FAKIR MUHAMMAD Vs. FAZAL KHAN AND ORS.

JUDGEMENT

(1.) THE unsuccessful Plaintiff is the Appellant. He filed the suit for declaration of his title to the immoveable and moveable properties described in Schedules A, B, C and D annexed to the plaint and recovery of possession of the same, except item No. 2 in Schedule B and the lands situate in village Tuludi in Schedule A. which are said to be in his possession.

(2.) PLAINTIFF 's case, in brief, is that one Fiaz Muhammad died leaving two widows Rahmat Bibi and Mariyam Bibi who succeeded to his properties. Plaintiff is the son of Fiaz through Mariyam Bib J. Mariyam Bibi filed O.S. No. 7 of 1921 in the Court of Subordinate Judge, Berhampur for partition of the properties inherited from Fiaz Muhammad. The said suit was compromised and under the compromise decree Rahmat Bibi was allotted Re. 1/ - anna share Rahmat Bibi had a sister Farid Bibi, mother of Defendant No. 1. Both of them inherited the properties of their father Fazle Muhammad, who died in the year 1914. Thus, Rahmat Bibi came to possess the share of the properties inherited from her father as well as the share of properties of her deceased husband allotted to her in the partition suit. Rahmat Bibi had a son named Hanif through Fiaz Muhammad who died at a very early age. After his death, it is stated that Rahmat Bibi bestowed all her affection on the Plaintiff, got him married in 1940, put him in management of all her properties and intended to settle them on him, except a small portion which she proposed to endow by way of religious gift" While matters stood thus, Defendant No. I, on dismissal from the Madras Police Service for misconduct, came to Bhanjanagar with his family and resided in a portion of the house contiguous to the one occupied by Rahmat Bibi. He tried to trespass into the house of Rahmat Bibi and forcibly take possession of her properties, both moveable and immoveable. Rahmat Bibi lodged a report at the police station of theft of her gold ornaments in the year 1957 and also complained to the police and the District Magistrate against the conduct of Defendant No. 1 and prayed for promulgation of a prohibitory order against the Defendants. On 10 -2 -1958, Rahmat Bibi transferred all her properties, both moveable and immoveable to the Plaintiff by an oral gift in the presence of a number of persons which was accepted by the latter and no physical delivery of possession was necessary to complete the gift, as already Plaintiff was in management; There was unequivocal expression of intention by the donor to divest herself of her rights and acceptance by the donee. After the death of Rahmat Bibi in 1960, Defendants are alleged to have trespassed into her residential house, removed moveables including gold and tried to dispossess the Plaintiff from other properties. This resulted in a Criminal Case as well as two proceedings under Section 145, Code of Criminal Procedure in respect of different items of suit properties which had been gifted by Rahmat Bibi to the Plaintiff. Therefore, Plaintiff filed the present suit as Defendant No. 1 disputed his rights to the properties gifted by Rahmat Bibi J. Originally the suit was filed against Defendant Nos. 1 to 3, the latter two being the sons of Defendant No. 1. During the pendency of the suit, Defendant No. 1 died and Defendants Nos. 1/a to 1/h have been substituted as his legal representatives.

(3.) ON the pleadings, the trial Court framed as many as 13 issues. It found that Mariyam, mother of Plaintiff was the married wife of Fiaz Muhammad and left, open the question whether any of the items of the suit properties belonged to Defendant No. 1 as claimed by him and not to the estate of Rahmat Bibi. The question whether Mariyam was the legally married wife of Fiaz Muhammad is not very material in this litigation as Plaintiff bases his claim on an oral gift alleged to have been made by Rahmat Bibi. Similarly, the relevancy of the issue as to whether any of the items of the suit properties did not appertain to Rahmat Bibi's estate and belonged to Defendants would arise for consideration only, if it is found that Plaintiff has acquired title to all the assets of Rahmat Bibi under a valid oral gift.