IN THE COURT OF THE SENIOR CIVIL JUDGE AT ASIFABAD
Present:- Sri Mohd.Nizamuddin, Prl. Senior Civil Judge, Mancherial, FAC:Senior Civil Jude, Asifabad
SATURDAY THE FOURTH DAY OF MARCH
TWO THOUSAND AND SEVENTEEN
O.S.No.23 of 2009
Between
1.Shamsunnisa Begum (died).Represented by her legal representatives plaintiff no.5 to 14.
2.Fouzia Begum, w/o.Sajid Ali Khan, age 65 years, occ:House- hold, r/o.Bejjur village and mandal.
3.Tayyaba Begum, w/o.Liyaqat Hussain, age 61 years, occ:House- hold, r/o.Bejjur.
4.Tahera Begum, w/o.Abdul Ameen, age 59 years, occ:House- hold, r/o.Behind Maszid-E-Qhadeem, Pet Mohalla, Sirpur town.
5.Ayesha Naheed, w/o.Jaleel Akhtar, age 55 years, occ:House- hold, r/o.Nanded, Maharashtra State.
6.Husna Sadiya, w/o.Abdul Hakeem Qureshi, age 50 years, occ:House-hold, r/o.Rajura, Manikgarh, district Chandrapur (M.S).
7.Asra Shaheen, w/o.Mujeeb-Ur-Rahman, age 45 years, occ:House-hold, r/o.Kaghaznagar.
8.Arshia Iffat, w/o.Khaja Kazimuddin, age 44 years, occ:House- hold, r/o.Kingdom of Saudi Arabia, presently, at Kaghaznagar.
9.Huma Kausar, w/o.Muntazir Hussain,age 40 years, r/o.Kaghanzagar.
10. Zikra Ruhee, w/o.Naushad Hussain, age 40 years, occ:House- hold, r/o.Kingdowm of Saudi Arabia, presently at Kaghaznagar.
11. Rizwan Ahmed Danish, s/o.Late Nehal Ahmed, age 52 years, occ:Employee in Kingdom of Saudi Arabia, presently Kaghaznagar.
12. Irfan Ahmed Nazish, s/o.Late Nehal Ahmed, age 48 years, occ:Private employee in Kingdom of Saudi Arabia, presently at Kaghaznagar.
13. Zeeshan Ahmed Azmi, s/o.Late Nehal Ahmed, age 42 years, occ:Private employee in Kingdom of Saudi Arabia, presently at Kaghaznagar.
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14. Ahsaan Ahmed Azmi, s/o.Late Nehal Ahmed, age 32 years, occ:Private employee in Kingdom of Saudi Arabia, presently Kaghaznagar.
..Plaintiffs
A N D
1. Mumtaz Ali, s/o.Hussain Ali, age 64 years, occ:Pensioner, r/o.Bejjur.
2. Mushfaq Ali, s/o.Hussain Ali, age 59 years, occ:Agriculture, r/o.Bejjur.
3. Syed Mukhmur Hussain, s/o.Shakir Hussain, age 51 years, occ:Chairman, Bejjur.
4. Syed Masroor Hussain, s/o.Shakir Hussan, Branch Post-Master, Babasagar village, mandal Bejjur.
5. Nikhat Begum, w/o.Ata-Ur-Rahman, r/o.Eidgah Maszid Lane, Eidah colony, Kaghaznagar.
6. Tanzima Begum, w/o.Mohd.Abdul Qadar, School Teacher, Qazipura Bhainsa post and Mandal.
7. Mashkoor Ali, s/o.Mumtaz Ali, age 41 years, occ:Government employee, r/o.Bejjur.
8. Naher Ali, s/o.Mumtaz Ali, age 34 years, r/o.Bejjur.
9. Nashweer Ali, s/o.Mumtaz Ali, age 31 years, r/o.Bejjur.
10. Wahaj Ali, s/o.Mushfaq Ali, age 37 years, r/o.Bejjur.
11. Minhaj Ali, s/o.Mushfaq Ali, age 34 years, r/o.Bejjur.
12. Siraj Ali, s/o.Mushfaq Ali, age 41 years, occ:Agriculture, r/o.Bejjur.
..Defendants
This suit is coming on before me for final hearing on 10.02.2017 in the presence of Sri Rais Ahmed, Advocate for the plaintiffs and of Sri Abdul Arif Shareef, Advocate for defendant no.1 to 8, 11 and 12, defendant no.9 remained exparte and no representation for defendant no.10 and having heard and stood over for consideration till to-day, this Court delivered the following:-
J U D G M E N T
This is a suit filed by the plaintiffs for partition of the
Schedule ‘A’
Sl.Sy.No.ExtentLocation No.
1.717/BAc.0-90 cts.Bejjur
2.726Ac.1-63 cts.Bejjur
3.730Ac.1-50 cts.Bejjur
4.732Ac.1-78 cts.Bejjur
5.754Ac.1-08 cts.Bejjur 3
Schedule ‘B’
Sl.Sy.No.ExtentLocation No.
1.3Ac.6-68 cts.Katepally village
2.4Ac.0-75 cts.Katepally village
3.5Ac.8-23 cts.Katepally village
4.6Ac.7-80 cts.Katepally village
5.11Ac.8-43 cts.Katepally village
6.12Ac.6-18 cts.Katepally village
7.13Ac.6-10 cts.Katepally village
8.14Ac.8-38 cts.Katepally village
9.17Ac.7-65 cts.Katepally village
10.19Ac.2-28 cts.Katepally village
Schedule ‘C’
Sl.Sy.No.ExtentLocation No.
1.744Ac.1-80 cts.Bejjur
2.753Ac.1-68 cts.Bejjur
Subsequently added lands
Sl.Sy.No.ExtentLocation No.
1.103Ac.3-43
2.742Ac.1-03 cts.
3.734Ac.1-30 cts.
(hereinafter referred as 'the suit lands’) into ten (10) equal shares and allotment of one share each to the daughters or the legal heirs of original owners i.e,. plaintiff no.1 to 4, defendant no.6, defendant no.3 to 5, children of deceased daughter Sajeeda Begum and two (2) shares each to the sons of original owner i.e, defendant no.1 and 2, with mesne profits and possession from the date of suit with costs etc.,
2.The averments of the plaint, in brief, are thatone Hussain Ali, who is father of plaintiff no.1 to 4, Sanjeeda Begum, defendant no.1, defendant no.2, defendant no.6 and grand father of plaintiff no.5 to 14 and defendant no.3 to 12, died on 16.12.2003.His wife Badrunnisa
Begum died on 22.04.2007.
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3.Hussain Ali died at the age of about (85) years and he was not mentally sound since (10) years prior to his death. He died intestate.
He was the owner and possessor of the schedule ‘A’ and ‘B’ and subsequently added lands. Badrunnisa Begum was the owner of schedule ‘C’ properties. After the death of original owners, defendant no.1 and 2 were managing the suit schedule lands on behalf of the heirs of Hussain Ali by giving crop share to the plaintiffs every year.
4.The suit lands are the Matruka property.Hussain Ali and
Badrunnisa Begum left six daughters and two sons, who succeeded and inherited the properties. The entire suit lands are to be divided into ten (10) equal shares and the plaintiff no.2 to 4, defendant no.6 are entitled to get one share each, plaintiff no.5 to 14 are entitled to get one share (share pertaining to plaintiff no.1) and defendant no.3 to 5 are entitled to get one share of their mother.Though the plaintiffs demanded the defendant no.1 and 2 for partition orally in
October 2008, they did not respond. Defendant no.1, 2 and 7 by taking advantage of their influence over the revenue officials, manipulated, forged and got prepared false documents in favour of defendants with regard to ‘A’ schedule property. Defendant no.1 and 2 are in actual possession of entire suit lands and the names of defendant no.7 to 12 are falsely shown in revenue records. Therefore, it is prayed to decree the suit with costs as stated above.
5.In the written statement filed by defendant no.1, 2, 4, 5, 7, 8, 10 and 11 adopted by defendant no.3, the relationship between the parties is admitted. They are also not objecting the partition in part of ‘C’ schedule property, bearing Sy.Nos.11, 12, 13, 14, 17 and 19.
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6.It is further submitted that Hussain Ali, during his life time, on 05.03.2003, has executed gift deed (Ex.B2) in favour of his grand son, namely,Siraj Ali(defendant no.12)in respect of the land in
Sy.No.103, measuring Ac.3-43 cts., Sy.No.742, measuring Ac.1-03 cts., and Sy.No.734, measuring Ac.1-30 cts., situated at Bejjur village.
Possession was also delivered to defendant no.12, who has been cultivating the land.
7.During the life time of Hussain Ali, he filed an application before the Mandal Revenue Officer, Bejjur on 15.06.1991 for transfer of the lands bearing Sy.No.717/B, measuring Ac.0-90 cts., to Mushkir Ali and
Sy.No.730, measuring Ac.1-50 cts., toNahir Ali and Sy.No.754, measuring Ac.1-08 cts., to Nashwar Ali, sons of defendant no.1, and also land in Sy.No.726, measuring Ac.1-63 cts., to Minhaz Ali and
Sy.No.732, measuring Ac.1-78 cts., to Wahaj Ali, sons of defendant no.2. The Mandal Revenue Officer, Bejjur issued proceedings
A2/1146/91, dt.25.06.1991 (Ex.B1) transferring the said lands in the name of the above persons, pattedar pass-books and title deeds were also issued accordingly. Hussain Ali also gifted Sy.No.3, measuring
Ac.8-68 cts., Sy.No.4, measuring Ac.0-75 cts., and Sy.No.5, measuring Ac.8-23 cts., Sy.No.6, measuring Ac.7-80 cts., to his sons
Mumtaz Ali and Mushfaq Ali (defendant no.1 and 2). Patta was also transferred in their favour.The plaintiffs have no share in the suit lands. Accordingly, it is prayed to dismiss the suit in respect of the suit ‘A’ and ‘B’ lands and to decree the suit in respect of part of ‘C’ schedule lands situated at Katepally village of Bejjur mandal.
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8.Defendant no.6 has not filed her written statement.
9.Defendant no.9 has also not filed the written statement.
10.In the Additional written statement filed by the counsel for the defendants,hereiterated the contents of written statement and prayed to decree the suitforpart of ‘C’ schedule landbearing
Sy.Nos.sy.No.11, 12, 13, 14, 17 and 19 situated at Katepally village of Bejjur mandal and to dismiss the suit in respect of other lands.
11.On the basis of the above pleadings, the following issues were framed for consideration during trial:- (1). Whether the properties covered under gift deed 05.03.2003 executed by Hussain Ali in favour of Siraj Ali are the ancestral properties or self acquired properties of Hussain Ali or not?, (2) Whether the plaintiffs are entitled for partition as prayed for or not? and (3). To what relief?
12.To prove the case of the plaintiffs, PW1 and PW2 were examined and Exs.A1 to A15 documents were marked. PW1-Tahera Begum is plaintiff no.4 herself. However, the evidence of PW1 was eschewed on 16.08.2011. PW2-Shamsunnisa Begum is plaintiff no.1 herself. Ex.A1 is certified copy of pahani for the years1990-91 for lands in
Sy.Nos.717/B, 726, 730, 732 and 754 of Bejjur village, Ex.A2 is true copy of pahani for the years 2007-08 for the land in Sy.No.717/B of
Bejjur village, Ex.A3 is true copy of pahani for the years 2007-08 for the land in Sy.No.726 of Bejjur village, Ex.A4 is true copy of pahani for the years 2007-08 for the land in Sy.No.730 of Bejjur village, Ex.A5 is true copy of pahani for the years 2007-08 for the land in Sy.No.732 of
Bejjur village, Ex.A6 is true copy of pahani for the years 2007-08 for 7 the land in Sy.No.754 of Bejjur village, Ex.A7 is certified copy of pahani for the years 2000-01 for the land in Sy.Nos. 3 to 6, 11 to 14, 17 and 19 of Katepally village, Ex.A8 is true copy of pahani for the years 2007-08 for the land in Sy.No.3 of Katepally village, Ex.A9 is true copy of pahani for the years 2007-08 for the land in Sy.No.4 of
Katepally village, Ex.A10 is true copy of pahani for the years 2008-09 for the land in Sy.No.5 of Katepally village, Ex.A11 is true copy of pahani for the years 2008-09 for the land in Sy.No.6 of Katepally village, Ex.A12 is true copy of pahani for the years 2008-09 for the land in Sy.No.14 of Katepally village, Ex.A13 is true copy of pahani for the years 2008-09 for the land in Sy.No.726 of Katepally village,
Ex.A14 is true copy of pahani for the years 2008-09 for the land in
Sy.No.19 of Katepally village, Ex.A15 is certified copy of pahani for the years 1990-91 for the land in Sy.No.744 and 753 of Bejjur village,
13.On the other hand, on behalf of the defendants, DW1 and DW2 were examined and Exs.B1 to B11 documents were marked. DW1-
Mumtaz Ali is defendant no.1 himself and DW2-Mushfaq Ali is defendant no.2 himself. Ex.B1 is proceedings of the Mandal Revenue officer, dt.25.06.1991, Ex.B2 is certified copy of registered settlement deed, dt.05.03.2003, Ex.B3 is pattedar pass-book of defendant no.2,
Ex.B4 is title deed pass-book of defendant no.2, Ex.B5 is title deed pass-bookof defendant no.1, Ex.B6 ispattedarpass-book of defendant no.1, Ex.B7 is pattedar pass-book of defendant no.10,
Ex.B8 is pattedar pass-book of defendant no.8, Ex.B9 is pattedar pass- book of defendant no.9, Ex.B10 isregistered ale deed, dt.22.05.1974 and Ex.B11 is registered gift deed, dt.29.07.2004.
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14.Heard both sides.The learned counsel for defendants has also submitted written arguments.
Issue No.1 and 2:-
Admitted facts:-
15.The relationship between the parties herein is admitted. The defendants have also not disputed in their written statement about the partition of part of schedule ‘C’ properties bearing Sy.Nos.11, 12, 13, 14, 17 and 18 sitauted at Katepally village. There is also no dispute that the parties herein are Muslims, belonging to Hanafi Sect. It is also not disputed that Hussain Ali and his wife Badrunnisa Begum, who were owners of the suit schedule properties died before filing the suit.
Matruka Property:-
16.The property left by a Muslim owner is Matruka property.
Concept of ancestral property:-
17.Under Muslim Law (Shariyat), there is no concept of ancestral property or self acquired property.The moment, the owner of the property dies, succession opens. Therefore, keeping in view of this principle, it is to be seen as to whether the plaintiffs are entitled for partition of suit schedule property.
18.The evidence of PW1-Tahera Begum was eschewed.Thus, the only testimony available on record is PW2-Shamsunnisa Begum.
19.The claim of the original plaintiffs is that the suit schedule lands are their Matruka property, as such, they are entitled for partition of the same along-with their brothers, defendant no.1 and 2, defendant 9 no.6, their sister and defendant no.3 to 5, children of their another sister Sanjeeda Begum.
20.It is the evidence of PW2 that her father Hussain Ali, who died on 16.12.2003, was the original owner of the entire ‘A’ and‘B’ schedule and subsequently added lands and her mother Badrunnisa
Begum who died on 22.04.2007 was the original owner of ‘C’ schedule land. According to her, they died intestate.According to her, her father sustained head injury caused by a villager in a land dispute, therefore, he was not mentally sound and defendant no.2 himself used his mental condition to deprive the rights of heirs of their father.
Thus, she claims that Exs.B1 and B2 are created one. It is also in the evidence of PW2 that herself, other plaintiffs, defendant no.1, 2, mother of defendant no.3 to 5, defendant no.6 have been in possession of the suit schedule lands as tenants in common, whereas, defendant no.1 and 2 have been managing the suit schedule lands on behalf of other heirs of Hussain Ali and Badrunnisa Begum. Therefore,
PW1 demanded for partition of the suit schedule lands in the month of
November 2008, but defendant no.1 and 2 did not respond positively.
Through PW2, Exs.A1 to A15 documents were exhibited. Ex.A1 is in respect of schedule ‘A’ property.Ex.A7 shows that suit ‘B’ schedule lands are in the name of Hussain Ali. Ex.A5 also shows that ‘B’ schedule lands are in the name of Hussain Ali.Exs.A11 and A12 show that Hussain Ali was pattedar in respect of the lands in Sy.no.3, 4, 5 and 6 of the ‘B’ schedule lands. Ex.A7 is in respect of ‘B’ schedule land in the name of Hussain Ali. Defendants are not disputing for partiion of the land bearing Sy.No.9mentioned in Ex.A14, Sy.No.17 as mentioned in Ex.A13. The land in respect of ‘A’ schedule are shown in the name of Hussain Ali for which also there is no dispute.Ex.A15 10 shows that suit schedule ‘C’ lands are in the name of Badrunnisa
Begum.
21.It is the evidence of DW1-Mumtaz Ali-defendant no.1 and DW2-
Mushfaq Ali-defendant no.2 that Hussain Ali gifted schedule ‘A’ lands bearing Sy.no.717/B to defendant no.7, Sy.No.730 to defendant no.8,
Sy.No.754 to defendant no.9, Sy.No.726 to defendant no.11 and
Sy.No.732 to defendant no.11 and the same were transferred in their names under Ex.B1 proceedings. It is also their evidence that said
Hussain Ali under Ex.B2 gifted the suit schedule lands bearing
Sy.Nos.103, 742 and 734 to defendant no.12 and he has authority over the same. It is the evidence of PW2-Shamsunnisa Begum that
Hussain Ali was not mentally fit when Exs.B1 and B2 transactions took place because of injury sustained by him to his head.Further, according to PW2, the possession of the disputed lands covered under
Exs.B1 and B2 was not delivered to the donees as required under law.
Basing on Ex.B1, Ex.B6 to B9 pass-books were issued.Admittedly, the age of Hussain Ali was around (80) years according to both parties at the time of execution of Exs.B1 and B2 documents.DW1-
Mumtaz Ali and DW2-Mushfaq Ali are not disputing that the suit schedule lands are Matruka properties. Ex.A1, A7 to A10, A12 to A15 coupled with the evidence of PW2 also prove that the disputed lands are Matruka properties. DW1 and DW2 claim that under Ex.B1,
Hussain Ali gifted the land in favour of defendant no.7 to 11. Like- wise according to them, under Ex.B2, Hussain Ali also gifted the land under Ex.B2 to defendant no.12. Admittedly defendant no.7 to 12 did not enter into the witness box to prove the said factors. Hence, an adverse inference has to be drawn against them.Further, during the course of cross-examination, DW2 has admitted that in Ex.B10, it is 11 not mentioned that in lieu of share of plaintiff no.1 the property mentioned in Ex.B10 was given or purchased by Hussain Ali. This factum goes to show that the property under Ex.B10 is not towards the share of plaintiff no.1. Similarly, as admitted by DW2, it is not mentioned in Ex.B11 that the property mentioned therein is towards the share of defendant no.6. This factum also goes to show that through Ex.B11, the share of the defendant no.6 was not given.
Exs.B3 to B9 do not give any ownership rights to the parties in whose name these documents are standing.
22.The defendants claim that the properties mentioned in Ex.B1 and
Ex.B2 were gifted by Hussain Ali during his life time.
23.It is the argument of the learned counsel for the plaintiffs that a gift is complete if three ingredients are complied with. They are 1) declaration of gift by donor, 2) acceptance of the gift, expressly or impliedly by or on behalf of the donee and 3) delivery of possession.
In this case, according to the learned counsel, since the children of defendant no.1 and 2, defendant no.7 to 11 were minors as mentioned in Ex.B1, there was no delivery of possession of the lands mentioned in Ex.B1 and grand father is not the guardian to the minors when their fathers are alive, as such, the gift referred to in Ex.B1 is not proved.
Similarly, Ex.B2. The defendants have failed to produce the gift referred to in Ex.B1. The gift deed referred to above in Ex.B1 did not see the light of the day so far.
24.In the instant case, PW2 claims that there was no gift at all made by her father-original owner and the defendants have created
Exs.B1 and B2 documents.In this case, if Exs.B1 and B2 are proved 12 to be genuine, the plaintiffs are not entitled for partition of the suit lands to the extent of the lands covered in Exs.B1 and B2, but if it is established that the gift referred to in Exs.B1 and B2are not proved, then the plaintiffs are entitled for partition of the suit lands.
25.The evidence of DW1 and DW2 is to the effect that their father executed gift deed in respect of the lands in Ex.B1 and thereafter, their father approached the Mandal Revenue Officer, Bejjur, who issued Ex.B1 proceedings. As already stated, the gift referred to in
Ex.B1 is not before this Court and its whereabouts are not known.In
Ex.B1, it is mentioned that Sri Hussain Ali filed a petition along-with gift deed on a stamp paper worth Rs.5/- stating that his grand sons defendant no.7 to 11 were students and to make them self sufficient to continue their studies, gift was made. Further, it is mentioned in
Ex.B1 that no transfer of possession is required in case of gift by a grand father to his minor grand sons under Sec.155 of Mohammedan
Law. It is also stated in Ex.B1 that since all the donees are minors, as such, the formality under Sec.150 of the Mohammedan Law are not applicable and need not be complied with.
26.Now it is necessary to refer to Sec.150 of Mohammedan Law, which reads as under:-
Sec.150 of the Mohammedan Law:
150: Delivery of possession (1). It is essential to the validity of a gift that there should be a delivery of such possession on the subject of the gift is susceptible.
Sec.150 of the Mohammedan Law makes it crystal clear that delivery of possession of property by donor to the donee is essential.
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27.In the instant case, the gift is by grand father to the grand children. Now, it is necessary to refer to Sec.155, which reads as under:-
Sec.155. Gift to a minor by father or other guardian:- No transfer of possession is required in the case of a gift b y a father to his minor child or by a guardian to his ward. All that is necessary to establish a bonafide intention to give.
There is no dispute about the legal position mentioned in Sec.155. But here the donor is grand father of the donees.Admittedly, fathers of minor donees are alive. Thus, the guardian of minor donees is father and not grand father, in which event delivery of possession of the property by donor to the guardian of minor donees i.e., father is mandatory. It is not done in this case.
The triple requirement of a valid gift:-
28.Under the Mohammedan Law, three things are necessary for a valid gift. They are:-
(i) declaration of gift by the donor,
(ii) acceptance of gift, expressly or impliedly or on behalf of the donee and
(iii) delivery of possession of the subject of the gift by the donor to the donee.
For a valid gift, there must be delivery of possession of the gift by donor either actively or constructively. As already stated, a reading of
Sec.150 makes it clear that deliver of possession is one of the prime ingredients for a valid gift. In Ex.B1, it is mentioned that no transfer of possession is required under Sec.155 of the Muslim Law, which is not correct.The cross-examination of DW1 and DW2 makes it quite clear that the lands covered by Exs.B1 and Ex.B2 and other suit lands are in their possession.Their cross-examination of goes to show that 14 till the death of their father, their father and thereafter they were managing the suit lands. These factors make it quite clear that no possession was delivered to the donees under Exs.B1 and B2 in respect of those properties. Nothing was elicited from the cross- examination of PW2 to discard her evidence.
Crux of the case:-
29.When once it is established that the suit schedule lands are matruka properties, it is necessary for the defendants to prove Exs.B1 and B2 documents. Since these documents are in respect of gift of the suit property, it is necessary for the defendants to prove the essential ingredients of a valid gift under Shariyat Mohammedan law.
Gift settlement deed or Gift deed:-
30.Ex.B2 is described as gift settlement deeds. Contents of the document are decisive to determine the value of the document. The contents of Ex.B2 only go to show that it is only gift deed and not gift settlement deed. In the instant case, Ex.B2 is proved to be nominal.
The cross-examination of DW2 goes to show that the lands mentioned in Ex.B2 were not transferred in the name of defendant no.12. This factum goes to show again that there is no delivery of possession of those lands to the donee which is prime condition for establishing gift.
Parties to sign the pleadings:-
31.Under Order 6, Rule-14 of C.P.C., parties have to sign and verify the pleadings. In the instant case, additional written statement was signed by the counsel only. Further, the adoption memo of defendant no.3 adopting the written statement of other defendants is not signed by defendant no.3.
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32.The learned counsel for the plaintiffs has relied upon a Judgment of our own Hon’ble high Court reported in SHAIK KHADARU v. SAYYED
FATIMUN BEE1, wherein it is held that for a gift to complete, there must be declaration of gift by donor, acceptance of gift by donee and donee should take delivery of possession of the same either actively or constructively.In the case on hand, no possession was delivered to the donee or their guardians.
33.The learned counsel for the plaintiffs has relied upon a Judgment of our own Hon’ble high Court reported in MASOOM SAB v. MADAR
SAB2, wherein also it is held that essential element required to be satisfied for a valid gift under the Muslim Law is that the donor should cease to have any right, title or interest and should have parted with the possession of the subject matter of the gift and put the donee in possession. It has not happened in the present case.
34.In another Judgment of our own Hon’ble High Court, relied upon by the learned Counsel for plaintiffs reported in CHINTALAPATI
KRISHNA MURTHY v. RAZIA SULTANA3, while referring to the
Judgment of the Hon’ble Supreme Court reported in HAFEEZA BIBI &
ORS. v. SHAIKH FARID (dead) BY LRS & ORS.4, it is held that when a gift is made by Mohammedan orally,its nature and character is not changed because of it having been made by a written document.
35.The learned counsel for the plaintiffs has also relied upon a
Judgment of our own Hon’ble High Court reported in MAIMOONA 1 2007 (6) AL 220 2 1973 (1) APLJ 97 3 2016 (4) ALD 349 4 2011 (3) ALD 131 (SC) 16
BEGUM v. SARAT BABU & ANOTHER5, wherein it is held that to validate an oral gift, declaration of gift is required to be established showing that donor made it either in presence or otherwise by public statement and further there must be acceptance of gift and also giving and taking of possession of the property and in absence of any three qualified prerequisite of which one is sine-qua-non, such oral gift cannot be validated.
36.The learned counsel for the plaintiffs has also relied upon a
Judgment of our own Hon’ble High Court reported in RANGAREDDY
AND ANOTHER v. P. ASHWATHAPPA6for the proposition that unless, the donee accepts the gift, it is not a valid gift.
37.The learned counsel for the plaintiffs has also relied upon a
Judgment of the Hon’ble High Court of Madras reported in
N.RAMASWAMY v. C.RAMASWAMY7, for the proposition that though
Sec.68 of the Evidence Act which does not require both the attesting witnesses to be examined for proving execution of the gift deed, does not absolve the party relying on a document, when the execution is denied, to prove that each of the witnesses had seen the executant sign or affix his marks or has received from the executant a personal acknowledgment of the signature of mark.
38.The learned counsel for the plaintiffs has also relied upon a
Judgment of the Hon’ble High Courtof Kerala reported in
BEEPATHAMMA v. M.N.M. ROW8, wherein it is held that if the donor reserves the right to himself the right to be in possession of the corpus 5 2016 (2) ALD 610 6 2009 (2) ALT 127 7 AIR 1975 MADRAS 88 8 AIR 1977 KERALA 54 17 and the right to enjoy the same, there cannot be a valid gift under the
Muslim Law (Shariyat).The Judgments referred to above make it abundantly clear that under Muslim Law, for a valid gift, declaration, acceptance and delivery of possession are the essential ingredients. In the instant case, the donor under gift deed has not delivered the possession physically to the donees as such gift referred to in Exs.B1 and B2 are incompleted and not valid. Thus, no transfer of title effected under Ex.B1. Accordingly, I hold that the suit lands are
Matruka properties and the plaintiffs are entitled for partition of the same as prayed for. These issues are decided in favour of the plaintiffs.
Issue No.3:-
39.In view of findings on issue no.1 and 2, the suit is liable to be decreed.
40.IN THE RESULT, the suit is decreed with costs. Preliminary decree is passed for partition of the ‘A’, ‘B’ and ‘C’ schedule properties and land in
Sy.No.103, measuring Ac.3-43 cts., Sy.No.742, measuring Ac.1-03 cts.,
Sy.No.734, measuring Ac.1-30 cts., and for allotment of one share each to the plaintiff no.2 to 4, one share to the plaintiff no.5 to 14 (share of plaintiff no.1), one share to defendant no.3 to 5, one share to the defendant no.6 and two shares each to defendant no.1 and 2.The plaintiffs have to file a separate petition for mesne profits.
Dictated to Stenographer, corrected and pronounced by me in
the open Court on this the 4thday of March 2017.
PRL.SENIOR CIVIL JUDGE,
MANCHERIAL.
FAC:SENIOR CIVIL JUDGE,
ASIFABAD.
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APPENDIX OF EVIDENCE
For Plaintiffs:-For Defendants:-
PW1: Tahera Begum (eschewed)DW1: Mumtaz Ali
PW2: Shamsunnisa BegumDW2: Mushfaq Ali
EXHIBITS MARKED
For Plaintiffs:-
Ex.A1: Certified copy of pahani for the years 1990-91 for lands in Sy.Nos.717/B, 726, 730, 732 and 754 of Bejjur village Ex.A2: True copy of pahani for the years 2007-08 for the land in Sy.No.717/B of Bejjur village Ex.A3: True copy of pahani for the years 2007-08 for the land in Sy.No.726 of Bejjur village Ex.A4: True copy of pahani for the years 2007-08 for the land in Sy.No.730 of Bejjur village Ex.A5: True copy of pahani for the years 2007-08 for the land in Sy.No.732 of Bejjur village Ex.A6: Certified copy of pahani for the years 2007-08 for the land in Sy.No.754 of Bejjur village Ex.A7: Certified copy of pahani for the years 2000-01 for the land in Sy.Nos. 3 to 6, 11 to 14, 17 and 19 of Katepally village Ex.A8: Certified copy of pahani for the years 2007-08 for the land in Sy.No.3 of Katepally village Ex.A9: True copy of pahani for the years 2007-08 for the land in Sy.No.4 of Katepally village Ex.A10: True copy of pahani for the years 2008-09 for the land in Sy.No.5 of Katepally village Ex.A11: True copy of pahani for the years 2008-09 for the land in Sy.No.6 of Katepally village Ex.A12: True copy of pahani for the years 2008-09 for the land in Sy.No.14 of Katepally village Ex.A13: True copy of pahani for the years 2008-09 for the land in Sy.No.726 of Katepally village Ex.A14: True copy of pahani for the years 2008-09 for the land in Sy.No.19 of Katepally village Ex.A15: Certified copy of pahani for the years 1990-91 for the land in Sy.No.744 and 753 of Bejjur village,
For Defendants:-
Ex.B1: Proceedings of the Mandal Revenue officer, dt.25.06.1991 Ex.B2: Certified copy of registered settlement deed, dt.05.03.2003 Ex.B3: Pattedar pass-book of defendant no.2 Ex.B4 is title deed of defendant no.2 Ex.B5: Title deed of defendant no.1 Ex.B6: Pass-book of defendant no.11 Ex.B7: Pass-book of defendant no.10 Ex.B8: Pass-book of defendant no.8 Ex.B9: Pass-book of defendant no.7 Ex.B10: Registered sale deed, dt.22.05.1974 Ex.B11: Registered gift deed, dt.29.07.2004
PRL.SENIOR CIVIL JUDGE,
MANCHERIAL.
FAC:SENIOR CIVIL JUDGE,
ASIFABAD.