Document Fragment View

Matching Fragments

The defendant thereafter preferred the instant second appeal which was admitted on the following substantial questions of law :-

"(i) Whether the two courts below have committed an error in misreading the evidence which was led by the defendant-appellant in respect of the oral gift said to have been made in the month of January 1987 which has given rise to perverse finding?
(ii) Whether the ingredients of a valid oral gift were duly made out by the defendant-appellant and if so it effects?"

The Court has heard Shri Zafaryab Jilani, learned Senior Advocate along with Ms. Nazam Zafar, learned counsel for the appellant and Shri Mohd. Arif Khan, learned Senior Advocate along with Shri Dipankar Kumar and Shri Mohd. Aslam Khan, learned counsel for the respondent.

Shri Jilani while assailing the two judgments has raised the following submissions in context with the two substantial questions as formulated above:-

(i) The trial court had completely misread the evidence and made a selective reference to the evidence which has given rise to perverse findings regarding the establishment of oral gift. It has been submitted that the defendant had clearly pleaded that the plaintiff had full faith and trust on the defendant and plaintiff on being happy and satisfied with his services, initially, executed a registered Will in favour of the defendant on 05.01.1987 and later on her own volition, she made an oral gift in favour of the defendant in presence of the witnesses. The ingredients for a valid oral gift as contemplated under the Mohamdan Law were clearly made out inasmuch as the same was made with free will by the plaintiff. The aforesaid gift was duly accepted by the defendant. The witnesses before whom the gift was made were examined, who proved the same and the possession was also transferred which was accepted by the defendant and from the date of the said Gift the defendant exercised his exclusive ownership rights and control to the exclusion of the plaintiff.

Sri Jillani, Learned Senior Advocate for the appellant has relied upon the decision of the Hon'ble Apex Court in the case of Rasheeda Khatoon (dead) through LRs vs. Ashiq Ali, 2014 (32) LCD 2188; D.N. Joshi (Dead) through Legal Representatives & Ors. vs. D.C. Harris & Anr., (2017) 12 SCC 624; Municipal Committee, Hoshiarpur vs. Punjab State Electricity Board & Ors., (2010) 13 SCC 216; Yadarao Dajiba Shrawane (dead) by LR's vs. Nanilal Harakchand Shah (dead) & Ors., 2002 (2) JCLR 805 (SC).

Shri Mohd. Arif Khan, learned Senior Advocate for the respondent has also relied upon the decision Smt. Dropadi Devi & Ors. vs. Shiv Chandra Dixit, passed in Second Appeal No.83 of 2014, decided on 23.01.2020 and Tahseen Khan vs. Board of Revenue, U.P., in Writ B No.37674 of 2006, decided on 26.03.2010 regarding the submissions of the ingredients of a valid oral gift in Mohammedan Law. Sri Jillani has referred to certain cases on the point that the jurisdiction of the High Court under Section 100 CPC is not restricted in cases of an appeal arising out of concurrent judgment if there is a perversity in the judgment of the court below, hence it is submitted that notwithstanding the concurrent judgments recording findings of fact yet this Court has ample power to set aside the same and the second appeal deserves to be allowed.

The Court has considered the rival submissions and also perused the the record meticulously.

At the very outset, the decision relied upon by the learned Senior Advocate for the appellant relating to the ingredients of a valid oral gift in the case of Rasheeda Khatoon (supra) is being noticed wherein the Hon'ble Apex Court while considering the earlier decisions and the relevant provisions regarding an oral gift in context with Mohammedan Law has noticed as under:-

"8. ... In this context Sections 123 and 129 of the Transfer of Property Act have to be taken note of. Section 123 of the Act stipulates that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Section 129 provides for savings of donations mortis causa and the gifts made under the Muhammadan law. It is clear from the said provision that the Chapter relating to gifts including registration would not affect any rule of Muhammadan law.