SULTAN MIYA Vs. AJIBAKHATOON BIBI

JUDGEMENT

(1.) This appeal must be dismissed and for the following reasons: The appeal arises out of a suit for partition, wherein a preliminary decree was made by the Court below on 23 January 1928. The facts shortly stated are as follows: One Wajuddin Bepari died, leaving him surviving his mother, who is defendant 2 in this suit, and two widows (plaintiffs 1 and 2). He left five sons and they are plaintiffs 3, 4, 5 and 6 and defendant 1. He also left three daughters, namely, defendant 3 and 4 and plaintiff 7. "Wajuddin Bepari was possessed of considerable moveable and immovable properties. There in no dispute about the shares of the parties. But the plaintiffs challenged a deed of gift set up by defendant 1, and indeed defendant 1 was the only person who contested the suit. Defendant 1 set up what is stated to be a deed of gift and ho alleged that it had been executed by his father on the 14 Baisakh 1323 B. S., and that it related to one drone of the properties set out in Schedule 1 to the plaint. The immovable properties comprised in this suit are described in Schs. 1 and 2 of the plaint. The moveable properties are described in Schedule 3 and in Schedule 4 where there is reference to certain buildings and corrugated ironsheds. Schedule 5 relates to a pucca privy and Schedule 6 relates to the bhiti of a mosque The dispute, as indicated above, is with reference to the property comprised in the deed of gift. The learned Subordinate Judge has found, on the evidence adduced before him, that defendant 1 had failed to prove that Wajuddin had made in law a gift such as was alleged by defendant 1, in other words, ho said that the deed of gift relied upon by defendant 1 was invalid in law. It is against this judgment and decree of the Subordinate judge that the present appeal is preferred.

(2.) The plaintiffs challenged the deed of gift on various grounds, which are referred to at some length in their plaint. The learned Subordinate Judge, after considering the evidence adduced before him, found that as a matter of fact the deed of gift had been executed by Wajuddin. But the question was whether the deed of gift had been acted upon and whether it was operative in law. The learned Subordinate Judge considered the evidence adduced in this case. For the purpose of finding whether such evidence satisfied the requirements of the Mahomedan law relating to gifts or hibas, the throe requirements under the Mahomedan law in this behalf are: (1) that there must ho clear and unambiguous intention of the donor to make a gift; (2) that there must be acceptance of the gift express or implied on the part of the donee and (3) there must be delivery of possession of the property which is the subject- matter of the gift. As regards the third requirement, the delivery of possession must be such as, according to the nature of the property would be susceptible. Under the Mahomedan law it is well known that no writing is necessary to validate a gift but it is all essential that the formalities referred to above should be gone through. If, for instance, any one of these formalities is not gone through, although there may be a written instrument of gift, it is nevertheless invalid under the Mahomodan law; in other words as has been stated in one of the cases, where there is a written instrument of gift it is only a mere piece of evidence. These being the provisions of the Mahomedan law, the learned Subordinate Judge considered seriatim the various points taken by defendant 1 in his written statement.

(3.) Defendant 1 in his written statement alleged that since the date of the deed of gift he was in exclusive possession of the property comprised in the deed of gift. He further alleged that he dealt with the property as his own, that he leased out the property to tenants and that, from and after the date of gift, his father had nothing whatever to do with the land in question. In fact he alleged that his father ceased to be in possession of the property comprised in the deed of gift from and after the date thereof. He went on to add that he got his own name substituted in the record of the malika, that is, the landlords in respect of the land in question, that it was he who paid the rent in respect of the said land and obtained receipts showing payment of rent by him. On the evidence adduced before the learned Subordinate Judge, ho came to the conclusion that the defendant's story as indicated in his written statement was entirely false and untrue. Defendant 1 was only eight or nine years old at the time of the deed of gift and it was untrue that he separated from his father and began to live separately with his dadi, i. e., the grand-mother. The learned Subordinate Judge further found that defendant 1 had failed to show that there had been any mutation of names as was alleged by him in the record of the maliks or that he at any time paid any rent in respect of the property separately or obtained receipts. Further in the Rceord of Eights, the land was still shown as being in the possession of Wajuddin and there was no evidence whatsoever that he had lot out the land in question to a barga tenant. In this connexion, one passage may be quoted from the judgment of the learned Subordinate Judge: On the evidence, it is clear to me that defendant 1. was never in exclusive possession of the land, but I hold that Wajuddin was in possession of all his lands up to his death, he paid the rents. The whole of the defendant's story about his separation and his exclusive possession, and his mutation of name and payment of rent is palpably false. There is not an atom of satisfactory evidence on these vital points.