The court affirmed that undocumented transfers do not establish ownership rights under statutory law, and legal disinheritance of heirs requires proper documentation. Undocumented dispositions like Mehrnama and unestablished gifts were inadequate to deny the plaintiff her share.

ORDER :

ASHISH SHROTI, J.

1. The appellants/defendants have filed the instant appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") challenging the judgment and decree dated 17/03/2010 passed by the First Additional District Judge, Vidisha (M.P.) in Civil Suit No.27-A/2007.

2. The facts which are not disputed between the parties are that property described in para 4 of the plaint (hereinafter referred to as "suit property") initially belonged to one Abdul Rajak. The plaintiff/defendant Nos.1, 2, 4, 5 & 6 are the children of the said Abdul Razak while defendant No.3 was the widow of Abdul Razak. Defendant No.7 is the brother of Late Abdul Razak.

3. The plaintiff had filed the present suit for partition, separate possession and permanent injunction claiming her share in the property of her father. Except defendants No.1 and 2, other defendants were ex-parte before the trial Court. Defendants No.1 and 2 denied the plaintiffs claim inter alia on the ground that their father had given the house in question to their mother i.e. defendant No.3 by way of Mehr vide deed dated 10/03/1994 (Ex.D/1). It is further pleaded by the defendants that defendant No.3 had gifted the suit property to defendant No.1 and 2 vide gift deed dated 15/05/2005 (Ex.D/2). Defendants have further pleaded that the plaintiff, having married against the wish of the father and left the father's house long before, she was divested of her share in the property by Late Abdul Razak. With these pleadings, defendants prayed for dismissal of the suit.

4. Learned trial Court vide impugned judgment and decree has decreed the suit recording a finding that execution of Mehrnama (Ex.D/1) is not proved, gift of the property by defendant No.3 in favour of defendants No.1 and 2 is also not established and the ground of divesting the plaintiff from the property by the father is also not proved. Accordingly, the suit is decreed wherein the plaintiff has been held entitled to 299 Sq.ft. of her share in the property which she is entitled to get by partition, defendants have been directed to deliver possession of her share to the plaintiff.

5. Learned counsel for the appellants/defendants took me through the statements of defendant witnesses as also the finding recorded by the trial Court and submits that the finding recorded by the trial Court are perverse, contrary to the documents and therefore, the same are liable to be set-aside.

6. Per contra, learned counsel for the respondent/plaintiff supported the impugned judgment and decree and prayed for dismissal of the appeal.

7. The pivotal question involved in this appeal is regarding execution of Mehrnama (Ex.D/1) and the execution of the gift deed by defendant No.3 in favour of defendants No.1 and 2 (Ex.D/2).

8. Mehrnama (Ex.D/1) is executed on 10/03/1994 and one Abdul Hamid (DW-6) and Afzal Khan (DW-7) are the attesting witnesses of the said document. By going through the statements of DW-6 & DW-7, it is gathered that they nowhere stated that Abdul Razak signed the Mehrnama in their presence. They have only said that Mehrnama was got prepared somewhere else and it was brought before them and they signed the same. Thus, it cannot be said that the attesting witnesses have proved the execution of this document (Ex.D/1).

9. Further, the conduct of the parties after the execution of Mehrnama is also important. Learned trial Court in paragraphs 8, 9, 10 & 11 have discussed the evidence of the defendant witnesses and have recorded the finding that