An oral gift (Hiba) under Mohammedan law is not compulsorily registerable, and the trial court erred in rejecting the admissibility of the relevant document.

CAV JUDGMENT

(PER: HON'BLE MR. JUSTICE C M JOSHI)

This appeal by appellant/defendant No.1 arises out of the judgment in OS No.11/2005 passed by learned XLIII Additional City Civil and Sessions Judge (CCH-44) Bangalore, dated 06.02.2015.

2. The parties would be referred to as per their rank before the trial Court for the sake of convenience.

3. The factual matrix of the case is as below: Plaintiff Nos.1 and 2 are the brother and sister of defendant Nos.1 and 2 and children of Jabbar Sharieff. The said Jabbar Sharieff died intestate on 02.09.2003 leaving behind the plaintiffs and defendants. The deceased Jabbar Sharieff had moveable and immoveable properties and he had purchased the suit schedule property during his lifetime. Later, Jabbar Sharieff borrowed a loan from defendant No.3-Bank by mortgaging the suit schedule property, by way of deposit of title deeds. Therefore, the original documents of the suit schedule property are with defendant No.3-Bank. It was alleged that defendant No.1 who is residing in one of the portions of the property is collecting the rents from the tenants in the ground floor and she has not paid the share of the plaintiffs to them. The plaintiffs have been asking for their share of the rents and defendant No.1 was postponing the same. The plaintiffs learnt that defendant No.1 is negotiating to sell the suit schedule property falsely representing that she is the absolute owner. The plaintiffs believed that defendant No.1 has created certain forged documents and is on the verge of alienating the property. The plaintiffs contended that if Jabber Sharieff had executed any documents in favour of defendant No.1, he would not have mortgaged the property and raised loan on it and therefore, defendant No.1 is not the absolute owner of the suit schedule property on the basis of the forged documents. Defendant No.1 did not account for the rents received and also did not heed to the request to partition the suit schedule property. Therefore, the plaintiffs contend that plaintiff No.1 is entitled for 2/6^th share and plaintiff No.2 is entitled for 1/6 share in the suit schedule property and as such, a decree be passed entitling the plaintiffs for their respective shares.

4. On issuance of summons, defendant No.1 appeared and she filed her written statement. She alleged that the suit of the plaintiffs is speculative and is not maintainable either in law or on facts. She contended that the property described does not belong to the plaintiffs in any way. She contended that the suit schedule property was purchased by Jabbar Sharieff during his lifetime and he has gifted the said property to defendant No.1 under oral Gift Hiba dated 08.11.1996. The said Hiba has been acted upon and in pursuance to it, the name of defendant No.1 has been entered in the revenue records of the Bangalore City Corporation. The taxes are being paid by defendant No.1 continuously and therefore, the suit of the plaintiffs is liable to be dismissed. Inter alia, defendant No.1 also contended that her father, Jabbar Sharieff, who was the original owner of the suit schedule property had executed oral gift under the Mohammedan Law on 08.11.1996, which was notarized before a notary and was acted upon. She also contended that the plaintiffs, as well as defendant No.2 were present at the time of the said Hiba and they have subscribed to the document dated 08.11.1996. It is also contended that defendant No.1 allowed her father, Jabbar Sharieff, to raise loan from defendant No.3-Bank, since the defendant No.1 was in financial needs to improve the suit schedule property and the said Bank insisted that the loan will be granted to a person on whose name the registered S