IMPORTANT POINT
Consent Decree--Setting aside of--Oral gift by muslim--Consent decree by 'R' in favour of his grandsons excluding his own sons on basis of valid oral gift--Mere old age of 'R' would not invalidate judgment and decree suffered by him.

L.N. Mittal, J. (Oral).:- This is second appeal by plaintiff-appellants, who have been unsuccessful in both the courts below.

2. Plaintiffs filed suit challenging consent judgment and decree dated 27.09.1997 suffered by Rashid (since deceased) in favour of defendants no.3 to 8 i.e. respondents no.7 to 12. The plaintiffs also sought declaration that plaintiffs no.1 and 2 are owners in possession of the suit land to the extent of 1/5th share each and plaintiffs no.3 to 8 are owners in possession of the suit land to the extent of 1/5th share.

3. Rashid was said to be owner of the suit land. He had five sons i.e. plaintiffs no.1 and 2, defendants no.1 and 2 and Maksood (since deceased). Plaintiffs no.3 to 8 are sons of said Maksood. Defendant no.1 has also since died and is now represented by respondents no.1 to 5 as his legal representatives. The plaintiffs alleged that on the death of Rashid, all his five sons (including branch of pre-deceased son of Maksood), got 1/5th share each in the suit land and the judgment and decree dated 27.09.1997 in favour of defendants no.3 to 8 passed against Rashid is illegal and null and void. It was alleged that the said decree was obtained by fraud.

4. Defendants contested the suit and inter alia pleaded that Rashid resided with the defendants, who had been rendering services to him, whereas plaintiffs had shifted to Uttar Pradesh after selling the ancestral land of Rashid in Village Bhilpura. It was also pleaded that the suit land was purchased in the name of Rashid by funds provided by the defendants. Defendants no.3 to 8 are sons of defendants no.1 and 2. The judgment and decree dated 27.09.1997 suffered by Rashid are legal and valid. Various other pleas were also raised.

5. Learned Additional Civil Judge (Senior Division), Jagadhri, vide judgment and decree dated 09.02.2007, dismissed the suit of the plaintiffs. First appeal filed by the plaintiffs has also been dismissed by learned Additional District Judge, Yamuna Nagar at Jagadhri, vide judgment and decree dated 15.01.2010. Feeling aggrieved, the instant second appeal has been preferred by the plaintiffs.

6. I have heard learned counsel for the appellants and perused the case file.

7. At the outset, it has to be noticed that pleadings of the suit, in which consent judgment and decree dated 27.09.1997 were passed, were not produced in evidence by the plaintiffs. In the absence thereof, it cannot be said that the said judgment and decree are illegal and null and void.

8. Learned counsel for the appellants contended that judgment and decree dated 27.09.1997 were produced in evidence as Ex.P-1 and Ex.P-2 and perusal of judgment Ex.P-1 reveals that the decree was suffered on the basis of oral gift allegedly made by Rashid in favour of defendants no.3 to 8. It was contended that although a Muslim can make oral gift, yet for a valid oral gift by a Muslim, three conditions have to be satisfied, namely :-

(i) Declaration of gift by the donor;

(ii) Acceptance of the gift by the donee; and

(iii) Delivery of possession of subject matter of gift to the donee.

9. It was contended that in the instant case, it is not proved that there was declaration of gift by the donor Rashid and therefore, the alleged gift was not valid. Reliance in support of this contention has been placed on a judgment of Andhra Pradesh High Court in the case of Rattan Lal Bora and others vs. Mohd. Nabiuddin reported as AIR 1984 Andhra Pradesh 344.

10. I have carefully considered the aforesaid contention, but find no force therein.

11. As noticed at the outset, pleadings of the suit, in which consent judgment and decree dated 27.09.1997 were passed, were not placed on the record. In the absence thereof, it cannot be said that conditions necessary for valid oral gift by a Muslim, as stated herein above, were not satisfied in the instant case. In addition thereto, perusal of judgment Ex.P-1 would reveal that the defendants no.3 to 8 herein, who filed the said suit, pleaded t