Capt Raja Mohd Bilal Qureshi v. Sabeena & Ors

PRADEEP NANDRAJOG, J

J.R. MIDHA, J

NOVEMBER 10, 2008

aj

* IN THE HIGH COURT OF DELHI AT NEW DELHI + RFA No.80/2006 Date of decision: 10th November, 2008 % CAPT RAJA MOHD BILAL QURESHI ..... Appellant Through :Mr. K.R. Chawla, Adv. versus SABEENA & ORS ..... Respondents Through : Mr. Atul Nigam, Adv. for R-1&2. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE J.R. Midha 1. Whether Reporters of Local papers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Pradeep Nandrajog, J. (Oral) 1. Admit. 2. Heard learned counsel for the parties. Trial court record has been perused. 3. The appellant who is the ex-husband of respondent No.1 has lost in his endeavour to seek a declaration that he is the owner of the subject premises, being the basement of property bearing No.M-25, Chittaranjan Park, New Delhi. His attempt to have the title documents in favour of his ex-wife and subsequent purchasers cancelled, has resulted in a defeat. Possession of the property has obviously not been directed to be handed over to the appellant. The case of the appellant was that the entire sale consideration in sum of Rs.4,00,000/- paid to the builders flowed from his coffers in as much as the cheques by which payment was made were admittedly issued from his account and that his wife, i.e. respondent No.1, fraudulently procured the title documents of the property in question from the builders. 4. The defence of the wife was that during the subsistence of the marriage, on the 10th Wedding Anniversary, by way of an oral gift, the appellant, which he could do as the parties professed the Islamic faith, gifted the property to her and that acting as the owner of the property she sold the same to defendants 3 and 4 by a registered sale deed on 21.03.1998. The defence has been accepted. 5. The reasoning of the learned Trial judge to non suit the appellant is the fact that during the subsistence of his marriage with the respondent, prior to divorce taking place on 10.11.1997, said property which was under construction by builders was agreed to be sold by the builders to the first respondent vide Agreement to Sell dated 05.02.1996 and that notwithstanding the funds made available by the appellant. No attempt was ever made by the appellant to get executed the title documents in his favour. As per the trial court this evidenced that the appellant consented that the wife was to be the beneficial owner of the property. The learned Trial Judge has believed the testimony of the wife and DW2, namely, Mohd. Kamil that an oral gift was made by the husband to the wife. 6. Shri K.R. Chawla, learned counsel for the appellant urges that as per Muhammadan Law, an oral gift is recognized but on proof of three essentials, namely, (1) a declaration of gift by the donor: (2) an acceptance of the gift, expressed or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee. Learned counsel urges that admittedly as on the date of the 10th Wedding Anniversary of the parties, the subject property was still under construction and not in possession of the appellant i.e. the alleged donor and hence the question of delivery of possession of the subject of the gift by the donor to the donee does not arise; counsel urges that on said count alone the appeal has to succeed. Second contention urged is that the testimony of DW2 does not inspire any confidence in as much as he falsely stated that when the alleged declaration of gift was made he was present at the residence of the parties, being the first floor of premises No. E-892, Chittaranjan Park, New Delhi. Learned counsel urges that in her testimony the respondent No.1 admitted residing at M-56 Chittaranjan Park, New Delhi at that time and that she further admitted that she shifted to E-892, Chittaranjan Park, New Delhi in the month of November, 1997. 7. Before we deal with the two contentions urged at the hearing today, we must recor