1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 635/2011 Chandbee w/o Syed Badiuddin and others ... Petitioners. VERSUS Smt. Irfana Begum w/o Abdul Rasheed. ... Respondents. ..... Shri M.A. Khan, Advocate for appellants. Shri A.D. Kasliwal, Advocate for respondent sole. ..... CORAM : S.S. SHINDE, J. DATED : 7th December, 2011. PER COURT : 1. Heard learned counsel for the appellants and learned counsel for respondent. 2. This second appeal takes exception to the judgment and order dated 06/04/2011 passed by District Judge-5 Aurangabad in R.C.A. No. 218/2008. 3. Ld. counsel appearing for the appellants submits that the property which is subject matter, is purchased in the name of Naziroddin since he was elder brother. However, said property is purchased from joint income. It is contention of the ld. counsel for the appellants that the father of his client paid amount for purchase of said property in the name of Naziroddin. It is submitted that the appellants are in possession in the said suit property. Ld. counsel further submits that though it is mentioned in Hibanama that 2 possession is handed over to the respondent actually, the appellants are still in possession of part of the suit property. Therefore, according to the counsel for the appellants, only property was purchased in the name of Naziroddin and father of the appellant did pay the amount for purchase of said property, to dispossess appellants from the suit property that too in absence of having any other residential house to the appellants. It would cause great prejudice to the interests of the appellants. Therefore, ld. counsel for the appellants relied upon grounds taken in the second appeal and in particular, ground no.3 to submit that the second appeal deserves consideration. 4. On the other hand, ld. counsel appearing for the respondent submits that there is no joint family concept anywhere in Mohammedan law. The suit property was in the name of Naziroddin. Hibanama is in favour of the respondent by said Naziroddin. All the requirements which are stated in Section 149 of the Mohammedan law have been fulfilled. Handing over of the possession can be actual or constructive. Therefore, according to the counsel appearing for the respondent, the second appeal is devoid of merit. Same deserves to be dismissed. 5. Upon perusal of the impugned judgments and orders passed by the trial Court and also lower appellate court, both the courts have held that the appellants herein failed to examine any witness seller or purchaser to support their contention that the property was purchased in the name of Naziroddin and price was paid by Naziroddin and Badiuddin. Therefore, in absence of any evidence, both the courts held that the appellants herein have failed to prove their case that the suit property is purchased from joint income. The lower appellate court in para 9 of the judgment, has discussed the source of income of Naziroddin and Badiuddin and held that in front of the name of Naziroddin, his occupation is written “Vyapar” 3 and it is further observed that Badiuddin was doing labour work. Therefore, inference is drawn that Naziroddin had means to purchase the suit property. 6. Learned counsel appearing for the appellants submits that the appellants are in permissive possession since long. They may not be dispossessed since the third condition as prescribed u/s 149 of the said Act i.e. handing over possession of the property to the donee, is not fulfilled in the present case and therefore, this Court may interfere in the judgment, can not be accepted. On plain reading of section 150 of the said Act, delivery of possession of a gift may be actual or constructive. When physical delivery of possession is not possible, such possession as the property admits may be delivered. Therefore, from said reading of section 149 and 150 of the Mohammedan law, physical delivery of possession of the property is not contemplated, even constructive possession is permissible. 7. From appreciation of evidence brought on record, both the courts concurrently held against the appellants. None of the grounds taken in the second appeal, appeals to this Court to entertain this second appeal. Second appeal stands dismissed. Consequently, civil application no.11606/2011 stands rejected. ( S.S. SHINDE, J. ) ts k/2011/Dec.7/sa635.11