L. Narasimha Reddy, J.@mdashOne 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 immovable properties.
2. 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.
3. 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 u/s 123 of the Transfer of Property Act (for short ''the Act''). He places reliance upon judgments of this Court in Inspector Gen. of Reg. v. Tayyaba Begum 1962 ALTR108 ,
4. 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.
5. 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 plaintiff?
6. 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.
7. 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 registered.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
