IBADAT ALI Vs. BALDIA COOPERATIVE BANK

JUDGEMENT

(1.) Plaintiff is the appellant. He claims to be the owner of two houses in Houses in Hussaini Alam by reason of Tamleeknama executed tin his favour by his parents on 9th Thir, 1356 Fasli corresponding to 9th May 1947 and calls in question the subsequent mortgage of the said property by his mother in favour of Baldia Cooperative Bank and the right of the latter to bring them to sale in execution of arbitration award dated 21-4-1953 passed against his mother. His suit for declaration of right and injunction against the Baldia Bank has been dismissed by the 1st Additional Judge, City civil court' Hyderabad. The learned Judge found that the so called Tamleeknama was not a gift deed but a will, that the mother who was in possession of the property and was enjoying the usufruct thereof could validly mortgage the property, that the plaintiff in spite of knowledge did not object to this transaction but acquiesced therein, that the suit was barred by time and is hit by the doctrine of estoppel. All these findings are now canvassed in this appeal. Both the Tamleckhnama and the mortgage deed are registered documents. Their genuineness is not much in dispute. It is the nature and character of the former document that is seriously put in issue for it is decisive of the question as to the plaintiff's right to sue.

(2.) Mr. Jaleel Ahmed, learned counsel for the plaintiff-appellant contends that it is a deed evidencing gift of the property made in due accordance with Muslim law by which the parties are governed. On the other hand, the contention of Mr. Shiv Shankar, Learned counsel for defendant No.-1 is that it is in substance and effect, a will and that at any rate it is not a gift within the meaning of Muslim law for want of certain essential requisite elements thereof.

(3.) What is the nature and character of a document has to be necessarily determined on the particular facts and circumstances of the document. The title given to it may not be conclusive of its true nature. It may not be even a material consideration for determining it nature: What is relevant is its various recitals, its terms and conditions. After all, it is the intention of the author that is decisive of the dispositions being testamentary or otherwise and this intention has to be gathered from the recitals of the document. It is not the form given to the recitals but the substance thereof that must be material. Then again if it is a transfer inter vivos what exactly is the character of the same has also to be determined on the terms and conditions of the document. It is not any one single circumstances or a recital but the cumulative effect of all the recitals that must be decisive of the character. Decided cases may be of some assistance but only to the extent of the principles they declare and no further for the facts of no two cases can be precisely the same. I have therefore to consider the various aspects of the case by examining the contents of the document.