Madhya Pradesh High Court
Yunus vs Union Of India (Uoi) And Ors. on 26 March, 2002
Equivalent citations: 2002(3)MPHT285
ORDER S.L. Kochar, J.
This order also governs the disposal of the aforesaid Criminal Revision.
1. The aforesaid revisions have been filed by the applicants challenging the order passed by the Special Judge, N.D.P.S. Act, Mandsaur deciding the application of the applicants filed under Section 84 of the Code of Criminal Procedure against the non-applicant No. 2 Mohammad Shaffi, who was absconding and his properties were attached in pursuance of the provisions under Section 83 of the Code of Criminal Procedure.
2. The contention of the applicants before the Court was that the attached properties were gifted to them by oral Hiba (gift). The Trial Court has decided each and every objection separately in great detail. Before the Trial Court, non-applicant No. 2 Mohd. Shaffi was neither appeared personally nor represented by any agent or Counsel to prove that he had gifted all his properties to the applicants. For the first time he has been represented here through Mr. Saraswat, Advocate who submitted that he was authorized to appear on behalf of non-applicant No. 2 by his son in whose favour power of attorney was executed by Mohd. Shaffi long back on 30-5-89. This power of attorney is not registered power of attorney. For the first time, before this Court, Mohd. Shaffi is appearing through Mr. Saraswat and contending that he had gifted his properties to the applicants. Counsel for the applicant vehemently argued and relied on the judgment reported in AIR 1995 SC 1205, Mahboob Sahab v. Sayed Ismail. As per his contention and according to the pronouncement, in Muslim Law gift is not required to be registered under the Registration Act and the same can be done orally.
3. In the present case, donor and donee both are represented and submitted that attached properties was donated by Mohd, Shaffi in favour of the applicant.
4. The contention of the Counsel appearing for the State is that since Mohd. Shaffi is absconding and did not appear before the Trial Court as well as before this Court, he cannot participate for release of the properties on whatsoever ground as per the provisions under Section 85 of the Cr.PC. In the present case, since neither he appeared personally before the Trial Court nor surrendered before this Court, therefore, his claim cannot be entertained. Counsel for the State has also submitted that power filed by the Counsel for" Mohd. Shaffi on the basis of notarised power of attorney dated 30-5-89 has no legal value because the Counsel has no knowledge about whereabouts of Mohd. Shaffi and his son in whose favour power of attorney was executed, is also not able to supply or furnish whereabouts of Mohd. Shaffi whether he is alive or dead or whether he was cancelled his power of attorney after its execution. So no much reliance can be placed on the power of attorney on which basis, Counsel for the applicant Mr. Saraswat is appearing.
5. Having heard the Counsel for the parties and after perusing the record as well as the decision of the Supreme Court in Mahboob Sahab's case (supra) this Court is of the opinion that the order passed by the Trial Court is just and proper. There is no illegality, irregularity or perversity committed by the Trial Court while passing the order rejecting the objection of the applicant filed under Section 84 of the Cr.PC. Apart from this, basic requirements in oral gift as laid down by the Supreme Court in para 5 of the aforesaid judgment are as under :--
"Though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act, a gift to be complete, there should be a declaration of the gift by the doner; acceptance of the gift, expressed or implied by or on behalf of the donee, and delivery of possession of the property, the subject matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift."
6. In the present case, no documents have been filed showing and establishing that after declaration of the gift by the donor and acceptance of the gift by donee, possession of the properties, was given, this could be proved by adducing proper documentary evidence in connection with the agricultural land by producing land record and for the purposes of house by producing mutation order as well as certified copy of the mutation in which the name of the donee is mentioned. So one of the more important ingredients that there was delivery of possession of the property has also not been proved by the applicant as well as non-applicant Mohd. Shaffi who was proceeded ex parte in the Trial Court and now represented by Mr. Saraswat, Advocate.
7. Looking to the matter from all corner, the claim agitated by the claimant has no legal basis and they are unable to establish their claim by adducing cogent and reliable, oral or documentary evidence. Therefore, the same is dismissed.
8. In the result, all the aforesaid criminal revisions are accordingly dismissed. The order of stay passed earlier is vacated and Misc. Criminal Petition stands disposed of.
9. Copy of this order be placed in all the aforesaid connected criminal revisions.