The main legal point established in the judgment is the requirement of delivery of possession for a valid gift under Mohammedan Law and the application of the limitation period under the Limitation Act in determining the validity of the gift deed.

JUDGMENT :

Sanju Panda, J. - This First Appeal is directed against the Judgment and decree dated 27.3.1982 and 5.4.1982 respectively passed by the learned Subordinate Judge, Bhadrak in O.S. No. 112 of 1980-1.

2. The Appellant-Plaintiff filed the suit for declaration that a registered gift deed dated 21.2.1973 (Ext.H) executed by his father Hazi Sk. Abdullah in favour of Defendant No. 1 was illegal, void, inoperative and not binding on the Plaintiff and for partition of the properties comprised in the said gift deed and for allotment of a half share therefrom in favour of the Plaintiff and for other reliefs.

3. The undisputed facts of the case are as follows:

Plaintiff and Defendant No. 1, Sk. Abdul Zabar and Sk. Abdul Razak respectively were the sons of Hazi Sk. Abdullah. Sk. Abdullah purchased disputed land from one Sk. Abdul Aziz Ahmed on 11.10.1958 and constructed some house thereon. In the year 1975, Sk. Abdullah effected a partition of his other properties between the Plaintiff, and Defendant No. 1 by a registered deed of partition dated 29.3.1975 (Ext.3) and the parties possessed their respective share separately from one another. The present disputed property was not included in that partition. Sk. Abdullah died on 2.7.1975. The present disputed property are some rooms which were let out to the tenants. Defendant No. 1 was collecting the house rent from the tenants on behalf of their father and after the death of their father, as he did not give any share to the Plaintiff out of the rent received, the dispute arose.

4. The Plaintiff further pleaded that he used to go out from home very often in connection with his cattle trade and Defendant No. 1 used to assist Sk. Abdullah in cultivation affair and management of the gharabari. The Plaintiff used to contribute for the maintenance of the family from his income out of the cattle trade. Sk. Abdullah used to receive the fund from the Plaintiff and such combined fund were used for construction of house on the suit land which was let out to the tenants and prior to 1973 Defendant No. 1, as the agent of Sk. Abdullah used to collect rent from the said tenants. In the year 1973, Sk. Abdullah fell ill for about six months and found it difficult to collect the rent from the tenanted house. Therefore, Defendant No. 1 proposed to Sk. Abdullah to execute a power of attorney in his favour, so that he would be in a position to collect the house rent from the tenants. As such, Defendant No. 1 brought his old and sick father to the Sub-Registrar's office on 21.2.1973, got a document scribed by his own Moharir and got the deed executed with the understanding that the document was a power-of-attorney and the Plaintiff being away from home had no knowledge about the said transaction. After the death of Sk. Abdullah,as disputes arose regarding distribution of house rent between the Plaintiff and Defendant No. 1, the Plaintiff requested Defendant No. 1 on 17.8.1980 for an amicable partition of the remaining properties but Defendant No. 1 refused him a share on the ground that Sk. Abdullah had gifted away the suit property to him. He also showed him the gift deed. The Plaintiff took a copy of the said gift deed (Ext.H), enquired from others and learnt that Defendant No. 1 had obtained the gift deed from his father keeping him in dark about the nature and contents of the document, at the time when the old father was not physically and mentally fit due to old age and illness. Sk. Abdullah was almost illiterate and he knew only signing of his name and the gift deed was obtained by fraud. Therefore, the said deed was invalid and the Plaintiff was entitled to half share in the said property. In April, 1975 there was a dispute between Sk. Abdullah and Abdul Aziz Ahmed with regard to the suit land and it was settled by the intervention of some gentlemen and a Bibad Bhanjan Patra (Ext.1) was executed by the parties and in the said document Sk. Abdullah retained his ownership over the suit land. Therefore,