JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

1. This appeal has been filed by Bibi Sarjahatan, who has preferred an application under Section 276 of the Indian Succession Act for probate of Will executed by Bibi Sabiran wife of Late Sikandar Ali with respect to Schedule ‘B’ land in her favour.

2. The applicant is the daughter-in-law of executor of Will and Will was executed by registered deed dated 17.01.1997 as her last Will with respect to of Schedule ‘B’ property which was acquired by testator Bibi Sabiran through a sale deed bearing registration no. 5780 dated 26.11.1979 from one Samsuddin Sheikh son of Late Ahmad Sheikh. Opposite party no. 1-Sadar Sheikh is brother of her husband and opposite party no. 2-Mamena Bibi is his wife. Both the parties appeared and contested the probate application, consequently, it was converted into a Title Suit by the learned Court below vide order dated 13.02.2004.

3. It is the case of the opposite party/respondent that applicant in collusion with her husband Badruddin Sheikh set up a woman in place of Bibi Sabiran and got fraudulent deed executed in her favour. At the time of filing of the claim application Sadar Sheikh who happens to be the son of the testator was not made a party and only on getting to know about this case filed a petition for being impleading and was impleaded vide order dated 22.9.2003. As a matter of fact, Bibi Sabiran being very much pleased with the service of Sadar Sheikh (O.P.2) had executed an unregistered deed of gift in his favour on 07.06.1996 in presence of witnesses and the deed was accepted by the donee. Sadar Sheikh was living in the same house, therefore there was no requirement of delivery of possession. Sadar Sheikh for payment of Den Mohar to his wife executed sale-deed No. 2099 dated 02.05.2001 in favour of his wife Mamena Bibi (O.P.). Vide order dated 15.06.2004 Momena Bibi/respondent has also been impleaded in the case.

4. On the basis of pleadings of the parties, the following issues were framed:

(i) Whether the deceased Sabiran Bibi had executed deed of gift on 07.06.1996 in favour of opposite party no. 1-Sadar Sheikh and whether it is valid?

(ii) Whether Will in question is valid one and whether it can be probated?

5. The learned Court below dismissed the application for probate and decided the case in favour of the opposite party/respondent mainly on the following grounds:

(i) That before execution of registered Will on 17.01.1997 in favour of applicant, Bibi Sabiran had executed an unregistered deed of gift on 07.06.1996 in favour of opposite party no. 1-Sadar Sheikh. Under Section 147 of Mohammedan LAW of Mulla, written gift is not required of movable or immovable property and the conditions for valid gift under Section 149 is as follows:

(a) Declaration of gift by the donor.

(b) Acceptance of the gift expressed or inclined by or on behalf of donee.

The possession of opposite party has been admitted by the applicant herself in her evidence. It is also well settled that the deed of gift under Mohammedan Law is not required to be compulsory registered under the Transfer of Property Act.

6. The order of learned Court below has been assailed on the ground that under Section 50 of Registration Act “certain registered documents relating to land to take effect against unregistered documents.” It is submitted that the learned Court below committed gross error by ignoring Exhibit 1 which was the registered deed of Will and only on the basis that the unregistered deed of gift had been executed before the date of execution of the registered Will the probate application has been rejected. It is further contended that there is no evidence on record to suggest that the deed of gift had ever been acted upon which will be evident from Exhibit 2 which is rent receipt in the name of Bibi Sabiran in the year 1998.

7. Reliance has been placed on the following authorities:

(I) Sanjay Kumar Raha vs. Michael Tigga, 2012 SCC Online Jhar 2119 : (2013) 3 AIR Jhar R 581 wherein it has been he