The main legal point established in the judgment is the application of Muslim Law regarding the validity of oral gift (Hiba) and the key legal provisions under Muslim Law for a valid gift.

1. Heard on admission.

2. This second appeal under Section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 30-11-2005 passed by the Additional District Judge, Mungeli in Civil Appeal No. 12-A/2005 whereby the appeal preferred by the appellants against the judgment and decree dated 21-9-2004 dismissing the Civil Suit No. 7-A/1988 passed by the Trial Court has been dismissed.

(The parties hereinafter shall be referred to as per their description before the Trial Court.)

3. Briefly stated the case of the plaintiff is that the suit land described in Schedules A and B of the plaint was ancestral property of late Gafur Ali. It was never partitioned. The widow of Gafur Ali is an old lady and was incapable of taking any decision. Gafur Ali died issueless. The defendant does not belong to the family of the plaintiffs and late Gafur Ali never made any gift with respect to 2.15 acres of land. The gift deed dated 18-7-1984 is fake. Gafur Ali was suffering from paralysis in the year 1983-84. Gafur Ali never made oral declaration about gifting the suit land to the defendant and the defendant has illegally got his name recorded over the suit land. Khatija Begum has also died in the year 1989 and they are her successors. Though Shakira Begum - the widow of Maksood Ali was not inclined that her name should be added, since her name has not been included as plaintiff, nevertheless she reposes full confidence on the plaintiffs and with these pleadings, a declaration has been sought that the plaintiffs and the defendant No. 3 are title holders and possessors of the suit property.

4. The defendant No. 1 in his written statement denied the averments of the plaint and stated that the disputed land was the exclusive property of Gafur Ali who obtained the same in a partition effected by Late Abdul Ali in his life time amongst his brothers and since then, all the four brothers were in possession over the respective shares and the land was recorded in the revenue papers separately. It was further averred that late Gafur Ali vide oral Hiba dated 1st July, 1984 had donated 2.15 acres of land from the suit land to the defendant No. 1 and he further executed a memorandum of gift dated 18-7-1984 in favour of defendant No. 1. He was mentally active. Though he suffered paralytic attack in the year 1985 but thereafter he was healthy, and the plaintiffs are not in possession over the suit land. In fact, from the date of Hibanama, the defendant No. 1 is in possession. There is no cause of action in favour of the plaintiffs.

5. On the basis of the pleadings of the respective parties, issues were framed and after recording the statements of witnesses from both the side, the Trial Court dismissed the suit with a finding that the suit property was not ancestral property of Gafur Ali and Shakur Ali. It was, in fact, the property of Gafur Ali alone who donated 2.15 acres from the suit land to the defendant No. 1 and after the death of Khatija Begum, Makbool Ali Khan was not a necessary party and accordingly, the suit was dismissed. The appeal preferred by the plaintiff has also been dismissed by the impugned judgment and decree, hence this appeal.

6. Learned Counsel for the appellants submits that both the Courts below erred by not applying Muslim Law regarding the Gift (Hiba). The fact that Gafur Ali suffered paralytic stroke two years before his death on 23-8-1985 and as a result of which he had become sick and paralysed and was not competent to exercise free discretion of making oral gift, has been ignored by both the Courts below, though the defendant No. 1 has admitted that he suffered paralytic stroke and was sick. It is argued that all the ingredients of Hiba have not been established by leading cogent evidence by the defendant No. 1 and in absence of it, oral Hiba could not be given effect to and on these arguments, it is contended that following substantial questions of law arise for adjudication of this appeal:

(i) Whet