MAHENDRA APEX CORP LTD Vs. JAFRULLA

JUDGEMENT

(1.) The Judgment of the learned single Judge reversing the decision of the Executing Court in E.A. No. 51/83 in E.P. No. 4/83 in O.S. No. 6/78 is in challenge. The learned Subordinate Judge, Adoni dismissed the claim petition of the respondents who had made the application under Order 21, Rule 58 of the Code of Civil Procedure opposing the attachment of the schedule properties standing in the name of the Judgment-debtor in the suit.

(2.) The respondents preferred the claim on the plea that the attached properties have been gifted to them by the father by an oral gift on 1-1-1967, which fact was subsequently recorded in a Memorandum on 15-9-1969 and that thereafter, they have been throughout in possession of the properties, Since, under the Mohammedan Law, gift of immovable properties does not require registration, the gift in their favour was valid as the possession had been delivered to them and they were in possession. The application was resisted by the decree holder disputing the gift saying that there was no gift on 1-1-1967 and the Memorandum was a collusive one created to defeat the decree. The executing Court held the gift to be invalid and inoperative and rejected the application.

(3.) The learned single Judge took a contrary view and upheld the gift and allowing the claim. Ex. A-1 is. the Hiba executed by the Judgment-debtor on 15-9-1969. Ex. A-19 is the Memo issued to the Sanitary Inspector to collect taxes in respect of the mill with effect from 1-4-1978 i.e. the date from which mutation had been effected in the municipal records. Exs. A-8 to A-13 are the receipts of payment of property taxes and licence fee from the date of Ex. A-19. On the basis of these documents, it is the claim of the respondents to have come into the possession of the properties pursuant to the oral gift. An English translation of Ex.A-1 has been made available, which is accepted by both the parties. There is no mention in the Deed of there having been an oral gift earlier and that the Deed was only one recording such fact at a subsequent point of time. If, in fact, an oral gift had been made on 1-1-1961 and Ex. A-l has been created to record the fact, it would have been essential to state such fact in the Deed. But, the document is singularly silent on that. A portion of the document reads as follows: