SHAIK NURBI Vs. PATHAN MASTANBI

JUDGEMENT

(1.) This second appeal is filed by the unsuccessful plaintiff who lost before both the courts below.

(2.) The point for consideration in this second appeal is whether the gift made by late Alikhan bequeathing entire property in favour of the defendants is valid and binding on the plaintiff? In order to appreciate the question, it is necessary to notice the facts of the case. The parties are referred to herein as they are arrayed in the suit. The plaintiff is the daughter of Pathan Alikhan who died intestate on 16-10-1981. First defendant is his wife and defendants 2 to 5 are sons and defendants 6 and 7 are his daughters. The plaintiff was born through the first wife of Alikahn namely, Tara Bi. Defendants 2 to 7 are the children born through his second wife, first defendant. The suit schedule properties belonged to Alikhan. After his death, first defendant is managing the properties.First defendant accounted for mesne profits only for one year and thereafter no accounts were maintained. Therefore, the plaintiff demanded for partition of the suit schedule properties. In spite of several demands, first defendant did not partition the properties. Hence, the plaintiff filed the suit for partition and to allot 7/88 share to her. First defendant filed her written statement while defendants 2 to 7 filed a memo adopting the same. It is stated that the mother of the plaintiff died in the year 1965. After her death, Alikhan married first defendant. The plaintiff was married at a very young age. Her marriage was performed with the sister's son of Alikhan. The plaintiff could not be sent to her husband as he was living with a Christian woman. The plaintiff's husband used to harass her for getting property from her father. The property located near K.T. Road was given to the plaintiff. Alikhan and the defendants lived in item No.1 house. During his life time, Alikhan made a oral gift bequeathing the suit schedule properties i.e., two-storeyed house and agricultural land, in favour of the defendants, in the presence of Pathan Allabaksh and Syed Abdul Majid. First defendant accepted the gift on her behalf and on behalf of her minor children. Thus, they became absolute owners and possessors of the suit schedule properties. The plaintiff never claimed any right in the suit schedule properties and she was not in joint possession of the same. On the basis of the above pleadings, the trial Court has settled the following issues for trial.

(3.) The plaintiff herself was examined as P.W.1 besides examining P.Ws.2 and 3. P.W.2 is one Abdul Faziz and P.W.3 is the husband of the plaintiff. She marked Exs.A1 and A2 - registration extracts of the suit schedule properties standing in the name of Alikhan. First defendant examined herself as D.W.1 and also examined D.Ws.2 to 4 and marked Exs.B1 to B14. Before the trial Court, it was the case of the plaintiff that Alikhan died on 16-10-1981 leaving behind the plaintiff and the defendants, that after the death of Alikhan, plaintiff and defendants were in joint possession of the suit schedule properties, that first defendant was managing the suit schedule properties, but was not accounting for mesne profits, and, therefore, she filed the suit for partition claiming 7/88th share. The suit was contested by the defendants contending that late Alikhan made a oral gift one month prior to his death bequeathing the suit schedule properties in their favour and, therefore, the plaintiff is not entitled for any share in them. On issue No.1, the trial Court, after considering the evidence on record, and also Section 135 of Mohammedan Law on the point of gift (hiba), observed that the evidence of DWs.1 to 4 clearly goes to establish that Alikhan made a declaration that he is gifting away the plaint schedule properties in favour of his wife (first defendant) and his minor children (defendants 2 to 7) and in pursuance of acceptance of the gift, first defendant has been in possession of the suit schedule properties and, therefore, the ingredients of gift have been satisfied and accordingly the oral gift made by Alikhan in favour of the defendants is valid. The contention of the plaintiff that even assuming that the gift is true, it is not valid beyond 1/3rd of the estate, was also negatived by the trial Court on the ground that such plea was not taken by the plaintiff in the pleadings and this point was canvassed only at the time of arguments. Holding thus, the trial Court dismissed the suit of the plaintiff for partition.