- (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, The aforesaid suit was contested by Shamshuddin the present appellant on various grounds denying the claim of the plaintiff and asserting that she had full knowledge of the Suit No. 333 of 1978 filed by Shamshuddin against Suhail Ahmad and the decree passed therein. It was also asserted that the present suit had been filed by Suhail Ahmad himself acting in collusion with the plaintiff and it was he who was doing Pairvee in the case on behalf of his wife. It was also asserted that the house in dispute bad not been constructed by the plaintiff and she was not possessed of any means to do so. The factum of oral gift set up by the plaintiff was denied asserting that she was residing in the house in dispute as a wife of Suhail Ahmad who was continuing to be in possession of the said house as a tenant of the answering defendant at a rental of Rs. 45 per month. It was also asserted that initially the defendant No. 1 had filed a suit No, 616 of 1973 for recovery of an amount of Rs. 1,600 towards arrears of rent against Suhail Ahmad which was decreed in 1975 and in the execution of the said decree, the decretal amount was recovered after deducting salary of defendant No. 2. Thereafter S. C. suit No. 333 of 1978 was filed for recovery of arrears of rent and ejectment of defendant No. 2 which was decreed on 14-10-1978. When this decree was put in execution wherein the order for the recovery of possession was issued, the present suit was filed to evade and obstruct the execution of decree passed in S. C. suit No. 333 of 1978 with a mala fide intention. The trial court after appraisal of evidence on the record after noticing the various contradictions in the oral evidence led by the plaintiff came to the conclusion that the claim of the plaintiff about the property in dispute having been gifted to her orally was not acceptable and she had failed to establish an oral gift as alleged, consequently it was held that the plaintiff has not succeeded in proving that she was owner in possession as such of the premises indispute.
(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. On the question relating to the validity of the sale-deed dated 10-4-1967, the trial court expressed the view that the execution of the afore said deed was not disputed and it did convey the title in favour of the vendee. The trial court also negatived the claim of the plaintiff that she had constructed the house in dispute as claimed.;