Ast 1 sa145.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.145 OF 2010 WITH CIVIL APPLICATION NO. 446 OF 2010 IN SECOND APPEAL NO.145 OF 2010 Shri Mahamadshaphi Shaikh Umar Vasta & Anr. ... Appellants. Vs. Shri Vajir Abdul Karim Vasta & ors. ... Respondents. -------------- Mr. C.G.Gavnekar for Appellants. Mr.Nitin Mulye for Respondents. -------------- CORAM : V.R.KINGAONKAR, J. DATE : 26 th MARCH, 2010. P.C. 1. Heard Counsel for the parties. 2. The Appellants are original Defendants. They impugn concurrent Judgments rendered by the Trial Court and First Appellate Court. The Respondents had filed suit(RCS No.30 of 2001) for partition and separate possession. The suit was decreed. Case of the Appellants/Defendants Ast 2 sa145.10.sxw was that the share claimed by the Plaintiffs was unavailable because Fatima, Shaphiya and Aziza i.e. Plaintiffs’ mother and her two daughters including Defendant No.2 had surrendered their rights in favour of the Defendant No.1(Appellant No.1). It was alternatively pleaded that he had paid amount of Rs. 3,000/- and became owner. The Trial Court negatived such contention of the Appellants. Counsel for the Appellants submits that surrender of rights could be permitted under the Mohammedan Law. He submits that this is a case of oral gift(Hiba) and therefore, the mutation entry could be relied upon in order to find out whether the shares of mother of the Plaintiff Shaphiya and Defendant No.2 had been surrendered by way of Hiba. It is contended that both the Courts failed to consider this vital aspect. 3. The contentions of the learned Counsel for the Appellants are devoid of force. There was no specific plea of Hiba raised in the Trial Court or the first Appellate Court. The theory of surrender cannot be equated with that of gift under the Mohammedan Law. Both the Courts have found that the Appellants failed to prove alleged surrender of rights by Fatima, Shaphiya and Aziza and that such a plea could not be accepted in view of the dubious transactions entered into by the Appellant No.1. In my opinion, no substantial question of law is involved in this appeal due to concurrent findings of fact. Appeal dismissed. Ast 3 sa145.10.sxw 4. In view of the dismissal of the Appeal, nothing survives in the Civil Application. The same is disposed of. [ V.R.KINGAONKAR, J ]