SHAMSUDDIN Vs. AMEER JAHAN BEGUM

JUDGEMENT

(1.) S. P. Srivastava, J. This second appeal arises out of a Suit No. 547 of 1978 filed by Smt. Amir Jehan Begum, the respondent No. 1 wherein Suhail Ahmad, the husband of the plaintiff had been impleaded as defendant No. 2, while Shamshuddin, the present appellant had been impleaded as defendant No. 1. The plaintiff-respondent in the aforesaid suit had prayed for a decree declaring that she was the exclusive owner in possession of the house in dispute, the sale-deed in respect whereof executed on 10-4-1987 by the husband of the plaintiff in favour of Shamshuddin was null and void and legally ineffectual. Besides the above relief, the plaintiff also prayed for a decree of permanent prohibitory decree restraining Shamshuddin from evicting the plaintiff from the house in execution of the decree passed in suit filed by him being suit No. 333 of 1978 decided on 5-10-1978 against Suhail Ahmad.

(2.) THE plaintiff's case, in nut shell, was that at the time of her marriage with Suhail Ahmad, an amount of Rs. 5,000 had been settled as 'mahar-Indul-Talab' which was not paid by her husband at the time of her marriage. On account of strained relations between the plaintiff and her husband which developed during the year 1964-65, the plaintiff demanded the payment of the 'mahar' in the year 1965 but as Suhail Ahmad did not have any money with him, he made an oral gift of the premises in dispute which was purchased by him in the year 1959, in favour of the plaintiff on 14-10-1965. This gift was an oral gift which was accepted by the plaintiff. With the acceptance of the gift by the plaintiff, it was asserted that the husband put her in proprietary possession of the premises in dispute where after she continued to be exclusive owner in possession of the same in which capacity, she is still continuing. THE plaintiff in exercise of her right built a house on the plot of land gifted to her and got her name recorded in the municipal records. Suhail Ahmad, however, in order to harm the plaintiff executed a sale-deed on 10-4- 1967 in favour of Shamshuddin in respect of the aforesaid property without having any right, title or interest therein. THE transferee Shamshuddin in collusion with the husband of the plaintiff succeeded in obtaining a decree in S. C. Suit No. 333 of 1978 decided on 4-10-1978 for the eviction of Suhail Ahmad from the house in dispute and on the strength of this decree wanted to dispossess the plaintiff from the said house for which there could be absolutely no justification,

(3.) THE trial court also expressed the view that even if it be assumed that the husband of the plaintiff had orally gifted the premises in dispute to her in that event the oral gift being in lieu of 'mahar' had to be treated as sale which required registration. Consequently the trial court concluded that the alleged oral gift relied upon by the plaintiff was legally in operative. THE trial court further came to the conclusion that Suhail Ahmad, the husband of the plaintiff was continuing to be in possession of the property in dispute in the capacity of the tenant of the defendant No. 1.