IMPORTANT POINT
A valid gift under Mohammedan Law requires declaration, acceptance, and delivery of possession, all of which must be sequentially satisfied.

JUDGMENT :

Heard Mr. J. H. Saikia, the learned counsel appearing on behalf of the Appellant and Mr. P. Choudhury, the learned counsel appearing on behalf of the Respondents.

2. 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 11.12.2009 passed by the learned District Judge, Nalbari (hereinafter referred to as ‘the learned First Appellate Court’) in Title Appeal No.13/2007 whereby the judgment and decree dated 18.06.2007 passed by the learned Civil Judge (Senior Division) Nalbari (hereinafter referred to as ‘the learned Trial Court’) in Title Suit No.5/2024 was reversed.

3. It is seen from the records of the instant proceedings that vide an order dated 02.06.2010, the instant appeal was admitted on the following substantial question of law:

“Whether Exts. Ka, Kha and Cha gift deeds have been proved, as required under Mahamedan Law?”

4. To adjudicate as to whether the said substantial question of law is involved in the instant appeal, this Court finds it relevant to take note of the facts which led to the filing of the instant appeal.

5. One Adarsha Sheikh (since deceased) was the father of the plaintiff as well as the defendant No.7. The defendant Nos. 1 to 6 are the sons of the defendant No.7.

6. The plaintiff was recruited under the Assam Police and it is averred in the plaint that in the year 1964, when the plaintiff’s marriage was solemnized, his father asked him to build the dwelling house over the lands covered by Dag Nos. 670, 669, 667 and 671 as convenient to the plaintiff and the defendant No.7. Thereupon the plaintiff and the Defendant No.7 have been residing over the said plot of land. It is stated by the plaintiff that there was no written partition between the plaintiff and the defendant No.7 and the land which have been most specifically described in the Schedules to the plaint was distributed as per verbal partition between the plaintiff and the defendant No.7 and both jointly paid the revenue. On account of his service, the plaintiff had to stay in various places, but his family remained at home. The defendant No.7 cultivated the cultivable land of the plaintiff and the share of crops had been given to the plaintiff. In the year 1999, the plaintiff retired from service and since then, has been residing at his own residence situated over the suit lands. The basti land and the cultivable land was distributed equally between the plaintiff and the defendant No.7 as per the direction of their father in the year 1964 and the plaintiff averred in the plaint that his share fell in Schedule-Kha and Schedule-Ga. The plaintiff has been residing over the land of Schedule-Ga by constructing a dwelling house.

7. On 22.07.2001, the plaintiff could come to learn that his portion of land at Schedule-Kha was mutated in the name of the sons of the defendant No.7 on different dates by way of gift. The plaintiff being surprised, had asked his father about the gift which his father denied of gifting any land to anybody. It was further stated in the plaint that the defendant No.7 restrained the plaintiff from questioning his father about the matter and tactfully confined his father from the plaintiff. The plaintiff further alleged that the defendant No.7 in collusion with the defendant Nos. 8 to 13, executed the Gift Deeds described in the Scheduled-Gha against the whole land of Schedule-Ka without the knowledge and information of his father taking advantage of his illness. The plaintiff, on coming to learn about the conspiracy hatched by the defendant No.7, filed a case before the Circle Officer against the mutation made in favour of the Defendant Nos. 1 to 6 which was registered as Misc. Case No.1-03. The Circle Officer, after considering all the facts, vide an order dated 17.07.2003, cancelled the mutation in favour of the defendant Nos. 1 to 6.

8. The father of the plaintiff expired