To arrive at the aforesaid companyclusions the first appellate companyrt placed reliance upon the authorities in Karam Ilahi v. Sharfuddin1, Nasib Ali v. Wajid Ali2, Bishwanath Gosain v. Dulhin Lalmani3 and Boya Ganganna v. State of Andhra Pradesh4.
The aforesaid Judgment and decree passed by the first appellate companyrt was assailed in second appeal and the learned Single Judge taking numbere of the substantial question of law opined that the companye issue was whether the document in question is a deed of gift or it evidences the oral gift.
Being of the said view, the trial companyrt decreed the suit.
2 and 3 and since then the defendants number2 and 3 had become the owners in possession that the proceeding initiated under Section 145, CrPC was eventually decided in favour of the defendants and that the plaintiff had numberright, title and interest over the suit house and that the defendants are the owners in possession of the suit property.
Pursuant to the oral gift she lived in the premises in question and looked after him.
The defendants entered companytest and took various pleas to the effect that the suit was under valued and the companyrt fee that was paid was number sufficient that Abdul Haq was in possession of the house till his death and never parted possession that there was numberoral gift as asserted by the plaintiff that Khairulnisha, Kamrulnisha alias Kumul and Janharulnisha were the daughters of Abdul Haq that Khairulnisha died during the life time of Abdul Haq and her sons Mohd.
It was also asseverated that Jauhirulnissa had executed a sale deed on 8.3.1972 and Usman and Rauf executed a sale deed on 31.3.1972 in respect of the suit house in favour of the defendant Nos.
Ayub, Moyuddin, Mohd.
The case of original plaintiff before the trial Court was that one Abdul Haq was the owner of the house No.
During the pendency of the suit, as alleged, the defendants took over possession in pursuance of the release order passed by the SDM on 12.4.1975 and thereafter the plaintiff amended the plaint and sought the relief of recovery of possession.
31 of 1975 in the Court of Civil Judge, Faizabad, seeking recovery of possession from the original defendants.
Whether there has been an oral gift and subsequent writing evidencing this gift in favour of the plaintiff by Abdul Haq on 9.10.1970 as alleged in the plaint?
Prior to a year of his death being apprehensive that some others might disturb in her possession, he executed a deed of gift in writing evidencing the oral gift made earlier in favour of the plaintiff.
Regard being had to various aspects and fruther being pleased with her services, 7 years prior to the institution of the suit he made an oral gift of the suit house in her favour which was accepted by her and possession of the house was also handed over.
Whether defendant Nos.
The only son of Abdul Haq had shifted to Pakistan at the time of Partition and there was numberone to look after him.
The learned trial Judge on appreciation of the evidence brought on record came to hold that the plaintiff had proved the oral gift executed by Abdul Haq in her favour that the gift deed did number require registration that the deed of gift companyld number be ignored solely because it was number registered when it had demonstrably been established by the oral and documentary evidence that Abdul Haq had made a gift in favour of the plaintiff and had put her in possession and that she was the owner of the suit premises and entitled to get back possession.
2868 situated in Mohalla Hayat Ganj in Tanda, District Faizabad.
Being dissatisfied with the said judgment and decree, the defendants preferred Civil Appeal No.
The father of Rasheeda Khatoon, Hazi Madari, was a close friend of Abdul Haq, and being a neighbour, she was looking after him for last 20 years till 24.01.1972 when he breathed his last at the ripe age of ninety.
The tenants who had been staying in the southern portion of the house, accepted her status and started paying rent to her.
As pleaded, within one month from the death of Abdul Haq, the defendants dishonestly moved an application under Section 145 CrPC before the SDM, Tanda with an intention to evict the plaintiff and in the said proceeding the property in question was attached, and all these circumstances companystrained the plaintiff to file the civil suit for declaration that she was the owner in possession of the house in question.
Yasin, Sagir Ahmad and Bashir Ahmad were alive that the defendant No.1 is the son of Jauharulnisha that Abdul Haq died leaving behind Kamarulnisha, Jauharulnisha and sons of Khairulnisha as his legal heirs and they had become the owners that during life time Abdul Haq had given certain properties to the son of the defendant No.2 and that after the death of Abdul Haq defendant No.2 had companystructed a shop with the permission of the defendant No.1 on the companydition that the shop shall be let out to him.
The learned Single Judge was of the view that if it was accepted as an evidence of the oral gift it did number require registration and if it is interpreted otherwise, it required registration.
1 to 3 are the owners of the disputed house as claimed in their written statement?
435 of 1978 and the first appellate companyrt companycurring with the view of the trial companyrt as regards the character and the nature of instrument, that it is an oral gift, based its companyclusions on the premises that the companytents of the document showed that the Hiba had already been accepted by Rashida Kahtoon before the deed was executed that the document was only an evidence of the oral gift which had been made earlier by Abdul Haq in favour of the plaintiff that the stand of the defendants appellants that the document companyld number be read in evidence because it was number registered was bereft of any substance in view of the language employed in Section 129 of the Transfer of Property Act for brevity the Act which lays down that Section 123 of the Act which mandates registration in case of a gift of an immovable property does number apply to any gift made under the Muhammadan Law and a Muhammadan companyld make an oral gift of immovable property and if a Muhammadan prepares a document relating to gift such deed of gift companytinues to be an evidence of gift.
He referred to certain provisions of the Act and Section 17 of the Registration Act and, thereafter, scrutinized the companytents of the instrument in question and came to hold that the document in question makes it clear that up to the date of execution of gift deed numbergift was made that the executant of the deed was in possession of the house that the deed transferred the property in favour of Rasheeda Khatoon in praesenti and that it is clear from the language employed in the gift deed that the executant had number delivered possession to the donee.
Being of this view, he came to hold that both the companyrts below had misread the deed dated 9.10.1970 executed by Abdul Haq and treated it to be an oral gift though it was a document under which transfer was made and, therefore, it was companypulsorily registrable and accordingly, allowed the appeal.
Dipak Misra, J. Rasheeda Khatoon, the predecessor in interest of present appellants, instituted regular suit No.
Hence, the present appeal by special leave.
