Failure to prove a gift does not preclude inheritance claims under Mohammedan Law; however, substantial questions of law must arise from earlier proceedings.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mr. D. Goswami, the learned counsel appearing on behalf of the appellant and Mr. A. Ikbal, 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 15.07.2024 passed by the learned Court of the Civil Judge, (Senior Division) Kamrup, Amingaon in Title Appeal No.39/2018 whereby the appeal was allowed thereby setting aside the judgment and decree dated 10.08.2018 passed in Title Suit No.384/2014 by the learned Munsiff, Kamrup at Amingaon.

3. The learned counsel for the appellant submitted that though there are various questions of law proposed in the memo of appeal in terms with Section 100 (3) of the Code, but he would insist upon the question of law at Serial No.1 to be framed as substantial question of law in the instant appeal and the said is reproduced herein under:

“1. Whether on failure of plaintiff to prove her Gift of suit land made by her father necessarily preclude the plaintiff from getting mutation on the strength of her right of inheritance over the ancestral property (which is not partitioned among legal heirs of the ancestor by metes and bounds?”

4. The question therefore arises before this Court while taking up the instant appeal at the stage of Order XLI Rule 11 of the Code as to whether the proposed question of law can at all be formulated as a substantial question of law involved in the instant appeal.

5. From the materials on record, it is seen that the learned First Appellate Court while allowing the appeal filed by the defendants in the suit observed that the plaintiff who is the appellant herein could not have acquired right, title and interest over the Schedule-A land on the basis of Gift dated 15.01.1982 on the ground that the donor i.e. the father of the plaintiff having expired in the year 1973. The learned First Appellate Court further observed that the gift on the basis of which the plaintiff got mutation over the Schedule-A land having not been proved, the mutation so granted in respect of the Schedule-A land in favour of the plaintiff was required to be interfered with.

6. It is also relevant to take note of that the defendants in the suit who are the brothers of the plaintiff claimed declaration of their right, title and interest on the basis of the amicable partition which was not agreed to by the learned First Appellate Court and only the mutation order dated 23.03.2012 was interfered with. In this perspective, the learned counsel for the appellant therefore submitted that as the learned First Appellate Court had come to a finding that there was no valid gift in favour of the plaintiff and also did not come to a finding that there was an amicable partition, the plaintiff therefore had a right over the suit land in terms with the Mohammedan Law of Succession and as such the said question of law has been proposed.

7. Mr. A. Ikbal, the learned counsel appearing on behalf of the respondents submitted that the respondents herein have not preferred appeal against the dismissal of the part of the counter claim insofar as their right, title and interest over the suit land on the basis of an amicable partition and the appellant is always at liberty to file proceedings seeking partition, if so advised.

8. This Court had perused the materials on record which includes the pleadings of both the parties, the issues so framed, the findings so arrived at by both the learned Trial Court as well as the learned First Appellate Court. It is the opinion of this Court that the proposed q