B.K. Rathi, J.
1. This second appeal has been filed against the judgment and decree dated 29.8.2000 passed by XIIIth Additional District Judge. Allahabad in Civil Appeal No. 88 of 1998. The facts giving rise to this appeal are as follows :
2. The suit was filed by the respondent No. 1 against the appellant and other respondents for the relief of declaration and cancellation of sale deed dated 20.2.1981 registered on 5.6.1981 executed by the respondent No. 4 in favour of the appellant regarding house No. 262 (New), 247 (Old) situated in Dondipur and house No. 150 Johnstonganj. Allahabad. In brief the facts of the case are as follows :
'One Abdul Khaliq had two sons, namely, Abdul Sadiq and Abdul Mazeed. The respondent No. 1 is the wife of Abdul Mazeed. Maqbool Alam was son of Abdul Sadiq. It is alleged by the plaintiff that Abdul Sadiq remained in India during his life time and died on 3.1.1961. Maqbool Alam along with his family migrated to Pakistan in the year 1951 and died in Pakistan in the year 1980, That Abdul Sadiq was living with his brother Abdul Mazeed. His family having been migrated to Pakistan, he gifted the house in dispute to his brother AbdulMazeed on 1.12.1960. A memo inwriting regarding it was preparedon 1.1.1961, Abdul Mazeed giftedthis house to his wife plaintiff on12.5.1974, That, therefore, theplaintiff/respondent No. 1 is theowner of the house.
3. That a collusive sale deed dated 20.2.1981 has been obtained by the appellant from District Magistrate, Allahabad, mentioning that the house is enemy property. That this house was never vested in the custodian and was not an enemy property. That the respondent No, 1 is the owner of the same and District Magistrate, Allahabad, has no right to execute the sale deed. That mutation was also done in favour of the respondent No. 1. Therefore, the suit was filed.
4. The appellant contested the suit and denied the oral gifts. It is contended that the respondent No. 1 has no interest in the house in suit and no right to file the suit. That the property belongs to Abdul Sadiq and after his death was inherited by Maqbool Alam, who migrated to Pakistan and it became enemy property. That he has rightly purchased it from the District Magistrate, Allahabad. It was further pleaded that the Court has no Jurisdiction to try the suit.
5. The trial court after recording the evidence held that plaintiff/ respondent No. 1 is not the owner of the house by virtue of oral gift. That the sale deed executed by the District Magistrate is valid. The trial court, therefore, dismissed the suit with costs. However, the first appellate court has reversed the finding. It has accepted the contention for the respondent No. 1 became the owner of the house by oral gift. That the house was never an enemy property and the sale is void. That the Court has jurisdiction to try the suit. He has accordingly decreed the suit with costs. Aggrieved by it, the present appeal has been preferred.
6. I have heard Sri G.N. Verma, learned counsel for the appellant and Sri Ajeet Kumar, learned counsel for the respondent No. 1 and have perused the judgments.
7. The first argument of the learned counsel for the appellant is that the oral gift have not been proved, and the first appellate court has erred in recording a finding that the house in dispute was gifted by Abdul Sadiq and then by Abdul Mazeed. The oral gift accordingly Mohammadan Law are valid. In order to prove the oral gift by Abdul Sadiq to Abdul Mazeed, the respondent No. 1 examined herself and Habib. Hanif Khan and Salim as P.W. 1 to 3 and to prove the oral gift by Abdul Mazeed in favour of the respondent No. 1, the respondent No. 1 examined herself and one Moinuddin. Their evidence was categorically examined by the first appellate court and he also considered the circumstance that Abdul Sadiq remained in India all alone with his brother Abdul Mazeed, that his family was migrated to Pakistan. The first appellate court therefore held that Abdul Sadiq gifted the property to his brother. On the basis of the scrutiny of the evidence the first appellate court has recorded a finding and it is not open in this appeal to again scrutinize the evidence and to arrive at a different conclusion on the question of fact specially, in view of the fact that it has not been shown by the appellant that a particular evidence was not considered by the first appellate court.
8. Learned counsel for the respondent No. 1 has referred to Dnvanoba Bhaurao Shemade v. Maroti Bhaurao Marnor : AIR1999SC864 where the Apex Court has held that in second appeal only substantial question of law can be considered. It was further observed that the finding of fact even if against the weight of the evidence does not project a question of law. Similar view was taken by the Hon'ble Supreme Court in the case of Hari Singh v. Kanhaiya Lal 1997 (7) SCC, 288 and other cases. In view of the above, there is no reason to interfere in the findingspof facts of the first appellate court regarding the oral gift.
9. The second argument of the learned counsel for the appellant is that even if the factum of the gift is admitted, the gift is invalid as it was made during illness while the donee was in the apprehension of his death. It is also contended that the gift of more than one third share of the property is also invalid according to the Mohammedan Law unless the other heirs consents to the said gift. Learned counsel in support of the argument has relied on the provisions of the Mohammedan Law and has also referred to Softa Begum and others v. Abdul Rajak and others AIR 1945 (32) Bom 438. In this case, it was held that the gift in favour of the one of the heirs where other heirs have not given their consent is incapable of being enforced. Similar view was taken in the case of Wazir Jan v. Saiyyid Altaf Ali, 9 (Indian decisions) All 357. It was held that the gift in contemplation of death and distribution of property in favour of heirs without consent of the other heirs is invalid. The other cases referred to is Fazi Ahmad and another v. Rahim Bibi and others. ILR 1917 All 238. It was held that where the gift is made during the last illness the doctrine of marzul-maut will apply and the gift will be invalid.
10. The last authority on this referred to is Mt. Sakina Begum v. Khalifa Hajiz-un-din and others AIR 1941 All 58. It was held that the gift is invalid if at the time of execution of deed of gift, the donor was suffering from a serious disease which it was known would in all probability terminate in fatility.
11. In this connection, it has been argued by the learned counselfor the appellant that the respondent No. 1 has admitted in her statement that Abdul Sadiq was seriously ill since 2-3 months before the gift. The P.W. 2. Mohd. Habib has also stated that Abdul Sadiq died on second or third day of the oral gift. He has also stated that at the time of the gift, he was confined to bed. On the basis of this evidence, it has been argued that in view of the law laid down in theabove cases and Mohammedan Law, the gift is invalid.
12. Regarding this, the only argument advanced on behalf of the respondent No. 1 is that no such plea was taken in the written statement, that the gift is invalid because of being executed during marzut-maut or because of the fact that it is in favour of one of the heirs and other heirs have not consented to it. It is, therefore, contended that this point cannot be raised for the first time in this appeal.
13. In reply to this argument, the learned counsel for the appellant has referred to Yashwant v. Waichand Ram Chand : [1950]1SCR852 . In this connection, reliance was placed on the following observation made in Connectient Fire Insurance Company v. Karanagh, 1892 AC 472. It was observed that :
'When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that course may be doubted when the plea cannot be disposed of without deciding nice questions of fact in considering which the Court of ultimate review is placed in a much less advantageous position than the Courts below.'
14. On the basis of this authority it was observed that if the fact proved and found as established are sufficient to make out a case of fraud within the meaning of Section 18, this objection may not be serious, as the question of applicability of the Section will be only a question of law and as such a question could be raised at any stage and also in the final court of appeal.
15. However, it has been argued on behalf of the respondents that the question whether the gift is exceeding one third share and whether the other heirs has consented to it or not is a question of fact and cannot be raised in this second appeal. It has alsobeen argued that whether the donee was suffering from marzul-maut is also a mixed question of law and fact and these questions cannot be raised for the first time in appeal. Learned counsel in support of his argument has referred to Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School and others : (1993)IILLJ549SC . The Apex Court in this case has held that the pleading not raised before the Tribunal or administrative authorities cannot be permitted to be raised for the first time in appeal.
16. The facts of the case referred to above by the learned counsel for the appellant were different. In the present case, both the questions are mixed questions of fact and law and, therefore, they cannot be permitted to be raised for the first time in appeal. I accordingly, find that the appellant cannot challenge the gift deed in the appeal on the above ground. I find that the gifts are valid.
17. Now the second question is whether the District Magistrate had any authority to execute the sale deed of the disputed house in favour of the appellant. It does not appear from the evidence on record that the property was ever an enemy property. Regarding this only one document, paper No. 30-C is on the record, in which certain enquiry has been made by the custodian of enemy property regarding this house. This house is not declared as enemy property under any provision of law. On the other hand, report was obtained from the Tehsildar that the property is a enemy property and on its basis, the sale deed was executed by the District Magistrate. No enquiry was ever conducted nor any person was ever heard. The entire proceedings appears to be collusive. Another circumstances to show the same is that stamp for execution of the sale deed were purchased on 4.5.1981 whereas the sale deed has been signed by the District Magistrate on 20.2.1981. It was presented for registration on 20.5.1981.
18. The enemy and enemy property have been defined in Enemy Property Act. 1968. According toclause (b) of Section 2. enemy means a person or country who or which was enemy, an enemy subject or an enemy firm, as the case may be, under Defence of India Act, 1962 and the Defence of India Rules, 1962. The learned counsel for the respondents has also referred to the provisions of Defence of India Act, 1962 and Defence of India Rules, 1962. It has been argued that Pakistan was never declared as enemy country nor Abdul Sadiq or Maqbool Alam as enemy. The property is not an enemy property. It has not been decided by any authority that the house in dispute is enemy property. That therefore, the sale by the District Magistrate as custodian of an enemy property is without jurisdiction.
19. Learned counsel for the respondent No. 1 in support of the argument has also referred to certain authorities. The first is Asadulla Chowdhury and others v. State of West Bengal, 79 CWN 153. It was held in this case by Calcutta High Court that an order vesting certain properties alleged to be enemy property in the custodian of enemy property made on January 7, 1969, after the expiry of period of emergency on July 10, 1968, is without jurisdiction and is invalid. Section 5 of the Enemy Property Act has no application. The other authority referred to is Division Bench decision in Rameshwar Dayal and others v. Custodian of Enemy Property for India and others, ARC 1986 (2) 376. It was held by the Division Bench of this Court that the custodian of enemy property cannot adjudicate on point in controversy. The custodian also cannot take forcible possession of property which he claims to have vested in him. The other decision referred to is Buniyad Husain and others v. Zila Adhikari, Barabanki and another : 1998(2)AWC946 . In this case, the District Magistrate directed a property to be recorded as an enemy property. No opportunity of hearing was given. It was held that the property is not an enemy property.
20. In the present case that the District Magistrate secretly obtaineda report from the Tehsildar that it is an enemy property and executed the sale deed in favour of the appellant. No objections were ever invited nor any body was heard. No procedure was followed. Therefore, the property in dispute cannot be held as an enemy property and the sale deed by the District Magistrate in favour of the appellant is without jurisdiction as invalid.
21. The last argument of the learned counsel for the appellant is that the suit of the respondent No. 1 was not cognizable by civil court and is barred by Section 19 of Enemy Property Act. Section 19 reads as follows :
'19. Protection of action taken under the Act.--No suit, prosecution or other legal proceeding shall lie against the Central Government or the Custodian or an Inspector of Enemy Property for anything which is in good faith done or intended to be done under this Act.
22. It is contended that the sale deed has been executed by custodian in good faith and, therefore, the suit is barred under this provision. That the remedy has also been provided by Section 18 of the Act and therefore, that remedy should be availed and the suit is barred. Learned counsel in support of the argument has referred to the following cases :
'The first is Ram Singh and others v. Cram Panchayat Mehal Kalan and others : [1986]3SCR831 . In this case, Section 13 of Punjab Village Common Lands (Regulation) Act was considered. It was observed that the plaint cannot be drawn cleverly by not claiming a declaration that the land in question was not a shamlatdeh to avoid jurisdiction of Section 13 by the civil court to make a declaration. The other case referred to is Dhutabhai v. State of Madhya Pradesh and another : [1968]3SCR662 . It was observed that 'where there is an express bar of jurisdiction of the Court, as examination of the scheme of the particular Act tofind the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.'
23. I have considered both these authorities and is of the view that considering of the language of Section 19 and the remedy provided in Section 18, the jurisdiction of the civil court is not barred. Section 19 only provide regarding the protection of the action taken under it. It does not bar the jurisdiction of the civil court.
24. In this connection, I may refer to Shiv Kumar Chadha v. Municipal Corporation of Delhi and Ors. : [1993]3SCR522 . It was observed that the jurisdiction of the civil court in any matter is not barred by creating any right or liability and providing uno flatu final remedial forum. In Firm Seth Radha Kishan and others v. Administrator Municipal Committee, Ludhiana : [1964]2SCR273 , it was held that the jurisdiction of the civil court under Section 9, C.P.C. should be either expressly or impliedly barred.
25. In the present case, I find that the jurisdiction to decide the question whether the property was enemy property or not is not barred under Section 19 of Enemy Property Act. This argument of the learned counsel, therefore, also fails.
26. After considering the entire arguments, I am of the view that there is no reason to interfere in the judgment and decree of the first appellate court.
27. The appeal, therefore, fails and is hereby dismissed.