THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.3504 OF 1992 Dated. 25 -11-2010 Between: Syed Ahmed Ali and others …Appellants Vs. Syed Hyder Ali and others ..Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO.3504 OF 1992 JUDGMENT The defendants 2, 3 and 10 in O.S.No.9 of 1986 on the file of the Court of Subordinate Judge, Medak at Siddipet are the appellants herein. The suit was filed for partition of the plaint “A” & “B” schedule properties. According to the case of the plaintiffs, one Yakub Ali Khan was the owner and he had four sons who are defendants 1 to 3 and late Syed Yousuf Ali. He has also got six (6) daughters who are defendants 4 to 9 and defendant No.10 is the wife of the Yakub Ali Khan. The plaintiffs are legal heirs of late Yousuf Ali who was the eldest son, being the sons, daughter and widow. Yakub Ali Khan died about 11 years prior to the filing of the suit. During the life time of Yousuf Ali, he demanded partition from the defendants and issued a legal notice and in spite of that they have not cooperated for the partition. Hence the suit. Defendants 1, 4 to 6 and 8 filed a written statement contending that the lands in Sy.Nos.497 and 498 of Gajwel were owned by Syed Yakub Ali as he was protected tenant and later he purchased the lands through his elder son Syed Yousuf Ali in 1972. Apart from the houses shown in the “B” schedule, there is another house of the family and the lands and houses were not shown in the schedule and therefore they have also to be included for the relief of partition. It is also further stated that there has been a partition during the life time of Yakub Ali and he gifted the properties to his sons orally in 1970. It was further pleaded that Yakub Ali had two wives. Defendant No.10 is the second wife and through the first wife he has got two sons by name Syed Yousuf Ali, the father of the plaintiffs 1 to 6 and Khaja Moinuddin(1st defendant) and the daughters (defendant Nos. 4 to 6). According to the case of the defendants, by the date of gift, the sons of Yakub Ali are in possession of the respective shares. Along with the written statement, schedule was given showing the particulars of the partition. Defendant Nos.11 to 14 and 16 who are said to be the tenants claimed that one P.Balaiah purchased the land in Sy.No.22 from the Yakub Ali under an agreement and the legal heirs are in possession. The other defendants also claimed purchase of the part of the schedule properties. On the basis of the above pleadings, the following issues were framed by the trial court after recasting the earlier issues:- 1. Whether the suit A and B schedule properties are only Matruka properties left by Syed Yakub Ali and available for partition? 2. Whether the Sy.No.497 and 498 and house bearing No.15-96 also should be included in the suit A and B Schedule? 3. Whether there was a partition in the life time of late Yakub Ali in the year 1970 in the first instance and later there was oral gift in favour of Syed Yousuf Ali and D-1 to D-4 and therefore the suit is not maintainable? 4. Whether father of D-11 to D-13 purchased Ac.3.16 gts. Out of Sy.No.22 on 1-6-82 under registered sale deed from D-1 and the said land is not liable for partition? 5. Whether father of D-14 purchased Ac.4.00 out of Sy.No.22 on 14-6-75 under an agreement of sale from late Yakub Ali and Yousuf Ali and the said land is not liable for partition? 6. Whether D-16 purchased Ac.2.08 gts out of Sy.Nos.28, 30, 31,32 and 34 from D-2 and D-3 for Rs.9,900/- under an agreement of sale and the said land is not liable for partition? 7. Whether the plaintiffs are entitled for partition of 2/16th share in the suit A and B Schedule properties? 8. To what relief? On behalf of the plaintiffs PWs.1 is examined and marked Exs.A-1 to A-7. On behalf of the defendants Dws.1 to 5 are examined and marked Exs.B-1 to B-6. After considering the evidence on record, the learned Subordinate Judge, held that the lands in Sy.Nos.497 and 498 are also liable for partition and did not believe the case of the contestant defendants that there was an earlier partition and that there was a gift orally by Yakub Ali and thereby decreed the suit for partition. Aggrieved by the said judgment, the defendants 2,3 and 10 preferred the present appeal. It is also on record that the plaintiffs had filed Cross- objections(SR) No.7894 of 1993 challenging the inclusion of the land in Sy.Nos.497 and 498. The said Cross Objections (SR) was returned but it was not represented and ASMP No.45 of 2009 was filed to condone the delay of 5926 days in representing the cross- objections. The said delay is not properly explained and it is to be noted during the year 2005, the plaintiffs have moved Contempt Case, being CC No.890 of 2005. Having knowledge of all the proceedings the reasons for non-representing the Cross- Objections in time are not valid, since it was represented by the Advocate all through. Therefore, ASMP No.45 of 2009 is rejected. Now the points that arise for consideration are:- (1) Whether the partition pleaded by the appellants is true? (2) Whether the oral gift pleaded by Yakub Ali is true and valid? (3) Whether the judgment passed by the learned Subordinate Judge is legal and sustainable? (4) To what relief? POINTS:- There is no dispute about the fact that the parties are governed by Mahomedan Law and the properties originally belonged to one Yakub Ali and the defendants are claiming through him only. Though certain properties are said to be standing in the name of Yakub Ali, the lower court has accepted the claim of the appellants that they are also Matruka properties and liable for partition. Learned counsel for the appellants contends that inasmuch as there was a partition of the properties and the gift was given to the members by Yakub Ali after the partition, the claim of the appellants should have been accepted. He relied upon the factum of possession to substantiate his case. Evidently, the parties are governed by Mahomedan Law and there is no concept of any joint family like Hindu Joint Family, where the children will get a right of partition. The succession opens only after the death of Yakub Ali and therefore in such circumstances a partition pleaded by the defendants is not known to law and it is not a case where all the parties have agreed under a registered document for the enjoyment of the properties. Yakub Ali could have conveyed the properties during his life time only by a gift. It is the case of the defendants that after the partition, there was an oral gift. The lower court has rightly held that the time and date of gift not mentioned and the persons in whose presence the declaration of gift was made by Yakub Ali is also not pleaded. On the other hand, it is the positive evidence of PW.1 that when the gift was made, there are no persons. The exception in Mahomedan Law for the validity of a gift is non- registration of a document. But under Mahomedan Law, it is necessary that the gift should have been declared in the presence of two persons and accepted by the donee and there should be delivery of possession which is capable of and in this case Hiba is not according to law and is not valid. The lower court has rightly rejected the claim of the appellants and nothing contrary to be concluded. The pleas taken by the appellants are not legal and valid. Therefore, the judgment passed by the learned Subordinate Judge, Siddipet does not call for any interference. Accordingly the points are answered. Therefore, the Appeal Suit is dismissed. But in the circumstances there shall be no order as to costs. _______________________ N.R.L.NAGESWARA RAO,J 25 -11-2010 TSNR