Madhya Pradesh High Court
Abdul Rashid vs Smt.Sajida on 27 February, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:4278
1 FA-129-2010
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 27th OF FEBRUARY, 2025
FIRST APPEAL No. 129 of 2010
ABDUL RASHID AND OTHERS
Versus
SMT.SAJIDA AND OTHERS
Appearance:
Shri Arun Dudawat - learned counsel for the appellants.
Shri Naval Kumar Gupta- learned senior counsel with Shri Y.P.S.
Rathore - learned counsel for the respondents.
ORDER
1. The appellants/defendants have filed the instant appeal under
Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to
as”CPC“) challenging the judgment and decree dated 17/03/2010 passed by
the First Additional District Judge, Vidisha (M.P.) in Civil Suit No.27-
A/2007.
2. The facts which are not disputed between the parties are that
property described in para 4 of the plaint (hereinafter referred to as “suit
property”) initially belonged to one Abdul Rajak. The plaintiff/defendant
Nos.1, 2, 4, 5 & 6 are the children of the said Abdul Razak while defendant
No.3 was the widow of Abdul Razak. Defendant No.7 is the brother of Late
Abdul Razak.
3. The plaintiff had filed the present suit for partition, separate
Signature Not Verified
Signed by: RAHUL SINGH
PARIHAR
Signing time: 01-03-2025
05:26:53 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:4278
2 FA-129-2010
possession and permanent injunction claiming her share in the property of
her father. Except defendants No.1 and 2, other defendants were ex-parte
before the trial Court. Defendants No.1 and 2 denied the plaintiffs claim inter
alia on the ground that their father had given the house in question to their
mother i.e. defendant No.3 by way of Mehr vide deed dated 10/03/1994
(Ex.D/1). It is further pleaded by the defendants that defendant No.3 had
gifted the suit property to defendant No.1 and 2 vide gift deed dated
15/05/2005 (Ex.D/2). Defendants have further pleaded that the plaintiff,
having married against the wish of the father and left the father’s house long
before, she was divested of her share in the property by Late Abdul Razak.
With these pleadings, defendants prayed for dismissal of the suit.
4. Learned trial Court vide impugned judgment and decree has decreed
the suit recording a finding that execution of Mehrnama (Ex.D/1) is not
proved, gift of the property by defendant No.3 in favour of defendants No.1
and 2 is also not established and the ground of divesting the plaintiff from the
property by the father is also not proved. Accordingly, the suit is decreed
wherein the plaintiff has been held entitled to 299 Sq.ft. of her share in the
property which she is entitled to get by partition, defendants have been
directed to deliver possession of her share to the plaintiff.
5. Learned counsel for the appellants/defendants took me through the
statements of defendant witnesses as also the finding recorded by the trial
Court and submits that the finding recorded by the trial Court are perverse,
contrary to the documents and therefore, the same are liable to be set-aside.
6 . Per contra, learned counsel for the respondent/plaintiff supported
Signature Not Verified
Signed by: RAHUL SINGH
PARIHAR
Signing time: 01-03-2025
05:26:53 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:4278
3 FA-129-2010
the impugned judgment and decree and prayed for dismissal of the appeal.
7 . The pivotal question involved in this appeal is regarding execution
of Mehrnama (Ex.D/1) and the execution of the gift deed by defendant No.3
in favour of defendants No.1 and 2 (Ex.D/2).
8. Mehrnama (Ex.D/1) is executed on 10/03/1994 and one Abdul
Hamid (DW-6) and Afzal Khan (DW-7) are the attesting witnesses of the
said document. By going through the statements of DW-6 & DW-7, it is
gathered that they nowhere stated that Abdul Razak signed the Mehrnama in
their presence. They have only said that Mehrnama was got prepared
somewhere else and it was brought before them and they signed the same.
Thus, it cannot be said that the attesting witnesses have proved the execution
of this document (Ex.D/1).
9. Further, the conduct of the parties after the execution of Mehrnama
is also important. Learned trial Court in paragraphs 8, 9, 10 & 11 have
discussed the evidence of the defendant witnesses and have recorded the
finding that even after the alleged document of Mehrnama, property
continued to be in the name of Abdul Razak. The map for construction of the
building over the plot was submitted in the name of Abdul Razak, defendant
No.3 never claimed ownership over the property etc. This goes to show that
the suit property was not given in Mehr to defendant No.3 and it continued
with Abdul Razak only..
10. Another important aspect which determines the validity of
Mehrnama is that the same is executed on a plain paper and is not stamped
and registered. From recital of this deed, it is apparent that immovable
Signature Not Verified
Signed by: RAHUL SINGH
PARIHAR
Signing time: 01-03-2025
05:26:53 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:4278
4 FA-129-2010
property for more than Rs.100 is being transferred to defendant No.3. Thus,
in view of the provisions of the Transfer of Property Act and the Registration
Act, the deed is required to be compulsorily registered.
11. The Apex Court in the case of Radhakishan Laxminarayan
Toshniwal Vs. Shridhar Ramchandra Alshi and others reported in AIR 1960
SC 1368 held in Para 10 as under:-
“In the Allahabad case Begum and others v.
Mohammad Yakub and another, ILR 16 All 344 (FB),
there was a verbal sale of a house which was followed
by possession but there was no registered document. No
doubt there the learned Chief Justice in the. majority
judgment did say that to import into the Mohammedan
law of pre-emption the definition of the word “sale”
with res-trictions contained in S. 54 of the Transfer of
Property Act would materially alter Mohammedan law
of pre-emption and afford fraudulent persons to avoid
the law of pre-emption; with this view Bannerji J. did
not agree. But in our opinion the transfer of property
where the Transfer of Property Act applies has, as was
held by the Privy Council also, to be under the
provisions of the Transfer of Property Act only and
Mohammedan Law of transfer of property cannot
override the statute law. Mahmood, J. in Janki v.
Girjadat and another, ILR 7 All 482 (FB), though in a
minority (four judges took a different view) was of the
opinion that a valid and perfected sale was a condition
precedent to the exercise of the right of pre-emption and
until such sale had been effected the right of pre-
emption could not arise.”
12. From the aforesaid pronunciation of law by the Apex Court, it is to
be held that the provision of the Transfer of Property Act and the
Registration Act would prevail and no relaxation is given under the Muslim
Law from registration of the deed. Thus, the document (Ex.D/1) is not
admissible in evidence for want of registration and payment of adequate
Signature Not Verified
Signed by: RAHUL SINGH
PARIHAR
Signing time: 01-03-2025
05:26:53 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:4278
5 FA-129-2010
stamp duty.
13. The defendants’ claim is also based upon the Hiba Nama dated
15/05/2005 allegedly executed by defendant No.3 in favour of defendants
No.1 and 2.
1 4 . Learned counsel for the respondents raised an objection with
regard to validity of Hiba Nama (Ex.D/2) on the ground that it is an
unregistered instrument by which the property is being transferred and
therefore, the same is not admissible.
15. The Apex Court in the case of Hafeeza Bibi and others Vs. Shaikh
Farid (Dead) By LRs. and others reported in (2011) 5 SCC 654 in paragraphs
26 & 27 held as under:-
“26. Mulla, Principles of Mahomedan Law (19th Edn.). p. 120, states
the legal position in the following words:
“Under the Mahomedan law the three essential requisites to
make a gift valid are: (1) declaration of the gift by the
donor, (2) acceptance of the gift by the donee expressly or
impliedly, and (3) delivery of possession to and taking
possession thereof by the donee actually or constructively.
No written document is required in such a case. Section
129 of the Transfer of Property Act excludes the rule of
Mahomedan Law from the purview of Section 123 which
mandates that the gift of immovable property must be
effected by a registered instrument as stated therein. But it
cannot be taken as a sine qua non in all cases that whenever
there is a writing about a Mahomedan gift of immovable
property there must be registration thereof. Whether the
writing requires registration or not depends on the facts and
circumstances of each case.”
27. In our opinion, merely because the gift is reduced to writing
by a Mohammadan instead of it having been made orally, such
writing does not become a formal document or instrument of gift.
When a gift could be made by a Mohammadan orally, its nature
and character is not changed because of it having been made by a
written document. What is important for a valid gift under
Mohammadan Law is that three essential requisites must be
Signature Not Verified
Signed by: RAHUL SINGH
PARIHAR
Signing time: 01-03-2025
05:26:53 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:4278
6 FA-129-2010
fulfilled. e The form is immaterial. If all the three essential
requisites are satisfied constituting a valid gift, the transaction of
gift would not be rendered invalid because it has been written on
a plain piece of paper. The distinction that if a written deed of gift
recites the factum of prior gift then such deed is not required to
be registered but when the writing is contemporaneous with the
making of the gift, it must be registered, is inappropriate and
does not seem to us to be in conformity with the rule of gifts in
Mohammadan Law.”
16. Thus, in view of the aforesaid, I am of the considered opinion that
gift under the Mohammadan law can be made orally and its validity is not
affected merely because it has been reduced in writing. Thus, the document
(Ex.D/2) does not get invalidated for want of registration. However, as has
been held by the Apex Court in the case Hafeeza Bibi (supra). The three
mandatory ingredients for establishing the gift under the Mohamed Law are;
(i) Declaration of the gift by the doner;
(ii) Exceptance of the gift by the donee, expressly or
impliedly;
(iii) Delivery of possession too and taking possession
thereof by the donee.
17. In the instant case, the trial Court has recorded a finding that at the
time of execution of gift deed (Ex.D/2), defendants No.1 and 2 were not
present. The document (Ex.D/2) also does not bear the sign of defendants
No.1 & 2. Further, the attesting witnesses of Ex.D/2 also did not depose
about delivery of possession to defendants No.1 & 2. The counsel for the
appellants could not point out any reason to interfere with said findings of
learned trial Court. Thus, the important ingredients viz. acceptance of the gift
and delivery of possession of the property is not established by defendants
No.1 & 2.
18. Thus, the foundation of the defendants’ claim being based upon
Signature Not Verified
Signed by: RAHUL SINGH
PARIHAR
Signing time: 01-03-2025
05:26:53 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:4278
7 FA-129-2010
Ex.D-1 and D-2 is found to be not established. The trial Court findings in
this regard are, therefore, just and proper and does not want any interference
by this Court.
19. Thirdly, the defendants have taken a plea that since the plaintiff
has left the father’s house long before and married against his wish, the father
had divested of her share in the property. Somebody can be divested from
the immovable property only in accordance with law. In absence of any
document in this regard in the instant case, it cannot be said that the plaintiff
was divested of her share in the property by Late Abdul Razak.
20. The jurisdiction of the First Appellate Court under Section 96 of
CPC is well defined. If the findings recorded by the trial Court are probable
in the facts and circumstances of the case, the Appellate Court is not
supposed to substitute its own view over the view of the trial Court. In other
words, the findings of the trial Court cannot be set aside without holding
them to be perverse. In my considered opinion, the findings recorded by the
trial Court are well reasoned and based on proper appreciation of evidence.
21. Thus, the findings recorded by the trial Court are just and proper
and does not warrant any interference by this Court. The instant first appeal
being devoid of merits, is hereby dismissed.
(ASHISH SHROTI)
JUDGE
rahul
Signature Not Verified
Signed by: RAHUL SINGH
PARIHAR
Signing time: 01-03-2025
05:26:53 PM