Chattisgarh High Court
Smt. Rushda Bano vs (Died), Shabbir Khan, Through Legal ... on 10 March, 2026
1
2026:CGHC:11530
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Judgment Reserved on: 11/12/2025
Judgment Delivered on: 10/03//2026
FA No. 161 of 2010
1 - Smt. Rushda Bano D/o Marhum Samsher Khan Aged About 30 Years
Begum - Shaikh Asif Ali, Present Address - Beed Para, Near Punjab National
Bank Raigarh, Tahsil And District Raigarh (C.G.),....(Plaintiffs)
2 - Zyyena Khan D/o Marhum Samsher Khan Aged About 28 Years R/o Near
Raipur Bekri, Qr. No. 22/415 (Present No. 41/340), Baijnath Para,
Mohammad Rauf Ward No. 41, Tahsil And District Raipur (C.G.)
... Appellant(s)
versus
1 - (Died), Shabbir Khan, Through Legal Heir, As Per Honble Court Order
Dated 08-12-2023
1.1 - (A) Shamim Begam W/o Sabbir Khan Aged About 63 Years Resident Of
Baijnathpara, Mohammad Rauf Ward No. 41, Raipur, District Raipur (C.G.)
1.2 - (B) Tabsum D/o Sabbir Khan Aged About 35 Years Resident Of
Baijnathpara, Mohammad Rauf Ward No. 41, Raipur, District Raipur (C.G.)
1.3 - (C) Yusuf Khan S/o Sabbir Khan Aged About 46 Years Resident Of
Baijnathpara, Mohammad Rauf Ward No. 41, Raipur, District Raipur (C.G.)
1.4 - (D) Ahmed Khan S/o Sabbir Khan Aged About 44 Years Resident Of
Baijnathpara, Mohammad Rauf Ward No. 41, Raipur, District Raipur (C.G.)
1.5 - (E) Fidous D/o Sabbir Khan Aged About 31 Years Resident Of
Baijnathpara, Mohammad Rauf Ward No. 41, Raipur, District Raipur (C.G.)
1.6 - Arifa S/o Sabbir Khan Aged About 30 Years Resident Of Baijnathpara,
Mohammad Rauf Ward No. 41, Raipur, District Raipur (C.G.)
2 - Nagar Palik Nigam Raipur Through Commissioner Nagar Palik Nigam
Raipurm, Nagar Palik Nigam Office, Jaistambh Chowk, Raipur (C.G.)
... Respondent(s)
Digitally signed
by ALOK
ALOK SHARMA
SHARMA Date:
2026.03.10
17:27:20 +0530
2
For Appellant(s) :
Ms. Renu Kochar, Advocate.
For Respondent(s) :
Ms. Anju Ahuja, Advocate.
Hon'ble Shri Justice Ravindra Kumar Agrawal, J.
CAV Judgment
1. The present first appeal under Section 96 of the CPC has been filed by the plaintiffs against the impugned judgment and decree dated 23-09- 2010 passed by the learned 7th Additional District Judge, Raipur, District Raipur in Civil Suit No. 05-A/2009, whereby the suit filed by the plaintiffs for declaration of title, permanent injunction and for possession of the suit property, has been dismissed.
2. For the sake of convenience, the status of the parties shown in the suit is being taken to refer to the respective parties in the present appeal.
3. The plaintiffs have filed a civil suit against the defendants for declaration of title over the suit property of House No. 41/340, situated at Baijnath Para, Mohd. Rauf Ward No. 41, Raipur, permanent injunction and vacant possession of the first floor of the suit property from the defendants, and also for damages. The admitted facts of the case are that the parties are governed by Mohammedan Law. The plaintiffs and defendant No. 1 are the children of Late Shamsher Khan. The defendant No. 1 was born from the first wife of Shamsher Khan, namely Putlan Be, who died in the year 1951. In the year 1956, Shamsher Khan performed the second marriage with Jameela Khatoon, from whom the plaintiffs were born. Shamsher Khan died on 23-04-1999. During his lifetime, Shamsher Khan purchased a house from his own income at Baijnath Para, Raipur, from its owner Mohan 3 Lal and Others, through the registered sale deed dated 21-11-1972, and came into possession of the same. Presently, the suit property is known as House No. 41/340. It is also the admitted fact that Shamsher Khan got his name mutated in Municipal Records and moved an application for the grant of permission to raise additional construction, and the sanction of the map, which was approved on 09-03-1973, and after its renovation, he started residing over the suit property along with his family. After attaining the majority, the defendant No. 1 joined the business of his father and got his name added along with his father's name in the business in the relevant official records.
4. The plaintiffs have filed the suit with the pleadings that Defendant No. 1 had strained relations with his father, Shamsher Khan, his mother, Jamila Khatun, and other family members. Due to these differences, he started living separately in 1995. At that time, through an oral family arrangement, Defendant No. 1 received the business A.S. Fabrication from his father and thereafter started operating the said business independently as its proprietor. Shamsher Khan retained the purchased residential house and continued residing there with his second wife, Jamila Khatun and the plaintiffs. Because of the strained relationship, Defendant No. 1 separated from the family and initially lived with his wife and family in a rented house at Ganjpara, Raipur. Later, in 2003, he shifted to his in-laws' residence at Village Chandrakhuri, and family interactions between them eventually ceased. Due to the deteriorating health of Shamsher Khan, the plaintiffs took care of him and provided regular care and assistance. The plaintiffs also arranged for his medicines and medical treatment. Owing to the care, attention, and support given by the 4 plaintiffs during his illness, Shamsher Khan developed special affection and love for his two daughters, who are the plaintiffs in the present case.
5. Considering his deteriorating health and being pleased with the care and arrangements made by the plaintiffs, Shamsher Khan was also concerned about the future of his daughters, who were unmarried at that time. Therefore, during his lifetime, in the presence of witnesses Sayyad Asgar Ali S/o Syed Abdul Gani, resident of Vidarbha Housing Colony, Nagpur (Maharashtra), and Zaheer Mohammad S/o Nazeer Mohammad, resident of Gudhiyari, Raipur (Chhattisgarh), as well as in the presence of the plaintiffs and their mother, Shamsher Khan expressed his intention to give the said house to the plaintiffs by way of an oral Hiba (gift). The plaintiffs verbally accepted the gift in the presence of the said witnesses. Accordingly, on 30.01.1998, Shamsher Khan formally declared the oral Hiba of the said house in favour of the plaintiffs and handed over its possession to them by delivering the keys and control of the house. From the said date, the plaintiffs accepted the oral Hiba, took possession of the house, and have been occupying and using the property as its owners and possessors. In support of the oral Hiba (gift) made by Shamsher Khan in favour of the plaintiffs, he subsequently executed a Memorandum of Oral Gift dated 07.10.1998 in the presence of witnesses, thereby confirming the earlier oral gift of the said house to the plaintiffs. Thereafter, their father Shamsher Khan died on 23-04-1999.
6. It is further pleaded that after the death of their father Shamsher Khan, the plaintiffs got their names duly mutated in the Municipal records. Thereafter, the plaintiffs, along with their mother, started residing on the 5 ground floor of the house received through the oral Hiba (gift) and the portion constructed on the first floor of the said house was given on rent to one Ibrahim Bhai and others at a monthly rent of Rs. 3,000/-. After the vacation of the tenanted premises by Ibrahim Bhai, the Defendant No. 1 forcibly entered the house on 04.05.2003, taking advantage of the fact that the plaintiffs and their mother were women, and began residing there. He assured the plaintiffs that he would arrange another place for himself within a few days and would vacate the house and hand over peaceful possession to them. However, Defendant No. 1 failed to hand over the vacant possession of the house. Consequently, the plaintiffs lodged a complaint against him at City Kotwali Police Station on 06.04.2004. The Defendant No. 1 has forcibly occupied the portion situated on the first floor of the suit house, which has been marked with blue colour in the map annexed with the plaint, and the said map has been referred to as the suit property in the plaint.
7. After the said incident, Defendant No. 1, in collusion with Defendant No. 2, got his name mutated in the official records along with the names of the plaintiffs without informing them. By doing so, Defendant No. 1 challenged the ownership rights of the plaintiffs over the said property. The plaintiffs have served a legal notice through their counsel by UPC post/Regd. AD post to the defendant No. 1 on 10-11-2008, but the said notice has not been replied to by him. Consequently, the plaintiffs were compelled to file the present suit against Defendant No.
1.
8. The defendant No. 1 filed his written statement and denied the plaint averments. He pleaded that the contents of paragraph 8 of the plaint 6 are false and misleading. It is pleaded that due to the advanced age of Shamsher Khan, the defendant No. 1, being the only male member of the family, was managing the business of A.S. Fabrication and meeting the entire family's expenses. Because of frequent disputes among the female members of the family, defendant No. 1 rented a separate house apart from the suit property and resided there. During the lifetime of Shamsher Khan, defendant No. 1 bore all the expenses of the family. He denied the verbal partition of the family property. He further denies the claim that the suit property was given by Shamsher Khan to the plaintiffs on 30.01.1998 or on any other day as an oral gift (hiba), or that possession of the property was handed over to the plaintiffs at the time of such gift. It is also denied that regarding the oral gift (hiba), a Memorandum of Gift was executed on 07.10.1998 in the presence of witnesses by Shri Shamsher Khan. The statement that the plaintiffs accepted the oral gift and thereby obtained ownership and possession of the disputed property is also false. The said Memorandum of Gift is a fabricated document. Shamsher Khan never transferred the suit property to the plaintiffs by way of an oral gift, nor has the plaintiff ever obtained ownership or possession of the property. The defendant No. 1 lawfully obtained possession of a portion of the suit property as part of their inherited share and continues to legally occupy and possess that portion of the property to date. The defendant further states that the plaintiffs made a false complaint at the City Kotwali police station regarding the property. He admitted that he got his name mutated along with his mother and sisters jointly in the municipal records. The plaintiffs did not acquire the suit property through any alleged oral gift (hiba). Shamsher Khan never 7 transferred the property to the plaintiffs by way of an oral gift. The alleged oral gift and the subsequent Memorandum of Gift are fabricated documents. The plaintiffs are not entitled to claim any alleged compensation or to obtain a permanent injunction, nor can defendant No. 1 be evicted from any portion of the disputed property.
9. It is also pleaded in the written statement the plaintiffs and defendant No. 1 are governed by Sunni Muslim law. According to Sunni Muslim law, after the death of Shamsher Khan, the entire suit property is to be inherited as follows: Smt. Jameela Khatun (the widow) is entitled to 1/8 share, the son (defendant number one) is entitled to 7/12 share, and the daughters (plaintiffs) are entitled to 7/24 share. In view of the above, he is in lawful possession of only a proportionate share of the property and continues to occupy it accordingly. The plaintiff's suit is liable to be dismissed as they have no valid claim over the portion of the property lawfully possessed by defendant No. 1.
10. Defendant No. 2, the Municipal Corporation, Raipur, in its written statement, has categorically denied the allegations made in the plaint. It is pleaded that most of the matters raised in various sections of the plaint are either not related to this defendant or, in the absence of knowledge, are denied. Specifically, it is stated that the approval of maps, issuance of permissions, and related documentation are matters for which the plaintiff carries the burden of proof. The defendant No. 2 averred that all actions taken, including mutation proceedings, were carried out in strict accordance with the law and applicable municipal procedures. The allegations that actions were taken without providing a hearing or that the defendant No. 2 acted improperly are specifically denied. The valuation of the suit, arising of the cause of 8 action are also denied and prayed for dismissal of the suit.
11. Based on the pleadings, the learned trial Court framed the following issues:-
1. क्या वादग्रस्त सम्पत्ति को मृतक शमशेर खान ने स्व-अर्जित आय से कय कर स्वामित्व एवंआधिपत्य प्राप्त किया था \
2. क्या मृतक शमशेरखान ने अपने जीवनकालमें वादीगण को वार्ड क्रमांक-41 स्थित भवन नम्बर-340 वादग्रस्त सम्पत्ति को मौखिक हिबा (दान) के द्वारा आधिपत्य एवं स्वामित्व सौंप दिया या ? या मेमोरेण्डम ऑफ ओरल गिफ्ट दिनांक 07.10.1998 को निष्पादित किया था?
3. क्या प्रतिवादीकं 0-1 के द्वारा वादीगण के उक्त स्वामित्व एवं आधिपत्य के भवन के वादग्रस्त हिस्से में प्रतिवादी कं 0-1 ने दिनांक 04.05.2003 से बलात प्रवेश कर कब्जा कर लिया है?
4. क्या बादी, प्रतिवादीगण के बलात कब्जा करने के कारण 3,000/-रू० मासिक की दर से फरवरी 2006 तक की हर्जाना राशि 1,05,000/-रू० प्रतिवादी कं ०-1 से प्राप्त करने का अधिकारी है ?
5. क्या वादीगण द्वारा शमशेरखान की पत्नी श्रीमती जमीलाखातून को पक्षकार नहीं बनाये जानेसे प्रकरण प्रचलन योग्य नहीं है ?
6. क्या वादग्रस्तभवन पर प्रतिवादी 0-1 को 1/7 हिस्सा प्राप्त करने की अधिकारिता है?
7. सहायता एवं व्यय ?
12. In support of their claim, the plaintiff No. 1, Rusda Bano, examined herself as P.W. 1, Gosai Ram Patel, P.W. 2, Zaheer Mohammad, P.W. 3, and Mukhtar Ahmad, P.W. 4. They relied upon the documents sale deed dated 21-11-1972 (Ex. P-1), Memorandum of Oral Gift (Ex. P-2), Building permission (Ex. P-3), Municipal tax receipts (Ex. P-4 to Ex. P-
7), Permission to construct house (Ex. P-8 and Ex. P-9), Death certificate of Shamsher Khan (Ex. P-10), copy of the order dated 27- 06-2008 passed in W.P.C. No. 6265/2007 (Ex. P-11), Legal Notice dated 10-11-2008 (Ex. P-12), and Postal receipts and acknowledgement (Ex. P-13 to Ex. P-15).
9
13. The defendant No. 1, Shabbir Khan, examined himself as D.W. 1, but has not relied upon any documents in his support.
14. After hearing the parties, the learned trial Court passed its judgment and decree and dismissed the suit of the plaintiffs, holding that the plaintiffs have failed to prove that their father had given the suit property on oral gift (hiba) to them and executed a memorandum of oral gift on 07-10-1998. Hence, this first appeal.
15. Learned counsel for the appellants/plaintiffs would submit that the learned trial Court erred in dismissing their suit, as the evidence clearly establishes a valid oral Hiba (gift) of the suit property by Late Shamsher Khan. Under Sunni Mohammedan Law, a gift (hiba) is valid when the donor expresses a clear intention to give, the donee accepts it, and possession is delivered. In this case, Shamsher Khan, during his lifetime, expressly declared the gift of House No. 41/340 to his daughters on 30-01-1998, handing over keys and control of the property, which constitutes delivery of possession as required under law. The learned trial Court has found that the suit property is the self- acquired property of Late Shamsher Khan. When the learned trial Court considered that under the Mohammedan Law, oral gift (hiba) is permissible, subject to its acceptance by the donee, however, in the present case, there is lack of evidence with respect to oral gift given by Late Shamsher Khan, which is erroneous. They should have considered that in furtherance of an oral gift (hiba), a memorandum of gift is executed on 07-10-1998 by Late Shamsher Khan in the presence of the witnesses. She would further submit that the learned trial court erroneously discussed that the plaintiffs have submitted that 10 on 01-10-1998, they got the possession of the suit property on oral gift from their father Late Shamsher Khan, whereas the memorandum of gift shows that the possession of the suit house was given on 07-10- 1998, and thus, on 30-01-1998, there was no delivery of possession as claimed by the plaintiff, which makes their claim doubtful. The learned trial Court erroneously considered the discrepancy in the date of the memorandum of gift, whether it was executed on 01-10-1998 or 07-10- 1998. She would also submit that there was no reason to disbelieve the document Ex. P-2, i.e. the memorandum of gift, yet it has been disbelieved by the learned trial Court. The plaintiffs accepted the gift and have since continuously occupied and exercised control over the property, which is further corroborated by the Memorandum of Oral Gift dated 07-10-1998 (Ex. P-2) executed in the presence of witnesses. The trial Court failed to appreciate the provisions of Clauses 142 to 152 of the Mohammedan Law, which relate to the disposition of the property of a Mohammedan by oral gift. that such oral and corroborative evidence is legally sufficient to prove a valid Hiba. It is also submitted that under Sunni Muslim inheritance law, while daughters are entitled to a share of the property after the death of their father, such shares are subject to any inter vivos gift made during the lifetime of the father. Shamsher Khan, being the absolute owner of the property, had full authority to gift the house to his daughters, and the gift supersedes any claims of inheritance by the son (Defendant No.1). The plaintiffs have also performed all acts of ownership, including mutation of municipal records, collection of rent, and maintenance of the property, thereby confirming their proprietary rights. The forcible occupation of the first floor by Defendant No.1 on 04-05-2003 was 11 unlawful and in contravention of the plaintiffs' established possession under the valid gift.
16. She would further submit that in light of the above, the plaintiffs respectfully pray that this Hon'ble Court may be pleased to allow the appeal, declare that the suit property was lawfully gifted to the plaintiffs, and direct Defendant No.1 to vacate and deliver peaceful possession of the first floor. The plaintiffs further seek a permanent injunction restraining Defendant No.1 from interfering with their possession, along with costs of the appeal. In support of her submission, she would rely upon the judgment of "Abdul Rahim and Others v. Sk. Abdul Zabar and Others" 2009 (6) SCC 160.
17. Per contra, learned counsel appearing on behalf of Defendant No. 1 submits that the judgment and decree passed by the learned trial court are well-reasoned and based upon a meticulous appreciation of the entire oral as well as documentary evidence available on record. It is submitted that the trial court has properly scrutinized the material placed before it and has rightly exercised its discretion in accepting the consistent, cogent, and reliable evidence adduced by the parties while rejecting the unsubstantiated and unsupported claims advanced by the plaintiffs. The findings recorded by the trial court are based on due consideration of the pleadings and evidence, and therefore, the same do not warrant any interference. Learned counsel further submits that the suit property admittedly consists of a double-storied residential house; however, the alleged memorandum of oral gift (Ex. P-2), upon which the plaintiffs place heavy reliance, refers only to a single-storey portion of the said property. This inconsistency itself creates serious 12 doubt regarding the genuineness and authenticity of the plaintiffs' claim. It is further contended that Defendant No. 1 is in possession of the first floor of the suit property by virtue of his lawful right of inheritance, and such possession has neither been effectively challenged nor disproved by the plaintiffs through any reliable evidence.
18. She would further submit that under the principles governing an oral gift (hiba), once a valid oral gift is made by declaration, accepted by the donee, and followed by delivery of possession, the transaction stands complete and no written instrument is required for its validity. In the present case, however, the plaintiffs themselves claim that the oral gift was declared on 30-01-1998, whereas the so-called memorandum of oral gift was executed much later on 07-10-1998. Learned counsel contends that if the oral gift had in fact been validly completed on 30- 01-1998, there would have been no necessity whatsoever to execute a memorandum of oral gift at a later stage. This circumstance strongly indicates that the document was subsequently prepared with the intention of creating evidence in support of a claim that did not actually exist. It is also submitted that there is a material discrepancy in the dates mentioned in the memorandum of oral gift (Ex. P-2). The document reflects that the witnesses had signed the same on 01-10- 1998, whereas the document was notarised only on 07-10-1998. Such inconsistency in the dates raises serious suspicion regarding the authenticity of the document and suggests that there may have been manipulation or interpolation in the date of execution. Learned counsel submits that the trial court has rightly taken note of this discrepancy 13 while evaluating the credibility of the document relied upon by the plaintiffs.
19. Learned counsel further argues that the testimony of the alleged witness to the oral gift, namely Zaheer Khan, cannot be safely relied upon as he is an interested witness, being the maternal uncle of the plaintiffs. His close relationship with the plaintiffs renders his testimony partisan and lacking in independent corroboration. The trial court, therefore, was justified in treating his evidence with caution and in declining to place implicit reliance upon the same. She also submits that the documentary evidence produced by the plaintiffs themselves clearly demonstrates that municipal taxes in respect of the suit property were paid by Jameela Khatoon, who is the mother of the plaintiffs. This fact is reflected in the documents marked as Ex. P-4 to Ex. P-7. Payment of municipal taxes is a significant circumstance reflecting possession and control over the property. If the suit property had genuinely been gifted to the plaintiffs, it would have been natural and expected that the municipal taxes would have been paid by them in their own names. The fact that the taxes continued to be paid by their mother clearly indicates that she remained in possession and control of the property, thereby contradicting the plaintiffs' claim that the property had already been transferred to them through an oral gift. The plaintiffs have also failed to produce any documentary evidence to substantiate their claim that the suit property was mutated in their names in the municipal or revenue records. Mutation of property, though not a document of title, is nonetheless an important circumstance reflecting possession and recognition of ownership by public authorities. In the 14 absence of any such document, the plaintiffs' assertion that the property stood mutated in their names remains a mere bald statement without any evidentiary support.
20. The plaintiffs have completely failed to discharge the burden of proving the essential ingredients of a valid oral gift as required by law. The inconsistencies in the documentary evidence, the doubtful nature of the memorandum of oral gift, the interested testimony of the alleged witness, and the conduct reflected from the payment of municipal taxes collectively demonstrate that the plaintiffs' case lacks credibility and foundation. The findings recorded by the trial court are based on proper appreciation of evidence and settled principles of law, and as such, the same do not call for any interference by this Court in the present appeal. The appeal, being devoid of merit, is therefore liable to be dismissed.
21. I have heard learned counsel for the respective parties and perused the record and gone through the pleading and evidence of the parties.
22. The point for consideration in the present case would be whether the plaintiffs have proved the execution of an oral gift of the suit property in their favour on 30-01-1998 by Late Shamsher Singh, and a memorandum of oral gift Ex. P-2 dated 07-10-1998 and acquired title over the suit property.
23. The learned Trial Court, in its judgment, held that the burden of proof was on the plaintiffs to establish that the disputed house had been transferred to them by late Shamsher Khan through a valid oral gift (hiba) and that a subsequent memorandum of oral gift dated 15 07.10.1998 was executed in their favour. Although the plaintiffs claimed that Shamsher Khan orally gifted the property to them on 30.01.1998 in the presence of witnesses and delivered possession, the court found that there was no reliable independent evidence to prove such a declaration or delivery of possession. The only supporting witness examined was Zaheer Mohammad, who was the maternal uncle of the plaintiffs and therefore not an independent witness. Further, municipal tax receipts and other documents indicated that after the death of Shamsher Khan in 1999, the property remained in the possession of the plaintiffs' mother, Jamila Begum, as taxes were paid in her name. The plaintiffs also failed to produce any documentary proof showing mutation of their names in municipal records or other evidence confirming their possession.
24. The trial court also examined the memorandum of oral gift (Ex.P-
2) relied upon by the plaintiffs and found several discrepancies regarding its execution and attestation. The dates appearing on the signatures of the attesting witnesses differed from the alleged date of execution, suggesting alteration of the date. Moreover, the evidence showed that the attesting witnesses had not actually seen Shamsher Khan sign the document, which is required to prove execution under Sections 67 and 68 of the Indian Evidence Act, 1872. Although the document had been notarised, the court held that notarization alone does not prove valid execution. In view of these inconsistencies and the lack of credible evidence, the court concluded that the plaintiffs failed to prove both the oral gift and the memorandum of oral gift, and 16 therefore held that Shamsher Khan had not transferred ownership or possession of the disputed property to the plaintiffs during his lifetime.
25. It is necessary here to notice the relevant provision of Mohammedan Law with respect to a gift. Under the Mohammedan Law, oral gift (hiba) is also permissible, subject to certain conditions. Chapter 11 of Principles of Mahomedan Law authored by Sir Dinshaw Fardunji Mulla, 23rd Edition reprint 2025 provided the gits under the Mahomedan Law. Clause 138 of Chapter 11 provides the gift (Hiba). Clause 142 define the Extent of donor's power and Clause 147 provides the Writing is not essential to the validity of the gift or either or movable or immoveable property. Clause 149 provides the three essential of a gift i.e. (1) a declaration of gift by donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee and (3) delivery of possession of the subject of the gift of the donor to the donee as mentioned in Clause 150, if these conditioins are complied with, the gift is complete and Clause 150 provides for Delivery of possession. In view of the provisions of Mohammedan Law, this Court examine the evidence of the parties to ascertain the perversity of the finding recorded by the learned trial Court, if any.
26. In the Case of Dharmrao Sharanappa Shabadi and Others vs. Syeda Arifa Parveen, 2025 SCC OnLine SC 2155, the Hon'ble Supreme Court has considered the scope of oral gift (Hiba) under the Mahomedan Law and held that:
"34. The Plaintiff, for the relief of declaration, sets up two narratives; namely, (a) that on 05.12.1988, Khadijabee, through an oral gift/Hiba, gifted to Plaintiff 17 10 acres in the Suit Property. On 05.01.1989, Ex.-P8, a memorandum of gift deed, recording a past oral gift, was executed, and (b) on 09.09.2001, Abdul Basit died, and she remained the only heir and successor to the estate of Khadijabee. As PW1, the Plaintiff deposes that the three elements of a valid Hiba/oral gift were complied with, and the property with an extent of 10 acres stood transferred. The Plaintiff, being the donee, her evidence is appreciated after appreciating other oral and documentary evidence available on record. The Defendants have denied the oral gift and also Ex. P-8, a memorandum of gift deed. As discussed supra, the Trial Court disbelieved the oral gift and also Ex. P-8. The High Court, by introducing a case not stated by the Plaintiff, accepted Hiba.
35. In Abdul Rahim v. Sk. Abdul Zabar, Rasheeda Khatoon v. Ashiq Ali, Hafeeza Bibi v. Sk. Farid, and Mansoor Saheb v. Salima, this Court had considered the various aspects underlying the transfer of property through Hiba. Hiba is a disposition between living persons and is fundamentally an act of benevolence. The theological underpinnings trace back to the Prophet Mohammed (PBUH), who is reported to have said, "Exchange gifts among yourselves so that love may increase."
36. The oral gift and the effect of a valid oral gift are reiterated as follows:
36.1 There are three essential conditions for an oral gift under Mohammedan Law.
First, a clear manifestation of the wish to give on the part of the donor. Second, an acceptance of the gift by the donee, which can be either implied or explicit.
18Third, taking of possession of the subject-matter of the gift by the donee, either actually or constructively. 36.2 A gift under Mohammedan Law does not require a written document to be valid. An oral gift that fulfils the three essential requisites is complete and irrevocable. The mere fact that a gift is reduced to writing does not change its nature or character. A written document recording the gift does not become a formal instrument of gift.
36.3 The distinction that a written deed of gift is not required to be registered if it "recites the factum of a prior gift" but must be registered if the "writing is contemporaneous with the making of the gift" is considered "inappropriate and is not in conformity with the rule of gifts in Mohammadan Law".13 Section 129 of the Transfer of Property Act, 1882 ('Transfer of Property Act') excludes the rule of Mohammedan Law from the purview of Section 123, which requires registration for the gift of immovable property.
36.4 Delivery of possession is a critical and necessary element for a valid gift. It can be actual or constructive. Constructive possession can be demonstrated by overt acts by the donor that show a clear intention to transfer control. For example, the donor applies for the mutation of the donee's name in the revenue records.
36.5 Continuous evidence of acting under the oral gift is crucial to prove the delivery of possession. The donee must be able to demonstrate "exclusive control" over the property to derive benefit under it, such as by collecting rent, or by the donor performing acts like mutation on behalf of the donee. Conversely, the donor's continued collection of rent and the donee's lack of control over 19 title documents or mutation records can be evidence that possession was not transferred."
27. In her examination-in-chief, the plaintiff Smt. Rusda Bano, P.W. 1, stated as per her plaint averments. In cross-examination, she stated that she could not tell about the floors for which the permission was granted through the document Ex. P-5. The First floor was constructed in the year 1987-88. The oral gift was accepted by her and her sister on 07-10-1998. The document of Ex. P-2 was scribed on 07-01-1998, and it was signed by the witnesses Asgar Ali and Zaheer Mohammad on 07-10-1998. At this juncture, she stated that the document of Ex. P- 2 was prepared on 01-10-1998, and the date is mentioned in it accordingly. She and her sister signed the document on 07-10-1998. She admitted that the suit house is of double storied house. She further admitted that in the memorandum of oral gift deed, Ex. P-2, the suit house is shown as single-storeyed. Even in the map annexed with the memorandum of oral gift, it is not shown as double storeyed house. She further admitted that after obtaining the house in oral gift and execution of the memorandum of partition on 07-10-1998, they moved their application for mutation, and their names have been mutated in the municipal records. She also admitted that in the document Ex. P-4 to P-6, the suit property is shown to be recorded in the names of their mother, Smt. Jameela Bagum, Rusda Bano and Zuyena Bano. She further stated that she averred in her plaint that her father had given a share of the property to the defendant No. 1, but has not produced any evidence. She has not filed any document with respect to the mutation of their names in the municipal records.
20
28. P.W. 2, Gosai Ram Patel, Notary/Advocate, has stated in his evidence that on 07-10-1998, Shamsher Khan executed a memorandum of oral gift in the presence of the witnesses. The copy of the Notary register is Ex. P-16, and the memorandum of oral gift is Ex. P-2. In cross- examination, he stated that he was not acquainted with the executor of the deed, but acquainted with Zaheer Mohammad, and through him, he identified Shamsher Khan. He has not obtained signature of the witnesses in the deed Ex. P-2.
29. P. W. 3, Zaheer Mohammad, stated in his evidence that his brother-in-
law, Shamsher Khan, acquired the suit property from his own income. He used to visit his house since long time. Due to the dispute with the defendant No. 1, Shamsher Khan was residing with the plaintiffs and gave the business to the defendant No. 1 in partition. Shamsher Khan gave the suit property to the plaintiffs on oral gift, and on 07-10-1998, he executed a memorandum of oral gift in the presence of the witnesses and got it notarized. The memorandum of oral gift was prepared earlier, and it was notarized on 07-10-1998.In the year 2003, the defendant No. 1 forcefully possessed the upper floor of the suit property and has not vacated. In cross-examination, he stated that in the document Ex. P-2, he signed before the notary on 07-10-1998, but it reflected as 01-10-1998. The other witness, Asgar Ali, has put the date of 01-10-1998. He admitted that both the plaintiffs have signed the deed, Ex. P-2 on 07-10-1998 and accepted the gift. The suit property is double storied house and was constructed by Shamsher Khan. He also admitted that in the memorandum of oral gift Ex. P-2, the suit property is shown as a single-storeyed house, and the annexed map is also single-storeyed.
21
30. The burden of proof lay on the plaintiffs to establish that the disputed house was transferred to them by late Shamsher Khan through a valid oral gift (hiba) and that a subsequent memorandum of oral gift dated 07.10.1998 was executed in their favour. It was undisputed that Shamsher Khan had two wives. The defendant Shabbir Khan was the son of the first wife, while the plaintiffs, Rusda Bano and Juyena Khan, were daughters of the second wife, Jamila Khatoon. Thus, the parties were step-siblings. The plaintiffs contended that because they had taken care of their father during his illness, he expressed his intention to gift the disputed house to them in the presence of witnesses Asgar Ali and Zaheer Mohammad and orally gifted the property on 30.01.1998, simultaneously delivering possession. They further claimed that a written memorandum of oral gift (Ex. P-2) was later executed on 07.10.1998, after which they allegedly got their names mutated in the municipal records and even let out a portion of the house on rent.
31. While examining the claim of oral gift, it is noted that under Muslim law, an oral gift of immovable property is valid if three essential elements are proved: declaration of gift by the donor, acceptance by the donee, and delivery of possession. However, the court found that there was no reliable independent evidence proving these elements. The plaintiff, Rusda Bano, stated that the oral gift was made in the presence of Asgar Ali and Zaheer Mohammad, but only Zaheer Mohammad was examined as a witness. The court observed that Zaheer Mohammad was the maternal uncle of the plaintiffs and, therefore, not an independent witness. Consequently, his testimony, merely corroborating the statement of Rusda Bano, was considered 22 insufficient to conclusively establish that Shamsher Khan had declared and completed the oral gift in favour of the plaintiffs.
32. The court further examined whether possession of the property had actually been delivered to the plaintiffs as claimed. Documentary evidence produced in the case, particularly municipal tax receipts (Ex. P-4 to Ex. P-7), showed that after the death of Shamsher Khan on 23.04.1999, the property tax and related municipal dues were paid in the name of Jamila Begum, the mother of the plaintiffs, and not in the names of the plaintiffs. These documents indicated that the possession and control of the property continued with Jamila Begum even after the alleged oral gift. Additionally, although the plaintiffs claimed that their names had been mutated in the records of the Municipal Corporation, they failed to produce any documentary proof of such mutation. These circumstances created serious doubt regarding the plaintiffs' assertion that possession of the property had been delivered to them in January 1998.
33. It is also necessary to scrutinise the memorandum of oral gift (Ex. P-2) produced by the plaintiffs. In law, if a document is alleged to have been executed by a person, its execution must be proved in accordance with Sections 67 and 68 of the Indian Evidence Act, 1872, which require proof of the signature and proper attestation by witnesses. During the evidence, discrepancies were noticed regarding the date of execution. While the plaintiffs claimed that the document was executed on 07.10.1998, the signatures of the attesting witnesses, Asgar Ali and Zaheer Mohammad, bore the date 01.10.1998, suggesting alteration of the date. The evidence further revealed that the witnesses had not actually seen Shamsher Khan sign the document. Therefore, it is held 23 that the document had not been validly proved as executed in the presence of the attesting witnesses, as required by law.
34. Although the notary, G.R. Patel, P.W. 2, stated that the document had been notarized on 07.10.1998, it has been observed that a notary is not an attesting witness to the execution of the document. Notarization alone cannot prove execution unless the statutory requirements of attestation are fulfilled. In view of the inconsistencies in dates, the absence of reliable attesting witnesses, and the lack of proof that the donor signed the document in their presence, it is concluded that the memorandum of oral gift had not been validly executed or proved. Further, the witnesses have admitted that the suit property is a double- storied house, whereas in the memorandum of oral gift, the description of the property is shown as single storied house, which also makes it doubtful. Consequently, it can be held that the plaintiffs failed to establish either a valid oral gift or a valid written memorandum supporting such a gift. Accordingly, the issue was decided against the plaintiffs, holding that Shamsher Khan had not transferred ownership or possession of the disputed house to them by way of hiba during his lifetime.
35. It is pertinent to note that, as per the evidence of P.W.1, there was no acceptance of the alleged gift on 30-01-1998. She has categorically stated in her cross-examination that the alleged oral gift was accepted by her and her sister only on 07-10-1998. However, it has also come in her evidence that the Memorandum of Oral Gift (Ex. P-2) had been prepared on an earlier date, before 07-10-1998, and the same was merely signed by her, her sister and the witnesses on 07-10-1998. Thus, on the date of execution/preparation of the document, there was 24 admittedly no acceptance of the gift. In view of these inconsistencies in the plaintiff's own evidence regarding the date of preparation of the document and the alleged acceptance, the essential requirements of a valid Hiba, namely declaration and contemporaneous acceptance of the gift, do not stand satisfactorily proved. Accordingly, the alleged Hiba cannot be said to have been duly established by the plaintiff.
36. It is also a relevant fact that the plaintiffs have pleaded in paragraphs 19 and 20 of the plaint that the defendant No. 1 has forcefully entered into the first floor of the suit premises on 04-05-2003; however, the present suit is filed on 15-01-2009. Had the defendant forcefully possessed the first floor of the suit property, the plaintiffs would have filed the suit for vacant possession immediately.
37. In the judgment of "Abdul Rahim" (supra), the Hon'ble Supreme Court reiterated the settled principles of Mohammedan Law relating to Hiba (gift) and held that for a valid gift three essential ingredients must be proved: (i) a clear declaration of gift by the donor, (ii) acceptance of the gift by the donee, and (iii) delivery of possession of the subject property. The Court further observed that when a written document itself purports to effect the gift, it must satisfy the legal requirements, and if the essential ingredients of Hiba are not established by evidence, the gift cannot be said to be validly proved. Applying the aforesaid principles to the facts of the present case, the plaintiff has failed to establish the essential ingredients of a valid Hiba. As per the evidence of P.W.1, there was no acceptance of the gift on 30-01-1998, and the acceptance is stated to have taken place only on 07-10-1998. At the same time, the memorandum of oral gift (Ex. P-2) was prepared earlier. Thus, the declaration and acceptance are not shown to be 25 contemporaneous, and the evidence regarding delivery of possession is also not satisfactorily proved. In view of these material inconsistencies, the alleged oral gift cannot be said to have been validly established. Therefore, rather than supporting the plaintiff, the principles laid down in the aforesaid judgment in fact militate against the plaintiff's case, as the mandatory requirements of a valid Hiba have not been proved on record.
38. In the present case, the plaintiff No. 1, Rusda Bano, has alleged that the defendant, No. 1, forcibly took possession of the first floor of the suit premises, thereby entitling her to receive rent at the rate of Rs. 3,000/- per month and damages amounting to Rs. 1,05,000/- up to February 2006. Upon examining the evidence, it is noted that the plaintiff's assertions regarding the tenancy of Ibrahim and the collection of rent lack independent corroboration. The supporting testimony of Zaheer Mohammad, being a maternal relative of the plaintiff, cannot be considered reliable. Furthermore, while Mukhtyar Ahmed deposed that he had rented the entire first floor of the premises from May 1999 to May 2001 at the said rent, there is no evidence to show that the plaintiff received rent from him during that period. In the absence of credible and sufficient evidence establishing forcible possession by the defendant No. 1 or the entitlement to rent and damages, the plaintiffs have failed to prove the claim. Accordingly, the claim of arrears of rent and damages is also found not proved.
39. In view of the foregoing discussion and appreciation of the pleadings and evidence on record, it is evident that the plaintiffs have failed to satisfactorily prove the alleged oral gift (Hiba) in their favour. The evidence of P.W.1 itself reveals material inconsistencies regarding the 26 date of declaration, acceptance and preparation of the memorandum of gift, and the essential ingredients of a valid Hiba, namely declaration, acceptance and delivery of possession, have not been duly established. The reliance placed on the judgment in Abdul Rahim (supra) also does not support the plaintiffs, as the foundational requirements for a valid gift under Mohammedan Law remain unproven. Accordingly, the plaintiffs have not been able to establish their exclusive title and possession over the suit property, and therefore, the impugned judgment and decree do not call for interference. The appeal, being devoid of merit, is hereby dismissed.
40. Parties shall bear their own costs.
41. An appellate decree be drawn accordingly.
Sd/-
(Ravindra Kumar Agrawal) Judge Alok