GH AHMED SOFI Vs. MOHD SIDIQ DAREL

JUDGEMENT

(1.) MOHD Sidiq Darel, the first respondent herein, filed a suit in the court of the Sub -Judge, Srinagar for partition of the suit property and for separate possession of 7/40th share in the said property. His case was that the suit property belonged to one Mohd Sufi and that after his death, his daughter Mst. Zooni inherited a 7/40th share in the said property. He purchased her share under a sale deed dated 28 -4 -1960 which was registered on 19 -5 -1960. By virtue of this purchase he was entitled to a partition of the suit property and for separate possession of 7/40th share in the said property which he had purchased from Mst. Zooni. Mst. Zooni who was impleaded as a defendant in the said suit remained exparte, but the brother of Mst. Zooni by name Ghulam Ahmad Sufi and others resisted the suit, on the ground that soon after the death of Mohd Sufi. Mst. Zooni had gifted her chare in the suit property by means of an oral gift in favour of her brother, Ghulam Ahmad Sufi who was impleaded as the first defendant in the suit. The said gift was made long prior to the execution of the sale deed by Mst. Zooni in favour of the first respondent herein. Mst. Zooni had therefore no title to her share in the suit property after the said gift which she could validly pa 1. Mohd Sidiq Darel, the first respondent herein, filed a suit in the court of the Sub -Judge, Srinagar for partition of the suit property and for separate possession of 7/40th share in the said property. His case was that the suit property belonged to one Mohd Sufi and that after his death, his daughter Mst. Zooni inherited a 7/40th share in the said property. He purchased her share under a sale deed dated 28 -4 -1960 which was registered on 19 -5 -1960. By virtue of this purchase he was entitled to a partition of the suit property and for separate possession of 7/40th share in the said property which he had purchased from Mst. Zooni. Mst. Zooni who was impleaded as a defendant in the said suit remained exparte, but the brother of Mst. Zooni by name Ghulam Ahmad Sufi and others resisted the suit, on the ground that soon after the death of Mohd Sufi. Mst. Zooni had gifted her chare in the suit property by means of an oral gift in favour of her brother, Ghulam Ahmad Sufi who was impleaded as the first defendant in the suit. The said gift was made long prior to the execution of the sale deed by Mst. Zooni in favour of the first respondent herein. Mst. Zooni had therefore no title to her share in the suit property after the said gift which she could validly pars to the first respondent. Even the sale deed alleged to have been executed by Mst. Zooni in favour of the first respondent was challenged on the ground that it was obtained by fraud. After framing the issues which arose out of the pleadings of the parties me! after a consideration of the oral and documentary evidence by both the parties, the learned trial court held that Mst. Zooni had made a valid oral gift, of her share in the suit property in favor of her brother, the first appellant herein, long prior to the execution of the sale deed in favour of the first respondent and therefore the first respondent did not obtain any valid title to Mst. Zoonis share in the suit property by virtue of the sale executed in his favour and that, therefore, hp was net entitled to a partition of the suit property and to separate possession of 7/48th share in the said property. The suit was, therefore, dismissed.

(2.) AGAINST the judgment of the learned trial court, the first respondent herein preferred an appeal in the court of the District Judge, Srinagar, Who took the view that the alleged oral gift by Mst. Zooni in favour of her brother, the first appellant, herein, even if true, was not valid as it was not made under a registered document as required by Ss. 123 and 138 of the Transfer of Property Act. He also held that the sale deed executed by Mst. Zooni in favour of the first respondent was true and -valid, that "Mst. Zooni passed a valid title in favour of the first respondent in respect of her share in the suit property and that, therefore, the first respondent was entitled to a partition of the suit property and to separate possession of the share in the said property which had been purchased by him. He, therefore, set aside the judgment and decree of the learned trial court and decreed the suit in favour of the first respondent.

(3.) AGAINST the said judgment and decree of the learned District Judge, the first appellant and others preferred a second appeal in this court. The appeal came up for hearing before a learned single judge of this court who was of the view that the question for determination namely whether an oral gift of immovable property of the value of more than Rs. 100/ - was valid under the Mohammedan Law and Ss. 123 and 138 of the Transfer of Property Act did not apply to such gifts was of sufficient importance which required consideration by a Full Bench. Therefore the following question was referred to the Full Bench: - "Whether in view of the provisions of Ss. 123 and 129 of the Transfer of Property Act the Mohammedan Law on the question of gifts stands superseded; and whether it is necessary that there should be a registered instrument as required by Ss. 123 and 138 of the Transfer of Property Act in the case of gifts made under that law."