[Mayana Saheb Khan v. Mayana Gulab Jan & Ors., AIR 2011 (NOC) 97 AP] The 1st respondent is the wife of late Raheem Khan. Raheem Khan died on 24-6-1997 leaving behind him certain items of movable and immovable properties. The appellant, one of the son filed a suit in the Court against the respondents (being wife, sisters and other sons) for partition and separate possession of the assets left by late Raheem Khan. He claimed his share in those properties in the capacity of sharer of the properties of the deceased. The respondent (wife of deceased) however pleaded that her husband had gifted items 1 and 2 of the suit schedule in her favour and as such, they are not available for partition. The trial Court dismissed the suit. The appellant’s appeal was also dismissed.
In the second appeal the Court observed that the only question for consideration in this case was as to whether a gift said to have been made by a Muslim, which in turn was evidenced through a written document, could be recognised in law, unless the document is registered.
The Court further observed that neither the relationship was disputed, nor the fact that the deceased left behind him, the suit schedule items, was denied. 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. She did not plead ignorance about the document, nor did she plead loss of the same. Therefore, the case of the 1st respondent was to stand or fall, on the proof or otherwise of the gift.
The first respondent did not file the gift khararu-nama. The record discloses that an effort was in fact made by the 1st respondent to make the said document as a part of the record, but when the Court raised an objection as to the stamp duty, the document remained inadmissible, and no efforts were made by the first respondent to rectify the same. Even if it was assumed that the document was part of the record and the deficiency as to stamp duty was rectified, it was still inadmissible. The reason is that it was not registered.
It is a 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. It was 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 recognising the gift pleaded by the 1st respondent.
