Smt.Rukhsana @ Ruksana v. Joginder Mavi

Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 4607 of 2021 Petitioner :- Smt.Rukhsana @ Ruksana Respondent :- Joginder Mavi Counsel for Petitioner :- Amit Saxena Counsel for Respondent :- Harish Chandra Hon'ble Jayant Banerji,J.

¶1Heard Shri Amit Saxena, learned counsel for the petitioner and Shri Rajiv Gupta along with Shri Harish Chandra, learned counsel appearing for the respondent.

¶2By means of this petition the order dated 9.4.2021 passed by the Additional District Judge/F.T.C.-II, Ghaziabad has been challenged whereby the Application Paper No. 162C2 filed by the petitioner-defendant under Order 41 Rule 25 read with Section 151 CPC in Civil Appeal No.6 of 2017 (Smt. Rukhsana @ Ruksana Vs. Joginder Mavi) has been rejected.

¶3The contention of the learned counsel for the petitioner is that respondent instituted a suit for permanent injunction and eviction of the petitioner from the suit premises on the ground that he had purchased the same from the recorded owner by means of a registered sale-deed dated 15.1.2009. It is stated that in the written statement a categorical statement was made that there was a dispute between the petitioner-defendant and her husband which led to serious altercations and her husband stopped giving her any expenses for her maintenance and they separated on 15.12.2007. It is stated 1 of 8 that an arrangement dated 15.12.2007 was made in the presence of respectable persons of the society in which it was agreed that in lieu of the amount of Mehr (dower-debt) to be paid by her husband to the petitioner, the House No. 63 having an area of 52.67 sq. yards, situated on Khasara No.1784 at village-Behata Hajipur, Rahul Garden, Loni, Ghaziabad, would be in the ownership of the petitioner-defendant and she would have all rights to deal with it.

¶4Learned counsel further states that in the written statement it is stated that since the petitioner's husband was not in a position to pay the amount of Mehr of Rs. 10,000/-, therefore, in lieu of Mehr and for the maintenance of six children, the aforesaid house has been given to the petitioner-defendant by her husband. It is stated by the learned counsel for the petitioner that in the suit, the following issues were framed: "1-क्या वादी ्ቚ्቞ गत भवन खसरां सं०-1784 राहुल गा्ቑन्ቇ ाम बेहटा हाजीपुर, परगना लोनी, तहसील व जिजला गाजिजयाबाद का वास्तविवक कब्जा पाने का अधि'कारी है? 2-क्या वादी को ्ቚधितवादी के विवरू्ቍ वाद कारण ्ቚा्቎ है? 3-क्या वादी ने वाद का मूल्यांकन कम विकया है? 4-क्या वादी ्ቛारा अदा विकया गया न्यायशुल्क अपया्቎ है? 5-वादी विकस अनुतोष को पाने का अधि'कारी है?"

¶5It is stated that the suit was decreed pursuant to a judgment and order dated 18.10.2016, the petitioner then instituted Civil Appeal No. 6 of 2017 being aggrieved against the aforesaid judgment and order dated 18.10.2016. The petitioner then moved an application No. 162C2 dated

18.3.2021 under Order 41 Rule 25 CPC read with Section 151 CPC seeking the addition of the following issues: 2 of 8 "1. क्या विदनांक 15.12.2007 को ्ቚ्቞ गत भवन खसरा संख्या 1784, राहुल गा्ቑन, ्ቇाम बेहटा हाजीपुर, परगना लोनी, तहसील व जिजला गाजिजयाबाद का पूण स्वाविमत्व्ቚ धितवाविदनी को मेहर की अदायगी के बदले सौंप विदया गया था? यविद हाँ तो उसका ्ቚभाव।

¶2क्या आपसी फैसलानामा विदनांविकत 15.12.2007 के विनष्पादन के प्ቐात ्ቚधितवाविदनी के शौहर मौहम्मद सफीक को्ቚ्቞ गत भवन विकसी दीगर व्यविB को विव्ቅय करने का अधि'कार नहीं रह गया था? यविद हाँ तो उसका ्ቚभाव।

¶3क्या आपसी फैसलानामा विदनांविकत 15.12.2007 के आ'ार पर ्ቚधितवादविदनी, ्ቚ्቞ गत भवन की तन्हा स्वाविमनी है, अथवा ्ቚ्቞ गत भवन पर ्ቚधितवाविदनी बतौर ्ቚथम ्ቚभार ( Charg) ) अध्यासी है? यविद स्वाविमनी है, अथवा अध्यासी है, तो उसका ्ቚभाव।

¶4क्या वादी को वाद योजिजत विकये जाने से पूव आपसी फैसलानामा विदनांविकत 15.12.2007 की जानकारी रही है? यविद हॉ तो क्या वाद वादी विवबन्'न के जिस्ቍान्त से बाधि'त है?

¶5क्या ्ቚ्቞ गत भवन के कथिथत विव्ቅेता मौहम्मद सफीक को प्ቌकार वाद न बनाये जाने के कारण वाद वादी आवश्यक प्ቌकार न बनाये जाने के दोष से ्ቇजिसत है।"

¶6It is contended that by means of the impugned order, the aforesaid application No.162C2 has been rejected. The contention is that the appellate court has not applied its mind while rejecting the aforesaid application inasmuch as:-

(i) The issues were not framed by the trial court at the initial stage, which issues ought to have been framed given the specific averments made in the written statement. It is stated that the issues could have been framed even at the appellate stage given the mandate of Order 41 Rule 25.

(ii) It is stated that the house was transferred by an arrangement in the name of the petitioner in lieu of Mehr which is a family settlement and as held by the Supreme Court in the case of Kale & Others vs Deputy Director Of Consolidation1, as affirmed by the judgment of the Supreme

(1976) 3 SCC 119 3 of 8 Court in case of Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others2, it would be a memorandum of family settlement which does not effect transfer and, therefore, no registration of the deed is required.

(iii) The written statement itself reflected that apart from the ownership of the suit property being vested with the petitioner, it was also in lieu of the amount of maintenance for the six children of the petitioner. It is, therefore, stated that it could not be said that the transaction effected transfer of the suit property and that it was only in lieu of the amount of Mehr and, therefore, the trial court was not justified in relying upon the Full Bench decision in case of Ghulam Abbas vs. Mt. Razia Begum and Others3.

¶7Learned counsel for the respondent has strongly opposed the petition and has referred to the decision of the trial court with regard to issue No.1 in which, it is contended, that the issue with regard to the suit property being given to the petitioner in lieu of Mehr was duly considered, and the trial court was justified in relying upon the judgment in the case of Ghulam Abbas (supra) while answering the issue No.1 in favour of the respondent. Learned counsel has referred at length to the judgment of the Full Bench of this Court in Ghulam Abbas (supra) in support of his contention.

¶8I have perused the record of this petition and judgments relied upon by the learned counsel for the parties. Issue No.1 framed by the trial court was whether the plaintiff-respondent is entitled to the actual physical possession of the suit property. While considering the issue, the trial court has

(2020) 9 SCC 706 AIR 1951 ALL 86 4 of 8 delved at length on the documentary evidence filed by the petitioner-defendant, particularly Paper No. 39C, which was a true copy of the compromise dated 15.12.2007. It is stated to have been executed between the petitioner and her husband. It was noted that in lieu of the amount of Mehr of Rs. 10,000/- her husband had given the suit property to the petitioner, in respect of which he would have no concern thereafter. The trial court then considered the judgment of the Full Bench of this Court in Ghulam Abbas (supra) and held that the aforesaid unregistered settlement/compromise would confer no legal right on the petitioner. The aforesaid judgment of the trial court is under challenge before the appellate court.

¶9In the case of Ghulam Abbas (supra), the question before the Full Bench that arose was whether an oral transfer of immovable property worth more than Rs. 100 can be made by a Muslim husband to his wife by way of gift in lieu of dower debt which also exceeds Rs. 100 is a gift (hiba), pure and simple, which could be made orally under the Mahommedan Law, or a combination of such gifts, or a gift for consideration (hiba-bil-ewaz) of the nature contemplated by the Mahommedan Law, which amounts to a "sale" as defined in S. 54, T. P. Act, 1882. If the transfer is a gift of the nature contemplated by the Mahommedan Law, unaffected by the provisions of the Transfer of Property Act, the parties being Muslims, it will be governed by the rules of the Mahommedan Law. The Full Bench observed as follows: "13. Admitt) dly, th) transf) r in th) pr) s) nts cas)

was mad) bil-) waz-d) n-m) hr (in li) u of dow) r); cons) qu) ntly, it cannot b) r) gard) d as a voluntary 5 of 8 giftowithoutoconside ration,osuchoasohasobe e node fine d above .oItohas,ohowe ve r,obe e noargue doonobe halfoofothe plaintiff-re sponde nt o that o the o transfe r o is o a combinationoofogifts,oviz.,oaogiftoofoimmove able prope rtyobyothe ohusbandoinofavouroofohisowife oand anothe r o gift o of o dowe r-de bt o by o the o wife o to o the husband,oe ithe roofowhichocouldobe omade oorally.

¶14Itois,ohowe ve r,onot opossible otootre atothe transactionoasoaocombinationoofogifts.oObviously,oit wasoaosingle otransaction-aotransfe roofoprope rtyoby the ohusbandoinofavouroofothe owife oinoconside ration ofothe olatte rore linquishingoanoasce rtaine doamount-Rs.o2500otoobe oe xact:o-ooutoofothe oamountoofodowe r-de btodue otoohe r.oAsoowne roofothe oprope rty,othe husbandowasoe ntitle dotootransfe r,oandoadmitte dly transfe rre d,othe osame otoohisowife .oSuchoaotransfe roin whole ooroinopartosatisfactionoofoaode btoisore cognise d byolawoandoisonotouncommon.oThe otransfe roasowe ll asothe oliquidationoofodowe rode btotoothe oe xte ntoofoRs. 2,500otookoplace osimultane ouslyoinoone oandothe same otransactiondothe otwoothingsowe re osoointe r-conne cte dothatoone ocouldonotostandowithoutothe othe r.oConse que ntly,othe oargume ntothatothe ohusband made oaogiftoofoprope rtyoandothe owife omade oaogiftoofoa portionoofodowe r-de btoisounsound.oThe otransfe roin que stionois,othe re fore ,onotoaocombinationoofogifts.

15.oUnde rothe oMahomme danoLaw,owritingoisonot e sse ntialotoothe ovalidityoofoaogift,oe ithe roofomovable prope rty o or o of o immovable o prope rty, o which o is comple te oandovalidoonoproofoofoaode clarationoofogift byothe odonor,oanoacce ptance oofothe ogift,oe xpre ssoor implie d,obyooroonobe halfoofothe odone e ,oandode live ry ofoposse ssionoove rothe osubje ctoofothe ogiftobyothe donor o to o the o done e d o but o whe the r o a o gift o for conside rationso(hiba-bil-e waz)ocanobe omade oorally de pe ndsouponothe oanswe rotoothe oque stionowhe the roit doe soorodoe sonotoamountotooaosale ,oasode fine doinoS. 54,oT.oP.oAct. …. ….

20.o"Sale ,"oasode fine doinoS.o54,oT.oP.oAct,o"isoa transfe roofoowne rshipoinoe xchange oforoaoprice opaid oropromise dooropart-paidoandopart-promise d."oItois true othatoinosome ocase sothe owordo"price "ohasobe e n inte rpre te dotoome ano"mone yd"obutoinoSaifuloBibiov. AbduloAzizoKhan,o1931oA.oL.oJ.o951o:o(133oI.oC.o901) itohasobe e nohe ldothato"aotransfe roofoprope rtyoinolie u ofoanoe xistingode btoinocashowouldobe oaotransfe roforoa price osooasotoobringoitowithinoS.o54,oT.oP.oAct." The ouse oofothe owordo"price "oinste adoofo"mone y"oin the ose ctionosignifie sothatothe owordoisowide oe noughoto include o any o amount o which o can o be o de finite ly asce rtaine doandoworke dooutoinote rmsoofomone y,osuch 6oofo8 as outstanding d) bts. An own) r of prop) rty may transf) r th) sam) in li) u of outstanding d) bts - and th) r) is no l) gal bar against his doing so. Although d) bts ar) not "mon) y" in th) ordinary s) ns) of th)

t) rm, y) t th) y can b) work) d out in t) rms of "mon) y." Th) dow) r is a d) bt - it has b) ) n so r) gard) d )

v) n und) r th) Mahomm) dan law; cons) qu) ntly, if th) amount of dow) r is asc) rtain) d and th) transf) r is mad) in li) u th) r) of th) transf) r would b) for a pric) . Th) transf) r in qu) stion which is a hiba-bil-) waz, und) r th) Mahomm) dan law, having all th) l) gal incid) nts of a sal) , falls within th) purvi) w of S. 54, T. P. Act.

¶21It follows, th) r) for) , that th) transf) r in th)

pr) s) nt cas) is a hiba-bil-) waz, a gift for consid) ration, having all th) l) gal charact) ristics of a sal) ; and, inasmuch as th) provisions of S. 54, T. P. Act, apply )

v) n to a sal) transaction b) tw) ) n Muslims, th) transf) r must b) d) ) m) d to b) a sal)

within th) m) aning of th) said s) ction." Finally, the Full Bench concluded: "49. By th) Court. - Th) qu) stion r) f) rr) d to th)

Full B) nch is answ) r) d as follows: An oral transf) r of immovabl) prop) rty worth mor) than Rs. 100 cannot b) validly mad) by a Muslim husband to his wif) by way of gift in li) u of dow) r-d) bt which also ) xc) ) ds Rs. 100. Such a transaction is n) ith) r a gift nor a combination of gifts which can b) mad)

orally; it is a sal) which can b) ) ff) ct) d by m) ans of a r) gist) r) d instrum) nt only."

¶10Learned counsel for the petitioner has based his submissions on a judgment of the Supreme Court in Ravinder Kaur Grewal (supra) which has been relied upon in its previous judgment in case of Kale (supra). The aspect of a family partition and a memorandum of family settlement was gone into by the Supreme Court, which, in the facts and circumstances of the present petition, this Court restrains from entering into, inasmuch as it would be open for the petitioner to raise the same before the appellate court during his arguments and submissions in support of the appeal filed by the petitioner under Section 96 of the CPC. 7 of 8

¶11As far as the impugned order of the appellate court is concerned with regard to the framing of additional issues, a perusal of the same and the observation and consideration of Issue No. 1 made by the trial court in passing the judgment dated 18.10.2016, evince that the matter was argued at length before the trial court and the issues that are sought to be agitated at the appellate stage have themselves being dealt with, in a substantial measure, by the trial court itself.

¶12Accordingly, it cannot be said that issues that are sought to be framed by the petitioner would be essential to the right decision of the suit on the merits inasmuch as the relevant arguments can always be advanced by the petitioner through her counsel at the appropriate stage in the appeal.

¶13Under the circumstances, no interference is called for in the order impugned and this petition is, therefore, dismissed.

¶14It is made clear that any observation made herein are only for purpose of adjudication of this petition and shall not be taken by the courts as an expression of opinion of this Court on merits of the case of either of the parties. Order Date :- 26.10.2023 K.K.Tiwari (Jayant Banerji, J.) 8 of 8 High Court of Judicature at Allahabad