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2002 DIGILAW 346 (MP)

MOHAMMED ZARIF v. UNION OF INDIA

2002-03-26

S.L.KOCHAR

body2002
S. L. KOCHAR, J. ( 1 ) THIS order also governs the disposal of Criminal Revision Nos. 38/02 to 41/02 and Cri. Rev. Nos. 63/02 to 64/02. ( 2 ) ALL the aforesaid Criminal revisions have been filed by the applicant against the order passed by the trial Court rejecting the objection filed under Section 84 of the Code of Criminal Procedure about attachment of the property owned by Non-applicant No. 2 Mohd. Shakir. The objectors have submitted that as it was a joint property in Criminal Revision No. 41/01, the applicant Shamina Bano, wife of Mohd. Shakir has submitted before the trial Court that it was the property given to her in MEHAR. In Criminal Revision No. 63/02, submission of the applicant was that the property involved in this case was the joint property by the applicant. In all these three revisions, applicant and Mohd. Shakir, respondent No. 2 have submitted before this Court that since the properties were joint properties and in one revision it is a property of Shamina Bano given in Mehar, could not have been attached, attacking this submission, counsel for the State has submitted that in the case of joint property, only half portion of the property has ordered to be attached and auctioned, not the full property. So far as property relating to Shamina Bano given in Meher, except one document, neither Shamina Bano appeared nor the respondent No. 2 Mohd. Shakir, her husband had given the statement to this effect, even the original register was not produced and proved by the concerned Kaji. ( 3 ) REST of the Criminal Revisions i. e. Cri. Rev. Nos. 38/02, 39/02, 40/02, 63/02 and 64/02 the claim is based on oral Hiba (Gift) and the applicants as well as Mohd. Shakir failed to establish required ingredients by adducing cogent and reliable evidence before the Court below. This has been considered in great detail by the trial Court which has been read to me by the counsel for the State as well as the applicant. Apart from this, they have not adduced any evidence for the purpose of establishing that after gift by donor and acceptance by the donee, the possession of the said property was duly given. Apart from this, they have not adduced any evidence for the purpose of establishing that after gift by donor and acceptance by the donee, the possession of the said property was duly given. For this purpose, they have not filed and documentary evidence either by filing and examining the witnesses of Land record or certified copy of Nagar Nigam and documents of mutation. ( 4 ) HAVING heard the counsel for the parties and after perusing the record as well as the decision of the Supreme Court in Mahboob Sahab's case reported in AIR 1995 SC 1205 this Court is of the opinion that the order passed by the trial Court is just and proper. There is no illegality, irregularity or perversity committed by the trial Court while passing the order rejecting the objection of the applicant filed under Section 84 of the Cr. P. C. Apart from this, basic requirement in oral gift as laid down by the Supreme Court in para 5 of the aforesaid judgment are as under :"though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act, a gift to be complete, there should be a declaration of the gift by the doner; acceptance of the gift, expressed or implied by or on behalf of the donee, and delivery of possession of the property, the subject matter the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. " ( 5 ) IN view of these facts, all the aforesaid revisions have no force and are liable to be dismissed. Accordingly, this Revision and Cr. Rev. Nos. 38/02 to 41/02 and Cri. Rev. Nos. 63/02 to 64/02 are hereby dismissed. Copy of this order be placed in all the aforesaid Criminal Revisions. The order of stay passed earlier in the revision is hereby vacated. Certified copy be given on usual charges. Revision dismissed. .