Patna High Court
Maimuna Bibi And Anr. vs Rasool Mian And Ors. on 4 April, 1990
Equivalent citations: AIR1991PAT203, 1990(38)BLJR1037, AIR 1991 PATNA 203, 1990 BLJR 2 1037, (1991) 2 CIVLJ 604, (1991) 2 BLJ 499
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This first appeal, at the instance of the plaintiffs, arises out of a judgment and decree dated 30-9-1983 passed by Sri B. N. P. Shrivastava, Subordinate Judge, Palamau at Daltonganj in Partition Suit No. 114 of 1979, whereby and where-under, the said learned court dismissed the plaintiffs-appellants' suit.
2. The plaintiffs-appellants filed the aforementioned suit, inter alia, on the ground that they have purchased portions of plot Nos. 567 and 568 by reason of three deeds of sale executed by defendant Nos. 5 to 7 in their favour.
3. By two deeds of sale dated 9-4-1979, the defendants Nos. 5 and 6 transferred their right, title and interest in favour of the plaintiffs whereas by reason of a deed of sale dated 18-6-1979, the defendant No. 7 transferred his right, title and interest.
4. The plaintiffs, therefore, filed the aforementioned suit for partition praying inter alia therein that a separate Takhta to the extent of 1.79 acres be carved out, out of the suit property including plot Nos. 567 and 568 of Mauja Ramasagar and allotted to the plaintiffs.
5. The basic facts of the case are not much in dispute.
6. Admittedly, one Sk. Sudhu Mian was the recorded tenant of all the lands appertaining to Khata No. 65 of village Ramsagar. He died leaving behind a son Sk. Akbar Mian.
7. Akbar Mian allegedly died leaving behind a son Pirmohammad Mian and three daughters, Jaibunisa Bibi, (defendant No. 5), Akhtarun Bibi (defendant No. 6) and Amuna Bibi (defendant No. 7).
8. As noticed hereinbefore, the said defendants Nos. 5, 6 and 7 by reason of the aforementioned deeds of sale dated 9-4-1979 and 18-6-1979 transferred their right, title and interest in favour of the plaintiffs.
9. On the other hand, the case of the defendants is that Pirmohammad Mian was traceless and he was presumed to be dead. Pirmohammad Mian left behind his widow Kulsum Bibi (defendant No. 3) and Kuraisa Bibi (defendant No. 4).
10. Mostt. Kulsum Bibi was originally impleaded as a party to the suit as defendant No. 2 but as she died during the pendency of the suit, her name was directed to be expugn-ed from the records by an order dated 16-7-1983 passed by the learned court below.
11. According to the contesting defendants as Pirmohammad was not heard for a long time and was presumed to be dead, Akbar Mian in the year 1952, allegedly, out of love and affection for his grandson Rasool Mian made an oral Hibba (gift) in his favour and thereby donated his entire properties in his favour.
12. According to the said defendants, the said oral gift was made in presence of Hamid Mian, Tamiz Mian and Amarali Mian.
13. The aforementioned allegations have been made in para 12 of the written statement which reads as follows :--
"That when Peer Mohammad Mian was taken to be dead there was with Akbar Mian his grandson, namely, Rasul Mian, defendant No. 1, then aged about 13 years. Akbar Mian brought him up and showered on him all his love and affection and in the year 1952 he also made oral Hibba in favour of Rasul Mian before respectable persons namely Hamid Mian, Tamij Mian and Late Amarali Mian of the same village Ramsagar and put him in possession of all his lands which he then owned and cultivated. It was because of oral Hibba that Rasul Mian could become the raiyat thereof even in the year 1952 i.e. about 20 years before the death of Akbar Mian. Return was duly filed in the name of Rasul Mian in respect of 5.06 acres of Khata No. 65 because the vendees of plot Nos. 423 and 478 had not got their names mutated in the Sirista of the ex-landlord. But Rasul Miariwas really in cultivating possession of 4.14 acres of land out of Khata No. 65."
14. According to the defendant No. 1, in view of the aforementioned oral Hibba, Rashul Mian became the exclusive owner in respect of the property in suit and thus upon the death of Akbar Mian which allegedly took place in the year 1972, his daughters, namely, the defendants Nos. 5, 6 and 7 did not inherit any property whatsoever and consequently the plaintiffs also did not derive any right, title and interest by virtue of the aforementioned purported deeds of sale dated 9-4-1979 and 18-6-1979.
15. According to the defendant No. 1, the plaintiffs had never come in possession of the properties in suit by reason of the aforementioned deeds of sale or otherwise and as such the question of any partition of the propoerties in suit does not arise.
16. A written statement was also filed on behalf of the defendants No. 5, 6 and 7. In the said written statement the aforementioned defendants alleged that Peer Mohammad Mian had all along been heard of although he went out of the house and as such question of his being presumed to be dead did not arise.
17. It has further been alleged that upon the death of Akbar Mian, the properties in suit devolved upon Peer Mohammad Mian.
18. It has further been alleged that as Peer Mohammad Mian had gone out of the village, the affairs relating to the properties was being looked after by Rasul Mian including the properties which fell in the share of the said defendants Nos. 5 to 7.
19. The said defendants further denied that any oral Hibba was made by Sk. Akbar Mian in favour of Sk. Rasul Mian. The said defendants further brought on record that said Akbar Mian sold plot No. 423 of Khata No. 65 by virtue of a deed of sale dated 27-2-1967 in favour of Md. Raza and others for valuable consideration, and in the said deed of sale, the defendant No. 1 figured as an identifier before the Sub-Registrar. This deed bf sale dated 27-2-1967 was marked as Ext. 1/C.
20. Another written statement was filed by the defendant No. 8 and others and another set of written statement was filed by the defendant No. 15. The said defendants are the purchasers from Rasul Mian and they have supported the case of defendant No. 1 in their written statements.
21. Upon the aforementioned pleadings of the parties, the learned trial Court framed the following issues :--
"1. Is the suit as framed maintainable?
2. Have the plaintiffs got valid cause of action to the defendants?
3. Does the suit suffers from defect of misjoinder of parties?
4. Whether Sk. Akbar made a oral gift of his property including the suit property to defendant No. 1 Rasool Mian?
5. Whether the plaintiffs are entitled to a decree for partition as sought for by them?
6. To what other relief or relifes, if any, are plaintiffs entitled?"
22. The learned Court below took up issues Nos. 4 and 5 together and held that as Sk. Akbar Mian made oral gift on his entire property including the suit property to defendant No. 1 Rasool Mian, the plaintiffs are not entitled to a decree for partition.
23. Mr. P. K. Prasad, the learned counsel appearing on behalf of the plaintiffs-appellants, principally raised three contentions in support of this appeal.
24. The learned counsel firstly submitted that the defendants Nos. 1 to 4 in their written statement, did not make any pleadings with regard to the acceptance of gift by Rasool Mian and as such, one of the conditions precedents for a valid gift having not been pleaded and proved, the case of the said defendants on the basis of the said purported oral Hibba made by Akbar Mian in favour of Rasool Mian must fail.
25. The [earned counsel secondly submitted that in any event as by reason of the aforementioned deed of sale dated 27-2-1967, Akbar Mian himself sold the property in question to Md. Raza and others (Ext. 1/C) and thus the story of Akbar Mian making a oral Hibba cannot be believed.
26. Thirdly, the learned counsel submitted that from the evidence of the witnesses examined on behalf of the defendants, it would appear that Akbar Mian had been in possession of the properties in suit till his death and as such, it is evident that the story made out by the defendants Nos. 1 to 4 with regard to the oral Hibba made by Akbar Mian in favour of Rasool Mian is not correct.
27. The learned counsel further in this connection has taken me through various sale deeds being Ext. 8 series, wherein recitals were made by Rasool Mian to the effect that the properties which were allegedly the subject matter of the aforementioned Hibba were his ancestral property and thus according to the learned counsel, the aforementioned stipulations also negative the story of oral Hibba.
28. The learned counsel has in this connection relied upon a decision of this Court in Nezamuddin Khan v. Bibi Masuna, reported in 1989 BLT 503.
29. Mr. M. Y. Eqbal, the learned counsel appearing on behalf of the defendants Nos. 1, 3 and 4 who have been arrayed as respondents Nos. 1, 2 and 3 in this appeal, firstly submitted that as in the year 1952, Rasool Mian was a minor and thus under the Mahomedan Law, acceptance of the Hibba made by him was not necessary.
30. In this connection, the learned counsel has relied upon a decision in Khaliq Bux v. Mahabir Prasad, reported in AIR 1931 Oudh 19 : 129 IC 335.
31. The learned counsel further submitted that the possession of Rasool Mian had been proved by reason of various docu-mentary evidences, namely, Ext. B series as also the rent receipts granted by the State of Bihar in his favour which were marked as Ext. A series.
32. The learned counsel further submitted that even the plaintiffs' witnesses admitted that Rasool Mian had all along been in possession of the property in suit and as such, there cannot be any doubt that the defendant No. 1 had been able to prove his case of grant of an oral Hibba in the year 1952 by Akbar Mian in his favour.
33. It is admitted at the bar that in the event, if it be held, as has been contended by the defendant No. 1 that Peer Mohammad Mian was presumed to be dead 35 years prior to the date of the institution of the suit, Rasool Mian would not inherit the properties of Akbar Mian.
34. The defendant No. 1's case, therefore, must stand or fail on the existence of oral Hibba made in his favour by Akbar Mian.
35. In this situation, the principal question which arises for consideration in this appeal is as to whether Akbar Mian made an oral Hibba in favour of defendant No. 1 in the year 1952.
36. The contention raised by Mr. Eqbal to the effect that in the year 1952, the defendant No. 1 was a minor, must be rejected at the outset. From his own evidence, it appears that on the date of his deposition, he was 49 years old. He, therefore, was born in the year 1932 and as such in the year 1952 he was 19-20 years old.
37. Further the other witnesses, namely, D.W. 5 who was said to be one of the witnesses to the Hibba as also D.W. 14 who was the defendant No. 1 categorically admitted that in the year 1952, Rasool Mian was about 19-20 years old.
In this view of the matter, the decision cited by Mr. Eqbal that in case of minor, the gift is not necessary to be accepted, must be held to be not relevant for the purpose of disposal of this appeal.
38. There is no doubt that under the Mahomedan Law, an oral Hibba or gift is permissible. However, it also well known that in order to constitute a valid gift, the donor should divest himself completely of all ownership and dominion over the subject of the gift.
39. In order to constitute a valid gift, the three essential ingredients are; (i) a declaration of gift by the donor; (ii) an acceptance of the gift, express or implied, by or on behalf of the donee; and (iii) delivery of possession of the subject of the gift by the donor to the donee, vide Section 149 of the Mulla's Principles of Mahommedan Law.
40. In Section 150 of the said book, the learned Author states the reason as to why the delivery of possession is to be effected in the following terms :
"It is essential to the validity of a gift that there should be a delivery of such possession as the subject of the gift is susceptible of. As observed by the Judicial Committee, "the taking of possession of the subject-matter of the gift by the donee, either actually or constructively," is necessary to complete a gift.
Registration of a deed of gift does not cure the want of delivery of possession.
If it is proved by oral evidence that a gift was completed as required by law, it is immaterial that the donor had also executed a deed of gift, but the deed has not been registered as required by the Registration Act, A declaration in a deed of gift that possession has been given binds the heirs of the donor. But such a declaration is not conclusive and a recital in a deed of gift that possession has been given to minor nephew (without the intervention of a father or guardian -- Section 156) was on the facts held to be insufficient to support a gift as against the heirs or the donor."
41. In Nezamuddin Khan's case (supra), this Court has held that, if any, of the three essentials as mentioned hereinbefore is absent, the gift cannot be held to be complete.
42. However, in the aforementioned decision, it has been held that whether there has been acceptance by and on behalf of the donee and whether delivery of possession has been effected or not, will depend upon the facts of each case.
43. This legal position is neither in doubt nor in dispute. The question relating to validity of a deed of gift, therefore, will depend upon the facts of each case.
44. In this case, as mentioned hereinbefore, in the year 1952, the donee namely, the defendant No. 1 was a major. It was, therefore, essential for him not only to prove that his grandfather Akbar Mian had made an oral gift in his favour but it was also essential for him to prove that he accepted the said gift and delivery of possession in relation to the property in question which was the subject matter of the gift, had also been effected.
45. As noticed hereinbefore, Mr. P. K. Prasad, submitted that as the defendants Nos. 1 to 4, in their written statement did not raise any plea whatsoever with regard to the acceptance of gift by Rasool Mian and as such, according to the learned cousel, no amount of evidences would be admissible to show that Rasool Mian accepted the said deed of gift.
46. The learned counsel further submitted that except D.W. 5, no other witnesses of the said gift namely, Md. Hamid or Amaralt Mian had been examined for reasons best known to the defendant No. 1.
47. The learned counsel further submitt-
ed that even the evidence of D.W. 5, who was said to be one of the witnesses of the gift, cannot be relied upon as his son, Samim Ahmad had been doing pairvi in this case on behalf of the defendants Nos. 1 to 4.
48. The learned counsel, in this connection, drew my attention to the statement of D.W. 5 made in paragraph 6 of his evidence.
49. The learned counsel further drew my attention to the evidence of D.W. 1 in paragraph 7 of his deposition, wherein he stated that Akbar Mian till his death had been cultivating the lands in question.
50. The learned counsel further lay strong emphasis upon the deed of sale of dated 27-2-1967 (Ext. 1/C), whereby and whereunder Akbar Mian himself transferred a portion of the property in suit in favour of Md. Raza and others.
51. The learned counsel further submitted that from the aforementioned registered deed of sale dated 27-2-1967 (Ext. 1/C), it would appear that in that deed, Md. Rasool Mian himself identified the executant of the said document namely Akbar Mian.
52. The learned counsel further submitted that although the defendants Nos. 8 to 25 were strangers; in the sale deed which have been executed in this case, Rasool Mian did not make any recital therein to the effect that he became the owner of the property in suit by reason of the alleged oral Hibba made in his favour by Akbar Mian but, on the other hand, made specific recitals to the effect that the property which was the subject matter of the said deeds of sale and thus the properties in suit were being claimed by him in his Mourasi right namely, heritable right.
53. Thus, according to the learned counsel, the defendant No, 1 being bound of the recital made in the afromentioned deed of sale, he must be held to have given a go-by to the story of oral Hibba made in his favour by Akbar Mian.
54. In this connection, the learned counsel has drawn my attention to the fact that in Ext. B, no recital has been made that Rasool Mian got the said properties by virtue of a deed of gift. Similarly in Exts. B/ 3 to Ext. B/6 and Ext. B/8, no such recitals have been made.
55. The learned counsel, however, drew my attention to the fact that Ext. B/1, the vendor namely, the defendant No. I specifically stated that the property in question was being claimed by him in his Mourasi right.
56. The learned counsel, submitted that not only there is no direct evidence of any oral gift made by Akbar Mian but the other ingredients for constituting a valid gift have also not been proved, in view of the fact that in the said deeds of sale even the defendant No. 1 did not claim to have acquired the property in suit by reason of the oral gift, but claimed that the same was his ancestral property.
57. Mr. Eqbal, learned counsel appearing on behalf of the respondents, on the other hand, submitted that so far as the acceptance of gift is concerned, the same need not be express but an implied acceptance also serves the purpose.
58. The learned counsel, in this connection has relied upon a decision of the Allahabad High Court in Mt. Anandi Devi v. Mohan Lal, reported in AIR 1932 All 444 : 1932 ALJ 335 in Pissessar Das v. Ma Yi, reported in AIR 1939 Rangoon 49 and in Ma Mi v. Kallander Ammal, reported in AIR 1927 PC 22 : 25 ALJ 69.
59. The learned counsel, on the basis of the aforementioned decisions, submitted that in view of the fact that the name of Rasool Mian was mutated in the office of the landlord and even according to the plaintiffs' witnesses, rent had all along been realised from him, he must be deemed to have accepted the said gift.
60. The learned counsel, further, drew my attention to the evidence of P.W. 6, who is a Choukidar, who in paragraph 5 of his deposition stated that Rasool Mian had been cultivating the properties in suit.
61. The learned counsel further submitted that P.W. 7, who is husband of plaintiff No. 1, in paragraph 11 of his deposition had further admitted that rent had all along been paid by Rasool Mian.
62. The learned counsel, in this connection, has further relied upon the deposition of D.W. 22, Md. Salim in paragraphs of his deposition who allegedly admitted that the lands in suit had all along been in cultivation/ possession of Rasool Mian and he had been paying rent in respect thereof.
63. The learned counsel, has also referred to the evidence of D.W. 25, Abdul Ghani, who is the husband of plaintiff No. 2 and who has also purchased some lands from Rasool Mian and in paragraph 7 of his deposition admitted that the rent had all along been paid by Rasool Mian.
64. The learned counsel further drew my attention to the evidence of D.W. 10, Abdul Raza who has stated that after purchasing the properties from Akbar Mian by reason of deed of sale dated 27-2-1967 (Ext. 1/C), he again purchased the self-same land from Md. Rasool.
65. The learned counsel further submitted that in the deeds of sale executed by Rasool Mian in favour of the strangers, he stated that he had a raiyati interest in the said lands arid thus, according to the learned counsel, it cannot be said that the defendant No. 1, at any point of time, gave up his case of having acquired title in relation to the properties in suit by reason of oral Hibba granted in his favour by Akbar Mian.
66. It was further submitted by Mr. Eqbal that in view of the fact that the gift was complete in the year 1952, any subsequent conduct, on the part of the donor, i.e. execution of a deed of sale, cannot constitute a revocation of the said gift.
67. In this connection, the learned counsel has drawn my attention to Section 167 of the Mulla's Mahommedan Law and submitted that in view of that provision as the defendant No. I and Akbar Mian came within the purview of the prohibited degree of relationship, Akbar Mian could not have revoked the deed of gift after delivery of possession of the lands in question.
68. In this case, the defendant No. 1 raised a specific plea of an oral Hibba granted in his favour by his grand-father. He, in his written statement, contended that his grandfather made the said oral Hibba in view of the fact that his father, Pirmohamad Mian was not heard for a long time.
69. In the instant case, it is admitted that the defendant No. 1's name was mutated in the office of the State of Bihar and rent receipts had all along been issued in his name.
70. As the defendant No. 1 set up a specific plea of oral Hibba, the onus of proof to prove the said fact was upon him.
71. However, as noticed hereinbefore, some of the witnesses examined on behalf of the defendants supported the case of the plaintiffs, in the sense, that they stated that Akbar Mian had all along been in possession of the lands in suit, whereas some of the witnesses examined on behalf of the plaintiffs stated that Rasool Mian had been cultivating the suit lands.
72. In such a situation, the conduct of Akbar Mian and the defendant No. 1 himself in respect of the properties in question assume great importance.
73. Admittedly, Rasool Mian executed a deed of sale dated 27-2-1967 in favour of Md. Raza and others who has been examined as D.W. 10. The said deed of sale was marked as Ext. 1/C. In the said deed, Akbar Mian contended that he had title in respect of the subject matter of the said deed of sale. In the aforementioned deed of sale, Rasool Mian himself identified Akbar Mian.
74. It is true that D.W. 10 had also obtained a sale deed from Md. Rasool in respect of self same land but he in his evidence categorically stated that when he filed an application for mutation of his name pursuant to the aforementioned deed of sale (Ext. 1/C), the authorities did not allow the said application in view of the fact that the rent receipts used to be granted in the name of Md. Rasool and thus in order to avoid any complication, he also obtained a deed of sale from the defendant No. I.
75. It is thus, clear that even in the year 1967, Akbar Mian claimed title in respect of the property in question which evidently goes against the story of oral Hibba, as set up by the defendant No. 1. If the contention of the defendant No. 1 was correct there was no occasion for the said Akbar Mian to claim title in himself in relation to the said properties. It also does not stand to any reason as to why in such a situation, the defendant No. 1 himself will identify the executant. Even assuming that at that point of time, he was not aware of the contents of the said deed, he must have become aware thereof when Md. Raza himself got a deed of sale executed by him in respect of the self-same land.
76. Further, in the deed of sale dated 26-3-1979 (Ext.B/1) executed by the defendant No. 1 in favour of Abdul Satar and others, the defendant No. 1 himself stated as would appear from the recitals of the said deed that Akbar Mian was the original owner in respect of the properties in suit who died leaving behind son Pirmohammad Mian and the said Pirmohammad Mian inherited the said property and upon his death he became the owner thereof.
In the said deed of sale, the defendant No. 1 further claimed 'Mourasi' right in the said property.
77. As noticed hereinbefore, even in the deed of sale dated 15-1-1975 executed by Rasool Mian which was marked as Ext.B/7 and the deed of sale dated 23-7-1975 which was marked as Ext.E, Rasool Mian claimed Mourasi right in respect of the properties which were the subject matter of the said deeds.
78. The admission made by a party to the suit is admissible against him proprie vigore and in order to make such admission admissible in evidence, it is not even necessary to bring the said fact to the notice of the person making such an admission.
Reference in this connection, may be made to Biswanath Prasad v. Dwarka Prasad, reported in AIR 1974 SC 117.
79. The recitals made in Ext. B/1, wherein the defendant No. 1 himself stated the source of his title completely demolishes the story of the alleged oral Hiba made in his favour by his grandfather.
80. The defendant No. 1, who examined himself as D.W. 14 did not make any attempt whatsoever to resile from or explain away his admission. Even no extrinsic evidence was adduced for the purpose of correcting the said recital.
81. It was further not the case of the defendant No. 1 that the said recitals have been made by him in the said deeds of sale by way of mistake.
82. In a deed of sale, recital relating to the source of the title of the vendor plays an important role. Such recitals coupled with a warranty clause relating to the title of the vendor, are made in a deed of sale so as to ensure the vendee that the vendor had a good title in respect of the subject matter thereof as in the event the same are found to be false, the vendee can claim refund of the consideration amount from the vendor and/or becomes otherwise entitled to recover damages from him.
Thus, recitals in a deed of sale with regard to the source of title of the vendor cannot be said to be immaterial or irrelevant.
83. It is, therefore, clear that the defendant No. 1 became bound by his own admission made in the aforementioned deeds of sale (Ext.B/1).
84. Further, as noticed hereinbefore, in Ext. B/7 as also in Ext. E, the defendant No. 1 claimed title in the properties in his Mourasi right.
85. In Jugal Kishore Mandal v. Fani Bhushan Kundu, reported in 1973 (2) SCC 221 : (AIR 1973 SC 234), mokarari mourasi right has been held to mean a heritable right on payment of fixed lump sum rent. To the same effect is the decision of Calcutta High Court in Bhupendra Chandra Singh v. Harihar Chackravarti, reported in 24 Cal WN 874.
86. Further, as noticed hereinbefore, in the other deeds of sale executed by him namely, Ext.B, B/3, B/4, B/6 and B/8, no recital has been made that the defendant No. 1 got the said properties by virtue of ora! Hibba granted in his favour by his grandfather.
87. In any event, as noticed hereinbefore, in the deed of sale dated 26-3-1979 (Ext.B/1), the defendant No. I clearly stated that his father was alive at the time of the death of Akbar Mian and thus the question of his having been presumed to be dead did (sic) arise. As noticed hereinbefore, according to the defendant No. 1, the reason for making the oral Hibba in his favour by his grana father was that Pirmohamad was not heard of and was presumed to be dead.
88. The defendant No. 1, further, in his evidence categorically stated that he had even no idea as to what were the contents of the written statement filed by him. He further admitted that he had been living separately from his grandfather. He also admitted that after selling of the properties to various persons by virtue of different deeds of sale, he had been living at his father-in-law's place. From the tender of his evidence, it is clear that the suit is being fought out by some other interested persons as the defendant No. 1 himseif had no idea with regard to the same.
89. It is true, as has been contended by Mr. Eqbal that it is always necessary to prove acceptance of the gift expressly but an implied acceptance also serves the purpose.
90. It is further true that in a given case, an action, on the part of the donor, to get the name of the donee mutated in the office of the landlord, coupled with the delivery of possession of the lands to the donee, may constitute an implied acceptance of the deed of gift but in this case, the defendant No. 1's case is that allegedly the oral Hibba took place in the year 1952, thus, there could be no reason in getting the name of the defendant No. 1 mutated in the year 1954 after the estate of the then Zamindar vested in the State of Bihar.
91. The witnesses, examined on behalf of the defendants, stated that no paper was shown at the time of the mutation of the name of the defendant No. 1.
92. As noticed hereinbefore, some of the witnesses examined on behalf of the defen dant No. 1 themselves stated that Akbar Mian had all along been in possession of the lands in suit, whereas some of the witnesses examined on behalf of the plaintiffs admitted that Rasool had been cultivating the lands in suit.
93. There is no direct evidence of delivery of possession of Akbar Mian in favour of Rasool Mian.
94. Taking, thus, all facts and circumstances of the case and particularly in view of the execution of the deed of sale by Akbar in favour of Md. Raza and others (Ext. 1 / C), as also recitals contained in the deeds of sale executed by Md. Rasool in favour of the strangers to the family namely Exts. B/1, B/7 and E, I am of the opinion that the plea of oral gift has been set up by way of an afterthought taking advantage of the fact that Akbar Mian, for some reason or other, got the name of defendant No. 1 mutated in the office of the State of Bihar and the rent receipts were being issued in his name.
95. Even, as noticed hereinbefore, in this regard there is nothing to show that the mutation of the defendant No. 1's name took place in the year 1952 but it appears from the rent receipts (Ext. A series) that rent began to be paid from the year 1954 i.e. after two years from the date of the making the alleged oral Hibba by Akbar Mian.
96. In my opinion, Section 167 of Mulla's Principles of Mohammedan Law has no application in the facts and circumstances of this case inasmuch as the question of relationship of Akbar Mian vis-a-vis, Rasool Mian coming within the category of the prohibited degree, does not arise as they are grandfather and grandson.
97. In that view of the matter, the judgment and decree passed by the learned trial Court, therefore, cannot be sustained.
98. In the result, this appeal is allowed and the judgment and decree passed by the learned Court below is set aside and it is held that the defendants Nos. 5 to 7, having acquired some interest in the properties of Akbar Mian, could execute the deeds of sale in favour of the plaintiffs by Exts. 1 to 1 / b and thus the plaintiffs also have acquired a right to sue for partition and are entitled to the decree, as prayed for.
99. However, in the facts and circumstances of this case, the parties shall bear their own costs.