ORAL JUDGMENT

With the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal.

2. Issue rule, returnable forthwith. Mr Jainish P. Shah, learned advocate waives service of notice of rule on behalf of the respondent no.1. Though served, none appear for respondent nos.2 and 3.

3. Captioned Civil Revision Application, has been filed cshallenging the judgment and order dated 03.10.2019 passed by the 11th Additional Senior Civil Judge, Jamnagar in Regular Civil Suit No. 130 of 2019 whereby the application Exh. 13 seeking rejection of the plaint, has not been accepted.

4. Tersely stated are the facts:

4.1 The respondent no. 1 has instituted a Regular Civil Suit No. 130 of 2019 (hereinafter referred to as “the suit”) seeking declaration, cancellation of the gift deed and permanent injunction against the petitioners and the respondent nos. 2 and 3, that is, the authorities with respect to revenue survey no. 154/ paiki 3, new survey no. 355 admeasuring 8103 sq. mts. (hereinafter referred to as "the land in question"). Registered gift deed dated 24.07.2018 has been executed by the petitioner no. 1 in favour of the petitioner nos. 2 to 4 during his lifetime. Being aggrieved the respondent no. 1 i.e. the original plaintiff has filed the suit challenging the gift deed on the ground that land in question in the hands of the petitioner no. 1 being an ancestral property, he has a share in it.

4.2 In the suit, the petitioners filed an application Exh. 13 seeking rejection of plaint, inter alia, on the ground of bar of provisions of Mahomedan Law so also section 80 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). Application Exh. 13 was heard and the learned 11th Additional Senior Civil Judge rejected it by passing an order dated 03.10.2019 and hence, the captioned revision application.

5. Mr Jenil Shah, learned Advocate appearing for the petitioners, has submitted that the land in question has been gifted as per the Mahomedan Law. There is no concept of ancestral property and a Muslim can gift his property as per his will. The birth right of an heir is not recognized under the principles of Mahomedan Law and the right of an heir comes into existence for the first time after the death of the ancestor. Also, the trial Court, ought to have considered that under the provisions of the Mahomedan Law a father can execute a gift deed in respect of the whole of the property and not one third share. Besides, the plaint fails to disclose any cause of action and hence, it ought to have been rejected.

5.1 It is submitted that since there is no concept of ancestral or self-acquired property under the provisions of the Mahomedan Law and every property devolves in the same manner irrespective of its nature, it would be impermissible for the heir to challenge a transaction executed by a father in favour of other children during his lifetime. There is no cause of action available to the respondent no.1, the suit, therefore challenging the registered gift deed by the petitioner no. 1 in favour of petitioner nos. 2 to 4, his sons, would not be maintainable.

5.2 It is submitted that as per the Mahomedan Law by Mulla, Chapter VI titled ‘Inheritance – General Rules’, describes the heritable property. It states that there is no distinction in the Mahomedan Law of inheritance between the movable and immovable property or between ancestral and self-acquired property. Moreover, in the very same chapter the principle of birth right is also discussed and states that right of an heir apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir, if he survived the ancestor. Considering the said provisions, the suit with such reliefs, is not maintainable.

5.3 It is next submitted that Paragraph 142 of Chapter XI titled ‘Gifts’ provides that a gift as distinguished from