MD. SATTAR ALI Vs. MAZIRAN NESSA

JUDGEMENT

(1.) This is appeal under Sec. 100 of the Code of Civil Procedure, 1908 (for short, the Code) challenging the judgment and decree dtd. 24/9/2008 passed in Title Appeal No.36/2006 by the Court of the learned Civil Judge, Barpeta whereby the judgment and decree dtd. 17/7/2006 passed by the learned Munsiff No.1 Barpeta in connection with Title Suit No.12/2000 was upheld.

(2.) This Court vide order dtd. 19/2/2020 admitted the instant appeal by formulating the substantial question of law as to whether a gift deed executed in terms with Sec. 123 of Transfer of Property Act, 1882, there is a requirement of delivery of possession to constitute a valid gift ?

(3.) For ascertaining as to whether the said substantial question of law arises in the instant appeal, this Court finds it relevant to take note of the facts which led to the filing of the instant appeal: The respondent herein as Plaintiff had instituted a suit against the Appellant Nos.1 and 2 herein seeking declaration of her right, title and interest as well as khas possession in respect to the land described in Schedule B to the plaint. The Plaintiff also sought for permanent injunction. From the facts narrated in the plaint, it reveals that the Plaintiff claimed to be the daughter of one Nayan Ali Kha and the Schedule A land originally belonged to the said Nayan Ali Kha and Mazam Ali, who were both sons of Tahar Ali. After the death of Nayan Ali Kha, the name of the Plaintiff was duly mutated as the legal heir. Along with the Plaintiff, the name of one Aymona Khatun was also mutated as the legal heir, after the death of Mazam Ali, inasmuch as, the said Aymona Khatun was the wife of Late Mazam Ali. Subsequent thereto, Aymona Khatun expired leaving no heir. It was also mentioned that one Joynal Uddin Khan was the son of Tachur Ali, whose name was mutated in connection with 5 bighas, 2 kathas, 4 lechas of land out of the land mentioned in Schedule A. The said Joynal Uddin Khan expired leaving behind no legal heir except the Plaintiff and as such the Plaintiff claimed to be entitled to the properties of Late Joynal Uddin Khan.