Judgment:
B.K. Somasekhara, J.
1. The judgment of the learned District Judge, Krishna district, Machilipatnam in A.S.No. 101 of 1986 and the cross objections dated 27-2-1987 are in challenge in this appeal. Appellants are the Defendants Nos. 1 and 2 in O.S.No. 90 of 1975 and the Respondents No. 1 to 7 were the Plaintiffs Nos. 2 to 8 in the suit and Respondent No. 1 is the son of Plaintiff No.l Ibrahim Beigh. Respondents N0.8 and 9 are the legal representatives of Plaintiff No. 8, who died pending suit. The convenience warrants the reference to the parties as Plaintiffs and Defendants as they occupied in the trial Court.
2. Originally, Plaintiff No. 1 viz., Ibrahim Beigh filed the suit and on his death the other Plaintiffs were brought on record as his legal representatives. The Defendants No. 2 and 3 Jaibunnisa and Sabrunnessa are the sisters of Plaintiff No.l. Khadar Baigh and Khatija Bibi are their parents. Defendant No. 1 is the husband of Defendant No. 2. Plaintiffs No. 2 and 8 are the sons and Plaintiffs No. 3 to 7 are the daughters of the 1st plaintiff. The suit was filed for declaration to declare that the gift deeds dated 16-2-1963 and 29-4-1963 executed by Khatija Bibi in favour of Defendant Nos. 2 and 1 respectively are sham, nominal and not binding on Khatija Bibi or the plaintiffs and for partition and separate possession of the plaintiffs' half share in the Plaint 'A' schedule property and for recovery of an amount of Rs. 504/- being the value of 12 bags of paddy due for the year 1971 payable in January, 1972 with interest on that amount at the rate of 51 /2 per cent per annum from the date of suit till the date of recovery and for future mesne profits, etc. The suit was resisted by Defendant Nos. 1 and 2 and Defendant No. 3 remained ex parts. The parties went to trial after the settlement of issues, where in the wife of Plain tiff No. l was examined herself as P.W.I and four other witnesses as per P.W.2 to P.W.5 and got marked as many as 21 documents as per Exs. A-l to A-21 for the plaintiffs and the Defendants Nos. 1 to 3 examined themselves as D.Ws. l to 3 and witnesses as per D.W.No.4 to 10 respectively and got marked Exs.B-1 to B-23 respectively. After hearing both sides and on the basis of the materials before him, the learned District Munsif, Gudivada has decreed the suit as prayed for with certain directions. The aggrieved defendants took up the matter in appeal before the learned District Judge who, after hearing both sides and on considering the materials before him including the judgment and decree passed by the trial Court, dismissed the appeal and at the same time allowed the cross-objections filed by Respondents Nos.l to 7 in appeal with costs. The judgment and decree of the trial Court was modified to the extent of allowing the cross-objections. That is how, the present appeal has come up to be presented to this Court.
3. The Plaint 'A' schedule property is an agricultural land bearing R.S.No. 10 with an extent of 2 acres and 0.809 hectares situated at Lankadoddi, Hamlet of Dokiparru village in Krishna district. The Plaint 'B' schedule properties are movable properties comprising wearing clothes viz., shirts and pants. It is not in dispute that Plaintiff No. 1 Ibrahim Beigh was the absolute owner of Plaint 'A' schedule property and he gifted it to his mother with absolute rights for her maintenance. She died on 18-1-1972. It appears that she was in possession and enjoyment of the land till she died. It appears that one Cherukuri Srinivasa Rao filed O-S.No. 94 of 1961 against Khatija Bibi and the 3rd defendant on the foot of a promisory note for recovery of certain amounts said to have been borrowed by them. It is alleged that such promisory note was forged one and to avoid the decree, the Defendants Nos. 1 and 2 instigated Khatija Bibi to execute two gift deeds in their favour nominally to safeguard her property from the creditor viz., Cherukuri Sreenivasa Rao from being operated in case a decree is passed against her in O.S.No. 94 of 1961. The gift deed executed in favour of Defendant No. 2 is dated 16-2-1963 to the extent of 50 cents in Plaint 'A' schedule property. The gift deed executed by her in favour of Defendant No.l is dated 29-4-1963 to the extent of one acre and 50 cents out of Plaint 'A' schedule property. It was alleged that Defendants Nos.l and 2 had agreed to reconvey the Plaint 'A' schedule property gifted to them to Khatija Bibi after the termination of litigation between herself and Cherukuri Sreenivasa Rao. It is pleaded that in spite of the gift deed executed in favour of Defendants Nos. 1 and 2, Khatija Bibi continued to be in possession of the said lands covered by the gift deeds till her death and paid taxes. It was further pleaded that the gift deeds executed in favour of Defendant Nos. 1 and 2 were never gifted to be acted upon and in fact they were never acted upon. It was pleaded that the gift deeds were sham and nominal documents and they did not create any right in defendants Nos. 1 and 2 and they were void under the Mohammedan Law as there was no delivery of possession of the properties under the gifts and as they were not accepted by Defendant Nos. 1 and 2. Ultimately, O.S.No. 94 of 1961 was dismissed and the appeals to Subordinate Court and the High Court in regard to that came to be dismissed, thus making the decision of the trial Court final. It is alleged that the Courts held that the promisory note said to have teen executed by Khatija Bibi in favour of Cherukuri Sreenivasa Rao was a forged one.
4. After the termination of the litigation between Khatija Bibi and Cherukuri Sreenivasa Rao, it appears that Khatija Bibi requested Defendant Nos. 1 and 2 to reconvey the Plaint 'A' schedule property in her favour intimating them that they had been executed nominally. It is alleged that they agreed to reconvey the same to Khatija Bibi but adopted dilatory tactics. In the meanwhile, Khatija Bibi died. Thereafter, it is alleged that Plaintiff No. 1 requested Defendant Nos. 1 and 2 to reconvey the property in his favour, he got the registered notices issued to them, they refused them and at the same time did not reconvey the Plaint 'A' schedule property in their favour. It appears that there was similar gift deed executed by Defendant No. 3 in favour of one Fazlullah Baig, her senior paternal uncle's son and even in regard to that, no possession was delivered to the said Fazlulla Baig and Defendant No. 3 continued in possession of the same. It is alleged that it was after the death of Khatija Bibi, Defendant Nos. 1 and 2 misappropriated the income on the Plaint 'A' schedule property which yields 20 bags of paddy per acre and two or three bags of green gram and black gram. It was pleaded that according to Mohammedan Law, the Plaintiffs were entitled to half share in the Plaint 'A' schedule property and also income out of it and that Defendants Nos. 2 and 3 were entitled to 1/4 th share each.
5. Defendant Nos. 1 and 2 denied that Khatija Bibi executed the gift deeds in their favour nominally and it was not intended to be acted upon and that they were not acted upon. On the other hand, they contended that they helped Khatija Bibi by providing required money to her for her pilgrimage to Macca, they looked after her welfare and therefore, the gift deeds were executed in their favour out of love and affection on the part of Khatija Bibi. They have also pleaded that the gift deeds were accepted, they were true, valid and binding on the plaintiffs. They further pleaded that they came into possession of the Plaint 'A' schedule property by virtue of the gift deeds and continued in possession in their own right and on their behalf and paid cists. They have denied the plea of Khatija Bibi having been continued in possession of all the properties after the execution of the gifts deeds, and stated that she also handed over the possession of the gift deeds to the defendants. At no time, she questioned the validity of the gift deeds. They have denied that Khatija Bibi requested to reconvey the property after the termination of the litigation between herself and Cherukur Sreenivasa Rao. They have denied all other allegations regarding the sham and nominal nature of the document not intended to be acted upon. They have also denied that the plaintiffs are entitled to any share of the properties, much less the crop or for any other relief claimed in the suit. They sought for dismissal of the suit with costs. They contended that the suit is bad for non-joinder of necessary parties.
6. The following issues and additional issues were settled:-
'(1) Whether Khatija Bibi was in possession of the Plaint 'A' schedule property till her death enjoying the income thereof?
(2) Whether defendants 1 and 2 instigated Khatija Bibi to execute the two suit gift deeds nominally in the circumstances stated in the plaint?
(3) Whether defendants 1 and 2 agreed to reconvey the suit properties to Khatija Bibi after the termination of the litigation with Cherukuri Sreenivasa Rao?
(4) Whether the suit gift deeds are inoperative and void for the reasons stated in the plaint?
(5) Whether Khatija Bibi demanded defandants 1 and 2 to reconvey the suit properties in her favour?
(6) Whether the 1st plaintiff has got a right to question the validity or otherwise of the suit gift deeds?
(7) What is the yield from the suit lands?
(8) To what relief?
Additional issue:-
'Whether the suit is bad for non-joinder of necessary and proper parties?'
All the issues were held in favour of the plaintiffs, except Issues Nos. 2 and 3. The learned District Judge framed the following points for determination:-
'(1) Whether respondents 1 to 7 who are plaintiffs 2 to 8 are entitled to a preliminary decree as granted by the lower Court?
(2) Whether the respondents 1 to 7 who are plaintiffs 2 to 8 are entitled to the suit costs as claimed in the cross-objections?
(3) To what relief?'
The learned District Judge modified the judgment and decree passed by the lower Court to the extent of allowing the corss-objections and the rest of the judgment and decree passed by the lower Court were confirmed.
7. Sri V.S.R. Anjaneyulu, learned Advocate for the appellants in addition to the grounds of appeal in the Memorandum of Appeal has raised specific contentions in the following manner:-
The learned District Judge was not justified in confirming the findings of the learned District Munsif in favour of the plaintiffs. The Courts below were wrong in appreciating the evidence on record leading to wrong inferences. The learned Judges both in the trial Court and the appellate Court wrongly accepted the evidence, which could not have been admissible, within the principles of Indian Evidence Act. The learned Judges of the Courts below were not right in acting upon the letters Exs. A-5 to A-7 although they are not proved in accordance with law. The learned Judges of the trial Court were wrong in allowing the plaintiffs' led evidence against the terms of the documents, Exs. A-2 and A-3 in spite of the bar under Section 91 of the Indian Evidence Act.
When there was no evidence supporting the contention of the plaintiffs regarding the execution of Exs. A-2 and A-3 are nominal, sham and not intended to be acted upon, etc., the learned Judges of the Courts below were wrong in depending upon the oral evidence, which by itself was not satisfactory. The learned Judges of the Courts below were wrong in accepting the case of the plaintiffs in regard to Exs. A-2 and A-3. The judgment and decree passed by the learned District Munsif, Gudivada and confirmed by the learned District Judge, Krishna are liable to be set-aside by dismissing the suit.
8. Sri Ramachandra Raju, learned counsel for the respondents has tried to totally support the judgment and decree of the Courts below by repelling all the contentions raised by Sri. V.S.R. Anjaneyulu, learned Advocate for the appellants.
9. The following points thus pose for determination:
(1) Whether Exs. A-2 and A-3 are-
(a) sham and nominal;
(b) not intended to be acted upon:
(c) not acted upon; and
(d) void under Mahommedan Law
(e) Whether the questions covered by (1) (a) to (d) are pure questions of law or questions of fact or mixed questions of law and fact? If the findings by the Courts below on them can be interfered with in a second appeal under Section 100 CPC?
(f) Whether the learned Judges of Courts below have committed any error in formulating any substantial questions of law or deciding them to lead to the findings and decisions in the case?
(g) Whether the findings of the learned Judges of the Courts below on issues were justified? If not which finding is not correct and deserves to be interfered with? To what extent?
10. Having due regard to the serious controversies raised by the learned advocates for both sides which are subjects of the points for determination, they were permitted to read the entire evidence recorded in the case to appreciate the arguments of the learned advocates to come to a correct decision in the matter. Such powers to examine the facts also in a second appeal is conceded in Sections 103 and 107 sub-clause (2)of C.P.C. It may not be taken as an expression at this stage that this Court is trying to interfere with the findings of facts of the Courts below which is yet to be examined at an appropriate stage
11. The evidence as a whole reveals clear facts thus; The relationship between the parties is admitted. Plaintiff No. 1 is the son of one late Khatijabibi. Defendants 2 and 3 are her daughters. Defendant No. 1 is the husband of defendant No. 2. The suit properties belonged to Katijabibi. Plaintiff No. 1 was the original owner of the suit properties covered by the document and he gave them to Katijabibi for her maintenance under the document Ex.A-1 dated 4-5-1953. She was in possession and enjoyment of the same atleast till the date of Exs. A-2 to A-4 out of which Exs. A-2 and A-3 are in challenge. It appears that she was getting the suit lands cultivated through the tenants. Plaintiff No. 1, Khatijababi and defendant No. 3 lived together in the same house till she died. She died on 18-1-1972. One Cherukuri Srinivasa Rao had filed O.S.94/61 based on a pronote for recover)' of money from Katijabibi and defendant No. 3. The pronote was challenged as a forged one. The suit was dismissed by the District Munsif. It was taken on appeal in A.S.27/63 which came up to be dismissed on 30-1-1963 as per the certified copy Ex. A-13 and it was further taken up to the High Court in second appeal which came to be dismissed on 30-6-1964 as per the certified copy Ex. A-14. The matter was remanded to the trial Court by the High Court and even thereafter the suit came to be dismissed as per the certified copy Ex. A-15 dated 20-3-1969. The defendant No. 1 is a Government employee serving in various places. The suit lands situate at a place other than the place of Katijabibi and also the places where defendant No.l was serving. The defendant No.l and 2 as husband and wife lived together. Khatijabibi and the members of her family including defendants 1 to 3 were on cordial terms till Khatijabibi died. Neither Khatijabibi not defendants 1 and 2 were in the actual possession of the suit lands which were being cultivated by tenants. The defendant No.l was delivering crops to Khatijabibi in regard to the suit lands till she died. It appears that plaintiff No. 1 was a drunkard and defendant No. 1 was paying him money for that purpose. These are the admitted and proved facts in this case of which the learned District Munsif has made note of and that appears to be not at variance even from the judgment of the learned District Judge. It is also in admission that Khatijabibi executed the gift deed Ex. A-3 dated 29-4-1963 in favour of the defendant No. 1 and Ex. A-2 gift deed dated 16-2-1963 in favour of defendant No. 2. She also executed Ex.A-4 a gift deed dated 29-4-1963 in favour of defendant No. 3. These three gift deeds A-2 to A-4 are in relation to different properties namely the lands belonging to Khatijabibi.
12. The Courts below have believed the case of the plaintiff that Exs. A-2 and A-3 were sham, nominal, not intended to be acted upon and actually not acted upon and Khatijabibi continued to be the owner of the same till she died and, therefore, the plaintiff is entitled to a decree as prayed for.
13. Mr. Anjaneyulu, the learned advocate for the appellants has made a very serious and sincere effort to dislodge such a finding by the Courts below. He has tried to do it both with the aid of facts in the case and also from the legal position which according to him operate on such facts as are brought out from the evidence. Mr. C. Ramachandra Raju, learned Advocate for the respondents, with equal effort has tried to dispel such contentions. Mr. Anjaneyulu postulated in his contentions the following circumstances:
(i) Exs. A-2 and A-3 are the gifts by a Muslim lady having the recital of delivering possession in favour of the defendants 1 and 2;
(ii) The possession of the gift deeds were delivered to defendants 1 and 2 which were lost or missed for the reasons given in the written statement and the evidence;
(iii) The defendants 2 and 3 came into possession of the suit lands and continued therein after Exs. A-2 and A-3 and till Khatijabibi died and till the suit was filed as they paid the land revenue, they collected the crops from the tenants and they enjoyed the properties as such;
(iv) Khatijabibi did not question the gift deeds Exs. A-2 and A-3 during her life time in any manner either by issuing notice or otherwise asserting her title over the suit properties;
(v) The pleadings and the proof on the part of the plaintiffs in regard to challenging Exhibits A-2 and A-3 above are at variance. Their evidence is totally opposed to the theory set up in the plaint. There was not even a slight indication from the evidence as a whole that defendants 1 and 2 had anything to do with Khatijabibi executing the gift deeds Exs. A-2 and A-3 to be a sham or a nominal document or not intended to be acted upon; and
(vi) Exs. A-2 and A-3 were actually acted upon. Ex. A-4, gifted in favour of defendant No. 4 (sic. 3) was not acted upon which was for different reasons and circumstances than the circumstances regarding Exs. A-2 and A-3.
14. Mr. Ramachandra Raju has pointed out that the evidence read as a whole supports the findings of the Courts below.
15. It is true that defendants 1 and 2 were never responsible in either instigating or influencing Khatijabibi to execute Exs. A-2 and A-3, as admittedly they were not present at the time of the document, they did not even know about it nor did they have any reason to do it. On the other hand, even according to P.W.I it was plaintiff No. 1, the son of Khatijabibi who took all the interest to bring out Exs. A-2 and A-3. That removes the positive influencing conduct of defendants 1 and 2 on the part of Khatijabibi to bring out Exs. A-2 and A-3. It is also true that Khatijabibi never challenged the documents till she died, not questioned defendants 1 and 2 in regard to the same either positively or with necessary implications. The plaintiff No. 1 who was a drunkard did not evince any interest in regard to the suit properties even after Exs. A-2 and A-3 till suit was filed. Therefore, Mr. Anjaneyulu is right in contending that these circumstances are in favour of the defendants 1 and 2 and against the plaintiffs. It is also pointed out by him from the evidence that Khatijabibi was never in possession of the suit lands after Exs. A-2 and A-3 and she put defendant No. 1 into possession of the same who was getting the lands cultivated through the tenants and collecting the produce. That also appears to be correct in view of the positive evidence in the case. There is the testimony of D.W.10, Village Munsif who has testified that defendant No. 1 was paying land revenue to the suit lands. However he has stated that it was on behalf of Khatijabibi. Exs. B-14 and B-23 are the receipts for payment of tax and the land revenue by defendants 1 and 2 ever since the year 1967. There is not even a scrap of paper showing that Khatijabibi paid any tax or land revenue subsequent to Exs. A-2 and A-3.
16. As rightly contended by the learned Advocate for the respondents it is not merely the above circumstances which determine the question of the nominal and sham nature of the transaction under the documents like Exs. A- 2 and A-3 which are not intended to be acted upon or not acted upon and it is the totality of the evidence in the case coupled with the other circumstances which should be examined and judged to arrive at a proper conclusion. To that extent, the learned advocate is correct.
17. The law relating to the challenge of the documents like Exs. A-2 and A-3 as above appears to be settled. Normally speaking, by virtue of Sections 91 and 92 of the Evidence Act, such documents cannot be challenged by producing oral evidence but an exception to that can be drawn from Section 92 only where any act which is proved which would invalidate any document would be an exception in proviso-I to Section 92 of the Act. The challenge of the document like Exs. A-2 and A-3 in the manner alleged is permissible in Saw. Sometimes a document which is challenged as a nominal and sham document is confused to be a benami transaction by using such a synonym to it. As to what is the real meaning and distinction between them and legal consequences, the Supreme Court has explained, in Sree Meenakshi Mills Ltd. v. I.T. Commr., 0044/1956 : [1956]1SCR691 . To read in their own word:
'30...........the word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a. transaction which is real, as for example, when A sells properties to B but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usally termed as benami. But the word 'benami' is also occasionally used perhaps not quite accurately, to refer to a sham transaction, as for example when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title not with standing the execution of the transfer deed. It is only in the former class of cases that it would be necessary when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid.'
This view has been reiterated by the Supreme Court in Union of India v. Moksh Builders and Financiers, : [1977]1SCR967 . While laying down the test determining such a question it has been held therein that the initial onus of proof regarding such a transaction lies on the person who sets up such a plea. But the law is that although the onus of establishing such a transaction is on the plaintiff where it is not possible to obtain evidence which conclusively establishes and rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. (Relied on) 0044/1956 : [1956]1SCR691 . The Supreme Court also explained the implication of the consequence of burden of proof of such a case as hereunder:
'The burden of proof is, however not static, and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side i.e., on the evidence on record. As has been held by this Court in Kalwa Devadattam v. Union of India, : [1963]49ITR165(SC) that where evidence has been led by the contesting parties on the question in issue, abstract consideration of onus are out of place, and the truth or otherwise of the case must always be adjudged on the evidence led by the parties. This will be so if the Court finds that there is no difficulty in arriving at a definite conclusion. In the present case the purchase of a house was held to be 'benami'.
(from paras 16 and 20 ) (Reliance placed on AIR 1954 SC 880)
18. These legal expressions in the precedents are taken shelter to impress that in a case like this the mere burden of proof may not bring out the truth. The parties are related and were on cordial terms till Khatijabibi died and acted in a particular fashion and manner perhaps having immense confidence and faith in each other and, therefore, no inference can be drawn for a positive result in such circumstances. Perhaps an in-depth probe into the totality of the circumstances from the materials on record is warranted. It is not the mere circumstances as above appearing in favour or against, which may determine the issues between the parties; it is the sum total of them with a humane probe into the matter as a circumstance by a reasonable and prudent man which is apparent to bring out the truth with the true probabilities flowing therefrom to arrive at the truth.
19. It is established that one Cherukuri Srinivasarao had filed a suit on a pronote against Khatijabibi and defendant No. 3 at the relevant time as detailed above. It was based on a pronote. It was challenged to be a forged one by them which they could successfully establish upto the High Court. Mr. Anjaneyulu, learned Advocate specifically points out that by the time Exs. A-2 and A-3 came into existence the suit had already been disposed of and, therefore, such a theory against the facts and conduct of the parties may not be correct atleast near or about the time, the time at which Exs.A-2 and A-3 came into existence. The suit of Cherukuri Srinivasa Rao was disposed of and the matter was taken in appeal to the first appellate Court and to the High Court more than once, it cannot be forgotten that in the similar circumstances Ex.A-4 also came into existence in regard to the property of defendant No. 3 who is also a party to the suit of Cherukuri Srinivasa Rao. Admittedly she sold the property to one Fazlulla Beigh, the younger brother of P.W.3 in order to screen the property from the decree of Srinivasa Rao. A categoric admission is made in this behalf in the testimony of defendant No. 3 herself. Defendant No.l himself has made such an admission in his testimony that defendant No. 3 has executed Ex.A-4 in favour of Fazlulla Beig for safeguarding her interests in the property. Therefore, the possibility of Khatijabibi executing Exs. A-2 and A-3 in favour of defendants 1 and 2 to screen the properties from the decree of the creditor Srinivasa Rao is a probability which cannot be lightly treated, particularly when she was executing such a document in favour of the defendants D-l and D-2 the son-in- law and daughter. In a situation like that the human conduct may not be beyond the realities. The execution of Ex. A-4 by defendant No. 3 In such a situation is an additional circumstance opposed to such a suit interest by screening the property from the clutches of the creditor Srinivasa Rao who is said to have filed suit based on the forged pronote. Therefore, such a circumstances is a strong one in favour of the plaintiffs.
20. The evidence of defendants 1 and 2 is not satisfactory regarding obtaining of the originals of Exs. A-2 and A-3 from Khatijabibi to show the conduct of acting upon the transaction and to accept the gift deed as a part of the ingradient of a Gift among Mahomedans. It is true that even the plaintiffs have not produced the originals of Exs. A-2 and A-3. Their explanation that they were taken by defendant No. 1 may not be improbable as he is a close relative of Khatijabibi who was actually looking after her interests and even encouraging plaintiff No. 1 to drink by paying money to him. Because defendant Nos. 1 and 2 are saying that they had actually come into possession of the originals of Exs. A-2 and A-3, the burden of proof as to why they are not with them is comparitively heavy on them. Their explanation that Ex. A-2 was lost and Ex. A-l (sic. 3) was taken away by plaintiff No. 1 is too unnatural under the circumstances. Admittedly no notice was issued by defendant No. 1 to plaintiff No. 1 if he had forcibly removed the document. Regarding the loss of other document also they have not exhibited any conduct at any relevant time. It was rightly pointed out by Shri. Ramachandra Raju that in respect of Exs. A- 2 and A-3 the patta of the lands continued to stand in the name of Khatijabibi till she died and even now it continues as such, thereby he proposes to establish that if the defendants 1 and 2 had come into possession of original gift deeds they were bound to make use of it to produce the same before the revenue authorities either to change the mutation in the patta or to make a record of their status of possession in regard to the suit lands. Admittedly no such conduct is exhibited. It is difficult to believe that persons like defendants No. 1 and 2 claiming to be the transferees of the title to Exs. A-2 and A-3 by virtue of the gift deeds by Khatijabibi would not have overlooked the importance of holding possession of the original documents and to use it when occasion arose. Therefore their explanation falls short of conviction. On the other hand the explanation of the plaintiffs in this regard has some force and commands acceptance. In other words, the circumstance that defendants 1 and 2 did not come into possession of originals of Exs. A-2 and A-3 is against them, and it is supporting the case of the plaintiffs that the documents were not intended to be acted upon or not acted upon. As already pointed out mutation in the pattas in regard to the suit properties are not changed in the name of defendants 1 and 2 in pursuance of Exs. A-2 and A-3. It is not their case that they made any attempt to get the mutation changed in their name and to get the patta in their name. Patently they have not come forward with any explanation for such a situation and that is also one of the circumstances which supports the case of the plaintiffs.
21. Khatijabibi was not in physical possession of the suit lands. Admittedly the defendants 1 and 2 were not present at the time of Exs. A-2 and A-3. Even from the testimony of D.Ws.5 and 6, they were cultivating the suit lands and prior to them some other tenants were cultivating the same. Therefore, there was no question of handing over of physical possession of suit lands by Khatijabibi to defendants 1 and 2 and as she herself did not have physical possession of the suit, lands. Therefore, the question is whether defendants 1 and 2 atleast got constructive possession of the same either by attornment in their favour in accordance with Section 109 of the Transfer of Property Act or by any other means. Although defendant No. 1 has testified that he came into possession of the suit land it is not clear as to when and how he came into possession in the place of the tenants. The only expression which is supporting him is the testimony of D.Ws.5 and 6 that when they approached Khatijabibi she asked them to pay the rent to defendant No. 1 which appears to be improbable, as even according to defendant Nos. 1 and 2, defendant No. 1 paid the rent or crop share to Khatijabibi till she died. It is unexplainable as to why defendant No. 1 should pay the produce grown in the suit land to Khatijabibi although defendant No. 2 was the owner in regard to the suit lands by virtue of Exs. A-2 and A-3 . To believe that defendant No. 1 paid all the crop share to Khatijabibi from out of the suit lands only to maintain her as by way of sympathy would be a tangential circumstance leading to absurd inference. On the other hand, he being the son-in-law of Khatijabibi might have collected the rent from the tenants and paid to Khatijabibi. If that is so he was only assisting the mother-in-law and nothing more than that. Such a circumstance may not be improbable having due regard to the good relationship among the close relatives. At any rate there is no circumstance which can be believed that the possession of the suit lands was handed over by Khatijabibi to defendants 1 and 2 either physically or constructively. In regard to the payment of land revenue although there is positive evidence to show that the defendant No. 1 actually paid the same in regard to the suit lands, the testimony of D.W.10 confirms that it was for and on behalf of Khatijabibi. Even the recitals in some of the documents mean that the payment of land revenue was either for Khatijabibi or on behalf of her if the meaning can be stretched further. At any rate, the recitals in the land revenue receipts and the testimony of D.W.10 did not indicate that such land revenue was being paid by defendants 1 and 2 in their own right. On the other hand, they did it with the clear animus that it was for the benefit of Khatijabibi. That again is a strong circumstance in favour of the plaintiffs. It is also indicated as rightly pointed out by the learned Advocate for the respondents that the defendant No. 1 being the son-in-law of Khatijabibi might have paid the land revenue on her behalf only to help her due to the reason that she was living a way and being a Government servant, he could have made easy arrangement to make the payment and obtain receipts.
22. Regarding the negative conduct of Khatijabibi in not paying the land revenue or in not arranging for cultivation etc., the circumstance that defendants 1 and 2 are her very close persons dispels such a circumstance operating against her. It is true that plaintiff No. 1 has also not paid any land revenue even after the death of Khatijabibi. He being admittedly a drunkard depending at the mercy of defendant No. 1 for his expenses could not have been better than that. His conduct in such circumstances cannot have any telling effect on the consequences.
23. Then comes the reason for Khatijabibi to gift the suit properties to the defendants 1 and 2. The defendants' theory is that it was done as a part of love and affection in addition to their helping Khatijabibi to have a pilgrimage to Macca on payment of certain amounts. The learned District Munsif has demonstrated satisfactorily as to how this theory would be improbable. There appears to be no dispute that Khatijabibi had a pilgrimage for Macca. But it is not very clear whether she did it either near about the time of Exs. A-2 and A-3 or at a time far beyond that. It is found that there are no recitals is Exs. A-2 and A-3 about the nature of help rendered by defendant Nos. 1 and 2 for the pilgrimage of Khatijabibi to Macca. On the other hand it is found that the family expenses of defendants 1 and 2 were increasing as they had six children as on that date and the salary of defendant No. 1 was insufficient even for their existence, it is in the evidence that Khatijabibi required six to eight thousand rupees for her pilgrimage to Macca and it was improbable that defendant No.l would be able to collect so much of amount with his salary of Rs. 300/- per mensem at the relevant time. It is their case that defendant No. 1 gave Rs. 4,000/- to Khatijabibi whereas defendant No. 2 pledged her gold bangles and paid Rs. 1,200/- to her. This has no support from any independent material apart from the self-interested testimony of defendants 1 and 2. it is also not demonstrated as to the incapacity of Khatijabibi to help herself financially to go to Macca at the relevant time. At any rate even assuming that defendants 1 and 2 had helped Khatijabibi with some finance to have the pilgrimage to Macca, it is not proved with probability that at the relevant time they had raised about six to eight thousand rupees to her for the purpose and that could have been the consideration for her special affection or concern for them to go to the extent of executing the gift deeds Exs. A-l and A-2 in their favour.
24. Admittedly defendants 2 and 3 have other lands also in respect of which they were making payment of land revenue as spoken to by D.W.10, Village Munsif, in addition to the payment of land revenue in respect of the suit lands. Admittedly the suit properties belonged to plaintiff No. 1 and he gave them to Khatijabibi for her maintenance. In such a situation it is highly improbable that the mother would choose the son-in-law and the daughter to gift the same properties which were given to her by way of maintenance by her son plaintiff No.l, unless there were strong reasons to exclude plaintiff No.l from acting such a gift. No other special reason is pleaded or proved for Khatijabibi to choose defendants 1 and 2 as against her son plaintiff No.l. To believe that Khatijabibi disowned her son for the gift just because he was a drunkard would be a travesty of the principal human relationship. She would not have been ungrateful to the son in doing that after getting such properties from her son under Ex. A-l by way of her maintenance. When she got those properties for her maintenance it is unbelievable that she would part with them in favour of the son-in-law and the daughter depriving herself of her sustenance by way of maintenance. It is nobody's case that defendants 1 and 2 undertook to maintain Khatijabibi in lieu of Exs. A-2 and A-3 or that they did it. Therefore, this circumstance is also in favour of the plaintiffs and against the defendants regarding the nature of Exs. A-2 and A-3.
25. There is a very strong circumstance in favour of the plaintiffs corroborating the above circumstance that impending the decision in the pending litigation between Cherukuri Srinivasarao and Khatijabibi and defendant No. 3 such documents came into existence, it is the admitted document Ex. A-4 executed by defendant No. 3 in favour of Fazlulla Beig which is actually and truly not at all acted upon and brought out only to screen out her properties from the creditor Cherukuri Srinivasarao. The consistency in the conduct of the parties having due regard to the contemporaneity of coming into effect of documents Exs. A-2 to A-4 appears to be in proportion to the reasonable animus of Khatijabibi and defendant No. 3 being interested in screening their properties in view of the suit of Cherukuri Srinivasa Rao said to have been based on a forged pronote which was judicially tested up to the High Court. In such a situation bringing about Exs. A-2 and A-3 for the same reasons cannot be ruled out and this circumstance is very much probable and convincing.
26. Both the Courts below with meticulous dealing of the matter and giving adequate and convindng reasons have come to the conclusion that Exs. A-2 and A-3 are sham, nominal, not intended to be acted upon and not actually acted upon. In other words, there is a dear finding by both the Courts below in regard to the same. Mr. Ramachandra Raju is right in contending that such findings of the trial Courts would be the findings of facts. The law is settled in this regard by the Apex Court (1 supra). Relying upon AIR 1949 Federal Court 88 and AIR 1950 P.C. 28 the Supreme Court has categorically declared the law that the question of 'benami' is purely one of fact the finding upon which is not open to attack in second appeal (paras 26 and 27 of) 0044/1956 : [1956]1SCR691 . In that view of the matter although the questions are examined as above having due regard to the serious contentions raised by both the sides, this Court will not be justified in interfering with such a finding as per the settled law.
27. Mr. Anjaneyulu, the learned Advocate for the appellants has raised a question of law that the reliance on Exs. A-5 to A-8 by the Courts below which are not proved in accordance with law, to accept the case of the defendants regarding defendant No.l's conceding to such a proposition of Exs. A-2 and A-3 being nonsinal deserves to be interfered with by this Court and the inference and findings set at naught.
28. Exs . A-5 to A-8 are the post-cards purported to have been written by defendant No.l to Khatijabibi. The learned Judges of the Courts below have strongly dealt with them as having been supporting the case of the plaintiffs regarding their theory. However Ex. A-8 does not support such a theory. Defend ant No. 1 has denied having written the letters Exs. A-5 to A-7. However, he admitted that he was in the habit of writing letters to Khatijabibi and the address on Ex. A-8 and Exs. A-5 to A-7 are similar and that the address on Ex.A-8 is admitted and he has also admitted that he has written Ex. A-8. Therefore, Mr. Ramachandra Raju contends that A-5 to A-8 should be taken as proved in view of the implied admission on the part of the defendant No. 1. They have the technical proof and it would be the best piece of evidence within the meaning of Sections 18 or 17 of the Evidence Act. There is all the force in the contention of Mr. Anjaneyulu, learned Advocate that Exs. A-5 to A-7 are not proved in accordance with Section 47 of the Indian Evidence Act as the governing provision in regard to proof of such documents which contemplates that when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by* that person, is a relevant fact, and it is explained that a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. No such ingredients are brought out either in the testimony of plaintiff No. 1 or in the so called documents of defendants. It is only proved that D-l was in the habit of writing letters and he wrote Ex. A-8 and the address in Ex. A-8 and Exs. A-5 to 7 are similar. That itself cannot be sufficient to prove the contents of the same in accordance with Section 47 of the Act. There are many circumstances when contents will be written by one person and address written by another person. The law expects the proof of contents of the documents to be in the hand writing apart from the signature. Therefore the Courts below were not justified in making use of Exs. A-5 to A-8 to believe the case of the plaintiffs.
29. Mr. Ramachandra Raju, learned Advocate for the plaintiffs has contended that in the eye of law actually there is no gift which can be legally accepted and enforced in the nature of Exs.A-2 and A-3 in view of the settled principles in Mohammedan Law. Mr. Anjaneyulu, learned Advocate for the defendants tried to repel this contention by postulating the true implications of such principles in Mahommedan Law. He has also fortified himself with number of precedents viz., Md. Abdul Ghani v. Musammat Fakhr Jahan Begam, AIR 1922 PC 281. Zulai Qa Bee v. Mohd. Mohammood Khan; : 1991(2)ALT432 (D.B.) Maqbool Alam v. Khodaija, : [1966]3SCR479 .: Kairum Bi v. Mariam Bi; : AIR1960Mad447 . Sheikh Muhummad Mumtaz Ahmad v. Zubaida Jan; 16 I.A. 205. Md. Yusuf v. Md. Yusuf; AIR 1958 Mad. 527.and Munni Bai v. Abdul Gani, : AIR1959MP225 Mr. Ramachandra Raju, learned Advocate for the plaintiffs has nothing to controvert in view of the settled law in these precedents but contends that even if these tests are applied to the facts and circumstances of the present case Exs. A-2 and A-3 fail to satisfy. There is no dispute that Exs. A-2 and A-3 would be gift called 'HIBA' coming within the realm of Mahammedan Law. A Hiba or gift 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. (Section 138 , Mulla on Principles of Mohammedan Law, Nineteenth (Edition). The law settled by precedents regarding such gifts may be recorded in brief. A Division Bench of our own High Court in Zulaiqa Bee's case (4 supra) while referring to the settled law in this behalf has laid down that under the Mohammedan Law three essential conditions are necessary for the gift to take effect: (1) a declaration of the gift by the donor; (2) acceptance of the gift express or implied by or on behalf of the donee; and (3) delivering of possession of the subject of gift by the donor to the donee, and that if these conditions are satisfied, the gift will be complete. In Md. Abdul Ghani's case (3 supra) while recording such ingredients it has been held that taking of possession of the subject-matter of the gift by the donee either actually or constructively is necessary but where physical delivery of possession is not possible such possession as to property admits of, may be delivered. In other words the donor must divest himself of his possession to complete the gift. In fact the Supreme Court in Maqbool Alain's case(5 supra) has elaborated the concept which is referred to by the Division Bench of our High Court in Zulaiqa Bee's case (4 supra) in the following lines:
'But a gift of a property in the possession of a trespasser is not established by mere declaration of the donor and acceptance by a donee. To validate the gift there must also be either delivery of possession or failing such delivery, some overt-act by the donor to put it within the power of the donee to obtain possession. If a part from making a declaration the donee does nothing else, the gift deed is invalid.'
If we apply such a test Exs. A-2 and A-3 cannot succeed. It is found that there was neither handing over of the documents, the originals of Exs. A-2 and A-3 to defendants 1 and 2 nor handing over of possession of the gifted properties to them either physically or constructively. As already pointed out the whole thing was a mere continuation of the same situation but not any alteration except defendant No.l, being the son-in-law of Khatijabibi was asked by Khatijabibi either to get the suit lands cultivated through tenants or to collect rents on her behalf, there were no overt acts either on his part or on behalf of Khatijabibi to dislocate the possession either physically or constructively. The presumption of continuation of the state of affairs in a particular set up as per the rule of evidence requires to be disproved by cogent and acceptable evidence. Such a thing has not happened in this case. Mr. Anjaneyulu depending upon Hainan Bi's case (6 supra) has contended that handing over physical possession of the gift deed to property by the donor is not necessary but transfer of legal possession is sufficient as according to him in view of the recitals of the delivery of possession in the documents it would operate as a transfer of possession. Although on principle the plaintiffs have such an advantage, such a presumption has been rebutted by other circumstances. It is true that as laid down in Sheikh Muhammad Mumtaz Ahmad's case (7 supra), as an initial stage such a recital binds not only the donor but also the persons claiming under him or her like the plaintiffs. Such a postulation also supportingly flow from the pronouncement of the Madras High Court in T. N. Sherufuddin v. Merunnisa, AIR 1999 NOC 325. In Munni Bai's case (9 supra) as rightly contended by Mr. Anjaneyulu,delivery of possession of the gifted property was effected by delivery of the document as a sufficient conduct or the overt-act but that has not happended in this case. Therefore, the question whether there was a valid gift or not is rightly answered in the affirmative on the basis of the facts admitted and proved and hence, there is no alteration in position of such a question of law.
30. Mr. Anjaneyulu, learned advocate for the appellants has dealt with the implications of the evidence in the case and particularly in the sworn testimony of the wife of plaintiff No. 1 as P.W.1, P.Ws.2 and 3, the relatives, P.W.4 and old lady whom Khatijabibi sent to defendants 1 and 2 to revoke the property and P.W.5, the attestor of Ex. A-2 and has tried to demonstrate that their evidence is contradictory, self-condemning and professing a converse result to the actual facts set up in the plaint. It is true that there are some inconsistencies and improbabilities in the testimony of P.W.I, plaintiff No. 1 and the evidence. Perhaps the doctrine Falsus Omnibus which applied to criminal proceedings may equally apply to civil proceedings also as it is not possible to accept the proposition that individuals as human beings would speak every thing which is true. There cannot be any logical inference that if an individual lied or spoke one falsehood, all other statements made by him or her should also be treated as falsehood. That is the result of such a converse doctrines as extenuations, anxieties and the interestedness of the witnesses in such a situation may produce such results; with all that, the task of the Court is to remove the grain from the chaff as above to meet the ends of justice and that has been done. The other theories whether defendants 1 and 2 agreed to reconvey the suit properties to the plaintiff and whether the said Khatijabibi approached defendants 1 and 2 or plaintiff approached them etc., although may have some relevance to the issues to the questions, but are not testified or proved; and as the main questions are answered in favour of the plaintiffs and that is sufficient to accept their case as has been rightly done by both the Courts below.
31. It must be recorded with appreciation that the learned District Munsif has approached the matter in the right direction with all concern and sincerity and has arrived at proper conclusion and findings leading to the correct decisions which was rightly confirmed by the learned District Judge. Judging the matter with all anxieties and with in depth probe this Court finds no justification to interfere with the decisions of the Courts below.
32. In the result the appeal is dismissed. However, having regard to the relationship of all the parties they shall bear their own costs throughout.