2: Rehnuma Khan vs Nur Alom Khan And Anr
2025 Latest Caselaw 4184 Gua

Gauhati High Court

2: Rehnuma Khan vs Nur Alom Khan And Anr on 18 March, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

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GAHC010014302016




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                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : RSA/116/2016

         ON THE DEATH OF ABDUL KADER KHAN HIS LEGAL HEIRS and ORS
         Represented by-

         1.1: MOMINA KHATUN
          D/O ABDUL KADER KHAN
         R/O CHOWK BAZAR GOALPARA TOWN
         PO AND DIST GOALPARA PIN 783101

         1.2: REHNUMA KHAN
          D/O ABDUL KADER KHAN
         REPRESENTED BY HER NATURAL GUARDIAN (MOTHER) MOMINA
         KHATUN
         R/O CHOWK BAZAR GOALPARA TOWN
         PO AND DIST GOALPARA PIN 783101

         2: OWYES KHAN

          BOTH ARE SONS OF LATE ABDUL LATIF KHAN
          R/O GOALPARA TOWN
          CHOWK BAZAR
          P.O. and DIST. GOALPARA
          PIN 783101

         3: JAHANARA KHAN
          D/O LATE ABDUL LATIF KHAN
         W/O ARIF KHAN
          R/O SIX MILE
          P.O. DISPUR
          GUWAHATI
          DIST. KAMRUP M
          PIN 783101

         4: ANOWARA KHANAM @ NIKI KHAN
                                                              Page No.# 2/11

          D/O LATE ABDUL LATIF KHAN

         5: YASMIN KHAN

          D/O LATE ABDUL LATIF KHAN

         6: ROUSOUNARA BEGUM
         W/O A. LATIF KHAN
          4
          5 AND 6 ARE R/O CHOWK BAZAR
          GOALPARA
          P.O. and DIST. GOALPARA
          PIN 78310

         VERSUS

         NUR ALOM KHAN and ANR


         2:NUR MOHAMMAD

          BOTH ARE SONS OF LATE ABDUL LATIF KHAN
          R/O CHOWK BAZAR
          GOALPARA TOWN
          P.O. and DIST. GOALPARA
          PIN 78310

Advocate for the Appellants   : Mr. A. Roshid, Advocate
Advocate for the Respondents : Mr. M. K. Hussain, Advocate

                                 BEFORE
          HONOURABLE MR. JUSTICE DEVASHIS BARUAH
                       Date of Hearing       : 18.03.2025

                       Date of Judgment      : 18.03.2025
                   JUDGMENT AND ORDER (ORAL)

Heard Mr. A. Roshid, the learned counsel appearing on behalf of the appellants and Mr. M. K. Hussain, the learned counsel appearing on behalf of the respondents.

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2. This is an Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code') challenging the judgment and decree dated 24.06.2015 passed in Title Appeal No.6/2014 whereby the learned Court of the Civil Judge, Goalpara (herein after referred to as 'the learned First Appellate Court') had dismissed the Appeal thereby confirming the judgment and decree dated 10.04.2014 passed by the Court of the learned Munsiff No.1, Goalpara (herein after referred to as 'the learned Trial Court') in Title Suit No.114/2010.

3. It is seen from the records that on 02.05.2016, this Court had admitted the instant Appeal by formulating the following substantial question of law:-

"Whether the finding of the learned courts below that the

defendant failed to prove oral gift in terms of Section 149 of the Mulla's Mohammedan Law is perverse?"

4. The question arises in the instant Appeal as to whether the said substantial question of law so formulated is involved in the instant Appeal.

5. For ascertaining the same, this Court would like to first deal with the facts which led to the filing of the instant Appeal.

6. For the purpose of convenience, this Court would refer the parties in the same status as they stood before the learned Trial Page No.# 4/11

Court.

7. The plaintiffs who are the respondent Nos.1 & 2 in the instant proceedings had instituted a suit seeking declaration that they have 7/72 shares out of the total properties mentioned in Schedule A, B, C and D to the plaint; for declaration that each of the defendant Nos.1, 2 & 3 will get 7/72 shares out of the total property; for declaration that each of the defendant Nos.4, 5, 6, 8, 9 & 10 is entitled to 7/144 shares; for declaration that the defendant Nos.11, 12 & 13 will jointly get the share of Late Nurul Amin Khan, i.e. 7/72 shares; for preliminary decree of partition; for an order appointing the Deputy Commissioner Goalpara as Commissioner to make partition of the land and property mentioned in Schedule A, B, C and D; for final decree of partition etc.

8. The case of the plaintiffs in short is that one Abdul Latif Khan (since deceased) was the owner and possessor of a plot of land admeasuring 3 kathas 17 lechas standing in four different Pattas and 4 different Dags which were specifically described in Schedule A, Schedule B, Schedule C and Schedule D to the plaint. The said Abdul Latif Khan expired on 31.12.2006 leaving behind two wives, six sons, six daughters. The plaintiff No.1 and the plaintiff No.2 along with the defendant Nos.1, 2 & 3 and Nurul Amin Khan (expired) were the sons of Late Abdul Latif Page No.# 5/11

Khan. The defendant Nos.4, 5, 6, 8, 9 & 10 were the daughters of Late Abdul Latif Khan. The defendant Nos.7 & 14 were the wives of Late Abdul Latif Khan. Both the plaintiffs who used to reside outside their hometown and when they came in the month of March, 2008 and asked one of his brothers Late Nurul Amin Khan as regards the shares of their property, the defendants refused to give any share of the land and property to the plaintiffs. The plaintiffs thereupon after making enquiry came to learn in the last part of December, 2008 that the names of the defendants have been illegally recorded in the revenue record without recording the names of the plaintiffs. It is under such circumstances, the plaintiffs had filed a suit seeking the relief as above mentioned.

9. The defendant Nos.1, 2, 4, 5, 6 & 7 jointly filed their written statement. In the said written statement, a plea was taken by the defendants that the entire land under original Patta No.91 Dag No.35, i.e. totaling to 2 kathas 15 lechas was orally gifted to the Defendant Nos.2 (the Schedule B land), the defendant No.1 (Schedule B land) and Late Nurul Amin Khan (Schedule C land) and got delivery of possession. Subsequently, they partitioned the said Dag No.35 by creating three new Pattas, i.e. Patta No.362 of Dag No.1014; Patta No.363 of Dag No.101 and Patta No.95 against Dag No.35. From a perusal of the written Page No.# 6/11

statement, it is seen that the defendants have contested the suit primarily on the ground that there was an oral gift made by Late Abdul Latif Khan in favour of the defendants.

10. On the basis of the pleadings as many as 11 issues were framed. The said issues were:-

1) Whether there is any cause of action for the suit?

2) Whether the suit is maintainable in the present form and manner?

3) Whether the suit is barred by law of limitation?

4) Whether the suit is bad for non joinder of parties?

5) Whether Abdul Latif Khan during his lifetime himself distributed his property to his sons and daughters?

6) Whether Abdul Latif Khan gifted the land in Schedule B to Oyes Khan, in Schedule D to Abdul Kalam Khan, in Schedule C to Nurul Amin Khan and gave delivery of possession?

7) Whether the land in Schedule A was allotted to Abdul Rasid Khan, Amina Kahtun, Momina Khatun, Nur Fatema and brothers, sisters and mother of plaintiffs by Abdul Latif Khan?

8) Whether the plaintiffs are entitled to declaration of Page No.# 7/11

shares as prayed for?

9) Whether the plaintiffs is entitled to partition of the suit land and entitled to 7/72 shares out of total properties mentioned in Schedule A, B, C and D?

10) Whether the plaintiffs are entitled to any other relief?

11) To what reliefs the parties are entitled?

11. On behalf of the plaintiffs, four witnesses were examined and certain documents were exhibited. On behalf of the defendants, four witnesses were also examined. However, no documents filed by the defendants were exhibited.

12. The learned Trial Court vide the judgment and decree dated 10.04.2010 passed the preliminary decree to the effect that the defendant Nos.7 & 14 each are entitled to 9.6 lechas of land; the plaintiff Nos.1 & 2 and the defendant Nos.1, 2 & 3 each and the legal heirs of the deceased Nurul Amin Khan were entitled to 6.42 lechas of land and the defendant Nos.4, 5, 6, 8, 9 & 10 each were entitled to 3.2 lechas of land. On the basis of that, directions were issued to the Collector for making partition in terms with Section 54 of the Code.

13. Being aggrieved, an Appeal was preferred which was registered as numbered as Title Appeal No.6/2014.

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14. The learned First Appellate Court vide the judgment and decree dated 25.06.2015 dismissed the Appeal.

15. Taking into account the substantial question of law which has been formulated, this Court finds it relevant at this stage to take note of the decision in respect Issue Nos.5, 6 & 7 by both the learned Trial Court as well as the learned First Appellate Court. The learned Trial Court after taking into account the evidence came to a finding that the defendants have failed to prove the three requisites of an oral gift which are essential. Accordingly, the suit was decided in favour of the plaintiffs. The learned First Appellate Court also while deciding the Issue Nos.5, 6 & 7 had on the basis of the evidence on record and came to an opinion that the defendants have failed to prove that there was a valid oral gift in favour of the defendants.

16. In the backdrop of the above, let this Court now take note of as to whether the substantial question of law so formulated by this Court on 02.05.2016 is involved in the instant Appeal. As the substantial question of law formulated relates to as to whether the defendants failed to prove oral gift in terms with Section 149 of the Mohammedan Law is perverse, it is relevant at this stage to take note of the essentials to constitute a valid gift under the Mohammedan Law. They are:-

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(a) The gift is required to be declared by person making the gift, i.e. the donor;

(b) Such a gift has to be accepted either impliedly or explicitly by or on behalf of the donee and

(c) Apart from declaration and acceptance, there is also a requirement of delivery of possession for a valid gift.

17. It is very well settled that the requirements for validity of a gift is sequential, i.e. one must follow the other. The later condition can only hold good if the first one is complied with. In other words, if (a) is not complied with (b) and (c) would not be of consequence. Similarly, if (a) and (c) are met without (b), it would still be of no consequence. In the end, all the three conditions must be met.

18. It is also relevant to take note of a judgment of the Supreme Court in the case of Rasheeda Khatoon vs. Ashiq Ali, reported in (2014) 10 SCC 459 wherein the Supreme Court observed the three essential features for a valid gift which are required to be satisfied. Paragraph No.17 of the said judgment is reproduced herein below:-

"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, Page No.# 10/11

under all circumstances require registration; that to be a valid gift under the 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."

19. In the backdrop of the above, let this Court take note of as to whether the defendants were able to prove that there was a valid oral gift. There is not a single whisper in the written statement that there was a declaration made by the donor about the gift. What has been stated in the written statement is that Late Abdul Latif Khan had orally gifted the suit land and had delivered possession. In the evidence of DW1, DW2, DW3 and DW4, it is seen that the witnesses and more particularly the donee was not aware as to when the gift was made or before whom the gift was made. There is also nothing mentioned even in the evidence that there was a declaration made by the donor.

20. Under such circumstances, the first essential condition that a gift has to be necessarily declared by the person making the gift, i.e. the donor is not met. Consequently, the second aspect as regards the gift being validly, impliedly or explicitly accepted Page No.# 11/11

or the third aspect that there was delivery of possession holds no consequences. In that view of the matter, it is the opinion of this Court that there is no perversity in the findings of both the Courts below that the defendants have failed to prove the three essential requisites of a valid oral gift.

21. Considering the above, the substantial question of law so formulated, in the opinion of this Court, is not involved in the present Appeal.

22. Consequently, the Appeal stands dismissed with costs quantified at Rs.11,000/-.

23. LCR(s) be returned.

JUDGE

Comparing Assistant