Back
High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE L. NARASIMHA REDDY
Mayana Saheb Khan
Versus
Mayana Gulab Jan & Others
Second Appeal No.1040 of 2009
Decided on : 23-08-2010
Transfer of Property Act - Section 123 – Agreement - Suit for partition and separate possession – Dimsisal of Suit – Respondent and three daughters by name and respondents - Respondent - Appellant filed in the Court of Senior Civil Judge against the respondents for partition and separate possession of the assets left by late - He claimed share in those properties in the capacity of sharer of the properties of the deceased suit was mainly opposed by the 1st respondent - She did not dispute the relationship of the parties - Respondents have adopted the offered by the 1st respondent - Through its judgment Court dismissed the suit - Appellant filed in the Court of V Additional District Judge against the judgment and decree of the trial Court - Appeal was dismissed this second appeal - Appeal was dismissed - Oral gift pleaded by the 1st respondent - Respondent pleaded in her written statement that the gift was evidenced through a Gift so much so, she has mentioned it in the list of documents in the written statement but has not chosen to file the same into the Court - He pleads that though it is competent for a Muslim to make an oral gift if one chooses to make it through a written document, it is required to be registered under Section of the Transfer of Property - Court have recorded findings on the basis of the same - Whether the plaint schedule properties are liable for partition and whether the plaintiff is entitled to the extent towards his share in the plaint schedule properties additional issue was framed has been in joint possession of the suit schedule property along with the plaintiff On behalf of the appellant – Held, Court raised an objection as to the stamp duty the document remained inadmissible, and no efforts were made to by the respondent to rectify the same - Even if it is assumed that the document was part of record and the deficiency as to stamp duty was rectified it was still inadmissible - Reason is that it was not registered - It is settled principle of law that it is the prerogative of a Muslim to effect gift of immovable properties without even executing a written document, much less registering the same - Oral gift in respect of such persons is permissible gift is said to have been made through a written document, it is required to conform with Section of the Act - Judgments which are relied upon by the learned counsel for the appellant this Court held that a document which evidences a gift, though made by a Muslim, cannot be acted upon unless it accords with Section of the Act - In the instant case, the document was admittedly unregistered and as such, the gift pleaded by the 1st respondent could not have been accepted at all - Court and the lower appellate Court committed serious error of law in recognizing the gift pleaded by the 1st respondent - Second appeal is allowed.
One late Mayana Rouf Khan had three sons, by name Saheb Khan, appellant herein, Alam Khan, respondent No.11 and late Raheem Khan; and three daughters, by name Khayamkhani Ghousunnisa, Salawani Mayamunnisa and Habeeba, respondents 12 to 14 herein. The 1st respondent is the wife of late Raheem Khan. RaheemKhan died on 24.06.1997 leaving behind him certain items of movable and immovable properties. The appellant filed O.S.No.12 of 1998 in the Court of Senior Civil Judge, Rayachoty, against the respondents for partition and separate possession of the assets left by late Raheem Khan. He claimed 21.42% share in those properties in the capacity of sharer of the properties of the deceased. The suit was mainly opposed by the 1st respondent. She did not dispute the relationship of the parties. She however pleaded that her husband gifted items 1 and 2 of the suit schedule in her favour and as such, they are not available for partition. The other respondents have adopted the defence offered by the 1st respondent. Through its judgment, dated 07.10.2005, the trial Court dismissed the suit. The appellant filed A.S.No.7 of 2008 in the Court of V Additional District Judge, Rayachoty against the judgment and decree of the trial Court. The appeal was dismissed on 30.05.2009. Hence, this second appeal. Sri S.V.Bhatt, learned counsel for the appellant submits that the trial Court and the lower appellate Court committed a patent error in holding that the oral gift pleaded by the 1st respondent is proved. He submits that in clear terms, the 1st respondent pleaded in her written statement that the gift was evidenced through a Gift Khararunama dated 20.04.1992, so much so, she has mentioned it, in the list of documents in the written statement but has not chosen to file the same into the Court. He pleads that though it is competent for a Muslim to make an oral gift, if one chooses to make it through a written document, it is required to be registered under Section 123 of the Transfer of Property Act (for short 'the Act'). He places reliance upon judgments of this Court in Inspector Gen. Of Reg. Vs. Tayyaba Begum 1962 Andhra Law Times Reports 108, Mahendra Apex Corp. Ltd. Vs. Jafrulla. 1997(2) ALT 259 (D.B.), Shaik Khadaru Masthan vs. Smt. Sayyed Fathimun Bee 2007(6) ALT 220, Babu Miyan vs. Hussain Bi 2008(1) ALD 641 and Syed Fatahuddin vs. Golla Shadrak 2004(6) ALT 753.
Sri D.Kodandarami Reddy, learned counsel for the 1st respondent, on the other hand, submits that the oral gift was proved beyond any reasonable doubt and the trial Court and the lower appellate Court have recorded findings on the basis of the same. He submits that when an oral gift is proved, the mere mention thereof in a written document does not make it inoperative, in law. The suit filed by the appellant herein was the one, for partition and separate possession of the suit schedule properties. The suit was opposed by the 1st respondent alone. The trial Court initially framed two issues viz., whether the plaint schedule properties are liable for partition and whether the plaintiff is entitled to the extent of 21.42% towards his share in the plaint schedule properties. Thereafter, an additional issue was framed viz., whether D-11 has been in joint possession of the suit schedule property along with the plaintiff? On behalf of the appellant, P.Ws.1 to 5 were examined and Exs.A.1 to A.4 were filed. On behalf of the respondents, D.Ws.1 to 3 were examined and Exs.B.1 to B.3 were filed. The suit was dismissed and the lower appellate Court upheld the decree of the trial Court. The only question that arises for consideration in this case is as to whether a gift said to have been made by a Muslim, which in turn is evidenced through a written document, can be recognized in law, unless the document is registered. After narrating the relationship between himself and the other respondents and furnishing the list of properties left by his deceased brother, the appellant prayed for partiti
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
