- (1.) N. L. Ganguly, J. This writ petition is directed against the judgment dated 11-4-1977 passed by the City Magistrate-cum- Enemy Property Incharge of India, Bareilly rejecting the claim of the petitioner. Smt, Mizaj Bi, now dead, represented by her legal representative, about the property of Mohammad Unis s/o Aziz Ahmad and rejecting the objection dated 5-4-1977 and also against the order dated 15-7-1977 passed in the review application filed by Mohammad Unis and other. Against the order rejecting the review application an appeal was filed by the petitioner before the respondent No. 1, the Custodian General of the Enemy Property of India. A copy of the me no of appeal has been filed as Annexure 10 to the writ petition. In para 12 of the counter affidavit it has not been denied that no appeal was filed by the petitioner and the averments are to the effect that in view of the assertions made in para 10 of the writ petition, the writ petition is not maintainable and liable to be dismissed on this ground alone.
(2.) A notice dated 28-6-1976 was issued by the City Magistrate-cum-Enemy Property Incharge of India stating that one Sri Aziz Ahmad s/o Masiullah migrated to Pakistan leaving his property house No. 178 and two shops in Mohalla Kaharwan, Gali Hakeem Wazir Ali, Bareilly. Another Aziz Ahmad s/o Nyaz Ahmad was living near that house and he took advantage and occupied that vacant house. After proper enquiry it was found that Aziz Ahmad s/o Nyaz Ahmad was not the real owner of the property. He had tried to cheat the Government and the public. Thus by the said notice Mohammad Unis s/o Aziz Ahmad s/o Nyaz Ahmad was informed that he could not claim the ownership of the said property. The petitioner, Smt. Mizaj Bi, in the writ petition pleaded that she was married to one Sri Aziz Ahmad s/o Myaz Ahmad r/o Kaharwan, Gali Wazir Ali, Bareilly, who died in 1943. After the death of her first husband she contacted the second marriage with Aziz Ahmad s/o Masiullah r/o 178 Kaharwan, Gali Wazir Ali on 17-6-1945. It was said that at the time of her second marriage a Kabinnama (agreement) and a Nikahnama were executed gifting the house in question to her and possession thereof was delivered to her after the acceptance of the oral gift in presence of Mohammad Abdul Rashid Khan and Qazi Sayeed Imtiaz Ali. The second husband of the peti tioner Smt. Mizraj Bi migrated to Peshewar in 1960 leaving the gift intact and since then she claim to be in possession over the subject matter of the gift. The notice was served on her treating her to be the owner of the house in question and two shops. A copy of the said notice is filed as Annexure 3 to the writ petition. The petitioner has wrongly stated in the writ petition that the notice, Annexure 3, was sent to Mohammad Unis s/o Smt. Mizaj Bi treat ing him as owner of the property. The perusal of the notice shows that it was clearly stated that the property of Aziz Ahmad s/o Masiullah, a Pak national, stands vested in the Custodian of Enemy Property of India and continued to remain vested in the said Custodian under Sections 5 and 24 of the Enemy Property Act of 1968. A show cause notice for vacating the premises was issued along with a direction to recover possession and the income derived out of the said property from him. The petitioner and her son from her first husband both filed objection and the son of the petitioner from her first husband made it clear in his objections that he is not the owner of the property in dispute but the petitioner Smt. Mizaj Bi is the sole owner and in possession over the house in question along with two shops. The petitioner Smt. Mizaj Bi had produced only the alleged surviving marginal witness of the Kabinnama and Nikahnama, namely, Mohd Abdul Rashid Khan and herself. It has already been stated that the respondent after considering the facts and the evidence adduced by the petitioner affirmed the notice and rejected her claim and the review was also dismissed.
(3.) THE petitioner before this Court submitted that the order passed by the respondent treating the property belonging to Aziz Ahmad s/o Masiullah is patently illegal and contrary to the provisions of Sections 123 and 125 of the Transfer of Property Act. It has been submitted that the property in question was gifted by her husband by oral gift and it was accepted by the petitioner in presence of the witnesses. THE Nikahnama and Kabinnama filed by the petitioner was said to have conclusively proved that the property in question from the date of the marriage and gift i. e. 17-6-1945 stood trans ferred and gifted to the petitioner Smt. Mizaj Bi. THE transfer of property by way or oral gift was submitted to be a valid gift even according to the provisions of the Transfer of Property Act and under the provisions of Sections 17 (1) (a) and 49 of the Registration Act it was not required to get the gift deed registered. THE learned counsel for the petitioner referred to the decision reported in AIR 1966 SC 1194, Maqbool Alam Khan v. Mst. Khodiya and others, laying the requirements of a Mohammadan oral gift. THE decision reported in AIR 1972 Kerala 27, Makku Rawther's Children Assan Rarther and others v. Manahahapara Charayil, was cited to show that the Registration Act was not applicable to the Muslim gift and the provisions of Section 123 of the Registration Act are over-ridden by Section 129 of the said Act. Number of other decisions were also cited by the learned counsel for the petitioner emphasising that it was neither necessary to get the gift deed registered nor a positive act by the donor vacating the premises and shifting away delivering the possession was necessary when the relations between the donor and donee were that of husband and wife. THE argument of the learned counsel for the petitioner is justified so far as the legal position is concerned. However, where the fact that the property in dispute was given by the donor by way of real gift was proved was a question of fact to be appreciated by the courts below. THE learned counsel for the petitioner placed the decision reported in AIR 1973 Delhi 266, Hafiz Abdul Basil and another v. Hafiz Ahmad Mian, and submitted that proof of genuineness of the document was to be presumed if the witness in whose presence the document was executed, prove the execu tion of the document. It was not necessary that the witness or scribe of the document has to depose to prove the document. This authority does not lay that any witness examined as scribe has to be necessarily believed if the autho rity concerned considers the fact not clinching to prove the due execution. It is not for the High Court to appreciate the oral evidence in a writ petition. THE question of marriage with the recorded owner itself not admitted rather disputed. THE mere fact that a witness of the Nikahnama claimed to have been examined in the court below does itself stand to prove the factum of marriage. THE Kabinnama, a copy of which is filed by the petitioner, is not a gift deed but as agreement alleged to 'have been executed between the husband and wife for maintenance and providing security to the wife. THE fact that the marriage had taken place and the property in question was orally gifted was dependent on pure question of appreciation of oral and docu mentary evidence. THE attending facts and circumstances were also necessary to have been proved to show that the oral gift was accepted and acted upon at least by getting the mutation of the name of the donee after the oral gift. No iota of evidence has been filed before this Court nor there is any mention in the order of the court below to show that the name of the peti tioner, Smt. Mizaj Bi, was recorded soon after the alleged Kabinnama or oral gift as the owner of the property in the Municipal assessment records or any such record of the local authority. The respondent in the counter affidavit has denied the allegation of the petitioner that Smt. Mizaj Bi was married to Aziz Ahmad s/o Masiullah. It was also pleaded that Aziz Ahmad s/o Masiullah had migrated to Pakistan in 1949 and not in 1960 to Peshawar as alleged in the writ petition. The res pondent in the counter-affidavit pleaded that the petitioner had occupied the house of Aziz Ahmad s/o Masiuliah illegally without any legal right. The documents Kabinnama and Nikahnama filed by the petitioner were said to be forged documents. The extract of assessment list for tax on the annual value of the building for the year 1957-58 to 1976 filed as Annexure 5-A to the writ petition was denied by the respondent. It was stated that the extract of assessment entry was of no consequence as it was of much later date of the alleged oral gift made in the year 1946 which apparently was prepared after the year 1976. The original recorded owner migrated to Pakistan in 1949 and the assessment of house tax was for the purposes of realising the tax from the occupier, was argued to be of no consequence.;