MAIMOONA BEGUM Vs. G.SARAT BABU

JUDGEMENT

(1.) The appellant is the claim petitioner in E.A. No.97 of 2007 in E.P. No.5 of 2006 in O.P. No.1711 of 2002 on the file of II Additional Metropolitan Sessions Judge -cum -XVI Additional Chief Judge, Hyderabad. The 1st respondent to the claim petition is the decree holder and the 2nd respondent to the claim petition is the Judgment debtor no other than the son of the claim petitioner. The property undisputedly, originally, belonged to husband of the claim petitioner -cum -father of the judgment debtor.

(2.) It is in the execution of the motor accident claim decree by the award, the decree holder filed E.P.No.5 of 2006 for attachment of the immovable property claimed that of the judgment debtor, where he undisputedly resides, which is the claim petition schedule property. It is in fact as per the Amins report what the lower Court find rightly and not even despite from the submissions across the bar by both sides that the property was attachment not affected as there was a resistance caused to the attachment and the Amin returned the warrant from that resistance and before re -entrusting the warrant, if necessary, with police aid, the claim petition is preferred by the mother of the judgment debtor claiming that her husband being the absolute owner of the property which he purchased, he made an oral gift in her favour. The provisions of the Transfer of Property Act so far as the gift under Chapter VII, particularly by Section 129, saves donations moritus causa and Mohammedan law of gifts. It is because under Mohammedan law of custom as a source of law an oral gift is valid. That is even saved by the statutory provision covered by Section 129 of the Transfer of Property Act. However, the fact remains for a Mohammedan Law of gift there are pre -requisites that must be established to validate an oral gift. One is declaration of gift that is required to be established showing that the donor either in the presence of the witnesses or otherwise by public statement declared in making the gift. It is a pre -requisite and the other two, following the same are there must be acceptance of gift and also giving and taking of possession of the property. In the absence of any of the three qualified pre -requisites of which first one is sine -qua -none, such an oral gift is even claimed cannot be validated.

(3.) The lower Court in fact observed in para No.14 of the order that among the three witnesses including the claimant P.W -1 no other than wife of the so called donor, others examined as P.Ws 2 and 3 are not even claimed as present at the time of the so called oral gift, to give any credence regarding the alleged oral gift and their evidence has no sanctity and once that is the case there is no satisfaction of the pre - requisite condition of a declaration either in the presence of two or more persons or even otherwise by public statement. Without which no sanctity to the plea of oral gift can be given, leave about the other two subsequent pre -requisites of acceptance associated with delivery of possession and taking of possession. The judgment debtor as per the finding of the trial Court is in possession of the property and even he is served with the execution petition summons to the said address which he did not dispute.