The validity of an oral gift under Mohammedan Law and the effect of mutation on property rights.

The instant appeal under Section 100 of the Code of Civil Procedure 1908, (for short, the Code) is directed against the judgment and decree dated 25.07.2006 passed by the Court of the learned Civil Judge, Barpeta (for the sake of convenience is referred to as “the 1st Appellate Court”) in Title Appeal No.57/2005 whereby the judgment and decree dated 26.08.2005 passed in Title Suit No.31/2003 by the learned Munsiff No.1 Barpeta (for the sake of convenience is referred to as “the learned Trial Court”) was set aside and quashed. This Court vide order dated 10.01.2007 admitted the instant appeal by formulating two substantial questions of law which reads as under:

(1). Whether the ground or/rejection of the mutation can confer title of the property?

(2). Whether the oral gift under Mohammedan Law can be held to be proved when the parties in whose favour the alleged gift was made failed to prove the three golden principles of making oral gift of Mohammedan Law i.e. declaration, acceptance and delivery of possession?

2. For the purpose of deciding as to whether the said substantial questions of law are involved in the instant appeal, this Court finds it relevant to take note of the brief facts which led to the filing of the instant appeal.

3. The appellant herein as the plaintiff instituted a suit being Title Suit No.31/2003, claiming declaration of her share as per the Mohammedan Law in respect to the lands fully described in Schedule A, Schedule B, Schedule C and Schedule D to the plaint as well as for partition and for permanent injunction. The cause of action for which the said suit was filed was that after the judgment and decree passed against the plaintiff by the learned 1st Appellate Court in Title Appeal No.30/1989, which was confirmed by this Court in second appeal being SA No.191/1989, the defendants were trying to dispossess the plaintiff from her possession of the suit land.

4. Pursuant to the filing of the said suit, the defendants collectively filed a written statement wherein the rights of the plaintiff to claim any partition or share in respect to the schedule lands was denied. It was the specific case of the defendants in their written statement that the father of the plaintiff as well as the defendants Nos.1 to 6 gifted 21 bighas 0 kathas 14 lessas of land by oral gift covered by Dag Nos.331, 333, 352, 365, 362, 379, 383 and 775 and, thereupon they had been possessing the said land in equal shares. It was also the specific case of the defendants that in respect to patta No.78, land measuring 27 bighas 0 kathas 1 lessa was also donated by the father of the said defendant Nos.1 to 6 and the plaintiff to his six sons and the said defendants duly accepted the gift and had been in peaceful possession thereof equally distributing amongst themselves. It was also the specific stand that the father of the plaintiff as well as the defendant Nos.1 to 6 purchased 4 kathas of land under Dag No.82 and 2 kathas 3 lessas of land under Dag No.698 of village Kalahbhanga in the name of Late Hatem Ali, which was the share of the plaintiff and the said land is in possession of the plaintiff. It was also stated that the plaintiff had no right title and interest over the suit lands. Apart from that, it was also the stand of the defendants that the plaintiff filed as many as five applications seeking mutation of her name in respect to the suit lands which were rejected by the learned SDC Barnagar Circle by passing an order dated 23.02.1989 and thereupon the plaintiff did not file any appeal against the said order.

5. Pursuant to the pleadings, the learned Trial Court framed as many as six issues. The issue No.4 relates to as to whether the plaintiff has right, title and interest by way of inheritance to the extent of her share as per the Mohammedan Law in respect to the lands as described in the Schedules to the plaint. The learned Trial Court while deciding the said issue duly took into account the evidence of the defendant witness No.1 tha