Chattisgarh High Court
Deleted (Salma Begam) Legal Hair vs Deleted (Mehrunnisha) on 1 July, 2022
Page 1 of 23
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 162 of 2012
Reserved on : 11.04.2022
Delivered on : 01.07.2022
1. Deleted (Salma Begam) as per Hon'ble Court's order dated
03.12.2021 through Legal Hair-
(i) Md. Ziyauddin, S/o Late Md. Ismail, Aged About 65 Years, R/o
Juni Line, Near Santosh Lodge, Tahsil & District- Bilapsur (C.G.)
(ii) Md. Riyazuddin, S/o Late Md. Ismail, Aged About 58 Years, R/o
Juni Line, Near Santosh Lodge, Tahsil & District- Bilaspur (C.G.)
(iii) Md. Sirajuddin, S/o Late Md. Ismail, Aged About 52 Years, R/o
Juni Line, Near Santosh Lodge, Tahsil & District- Bilaspur (C.G.)
(iv) Nasim Fatima, W/o Sayyad Gaus Ali, Aged About 64 Years, R/o
Pendra Road, Jyotipur, Sundarnagar Colony, Jyotipur, District-
Gaurela- Pendra- Marwahi (C.G.)
(v) Samim Fatima, W/o Asfaq-Ul Quadir, Aged About 60 Years, R/o
Masanganj, In Front of Chandrika Lodge, Tahsil & District-
Bilaspur (C.G.)
(vi) Nayim Fatima, W/o Md. Nashar, Aged About 60 Years, R/o
Jyotipur, Near Mishri Devi School, District- Gaurela- Pendra-
Marwahi (C.G.)
2. Hasina Begam, D/o Late Yusuf Khan, Aged About 35 Years.
3. Farjana Begam, D/o Late Yusuf Khan, Aged About 32 Years.
4. Firoja Begam, D/o Late Yusuf Khan, Aged About 30 Years
Appellants No. 2 to 4 are R/o Juni Line Bilaspur, Tahsil & District-
Bilapur (C.G.) Through- the power of attorney holder Mohammed
Afsar Khan, S/o Mohammed Karim Khan, R/o Rajendra Nagar
Bilaspur, Tahsil & District- Bilaspur (C.G.)
---- Appellants
Versus
1. Deleted (Mehrunnisha) as per Hon'ble Court's Order dated
03.12.2021.
2. Habibul Haq, S/o Inamul Haq, Aged About 38 Years.
3. Fajlul Haq, S/o Inamul Haq, Aged About 35 Years.
Page 2 of 23
4. Kamrunnisha, D/o Inamul Haq, Aged About 35 Years.
All above No. 1 to 4 are R/o Behind Murarka Agency, Sadar
Bazar, Juni Line Bilaspur, Tahsil & District- Bilaspur (C.G.)
5. (Deleted) Jahida Begam, W/o Late Abdul Rajjak
6. Abdul Wahab, S/o Late Abdul Rajjak, Aged About 45 Years.
7. Abdul Rafik, S/o Late Abdul Rajja, Aged About 38 Years.
Respondents No. 5 to 7 are R/o Juni Line Bilaspur, Tahsil & District-
Bilaspur (C.G.)
8. State of Chhattisgarh through the District Collector, Bilaspur, District-
Bilaspur (C.G.)
---- Respondents
For Appellants : Mr. Somnath Verma, Advocate.
For Respondent No. 4 : Mr. Surfaraj Khan, Advocate.
For Respondents No. 5 to 7 : Ms. Fouzia Mirza, Sr. Advocate
with Mr. Navin Shukla, Advocate.
For State/Respondent No. 8 : Mr. C.B. Kesharwani, P.L.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1. This second appeal has been filed by the appellants/plaintiffs
under Section 100 of the C.P.C. against judgment and decree
dated 10.12.2010 passed by Additional District Judge, Bilaspur
(C.G.) in Civil Appeal No. 1A/2011 (Salma Begam & others Vs.
Mehrunnisha & others) affirming the judgment and decree dated
26.10.2010 passed by Fifth Civil Judge Class-II, Bilaspur,
District- Bilaspur (C.G.) in Civil Suit No. 8A/2010.
2. For the sake of convenience, the parties shall be referred to in
terms of their status in Civil Suit No. 8A/2010 which was filed for
declaration of title and grant of permanent injunction.
3. The instant Second Appeal is admitted for hearing by this Court
vide its order dated 24.03.2021 on the following substantial
questions of law:-
"1. Whether both the Courts below were justified in holding
that Abdul Haq has orally gifted the suit property in
favour of Abdul Rajjak by recording a finding perverse to
the record?
2. Whether both the Courts below were justified in holding
that the suit is barred by limitation by recording a finding
perverse to the record?"
4. The brief facts, as reflected from the plaint averments, are that
father of plaintiff No. 1-Late Abdul Haq, maternal grand-father of
plaintiffs No. 2 to 4, father-in-law of defendant No. 1, grand-
father of defendants No. 2 to 4- Late Abdul Haq, husband of
defendant No. 5 and father of defendants No. 6 & 7- Late Abdul
Rajjak are real brothers. Mohammad Siddiqui has 9.15, 9.23 &
18.13 acres of land situated at Village-Khamtarai and two
houses are situated at Juni Line Bilaspur. It has been further
contended that Mohammad Siddiqui has four sons and four
daughters and during his lifetime, he has partitioned the property
amongst his children vide partition-deed dated 06.08.1963 and
their revenue records have been separated. Abdul Haq & Abdul
Rajjak have received 18.13 acres of land in partition, which has
been recorded jointly in their names, which is the suit property.
5. It has been further contended that Abdul Haq expired in the year
1987. Plaintiff No. 1- Salma Begam is wife of Abdul Haq and he
was maternal grand-father of plaintiffs No. 2 to 4. Abdul Haq has
one son, who expired. There is cordial love and affection
between Abdul Haq & Abdul Rajjak, as such, they have not
separated their names from the revenue records and doing
agriculture work jointly. Abdul Haq expired in the year 1987 and
after his death, his real brother Abdul Rajjak has greed over the
suit property and with collusion of second wife of Abdul Haq
namely Aysha Khatoon has recorded entire property in his name
whereas after death of Abdul Haq, the property should be
recorded in names of his legal representatives, this fact was not
known to the plaintiffs. Abdul Rajjak has recorded his name in
the lands on the pretext of family arrangement. Later on, Inamul
Haq expired. Before his death, Inamul Haq has filed revenue
appeal before Sub Divisional Officer, Bilaspur arraying Abdul
Rajjak & his step-mother Aysha Khatoon as party to this case,
which was dismissed on 30.05.1995 by the Sub Divisional
Officer on technical ground. The deceased- Inamul Haq has not
intimated the facts of dismissal of the appeal to the plaintiffs.
Since the plaintiffs are ladies and residing in their matrimonial
house, they are not aware about the details of the family
properties, but when she has enquired about it, the defendants
have started treating rudely with them, which has necessitated
them to file civil suit for partition of the suit property.
6. It has been further contended that the plaintiffs have never given
up their right and since the defendants have denied their right,
the have filed a civil suit for declaration of title of one half share
of the suit property as mentioned in Schedule-A of the plaint. It
has been further contended that the cause of action arose in the
month of October, 2008 when the defendants have started
misbehaving with them on questioning about their rights towards
the suit property. The suit was filed through power of attorney
holder- Mohammad Akhtar Khan.
7. Defendants No. 1 to 4 have filed their written statement wherein,
they have supported case of the plaintiffs and would submit that
the alleged agreement executed between defendants No. 5 to 7
is forged one. The main contesting party i.e. defendants No. 5 to
7 have filed their written statement denying the allegations made
in the plaint mainly contending that the power of attorney holder-
Mohammad Akhtar Khan is not genuine person as he has also
filed various litigations and he is purchaser of the disputed
property, therefore, he is not competent person. It has been
further contended that the suit filed on the basis of invalid
unregistered power of attorney is not maintainable and deserves
to be dismissed. It has been further contended that on
06.08.1963, Mohammad Siddique has already partitioned the
suit property of 36.57 acres of land between his four sons and
four daughters during his lifetime. It has been further contended
that Sheet No. 20 plot No. 3 area 2018 sq.ft. situated at
Masanganj, Bilaspur which is valued not less than Rs.
30,00,000/- has been recorded in the name of sons of plaintiff
No. 1- Salma Begam in the revenue record. The property
situated at main road Sadar Bajar, Bilaspur i.e. Sheet No. 128/2
& 126 area 136 sq.ft. & 2425 sq.ft. (total 2561 sq.ft.) respectively
is in physical possession of defendants No. 2 & 3 and their
names have also been recorded in the revenue records which
has been received on oral gift. It has been further contended that
after death of Mohammad Siddique being elder brother Abdul
Haq has recorded his share and share of younger brother of
Abdul Rajjak in their joint account and in the year 1968, Abdul
Haq through oral gift has given his entire share to Abdul Rajjak
and relinquished his title. It has been further contended that
Abdul Haq & Abdul Rajjak have already sold their maximum
property during their lifetime and only 9.33 acres land is left and
rest of the property has already been transferred. It has been
further contended that the suit is barred by limitation as the
plaintiffs are well aware of the fact that the suit property has
already been given through oral gift in favour of ancestors of
defendants No. 5 to 7 in the year 1968 and the plaintiffs have
given consent letter on 19.03.1990 in favour of the Abdul Rajjak,
which has been written in front of religious persons. According to
the Mahomedan Law, there is a provision of oral gift, which is
permissible whereas the suit has been filed on 14.05.2009, as
such, it is hopelessly barred by limitation and would pray for
dismissal of the suit.
8. On pleadings of the parties, the trial Court has framed as many
as four issues:- (1) Whether the plaintiffs are entitled to get half
share of the land admeasuring 18.13 acres situated at Village-
Khamtarai as mentioned in Schedule-A of the plaint after
partition? (2) Whether the suit filed by the plaintiffs is barred by
limitation? (3) Whether the suit filed by the plaintiffs is properly
stamped or not? & (4) Relief and costs.
9. The plaintiffs to substantiate their case, examined Smt. Farjana
Begam (PW-1), Firoja Begam (PW-2), Haji Mohammad Rafiq
(PW-3), Mohammad Afsar Khan (PW-4) & Mohammad
Sirajuddin (PW-5) and exhibited documents namely copy of
revenue record (Ex. P/1), mutation record for the year 1986-87
(Ex.P/2), Kishtabandi Khatouni (Ex.P/3) & notarized power of
attorney (Ex.P/4).
10. The defendants to substantiate their case, examined Abdul
Wahab (DW-1) and exhibited documents namely agreement
dated 19.03.1990 (Ex.D/1), revenue record for the year 1954-55
as Ex.D/2 & D/3.
11. Farjana Begam (PW-1) has examined by way of affidavit in her
examination-in-chief, she has reiterated the same stand which
the plaintiffs has taken in the plaint. In the cross-examination,
she has stated that she is not aware whether the oral gift is
permissible under the Mahomedan Law. She has denied that her
grand-father has given oral gift in favour of Abdul Rajjak in the
year 1968. She has admitted that she has put her signature in
Ex.D/1. She has stated that she along with her all sisters and
Salma Begam has put signature. She has also stated that there
is no enmity with Shoukat Ali & Ramjan Ali. She has also stated
that she has put her signature in blank stamp paper on faith. She
has also stated that she came to know that the blank stamp
paper which she has signed in the year 1990, in which, an
agreement of Hiba for the year 1968 has been written. Even
after this, she has not made any complaint or report and she has
not taken any step for cancellation. She has also stated that she
has not given any notice to the defendants. She has admitted
that there is no document with regard to the partition dated
06.08.1963. The partition which has been executed is not in her
possession and she has not seen the partition document.
12. Firoja Begam (PW-2) has stated that the stamp paper for power
of attorney (Ex.P/4) has been purchased with the signature of all
the persons. She has admitted that there is no signature in place
of the purchaser of the stamp paper because they have no
knowledge. She has denied that the power of attorney has not
been written on her instructions. She has also stated that at the
time of execution of power of attorney, she was residing at
Sanjay Nagar, Raipur. She has denied that while accepting the
oral gift, they have put signature in Ex.D/1. She has stated that
during pendency of the civil suit, she came to know that on the
signed blank stamp paper agreement (Ex.D/1) has been written,
but she has not made any complaint as the civil suit is pending.
13. Defendant's witness namely Abdul Wahab (DW-1) has admitted
that after deleting name of Abdul Haq, name of Abdul Rajjak has
been recorded in the revenue record. He has stated that the
property i.e. 18.13 acres land was in the joint name of Abdul Haq
& Abdul Rajjak, out of which, 9 acres of land has been sold by
Abdul Haq, as such, remaining part of the property is in the
name of Abdul Rajjak. He has further stated she has no
knowledge that the Aysha Khatoon is step mother or real mother
of Salma Begam. He is also not aware that Saieda Begam is
real mother of Salma Begam or not. He has admitted that the
document with regard to sale of 9 acres of land has not been
produced before the trial Court.
14. Learned trial Court after appreciating the evidence, material
placed on record has dismissed the suit filed by the plaintiffs.
Against that, the plaintiffs have preferred first appeal before the
learned First Appellate Court i.e. Additional District Judge,
Bilaspur (C.G.), which has also been dismissed by the learned
First Appellate Court vide judgment and decree dated
30.01.2012. Against that, the second appeal has been preferred
by the plaintiffs, which has been admitted by this Court on
24.03.2021 by framing the substantial question of law as
mentioned above.
15. Learned counsel for the appellants/plaintiffs would submit that
the defendants did not produce memory letter dated 06.08.1963,
therefore, memory letter should not have been relied upon by
the learned trial Court. He would further submit that the
document (Ex.D/1) has not been signed by Abdul Rajjak and
subscriber and attesting witnesses of the gift deed have not
been examined before the Court. There was no material placed
on record to show that during lifetime of Abdul Rajjak, the
document (Ex.D/1) was disclosed to anyone as it is alleged to
have been signed in the year 1990 after death of Abdul Rajjak in
the year 1987. It has been further submitted that Ex.D/1 has
been exhibited by defendant No. 6, in whose presence, the said
document was not executed, as such, no reliance on the
document (Ex.D/1) should have been given by the learned
Court below. He would further submit that burden of proof
regarding valid oral gift lies on the defendants, which they failed
to prove, hence, Ex.D/1 should have not been relied upon. He
would further submit that Abdul Rajjak executed family
settlement of his own family in favour of his sons on 22.11.1974
(Ex.D/2) and defendants cannot get benefit from Ex.D/2 because
Abdul Rajjak had no right to execute regarding the joint property
inherited by Abdul Haq. He would further submit that it is clear
that the suit property was joint share of Abdul Haq & Abdul
Rajjak, therefore, the plaintiffs are entitled to get share of Abdul
Haq.
16. He would further submit that as per Sections 101 & 106 of the
Evidence Act, 1872, the burden of proof is upon the person who
claims any right. In this case, defendants No. 5 to 7 are aware
about their rights over the suit property on the basis of oral gift,
therefore, it is their burden to prove the oral gift under
Mahomedan Law by recording cogent evidence. He would
further submit that defendants could not prove transfer by Abdul
Haq, therefore, it may be presumed against the defendants
under Section 114 of the Evidence Act, 1872. The mutation order
does not give title, as such, though mutation is made in favour of
Abdul Rajjak yet he will not acquire title. He would further submit
that the oral gift has not been proved as per provisions of the
Mahomedan Law, therefore, the finding recorded by the learned
trial Court affirmed by the First Appellate Court, is perverse.
Hence, it is prayed that the judgment and decree passed by the
learned trial Court as well as by the learned First Appellate Court
may kindly be set aside and the substantial question law framed
by this Court may be answered in favour of the plaintiffs. In
support of his contention, he would place reliance upon the
judgment rendered by Hon'ble the Supreme Court in Mahila
Bajrangi (Dead) through Lrs. Vs. Badribai1, Vidya Devi alias
Vidya vati (Dead) by Lrs. Vs. Prem Prakash & others 2 & Syed
Shah Gulam Ghouse Mohiuddin & others Vs. Syed Shah
Ahmad Mohiuddin Kamisul Qadri (Dead) by his legal
representatives & others3.
17. On the other hand, learned Senior Advocate for respondents No.
5 to 7 would submit that the suit is barred by limitation as Hiba
was recorded in the year 1968, thereafter, it has been reduced
by acknowledging the facts in the agreement dated 19.03.1990
whereas the suit filed in the year 2009 after lapse of 19 years
and this fact is well within their knowledge, therefore, the suit is
barred by limitation. She would further submit that as per
provisions of Mahomedan Law, oral gift is permissible and
provisions of Section 123 of the Transfer of Property Act has
been exclusively excluded from application. The facts on record
would demonstrate that the ingredients of Hiba has been proved
and Ex.D/1 is the narration of Hiba, though it is not required to
be reduced in writing, therefore, the judgment and decree
passed by the learned trial Court affirmed by the learned First
Appellate Court are not perverse nor contrary to the record,
therefore, the second appeal filed by the plaintiffs is liable to be
dismissed. In support of her contention, she relies upon the
judgment rendered by Hon'ble the Supreme Court in Abdul
Rahim & others Vs. Sk. Abdul Zabar & others 4 and refer
paragraph 17 to 24, wherein Hon'ble the Supreme Court has
1 2003 AIR SCW 129
2 (1995) 4 SCC 496
3 AIR 1971 SC 2184
4 (2009) 6 SCC 160
held that if the suit has not been filed within a period of three
years, the suit has rightly been held to be barred by limitation.
18. I have heard learned counsel for the parties and perused the
documents placed on record with utmost satisfaction.
19. Before adverting the rival submission made by the learned
counsel for the parties, it is expedient for this Court to examine
the gift under the Mahomedan Law. Chapter XI in Mulla's
Principles of Mahomedan deals with Hiba or Gift and Section
138 defines Hiba or Gift as under:-
"A hiba or gift is "a transfer of property, made
immediately, and without any exchange" by one
person to another, and accepted by or on behalf of
the latter."
20. As per the provisions of Mahomedan Law, there are three
essential ingredients of valid Hiba namely (i) declaration of the
gift by the donor i.e. to constitute a valid gift, it is necessary that
donor should digest himself completely of all ownership and
domain over the subject of the gift. His intention should be in
express and clear words. A gift cannot be implied. It must be
expressed unequivocal and intention of donor must be
demonstrated by these entire relinquishment of the things given.
The declaration should be free from all the impediments such as
inducement, threat, coercion, dures or promise and should be
made with a bonafide intention. (ii) acceptance of the gift by the
donee expressly or impliedly, and (iii) delivery of possession
either actually or constructively to the donee.
21. The gift 'Hiba' has come up for consideration before Hon'ble the
Supreme Court in Abdul Rahim (Supra), wherein it has been at
paragraphs 13, 15 to 18 & 29 as under:-
"13. The conditions to make a valid and complete
gift under the Mohammadan Law are as under:
(a) The donor should be sane and major and must
be the owner of the property which he is gifting.
(b) The thing gifted should be in existence at the
time of hiba.
(c) If the thing gifted is divisible, it should be
separated and made distinct.
(d) The thing gifted should be such property to
benefit from which is lawful under the Shariat.
(e) The thing gifted should not be accompanied by
things not gifted; i.e. should be free from things
which have not been gifted.
(f) The thing gifted should come in the possession
of the donee himself, or of his representative,
guardian or executor.
15. We may notice the definition of gift as
contained in various text books: In Mulla's
Principles of Mohammadan Law the `HIBA' is
defined as a transfer of property made immediately
without any exchange by one person to another
and accepted by or on behalf of later (sic latter).
A.A.A. Faizee in his `Outlines of Mohammedan
Law' defined `Gift' in the following terms:
"A man may lawfully make a gift of his property to
another during his lifetime, or he may give it away
to someone after his death by will. The first is
called a disposition inter vivos; the second a
testamentary disposition. Mohammadan Law
permits both kinds of transfers, but while a
disposition inter-vivos is unfettered as to quantum,
a testamentary disposition is limited to one-third of
the net estate. Mohammadan Law allows a man to
give away the whole of his property during his life
time, but only one-third of it can be bequeathed by
will."
16. Syed Ameer Ali in his `Commentary on
Mohammedan Law' has amplified the definition of
Hiba in the following terms:
"In other words the "Hiba" is a voluntary gift without
consideration of a property or the substance of a
thing by one person to anther so as to constitute
the donee, the proprietor of the subject matter of
the gift. It requires for its validity three conditions
viz., (a) a manifestation of the wish to give on the
part of the Donor (b) the acceptance of the Donee
either impliedly or constructively and (c) taking
possession of the subject matter of gift by the
donee either actually or constructively."
17. In Maqbool Alam Khan vs. Mst. Khodaija & ors.
[(1966) 3 SCR 479], it was held:
"6. 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]
7. Previously, the Rule of law was thought to be so
strict that it was said that land in the possession of
a usurper (or wrongdoer) or of a lessee or a
mortgagee cannot be given away, see Dorrul
Mokhtar, Book on Gift, p. 635 cited in Mullic Abdool
Guffoor v. Muleka. But the view now prevails that
there can be a valid gift of property in the
possession of a lessee or a mortgagee and a gift
may be sufficiently made by delivering constructive
possession of the property to the donee. Some
authorities still take the view that a property in the
possession of a usurper cannot be given away, but
this view appears to us to be too rigid. The donor
may lawfully make a gift of a property in the
possession of a trespasser. Such a gift is valid,
provided the donor either obtains and gives
possession of the property to the donee or does all
that he can to put it within the power of the donee
to obtain possession. [See also Mullic Abdool
Guffoor vs. Muleka [ILR 1884 (10) Calcutta 1112]
18. Faiz Badruddin Tyabji in his `Muslim Law - The
Personal Law of Muslims in India and Pakistan'
states the law thus:
"395. (1) The declaration and acceptance of a gift
do not transfer the ownership of the subject of gift,
until the donor transfers to the donee such seisin or
possession as the subject of the gift permits, viz.
until the donor (a) puts it within the power of the
donee to take possession of the subject of gift, if he
so chooses, or (b) does everything that, according
to the nature of the property forming the subject of
the gift, is necessary to be done for transferring
ownership of the property, and rendering the gift
complete and binding upon himself.
(2) Imam Malik holds that the right to the subject of
gift relates back to the time of the declaration."
29. In Md. Noorul Hoda vs. Bibi Raifunnisa & ors.
[1996 (7) SCC 767], this Court held:
"6....There is no dispute that Article 59 would apply
to set aside the instrument, decree or contract
between the inter se parties. The question is
whether in case of person claiming title through the
party to the decree or instrument or having
knowledge of the instrument or decree or contract
and seeking to avoid the decree by a specific
declaration, whether Article 59 gets attracted? As
stated earlier, Article 59 is a general provision. In a
suit to set aside or cancel an instrument, a contract
or a decree on the ground of fraud, Article 59 is
attracted. The starting point of limitation is the date
of knowledge of the alleged fraud. When the
plaintiff seeks to establish his title to the property
which cannot be established without avoiding the
decree or an instrument that stands as an
insurmountable obstacle in his way which
otherwise binds him, though not a party, the plaintiff
necessarily has to seek a declaration and have that
decree, instrument or contract cancelled or set
aside or rescinded. Section 31 of the Specific
Relief Act, 1963 regulates suits for cancellation of
an instrument which lays down that any person
against whom a written instrument is void or
voidable and who has a reasonable apprehension
that such instrument, if left outstanding, may cause
him serious injury, can sue to have it adjudged void
or voidable and the court may in its discretion so
adjudge it and order it to be delivered or cancelled.
It would thus be clear that the word `person' in
Section 31 of the Specific Relief Act is wide enough
to encompass a person seeking derivative title from
his seller. It would, therefore, be clear that if he
seeks avoidance of the instrument, decree or
contract and seeks a declaration to have the
decrees set aside or cancelled he is necessarily
bound to lay the suit within three years from the
date when the facts entitling the plaintiff to have the
decree set aside, first became known to him." {See
also Sneh Gupta vs. Devi Sarup & Ors. [2009 (2)
SCALE 765]}."
22. Hon'ble the Supreme Court in Rasheeda Khatoon (Dead)
through Legal Representatives Vs. Ashiq Ali, S/o Lieutenant
Abu Mohd. (Dead) through Legal Representatives5, has held
at paragraphs 17 & 20 as under:-
"17. From the aforesaid discussion of the
propositions of law it is discernible that a gift under
the Muhammadan Law can be an oral gift and
need not be registered; that a written instrument
does not, under all circumstances require
registration; that to be a valid gift under the
5 (2014) 10 SCC 459
Muhammadan Law three essential features
namely, (i) declaration of the gift by the donor, (ii)
acceptance of the gift by the donee expressly or
impliedly, and (iii) delivery of possession either
actually or constructively to the donee, are to be
satisfied; that solely because the writing is
contemporaneous of the making of the gift deed, it
does not warrant registration under Section 17 of
the Registration Act.
20. The real thrust of the matter, as we perceive, is
whether the essential ingredients of the gift as is
understood in the Muhammadan Law have been
satisfied. To elaborate, a deed of gift solely
because it is a written instrument does not require
registration. It can always be treated as a piece of
evidence evidencing the gift itself, but, a significant
one, that gift must fulfill the three essential
conditions so that it may be termed as a valid gift
under the Muhammadan Law."
23. For a valid gift declaration by the donor is must. This issue has
come up for consideration before Hon'ble the Supreme Court in
Illahi Shamsuddin Nadaf Vs. Sou. Jaitunbi Makbul Nadaf 6,
wherein it has been held at paragraph 6 as under:-
"6. The above-mentioned facts pleaded by the
appellant in the written statement have not been
controverted by the respondent. In the rejoinder
dated 8-1-1991 filed by the appellant in this Court
he has mentioned his age as about 56 years which
shows that he was born sometime in the year
1934-35. That was the precise time when his
mother Mehamunisa died. There is, thus, inherent
truth in the averment of the appellant that he was
brought up by his maternal grandmother like a son.
It is evident that about 30 years before the filing of
the suit Rajubai gave the first floor of the suit house
to the respondent and the ground floor to the
appellant. They have been separately and to the
exclusion of each other enjoying this property for
over 40 years. It is, thus, obvious from the fact of
this case that Rajubai gave her property to her
daughter and the grandson in her lifetime by
dividing the house into two parts and giving
possession of the respective parts to the two heirs.
An oral gift is perfectly valid under Mahomedan
Law. The declaration as well as acceptance of the
gift may be oral whatever may be the nature of the
property gifted. The intention on the part of Rajubai
6 (1994) 5 SCC 476
to give the property to the two heirs is obvious by
the fact that she divided the house into two portions
and gave actual possession to both of them. The
appellant and the respondent are both living in their
respective portions for the last more than 40 years.
The mutation of the property is in their respective
names."
24. Hon'ble High Court of Patna in Maimuna Bibi & another Vs.
Rasool Mian & others7, has held at paragraph 94 & 98 as
under:-
"38. There is no doubt that under the Mahomedan
Law, an oral Hibba or gift is permissible. However,
it also well known that in order to constitute a valid
gift, the donor should divest himself completely of
all ownership and dominion over the subject of the
gift.
39. In order to constitute a valid gift, the three es-
sential ingredients are; (i) a declaration of gift by
the donor; (ii) an acceptance of the gift, express or
implied, by or on behalf of the donee; and (iii) deliv-
ery of possession of the subject of the gift by the
donor to the donee, vide Section 149 of the Mulla's
Principles of Mahommedan Law."
25. Hon'ble Calcutta High Court in Akbar Ali Molla & others Vs.
Sonargaon Housing Co-operative Society Ltd.8, has held at
paragraph 10 as under:-
"10. It is settled law that oral heba is permissible
under the Mohammendan law and to constitute
valid gift donor should divest himself completely of
all ownership and dominion over the subject of the
gift. The case of Maimuna Bibi and Anr. v. Rasool
Mtan and Ors., can be referred to in this context. It
is incumbent on the defendants/appellants to prove
their case of oral heba. The learned trial judge has
specifically observed in the impugned judgment
that in order to prove that oral heba made by
Bibijan Bibi in favour of her husband Dilbahar Molla
the defendants have not adduced any cogent and
reliable evidence. The oral heba, as contended by
the appellants, was made by Bibijan Bibi in favour
of Dilbahar Molla in respect of 1.36 acres of land
appertaining to suit plots 340, 341 and 342 in 1348
B.S."
26. From the above stated legal position, it is necessary for the
7 1990 SCC OnLine Pat 99
8 2001 SCC OnLine Cal 525
defendants to prove the existence of Hiba by examining the
witnesses in whose presence the donee has shown his intention
to donate the suit property in favour of the Abdul Rajjak. It is also
required for the defendants to prove by cogent evidence that
after declaration of intention of donee to donate the property to
Abdul Rajjak, Abdul Haq has relinquished himself from entire suit
property. In the present case, the defendants have not filed any
revenue record to establish that immediately after alleged Hiba,
deceased Abdul Rajjak has got recorded his name in the
revenue record to demonstrate that Abdul Haq has relinquished
his entire interest on the suit property. The defendants have also
not filed the memory letter dated 06.08.1963 which is alleged
recital of the partition. The witness examined by defendants No.
5 to 7 has also not stated that on which date the deceased-
Abdul Haq has given the property to Abdul Rajjak through oral
gift. The another ingredient for valid gift that the donee in whose
presence, Abdul Rajjak has accepted the Hiba has not been
examined. The defendants as well as both the Courts below
have placed much reliance on document Ex.D/1, which is
consent letter said to have been signed on 19.03.1990. The
authenticity of this consent letter was objected by the plaintiffs by
saying that in a blank stamp paper, their signatures have been
taken thereafter, the said consent has been typed. As per the
Mahomedan Law, this consent is of no relevancy as oral gift is
validly permissible, but the ingredients for a valid gift as
enumerated under the Mahomedan Law have to be proved. The
evidence adduced by the defendants does not prove the basic
ingredients of valid Hiba or gift. As such, the finding recorded by
the learned trial Court and affirmed by the learned First Appellate
Court that Abdul Haq has given the property to Abdul Rajjak is a
perverse finding.
27. The short coming of fulfilling the requirement vitiate the validity of
the gift as held by Hon'ble the Supreme Court in Maqbool Alam
Khan Vs. Mst. Khodaija & others9, wherein it has been held at
9 (1966) AIR SC 1194
paragraph 5 as under:-
"5.......This circumstance favours the case of oral
gift. The appellant examined himself as a witness in
this, case. He said that the gift was made on
February 10, 1943 in the presence of his parents.
His mother was alive, but she was not exmined as a
witness. The date of the gift was not mentioned in
the plaint or in any earlier document; 1 it was
disclosed for the first time in the witness-box, and
even then, it was not made clear how he
remembered the date in the absence of any record.
In the petition filed by him on April 10, 1943 in Title
Suit No. 127 of 1939 he had made a different case
and had stated that the gift was made a few months
before her death on February 26, 1943. His case
now is that Najma made a gift of her entire movable
and immovable properties. This case was not made
in the petitions filed in Title Suit No. 127 of 1939.
The particulars of the other properties are not
disclosed, nor is it shown that he ever took
possession of those properties. In the plaint, he
made the case that Najma died after making over
possession of the tenure to him. This statement is,
untrue, because Najma had been dispossessed of
the tenure in August 1942 and was not in
possession of it at the time of the alleged gift.
Considering all the circumstances, the High Court
held, and, in our opinion, rightly that the appellant
failed to prove the alleged oral gift. "
28. Hon'ble High Court of Andhra Pradesh in Ratan Lal Vs. Mohd.
Naibuddin10, has held at paragraph 3 as under:-
"3......It is true that no special set of rules are
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 fulfilment 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
10 (1984) AIR (AP) 344
because of the relationship of the donor and donee
(being father and son) , evidence is lacking on the
more important and formidable requirements 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 Madras High Court in S.G. Mahaboob Basha (Died)
Vs. Tmt. Najumunnissa11, has held at paragraph 45 to 48 as
under:-
"45. It is to be borne in mind that the term 'HIBA'
and Gift are more often employed, but the term
''HIBA'' is only of the kind of transactions which are
covered by the general term 'Gift'. 'HIBA' is confined
only to transfer of rights of full ownership or corpus
of any property. Such a transfer by means of 'HIBA'
must be immediate and not contingent. It must be
unconditional. Any conditions imposed in respect of
corpus would be void.
46. As a matter of fact the burden of proving with
the formalities of law have been complied with lies
on the person claiming to be the Donee. The
burden of proof is then shifted on those who
challenge the validity of gift in the considered
opinion of this Court. Really speaking, the burden of
establishing that possession has been delivered is
on the Donee of those who claim under him.
47. Whether the Donee holds a fiduciary position or
is in a position to dominate the will of Donor the
presumption of undue influence arises and it is
incumbent to the Donee to satisfy the Court that the
Donor had competent and independent advice.
48. It is necessary for the Donee to prove that the
gift has been the result of free exercise of
independent will. The most obvious way to prove
this is by establishing that the gift has been made at
the nature and effect of transaction has been fully
explained to the Donor by some independent and
qualified person so completely as to satisfy the
Court that the Donor has been acting independantly
of any influence from the Donee and with full
appreciation what he has been doing and in case
where there are no other circumstances, this may
be the only means by which the Donee can rebut
the presumption."
30. Hon'ble the Supreme Court in Hafeeza Bibi & others Vs.
11 2010 (1) Madras Weekly Note Civil 296
Shaikh Farid (Dead) by Lrs. & others 12, has examined the gift
under the Mahomedan Law and has held that it is always not
required that the gift-deed is to be registered, but if it is a recital
of the earlier gift, then it can be unregistered also, which does
not dilute the fulfilling of requirement of ingredients of Hiba in the
touchstone of Mahomedan Law, therefore, subsequent reduce in
writing of the earlier gift by alleged consent letter dated
19.03.1990 (Ex. D/1), is not of great importance as oral gift has
to be proved as per the touchstone of Mahomedan Law. Hon'ble
the Supreme Court has held at paragraph 24 as under:-
"24. The position is well settled, which has been
stated and restated time and again, that the three
essentials of a gift under Mohammadan Law are; (i)
declaration of the gift by the donor; (2) acceptance
of the gift by the donee and (3) delivery of
possession. Though, the rules of Mohammadan
Law do not make writing essential to the validity of
a gift; an oral gift fulfilling all the three essentials
make the gift complete and irrevocable. However,
the donor may record the transaction of gift in
writing."
31. This judgment has been considered by Hon'ble the Supreme
Court in D.N. Joshi (Dead) through Legal Representatives &
others Vs. D.C. Harris & another 13, wherein it has been held at
paragraph 31 as under:-
"26. In a recent decision of this court, namely,
Hafeeza Bibi and Others Versus Shaikh Farid
(Dead) By LRs. And Others 6, three essential
aspects for a valid gift deed in respect of an
immovable property under Muslim Law have been
restated in paragraphs 24, 27, 28, 29 and 30 as
under:
"24. The position is well settled, which has been
stated and restated time and again, that the three
essentials of a gift under Mohammadan Law are; (i)
declaration of the gift by the donor; (2) acceptance
of the gift by the donee and (3) delivery of
possession. Though, the rules of Mohammadan
Law do not make writing essential to the validity of
a gift; an oral gift fulfilling all the three essentials
makes the gift complete and irrevocable. However,
12 (2011) 5 SCC 654
13 (2017) 12 SCC 624
the donor may record the transaction of gift in
writing.
xxx xxx xxx xxx
27. In our opinion, merely because the gift is
reduced to writing by a Mohammadan instead of it
having been made orally, such writing does not
become a formal document or instrument of gift.
When a gift could be made by Mohammadan orally,
its nature and character is not changed because of
it having been made by a written document. What
is important for a valid gift under Mohammadan
Law is that three essential requisites must be
fulfilled. The form is immaterial. If all the three
essential requisites are satisfied constituting a valid
gift, the transaction of gift would not be rendered
invalid because it has been written on a plain piece
of paper. The distinction that if a written deed of gift
recites the factum of prior gift then such deed is not
required to be registered but when the writing is
contemporaneous with the making of the gift, it
must be registered, is inappropriate and does not
seem to us to be in conformity with the rule of gifts
in Mohammadan Law."
32. The vital issue whether the ingredients of valid Hiba has been
proved or has not been examined by the learned trial Court.
From the above stated discussion and considering the fact that
Hiba in favour of Abdul Rajjak has not been proved by the
plaintiffs and also considering the fact that recording of the name
of Abdul Rajjak does not confer any title to defendants No. 5 to
7, therefore, the suit cannot held to be barred by limitation. In
Abdul Rahim (Supra), Hon'ble the Supreme Court has
recorded a finding in paragraph 14 that deed of gift is a
registered one which contains a clear unambiguous declaration
of total divestment of property. Hon'ble the Supreme Court has
also held that a registered document carries a presumption that
it was validly executed and it has also been held that it is for the
parties questioning the genuineness of the transaction to show
that in law the transaction was not valid. But in the present case,
the deed of consent dated 18.03.1990 was not the registered
document, but written in the stamp paper and its authenticity
was questioned by the plaintiffs and the plaintiffs have also
specifically pleaded that in the year 2008, their claim over the
suit property has been denied by defendants No. 5 to 7,
thereafter, they have filed the suit, as such, it cannot be held that
the suit is barred by limitation, thus, learned trial Court has
committed illegality in dismissing the suit and thereafter the
learned First Appellate Court has further committed illegality in
dismissing the appeal, which deserves to be set aside by this
Court. Accordingly, it is set aside and the substantial question of
law is answered in favour of the appellants/plaintiffs and against
the defendants/respondents.
33. On substantial question of law No. 2 framed by this Court, it is
contended by learned counsel for the appellants that since the
appellants are co-owner of the suit property of Abdul Haq being
their ancestors, article 64 & 65 of the Limitation Act will
applicable in the present case. To substantiate the submission,
learned counsel for the appellants has relied upon the judgment
rendered by Hon'ble the Supreme Court in Vidya Devi (Supra)
and would refer paragraph 17 & 21, which is as under:-
"17. In the result, we allow this appeal, set aside
the judgment of the Division Bench of the High
Court in L.P.A. No. 70 of 1979 and restore the
orders of the Revenue Assistant, affirmed by the
Financial Commissioner and the learned Single
Judge of the High Court with costs, which we
quantify as Rs.20,000/-. Such cost shall be paid by
respondent (defendant-1) to the Legal
Represantatives of the deceased appellant
(plaintiff).
21. Normally, where the property is joint, co-sharers
are the representatives of each another. The co-
sharer who might be in possession of the joint
property shall be deemed to be in possession on
behalf of all the co-sharers. As such, it would be
difficult to raise the plea of adverse possession by
one co-sharer against the other. But if the co-
sharer or the joint owner had been professing
hostile title as against other co-sharers openly and
to the knowledge of others joint owners, he can,
provided the hostile title or possession has
continued uninterruptedly for the whole period
prescribed for recovery of possession, legitimately
acquire title by adverse possession and can plead
such title in defence to the claim for partition."
34. On the other hand, learned counsel for the defendants would
submit that the finding recorded by the learned trial Court and
affirmed by the learned First Appellate Court deserves to be
answered in negative against the appellants.
35. It is not in dispute that the appellants are legal heirs of Abdul
Haq, therefore, they are co-owners of the suit property and the
plaintiffs have pleaded that they have been denied their share in
the year 2008. Thereafter, they have filed civil suit. The
contention made by the defendants that since in the revenue
records, names of defendants have been recorded in the year
1990 and after that they have filed the suit, as such, it is barred
by limitation, is not acceptable on the count that the names of
defendants No. 5 to 7 have been recorded on the basis of Hiba
whose validity of agitated before the trial Court and the First
Appellate Court and the same has been answered in negative
against the plaintiffs, while deciding the substantial question of
law No. 1, this Court has held that defendants No. 5 to 7 have
not proved the Hiba in accordance with the Mahomedan Law,
consequently, the rights of defendants No. 5 to 7 will also be set
aside. Even otherwise, there is no limitation as the legislature
has not prescribed and period of limitation for filing of suit for
partition because partition is an incident attached to the property
and there is always a running cause of action for seeking
partition by one of the co-sharers, therefore, the suit is not
barred by limitation in light of judgment passed by Hon'ble the
Supreme Court in Vidya Devi (Supra), as such, substantial
question of law No. 2 deserves to be answered in favour of the
appellants, accordingly, it is held that the suit is not barred by
limitation.
36. Consequently, the instant second appeal is allowed. The
judgment and decree passed by the learned trial Court and
affirmed by the First Appellate Court is set aside. The plaintiffs
being legal representatives of deceased Abdul Haq are entitled
to get share in the suit property in accordance with the law of
inheritance as provided under the Mahomedan Law.
37. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
Arun
