However, the trial court found the appellant's claim unsubstantiated as it was raised for the first time in the written statement, lacking details of witnesses or circumstances. The court noted the absence of names of witnesses in the appellant's evidence, leading to the dismissal of the gift claim. The High Court concurred with this finding, upholding the trial court's decision.

Reliance on unregistered documents:
The respondent/plaintiff relied on unregistered documents dated 20.2.2008, including an Agreement to Sell, General Power of Attorney, Affidavit, Will, and Receipt. The appellant/defendant argued that post the enactment of Act 48 of 2001, such documents could not convey property title unless duly stamped and registered. The trial court, citing the Supreme Court judgment in Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana, held the Act as prospective and validated the 2008 documents. The High Court, while questioning this reasoning, affirmed the trial court's decree for possession and mesne profits. It emphasized the respondent/plaintiff's entitlement to possession as an attorney for the owner, Laiq Ahmed, who did not object to the suit. Consequently, the High Court upheld the trial court's decision, dismissing the appeal.

In conclusion, the High Court dismissed the appeal, affirming the trial court's decree for possession and mesne profits in favor of the respondent/plaintiff. The judgment highlighted the lack of merit in the appellant/defendant's arguments regarding the oral gift claim and the validity of unregistered documents, ultimately upholding the respondent/plaintiff's right to possession based on the established legal entitlement.