MOHD IQBAL KHAN Vs. LATE MANZOOR AHMAD KHAN

JUDGEMENT

(1.) This appeal has been preferred by the defendant, who has lost in both the Courts. This Court vide order dated 30.6.2000 had admitted the appeal on following substantial questions of law:-

(2.) The trial Court vide judgment and decree dated 22.10.1992 decreed the suit filed by the plaintiff. The trial Court inter-alia held that in the absence of pleading by the defendant that vide Ex.D/1 dated 26.8.1976, Haliman Bi had partitioned the suit house amongst the plaintiff, defendant's wife Abida Bi and Kasimullah Khan, the evidence in this regard cannot be looked into. The trial Court further held that Ex.D/1 has been described as gift deed whereas, Hazarilal, who is scribe to the document in question states that on execution of Ex.D/1, the partition had taken place amongst the parties to the deed. The defendant in para 3 of his statement has admitted that document Ex.D/1 does not contain the signature of plaintiff and defendant No. 1. For the aforementioned reasons, the trial Court concluded that defendant has failed to prove that the house in question was subjected to partition vide Ex.D/1 and that the plaintiff and defendant are entitled to half share each in the suit house. Accordingly, the suit was decreed. The lower appellate Court inter-alia held that there is no mention of partition in Ex.D/1. It was further held that Ex.D/1 has been executed for consideration as Haliman Bi had to pay a sum of Rs. 3000/- to Kasimullah. Therefore, he was allotted the share in the suit house vide Ex.D/1. It was further held that since Ex.D/1 has been executed for consideration, therefore, the same requires registration. The appellate Court also held that Ex.D/1 cannot be treated as will, as the will becomes effective after the death of the executant. In the result, the appeal preferred by the appellant was dismissed.

(3.) Learned counsel for the appellant submitted that plaintiff has admitted in his statement that he is in possession of the portion of the suit house marked in the plaint map. The statement of the plaintiff itself shows that partition was effected amongst the parties to Ex.D/1. It was further submitted that Haliman Bi had the authority to allot the share to Kasimullah. It was further submitted that document Ex.D/1 does not require registration and in the state of evidence on record, the essentials of a valid gift were fulfilled. Therefore, the Courts below grossly erred in discarding the document namely Ex.D/1.