Petitioner, who claims to have obtained title and possession over a piece of land through an oral gift from his father, has come up by challenging the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for short), initiated against that particular property along with the other secured assets of the so-called 'donor'. It is the case of the petitioner that he and his father, being Muslims governed by the provisions of Muslim Law, are entitled to maintain a proper conveyance of the property through an oral gift.

2. The petitioner claims that the property in question was gifted to him by his father through an oral gift and thereafter, he put up a building in that piece of land, wherein he is residing still now. According to him, when the gift had taken effect prior to the so-called mortgage made by his father before the bank, that piece of property could not have been treated as a 'secured asset' enabling the bank to have recourse to SARFAESI proceedings against it.

3. According to the petitioner, the court below ought to have decided the said question when it was specifically raised by him before the court below prior to the passing of an order for taking possession of the property. The learned counsel for the petitioner has argued that when such a question was mooted before the court below, it was incumbent on the court below to decide the said question first, and that the observation made by the court below that the court below could not go into that question, is not well founded.

4. Per contra, the learned counsel for respondents 1 and 2 has contended that the very same questions raised by the petitioner in the matter pending before the court below were taken up by the petitioner before the competent civil court twice, unsuccessfully. It is contended that the petitioner had filed OS No.154/2014 against his father before the Munsiff's Court, Tirur for an injunction simplicitor against alienation of the property. The father of the petitioner, who was the defendant contested the suit, and the same was dismissed. Thereafter, he had preferred OS No.185/2014 before the Munsiff's Court, Tirur against his father and the bank for the declaration of his title over the property and for the consequential relief of injunction. The said suit also has been dismissed for default. According to the learned counsel for respondents 1 and 2, on account of the dismissal of OS No.154/2014 and OS No.185/2014, the petitioner is estopped from forwarding such claims again in the matter.

5. Learned counsel for respondents 1 and 2 has pointed out that the father of the petitioner had specifically contended that there was no such oral gift as claimed by the petitioner. If the present stand taken by the learned counsel for the petitioner is accepted and adopted, it will be as good as permitting all the members of the Muslim community to take up the very same contention when matters relating to SARFAESI Act come up. It is true that as per Muslim law, an oral gift is valid. In case where an oral gift is there coupled with delivery of possession, it will be a valid gift, provided the parties are Muslims of sound mind, who have the capacity to contract and not otherwise disabled. At the same time, the burden to prove such a valid oral gift always be heavily on the donee, especially when the donor comes up and says that there was no such oral gift at all. In such matter, the same is a question of fact that has to be proved properly before a competent civil court. It is a fact that OS No.185/2014 was filed by the petitioner before a competent civil court against his father as well as the bank for declaration of title over the property based on the very same claim of an oral gift. The suit has been dismissed for default. According to the learned counsel for the petitioner, the petitioner is intending to file an application for getting the suit restored.

6. The main argumen