Karnataka High Court
Maqbool Sab @ Maqboob Baig S/O Mukhtar ... vs Putlibee W/O Masthan Sab on 14 August, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC-K:4655
RSA No. 7215 of 2009
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO.7215 OF 2009 (DEC/POS)
BETWEEN:
MAQBOOL SAB @ MAQBOOB BAIG
DIED IS LRS.
1(a) MUKTAR BAIG
S/O LATE MAQBOOL SAB @
MAQBOOB BAIG,
AGE: 52 YEARS,
OCC: BUISNESS,
R/O: ASHREYA, COLONY, ZAFARABAD,
JAFARABAD, KALABURAGI - 585 103.
1(b) MIRZA MAHBOOB BAIG
S/O LATE MAQBOOL SAB @
Digitally signed MAQBOOB BAIG,
by RENUKA
AGE: 41 YEARS,
Location: HIGH
COURT OF OCC: BUSINESS,
KARNATAKA R/O: MADANNA PETITIONER,
SALAR NAGAR, SAIDABAD, HYDERABAD.
1(c) SUFIAYA BEGUM
W/O MIRZA MAQBOOL BAIG,
AGE: 77 YEARS,
OCC: HOUSEHOLD,
R/O: 17-1-30/128 EDI BAZAR,
RANI CHANDRA NAGAR, CHARMINAR,
YAKUTPURA, HYDERABAD,
(TELANGANA STATE) - 500 059.
PRESENTLY ASHREYA, COLONY, ZAFARABAD,
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RSA No. 7215 of 2009
HC-KAR
JAFARABAD, KALABURAGI - 585 103.
1(d) NASREEN BEGUM
W/O ABDUL MUJEEB,
AGE: 48 YEARS,
OCC: HOUSEHOLD,
R/O: 17-1-30/128, EDI BAZAR,
RANI CHANDRA NAGAR, CHARMINAR,
YAKUTPURA, HYDERABAD,
(TELANGANA STATE) - 500 059.
PRESENTLY ASHREYA, COLONY, ZAFARABAD,
JAFARABAD, KALABURAGI - 585 103.
...APPELLATS
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATE FOR
SRI FAIZUDDIN K. ZARDI, ADVOCATE A1(A) TO A1(D))
AND:
PUTLIBEE
W/O MASTHAN SAB,
AGE: 45 YEARS,
OCC: AGRICULTURE,
R/O: MADARGI,
TQ: HUMNABAD,
DIST: BIDAR - 585 330.
...RESPONDENT
(BY SMT. HEMA L.KULAKARNI, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, PRAYING TO ALLOW THE SECOND
APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE
PASSED IN R.A.NO.46/2005 BY THE LEARNED CIVIL JUDGE
(SR.DN), BASAVAKALYAN (CAMP AT HUMNABAD) DATED
07.08.2009 AND RESTORE THE JUDGMENT AND DECREE
PASSED IN O.S.NO.115/1987 BY THE PRINCIPAL CIVIL JUDGE
(JR.DN.) HUMNABAD, IN THE INTEREST OF JUSTICE.
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NC: 2025:KHC-K:4655
RSA No. 7215 of 2009
HC-KAR
THIS RSA, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR
AMARANNAVAR
ORAL JUDGMENT
This second appeal is filed by the appellant/plaintiff praying to set aside the judgment and decree dated 07.08.2009, passed in R.A.No.46/2005, by the learned Civil Judge (Sr.Dn.), Basavakalyan (Camp at Humnabad) and to restore the judgment and decree dated 29.08.2005, passed in O.S.No.115/1987, by the Principal Civil Judge (Jr.Dn.), Humnabad.
2. The appellant/plaintiff has filed a suit in O.S.No.115/1987 against the respondent/defendant seeking declaration that he is the owner of the suit land bearing Sy.No.86 measuring 3 acres 12 guntas situated at Madargi village, Humnabad Taluk and recovery of possession of the suit property from the -4- NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR respondent/defendant. The plaintiff has also sought relief of declaration that the registered release deed dated 16.03.1982 bearing No.7480 executed by Hayatbee as null and void and not binding upon the plaintiff and the plaintiff is entitled to get entered his name in the record of right in respect of the suit land.
3. The case of the plaintiff is based on the oral gift stated to have been executed by Khajasab in his favour when he was minor. The said Khajasab was maternal grandfather of the plaintiff and he was the owner of the suit land. The said Khajasab had one son by name Fatru Patel and three daughters by name Zunnubee, Ahmedbee and Bibi. The son of the said Khajasab by name Fatru Patel was murdered before the police action. During the lifetime of the said Khajasab, the said Fatru Patel died leaving behind his wife Rabanbee and daughter by name Hayatbee. The plaintiff is the son of the Ahmedbee and grandson of Khajasab. The said Khajasab, the maternal grandfather of the plaintiff died about five years after the -5- NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR police action. At the time of his death, the mother of the plaintiff by name Ahmedbee along with the plaintiff used to reside with the Khajasab. The said Khajasab, being the maternal grandfather of the plaintiff, out of love and affection and also services rendered by the mother of the plaintiff, had gifted the suit property in favour of the plaintiff along with all other properties situated at Madargi village and Salgar Basanthpur village. The said gift was accepted by the mother of the plaintiff by name Ahmedbee on behalf of the plaintiff, as the plaintiff was minor, under the care and custody of his mother in the month of April, 1950 and on the very same day, in pursuance of the oral gift, possession of the suit property along with other properties have been delivered to the mother of the plaintiff. Since then, the plaintiff is in exclusive possession and in enjoyment of the suit property till he was remanded to jail.
4. The plaintiff was convicted by the Sessions Court, Bidar in a murder case and he was in Central Jail, -6- NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR Kalaburagi upto 13.08.1979. After his release from bail, he started to reside at Hyderabad, as the complainant of the said murder case has threatened the plaintiff to take his life. The plaintiff seven months prior to filing of the suit, came back to Madargi village and made an enquiry about the suit property and he came to know that the defendant, Putlibee is unauthorizedly and illegally cultivating the suit land in his absence. The plaintiff obtained record of rights of the suit property and came to know that the defendant behind back of the plaintiff got entered her name to the suit property on the basis of the release deed alleged to have been executed by Hayatbee D/o Fatru Patel. The said Hayatbee had no right and title over the suit land. Therefore, she cannot execute the said release deed in favour of the defendant in respect of the suit land.
5. The defendant in written statement contended that Khajasab was the owner and possessor of the suit land and he had a son by name Fatru Patel. The said -7- NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR Khajasab died about 55 years back and thereafter, his son Fatru Patel died about 50 years back. Khajasab died before the police action and Fatru Patel died after the police action. The said Fatru Patel died leaving behind his wife Rabiya bee and a daughter by name Hayatbee. The defendant contended that the deceased Khajasab never gifted away the suit property in favour of the plaintiff through his mother Ahmedbee. It is the plaintiff and his mother not resided along with the Khajasab and not rendered any services to him. The possession of the suit property has not been delivered in favour of the plaintiff by deceased Khajasab. No mutation has been sanctioned in the name of the plaintiff on the basis of the alleged oral gift. The defendant acquired the suit property under the release deed executed by late Hayatbee, the daughter of Fatru Patel. The said Fatru Patel was the owner and possessor of the suit property and after his demise, his daughter has become the owner and possessor of the suit property and during her lifetime, she executed the -8- NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR registered release deed in respect of the suit property on 16.03.1982 and since then the defendant came in actual possession and enjoyment of the suit property, as the owner and mutated her name in the property records.
6. On the basis of the said pleadings, the Trial Court has framed the following issues:
"1. Whether the plaintiff proves that, his maternal grand father Khaja Sab made oral gift in favour of him, in respect of suit properties?
2. Whether the plaintiff further proves that, his mother Smt. Ahamad Bee accepted the oral gift of suit properties, on his behalf, as he was minor at that time?
3. Whether the plaintiff further proves that the registered release deed executed by Smt. Hayat Bee, in favour of defendant is null, void and not binding upon him?
4. Whether the defendant proves that the suit of the plaintiff is not maintainable for the various reasons as stated in the further facts at A(i) to
(v) of his written statement?-9-
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5. Whether the defendant is entitled for costs of Rs.10,000/- as prayed by him in his W.S.?
6. Whether the plaintiff is entitled for declaration as sought for?
7. Whether the plaintiff is entitled for injunction as prayed for?
8. What decree or order?"
7. The general power of attorney holder of the plaintiff has been examined as P.W.1 and got examined one witness as P.W.2 and got marked Exs.P.1 to 7. After remand of the suit, the plaintiff has been examined as P.W.3 and again general power of attorney holder has been examined as P.W.4 and got examined one witness as P.W.5, who is the witness to the oral gift and got marked Exs.P.8 to 12. The defendant examined herself as D.W.1 and examined two witnesses as D.W.2 and D.W.3 and got marked Exs.D.1 to 9.
8. The Trial Court after hearing the arguments on both sides, appreciated the evidence on record and
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NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR answered issue Nos.1 to 3, 6 and 7 in the affirmative and issue Nos.4 and 5 in the negative and decreed the suit of the plaintiff.
9. Being aggrieved by the said judgment of the Trial Court, the respondent/defendant has filed R.A.No.46/2005. The First Appellate Court after hearing the arguments on both sides, has formulated the following points for consideration:
"1) Whether the judgment and decree under appeal are contrary to law and evidence on record?
2) Whether there are any grounds for this court to interfere in the judgment and decree under appeal?
3) What order?"
10. The First Appellate Court answered point Nos.1 and 2 in the affirmative and allowed the appeal by setting aside the judgment and decree passed in O.S.No.115/1987.
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11. The First Appellate Court only on the point that the mother cannot act nor can be appointed as a property guardian of the minor and she equally cannot act as legal guardian, held that the oral gift made by Khajasab in favour of the plaintiff is not a valid gift and the plaintiff cannot become the owner of the suit land on the basis of the said oral gift.
12. The second appeal came to be admitted to consider the following question of law:
"Whether in the facts, circumstances and evidence on record, the lower appellate court was justified in dismissing O.S.115/87?"
13. Heard learned counsel for the appellant and learned counsel for the respondent.
14. Learned counsel for the appellant would contend that the mother of the plaintiff even though not a de jure guardian under Section 359 of the Mohammedan Law, she is a de facto guardian under Section 361 of the
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NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR Mohammedan Law. Considering the said aspect, the Trial Court has rightly held that the oral gift is valid and decreed the suit.
15. Learned counsel for the respondent would contend that the mother is not a legal guardian of her minor son and it is the father, father's father are the legal guardian under Section 359 of the Mohammedan Law and therefore possession on the basis of the oral gift accepted by the mother of the plaintiff, on behalf of her minor son is not valid. On that point she placed reliance on the decision of the Hon'ble Apex Court in the case of Gulamhussain Kutubuddin Maner Vs. Adbulrashid Abdulrajak Maner and others reported in (2000) 8 SCC 507. On the same point, she also placed reliance on the decision of the Hon'ble Apex Court in the case of Mahaboob Sahab Vs. Syed Ismail reported in ILR 1996 KAR 165 (SC) which has been relied by the First Appellate Court. She further submits that considering the said aspect, the First
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NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR Appellate Court has rightly allowed the appeal and set aside the decree passed by the Trial Court.
16. Considering the above, what is to be considered is whether the mother of the appellant/plaintiff who acted as his guardian during his minority, can act as guardian of her minor son for receiving possession of property under oral gift?
17. Section 156 of the Mohammedan Law reads as under:
"§156. Gift to a minor by a person other than his father or guardian A gift to a minor or to a lunatic by a person other than his father or guardian may be completed by delivery of possession to the father or guardian. A gift will also be complete when a minor, who has attained discretion, himself takes possession.
18. Considering the said provision, it is clear that a gift to a minor by a person other than his father or guardian may be completed by delivery of possession to the father or guardian.
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19. Section 359 of the Mohammedan Law reads as under:
"§359. Legal guardians of property The following persons are entitled in the order mentioned below to be guardians of the property of a minor:-
(1) the father;
(2) the executor appointed by the father's will;
(3) the father's father;
(4) the executor appointed by the will of the father's father."
20. The persons shown under this Section are the legal guardians of a minor for his property. These guardians are de jure guardians of a minor of his property.
21. Section 361 of the Mohammedan Law reads as under:
"§361. De facto guardian A person may neither be a legal guardian (§359) nor a guardian appointed by the Court (§360), but may have voluntarily placed himself in charge of the person
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NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR and property of a minor. Such a person is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor."
22. In the absence of legal guardian under Section 359 of the Mohammedan Law, a person voluntarily placed himself in charge of the person and property of a minor is called de facto guardian. The mother, brother, uncle and all relations other than the father and father's father are de facto guardians. The de facto guardian has no power to transfer any right or interest of an immovable property of the minor and that such a transfer is not merely voidable but void.
23. In the case on hand, the mother of the plaintiff namely, Ahmedbee has not transferred any right, title or interest of the property of minor son.
24. In Mahaboob Sahab supra, the Hon'ble Apex Court held that the mother cannot act as a property guardian when the father is alive. In Gulamhussain
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NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR Kutubuddin Maner supra, the Hon'ble Apex Court has held thus:
"2. We have heard Counsel for the parties. On the argument of the learned counsel for the parties the first question that arises for our consideration is whether, under Mohammedan Law, a mother can be appointed to act as guardian of her minor son during the lifetime of the minor's father. So far as this question is concerned, the High Court relying upon the decision of this Court in Valia Peedikakkandi Kutheessa Umma and Ors. v. Pathakkalan Narayanath Kunhamu [AIR 1964 SC 275] allowed the appeal filed by the defendant-respondent. We find that the said decision is not applicable to the case of defendant-respondent, whereas, it squarely applies to the case of the plaintiff- appellant. We shall advert to the said decision slightly later. Under Mohammedan Law, gift is a donation conferring right of property without exchange. The gift is in the nature of contract where there must be a tender of property, acceptance of the property by the donee and delivery of possession of the property. It is only when these three ingredients are satisfied a gift is completed. The object behind the compliance with
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NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR the three ingredients is that there may not be any future dispute in respect with the property that is gifted to the donee. In the present case it is not disputed that the father of the minor was alive at the time of execution of the gift. The question that arises is whether, during the lifetime of father, the mother can be appointed as guardian of her minor son and accept the gift on his behalf. In Musa Miya Walad Mahammad Shaffi Vs.. Kadar Bax Walad Khaj Bax [AIR 1928 Privy Council p. 108] it was held that the gift by the grandfather to his minor grandson when the father was alive without delivery of possession was invalid. In Suna Meah v. S.A.S. Pillai [ILR 1933 11 Rang. 109] a gift to minor through the mother was considered invalid. In Musa Miya v. Kadar Bax it was held that a gift by a grandfather to his minor grandson when the father was alive, without delivery of possession to the father was invalid. The Supreme Court in the case of Valia Peedikakkandi Kutheessa Umma (supra), after considering the said decisions held, thus:
"Both these cases involve gifts in favour of minors whose fathers were alive and competent. They are distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such
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NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR cases, the benefit to the minor and the completion of the gift for his benefit is the sole consideration."
The aforesaid passage from Valia Peedikakkandi Kutheessa Umma case (supra), unambiguously holds that where the father of a minor is alive the mother of the minor cannot act as a guardian of her minor son to accept the gift on his behalf. In view of the said legal position, we are of the view that where the father of a minor is alive, the mother of a minor cannot be appointed as a guardian of a minor to accept the gift on his behalf.
3. Coming to the next question as to whether the decision of this Court in Valia Peedikakkandi Kutheessa Umma case (supra) is applicable to the case of the defendant- respondent. In the said case the property was gifted by a husband to his minor wife who had attained discretion. At the time of gift, the father or grand-father of minor wife were not alive and minor wife had only her mother. On such facts, this Court in Valia Peedikakkandi Kutheessa Umma case held, as thus:
"In our judgment, the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though not in
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NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR marzulmaut. His minor wife who had attained discretion was capable under Mohammedan Law to accept the gift, was living at her mother's house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed, which was registered and handed over by Mammotty to his mother-in-law and accepted by her on behalf of the minor."
4. The aforesaid view of this Court can be applied where the father or the grandfather of the minor are not alive, and in such cases the mother and in her absence any other person could be appointed as a guardian of the minor which is not the case before us. Here, we find that the father of the minor was alive and therefore, the mother could not have been appointed to act as a guardian of minor and to accept the gift on his behalf and, therefore, the gift executed by the donor in favour of minor donee was invalid."
(Emphasis Supplied)
25. In the above case, the father of the minor was alive and therefore the mother could not have been appointed to act as a guardian of the minor and to accept the gift on his behalf.
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26. In the case on hand, on close reading of the pleadings, oral evidence and documents, there was no any reference that the father of the plaintiff was alive at the time of oral gift during April, 1950.
27. D.W.2 Shivappa S/o Hussainappa in paragraph No.4 of his examination-in-chief has stated that after the death of Fatru Patel, the appellant/plaintiff with his mother came to village Madargi and was doing coolie work. D.W.2 even though was aged about 85 years as on the date of examination-in-chief, has not stated regarding the father of the plaintiff whether alive or not as on the date of oral gift during April, 1950. Even there is no any reference regarding the father's father of the plaintiff whether alive or not as on the date of oral gift during April, 1950. The decision relied upon by the learned counsel for the respondent does not apply to the case on hand, as in that case, the father of the minor was alive. In the present case, if the father and father's father of the minor plaintiff were alive as on the date of the oral gift during April,
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NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR 1950, the same is not pleaded in the pleadings or stated in the evidence. Therefore, in the absence of legal guardian, father or father's father under Section 359 of the Mohammedan Law, the mother, who is the de facto guardian under Section 361 of the Mohammedan Law can act as guardian of property on behalf of her minor son and accept the oral gift made by her father Khaja Sab in favour of his grandson Maqbool Sab (plaintiff). Considering the said aspect, the Trial Court has rightly appreciated the evidence on record and rightly decreed the suit of the appellant/plaintiff. The First Appellate Court has erred in allowing the appeal and dismissing the suit. Accordingly, question of law is answered.
28. In the result, the following:
ORDER (1) The Regular Second Appeal is allowed.
(2) The impugned judgment and decree dated 07.08.2009 passed by the Civil Judge (Sr.Dn),
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NC: 2025:KHC-K:4655 RSA No. 7215 of 2009 HC-KAR Basavakalyan (Camp at Humnabad) in R.A.No.46/2005 is set aside.
(3) The judgment and decree dated 29.08.2005, passed in O.S.No.115/1987 by the Principal Civil Judge (Jr.Dn.), Humnabad is hereby restored.
Sd/-
(SHIVASHANKAR AMARANNAVAR) JUDGE RSP List No.: 1 Sl No.: 12 CT: VK