A valid gift under Mohammedan Law requires declaration by the donor, acceptance by the donee, and delivery of possession, all of which must be satisfied sequentially.

JUDGMENT :

Heard Mr. A. Roshid, the learned counsel appearing on behalf of the appellants and Mr. M. K. Hussain, the learned counsel appearing on behalf of the respondents.

2. This is an Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) challenging the judgment and decree dated 24.06.2015 passed in Title Appeal No.6/2014 whereby the learned Court of the Civil Judge, Goalpara (herein after referred to as ‘the learned First Appellate Court’) had dismissed the Appeal thereby confirming the judgment and decree dated 10.04.2014 passed by the Court of the learned Munsiff No.1, Goalpara (herein after referred to as ‘the learned Trial Court’) in Title Suit No.114/2010.

3. It is seen from the records that on 02.05.2016, this Court had admitted the instant Appeal by formulating the following substantial question of law:-

Whether the finding of the learned courts below that the “defendant failed to prove oral gift in terms of Section 149 of the Mulla’s Mohammedan Law is perverse?”

4. The question arises in the instant Appeal as to whether the said substantial question of law so formulated is involved in the instant Appeal.

5. For ascertaining the same, this Court would like to first deal with the facts which led to the filing of the instant Appeal.

6. For the purpose of convenience, this Court would refer the parties in the same status as they stood before the learned Trial Court.

7. The plaintiffs who are the respondent Nos.1 & 2 in the instant proceedings had instituted a suit seeking declaration that they have 7/72 shares out of the total properties mentioned in Schedule A, B, C and D to the plaint; for declaration that each of the defendant Nos.1, 2 & 3 will get 7/72 shares out of the total property; for declaration that each of the defendant Nos.4, 5, 6, 8, 9 & 10 is entitled to 7/144 shares; for declaration that the defendant Nos.11, 12 & 13 will jointly get the share of Late Nurul Amin Khan, i.e. 7/72 shares; for preliminary decree of partition; for an order appointing the Deputy Commissioner Goalpara as Commissioner to make partition of the land and property mentioned in Schedule A, B, C and D; for final decree of partition etc.

8. The case of the plaintiffs in short is that one Abdul Latif Khan (since deceased) was the owner and possessor of a plot of land admeasuring 3 kathas 17 lechas standing in four different Pattas and 4 different Dags which were specifically described in Schedule A, Schedule B, Schedule C and Schedule D to the plaint. The said Abdul Latif Khan expired on 31.12.2006 leaving behind two wives, six sons, six daughters. The plaintiff No.1 and the plaintiff No.2 along with the defendant Nos.1, 2 & 3 and Nurul Amin Khan (expired) were the sons of Late Abdul Latif Khan. The defendant Nos.4, 5, 6, 8, 9 & 10 were the daughters of Late Abdul Latif Khan. The defendant Nos.7 & 14 were the wives of Late Abdul Latif Khan. Both the plaintiffs who used to reside outside their hometown and when they came in the month of March, 2008 and asked one of his brothers Late Nurul Amin Khan as regards the shares of their property, the defendants refused to give any share of the land and property to the plaintiffs. The plaintiffs thereupon after making enquiry came to learn in the last part of December, 2008 that the names of the defendants have been illegally recorded in the revenue record without recording the names of the plaintiffs. It is under such circumstances, the plaintiffs had filed a suit seeking the relief as above mentioned.

9. The defendant Nos.1, 2, 4, 5, 6 & 7 jointly filed their written statement. In the said written statement, a plea was taken by the defendants that the entire land under original Patta No.91 Dag No.35, i.e. totaling to 2 kathas 15 lechas was orally gifted to the Defendant Nos.2 (the Schedule B land), the defendant No.1 (Schedule B land) and Late Nurul Amin Khan (Schedule C land) and got delivery of possession. Subsequently, they partitioned the said Dag No.35 by creat