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2024 Supreme(Online)(Bom) 710
BOMBAY HIGH COURT
SANDIPKUMAR C. MORE, J
KASIM @ BABUMIYA ABDUL WAHED. – Appellant
Versus
ABDUL MAJID MAHEBOOB U/G MAHEBOOBSAB. – Respondent
SA
Ms. Vishakha Patil h/f Mr. S. B. Talekar, Advocate for the Appellant; Mr. M. D. Narwadkar h/f Mr. M. V. Deshpande, Advocate for the Respondent.
A gift under Mohammedan Law does not require registration if the essential elements of declaration, acceptance, and possession are established.
Headnote:
[Gift] - [Property Dispute] - [Registration Act, Mohammedan Law] - [The court examined the validity of a gift deed under Mohammedan Law, emphasizing that registration is not mandatory for a valid gift. The court upheld the sale deed as valid, dismissing the defendant's claims based on the gift deed due to lack of evidence and failure to prove essential elements.]
Fact of the Case:
The plaintiff claimed ownership of a house based on a registered sale deed, while the defendant asserted ownership through a gift deed. The plaintiff sought possession after being dispossessed by the defendant.
Finding of the Court:
The court found that the plaintiff proved ownership through the sale deed, while the defendant failed to substantiate the validity of the gift deed due to lack of evidence and the absence of the original owner as a witness.
Issues: Whether the courts below failed to consider the validity of the gift deed under Mohammedan Law and the necessity of registration.
Ratio Decidendi: The court held that a gift under Mohammedan Law does not require registration and must satisfy three conditions: declaration, acceptance, and delivery of possession. The defendant failed to prove these elements.
Final Decision: The appeal was dismissed.
JUDGEMENT
1.The appellant herein, who is the original defendant, has challenged the concurrent findings of both the courts below namely the learned trial court i.e. Civil Judge (Junior Division), Mukhed, in Regular Civil Suit No.17 of 1985 and the learned first appellate 2024:BHC-AUG:14954 court i.e. Additional District Judge, Biloli in Regular Civil Appeal No.63 of 1993 (Old Regular Civil Appeal No.230 of 1987).
2.The respondent / original plaintiff filed Regular Civil Suit No.17 of 1985 for declaring himself as a owner of the suit property i.e. House No.146/1 in Ward No.5 at Mukhed, District : Nanded and also for restraining the appellant / defendant from obstructing his possession. However, during pendency, it is claimed by the plaintiff that he lost possession of the suit house due to wrongful act of the appellant / defendant and therefore, he sought possession of the suit house. It was the contention of the plaintiff that one Wahedbee Mohammad Ashraf was the owner of the suit house and she sold the same to him for a consideration of Rs.6,000/- and also executed a registered sale deed dated 09/03/1984 in his favour by delivering the possession of the suit house. According to him, the defendant has no concern with the suit property but in order to grab his property, the defendant firstly obstructed him and lastly dispossessed him from the suit house on 17/07/1985. Thus, he was constrained to file the aforesaid suit.
3.On the contrary, the appellant / defendant resisted the suit under his written statement Exhibit-16 and came with the case that Wahedbee, the earstwhile owner of the suit house, had in fact executed a gift deed dated 04/02/1984 in favour of himself and his wife and also delivered the possession of the suit house to them and therefore, on the basis of said gift-deed, they are possessing the suit house. As such, the appellant / defendant had prayed for dismissal of the suit.
4.The learned trial court after conducting the trial, declared the respondent / plaintiff as a owner of the suit house on the basis of sale deed dated 09/03/1984 and discarded the gift-deed dated 04/02/1984 allegedly executed by Wahedbee in favour of the defendant. Feeling aggrieved with the judgment and decree dated 30/09/1987 of the learned trial court in Regular Civil Suit No.17 of 1985, the present appellant / defendant had preferred Regular Civil Appeal No.63 of 1993 but the same was dismissed by the learned first appellate court under judgment and order dated 04/02/1995.
5.The learned counsel for the appellant / defendant vehemently argued that both the learned courts below have failed to consider the concept of gift deed under Mohammedan Law and wrongly held that it was required to be registered. According to her, only three aspects namely offer, acceptance and possession are to be established in case of a valid gift under Muslim Law. She pointed out that the learned trial court did not frame any issue regarding the aforesaid ingredients. Further, according to her, the respondent / plaintiff had also not examined Wahedbee, who had executed the Will and merely produced on record her affidavit sworn before the court wherein she had refused the fact of executing Will in favour of the present appellant / defendant. She submitted that unless Wahedbee was subjected to cross-
- examination in respect of contents of her affidavit, it was not admissible in evidence. She also contended that the respondent / plaintiff did not discharge the burden to prove that the Will was not validly executed. She also relied on following judgments.
- A)Hafeeza Bibi and others vs. Shaikh Farid (dead) by LRS. And others, (2011) 5 SCC 654;
- B)Rasheeda Khatoon (dead) through Legal Representatives vs. Ashiq Ali s/o Lieutenant Abu Mohd. (dead) through legal representatives, (2014) 10 SCC 459;
- C)Union of India and others vs. Vasavi Cooperative Housing Society Limited and others, (2014) 2 SCC 269;
- D)Subhra Mukherjee and another vs. Bharat Coking Coal Ltd., and others, (2000) 3 SCC 3
