The mother, as a de facto guardian, can accept an oral gift on behalf of her minor son when no legal guardian exists, validating the transfer of property rights under Mohammedan Law.

JUDGMENT :

Shivashankar Amarannavar, J.

This second appeal is filed by the appellant/plaintiff praying to set aside the judgment and decree dated 07.08.2009, passed in R.A.No.46/2005, by the learned Civil Judge (Sr.Dn.), Basavakalyan (Camp at Humnabad) and to restore the judgment and decree dated 29.08.2005, passed in O.S.No.115/1987, by the Principal Civil Judge (Jr.Dn.), Humnabad.

2. The appellant/plaintiff has filed a suit in O.S.No.115/1987 against the respondent/defendant seeking declaration that he is the owner of the suit land bearing Sy.No.86 measuring 3 acres 12 guntas situated at Madargi village, Humnabad Taluk and recovery of possession of the suit property from the respondent/defendant. The plaintiff has also sought relief of declaration that the registered release deed dated 16.03.1982 bearing No.7480 executed by Hayatbee as null and void and not binding upon the plaintiff and the plaintiff is entitled to get entered his name in the record of right in respect of the suit land.

3. The case of the plaintiff is based on the oral gift stated to have been executed by Khajasab in his favour when he was minor. The said Khajasab was maternal grandfather of the plaintiff and he was the owner of the suit land. The said Khajasab had one son by name Fatru Patel and three daughters by name Zunnubee, Ahmedbee and Bibi. The son of the said Khajasab by name Fatru Patel was murdered before the police action. During the lifetime of the said Khajasab, the said Fatru Patel died leaving behind his wife Rabanbee and daughter by name Hayatbee. The plaintiff is the son of the Ahmedbee and grandson of Khajasab. The said Khajasab, the maternal grandfather of the plaintiff died about five years after the police action. At the time of his death, the mother of the plaintiff by name Ahmedbee along with the plaintiff used to reside with the Khajasab. The said Khajasab, being the maternal grandfather of the plaintiff, out of love and affection and also services rendered by the mother of the plaintiff, had gifted the suit property in favour of the plaintiff along with all other properties situated at Madargi village and Salgar Basanthpur village. The said gift was accepted by the mother of the plaintiff by name Ahmedbee on behalf of the plaintiff, as the plaintiff was minor, under the care and custody of his mother in the month of April, 1950 and on the very same day, in pursuance of the oral gift, possession of the suit property along with other properties have been delivered to the mother of the plaintiff. Since then, the plaintiff is in exclusive possession and in enjoyment of the suit property till he was remanded to jail.

4. The plaintiff was convicted by the Sessions Court, Bidar in a murder case and he was in Central Jail, Kalaburagi upto 13.08.1979. After his release from bail, he started to reside at Hyderabad, as the complainant of the said murder case has threatened the plaintiff to take his life. The plaintiff seven months prior to filing of the suit, came back to Madargi village and made an enquiry about the suit property and he came to know that the defendant, Putlibee is unauthorizedly and illegally cultivating the suit land in his absence. The plaintiff obtained record of rights of the suit property and came to know that the defendant behind back of the plaintiff got entered her name to the suit property on the basis of the release deed alleged to have been executed by Hayatbee D/o Fatru Patel. The said Hayatbee had no right and title over the suit land. Therefore, she cannot execute the said release deed in favour of the defendant in respect of the suit land.

5. The defendant in written statement contended that Khajasab was the owner a