# Shamim Ahmad v. Smt. Rashida Begum and others

- **Citation:** (2001) 2 ILRA 163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-08-29
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shamim-ahmad-v-smt-rashida-begum-and-others-39842
- **Pages:** 6

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001

163
15. In this way, I find that point in
controversy in this appeal have been
concluded by concurrent findings of the
fact. No substantial question of law is
involved in this appeal. The second
appeal has, therefore,, no force and liable
to be dismissed.

16. The appeal is, accordingly,
dismissed summarily. There is no order as
to costs.

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By the Court

1. This second appeal has been filed
against the judgment and decree dated
29.08.2000 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
20.02.1981
registered
on
05.06.1981 executed by the respondent
no. 4 in favour of the appellant regarding
house no. 262 (New), 247 (Old) situated
in Dondipur, Allahabad. In brief the facts
of the case are as follows:

3. 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 03.01.1961.
Maqbool Alam alongwith 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
2All] Shamim Ahmad V. Smt. Rashida Begum and others

164
Abdul Mazeed. His family having been
migrated to Pakistan, he gifted the house
in dispute to his brother Abdul Mazeed on
01.12.1960. A memo in writing regarding
it was prepared on 01.01.1961. Abdul
Mazeed gifted this house to his wife
plaintiff on 12.05.1974. That therefore,
the plaintiff/respondent no.1 is the owner
of the house.

4. That a collusive sale deed dated
20.02.1981 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 tot
execute the sale deed. That mutation was
also done in favor of the respondent no. 1.
Therefore, the suit was filed.

5. 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.

6. 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.

7. 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.

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 according to
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 PW-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
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

165
particular evidence was not considered by
the first appellate court.

8.

Learned
counsel
for
the
respondent
no.1
has
referred
to
Dnvanoba Bhaurao Shemade Versus
Maroti Bhaurao Marnor, 1999 (2)
SCC, 471. 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 Hari Singh
Versus Kanhaiya Lal, 1997 (7) SCC,
288 and other cases. In view of the
above there is no reason to interfere in the
findings of 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 Safia Begum and others
Versus Abdul Rajak and others, A.I.R.
(32) 1945 Bombay, 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 Versus Saiyyid Altaf
Ali 9 (Indian decisions) Alld, 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
Versus Rahim Bibi and others, I.L.R.
1917, 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 Versus
Khalifa
Hafiz-ud-din
and
others,
A.I.R., 1941, 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 falatly.

11. In this connection, it has been
argued by the learned counsel for 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 PW-2, Mohd. Habib
has also stated that Abdul Mazeed 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 the above
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 marzul-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 can not
be raised for the first time in this appeal.
2All] Shamim Ahmad V. Smt. Rashida Begum and others

166
13. In reply to this argument, the
learned counsel for the appellant has
referred to Yashwant versus Walchand
Ram Chand, A.I.R. 1951 SC, Page 16.
In this connection reliance was placed on
the
following
observation
made
in
Connectient Fire Insurance Company
Versus Karanagh, (1892) AC, 472. It
was observed that :

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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 can not be raised in this second
appeal. It has also been argued that
whether the donee was suffering from
marzul-maut is also a mixed question of
law and fact and these questions can not
be raised for the first time in appeal.
Learned counsel in support of his
argument has referred to Rattan Lal
Sharma Versus Managing Committee,
Dr. Hari Ram (Co-education) Higher
Secondary School and others, A.I.R.
1993 SC 2155. The Apex Court in this
case has held that the pleading not raised
before the Tribunal or administrative
authorities can not 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 can not be permitted to be raised for
the first time in appeal. I accordingly, find
that the appellant can not 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, a
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
INDIAN LAW REPORTS ALLAHABAD SERIES [2001

167
of the sale deed were purchased on
4.5.1981 whereas the sale deed has been
signed by the District Magistrate on
20.02.1981.
It
was
presented
for
registration on 20.05.1981.

18. The enemy and enemy property
have been defined in Enemy Property
Act, 1968. According to clause (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 Defense 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 any 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 versus State of
West Bengal, CWN, 79, Page 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 the
Enemy Property Act has no application.
The other authority referred is Division
Bench decision in Rameshwar Dayal
and others Versus Custodian of Enemy
Property for India and others, A.R.C.
1986 (2), 376. It was held by the Division
Bench of this court that the custodian of
enemy property can not adjudicate on
point in controversy. The custodian also
can not take forcible possession of
property which he claims to have vested
in him. The other decision referred to is
Buniyad Husain and others Versus Zila
Adhikari, Barabanki and another, 1998
(2) A.W.C.,946. In this case, the District
Magistrate directed a property to be
recorded as and 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 obtained a
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 can not
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:

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2All] Shamim Ahmad V. Smt. Rashida Begum and others

168
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:

23. The first is Ram Singh and
others Versus Gram Panchayat, Mehal
Kalan and others, A.I.R., 1986 SC,
2197. In this case Section 13 of Punjab
Village Common Lands ( Regulation) Act
was considered. It was observed that the
plaint can not 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 Dhulabhal versus
State of Madhya Pradesh and another,
A.I.R., 1969, SC, 78. It was observed that
' Where there is an express bar of
jurisdiction of the court, as examination
of the scheme of the particular Act to find
the adequacy or the sufficiency of the
remedies provided may be relevant but is
not decisive to sustain the jurisdiction of
the civil court'.

24. 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.
25. In this connection, I may refer to
Shiv Kumar Chadha Versus Municipal
Corporation of Delhi and others, 1993
(3) SCC 161. 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
versus
Administrator Municipal Committee,
Ludhiana, A.I.R., 1963 SC, 1547. It was
held that the jurisdiction of the civil court
under section 9 C.P.C. should be either
expressely or impliedly bared.

26. 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 10 of
Enemy Property Act. This argument of
the learned counsel is therefore, also fails.

After
considering
the
entire
arguments, I am of the view that there is
no reason to interfere in the judgement
and decree of the first appellate court.

The appeal therefore fails and is
hereby dismissed.