RSA 39/2011 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI JUDGEMENT AND ORDER This is a second appeal, which has arisen out of a judgment and decree, dated 22-11-2010, passed, in Title Appeal No. 14 of 2009, by the learned Civil J udge, Dhubri, dismissing the appeal and upholding the judgment and decree, dated 31-10-2009, passed, in Title Suit No. 232 of 2007, by the learned Miunsiff No. 1, Dhubri, decreeing the suit in favour of the plaintiff. 2. I have heard Mr. P Sharma, learned counsel, for the defendant-appellants , and Mr. K Bhattacharjee, learned counsel, for the plaintiff-respondent. 3. Briefly put, the case of the respondent, as plaintiff, is as follows: The plaintiff’s father, Kobejuddin @ Kobej Sk., was the owner of the sui t land. During his lifetime, Kobejuddin gifted the suit land, on 03-01-1994, by executing an unregistered gift deed and delivered possession of the suit land to her on the same day. Before obtaining the possession, the plaintiff constructed her residential house over the suit land and remained, on the suit land, by pay ing revenue and got her name mutated, too, in the record of rights. However, aft er the death of her father, the defendants (i.e. appellants herein), who are her own brothers, started disturbing her possession and, on 16-01-2007, the defenda nts, armed with deadly weapons, trespassed to the suit land, demolished the hous es of the plaintiff, dispossessed the plaintiff therefrom and illegally occupied the suit land by constructing a hut with CI sheet roofing. The plaintiff lodged a criminal case, in this regard, at Mankachar Police Station. The plaintiff, th erefore, in the suit, sought for, inter alia, declaration of her rights, title a nd interest over the suit land and also a decree of khas possession of the suit land by evicting the defendants therefrom. 4. Before proceeding further, it needs to be noted that in terms of the ord er, dated 23-04-2008, the suit proceeded ex parte against the defendants and the order, dated 23-04-2008, which has remained unchallenged till date. Though the defendants were not allowed to file their written statements, they were, indeed, allowed to cross-examine the witnesses and also adduce evidence if they so wish ed. In support of her case, the plaintiff examined 3 witnesses including herself . No evidence was, however, adduced by the defendants. 5. As the suit had been decreed in favour of the plaintiff, the defendants, feeling aggrieved, preferred an appeal as indicated above. The appeal having be en dismissed, the defendants have preferred this second appeal. 6. Appearing on behalf of the defendants-appellants, Mr. P Sharma, learned counsel, has challenged the decree on two grounds, namely, that the gift deed, i n the present case, was an unregistered gift deed, which is, according to Mr. Sh arma, inadmissible evidence and as there is no registered gift deed, no title pa ssed to the plaintiff and no declaration of rights, title and interest and/or re covery of possession could have been legally granted in favour of the plaintiff- respondent. This apart, according to Mr. Sharma, there is no convincing evidence on record that the plaintiff had accepted the gift by taking over possession of the suit land and, in such circumstances, there was, contends Mr. Sharma, no va lid transfer of title from the owner, namely, Kobejuddin, to the plaintiff-respo ndent. Yet another ground of challenge posed to the impugned decree is that no i ssue was framed in the present case and, in such circumstances, the decree ought not to have been maintained by the learned first appellate Court. 7. Countering the submissions made on behalf of the appellants, Mr. Bhattac harjee, learned counsel, submits that the parties to the suit are Mohammadan and , in Mohammadan law, gift can be made orally and the mere fact that the gift was reduced into writing, it cannot become a formal document or instrument of gift and did not, therefore, require registration. The fact of the matter remains, ac cording to Mr. Bhattacharjee, that there is enough evidence on record to show th at the plaintiff’s father gifted the suit land to the plaintiff and delivered th e possession thereof to her and, thereafter, she had been in possession of the s uit land by constructing houses thereon until the time she was illegally evicted from there by the defendants. In support of his submissions, Mr. Bhattacharjee places reliance on Hafeeza Bibi & Ors. V. Shaikh Farid (dead) by LRs & Ors. (AIR 2011 SC 1695). 8. Coming to the plea of Mr. Sharma that the learned trial Court having not framed any issue, the decree is bad in law, Mr. Bhattacharjee, referring to the decision of this Court, in Dharam Chand Joshi v. Satya Narayan Bazaz (AIR 1993 GAUHATI 35), submits that non-framing of issues will not make a Court set aside the decree unless prejudice is shown to have been caused to the party concerned. In the present case, points out Mr. Bhattacharjee, no written statement had bee n filed by the defendants and the suit was directed to proceed ex parte. As the defendants had not filed any written statement, the question of framing of issue s, according to Mr. Bhattacharjee, did not arise and what was required was to de termine the points or questions involved for determination. The questions for de termination were, according to Mr. Bhattacharjee, whether there was a gift of th e suit land from the plaintiff’s father to her as contended by the plaintiff and if so, whether the gift was valid, whether she had constructed houses over the suit land and whether the defendants have trespassed into the suit land and ille gally evicted the plaintiff therefrom. 9. In the backdrop of the rival submissions made by the learned counsel for the parties concerned, what needs to be noted is that there are three essential s of a valid gift under the Mohammadan Law. These three essentials are : (i) dec laration of the gift by the donor; (ii) acceptance of the gift by the donee and (iii) delivery of possession of the gifted land from the donor to the donee. The personal law of Mohammadans does not make a written gift deed essential to the validity of gift. Oral gift, fulfilling all the three essentials, make the gift complete and irrevocable. However, the donor may record the transaction of gift, in writing. 10. What is imperative to note is that merely because gift is reduced into w riting by a Mohammadan instead of making the gift orally, such a writing does no t become a formal document or instrument of gift requires registration (See Hafe eza Bibi (supra). 11. It needs to be borne in mind that when a gift can be made orally by a Mo hammadan, its nature and character do not get changed merely because the donor c hooses to reduce into writing the gift made by him. What is necessary for validi ty of a gift, under the Mohammadan Law, are the three essential requirements, wh ich I have indicated hereinbefore. No other formality is necessary, when all the said three requisites of a valid gift, under the Mohammadan Law, are satisfied. In other words, the transaction of gift would not render the gift invalid if th ere is an unregistered deed of gift. Section 129 of the Transfer of Property Act preserves the personal law of the Mohammadan, i.e. Mohammadan Law, and excludes the applicability of Section 123 of the Transfer of Property Act to a gift of a n immovable property by a Mohammadan. It is not necessary for a Mohammadan to re gister a gift deed for the purpose of validity of the gift. What are necessary, as indicated above, are declaration of the gift by the donor, acceptance of the gift by the donee and delivery of possession by the donor to the donee. The refe rence made by Mr. Bhattacharjee to the case of Hafeeza Bibi (supra) is not at al l misplaced inasmuch as it is clearly held, in Hafeeza Bibi (supra), that the th ree essentials of a gift under Mohammadan Law are: (i) declaration of the gift b y the donor; (2) acceptance of the gift by the donee and (3) delivery of possess ion, the rules of Mohammadan law do not make writing essential to the validity o f gift; and oral gift complete and irrevocable. However, the donor may record th e transaction of gift in writing. Merely because the gift is reduced to writing by a Mohammadan instead of it having been made orally, such writing does not bec ome a formal document or instrument of gift. When a gift could be made by Mohamm adan orally, its nature and character is not changed because of it having been m ade by a written document. What is important for a valid gift under Mohammadan L aw is that three essential requisites must be fulfilled. The form is immaterial. If all the three essential requisites are satisfied constituting valid gift, th e transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The distinction that if a written deed of gift recite s the factum of prior gift then such deed is not required to be registered but w hen the writing is contemporaneous with the making of the gift, it must be regis tered, is inappropriate and not in conformity with the rule of the gift in Moham madan law. 12. Section 129 of T.P. Act preserves the rule of Mohammadan Law and exclude s the applicability of S. 123 of T.P. Act to a gift of an immovable property by a Mohammadan. It is not the requirement that in all cases, where the gift deed i s contemporaneous to the making of the oral gift deed must be registered under S . 17 of the Registration Act. Each case would depend on its own facts. 13. There can be no doubt that Section 17(1)(a) of the Registration Act, whi ch Mr. Sharma relies upon, requires that an instrument of gift of an immovable p roperty be registered irrespective of value of the property. However, there is n o question of applicability of Section 17(1)(a) of the Registration Act to a wri tten gift executed by a Mohammadan, when, in the light of Section 129 of the Tra nsfer of Property Act, the personal law, governing the Mohammadans, permits oral gift. 14. Considering the fact that Section 129 preserves the rights of the Mohamm adans, as indicated above, and excludes the applicability of Section 123 of the Transfer of Property Act to a gift of immovable property by a Mohammadan, Sectio n 17(1)(a) of the Registration Act does not come into play with the result that even when a Mohammadan chooses to put the gift into writing, the document, reduc ing into writing, the deed, recording factum of gift, would not require registra tion. 15. In the case at hand, there is overwhelming evidence on record, as have b een concurrently found by the learned trial Court and learned first appellate Co urt, that there was, indeed, a gift made to the plaintiff, by her father, the pl aintiff accepted the gift, came into possession of the suit property, constructe d houses thereon, but after the death of her father, the two defendants-appellan ts, who are brothers of the plaintiff-respondent, forcibly evicted the plaintiff , occupied the suit land and raised a hut thereon. In such circumstances, the le arned trial Court committed no error, legal or factual, in holding that the plai ntiff had acquired title to the suit land and also had possession thereof at the time, when she was illegally evicted by the defendants. The learned trial Court has accordingly granted the decree as had been sought for and the learned first appellate Court committed in the considered view of this Court, no error in uph olding the decree. 16. Coming to the question raised by Mr. Sharma, learned counsel for the def endants-appellants, that the issues having not been framed, the decree, which ha s been granted, is bad in law, suffice it to point out that issues are framed, w hen a material proposition of fact or law is affirmed by one party and denied by the other, the material propositions being those propositions of law or fact, w hich a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Order XIV Rule 1(3) CPC makes it cle ar that each material proposition, affirmed by one party and denied by the other , shall form the subject of a distinct issue. 17. In the case at hand, there was no written statement filed by the defenda nts. The issues, therefore, arose on the basis of the cross-examination of the w itnesses by the defendants inasmuch as it is only when the defendants cross-exam ined the plaintiff and her witnesses that it transpired, as to what the case of the defendants was and what issues had arisen. The principal issues, which arose were whether the plaintiff’s father had made a gift, whether the plaintiff had accepted the gift and whether she was subsequent to making of gift by her father , put into possession of the suit property in pursuance of the gift so made. Yet other issues, which arose in the present case, were whether non-registration of deed, recording the factum of gift made by the plaintiff’s father in favour of the plaintiff, had reduced the gift invalid or not. All these issues, though not specifically framed, were addressed by the learned trial Court and by the learn ed first appellate Court too. When the defendant entered into the suit to cross- examine the witnesses of the plaintiff, they knew exactly what the case of the p laintiff was and the plaintiff also claims to know, on the basis of the cross-ex amination conducted by the defendants, as to what the case of the defendants was . As both the parties knew each other’s case and had full and effective opportun ity to present their respective cases before the learned trial Court, no prejudi ce can be said to have been caused to any of the parties for omission to frame i ssues by the learned trial Court nor can any prejudice be said to have been caus ed to the defendants by the learned appellate Court’s upholding of the impugned decree. 18. Having given my anxious consideration to the case presented on behalf of the defendants-appellants, I do not find that the appellants have been able to raise before this Court any question of law, far less, substantial question of l aw. The appeal is, thus, wholly without merit and cannot be admitted. 19. In the result and for the foregoing reasons, this appeal is not admitted and shall accordingly stand dismissed with cost of Rs. 1,000/-.