TaxTMI 
TaxTMI 
2018 (8) TMI 2163
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....t to the suit property comprising of ground floor and first floor of property bearing no. J-67/2, Thokar no. 4, Abdul Fazal Enclave, Part-I, Okhla, New Delhi on plot of 62 sq. yds. (hereinafter referred to as "the suit property"). 2. The case set up by the respondent/plaintiff was that he purchased the suit property from one Laiq Ahmed in terms of documentation dated 20.2.2008 being the Agreement to Sell (Ex. PW1/F), Affidavit (Ex. PW1/H), General Power Attorney (Ex. PW1/G), Will (Ex. PW1/I), Receipt (PW1/J) etc. The seller Laiq Ahmed has purchased the suit property from the earlier owner Islauddin Safi and who was the owner of the suit property in terms of General Power of Attorney (Ex. PW3/1) and Special Power of Attorney (Ex. PW3/2). ....
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....er Laiq Ahmed out of the natural love and affection and that in Muslim law oral gift/Hibba with possession was permissible and appellant/defendant since gifting to him of the suit property on 29.11.1997 was in possession of the same. Suit was therefore prayed to be dismissed. 4. After pleadings were complete, trial court framed issues and evidence was led by the parties, and which aspects are stated in paras 2.1, 2.2 and 3.1 of the impugned judgment and these paras read as under : "2.1 On 03.08.2011, the following issues were framed, from the pleadings and record of parties : 1. Whether the plaintiff has locus-standi to file the suit ? OPP 2. Whether it is collusive suit of the plaintiff and the defendant's....
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..../J) and PW3 Sh. Vimal Kumar, Head Clerk from the Office of SubRegistrar, Mehrauli with regard to registration of General Power of Attorney and Special Power of Attorney (Ex. PW3/1 = MarkA/PW1 and Ex. PW3/2 = MarkB/PW1, respectively), then evidence was closed in affirmative. Similarly, in order to discharge the onus of proof by the defendant, the defendant /DW1 himself appeared in the witness box and also got examined his bhabhi/DW2 Ms. Shabnam, DW3 Sh. Riazuddin, DW4 Sh. Avdesh Kumar Mishra with regard to the circumstances or their presence on 29.11.1997 about Hibba or Sh. Laiq Ahmed left the suit property and lastly got examined DW5 Sh. Zeeshan to establish that he is tenant in a portion in suit property on a monthly rent of Rs. 2,000....
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....of the donee; and (3). delivery of possession of the subject of the gift by the donor to the donee. Their personal law does not require registration of Gift as per sections 123-129 of Transfer of Property Act and; (g) There was an FIR No. 334/2000 through the complainant Smt. Tahira and it has been decided on 14.01.2009, which result into acquittal of defendant, as per judgment (Mark G/DW1)." 5. The only issue to be decided by this Court is as to whether there existed a valid oral gift/Hibba by Laiq Ahmed in favour of his brother, and who is the appellant/defendant herein. 6. Trial court has disbelieved the case of the appellant/defendant that the suit property was gifted to the appellant/defendant by his brother Laiq Ah....
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....vit (Ex. PW1/H), Will (Ex. PW1/I), Receipt (PW1/J) in view of the Act 48 of 2001 becoming effective from 24.1.2001 and by which Act, documents such as agreement to sell cannot be looked into for conveying the title of part performance under Section 53A of the Transfer of Property Act, 1882 of the property unless the same are duly stamped and registered. Trial court in this regard has held that the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1 (SC) being only prospective in nature and therefore will not affect the validity of the subject documents executed in 2008, however in my opinion this reasoning is questionable, but the subject suit for possession still ha....