Sabra Bi vs Sharif Khan on 20 March, 2026

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

          NEUTRAL CITATION NO. 2026:MPHC-GWL:9812




                                                              1                             WA-747-2026
                             IN     THE      HIGH COURT OF MADHYA PRADESH
                                                   AT GWALIOR
                                                        BEFORE
                                         HON'BLE SHRI JUSTICE G. S. AHLUWALIA
                                                          &
                                          HON'BLE SHRI JUSTICE ASHISH SHROTI
                                                 ON THE 20th OF MARCH, 2026
                                                  WRIT APPEAL No. 747 of 2026
                                                    SABRA BI AND OTHERS
                                                           Versus
                                                  SHARIF KHAN AND OTHERS
                          Appearance:
                                  Shri Harish Kumar Dixit- Senior Advocate assisted by Shri Parth
                          Dixit, learned counsel for the appellants.
                                  Shri Arun Dudawat- Advocate for respondent no. 1.
                                  Shri G.K. Agrawal- Advocate for respondent no. 2/State.

                                                                  ORDER

Per: Justice Gurpal Singh Ahluwalia

This writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 has been filed against the order dated 26/02/2026 passed by learned Single Judge in

W.P.No. 25503/2025, by which, the mutation of name of the appellants on the basis of Hiba, allegedly executed by Sharif Khan/respondent has been set aside and liberty has been granted to the appellants to approach the Civil Court for declaration of their title.

2. It is submitted by learned senior counsel for the appellants that respondent had executed an oral Hiba, which was duly accepted by the donee

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2 WA-747-2026 and possession of the property was actually delivered. An application for mutation on the basis of oral Hiba was filed and in that proceedings, the respondent filed an affidavit in support of the oral Hiba and also appeared and gave his evidence. Accordingly, name of appellants were recorded in the revenue records on the basis of oral Hiba. Later on, after 10 years, the respondent preferred an appeal alleging that he had not given any affidavit before the Tehsildar. The delay was condoned and the appeal was dismissed. The respondent challenged the order passed by SDO before the Commissioner and the appeal was allowed ex parte. A review was filed and by order dated 16/11/2022, the Commissioner allowed the review and quashed the order passed by the SDO resulting in revival of the original

order passed by the Tehsildar. Against the said order, respondent preferred M.P. No. 116/2023, which was allowed by order dated 10/4/2024 and the order dated 16/11/2022 passed by Additional Commissioner was set aside and the matter was remanded back to the Additional Commissioner for adjudicating the dispute afresh. On an application filed by appellants, the ex parte order was set aside and Thereafter the appeal filed by respondent was dismissed, which was challenged by respondent by filing W.P.No. 25503/2025. The writ petition was allowed by learned Single Judge by impugned order dated 26/02/2026.

3. Challenging the order passed by the learned Single Judge, it is submitted by learned counsel for the appellants that in view of the judgment passed by Full Bench of this Court in the case of Anand Choudhary Vs. State of M.P. and Ors., reported in 2025 (1) MPLJ 646 as well as the judgment

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3 WA-747-2026 passed by Supreme Court in the case of Tarachandra Vs. Bhawarlal and Anr., Civil Appeal No. 15077 of 2025 (arising out of SLP (C) No. 22439/2024), it is clear that the person, who is challenging the Will (as it was the subject matter of that litigation) has to approach the Civil Court for declaration of his title. It is submitted that when the Will is an undisputed document then Revenue Authority can mutate the name on the basis of Will. However, it is also fairly conceded by the counsel for the appellants that in the same judgment, it is held that in case, the Will is disputed then the Revenue Courts have no jurisdiction to decide the correctness and genuineness of the Will and the propounder of the Will has to approach the Civil Court for declaration of his title. It is submitted that in the present case, the respondent did not oppose the application for mutation but he himself had filed an affidavit in support of the application, therefore, in the light of judgment passed by Full Bench of this Court in the case of Anand Choudhary (supra) and the Supreme Court in the case of Tarachandra (supra), the Tehsildar did not commit any mistake by mutating the name of appellants. Merely because the respondent had preferred an appeal after 10 years, alleging that he had never submitted his affidavit before the Tehsildar, the same cannot be a good ground to set aside the order of mutation. In fact, learned Single Judge should have directed the respondent to approach the Civil Court for declaration of his title.

4. Per contra, the appeal is vehemently opposed by counsel for respondent no. 1.

5. Heard the learned counsel for the parties.

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6. It is the case of the appellants that the respondent had executed an oral Hiba in their favour, which was duly accepted by them and actual possession was also taken and thus, all the essential ingredients of Hiba were proved. Since, it was an oral Hiba, therefore, there was no documentary evidence in support of that. However, the appellants have relied upon an affidavit filed by Sharif Khan in the mutation proceedings to claim that out of love and affection, Sharif Khan had executed a Hiba in favour of appellants. It is not out of place to mention that Sharaf Khan had disputed this affidavit by filing an appeal before the SDO. Although, according to appellants, the appeal was filed after 10 years, but since the delay was condoned by the SDO, therefore, there is no need for this Court to consider as to whether objection raised by the Sharif Khan was belated or not. But one thing is clear that Sharif Khan had claimed that the affidavit, which was filed before the Revenue Authorities was not filed by him, but it was a forged document.

7. Be that whatever it may be.

8. As already pointed out, initially the Additional Commissioner had allowed the appeal filed by the respondent and set aside the order passed by the Tehsildar as well as by the SDO. Accordingly, the appellants had filed a review petition before the Additional Commissioner, which was registered as Case No. 106/A.V.-Review/2021-22 and was decided by order dated 16/11/2022. In that review, a specific stand was taken by the appellants that appellants and respondent are uncle and niece and respondent had executed a Hiba in favour of appellants by way of exchange, because in a family

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5 WA-747-2026 settlement, some other land was given to the respondent. It is fairly conceded by counsel for the appellants that there is no document on record to show that any family settlement had taken place. Furthermore, there is no provision for partition in Mohammedan Law and the parties would inherit their share only after death of the owner of the property. The Supreme Court in the case of Mansoor Sahab (Dead) & Ors. Vs. Salima (Dead) through LRs and Ors., decided on 19/12/2024 in C.A.No. 4211/2009, has held as under:-

"17. Let us now turn to the position as it is under Mohammedan Law. The right of an heir-apparent comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor [See: Mulla Principles of Mahomedan Law, 22nd Edition, Chapter 6; Abdul Wahid Khan v. Mussumat Noran Bibi & Ors., 1885 SCCOnline PC 4]. Reference may also be made to the decision of this case in Gulam Abbas v. Haji Kayyum Ali & Ors., (1973) 1 SCC 1, wherein a bench of three learned judges observed albeit in connection with renunciation of inheritance as under:

"7. Sir Roland Wilson, in his "Anglo Mohamadan Law" (p. 260, para 208) states the position thus:

"For the sake of those readers who are familiar with the joint ownership of father and son according to the most widely prevelant school of Hindu Law, it is perhaps desirable to state explicitly that in Mohammedan, as in Roman and English Law, nemo est heres viventis.........a living person has no heir. An heir apparent or presumptive has no such reversionary interest as would enable him to object to any sale or gift made by the owner in possession; See Abdul Wdhid, L.P. 12 I.A., 91, and 11 Cal 597 (1885) which was followed in Hasan Ali, 11 All 456, (1889). The converse is also true: a renunciation by an exepectant heir in the lifetime of his ancestor is not valid, or enforceable against him after the vesting of the inheritance.""

(Emphasis supplied)

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6 WA-747-2026 It is also important to note that the doctrine of partial partition does not apply to Mohammedan Law as the heirs therein are tenants-in-common. Succession is to a definite fraction of the estate in question. A.N. Ray, J. as his Lordship then was wrote in Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri, (1971) 1 SCC 597, as follows:

"20. ... In Mohammedan law the doctrine of partial partition is not applicable because the heirs are tenants-in-common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate. The shares of heirs under Mohammedan law are definite and known before actual partition. Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law."

18. It is acknowledged that Islamic Law has four sources-- (i) Quran (ii) Hadith (iii) Ijma and (iv) Qiyas. It is commonly accepted that all Islamic personal law has to derive from these four sources. There is a generally acknowledged division among these four sources as well. The Quran is pre-eminent and deserving of all primacy followed by the other three in that very order. The question involved in these appeals also, of inheritance and/or gift must be decided in reference thereto only. The topic of inheritance has been dealt with primarily under Chapter 4 of the Quran, https://quran.com/4, Al-Nisa. The relevant verses are as under:

"4:11 Allah commands you regarding your children: the share of the male will be twice that of the female.1 If you leave only two ˹or more˺ females, their share is two-thirds of the estate. But if there is only one female, her share will be one-half. Each parent is entitled to one-sixth if you leave offspring.2 But if you are childless and your parents are the only heirs, then your mother will receive one-third.3 But if you leave siblings, then your mother will receive one-sixth4

--after the fulfilment of bequests and debts.5 ˹Be fair to˺ your parents and children, as you do not ˹fully˺ know who is more beneficial to you.6 ˹This is˺ an obligation from Allah. Surely Allah is All-Knowing, All Wise. 4:12 You will inherit half of what your wives leave if they are childless. But if they have children, then ˹your share is˺ one-fourth of the estate--after the fulfilment of bequests and

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7 WA-747-2026 debts. And your wives will inherit one-fourth of what you leave if you are childless. But if you have children, then your wives will receive one-eighth of your estate--after the fulfilment of bequests and debts. And if a man or a woman leaves neither parents nor children but only a brother or a sister ˹from their mother's side˺, they will each inherit onesixth, but if they are more than one, they ˹all˺ will share one-third of the estate1--after the fulfilment of bequests and debts without harm ˹to the heirs˺.2 ˹This is˺ a commandment from Allah. And Allah is All-Knowing, Most Forbearing.

4:176 They ask you ˹for a ruling, O Prophet˺. Say, "Allah gives you a ruling regarding those who die without children or parents." If a man dies childless and leaves behind a sister, she will inherit one-half of his estate, whereas her brother will inherit all of her estate if she dies childless. If this person leaves behind two sisters, they together will inherit two-thirds of the estate. But if the deceased leaves male and female siblings, a male's share will be equal to that of two females. Allah makes ˹this˺ clear to you so you do not go astray. And Allah has ˹perfect˺ knowledge of all things.1"

19. Reading of the above verses reveals clearly with the use of the words 'leave', 'leaves' or 'man dies' that division of property is only possible upon the death of a person, amongst his heirs. There is no prescription as to how the partition of property may take place when a person is alive.

20. One may reasonably conclude, having referred to the primary texts and commentaries on Mohammedan Law, that partition while a person is alive between him and his heirs is impermissible. The manner in which partition is to take place after the death of the ancestor is set out in great detail in the sources of Mohammedan Law however, the same is beyond the scope of the present lis."

9. If the so called affidavit, filed by respondent which according to him is a forged one, is considered in light of the defence taken by the appellants before the Additional Commissioner, then it is clear that in the affidavit, it is nowhere mentioned that the respondent had executed an oral Hiba by way of exchange of land. Accordingly, in view of the stand taken

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8 WA-747-2026 by the appellants before the Additional Commissioner, the counsel for the appellants was directed to point out that which land was given to respondent in lieu of the land which they have obtained by way of Hiba. It is submitted that there is no such evidence on record. However, the only bone of contention of counsel for the appellants is that since the respondent is disputing the existence of oral Hiba, therefore, he should approach the Civil Court and not the appellants.

10. Unfortunately, this Court is unable to convince itself with regard to submissions made by counsel for the appellants. It is the case of respondent that he never submitted any affidavit before the Tehsildar. Therefore, the very basis of the submission of appellants that mutation of their names in the revenue record was primarily on the basis of affidavit of respondent comes under dark clouds. Furthermore, the appellants themselves have taken the stand that oral Hiba was executed by respondent in exchange of some other land. Since it is the stand of appellants, therefore, now they cannot disown the same. The appellants had not led any evidence to show that in lieu of the land which they got by oral Hiba, which land was given to the respondent. As per Clause 168 of the Mulla Mahomedan Law authored by Dr. Dinshaw Fardunji Mulla, Hiba-bil-iwaz (gift with exchange) is permissible under the Mohammaden Law. In the affidavit it was claimed by the appellants that oral Hiba is without consideration, whereas, the stand/ground, which was taken by the appellants before the Additional Commissioner, was that oral Hiba was by way of consideration. Therefore, the burden is on the appellants to prove that in exchange of some other land, the respondent had executed the

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9 WA-747-2026 oral Hiba-bil-iwaz. As per Clause 168 of Hiba-bil-iwaz, two conditions must occur to make the transaction valid, viz., (i) actual payment of consideration (iwaz) on the part of donee and (ii) a bona fide intention on the part of doner to divest himself in praesenti of the property and to confer it upon the donee. The adequacy of consideration is not material for whatever its amount, it must be actually and bona fide paid. Thus, having taken a defence that Hiba in question was in fact by way of exchange of a land then the entire burden is on the appellants to prove actual transaction of exchange as required under Clause 168 of Mulla Mahomedan Law authored by Dr. Dinshaw Fardunji Mulla. Therefore, the contention of appellants that in fact the respondent should approach the Civil Court to establish his title is misconceived and since the appellants themselves have claimed that an oral Hiba-bil-iwaz was executed by respondent then the burden is on them to prove that actual consideration amount (in the present case the exchange of land) did take place and they must prove that which land was given by way of exchange to respondent. All these aspects are missing, which have not been taken into consideration by any of the Revenue Courts.

11. Under these circumstances, this Court is of the considered opinion that since there was a dispute with regard to genuineness of the oral Hiba and even in accordance with the defence taken by appellants themselves that the Hiba in question was a Hiba-bil-iwaz, therefore, the burden is on the appellants to prove that both the ingredients were complied with. Therefore, it is for the appellants to prove their title on the basis of oral Hiba-bil-iwaz, by approaching the Civil Court.

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12. Under these circumstances, since no illegality was committed by learned Single Judge, accordingly, the appeal fails and is hereby dismissed.

(G. S. AHLUWALIA) (ASHISH SHROTI) JUDGE JUDGE JPS/-