/ ^- ^' \^ IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT BILASPUB S.A. NO«J^^ /2006 Sin§ItBeniB APPELLANTS . I") 'v ^^/ (1,) Sherali, son of Late Saiyad St^kyrali, AM^ A aged aboyt 56 y®ars* resident of police ^^^a^' Line Bilaspur (Chhattisgarh) ^y" ,„.""'' °ua5pur ^"a"15sarn; /''.<^iy ^ Saiyad Tegali, son of Saiyad Sakarali. ,• »;^» ^JLJ ^ aged aboyt 46 years, Police, resident of >. ^ <^ ^13' <T, Police Line Bilaspur, (Chhattisgarh) Asgari Begam, W/G Mushtak Khan, aged .^ /> ^^- ^y' -<t ^ ^' o^^ RESPOIDENTS ^. about years, resident of village Dagori Tahsil Bilha, District Bilaspur (Chhattis- garh) ^ VERSUS ^1) Saiyad Israrali, son of Saiyad Akbar Ali aged about 58 years, Booking Clerk State Transport Main Road Mungelt, ©pposit Shu- shila Cloth shop lyiungeli, District Bilaspur (Chhattisgarh) (Defeadent no» 1) (2)3tate of Chhattisgarh, through Collector Bilaspur (Chhattisgarh) (Performa Defen.2) (3)Smt« Shakira Begum, aged about 66 years, •r W/0 Maksud Ali, resident of Pratappar, Present Address Ramgopal Tiwari ward Prata- pur, Tahsil Mungeli, District Bilaspar (C.G.) (Defendent no« 3) ~T &^1 • J F ^ &:t.. ^ s^,^" SECOND CIVIL APPEAL UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE A^\ HmH_COUKT_ QF.cHHATTISGAKH s mLASPUK SECOHD APPEAL N0. 135 OF 2006 Stierali and others Versus Saiyad Israral! & Others JU D GM ENT Post for 2-^-9-2006 Sd/- Dhirendra Mishra Judge ^ HIGH COURT OF CHHATTISGARH : BILAsPUR SBCOND APPEAL N0. 135 OF 2006 Sherali and others Versiss Saiyad Israrali & Others ^ sa^^' Present 2- Slu'i J, S. Bm'aik, counsel for the appellants* Sl-iri Akhil Agrawal, Panel Lowyer for the State< JU D GMEN T Per Shri Dhirendra Mishra, J Heard on admission. 2. This second appeal under Section 100 ofthe Code of Civil Procedure has been filed agadnst the judgment and decree dated 30-11-2005 passed by the Additional District Judge, Mungeli m Civil Appeal No. 12-A/2005 whereby the appeal prefeiTed by the appellants against the judgment aiid decree dated 21-9-2004 dismissing the Civil Suit No. 7-A/1988 passed by the trial Court has been dismissed. (The parties hereinafter shall be referred to as per their description before me trial Comt.) 3. Briefiy stated the case of fhe plaintiff is that fhe suit laiid described in Schedule A and B of the plaint was ancestral property of late Gafur Ali. It was never ^ pai-titioned. The widow of Gafur Ali is aii old ladv and was incapable of taking any decision. Gafur Ali died issueless. The defendant does not belong to the faniily of the plaintiffs and late Gafur Ali never made aiiy gift with respect to 2.15 acres of land. T'he gift deed dated 18-7- 1984 is fake. Gafur Ali was suffering from pai'alvsis in the yeai' 1983-84. 'Gafm' Ali never made oral declaration about giftmg Uie suit land to the defendant and the defendant has iUegally got his nanie recorded over fhe suit land* Khatija Beguni has also died in Uie year 1989 arid they are her successors, Though Shakn'a Beguni-the widow of Maksood Ali was not inclined that her nanie shoiild be added, since her nanie has not been iucluded as plaintiff, nevertheless she reposes full coniidence on the plainttffs aiid with these pieaduigs, a declaration has been sought that -fhe plainttffs and the defendaut No. 3 m'e title holders and possessors of the suit property. 4. The defendant No. 1 in his written statenient denied the averments of the plau.it and stated that the disputed larid was the exclusive property7 of Gaiur Ali who obtained the sanie in a partition effected bv Late Abdul Ali in his life tinie ainongst his brofhers and since then, all tlie four brothers were ui possession over the respective shai'es aiid the land was recorded in me revenue papers separately. It was further aven'ed that late Gafur Ali vide ^7 oral Hiba dated 1st July 1984 had douated 2*15 acres of land from the suit land to the defendant No. 1 and he further executed a meniorandmii of gift dated 18-7-1984 in favour of defendarLt No, 1, He was mentally active. Though he suffered pai'aiytic attack m the yeai' 1985 but thereafter he was healtliy, aiid the plauitiffs ai'e not in possession over the suit Imid. hi fact, from the date of Hibanania, the defendaiit No. 1 is in possessioii. There is no cause of action m favour of the plaintiffs. 5. On me basis of the pleadings of the respective pai'ties, issues were framed and after recording the statements of witaesses from both tlie side, me trial Court dismissed the suit wim a finding mat me suit property was not aiicestral property of Gafur Ali aiid Shakur Ali. It was, in fact, the property of Gafur Ali alone who donated 2.15 acres from the suit land to me defendaiit No. 1 arid after me death of Khatija Beguni, Makbool Ali Khan was not a necessaiy paity aiid accordmgly, the suit was dismissed. The appeal prefeiTed by me piaiiitiffs has also been dismissed by me inipugned judgment aiid decree, hence this appeal. 6. Leajiied counsei for the appellants submits mat both the com-ts below erred by not applymg Muslim Law regardmg the Gift (Hiba). The fact that Gafur Ali suffered pai*alvtic sti-oke two yeai's before l~ds death on 23-8-1985 and as a result of which he had become sick and pai'alysed arid was not competent to exercise free discrction of making oral gift, has been ignored by both the Courts below, though the defendant No. 1 has admitted fhat he suffered paralvtic stroke aiid was sick. it is argued that all the ingredients of Hiba have not been established by leadtng cogent evidence by me defendant No, 1 and in absence of it, oral Hiba could uot be given effect to and on these arguments, it is contended that followmg substanual questions of law ari.se for adjudication oftliis appeal:- i. Whether the Com'ts below eiTed m law by not applymg fhe Muslim Law in deciduig the case ? 11. 111. iv. Whether the Courts below eiTed m law by holdiiig fhat oral gift. of the suit land was permissible and all mgredients of Hiba were not required to be proved by the respondents ? Whefher in view of the adniitted facts, late Gafur Ali who was old, sick and paralysed was competent to make gift (Hiba) of the suit land to the defendant No. 1 ? Whether the Courts below erred in holding that mutation of the suit iand in naaie of respondent defendant No. 1 is ui conu'avention of Rule '27 of the mutation? k^ 7. I have heard fhe lem'ned counsel for the appellaats. I have perused the record aiid the judgments and decree passed by both me coiii'ts below. So far as findmgs recorded by the trial court wmch is subsequentlv afflrnied by the appeUate court regardmg the nature of the property i.e. whether it is ancestral property or it is exclusive property of fhe deceased Gafur Ali, is concerned, both the Courts below after appreciating the evidence available on record and niarshallmg the evidence led by the parties arrived a.t the concurrent fmding fhat the property in question was exclusive property of Saiyad Gafur Ali and not the ancestral propei^ of Gafur Ali and Shakur Ali. 'T'he above flnding is a concurrent fmding of fact aiid no argument was advanced by the leamed counsel for the appellaiits to challenge the above flnding, aiid therefore, the appeal is to be considered only on the ground that whether fhe oral Hiba of 2.15 acres of land out of the suit laiid ui favour of the defendaiit no. 1 was in accordance with the Muslmi Law or not. 8. It is settled law fhat as per Muslmi Law, gift by Mohanimedaii is not required to be in writing and consequently need not be registered under the Registration Act. Section 147 of the pruiciples of Mohaiiimedan Law by MuUa envisages that writmg is not essential to the validity of gift either of movable or • .f <tA7L"n, immovable property. Section 148 requu'es that it is essential to tlie validity of a gtft that fhe donar should divest him completely of ownerslup aiid domuiion over the subject of the gift. Under Section 149, tliree essentials to the validity of tlie gift should be as mider: i. The declaration of the gift by doiior; ii. Acceptance of possession, expressed or implied bv or on behalf of the donar; iii. Deliveiy of possession of me subject of me gift by the donor to the donee. 9. If these conditions ai'e compiied with, the gift is complete. Section 150 specificaily mentions that for a valid gift, fhere should be deliveiy of possession of the subject of tlie gift and takmg of possession of ttie gift by the donee, actually or constrictiveiy mid tlien only, the gift is coniplete* 10. If we examine fhe evidence available on record and the tmdings of fhe trial couil m mis regm'd, it is noticed that the leai'ned trial court on the basis of statement of Saivad Israrali-defendaiit No. 1, witaess Shekh NaimuUah D.W. 2 aiid Mu'dade Ali D.W. 3 anived at the conclusion that on 1-7-1984 on tlie eve of Id, Gafm' Ali had niade declaration alter Nainaz in the Miingeli Masque that he is donatmg his 2.15'acres laiid situated at Pratappur to Israrali and Israrali has accepted the gift and thereafter ^ ^A^ ^^ he had obtained possession, This declaratiou was made in presence of all the persons ui the Masque. The above witnesses have also stated fhat on 18-7-1984, a memorandum of Hibanaiiia Ex. D~ 1 was recorded which bears the sigiiature of Gafur Ali. The witnesses have also stated tliat fhe after the gift of me suit property, the defendant No. 1 canie tnto possession of the suit land and got his nam.e mutated in the revenue rccords and revenue papers med by fhe defendaiit No. 1 shows possession of the defendant No. 1 over the suit Imid. So far as fhe contention of the plain.tiffs that the deceased CTafur Ali was not physically and mentally fit and he had suffered paralytic stroke is concenied, this aspect has also beeu taken cai'e of by the trial court which has recorded fhat the deceased was retired sovemnient servant aind he used to go to Mungeli from Biiaspur to receive his pension till his death. 'T'he trial Court has also considered mat the land was mutated m the name of defendant No. 1 durin^ the life tiine of Saiyad Gafur. His wife Khatija Begum was alive tiu 1989 and she never objected agaiiist Uie mutation ui favour of the defendant No. 1 over the suit land nor she objected mat the alleged Hibanania was fal<:e and in the aforesaid circumstances, both the courts below held that the plaintiffs had no right to institute the suit. The finding has also been given that the plmntiffs have not been able to establish by leaduig cogent. evidence that M^ ^,^. the deceased was not in fit physical and mental condition at the time of fhe gift, and therefore, on this ground also, the challenge to Hibanaina has not been accepted. 11. If we see the fuidings of fhe trial Court, it is mantfestly clear that all tlie ingredients for a valid gift as per ftie Muslims Law has been established by defendmit no. 1. Lat& Gafur Ali was the exclusive owner of the disputed property os^ who made oral declaration m front ofwitnesses in Masque on the eve of id on 1-7-1984 and who subsequently executed a meniorandmii of gift on 18- 7-1984 and in pursuance of the oral gift, the possession was obtained by defendant no. 1 inimediatelv after execution of me gift and the land in question was recorded in the naaie of tlie defendant no. 1 on ttie basis of the oral gift diiiing life tiine of the deceased Gafur Ali. 12. The above fmding is a fmdmg of the fact which is based on proper appreciation of the oral and documentan^ evidence available on record and fhe above finding is the concuiTent fmding of the fact recorded bv both the court.s below, merefore fhis Court is of fche considered opinion that no substaiitial question of iaw as proposed of the learned couiisel for the appellants arises for adjudication of this appeal. The appeal is devoid of substance and the same is dismissed at the admission stage itself. Sd/- Dhirendra Mishra Judge