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Madhya Pradesh High Court · body

2004 DIGILAW 831 (MP)

Hamid Khan v. Sher Khan

2004-10-11

A.K.SHRIVASTAVA

body2004
JUDGMENT This is defendant's second appeal against the judgment and decree passed by first appellate Court decreeing the suit of plaintiff-respondent. Plaintiff-Sher Khan filed a suit for declaration that he is the owner of the disputed two 'Chabutaras' shown under the red ink of plaint map and the defendant be restrained by a decree of permanent injunction restraining him in interfering in the possession of plaintiff. According to plaint averments, the suit property (two Chabutaras) was originally owned and possessed by Mst. Fatma @ Bafatan. Said Bafatan was not having any issue and the plaintiff was taking care of her. On 25.7.1971 said Bafatan made a gift of disputed Chabutaras to plaintiff and delivered possession to him, since then he is possessing the same. After the gift made by Mst. Bafatan in favour of plaintiff, the defendant by playing fraud included the suit property (two Chabutaras) in the sale deed of the house sold by Mst. Fatma @ Bafatan to defendant and got the sale deed registered on 18.11.1983. When the said Fatma @ Bafatan came to know about the said fact she, on 24.12.1983 sent a written complaint by registered AD post to Superintendent of Police. The plaintiff further pleaded that earlier to the execution of sale deed in favour of defendant by said Mst. Fatma @ Bafatan, she executed an affidavit on 20.10.1983 which was submitted before the Notary, admitting the fact that on 25.7.1971 she made a gift of disputed property to plaintiff. In the said affidavit she has also stated that possession of the gifted property was already delivered on 25.7.1971 to plaintiff. Mst. Fatma @ Bafatan died on 6.1.1984. Since the defendant tried to interfere in possession of the plaintiff and also denied his ownership on the suit property, present suit has been filed. Defendant resisted the suit by filing written statement and denied the factum of gift as set forth by plaintiff. According to defendant, the sale deed executed by said Fatma @ Bafatan Bi in his favour she included and sold the suit property and since the document is a registered document it cannot be questioned. The trial Court, after framing the issues and recording the evidence, dismissed the suit. According to defendant, the sale deed executed by said Fatma @ Bafatan Bi in his favour she included and sold the suit property and since the document is a registered document it cannot be questioned. The trial Court, after framing the issues and recording the evidence, dismissed the suit. The plaintiff preferred an appeal against the judgment and decree passed by trial Court, before the first appellate Court and which has been allowed by impugned judgment and decree and the suit of plaintiff has been decreed. Hence, this second appeal. This second appeal was admitted on the following substaintial question of law : 'Whether in view of statement of respondent as contained in para 7 of his deposition, the gift, oral or documentary, in his favour, can be accepted as sufficient to confer legal and valid title of the disputed Chabutara on him?" In order to give complete answer to the substantial question of law I have examined para 7 of the deposition of plaintiff-respondent. In this para, it has been specifically stated by plaintiff placing reliance on the gift deed that the day on which the gift deed Ex. P-6 was executed, possession of the suit property was also delivered to him. On going through the gift deed Ex. P-6 dated 25.7.1971, it is found that the factum of delivery of possession of the suit property to plaintiff has been mentioned in it. At this juncture, it would be apposite to place reliance on Ex. P-5 which is an affidavit of Mst. Fatma @ Bafatan dated 20.10.1983 which was sworn by her before Notary, Panna acknowledging the gift deed dated 25.7.1971 by which she gifted the suit property to plaintiff. In this affidavit also, it has been specifically mentioned that the possession of the suit property was delivered to plaintiff on the same day i.e. 25.7.1971 when the document of gift deed Ex. P-6 was executed. On going through the gift deed Ex. P-6 and the affidavit Ex. P-5 of Fatma @ Bafatan Bi, the donor, it is revealed that she divested herself completely from the ownership of the gifted property and also delivered possession of the same to plaintiff. P-6 was executed. On going through the gift deed Ex. P-6 and the affidavit Ex. P-5 of Fatma @ Bafatan Bi, the donor, it is revealed that she divested herself completely from the ownership of the gifted property and also delivered possession of the same to plaintiff. Under Section 123 of Transfer of Property Act, a gift of immovable property must be effected by a registered instrument signed by the donor and attested by atleast two witnesses but the said provision of Section 123 do not apply to Mohammedan gift. In this regard Section 129 of the said Act is quite clear. Since the donor and donee, both, are Mohammedan therefore, the provision of Section 123 of T.P. Act has no application in the present case. Since there is overwhelming evidence that the donor Fatma @ Bafatan Bi completely divested herself from the ownership and dominion over the subject of the gift and delivered possession on 25.7.1971 to plaintiff, the view of this Court is that the property in dispute was validly gifted to plaintiff. The great author Mulla in his remarkable book "Principles of Mohammedan Law", under Article 149 has given three tests for a valid gift. For better understanding it would be appropriate to re-write the said article which reads thus: "149. The three essential of a gift. -- It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject matter of gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete." If the aforesaid tests are tested on the touch stone of the present factual scenario, it is revealed that there was a declaration of gift by the donor Fatma @ Bafatan Bi; it was accepted by the plaintiff and possession was also delivered to the donee i.e. plaintiff. If it is proved by oral evidence that a gift was completed as required by law, it is Immaterial that the donor had also executed a deed of gift, but the deed has not been registered as required under Registration Act. The Supreme Court in the case of Maqbool Alam Khan v. Mst. If it is proved by oral evidence that a gift was completed as required by law, it is Immaterial that the donor had also executed a deed of gift, but the deed has not been registered as required under Registration Act. The Supreme Court in the case of Maqbool Alam Khan v. Mst. Khodaija and others, AIR 1966 SC 1194 reiterated the same principle which has been enumerated in Article 149 of Mohammedan Law. Indeed there are three pillars for a valid gift under the Mohammedan Law and they are, declaration, acceptance and delivery of possession. On these three pillars, the roof of a valid gift under Mohammedan Law rests and if anyone pillar is found to be missing, the roof of gift will fall down, which would mean that there was no valid gift. Since in the present case all the three essential requirements constituting a valid gift have been proved, hence, according to me, the first appellate Court did not en in placing reliance on the gift deed and holding the plaintiff to be the owner having possession on the suit property. Even for a sake of argument, if it is held that defendant did not play any fraud on Fatma @ Bafatan and she executed a valid said deed Ex. P-1 in his favour on 18.11.1983 including the disputed property, it would not confer any valid title in him for the simple reason that Bafatan was not the owner of the suit property on 18.11.1983 as she already gifted it quite earlier on 25.7.1971 to plaintiff. The substantial question of law which was framed is answered that there is sufficient and overwhelming evidence of plaintiff in order to prove a valid gift of disputed property in his favour. Ex-consequenti, this appeal is found to be devoid of any substance and the same is hereby dismissed with costs. 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