Bala Din & Others vs Lallu Mal Jain & Others
2013 Latest Caselaw 1877 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 9
 
Case :- SECOND APPEAL No. - 132 of 1992
 
Petitioner :- Bala Din & Others
 
Respondent :- Lallu Mal Jain & Others
 
Petitioner Counsel :- S. Mirza,Shafiq Mirza
 
Respondent Counsel :- H.S. Sahai,Deepak Chand Jain
 

 
Hon'ble Aditya Nath Mittal,J.

1. This second appeal has been filed against judgment and order dated 21.2.1992 passed by Addl. District Judge, Barabanki in First Appeal No.192 of 1989.

2. Heard learned counsel for the appellants, learned counsel for the respondents and perused the record.

3. The following substantial questions of law have been raised by learned counsel for the appellants.

(1)Whether in absence of pleadings regarding oral gift, plaintiffs can derive valid title entitling the plaintiffs to bring a suit for possession.

(2)Whether any consideration is required under Muslim Law for making an oral gift valid in the eyes of law.

4. Second appeal is admitted. Learned counsel for both the parties are ready for arguments, hence this appeal is taken up for disposal.

5. The respondents no.1, 2 and 3 (hereinafter referred as plaintiffs) filed a suit for possession against the appellants and respondents no.4 to 11 (hereinafter referred as the defendants) alleging that Hakim Buniyad Husain had gifted property in dispute to plaintiff no.3 Arif Husain by oral gift in June, 1963 and the plaintiff no.3 remained in possession of the property in dispute but when the plaintiff no.3 collected the material for construction, the defendant no.7 raised objection and tried to disposses him. The plaintiff no.3 moved an application before the Superintendent of Police, Barabanki on 20.10.1976, regarding which proceedings under Section 145 Cr.P.C. were drawn on 30.10.1976. Having knowledge of the said proceedings, the defendant no.7 along with professional criminals took possession forcibly over the land in dispute in the absence of plaintiff no.3. The plaintiff no.3 executed a sale deed in favour of plaintiffs no.1 and 2 on 20/21.1.1977 and handed over the possession to plaintiffs no.1 and 2. Later on the plaintiff no.3 came to know that defendant no.7 Kasim Mohd. Yasin had also executed a sale deed dated 19.1.1977 in favour of the defendants no.1 to 6 which is void. The plaintiff no.3 could not pursue the proceedings under Section 145 Cr.P.C., therefore, defendants no.1 to 6 remained in possession of the property and are not ready to hand over the possession, therefore, the Civil Suit No.32 of 1980 was filed.

6. The defendant no.7 Mohd. Yasin in his written statement denied the oral gift in favour of plaintiff no.3 and claimed that the said property was orally gifted by Hakim Buniyad Husain to him in January, 1965 and after that he had executed the sale deed on 18.1.1977 in favour of defendants no.1 to 6 and delivered possession to them. The defendants no.1 to 6 in their written statements have supported the version of defendant no.7 and have stated that the defendant no.7 was ostensible owner of the property in dispute regarding which the plaintiffs have not made any objection, therefore, the defendant no.7 has rightly executed the sale deed to defendants no.1 and 6.

7. Upon pleadings of the parties, the following issues were framed:-

(1) Whether Hakim Buniyad Husain had executed oral gift of the disputed property in favour of plaintiff no.3 as alleged in para 12 of the plaint.

(2) Whether plaintiff no.3 has executed sale deed in favour of plaintiffs no.1 and 2 as alleged in para 20 of the plaint.

(3) Whether defendant no.7 has dispossessed the plaintiff no.3 from the property in dispute as alleged in para 20 of the plaint.

(4) Whether plaintiffs have matured their title by adverse possession.

(5) Whether Hakim Buniyad Husain had made oral gift in favour of defendant no.7 as alleged in the para 37 & 38 of the written statement.

(6)Whether the defendants have matured their title by adverse possession as alleged in para 45 of the written statement of defendant no.7.

(7)Whether the defendant no.7 is the ostensible owner of the property in dispute as alleged in the para 32 of the written statement of defendants no.1 and 6.

(8) Whether defendant no.7 has executed a sale deed in favour of defendants no.1 and 6.

(9) Whether the defendants are bonafide purchaser for consideration of the property in dispute on the basis of ostensible ownership of defendant no.7.

(10) Whether the plaintiffs are entitled for any relief.

(11) Whether the suit is undervalued and the court fees paid is insufficient.

8. After considering the oral and documentary evidence of the parties, the lower court came to the conclusion that all the requirements of gift by Hakim Buniyad Husain to Arif Husain were fulfilled and Hakim Buniyad Husain has not done any oral gift of the property in dispute to defendant no.7. Learned lower court also came to the conclusion that after the oral gift, plaintiff no.3 remained in possession who was dispossessed by defendant no.7 on 30.10.1976. Learned court below also came to the conclusion that the defendant no.7 was not ostensible owner of the property in dispute, therefore, he has no right to sell the property in dispute. It has also been held that defendant no.7 has not completed his title by way of adverse possession and he is a trespasser. Accordingly the suit was decreed by judgment and order dated 11.8.1989 and the defendants were directed to hand over the possession within a period of two months.

9. Aggrieved by the said judgment dated 11.8.1989, the First Appeal No.192 of 1989 was filed by defendants and the legal heirs of defendants no.1 to 6. It is relevant to mention that defendant no.7 and his legal heirs had not filed any first appeal or the cross-objections. After hearing both the parties, the findings of lower court were confirmed and the appeal was dismissed.

10. Now this second appeal has been filed against judgment and order dated 21.2.1992 passed by Additional District Judge, Barabanki.

11. Learned counsel for the appellants has submitted that there were no pleadings in the plaint regarding the said oral gifts and there are no findings regarding the said oral gifts, therefore, the plaintiffs cannot get any valid title on the basis of alleged oral gifts. It has also been submitted that the court below has committed error in passing the impugned decree because the court below has found that defendants were in possession over the property in dispute. It has also been submitted that learned court below has wrongly considered the aspect of consideration for the alleged oral gift. It has also been submitted that the evidence of plaintiffs regarding oral gift was based on hearsay evidence which was not admissible in evidence. The public documents filed by appellants has not been taken into consideration and the appellants were the bonafide purchasers of the property in dispute, therefore, the plaintiffs were not entitled for decree of possession.

12. Learned counsel for the respondents has submitted that all the requirements of a valid gift were proved in the lower court and it was specifically pleaded in the plaint that plaintiff no.3 became the owner of the property in dispute on the basis of oral gift given by Hakim Buniyad Husain in June, 1963. It has also been submitted that when the oral gift of the property in dispute was made in June, 1963, there was no occasion for Hakim Buniyad Husain to have made again the oral gift in favour of defendant no.7 in January, 1965. It has also been submitted that defendant no.7 had no concern with the family and property of Hakim Buniyad Husain while plaintiff no.3 was the step-brother of Hakim Buniyad Husain.

13. Under Section 100 of Code, a second appeal can be entertained by this Court, only if, it involves substantial question of law. In other words it does not confer any jurisdiction on this Court to interfere with pure questions of fact, which have been considered and adjudicated by courts below after appreciation of evidence recording well considered findings. If there is a finding of fact, based on proper appreciation of evidence, and, material on record, and no perversity, illegality or irregularity in those findings are found, the second appeal is not at all entertainable by this Court under Section 100 of the Code. Even mere illegality or irregularity in findings would not permit interference. They require something more.

14. There are two situations in which, ordinarily, interference with findings of fact is permissible, namely, (a) when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion, and (b) where a finding has been arrived at by court below by placing reliance on inadmissible evidence, which if would have been omitted, an opposite conclusion would have been possible. I derive these principles from some of the authorities of Apex Court and, briefly, it would be appropriate to refer the same.

15. In Dilbagrai Punjabi Vs. Sharad Chandra, AIR 1988 SC 1858, the Court affirmed the observations of High Court that First Appellate Court is under a duty to examine entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue, and the error which arises is of magnitude that it gives birth to a substantial question of law, the High Court would be entitled to set aside the finding.

16. In Jagdish Singh Vs. Nathu Singh, AIR 1992 SC 1604, it was said, where finding by court of facts is vitiated by non consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper finding.

17. In Sri Chand Gupta Vs. Gulzar Singh, AIR 1992 SC 123, the Court upheld interference by High Court in second appeal where the Lower Appellate Court relied an admission of third party treating it as binding on the defendant though it was inadmissible against the said defendant.

18. In Sundra Naicka Vadiyar Vs. Ramaswami Ayyar, AIR 1994 SC 532, the Court said where certain vital documents for deciding the question of possession were ignored, such as compromise, an order of revenue Court relying on oral evidence was unjustified.

19. In Ishwar Dass Jain (Dead) through Lrs. Vs. Sohan Lal (Dead) through Lrs., 2000 (1) SCC 434, the Court in paras 11 and 13 of the judgment clearly mentioned two situations in which inference with findings of fact is permissible. It is said:

"11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. . . . ."

"13. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate Court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. . ."

20. In Govindaraju Vs. Mariamman 2005 (2) SCC 500 the Court said that existence of substantial question of law is the sine qua non for exercise of jurisdiction under Section 100 of the Code. If a second appeal is entertained under Section 100 without framing substantial questions of law then it would be illegal and would amount to failure or abdication of duty cast on the Court. The Court relied on its earlier decisions in Kshitish Chandra Purkait Vs. Santosh Kumar Purkait & Ors., 1997(5) SCC 438; Panchugopal Barua Vs. Umesh Chandra Goswami 1997(4) SCC 413; and, Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar 1999 (3) SCC 722.

21. Section 100 of the Code, first of all, places an obligation upon appellant to precisely state in the memorandum of appeal a substantial question of law involved therein which he proposes to urge before the Court. After hearing him this Court has to satisfy itself that a substantial question of law is involved in the case and it shall formulate that question. This is the next stage. This Court after hearing appellant may come to the conclusion that the question stated in memorandum of appeal itself constitutes a substantial question of law but then it has to be formulated by Court on its own. It will become a substantial question of law only when the Court has satisfied itself and put its seal by formulating it. The mere substantial question of law is not sufficient but it must be one such question which is involved in the case. An abstract question of law may be substantial but unless it is one which is involved in the case concerned, it will not satisfy the requirement of Section 100(4) of the Code.

22. In Santosh Hazari Vs. Purushottam Tiwari, 2001 (3) SCC 179, the Court considered what the phrase "substantial question of law" means. It says that the phrase is not defined in the Code. The word "substantial", as qualifying question of law, means-of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with-technical, of no substances or consequence, or academic merely.

23. A Full Bench of Madras High Court in Rimmalapudi Subba Rao Vs. Noony Veeraju, AIR 1951 Madras 969, considered this term and said, "when a question of law is fairly arguable, where there is room for difference of opinion or where the Court thought it necessary to deal with that question at some length and discuss an alternative view, then the question would be a substantial question of law. On the other hand, if the question was practically covered by decision of highest Court or if general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular fact of case, it could not be a substantial question of law."

24. The above observations were affirmed and concurred by a Constitution Bench in Sir Chunilal Mehta and Sons Ltd. Vs. The Century Spinning and Manufacturing Company Ltd. AIR 1962 SC 1314. Referring to above authorities, the Court in Santosh Hazari (supra) said:

"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

25. The decision in Santosh Hazari (supra) has been followed in Govindaraju (supra) and Thiagarajan and others Vs. Sri Venugopalswamay B. Koll and others, AIR 2004 SC 1913.

26. There are also two recent authorities of Apex Court on this aspect. In Vijay Kumar Talwar Vs. Commissioner of Income Tax, New Delhi (2011) 1 SCC 763, the Court said:

" a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. It will, therefore, depend on the facts and circumstance of each case, whether a question of law is a substantial one or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

27. In Union of India Vs. Ibrahim Uddin and another (2012) 8 SCC 148, the Court said:

"There may be exceptional circumstances where the High Court is compelled to interfere, notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary to do so for the reason that after all the purpose of the establishment of Courts of justice is to render justice between the parties, though the High Court is bound to act with circumspection while exercising such jurisdiction. In second appeal the court frames the substantial question of law at the time of admission of the appeal and the Court is required to answer all the said questions unless the appeal is finally decided on one or two of those questions or the court comes to the conclusion that the question(s) framed could not be the substantial question(s) of law. There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal."

28. Regarding oral gift under Muslim Law, learned counsel for the appellants has relied upon Ratan Lal Bora and others Vs. Mohd. Nabiuddin, AIR 1984 Andhra Pradesh 344, in which it has been held as under:-

"It is unknown to law that a Mohammadan can make an oral gift within the confines of his house and without the presence of anybody else and canvass the plea that by making such a declaration allegedly of the gift, the valid requirements of a gift are satisfied. It must be remembered that unlike the personal law of Hindus, the personal law of Mohammadans permits the making of a gift orally and the relevant provisions of the Transfer of Property Act relating to transfer of the immovable property of the value of one hundred rupees and upwards are not attracted to the oral gifts because of the personal law. When claims of oral gifts are made, the law requires strict evidence to establish that an oral gift had in fact been made and that there is some contemporaneous evidence to establish such an oral gift. It is true that no special set of rules is prescribed under the law of evidence to establish an oral gift and the evidence can take any form. But it must point out unquestionably to the fulfillment of the three requirements of a valid gift under the Mohammadan law. If evidence is lacking on any of the requirements of a valid gift, law cannot presume that a valid gift has been orally made by a Mohammadan in favour of a donee. That is precisely what has happened in this case. The evidence is totally absent. In the plaint filed there is no reference to the alleged gift and much less to the date of the gift. There is no reference to the acceptance of the gift and if so when and much less regarding the date on which the possession was delivered. Even if there are any circumstances existing to infer the acceptance and possession because of the relationship of the donor and donee (being father and son), evidence is lacking on the more important and formidable requirement of valid declaration of gift. In the absence of evidence that a gift has validly been made, the inference of acceptance and possession does not advance the case further and the gift still remains invalid."

29. Hon'ble the Apex Court in Maqbool Alam Khan Vs. MST KHODAIJA and others, AIR 1966 SC 1194, has held as under :-

"The three pillars of a valid gift under the Mahomedan law are declaration, acceptance and delivery of possession. In Mohammad Abdul Ghani v. Fakhr Jahan Begam, (1922) LR 49 IA 195, 209 Sir John Edge said :

"For a valid gift inter vivos under the Mahomedan law applicable in this case, three conditions are necessary, which, their Lordships consider have been correctly stated thus (a) manifestation of the wish to giveon the part of the donor; (b) the acceptance of the donee either impliedly or expressly; and (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively' (Mahomedan Law, by Syed Ameer Ali, 4th ed. vol. i, p. 41)."

The Prophet has said : "A gift is not valid without seisin." The rule of law is :

"Gifts are rendered valid by tender, acceptance and' seisin.-Tender and acceptance are necessary because a gift is a contract, and tender and acceptance are requisite in the formation of all contracts; and seisin is necessary in order to establish a right of property in the gift, because a right of property, according to our doctors, is not established in the thing given merely by means of the contract, without seisin." [See Hamilton's Hedaya (Grady's Edn), p. 482]"

30. In Hafeeza Bibi and others Vs. Shaikh Farid (dead) and others, AIR 2011 (SC) 1695, Hon'ble the Apex Court has considered the aspect of gift under Mahomedan Law and has held as under:-

"The Privy Council in the case of Mohammad Abdul Ghani (since deceased) and Anr. v. Fakhr Jahan Begam and Ors. 1922 (49) IA 195, referred to 'Mohammadan Law'; by Syed Ameer Ali and approved the statement made therein that three conditions are necessary for a valid gift by a Muslim: (a) manifestation of the wish to give on the part of the donor; (b) the acceptance of the donee, either impliedly or expressly; (c) the taking of possession of the subject-matter of the gift by the donee, either actually or constructively.

In Mahboob Sahab v. Syed Ismail and Ors. MANU/SC/0698/1995 : (1995) 3 SCC 693, this Court referred to the Principles of Mahomedan Law by Mulla, 19th Edition and in paragraph 5 (pp. 696-697) noticed the legal position, in relation to a gift by Muslim incorporated therein, thus:

5. Under Section 147 of the Principles of Mahomedan Law by Mulla, 19th Edn., edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of moveable or of immovable property. Section 148 requires that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only the gift is complete. Section 152 envisages that where the donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift...."

31. In Smt. Kabiran and others Vs. Riyazuddin, 1998 1 AWC 553 (Alld.), it has been held as under:-

"7. Three essential ingredients of a gift under Mahomedan Law have been laid down in para 149 of Mahomedan Law by Mulla in Eighteenth Edition, according to which first condition is that there should be declaration of gift of the donor (2) 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 by the donor to the donee.

8. Out of the above three essential conditions of a valid gift, it is essential that there should be delivery of possession of the subject-matter of gift. Taking of possession of the subject-matter of the gift by the donee either actually or constructively is necessary to complete a gift as was laid down by the Judicial Committee of Privy Council in Mohommad v. Fakhr Jahan (1922) 49 Indx App 195.

9. A gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. Para 152 of the Mahomedan Law aforesaid lays down this condition also. It further lays down where donor and donee both reside in the property, no physical departure or formal entry is necessary in the case of a gift of immovable property. In such a case, the gift may be completed by some overt act by the donor intimating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. When a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession without any physical departure or formal entry."

32. It is settled position of law that only three essential conditions i.e. (1) Declaration of gift by the donor, (2) Acceptance of the gift expressed or implied by or on behalf of the donee and (3) delivery of possession and the subject of the gift by the donor to the donee, are required to be fulfilled to constitute a valid gift under the Mahomedan Law. It is also settled position of law that under Mahomedan Law, gift of immovable property can be made orally without any deed or instrument.

33. In the present case, both the parties claimed their oral gift by Hakim Buniyad Husain. It is not disputed that Hakim Buniyad Husain was the sole owner of the property in dispute who had migrated to Pakistan and has expired in the year 1974. This is also undisputed that Hakim Buniyad Husain had purchased this property and Arif Husain, plaintif no.3 is the step-brother of Hakim Buniyad Husain. The fact of oral gift has been specifically pleaded in the plaint and the month and year has also been specifically pleaded in the plaint. It has also been specifically pleaded in the plaint that after the oral gift, Hakim Buniyad Husain had handed over the possession to plaintiff no.3 which the plaintiff no.3 had accepted and became the owner in possession of the property in dispute. Therefore, I do not find any substance in the submission of learned counsel for the appellants that there are no pleadings of oral gifts in the plaint. Both the learned courts below have considered the respective evidence of the parties regarding the respective claims of oral gift in their favour. Learned court below has also considered the relationship of Arif Husain, plaintif no.3 and Qazi Mohd. Yasin, defendant no.7, who had claimed oral gift in their favour. The defendant no.7 had expired during the pendency of the suit and his son Sanaur Rahman has been examined as D.W.-3 who has failed to establish any relationship with Hakim Buniyad Husain and his family but he has admitted that Arif Husain and Hakim Buniyad Husain had owned some joint property which they have sold. Plaintiff no.3 has also produced the document regarding joint property of Hakim Buniyad Husain and Arif Husain. It was also proved that Hakim Buniyad Husain and plaintiff no.3 Arif Husain resided jointly and Hakim Buniyad Husain had taken care of Arif Husain. Learned court below has also considered the registered power of attorney dated 6.6.1965 executed by Hakim Buniyad Husain in favour of Arif Husain, owner and son of defendant no.7 and has come to the conclusion that had Hakim Buniyad Husain made an oral gift in favour of defendant no.7 in January, 1965, then there was no occasion to execute a sale deed on 16.2.1965 which has been executed by Hakim Buniyad Husain and Arif Husain jointly and had also executed power of attorney in favour of Arif Husain. The defendant no.7 had claimed that he was in possession over the land in dispute in 1950 and 1953 but learned court below has come to the conclusion that if the oral gift was given to defendant no.7 in January, 1965 then there was no occasion of being in possession prior to that. Lal Ji, D.W.-2 has gone one step further in alleging the possession of Mohd Yasin since 1953 but he has failed to prove the possession in the years 1953, 1958 and 1965. Learned lower court after considering the evidence on record and appreciating the evidence categorically, has come to the conclusion that Hakim Buniyad Husain has not made any oral gift in favour of defendant no.7 in the year January, 1965. Learned court below has also come to the conclusion that Hakim Buniyad Husain had made an oral gift of the property in dispute in favour of defendant no.3 in June, 1963 and had also handed over the possession to the plaintiff no.3. Learned court below has also considered all the three ingredients of a valid gift under the Mahomedan Law and has come to the conclusion that all the three ingredients were proved in favour of defendant no.3. Learned lower court has also come to the conclusion that when Hakim Buniyad Husain had migrated to Pakistan in July, 1965, then there was no occasion for him to execute the alleged agreement to sale dated 27.2.1969. It has also been found that when Hakim Buniyad Husain had executed a registered power of attorney in the year 1965, then there was no occasion to execute the agreement of rent in favour of defendant no.7. Learned court below has also considered the aspect of recording the name of defendant no.7 and has come to the conclusion that the said name has not been recorded on the basis of alleged oral gift.

34. The plaintiff no.3 has proved all essential of a valid gift in his favour including the delivery of possession. There are concurrent findings of learned courts below which are based on cogent reasons supported by evidence on record and I do not find any substance in the submission of learned counsel for the appellants that fact of oral gift has not been pleaded in the plaint and no findings have been given by the trial court, therefore, the aforesaid substantial question of law does not arise.

35. As far as the second substantial question of law regarding the consideration is concerned, as stated above, there is no requirement of consideration in a gift under the Mahomedan Law. The only requirements are declaration, acceptance and the delivery of possession. The said question was raised in Judicial Committee Kamarunnisa Bibi Vs. Hussaini Bibi, (1880) 3 All. 266, in which it has been held that requisite forms having been observed, it was not necessary to enquire whether there was no consideration in the gift or whether there was no dower due. The aspect of consideration is not a necessary ingredients for a gift under the Mahomedan Law. I do not find any substance in the submission of learned counsel for the appellants that learned court below has paid special emphasis on the question of consideration. Learned courts below have examined the respective claims of alleged oral gifts in favour of plaintiff no.3 and defendant no.7 as well as the possibilities in view of the relationships of the parties with donor and has considered the oral as well as the documentary evidence of the parties, and has rightly come to the conclusion that there was a valid oral gift in favour of plaintiff no.3 and there was no oral gift in favour of defendant no.7. Learned lower court as well as first appellate court has no where held that consideration was required for oral gift.

36. I do not find that findings recorded by lower appellate court is perverse or that any inadmissible evidence has been considered or any admissible evidence has not been considered. I do not find any legal or otherwise flaw in the impugned judgments in this appeal.

37. Under the Mahomedan Law, consideration is not an essential ingredients for oral or written gift of immovable property. The substantial questions of law are decided accordingly.

38. For the facts and circumstances mentioned above, the appeal is dismissed. Interim order, if any, is vacated.

Order Date :- 9.5.2013

Kpy