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2023 Supreme(Online)(Chh) 11490
CHHATTISGARH HIGH COURT
Not mentioned, Not mentioned
Salma Begam and others – Appellant
Versus
Mehrunnisha and others – Respondent
Civil Appeal | 1A/2011 | Civil Suit No. 8A/2010
For an oral gift (Hiba) under Mahomedan Law, the essential conditions of declaration, acceptance, and delivery of possession must be satisfied, which was unproven in this case.
Headnote:(A) Civil Procedure Code, 1908 - Section 100 - Mahomedan Law - Hiba (Gift) - Appeal to examine validity of oral gift - The plaintiffs filed for declaration of title and permanent injunction, claiming their share post an alleged oral gift by deceased Abdul Haq to Abdul Rajjak. Courts found the suit was barred by limitation and upheld existence of oral gift. The plaintiffs contended the finding regarding oral gift was perverse, arguing the defendants failed to prove its validity as per Mahomedan Law principles. The court reviewed essential conditions for Hiba, confirming non-fulfillment by defendants regarding evidence of valid gift. (Paras 3, 34, 36)
(B) Limitation Act, 1963 - Applicability in suits for partition - The court asserted that partition suits are accompanied by a continuous cause of action, ruling that the plaintiffs’ claim was not barred by limitation owing to their rights as co-owners. (Paras 35, 36)
Facts of the case:
The appellants, descendants of deceased Abdul Haq, claimed rightful ownership of property based on joint inheritance when defendants allegedly appropriated Abdul Haq's share via oral gift, which the plaintiffs contested as invalid. (Paras 4-6)
Findings of Court:
The court ruled that findings regarding oral gift were unsupported by sufficient evidence, thereby invalidating the claimed gift and allowing the appeal for the plaintiffs’ rightful share. (Paras 34, 36)
Issues: Whether the courts below erred in affirming the existence of an oral gift and if the suit filed by the plaintiffs was barred by limitation? (Paras 3)
Ratio Decidendi: The court emphasized that for a valid Hiba, three essential conditions must be satisfied: declaration by the donor, acceptance by the donee, and delivery of possession, which were not proven by defendants. (Paras 20, 36)
Result: Second appeal allowed.
| Table of Content |
|---|
| 1. filing of second appeal and substantial questions identified. (Para 1 , 2 , 3 , 4) |
| 2. claims of plaintiffs regarding property rights. (Para 5 , 6) |
| 3. defendants' arguments on the validity of the oral gift. (Para 7 , 15 , 17) |
| 4. trial court's issues framed on the dispute. (Para 8 , 9 , 10 , 19) |
| 5. witness testimonies presented in trial. (Para 11 , 12 , 13) |
| 6. conclusion and decision for the appeal. (Para 14 , 35 , 36) |
| 7. legal principles governing gift and their requirements. (Para 18 , 22 , 23) |
| 8. insufficiency of evidence on the defendants' part to prove gift. (Para 26) |
1. This second appeal has been filed by the appellants / plaintiffs under S.100 of the C.P.C. against judgment and decree dated 10.12.2010 passed by Additional District Judge, Bilaspur (C.G.) in Civil Appeal No. 1A / 2011 (Salma Begam and others v. Mehrunnisha and others) affirming the judgment and decree dated 26.10.2010 passed by Fifth Civil Judge Class - II, Bilaspur, District - Bilaspur (C.G.) in Civil Suit No. 8A / 2010.
2. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. 8A / 2010 which was filed for declaration of title and grant of permanent injunction.
3. The instant Second Appeal is admitted for hearing by this Court vide its order dated 24.03.2021 on the following substantial questions of law:
' 1. Whether both the Courts below were justified in holding that Abdul Haq has orally gifted the suit property in favour of Abdul Rajjak by recording a finding perverse to the record?
2. Whether both the Courts below were justified in holding that the suit is barred by limitation by recording a finding perverse to the record?'
4. The brief facts, as reflected from the plaint averments, are that father of plaintiff No. 1 - Late Abdul Haq, maternal grand - father of plaintiff Nos. 2 to 4, father - in - law of defendant No. 1, grand - father of defendant Nos. 2 to 4 - Late Abdul Haq, husband of defendant No. 5 and father of defendant Nos. 6 and 7 - Late Abdul Rajjak are real brothers. Mohammad Siddiqui has 9.15, 9.23 and 18.13 acres of land situated at Village - Khamtarai and two houses are situated at Juni Line Bilaspur. It has been further contended that Mohammad Siddiqui has four sons and four daughters and during his lifetime, he has partitioned the property amongst his children vide partition - deed dated 06.08.1963 and their revenue records have been separated. Abdul Haq and Abdul Rajjak have received 18.13 acres of land in partition, which has been recorded jointly in their names, which is the suit property.
5. It has been further contended that Abdul Haq expired in the year 1987. Plaintiff No. 1 - Salma Begam is wife of Abdul Haq and he was maternal grand - father of plaintiff Nos. 2 to 4. Abdul Haq has one son, who expired. There is cordial love and affection between Abdul Haq and Abdul Rajjak, as such, they have not separated their names from the revenue records and doing agriculture work jointly. Abdul Haq expired in the year 1987 and after his death, his real brother Abdul Rajjak has greed over the suit property and with collusion of second wife of Abdul Haq namely Aysha Khatoon has recorded entire property in his name whereas after death of Abdul Haq, the property should be recorded in names of his legal representatives, this fact was not known to the plaintiffs. Abdul Rajjak has recorded his name in the lands on the pretext of family arrangement. Later on, Inamul Haq expired. Before his death, Inamul Haq has filed revenue appeal before Sub Divisional Officer, Bilaspur arraying Abdul Rajjak and his step - mother Aysha Khatoon as party to this case, which was dismissed on 30.05.1995 by the Sub Divisional Officer on technical ground. The deceased - Inamul Haq has not intimated the facts of dismissal of the appeal to the plaintiffs. Since the plaintiffs are ladies and residing in their matrimonial house, they are not aware about the details of the family properties, but when she has enq
