MAYANA SAHEB KHAN Vs. MAYANA GULAB JAN

JUDGEMENT

(1.) One late Mayana Rouf Khan had three sons, by name Saheb Khan, appellant herein, Alam Khan, respondent No.11 and late Raheem Khan; and three daughters, by name Khayamkhani Ghousunnisa, Salawani Mayamunnisa and Habeeba, respondents 12 to 14 herein. The 1st respondent is the wife of late Raheem Khan. Raheem Khan died on 24.06.1997 leaving behind him certain items of movable and immovable properties.

(2.) The appellant filed O.S.No.12 of 1998 in the Court of Senior Civil Judge, Rayachoty, against the respondents for partition and separate possession of the assets left by late Raheem Khan. He claimed 21.42% share in those properties in the capacity of sharer of the properties of the deceased. The suit was mainly opposed by the 1st respondent. She did not dispute the relationship of the parties. She however pleaded that her husband gifted items 1 and 2 of the suit schedule in her favour and as such, they are not available for partition. The other respondents have adopted the defence offered by the 1st respondent. Through its judgment, dated 07.10.2005, the trial Court dismissed the suit. The appellant filed A.S.No.7 of 2008 in the Court of V Additional District Judge, Rayachoty against the judgment and decree of the trial Court. The appeal was dismissed on 30.05.2009. Hence, this second appeal.

(3.) Sri S.V.Bhatt, learned counsel for the appellant submits that the trial Court and the lower appellate Court committed a patent error in holding that the oral gift pleaded by the 1st respondent is proved. He submits that in clear terms, the 1st respondent pleaded in her written statement that the gift was evidenced through a Gift Khararunama dated 20.04.1992, so much so, she has mentioned it, in the list of documents in the written statement but has not chosen to file the same into the Court. He pleads that though it is competent for a Muslim to make an oral gift, if one chooses to make it through a written document, it is required to be registered under Section 123 of the Transfer of Property Act (for short 'the Act'). He places reliance upon judgments of this Court in Inspector Gen. Of Reg. Vs. Tayyaba Begum1, Mahendra Apex Corp. Ltd. Vs. Jafrulla.2, Shaik Khadaru Masthan vs. Smt. Sayyed Fathimun Bee3, Babu Miyan vs. Hussain Bi4 and Syed Fatahuddin vs. Golla Shadrak5.