Point of Law: Though the concept of joint family property is not recognized, the concept of commensality is a circumstance which can have its own importance while considering the case of gift

JUDGMENT :

This is a second appeal by the original defendant no. 1 who is aggrieved by the concurrent findings of the courts below.

2. Respondents nos. 1 and 2 who died during pendency of the appeal before the lower appellate court were the original plaintiffs nos. 1 and 2 and the respondent no. 3 who was the plaintiff no. 3. They claimed separation of their shares in the properties left behind by their common ancestor - Gulam Sarvar who was husband of the respondent no. 1 and father of the respondents no. 2, 3, appellant and respondent no. 9 who was the original defendant no. 2.

3. Shortly stated the facts leading to the filing of this second appeal, are to following effect :

(a) Gulam Sarvar, Mohammed Sharif and Mohammed Khaja were the three brothers belonging to Sunni Muslim Community and governed by Hanafi law. Mohammed Sharif and Mohammed Khaja died 5 years and 30 years prior to the suit which was filed in 2008 leaving behind no other immediate heirs. Averring that all the suit properties were acquired and left behind by Gulam Sarvar alone, his widow Niyamatbi (PW1), daughter – Nasima Begum and son Gulam Sattar filed the suit against his other two sons Gulam Magdum – appellant and Gulam Dastgir. It was averred that couple of suit properties were purchased by Gulam Sarvar in their names when they were minors.

(b) Gulam Magdum and Gulam Dastgir contested the suit. They admitted the relationship but denied rest of the averments. They contended that the couple of properties which were purchased in their names were actually purchased by Mohammed Sharif and he was the exclusive owner and after his demise they became the owners. They further averred that Mohammed Sharif and Mohammed Khaja had gifted one of the suit properties and a house respectively to them. Thus, they contended that they were the owners of the suit properties and Niyamatbi, Nasima Begum and Gulam Sattar have no right or share in the suit properties.

(c) They further contended that there were few other landed properties which were not included in the suit and the suit was bad for non-inclusion of those properties.

(d) The plaint was thereafter amended and all those lands which were earlier excluded were included in the array of suit properties.

(e) It is also necessary to note that in the plaint it was specifically averred that Gulam Sarvar had two wives. One Gulam Jilani was his son from the second wife. During his lifetime, Gulam Sarvar allotted 40 Are portion from one of the suit properties to this Gulam Jilani who was no more and his widow and issues were arrayed as defendants nos. 3 to 7 (respondent nos. 4 to 8).

(f) Both the sides led evidence on the issues framed by the trial court. The trial court decreed the suit, refuted the claim of Gulam Magdum and Gulam Dastgir of they being the exclusive owners of the suit properties. It also refuted their stand that the claim in the plaint was hit by the provisions of Benami Transactions (Prohibition) Act, 1988. It was thus held that couple of landed properties which were purchased in their name were actually purchased by Gulam Sarvar and not by Mohammed Sharif. It also refuted the theory of gift propounded by them. It then worked out the shares of all the five persons Niyamatbi, Nasima Begum and these three brothers – Gulam Sattar, Gulam Magdum and Gulam Dastgir as 1/8th, 1/7th, 2/7th and 2/7th each, respectively.

(g) Being aggrieved and dis-satisfied with the decree of the trial court, Gulam Mohammed and Gulam Dastgir preferred appeal before the District Court which concurred with all the conclusions drawn by the trial court and dismissed the appeal. Hence this second appeal.

4. I have heard the learned advocates of both the sides on the point of admission.

5. Mrs. Ansari would submit that both the courts below have miserably failed to consider the fact that the parties are Mohammedan and unlike Hindus, the concept of joint family property is alien to Mohammedan law. The courts below have proceeded to treat the suit as on