1990 Supreme(MP) 670

IN THE HIGH COURT OF MADHYA PRADESH
K. L. Issrani, J.
Zulieka Bano - Appellant
Vs.
Punjab National Bank - Respondent
M. A. No. 293 of 1986 (J)
Decided On : 16-8-1990

Headnote:(1) Mahomedan Law – gift – declaration by donor – acceptance by doree and possession over gifted property – are essential ingredients.

       (2) Civil Procedure Code, 1908 – O.21, R.58 – objections only to delay execution – having no force – rightly dismissed.

        Short Note

       The objection of the appellant was that her marriage took place with Syed Wazir Ali on 7 – 1 – 1951, in which her 'Mehar' was fixed at Rs. 500/ – . In view of the said ‘Jehar’ the house in dispute, which had been attached by the Bank (respondent No.1) in execution of its decree, was gifted to bet. The said gift (Hiba) was oral. Since the date of Hiba, she claims to be in possession and enjoyment of the house. According to her, there were some small Kachcha rooms in the house also, which had been let •out to the tenants and she was realising rent from them for her livelihood.

       2. Held: According to Mahomedan Law, for proving oral gift, it is necessary to prove the factum of acceptance of delivery of possession and it is also necessary that the name of the donee be mutated in the revenue records. Nothing has been done in this case. The appellant, in her cross – examination, has admitted that at the time when the oral gift was made to her by her husband, they had three sons and three daughters – all living together in the house. There is no proof of exclusive possession of the appellant. She also admits that no information to any department like Municipal Corporation and others was given by her or her husband to mutate her name in the revenue records. She also admits that no such intimation was given to the tenants also. In support of her version, she has examined Sheikh Usman (A.W. 2) but he gives completely different version. He says that the gift was reduced to writing. This witness cannot be believed. Another witness – Abdul Majid (A.W. 3) also admits in cross – examination that no document of Hiba was shown to him nor his signatures were obtained on any document. Those witnesses were not believed by the lower Court. The lower Court was right in doing so.

       3. Even after going through the evidence led by the appellant, the essential ingredients of gift – under the Mahomedan Law, which are essential for the validity of the gift viz. (i) declaration of gift by the doner, (ii) an acceptance of the gift by the donee and (iii) delivery of possession by the doner to the donee, are not amply proved. So, such gift cannot beheld to be valid gift under the Mahomedan Law.

       4. The objections are nothing but to delay the proceedings of the execution of the decree passed in favour of the respondent No.1 as long as in 1978. The objections raised by the appellant have no force and were rightly rejected by the lower Court. Appeal dismissed.