Madras High Court

Gani Israth Jabeen vs / on 16 July, 2025

Author: G.Jayachandran

Bench: G.Jayachandran

                                                                                                  A.S.No.449 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                  Reserved on : 07.07.2025                Pronounced on :16.07.2025

                                                               Coram:

                                  THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

                                                Appeal Suit No.449 of 2022
                                                           and
                                                 C.M.P.No.16191 of 2022

                     Gani Israth Jabeen                                                  .. Appellant/Defendant

                                                               /versus/

                     Shamaz Paraveen                                                     .. Respondent/Plaintiff

                     Prayer:         Appeal Suit has been filed under Section 96 of C.P.C., 1908,
                     read with Order XLI, XLI A of C.P.C., to set aside the judgment and decree
                     dated 22.04.2022 passed in O.S.No.33 of 2018                           on the file of the III
                     Additional District and Sessions Judge, Vellore at Tirupattur and allow the
                     first appeal.


                                     For Appellant        :Ms.Nuzhath Khanam

                                     For Respondent       :Mr.K.Kumar
                                                              -----



                     1/17




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                                                                                              A.S.No.449 of 2022

                                                               JUDGMENT

The defendant in the partition suit is the appellant herein. The plaintiff

[Shamaz Paraveen] filed a suit for partition, seeking a direction to the

defendant to divide the suit property into four equal shares and to allot ¾

share to the plaintiff.

2. The case of the plaintiff is that the suit property belonged to one

Janab Kaka Shahina Aslam, wife of Malang Aslam Basha. The said Janab

Kaka Shahina Aslam died on 23.11.2007. According to Shariat law, the

property of a Muslim woman devolves equally upon her husband and siblings.

Kaka Riyaz Ahmed Sahib, the brother of Janab Kaka Shahina Aslam, along

with her husband Malang Aslam Basha, was entitled to an equal share in her

property. Kaka Riyaz Ahmed Sahib subsequently released his share in favour

of Malang Aslam Basha through a release deed dated 14.07.2008. Thus,

Malang Aslam Basha became the absolute owner of the suit property.

3. The plaintiff, being the sister of Malang Aslam Basha, claims

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that she is entitled to a ¼ share in the property on the death of Malang Aslam

Basha on 06.06.2015. The remaining sharer is the defendant, the second wife

of Malang Aslam Basha. The plaintiff, claiming ¾ share in the suit property

under Muslim Personal Law (Shariat Act), approached the Jamathadars for

division of the property and requested allotment of her ¾ share. However, the

defendant evaded partition, and therefore, the plaintiff filed a suit after issuing

notice.

4. The plaintiff also contended that apart from the Schedule I

property (inherited by Malang Aslam Basha through his wife), the deceased

was running a printing press valued at Rs. 1,00,000/-, and had a bank deposit

of Rs. 3,27,828/-. She claimed a ¾ share in all three assets.

5. The defendant denied the plaintiff’s claims and stated that it is

false to allege that Malang Aslam Basha died intestate on 06.06.2015 and that

the property devolves upon the plaintiff and defendant in a 3:1 ratio as per

Shariat law. The defendant contended that during his lifetime, Malang Aslam

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Basha disposed of the suit properties and at the time of his death, he had

debts amounting to Rs. 3,50,000/- payable to the State Bank of India,

Vaniyambadi Branch, along with sundry debts amounting to Rs. 1,50,000/- to

various individuals. The defendant claims to have discharged all these debts

on behalf of the deceased.

6. Further, it was pleaded that Malang Aslam Basha, during his

lifetime, made an oral gift (Hiba) of the property to the defendant on

24.07.2013 in the presence of respectable witnesses. He also delivered

possession of the property to her. The defendant is currently residing in the

said premises and paying the municipal tax.

7. The Trial Court Framed the Following Issues:

1.Whether the plaintiff is entitled to ¾ share in the suit properties as prayed for?

2.Whether the said Malang Aslam Basha gifted the suit property on 24.07.2013 as Hiba in favour of the defendant?

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3. To what other relief(s) the plaintiff is entitled to?

8. The Trial Court partly allowed the suit, passing a preliminary

decree in favour of the plaintiff, declaring her entitlement to ¾ share in Item

No.1, i.e., the residential property (landed property). However, the suit was

dismissed with respect to Item No.2 (Printing Press) and Item No.3 (Bank

deposits). Aggrieved by the judgment and decree granting ¾ share to the

plaintiff in the landed property, the defendant/appellant has filed the present

appeal.

9. The appellant contends that the Trial Court failed to properly

consider the principles of oral gift (Hiba) under Shariat Law. According to the

appellant, the property came into the hands of Malang Aslam Basha through

his first wife, Janab Kaka Shahina Aslam, and he made an oral gift in favour

of his second wife (the appellant) in the presence of elders. It is further

argued that since it is a residential house, both Malang Aslam Basha and the

defendant were residing in it and the three essential conditions for a valid oral

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gift, namely, declaration, acceptance and delivery of possession were

satisfied.

10. In support of the oral gift:

• Declaration was spoken by DW-3, who described how the oral gift took place in the presence of elders.

• Acceptance was established through the testimony of the defendant.

• Possession was evidenced by the defendant's continuous residence in the property and her payment of municipal taxes.

11. Per contra, the learned counsel appearing for the

respondent/plaintiff submitted that the claim of Hiba is a fabricated story,

concocted by the defendant to deprive the lawful share of the plaintiff. The

evidence of DW-1, DW-2, and DW-3 is inconsistent and contradictory. The

Trial Court had rightly disbelieved the version of DW-3, noting it to be an

improvised version of the alleged oral gift, and rejected the plea of Hiba

accordingly.

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12. Point for Determination:-

Whether the Trial Court erred in disbelieving the oral gift (Hiba) dated

24.07.2013?

13. Exhibit A1 is the sale deed dated 03.01.1994 in the name of

Janab Kaka Shahina Aslam, who passed away on 23.11.2007. It is not

disputed that ½ share in the first item of the suit property came into the hands

of Malang Aslam Basha on the death of his wife, Janab Kaka Shahina Aslam,

on 23.11.2007. Subsequently, Kaka Riyaz Ahmed Sahib, the brother of Janab

Kaka Shahina Aslam, released his ½ share in favour of Malang Aslam Basha

through a release deed dated 14.07.2008, thereby making Malang Aslam

Basha the absolute owner of the entire property.

14. Thus, Malang Aslam Basha became the absolute owner of the

first item of the property, which is an undisputed fact accepted by both the

plaintiff and the defendant. After the demise of Janab Kaka Shahina Aslam,

Malang Aslam Basha married the defendant and both were residing in the first

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item property, i.e., the residential premises.

15. The plaintiff’s case is that Malang Aslam Basha died intestate on

06.06.2015, and during his lifetime, he was running a printing press under the

name and style of "Graphic Art Printers", which is Item No.2 of the suit

property. As per Shariat Law, the property of Malang Aslam Basha ought to

devolve upon his wife and sister in the ratio of 1:3, respectively.

16. Per contra, the defendant claims that during his lifetime, Malang

Aslam Basha orally gifted the first item property to her on 24.07.2013, in the

presence of respectable elders. To substantiate the alleged oral gift (Hiba),

the defendant examined the following witnesses:

• Sunakaisar Ahmed, General Secretary, Vaniyambadi Education Society

(DW.2);

• Mohammed Jafurullah, Building Contractor (DW-3); and

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• Mohammed Makkin, Merchant, Vaniyambadi (DW.4).

17. These witnesses generally deposed about the oral gift made by

Malang Aslam Basha in favour of the defendant in their presence. While they

confirmed the voluntary declaration by Malang Aslam Basha and the

acceptance of the gift by the defendant, there were certain contradictions.

However, it does not hit their reliability as they are elderly and respected

members of the community and there is no reason for them to depose falsely

against the plaintiff.

18. The learned counsel for the respondent/plaintiff, however,

strongly argued that there is a lack of consistent and reliable evidence from

DW-2 and DW-3 regarding the declaration of the gift and the presence of the

defendant at the relevant time. The verbatim declaration, according to the

plaintiff, is primarily spoken only by DW-4, which appears to be an

improvised version, brought in after DW-2 and DW-3 failed to substantiate

the defendant’s case.

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19. The above contention of the learned counsel for the respondent,

though apparently appear to be impressive, cannot be accepted. The failure of

the witnesses to verbatim reproduce the declaration of Hiba does not render

an otherwise valid oral gift invalid. Under Mohammedan Law what completes

a Hiba is the declaration, acceptance, and delivery of possession, not the

exact recital of the declaration.

20. Failure to verbatim reproduce the declaration of the donor does

not invalidate a valid Hibba. The Hon’ble Supreme Court in Mansoor Saheb

(dead) & others vs. Salima (D) by LRS, & others, after extensively

discussing the essential ingredients of a valid oral gift under Mohammedan

Law, observed as follows:

“25.The upshot of the above discussion is that there are three essential elements which are necessary for a valid gift deed.They are:

a)The gift has to be necessarily declared by the person giving the gif, i.e., the donor;

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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 gift to be valid.

26.It is a fact that the requirements for the validity of a gift deed are sequential. One most follow the other. The latter can only hold water 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 three conditions must be met.”

21. In the present case, DW.1 (the defendant) categorically deposed

that she accepted the gift and has been in possession of the property ever

since. Being a residential house and that the defendant was residing in it with

the deceased Malang Aslam Basha, acceptance and possession are both

implicit. No further proof is required on this aspect.

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22. The witnesses for the plaintiff denied any knowledge of the oral

gift. However, they also had no knowledge of the debts left by Malang Aslam

Basha nor they produced any evidence showing that the printing press

machinery was owned by Malang Aslam Basha or that a sum of Rs.3,27,828/-

was left by Malang Aslam Basha in his bank account at State Bank of India,

Vaniyambadi Branch. Thus, it is evident that the plaintiff was not in joint

possession or enjoyment of the suit schedule properties after the demise of

Malang Aslam Basha. Consequently, the claim that Malang Aslam Basha died

intestate, leaving behind properties to be inherited by his sister (plaintiff) to

the extent of ¾ share and by his second wife (defendant) to the extent of ¼

share, is incorrect. The oral Hiba dated 24.07.2013 has been proved by the

defendant through oral testimony, satisfying the test of preponderance of

probability.

23. In the case in hand, the declaration by Malang Aslam Basha to

donate the property to his wife was spoken to by DW.3 and DW.4. Though

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the verbatim declaration spoken by DW.4, DW2 and DW3 also generally

affirmed that Malang Aslam Basha had openly declared his intention to gift

the property to the defendant in their presence. The presence of the defendant

at the time of the declaration is also uniformly supported by all witnesses.

Whether she symbolically accepted the gift by taking the donor's hands, as

doubted by the respondent, is immaterial. Acceptance may be implied or

explicit, and need not always be physical or verbal in the donor's presence.

24. In this case, the declaration occurred in the residential premises

(Item No.1) where Malang Aslam Basha and the defendant were living

together as husband and wife. Hence, there is no doubt as to the existence of

declaration, acceptance, and possession, which are ingredients of a valid

Hiba. This view is well supported by the judgment of the Bombay High Court

in Kadderanbi and others Vs. Fatimabi and others, reported in AIR 1981

Bombay 406 at relevant page 413, where it was held:

"The general rule is that a donor must divest

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himself of all the control of the property which is the subject matter of the gift. Delivery of possession has, therefore, got to be a concomitant of the gift. But, when a father gifts property to his child, the position is peculiar. While it is true that law does not find anything wrong for the father to gift his property to his child, the difficulty arises from a twofold position. Firstly, a minor may not be physically able to be in possession of the property except through his guardian and, secondly the father is himself the guardian of the property of his minor child. Delivery of possession by a Mohammedan father to his minor child is, for all practical purposes, delivery by right hand to the left hand. This is evidently the reason why the strict requirement of delivery of possession is not strictly insisted upon in the case of a bonafide gift by the father to his minor child. In a sense the requirement continues, but it is fulfilled in a somewhat different manner. Till the date of the gift, the father is in possession of the relevant property on his own behalf, from the date of the gift he is in possession of the same, but only on behalf of the

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minor.”

25. A similar principle applies when a husband gifts the residential

property to his wife, formal delivery of possession is not required when the

parties already reside in the gifted property. In light of the above facts and

legal position, this Court finds that the Trial Court has failed to properly

appreciate the evidence of DW.2 to DW.4, who had deposed about the oral

gift in favour of the defendant. Furthermore, the plaintiff’s case that she was

in joint possession of the property with her brother is unsupported by

evidence. The plaintiff’s side witnesses were entirely unaware of the oral.

26. Accordingly, this Appeal Suit is allowed. Consequently, the

connected Civil Miscellaneous Petition is closed. There shall be no order as

to costs. The judgment and decree in O.S.No.33 of 2018, passed by the III

Additional District and Sessions Judge, Vellore at Thirupattur, is hereby set