Walliullah And Others vs Md. Mahfooz Alam And Others
2025 Latest Caselaw 4031 Jhar

Jharkhand High Court

Walliullah And Others vs Md. Mahfooz Alam And Others on 18 June, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

        IN THE HIGH COURT OF JHARKHAND AT RANCHI

                           F. A. No. 15 of 2025

   Walliullah and Others                               ...    ...     Appellants
                            Versus
   Md. Mahfooz Alam and Others                         ...    ...    Respondents

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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     For the Appellants      : Mr. Rajiv Ranjan, Sr. Advocate
                               Mr. Rohan Kashyap, Advocate
     For the Respondents     : Mr. M.A. Niyazi, Advocate
                               Mr. Akshay Kumar Mahato, Adv.
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     th
14/18 June 2025
   1.    Heard the learned counsels for the parties.
   Arguments of the appellants

2. The learned senior counsel for the appellants has submitted that essentially two points would arise for consideration and he does not want to press, so far as point of non-joinder of necessary party is concerned. The learned senior counsel has submitted that a finding has been recorded by the learned trial court with respect to non-joinder of necessary party against the appellants and the appellants are not aggrieved by such findings.

3. With respect to the point regarding partial partition, the learned senior counsel has submitted that there is ample evidence on record that there was property in the name of Abdul Ghani at Bhojpur but the plaintiffs did not disclose the properties at Bhojpur and sought partition of the property only at Jamshedpur.

4. During the course of arguments, it transpired that even in the written statement, no such point was taken. However, the learned senior counsel has submitted that there is enough evidence from the side of the plaintiffs also that there were landed properties which were yet to be

partitioned. The learned senior counsel has submitted that partial partition is not permissible under Mahomedan Law and for that purpose, he has relied upon the judgments passed by the Hon'ble Supreme Court reported in 1971 (1) SCC 597 (Syed Shah Ghulam Ghouse vs. Syed Shah Ahmed Moiuddin Kamisul Quadri) paragraph 19 and 20 and 2024 SCC OnLine 3809 paragraph 14 to 17 in particular.

5. The learned senior counsel has submitted that the suit itself was not maintainable on account of the fact that the suit was essentially for partial partition and once it has come on record that there were other properties of the family, then under such circumstances, the suit was fit to be dismissed as not maintainable. The plaintiffs have to stand on his own legs and no relief can be granted beyond what is permissible under law. He has extensively referred to the evidence on behalf of the plaintiffs and the defendants and has placed the impugned judgement to submit that existence of property at Bhojpur is admitted but they were not subject matter of partition.

6. The learned senior counsel has also referred to the judgment passed by the Hon'ble Supreme Court reported in (2009) 9 SCC 52 (R. Mahalakshmi vs. A.V. Anantharaman & Others) and has submitted that though the said judgment is in connection with Hindu Law, but in the said case, the partition was sought for without taking a stand that the suit was for partial partition, but all the properties did not form the subject matter of partition in the suit and therefore the matter was remanded to amend the plaint and to lead evidence.

7. The learned senior counsel has also relied upon the judgment passed by the Hon'ble Supreme Court reported in (2015) 14 SCC 450 (State of Madhya Pradesh vs. Nomi Singh & Anr.) to submit that the plaintiffs have to stand on his own legs and weakness of case of the defendants will not be a reason to decree the suit.

8. With respect to the point of Hiba (oral gift), the learned senior counsel for the appellants has submitted that three ingredients are required

to prove Hiba (oral gift) - declaration, acceptance and delivery of possession and all the three ingredients are present in the present case and it has come on record that the defendant no. 1 was in exclusive possession of the suit property and has constructed a building over the same. He also submits that there can be physical or constructive possession. He has extensively referred to the evidence on behalf of the plaintiffs and the defendants and has placed the impugned judgement to submit that hiba (oral gift) in favour of the defendant no.1 by Sk. Abdul Ghani was duly proved and therefore the suit for partition with respect to the suit property was not maintainable. He has in particular referred to the evidence of D.W-4 who claimed to be present at the time of Hiba (oral gift). He has submitted that all the three conditions of Hiba (oral gift) - declaration, acceptance and delivery of possession were proved to have taken place simultaneously. The learned counsel has referred to the evidence of D.W- 1 (son of defendant no.1), who has also fully supported the case of oral gift and his evidence has been fully placed during the course of hearing. The learned counsel has also submitted that after elapse of much time only the circumstances would show the factum of oral evidence. Arguments of the respondents

9. Learned counsel for the respondents while referring to the issue of partial partition, as raised by the learned senior counsel for the appellants, has submitted that partial partition is permissible under Mahomedan law qua one or the other property. He has referred to the book, namely, Mulla Principles of Mahomedan Law 23rd Edition, page 5 and in particular has referred to paragraph 43 and 44 to submit that it has been clearly mentioned therein that Muslims are not obliged to sue for partition for all the properties in which they are interested. There is nothing to preclude one of them from seeking a partition of some of the items of the properties. In support of the aforesaid submission, he has referred to the book, namely, Principles of Mahomedan Law by Mulla and has referred to the following judgments passed by the Hon'ble Supreme Court: -

            (i)     AIR 1960 J&K 57 (Khazir Bhat vs. Ahmed Dar)
                   paragraph 8, 11, 12 and 14
           (ii)    1915 SCC OnLine Mad 401 (Moideensa Rowthen
                   vs. Mahammad Kasim Rowthen) paragraph 1, 2
                   and 3
           (iii)   1922 SCC OnLine Sind JC 43 (Vazir @ Dino vs.
                   Dwarkamal & Ors.) paragraph 2, 5, 8, 9, 10, 12, 13
                   and 15

10. Learned counsel for the respondents has referred to the written statement filed by defendant No. 1 and has submitted that the written statement was verified and affidavited by one of his sons, namely, Kalimullah disclosing his age as 44 years as on 12.03.2015, meaning thereby, in the year 1967, he was not even born. The learned counsel has submitted that there is no materials on record to show the reason as to why the defendant No. 1 himself did not verify the written statement or file any affidavit. He has further submitted that the written statement was accompanied with an affidavit dated 12.03.2015 again by Kalimullah which also does not disclose that the statements in the written statement filed on behalf of defendant No. 1 was at the instance of defendant No. 1 or at the instructions of defendant No. 1 or as attorney of defendant No. 1. The learned counsel has submitted that during the pendency of the suit, the defendant No. 1 expired after the written statement was filed and the written statement of substituted defendants, who were the legal heirs of defendant No. 1, was also filed under the verification and affidavit of Kalimullah who was one of the sons of defendant No. 1. He has submitted that Kalimullah at any stage did not depose before the Court. The learned counsel has further submitted that so far as initial written statement of defendant No. 1 is concerned, he being the alleged donee with respect to the suit property, it has only been mentioned in the written statement that in the year 1967, the property was orally gifted to defendant No. 1 in presence of witnesses, but neither he has mentioned the name of the witnesses nor the time, place and date of oral gift has been mentioned.

The learned counsel has submitted that the defendant No. 1 was the best person to disclose the foundational details in connection with Hiba (oral gift). He has further submitted that even in the written statement filed by the legal heirs, no such detail of Hiba (oral gift) was mentioned.

11. The learned counsel has further referred to the evidences led on behalf of the defendants and has submitted that the defendant No. 4 had given the name of 3 witnesses for the first time and one of those witnesses was his father, but there is no reason as to why any of the witnesses including his father were not examined before the Court. The learned counsel has also submitted that the witnesses DW-1 to DW-3 did not even name that DW-4 was present at the time of Hiba. The learned counsel has submitted that the evidence of DW-4 reveals that his father was alive, inasmuch as, in the evidence on affidavit, he has not mentioned the name of his father as late, but all the other witnesses have specifically stated about the demise of their father. The learned counsel has also submitted that the appellants have themselves during the course of argument stated that all the three ingredients of Hiba i.e., declaration, acceptance and possession have to be done simultaneously but in the entire written statement, the presence of defendant No. 1 at the time of so-called Hiba has not been mentioned.

12. Learned counsel for the respondents has submitted that the defendant no. 1 and his legal heirs and successors who were claiming Hiba have miserably failed to prove the factum of Hiba. The learned counsel has referred to the evidence of D.W. 1 and has submitted that in the year 1967 as per his deposition, he was 7 to 8 years of age. The learned counsel has in particular referred to paragraphs 34, 35, 36, 43, 44, 45 and 46 of his deposition.

13. With respect to D.W. 2, the learned counsel for the respondents has referred to his evidence in paragraphs 3, 10, 12 and 19. He submits that in his evidence D.W. 2 has stated that he was 14 to 15 years of age at the relevant time. With respect to D.W. 3, the learned counsel for the

respondents has referred to paragraphs 10 and 38 of his evidence and with respect to D.W. 4, he has referred to paragraphs 4, 14, 16, 17, 24, 27 and 28 of his evidence. He has submitted that D.W. 4 was also 16 years of age in the year 1967.

14. Learned counsel for the respondents has further submitted that the presence of D.W. 4 was never disclosed at any point of time either in the written statement or in the evidence of D.W. 1 to 3 and his positive evidence is that he had deposed at the instance of defendant no. 1 regarding the factum of Hiba.

15. The learned counsel for the respondents has again referred to extract from the book, namely, Principle of Mahomedan Law (23rd Edition) (page 184 and 185) by Mulla at running page 237 of their compilation to submit that Hiba is required to be proved by unequivocal and clinching evidence and submits that such positive evidence in connection with Hiba is missing. The learned counsel has submitted that there are three elements of Hiba i.e, declaration, acceptance and possession and the first limb itself has not been proved. He submits that each of the elements is required to be proved independently.

16. Learned counsel for the respondents has referred to the following judgments: -

(i) 2009 SCC OnLine AP 771 [Katwal Abdul Hakeem Sab (died) by LRs. Vs. Nasyam Sufiya and others] (paragraphs 13 and 14)

(ii) 1984 SCC OnLine AP 51 (Ratan Lal Bora and others Vs. Mohd. Nabiuddin) (paragraphs 3 and 4)

(iii) 1963 SCC OnLine SC 205 (Maqbool Alam Khan Vs. Mst. Khodaija and others) (paragraph 4)

(iv) 2016 SCC OnLine Hyd 123 (Hifazath Hussain and others Vs. Sadiq Hussain @ Mushraf) (paragraphs 16 and 22)

(v) Judgment passed by High Court of Madras (Madurai Bench) in A.S. (MD). No. 24 of 2010 (Noorjehan Beevi

and others Vs. Tajudeen and others) decided on 01.06.2023 (paragraphs 20 and 24).

17. Learned counsel for the respondents has further submitted that considering the totality of the evidences placed on record, the declaration in connection with the Hiba (oral gift) has not been proved. The learned counsel has also referred to exhibits- 4 and 5 to submit that even as late as in the year 1972 to 1975, which is much after the alleged Hiba of 1967, it was Sk. Abdul Ghani who was contesting the cases before the authorities which has been admitted by D.W. 3 also, therefore, Sk. Abdul Ghani never divested himself from the ownership and possession of the property.

18. Learned counsel for the respondents has also submitted that the survey or mutation showing possession of defendant no. 1 does not by themselves prove Hiba and they are not linked to the Hiba, inasmuch as, there is no evidence to show that in the survey the name of defendant no. 1 was entered pursuant to Hiba.

Rejoinder arguments of the appellants

19. In response, the learned senior counsel for the appellants has submitted that the facts and circumstances of the case clearly prove Hiba, although the names of the witnesses to Hiba were disclosed by the evidence of the defendants for the first time during their deposition, but they were not examined for the reasons not available in the records.

20. Learned senior counsel for the appellants has further submitted that the entry in records-of-rights which was finally published in the name of defendant no. 1 attained finality and therefore, there cannot be any doubt that defendant no. 1 was the exclusive owner of the suit property and was also in possession thereof. The learned counsel for the appellants has submitted that at any point of time, the plaintiffs did not raise any objection with regard to entry in the records-of-rights and such omission to challenge the entry made in the record of rights was essentially because of the reason that the property was subject matter of Hiba.

21. Arguments concluded.

22. Post this case for judgment on 18th August 2025.

(Anubha Rawat Choudhary, J.) Mukul/Pankaj