A gift deed executed by a donor without legal title is invalid, and necessary parties must be included in property disputes to ensure resolution.

JUDGMENT :

Gautam Kumar Choudhary, J.

1. This is plaintiffs’ second appeal against the judgment of affirmance by which the plaintiff’s suit has been dismissed.

2. Plaintiff filed the suit for declaration of title over Schedule-A property and for recovery of possession of the suit premises described in Schedule B by evicting the defendants and for declaring plaintiff’s title over the suit property.

3. The plaintiff claims the suit property on the basis of gift deed executed on 01.09.1990 by owner of the property with respect to Schedule A property which is Khapparposh building comprising of five rooms over 2 ½ Katha in the District East Singhbhum detailed in the plaint. Out of the five rooms, plaintiff on the basis of registered deed of gift is in occupation of three rooms whereas the defendants are in possession of two rooms of the said building for which the suit has been brought.

4. Plaintiff thus claims title on the basis of the gift deed whereas the defendants claim title on the basis of the inheritance as they happen to be the heirs of the donor-Shamsher Ali. Defendant nos. 2 and 4 have contested the suit whereas the suit was proceeded ex-parte against defendant no.1.

5. Case of the contesting defendants is that plea of plaintiff being adopted son of Shamsher Ali was not acceptable as there was no provision of adoption under Mohammedan Law. The said gift deed was never executed by Shamsher Ali, as at the said time, he was not in a proper state of mind to have executed his gift. Furthermore, he could have gifted the property by way of gift only of his 1/3^rd share and not the entire property.

6. Plaintiff was residing in the part of the Schedule-A property as licencee and after the death of Shamsher Ali, he became licencee of Jarina Begum (daughter of Shamsher Ali).

7. The defendants had earlier filed Title Suit No.108 of 1997 for eviction of the plaintiff which was dismissed for default.

8. On the basis of the pleadings of the parties, following main issues were framed:-

Issue No.3 Whether the suit is bad for non-joinder and misjoinder of the necessary parties?

Issue No.4 Whether the plaintiff has got the title over the suit property and defendant are in occupation of Schedule B property as a licencee?

9. The learned trial court dismissed the suit by recording the finding in favour of the defendants.

10. The learned appellate court has concurred with the findings of the trial court.

11. The suit is admitted to be heard on the following substantial question of law:-

I. Whether the judgment of the appellate court stands vitiated in the eye of law in view of the law laid down by the Apex Court, reported in 2004(1) SCC Page 581 [Balakrishnan Vs. K. Kamlam & Others]?

II. Whether Shamsher Ali had title in the property to transfer it by gift to the plaintiff Rizvi Khan?

12. It is argued by learned counsel for the appellant in answer to the substantial question of law No. 2 that under Section 142 of the Mulla Mohammadan Law, the father has right to dispose of the entire property without reserving any part of it for his heirs and descendants during his lifetime. The admitted position is that Shamsher Ali has purchased the suit property from Sarju Dhobi as admitted in para 7 of the written statement in the year 1984 and, therefore, there was no impediment in transferring the land by way of gift.

It is further argued that learned Trial Court completely misdirected itself to hold the suit to be non-joinder of necessary parties as TISCO and State have not been impleaded in the suit. In a suit for eviction, the State or TISCO w