The main legal point established in the judgment is the requirement to prove the essential ingredients of a valid Hiba under the Mahomedan Law, the absence of a prescribed period for filing a suit for partition, and the entitlement of co-sharers to seek partition.

JUDGMENT :

1. This second appeal has been filed by the appellants/plaintiffs under Section 100 of the C.P.C. against judgment and decree dated 30.01.2012 passed by Additional District Judge, Bilaspur (C.G.) in Civil Appeal No. 1A/2011 (Salma Begam & others Vs. Mehrunnisha & others) affirming the judgment and decree dated 26.10.2010 passed by Fifth Civil Judge Class-II, Bilaspur, District- Bilaspur (C.G.) in Civil Suit No. 8A/2010.

2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 8A/2010 which was filed for declaration of title and grant of permanent injunction.

3. The instant Second Appeal is admitted for hearing by this Court vide its order dated 24.03.2021 on the following substantial questions of law:-

“1. Whether both the Courts below were justified in holding that Abdul Haq has orally gifted the suit property in favour of Abdul Rajjak by recording a finding perverse to the record?

2. Whether both the Courts below were justified in holding that the suit is barred by limitation by recording a finding perverse to the record?”

4. The brief facts, as reflected from the plaint averments, are that father of plaintiff No. 1-Late Abdul Haq, maternal grand-father of plaintiffs No. 2 to 4, father-in-law of defendant No. 1, grandfather of defendants No. 2 to 4- Late Abdul Haq, husband of defendant No. 5 and father of defendants No. 6 & 7- Late Abdul Rajjak are real brothers. Mohammad Siddiqui has 9.15, 9.23 & 18.13 acres of land situated at Village-Khamtarai and two houses are situated at Juni Line Bilaspur. It has been further contended that Mohammad Siddiqui has four sons and four daughters and during his lifetime, he has partitioned the property amongst his children vide partition-deed dated 06.08.1963 and their revenue records have been separated. Abdul Haq & Abdul Rajjak have received 18.13 acres of land in partition, which has been recorded jointly in their names, which is the suit property.

5. It has been further contended that Abdul Haq expired in the year 1987. Plaintiff No. 1- Salma Begam is wife of Abdul Haq and he was maternal grand-father of plaintiffs No. 2 to 4. Abdul Haq has one son, who expired. There is cordial love and affection between Abdul Haq & Abdul Rajjak, as such, they have not separated their names from the revenue records and doing agriculture work jointly. Abdul Haq expired in the year 1987 and after his death, his real brother Abdul Rajjak has greed over the suit property and with collusion of second wife of Abdul Haq namely Aysha Khatoon has recorded entire property in his name whereas after death of Abdul Haq, the property should be recorded in names of his legal representatives, this fact was not known to the plaintiffs. Abdul Rajjak has recorded his name in the lands on the pretext of family arrangement. Later on, Inamul Haq expired. Before his death, Inamul Haq has filed revenue appeal before Sub Divisional Officer, Bilaspur arraying Abdul Rajjak & his step-mother Aysha Khatoon as party to this case, which was dismissed on 30.05.1995 by the Sub Divisional Officer on technical ground. The deceased- Inamul Haq has not intimated the facts of dismissal of the appeal to the plaintiffs. Since the plaintiffs are ladies and residing in their matrimonial house, they are not aware about the details of the family properties, but when she has enquired about it, the defendants have started treating rudely with them, which has necessitated them to file civil suit for partition of the suit property.

6. It has been further contended that the plaintiffs have never given up their right and since the defendants have denied their right, the have filed a civil suit for declaration of title of one half share of the suit property as mentioned in Schedule-A of the plaint. It has been further contended that the cause of action arose in the month of October, 2008 when the defendants have started misbehaving with them on questioning about their rights towards the sui