HUSSAIN BANU Vs. SHIVNARAYAN S/O KESRIMAL MAHAJAN

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff whose suit for the declaration of title and recovery of possession of a house in Mahidpur (about the identity of which there is no dispute) has been dismissed by both the lower Courts by judgments whose effect is concurrent though the emphasis is somewhat different. The points for decision before us are, firstly, whether all the relevant facts are so clearly on the record that the contesting defendant may be permitted to support the decision on the principle of part of performance under Section 53-A of the Transfer of Property act though he had not expressly pleaded it in either of the two lower Courts. Secondly, if the contesting defendant is not permitted to invoke Section 53-A of the Transfer of Property Act, whether he has proved that his transferor Shafi mohammad has got the house from the plaintiff by gift which need not be evidenced by a registered deed when it is by a Muslim. Thirdly, whether the plaintiff can be held to be barred by estoppel of out: of the two kinds (a) under section 41 of the Transfer of Property Act by her having acquissed in Shafi mohammad transferring the properly as the ostensible owner; or (b) by telling the transferee when he went to consult her, that Shafi Mohammad was the owner of the house and was competent to do what he liked with if.

(2.) THE facts of the case are on the whole beyond controversy and at all events it would be proper to accept them as found by the lower appellate Court. The lower courts have dismissed the suit under different and apparently alternative grounds to some extent by the general impression that the claim set up by the plaintiff with the obvious collusion and support of the transferor Shafi Mohammad is unconscionable and cannot be allowed on any principle of fair dealing. This not being sufficient, they have tried to fit this in with one or the other of the possible legal interpretations of the circumstances, and the contents of the unregistered deed D/1 to which the plaintiff and Shafi Mohammad were parties. They have had at places to labour to the decision, which is certainly correct; this is because they have overlooked Section 53-A of the Transfer of Property Act which contains the equitable principles that are a complete answer to the plaintiff.

(3.) THERE used to live one Khudabax Rangrej in village Mahidpur. The house that is the subject matter of this litigation originally belonged to him, being in fact one of his three houses. The plaintiff is his daughter. At the time of his death in 1950 there was one Shafi Mohommad living with this Khudabax. His father also was named Khudabax; but that was another person. It is common around that Shafi mohammad was unconnected with this family. However, Khudabax father of the plaintiff brought him up so that at the time of his (Khudabax's) death Shafi mohommad was in the house. The plaintiff herself had been married at Indore and as usual was living most of the time with her husband. During the years preceding khudabax's death Shan Mohommad had been entertaining hopes of getting something out of his foster-father's properties though there does not seem to have been any will or similar disposition in his favour. The plaintiff being the only heir of Khudabax there were differences between her and Shafi Mohommad which however, were settled by mediation:-I say "mediation" though at places in the evidence and the judgment the word "arbitration" has been used, because the resultant disposal was by a document to which the plaintiff and Shafi Mohommad were parties and was not by any award. This is Ex. D/1 executed on 25-4-50, shortly after Khudabax's death which has been the subject matter of very lengthy arguments. The plaintiff seems at one stage to have denied having executed any such document but now it is established that she had, and had further implemented by relinquishing the houses, and taking the movables allotted to her by that agreement. The details are set out in the document itself and for our purposes we need only note that broadly speaking the immovable property that is, the three houses in Mahidpur, were given to Shafi mohommad and all movable property among which gold and silver ornaments were the most important ones were taken by the plaintiff. Certain debts payable by Khudabax were also taken over by Shafi Mohommad. Actually Shafi Mohommad was, during this short interval between Khudabax's death and the execution of this instrument, in actual possession of these houses and in control of the movable properties stored in one of them. After the settlement, the plaintiff took away the ornaments, and Shan Mohommad was in possession of the houses now as a result of this agreement or arrangement or whatever other name we might care to give this disposition. Its exact effect will be certainly investigated in course of this judgment.