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THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY
Second Appeal No.1040 of 2009
Mayana Saheb Khan.
Mayana Gulab Jan and others.
Counsel for the appellant: Sri S.V.Bhatt
Counsel for respondent No.1: Sri D.Kodandarami Reddy
One late Mayana Rouf Khan had three sons, by name Saheb Khan, appellant
herein, Alam Khan, respondent No.11 and late Raheem Khan; and three daughters,
by name Khayamkhani Ghousunnisa, Salawani Mayamunnisa and Habeeba, respondents
12 to 14 herein. The 1st respondent is the wife of late Raheem Khan. Raheem
Khan died on 24.06.1997 leaving behind him certain items of movable and
The appellant filed O.S.No.12 of 1998 in the Court of Senior Civil Judge,
Rayachoty, against the respondents for partition and separate possession of the
assets left by late Raheem Khan. He claimed 21.42% share in those properties
in the capacity of sharer of the properties of the deceased. The suit was
mainly opposed by the 1st respondent. She did not dispute the relationship of
the parties. She however pleaded that her husband gifted items 1 and 2 of the
suit schedule in her favour and as such, they are not available for partition.
The other respondents have adopted the defence offered by the 1st respondent.
Through its judgment, dated 07.10.2005, the trial Court dismissed the suit. The
appellant filed A.S.No.7 of 2008 in the Court of V Additional District Judge,
Rayachoty against the judgment and decree of the trial Court. The appeal was
dismissed on 30.05.2009. Hence, this second appeal.
Sri S.V.Bhatt, learned counsel for the appellant submits that the trial
Court and the lower appellate Court committed a patent error in holding that the
oral gift pleaded by the 1st respondent is proved. He submits that in clear
terms, the 1st respondent pleaded in her written statement that the gift was
evidenced through a Gift Khararunama dated 20.04.1992, so much so, she has
mentioned it, in the list of documents in the written statement but has not
chosen to file the same into the Court. He pleads that though it is competent
for a Muslim to make an oral gift, if one chooses to make it through a written
document, it is required to be registered under Section 123 of the Transfer of
Property Act (for short 'the Act'). He places reliance upon judgments of this
Court in Inspector Gen. Of Reg. Vs. Tayyaba Begum1, Mahendra Apex Corp. Ltd. Vs.
Jafrulla.2, Shaik Khadaru Masthan vs. Smt. Sayyed Fathimun Bee3, Babu Miyan vs.
Hussain Bi4 and Syed Fatahuddin vs. Golla Shadrak5.
Sri D.Kodandarami Reddy, learned counsel for the 1st respondent, on the
other hand, submits that the oral gift was proved beyond any reasonable doubt
and the trial Court and the lower appellate Court have recorded findings on the
basis of the same. He submits that when an oral gift is proved, the mere
mention thereof in a written document does not make it inoperative, in law.
The suit filed by the appellant herein was the one, for partition and
separate possession of the suit schedule properties. The suit was opposed by
the 1st respondent alone. The trial Court initially framed two issues viz.,
whether the plaint schedule properties are liable for partition and whether the
plaintiff is entitled to the extent of 21.42% towards his share in the plaint
schedule properties. Thereafter, an additional issue was framed viz., whether
D-11 has been in joint possession of the suit schedule property along with the
On behalf of the appellant, P.Ws.1 to 5 were examined and Exs.A.1 to A.4
were filed. On behalf of the respondents, D.Ws.1 to 3 were examined and Exs.B.1
to B.3 were filed. The suit was dismissed and the lower appellate Court upheld
the decree of the trial Court.
The only question that arises for consideration in this case is as to
whether a gift said to have been made by a Muslim, which in turn is evidenced
through a written document, can be recognized in law, unless the document is
After narrating the relationship between himself and the other respondents
and furnishing the list of properties left by his deceased brother, the
appellant prayed for partition. Neither the relationship was disputed nor the
fact that the deceased left behind him, the suit schedule items, was denied.
Further, if one takes into account, the principles of Muslim law, the share
claimed by the appellant turns out to be correct. The only dispute was about
items 1 and 2 of the suit schedule, in respect of which the 1st respondent
claimed gift in her favour. The plea raised by the 1st respondent as to the
gift of the said items is contained in paragraph 8 of her written statement,
which reads as under:
As already submitted Rahim Khan suffered of heart complaint 1991 onwards.
As he was felt that he may not survive long and to avoid future complications
and to give sale life to his wife who is serving him, Rahim Khan gifted items 1
and 2 of the plaint schedule in the presence of V.Dasthagiri Sab (2) Gaffar Sab
and S.Illeas Basha on 20.4.92 executed a gift Khararu agreement in their
presence and delivered the properties to her. In their presence, he also orally
expressed his intention of gift and delivered the properties to her. Since then
this Defendant is in absolute possession and enjoyment of the said items 1 and 2
of the suit properties. She is living in item NO.1 of the suit property. The
Government has also issued pattadar pass books in her name.
She did not plead ignorance about the document nor did she plead loss of
the same. In fact, she made a mention of it at item No.3 of the list of
documents appended to the written statement. Therefore, the case of the 1st
respondent was to stand or fall, on the proof or otherwise of the gift.
For the reasons best known to her, the 1st respondent did not file the
gift khararu nama dated 20.04.1992. The record discloses that an effort was in
fact made by the 1st respondent to make the said document as part of record, but
when the Court raised an objection as to the stamp duty, the document remained
inadmissible, and no efforts were made to by the 1st respondent to rectify the
same. Even if it is assumed that the document was part of record and the
deficiency as to stamp duty was rectified, it was still inadmissible. The
reason is that it was not registered.
It is settled principle of law that it is the prerogative of a Muslim, to
effect gift of immovable properties without even executing a written document,
much less registering the same. Oral gift in respect of such persons is
permissible. Where however, the gift is said to have been made through a
written document, it is required to conform with Section 123 of the Act. In the
judgments, referred to above, which are relied upon by the learned counsel for
the appellant, this Court held that a document which evidences a gift, though
made by a Muslim, cannot be acted upon, unless it accords with Section 123 of
the Act. In the instant case, the document was admittedly unregistered and as
such, the gift pleaded by the 1st respondent could not have been accepted at
all. The trial Court and the lower appellate Court committed serious error of
law in recognizing the gift pleaded by the 1st respondent.
For the foregoing reasons, the second appeal is allowed and the
preliminary decree shall ensue as prayed for, in respect of the suit schedule
properties. There shall be no order as to costs.
?1 1962 Andhra Law Times Reports 108
2 1997(2) ALT 259 (D.B.)
3 2007(6) ALT 220
4 2008(1) ALD 641
5 2004(6) ALT 753