Supreme Court of India
M/S. TARAKNATH AND ANR.versusSUSHIL CHANDRA DEY BY LRS. AND ORS.
- Citation
- 1996 INSC 495
- Decided
- 8 April 1996
- Disposal
- Appeal(s) allowed
- Bench
- K RAMASWAMY
Holding
The sisters' oral gift is valid with constructive delivery, the family settlement is valid despite the absence of one brother, and the registered sale deed confers title under Section 17, entitling the appellant to possession and eviction.
Summary
The property of the late Syed Md. Mahibullah passed to his widow, five daughters and five sons. After the widow's death, the five sisters relinquished their shares in favour of their five brothers, an oral gift that the Supreme Court held to be valid under Muslim personal law with constructive delivery deemed sufficient because a tenant occupied the land. The brothers later entered into a family settlement, allocating the disputed portion to Syed Baitul Alam, who sold it to the appellant on August 6, 1979 by a registered deed. The respondent, a tenant, sued for declaration of title and eviction; the trial court and a single judge ruled for the appellant, but a Division Bench reversed, holding the gift invalid for lack of possession delivery and the settlement invalid for the absence of one brother. The Supreme Court reversed the Division Bench, finding the gift effective, the settlement valid even though one brother was abroad, and the registered deed conferred title under Section 17 of the Registration Act. Consequently, the appellant obtained a valid title and the eviction decree was upheld. The appeal was allowed and the lower court's decree restored.
Issues considered
- Whether an oral relinquishment of a sister's share in property by gift under Muslim personal law requires actual delivery of possession to be valid.
- Whether a family settlement among brothers is valid when not all brothers are physically present, including a brother residing abroad.
- Whether a registered sale deed under Section 17 of the Registration Act confers valid title to the purchaser.
- Whether the appellant is entitled to possession and eviction of the respondent based on the above.
Legislation cited
Subjects
Muslim personal lawgiftrelinquishmentfamily settlementconstructive deliveryRegistration ActSection 17titleevictionproperty dispute
Judgment
MIS. TARAKNATH AND ANR. A
v.
SUSHIL CHANDRA DEY BY LRS. AND ORS.
APRIL 8, 1996
[K. RAMASWAMY AND G.B. PATIANATK, JJ.] B
Mohammedan Law :
_Gift-Relinquishment of right by sisters in the property left by their
fathei in favour of their brothers-Held, it would be open to sisters to
relinquish their 1ight by way of gift, even oral, which is valid in personal
c
law-Since tenant has been in occupation, it would be constntctive delivery
of possession--Delivery of physical possession to brothers not warranted.
Family settlement :
Property left by Mohammedan father-Held, it would be open to.
D
brothers to resolve the prospective dispute by way of family settlement.-lt is
not necessary that all brothers be presellt at the settlement-One of the
brothers living abroad can auth01ise other brothers to settle the dispute.
Registration Act, 1908 E
S.17-Registered sale deed-Effect of--One of the brothers selling
property allotted to him under family arrangement and govemed by Moham-
medan law through registered sale deed-Suit by vendee for declaration of
title and ejectmenH!eld, sale deed is registered conveyance for valid con-
sideration-Vendee by operation of s.17 gets valid title to property-Pre-exist- F
ing light, title and interest in property by ve11dor a11d his brothers stood
extinguished by operation of law.
CIVIL APPELLATE .JURISDICTION : Civil Appeal No. 7521 of
1996.
G
From the Judgment and Order dated 24.7.95 of the Assam High
Court in L.P.A. No 10 of 1993.
Sunil K. Jain and Jitender K. Bhatia for the Appellants.
P.K. Goswami, Rajiv Mehta, C.K. Sasi and Kailish Vasdev for the H
97
•
98 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A Respondents.
The following Order of the Court was delivered :
Leave granted
B
We have heard learned counsel on both sides. This appeal by special
leave arises from the judgment and order dated 24.7.1995 made in L.P.A.
No. 10/93 of the High Court of Guwahati: The admitted facts are that the
property originally belonged to one Syed Md. Mi!hibullah. After his
demise, the property passed on to his widow, five daughters and five sons.
C His widow died in 1971. Subsequently, it would appeat that the sisters have
relinquished their rights in the properties in favour of their five brothers.
It is the case of the appellant that at a family settlement among the
brothers, on December 6, 1977, the suit property was allotted to Syed
Baitul Alam who had sold the said property under registered sale deed to
D the appellant on August 6, 1979. He laid the suit for declaration of his title
and for ejectment of the respondent. The trial Court decreed the suit. On
first appeal, the learned single Judge confirmed the decree. The Division
Bench in the above L.P.A. reversed the decree and dismissed the suit. The
Division Bench came to the conclusion that relinquishment of the property
E would operate as a gift by the sisters and delivery of possession is a
pre-condition. Since possession was not delivered IQ the brothers, the gift
by the sisters is not valid in law. As regards the family settlement between
the brothers, the Division Bench has held that since there is no dispute
pending or prospective, between the brothers, the family settlement is not
valid in law and, therefore, the appellants cannot derive any title from one
F of the brothers to whom the property had fallen to his share through the
said settlement. Consequently, the sale to the appellants on August 6, 1979
is not also valid. On that premise, the suit came to be dismissed.
It is contended by Mr. P.K. Goswami, learned Senior counsel appear-
G ing for the respondents, that from the evidence it is clear even assuming
that the dispute between the brothers has not been properly existing, since
one of the brothers who is admittedly staying in London did not participate
to settle the dispute and even in the plaint his address was of Guwahati
while he was staying in London, it is not a bona-fide settlement. It is also
H contended that the sisters having not delivered possession of the property
.
TARAKNATH v. S.C. DEY 99
to the brothers under the personal law, the gift is not complete. Therefore, A
the appellant cannot get any valid title. Since the respondent had not
acknowledged the title of the appellants, there is no estoppel under section
116 of the Indian Evidence Act. Since the appellants get derived no title,
it would be open to the respondent to assailthe validity of the sale. The
High Court, therefore, was right in dismissing the suit. B
> Having regard to the contention, the question arises : whether the
High Court was correct in law in upsetting the judgment of the learned
single judge and the trial Court in dismissing the suit ? It is true that there
is no actual delivery of the possession pursuant to the gift said to have been C
made by five sisters in favour of five brothers. The property admittedly
belonged to father Syed Md. Mahibullah who died in 1954. Thereby all the
brothers and sisters become owners to the extent of their shares they had
succeeded to the property. Thus all of them are co-owners. It would be
open to the sisters to relinquish their right by way of gift, even oral, which
is valid in personal law. Since the tenant has been in occupation, it would D
be constructive delivery of the possession. Delivery of the physical posses-
sion to the brothers, in the circumstances, is not warranted. As regards the
family settlement of the brothers, it would open to the brothers to resolve
the prospective dispute by way of family settlement. The brothers having
agreed for the settlement, though they have been impleaded as party- E
respondents to the suit, they have not challenged the family settlement nor
have they contested the validity thereof. It is not necessary, in the cir-
cumstances, that all the brothers be present at the settlement. One of the
brothers living in London can authorise his other brothers to settle the
dispute and he was a consenting party to it. Under those circumstances, F
we are of the view that the brothers obviously had a settlement pursuant
to which the demised property has been allotted to the share of Syed Baitul
Alam who had sold the property to the appellant under the sale deed dated
August 6, 1979. The sale deed is a registered conveyance for valid con-
sideration. Under those circumstances, by operation of section 17 of the
Registration Act, the appellant gets valid title to the property. The pre- G
existing right, title and interest in the property of Syed Baitul Alam and his
brothers stood extinguished by operation of the law. Thereby, the appel-
lants get valid title to the property. Since the respondent was continuing as
a tenant, obviously, he is bound by the title since the suit has· been laid for
eviction of the respondent and decree for eviction was rightly granted. H
-~
100 SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.
A The appeal is accordingly allowed,. The order of the Division Bench
is set aside and the order of the learned single Judge stands restored. Six
months time from today is granted to the respondents, lo vacate the
premises on filing usual undertaking within four weeks from today. No
costs.
B R.P. A-ppcal allowed.
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