[Cites 10, Cited by 0]
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
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
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
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
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
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
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).
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
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
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
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
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
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
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
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
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.
Third, 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
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.
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.
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
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
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
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
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
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
