# Noor Ahmad v. Mohd. Ahmad

- **Citation:** (2023) 9 ILRA 320
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-25
- **Case number:** First Appeal No. 30 of 1977
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/noor-ahmad-v-mohd-ahmad-50782
- **Pages:** 27

## Headnote

A. Civil Law -Civil Procedure Code, 1908Section 96 - Order 41 Rule 27- suit for
eviction
and
damages
for
use
and
occupation has been decreed in favour of
the plaintiffs/respondents-The case of the
plaintiffs was that their father Quadir
Mian had gifted the property in question
to the plaintiffs by means of registered
gift deed dated 20.04.1967. In terms of
the said gift deed the plaintiffs have the
title to the same and since the defendants
who are their step brothers (sons of
Quadir Mian from his first wife) who
requested the plaintiffs to permit them to
continue with their occupation in the
disputed property for sometime and they
promised to vacate the same and later as
they refused to do so, hence the plaintiffs
treating
the
defendants
as
licencees
terminated their licence and issued a
notice for vacation of the premises which
was not complied with and thus instituted
the suit seeking decree of eviction as well
as
damages
for
wrongful
use
and
occupation.The
defendants
filed
their
written statement and contested the suit
on the premise that the property in
question belonged to Barati Mian, the
grand father of the defendants (father of
Quadir Mian). As Barati Mian was aware of
the fact that after Quadir Mian had remarried, his relations with his children
from the first marriage was not cordial,
hence in order to protect and secure the
rights of the children from the first
marriage of Quadir Mian, Barati Mian had
gifted the property to the defendants and
as such they claimed their title over the
same and that for the said reason the
plaintiffs could not seek their eviction nor
could seek damages for wrongful use and
occupation.Even after the death of Barati
Mian in the year 1950, the said document
was never handed over nor there is any
reference to it in the pleadings of the
defendants. Saffi-ul-laha being the son of
Barati Mian and real brother of Quadir
Mian and father-in-law of the defendants
could very well throw light on the
aforesaid aspect as well that is to say that
whether any division was made by Barati
Mian during his lifetime and that each of
the
sibling
of
Saffi-ul-laha
got
the
property which is in their possession, as
divided by Barati Mian and what portion
was
gifted
to
the
defendants
from
amongst the properties of Barati Mian. He
was also an important witness to depose
whether
the
house
in
Kazipur
was
purchased by Quadir Mian to settle his son
from his first wife or it was actually
purchased by the uncle (Mama) of the
defendants. The defendants also did not
lead any evidence in this regard nor filed
the deed of the property of Kazipura on
record. In light of whatever evidence was
on record including the deposition of
Sirajuddin this Court has no hesitation to
concur with the reasons given by the trial
Court and the Court finds that the alleged
gift set up by the defendants could not be
cogently proved whereas the gift made by
9 All. Noor Ahmad Vs. Mohd. Ahmad
321
the Quadir Mian in favour of the plaintiffs
which was reduced in writing and duly
registered before the office of SubRegistrar on 20.04.1967 has been proved
and that it is not bad as the gift of
undivided 'Musha'. Hence, this Court finds
that there is no error in the judgment and
decree passed by the trial Court dated
06.04.1977
passed
in
Regular
Suit
No.14/1973 and it is affirmed.(Para 1 to
78)
B. 'Under the Mohammedan law the three
essential requisites to make a gift valid
are: (1) declaration of the gift by the
donor, (2) acceptance of the gift by the
donee expressly or impliedly, and (3)
delivery of possession to and taking
possession thereof by the donee actually
or constructively. No written document is
required in such a case. Section 129 of the
Transfer of Property Act excludes the rule
of Mahomedan Law from the purview of
Section 123 which mandates that the gift
of immovable property must be effected
by a registered instrument as stated
therein. But it cannot be taken as a sine
qua non in all cases

## Text

_Characters 0–39,987 of 94,634. This is a partial read: ask again with offset=39987 for what follows._

320 INDIAN LAW REPORTS ALLAHABAD SERIES

34. The objections raised to the
maintainability of the appeal, are, therefore,
held to be legally unsustainable.

35. As prayed by learned counsel for
the
parties,
list
for
admission
on
27.09.2023, as fresh.
----------
(2023) 9 ILRA 320
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.09.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

First Appeal No. 30 of 1977

Noor Ahmad ...Appellant
Versus
Mohd. Ahmad ...Respondent

Counsel for the Appellant:
Smt. S. Rahman, A.A. Siddiqui, Mohammad
Aslam Khan, Mohd. Aslam Khan. Z. Jilani

Counsel for the Respondents:
K.B. Sinha, Alok Sinha, Durgesh Kumar Pathak,
P.K. Khare, Shashwat Srivastava, Umesh Kumar
Srivastava, V. Mishra

A. Civil Law -Civil Procedure Code, 1908Section 96 - Order 41 Rule 27- suit for
eviction
and
damages
for
use
and
occupation has been decreed in favour of
the plaintiffs/respondents-The case of the
plaintiffs was that their father Quadir
Mian had gifted the property in question
to the plaintiffs by means of registered
gift deed dated 20.04.1967. In terms of
the said gift deed the plaintiffs have the
title to the same and since the defendants
who are their step brothers (sons of
Quadir Mian from his first wife) who
requested the plaintiffs to permit them to
continue with their occupation in the
disputed property for sometime and they
promised to vacate the same and later as
they refused to do so, hence the plaintiffs
treating
the
defendants
as
licencees
terminated their licence and issued a
notice for vacation of the premises which
was not complied with and thus instituted
the suit seeking decree of eviction as well
as
damages
for
wrongful
use
and
occupation.The
defendants
filed
their
written statement and contested the suit
on the premise that the property in
question belonged to Barati Mian, the
grand father of the defendants (father of
Quadir Mian). As Barati Mian was aware of
the fact that after Quadir Mian had remarried, his relations with his children
from the first marriage was not cordial,
hence in order to protect and secure the
rights of the children from the first
marriage of Quadir Mian, Barati Mian had
gifted the property to the defendants and
as such they claimed their title over the
same and that for the said reason the
plaintiffs could not seek their eviction nor
could seek damages for wrongful use and
occupation.Even after the death of Barati
Mian in the year 1950, the said document
was never handed over nor there is any
reference to it in the pleadings of the
defendants. Saffi-ul-laha being the son of
Barati Mian and real brother of Quadir
Mian and father-in-law of the defendants
could very well throw light on the
aforesaid aspect as well that is to say that
whether any division was made by Barati
Mian during his lifetime and that each of
the
sibling
of
Saffi-ul-laha
got
the
property which is in their possession, as
divided by Barati Mian and what portion
was
gifted
to
the
defendants
from
amongst the properties of Barati Mian. He
was also an important witness to depose
whether
the
house
in
Kazipur
was
purchased by Quadir Mian to settle his son
from his first wife or it was actually
purchased by the uncle (Mama) of the
defendants. The defendants also did not
lead any evidence in this regard nor filed
the deed of the property of Kazipura on
record. In light of whatever evidence was
on record including the deposition of
Sirajuddin this Court has no hesitation to
concur with the reasons given by the trial
Court and the Court finds that the alleged
gift set up by the defendants could not be
cogently proved whereas the gift made by
9 All. Noor Ahmad Vs. Mohd. Ahmad
321
the Quadir Mian in favour of the plaintiffs
which was reduced in writing and duly
registered before the office of SubRegistrar on 20.04.1967 has been proved
and that it is not bad as the gift of
undivided 'Musha'. Hence, this Court finds
that there is no error in the judgment and
decree passed by the trial Court dated
06.04.1977
passed
in
Regular
Suit
No.14/1973 and it is affirmed.(Para 1 to
78)
B. 'Under the Mohammedan law the three
essential requisites to make a gift valid
are: (1) declaration of the gift by the
donor, (2) acceptance of the gift by the
donee expressly or impliedly, and (3)
delivery of possession to and taking
possession thereof by the donee actually
or constructively. No written document is
required in such a case. Section 129 of the
Transfer of Property Act excludes the rule
of Mahomedan Law from the purview of
Section 123 which mandates that the gift
of immovable property must be effected
by a registered instrument as stated
therein. But it cannot be taken as a sine
qua non in all cases that whenever
there is a writing about a Mahomedan
gift of immovable property there must
be registration thereof. Whether the
writing requires registration or not
depends on the facts and circumstances
of case. a gift under the Muhammadan
law can be an oral gift and need not be
registered; that a written instrument
does
not,
under
all
circumstances
require registration; that to be a valid
gift under the Muhammadan law three
essential
features,
namely,
(i)
declaration of the gift by the donor, (ii)
acceptance of the gift by the donee
expressly or impliedly, and (iii) delivery
of
possession
either
actually
or
constructively to the donee, are to be
satisfied;
that
solely
because
the
writing is contemporaneous
of the
making of the gift deed, it does not
warrant registration under Section 17
of the Registration Act.(Para 48)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Nafees Ahmad Vs Gulam Mohammad. Second
Appeal No.77 of 2016

2. Hafeeza Bibi Vs Sk. Farid (2011) 5 SCC 654 :
(2011) 3 SCC (Civ) 103

3. Mahboob Sahab Vs Syed Ismail (1995) 3 SCC
693

4. Nasib Ali Vs Wajid Ali (1927) AIR Cal 197

5. Kamar-un-Nissa Bibi Vs Hussaini Bibi (1881)
ILR 3 All 266

6. Karam Ilahi Vs Sharfuddin (1916) AIR All 351

7. Rasheed Khatoon VsAshiq Ali (2014) 32 LCD
2188

8. Kairum Bi & ors. Vs Mariam BI & anr.. (1959)
SCC Online Madras 281

9. Sk. Mohd. Mumtaz Ahmad Vs Zubaida Jan
(1889) 16 Ind App 205 (PC)

10. S. K. Aftab Husain & anr. Vs Smt. Tayabba
Begam & anr. (1972) SCC OnLine All 373

11. Sheikh Md. Mumtaz Ahmad Vs Zubaida Jan
(1888-1889) 16 Ind APP 205 PC

12. Hamid Ullah Vs Ahmad Ullah (1936) AIR All
473

13. Hayatuddin Vs Abdul Gani & ors. (1974) SCC
OnLine Bompay 35

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The instant first appeal has been
filed by the defendants/appellant under
Section 96 CPC against the judgment and
decree dated 06.04.1977 passed by the Ist
Additional District Judge, Bahraich in
Regular Suit No.14 of 1973 whereby the
suit for eviction and damages for use and
occupation has been decreed in favour of
the plaintiffs/respondents. For the sake of
322 INDIAN LAW REPORTS ALLAHABAD SERIES
convenience this Court shall refer to the
parties as impleaded in the trial court.

2. The brief facts giving rise to the
instant appeal are being noticed herein
after:-

3. The plaintiffs [respondents herein]
instituted a suit against the defendants Noor
Ahmad and Shamshuddin [appellant before
this Court] for eviction from a shop,
godown and upper portion of the disputed
house in question and also for a decree of
damages for wrongful use and occupation.

4. The case of the plaintiffs was that
their father Quadir Mian had gifted the
property in question to the plaintiffs by
means of registered gift deed dated
20.04.1967. In terms of the said gift deed
the plaintiffs have the title to the same and
since the defendants who are their step
brothers (sons of Quadir Mian from his first
wife) who requested the plaintiffs to permit
them to continue with their occupation in
the disputed property for sometime and
they promised to vacate the same and later
as they refused to do so, hence the plaintiffs
treating
the
defendants
as
licencees
terminated their licence and issued a notice
for vacation of the premises which was not
complied with and thus instituted the suit
seeking decree of eviction as well as
damages for wrongful use and occupation.
Significantly, the plaint also contained a
map indicating the portion which was in the
possession of the plaintiffs and the
defendants respectively.

5. The defendants filed their written
statement and contested the suit on the
premise that the property in question
belonged to Barati Mian, the grand father
of the defendants (father of Quadir Mian).
As Barati Mian was aware of the fact that
after Quadir Mian had re-married, his
relations with his children from the first
marriage was not cordial, hence in order to
protect and secure the rights of the children
from the first marriage of Quadir Mian,
Barati Mian had gifted the property to the
defendants and as such they claimed their
title over the same and that for the said
reason the plaintiffs could not seek their
eviction nor could seek damages for
wrongful use and occupation.

6. The trial court on the exchange of
the pleadings framed five issues which read
as under:-

(1) Whether the property in suit
belonged to Mohd. Quadir Mian as alleged
by the plaintiffs if so did he make a gift of
the property to the plaintiffs?

(2) Whether the property in suit
belonged to the father of Quadir Mian and
he made a gift in favour of the defendants
and his brother Badruddin as pleaded in
para-17 of the written statement?

(3) Whether the suit is bad for nonjoinder of Badruddin?

(4) Whether the suit is not within
time?

(5) Whether the defendants have
become owners by adverse possession?

7. The trial court considering oral as
well as documentary evidence, by means of
its judgment and decree dated 06.04.1977,
decreed the suit against the defendants
awarding possession to the plaintiffs over
the disputed portion shown by blue colour
in the map annexed with the plaint and also
permitted the plaintiffs to recover a sum of
Rs.2700/- as damages for the wrongful use
and occupation of the premises from the
defendants, at the rate of Rs.75/- per
month. The same rate was also granted for
pendente lite and future damages. It is in
9 All. Noor Ahmad Vs. Mohd. Ahmad
323
the
aforesaid
backdrop
that
the
defendants/appellants have filed this first
appeal.

8. Shri Mohd. Arif Khan, learned
Senior Counsel assisted by Shri Mohd.
Sadab Khan and Shri Mohd. Aslam Khan
for the defendants-appellants has raised the
following submissions:-

(i) It is urged that the trial court has
erred in failing to frame an issue on the
point of licence; inasmuch as it was the
plaintiffs' case that the defendants were the
licencee and their licence was terminated.
However, neither any such evidence was
led and even other wise in absence of any
proper pleading and issue on the said point,
the evidence in this regard could not have
been appreciated which has resulted in
sheer miscarriage of justice.

(ii) It is also urged that the controversy
revolved around the alleged gift which is
said to have been made by Quadir Mian in
respect of the disputed property in question.
It is stated that Quadir Mian could not have
executed the gift for the reason that he had
no exclusive title to the same. The property
in question was purchased by Barati Mian
and Quadir Mian and unless there was a
partition or a division by metes and bounds
the gift could not have been made in
respect of an undivided portion as a gift of
Musha (undivided) is bad in law. It is
further urged that one of the essential
ingredients of a gift is the acceptance by
the donnee as well as the handing over the
possession. It is urged that the evidence
would suggest and as admitted to the
plaintiffs the possession remained with the
defendants and since possession was not
handed over to the plaintiffs, hence the gift
was void and against the principle as
enunciated in Muslim Law relating to a
valid gift.

9. Shri Durgesh Pathak and Shri
Sarashwat Srivastava, learned counsel for
the plaintiff/respondents have vehemently
opposed the aforesaid submissions and
have argued as under:-

(i) The issue of licence is not material
in the sense that the plaintiffs had claimed
title to the property on the basis of a gift
deed executed and registered by Quadir
Mian in their favour. Once Quadir Mian
had divested himself of all his rights from
the property and handed over the same to
the plaintiffs-respondents, who accepted
the same being its owner, the defendantsappellants who were residing in the
premises, being the step brothers of the
plaintiffs, thus their occupation in the
premises was merely permissive and it is in
this context that their lience to remain was
terminated and a decree of eviction and
damages has been sought. The parties had
gone to trial knowing the case of each other
with full knowledge and led the evidence in
support of their respective case and it was
primarily a battle of title between the
parties.

(ii) Issues no.1 and 2 which were
framed by the trial court were seminal to
the entire dispute and the consideration of
licence was in- built in the issues already
framed. Even otherwise, no effort was
made by the defendant at any stage of the
proceedings, during trial, to get an
additional issue framed and as such only to
delay the proceedings and the execution of
the decree the aforesaid issues has been
raised during arguments as no application
under Order 14 Rule 5 CPC was made
before the court through the appeal is
pending since 1977.

(iii) It is also urged that the property in
question was that of Quadir Mian who had
got the same in a family division which
took place between Quadir Mian, his
324 INDIAN LAW REPORTS ALLAHABAD SERIES
brother
Saffi-ul-laha
and
sister
Mst.
Momkoma. One other portion of the
property in dispute was purchased by a
registered sale deed by Quadir Mian
exclusively and it is thereafter that the
entire property which was got in terms of
the division as well as the one portion
purchased, was gifted to the plaintiffs by
means of the registered gift deed and the
plaintiffs being its exclusive owners and in
possession of large portion have a right to
seek the eviction of the defendants as well
as claim damages for wrongful use and
occupation of a limited portion shown by
blue coloured lines in the map forming
parting of the plaint.

(iv) It is urged that the ground raised
for assailing the gift of the plaintiffs is not
quite valid; inasmuch as the possession was
with the plaintiffs and merely because in
some portion the defendants were having
their permissive possession, it would not
mean that the gift gets void on account of
mere
permissive
occupation
of
the
defendants and gift being in the nature of
Musha of an undivided portion would be
void.

(v) It is also urged that the defendants
were in the premises in question as
permissive occupants and not in their own
property rights, hence their possession even
during the time of Quadir Mian was with
the permission of Quadir Mian who gifted
the property to the plaintiffs and thus the
title of the plaintiffs on the basis of the gift
does not get affected in any manner.

(vi) It is further urged that the
defendants were not able to establish the
alleged gift said to have been made by
Barati
Mian
as
they
were
various
discrepancies in the testimony of the
witnesses who sought to explain and
establish the said gift. The defendants could
not even give a date on which the gift was
made nor there was any overt act which
could indicate that the defendants had
accepted the gift and they were put in
exclusive possession. Even otherwise, if the
reason for which the defendants are
assailing the validity of the gift of the
plaintiffs then for the same reason, the gift
of the defendants also gets fouled and apart
from the above the denfendants have not
been able to prove their gift by any cogent
evidence and thus the appeal deserves to be
dismissed.

10. In the aforesaid backdrop, the
primodial
controversy
and
the
issue
important for deciding the instant first
appeal, is dependent on the outcome of the
two rival gifts, which have been set up by
the appellants and the respondents. The
core issue is that in case if the gift said to
have been made by Barati Mian is found to
be established, then apparently it will
impact the right of Quadir Mian to have
executed the registered gift deed in respect
of the entire property.

11. Significantly, both the appellants
and the respondents, who are step brothers,
have set up rival claims based on gift and
one denies the gift of the other and in the
aforesaid
context,
the
original
memorandum which is said to have been
executed by Barati Mian referring and
acknowledging the gift said to have been
made by him in favour of the defendants
assumes significance .

12. The instant appeal was nominated
to this Court and the hearing on the appeal
was commenced on 27.04.2023. The matter
was heard on various dates and the
judgment was reserved on 11.05.2023.
However, at the time of dictating the
judgment the Court found that there were
number of applications which were pending
in terms of Order 41 Rule 27 CPC. The
9 All. Noor Ahmad Vs. Mohd. Ahmad
325
Court further noticed that some of the
applications had already been allowed by
the Court and the impact of allowing the
applications was that the documents which
were filed in terms of Order 41 Rule 27
CPC also had to be examined and therefore
this Court after noticing the previous orders
passed by the Court on 04.03.2005,
08.02.2007, 18.04.2007, 02.11.2007 and
11.12.2017 sumrised the effect of the said
orders passed vis a vis the applications
under Order 41 Rule 27 CPC and passed a
detailed order dated 22.05.2023. The
relevant portion of the order dated
22.05.2023 is being re-produced herein
after for ready reference:

"20. It is in the aforesaid backdrop
where
both
the
appellants
and
the
respondents, who are step brothers, have
set up rival claims based on gift and one
denies the gift of the other and in the
aforesaid
context,
the
original
memorandum which is said to have been
executed by Barati Mian referring and
acknowledging to the gift said to have been
made by him in favour of the defendants
becomes a vital document which is of
immense importance for deciding the
controversy completely between the parties.
A set of 21 documents have also been filed
by the appellants in order to buttress their
contentions regarding their rights to retain
the property on the basis of the gift
executed by Barati Mian.

21. In the aforesaid backdrop as well
as noticing that this Court is exercising its
powers under Section 96 CPC where this
Court has to adjudicate decide the appeal
with powers almost co-extensive as that of
a trial court where all issues of fact and
law which arises between the parties are
open to be agitated and decided. This
Court is also conscious of the wide power it
yields coupled with the fact that this Court
is extremely pained to notice that the
instant first appeal has been engaging the
attention of this Court since 1977 and
though orders had been passed from time to
time which have been reproduced herein
above, relating to taking the documents on
record, but unfortunately the same were not
taken to its logical conclusion at the
appropriate time.

22. It is for the aforesaid reasons that
the Court has heard the learned counsel for
the parties on various dates at length to
ascertain whether the said documents
would be relevant and after having
considered this Court is of the opinion that
to decide and clearly opine regarding the
respective claims of the parties based on
the two rival gifts, it will be necessary for
the Court to permit the parties to lead
evidence and prove their documents which
have been placed and taken on record.

23. This Court in exercise of powers
under Order 41 Rule 23-A can remand the
matter permitting the parties to lead
evidence on the documents which have
been taken on record but considering the
lapse of time and that 40 years have gone
by without any effective adjudication,
therefore, this Court keeps the instant
appeal pending. However, this Court in
exercise of its powers under Order 41 Rule
25 read with Section 151 CPC remits the
matter to the District Judge, Bahraich for
the limited purpose to permit the parties to
lead evidence only in respect of the
documents which were filed alongwith the
C. M. Application No.256 of 1984 and
were permitted to be taken on record in
terms of the order passed by the Court on
04.03.2005 and on the memorandum which
was taken on record by the Court in terms
of order dated 11.12.2017. The appellants
shall not be permitted to introduce any
other new evidence except as provided in
this order.
326 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Since the matter is being remitted
for the limited purpose as mentioned above,
accordingly
a
limited
opportunity
is
granted to the respondents that in case if
they so choose, they may file their
documents in rebuttal upto but not later
than 3rd July, 2023 and if they so do, they
shall be permitted to lead evidence to that
limited extent only and nothing beyond that
and
subject
to
the
objections
of
admissibility of any such document."

13. It is in the aforesaid factual
backdrop that the District Judge Bahraich
before whom the evidence was led has
remitted the record back and it was placed
before the Court after the evidence was
recorded. Thereafter this Court once again
heard the matter on 16.08.2023 and
17.08.2023 where after the judgment was
reserved.

14. In light of the facts as well as the
submissions made by the learned counsel
for the parties, the Court frames the
following points for determination:-

(i) Whether the defendant/appellant
were prejudiced while contesting the case
before the trial court merely on account of
non-framing of an issue on licence and was
unable to lead evidence which has vitiated
the judgment under challence?

(ii) Whether the alleged gift said to
have been made by Barati Mian is valid
and has been proved in accordance with
law?

(iii) Whether the gift deed executed by
Quadir Mian dated 20.04.1967 and a
supplementary deed dated 17.08.1967 are
valid and have been proved in accordance
with law and its effect?

15. The Court has heard the learned
counsel for the parties and also perused the
record.

Point No.1

16. This point of determination is in
view of the submissions made by the
learned Senior Counsel for the appellants
that the plaintiffs in their pleading had
stated in paragraph-6 that the plaintiffs had
cancelled the licence of the defendants in
respect of a shop, godown and a portion on
the first floor by means of notice dated
12.01.1968. It is further urged that the
theory of licence was specifically denied by
the defendants by filing their written
statement. It is urged that since the case of
a licence was set up by the plaintiffs which
was denied by the defendants, consequently
the trial court ought to have framed an
issue on licence. Since no such issue was
framed, the defendants were unable to lead
appropriate evidence and further the
defendants were prejudiced to establish that
the defendants were the owners and not the
licensee of the premises in question.

17. Controverting the aforesaid
submissions, it is urged by the counsel for
the respondents that the plaintiffs became
the owners of the property in question by
virtue of a gift deed executed by their
father, namely, Quadir Mian and since they
were in possession and the defendants did
not have right over the same but they
continued to remain in occupation and in
permissive occupation, hence the appellants
were only a licensee and thus for the said
reason there can be no prejudice for the
defendants and as such the aforesaid plea
has no legs to stand and must fail.

18. In so far as the instant issue raised
by the appellant is concerned, the Court has
9 All. Noor Ahmad Vs. Mohd. Ahmad
327
considered the submissions and from the
perusal of the record, it would indicate that
the case of the plaintiffs was very clear that
the property in question belonged to Quadir
Mian who had got some part from his
father, namely Barati Mian and another part
of the property in question was purchased
by Quadir Mian by means of registered sale
deed from Laxmi Narain and Saligram. It
was thus stated that Quadir Mian had
executed registered gift deed in favour of
the plaintiffs/respondents on 20.04.1967
and since then they are the owner in
possession of the property in suit. The
plaintiffs further stated that since the
defendants were the step brothers of the
plaintiffs and after the gift being made in
favour of the plaintiffs, the status of the
defendants was that of a licensee so they
were in possession at the pleasure of the
plaintiffs on licence and since the plaintiff
did not want the defendants to continue ,
accordingly the licence was cancelled and
they were required to hand over the
possession to the plaintiffs.

19. The defendants on the other hand
while refuting the aforesaid contention has
specifically stated that they are the owner
in respect of the property in question, as
Barati Mian who was the grand father of
the parties, had made an oral gift in favour
of the defendants and thus on the basis of
the said oral gift which was prior to the gift
deed made by the Quadir Mian, hence the
defendants were in possession as owner
and not as the licencee.

20. If the question, raised by the
appellants, regarding non-framing of an
issue regarding licence is seen in context
with the pleadings of the parties as noticed
above, it would indicate that apparently the
property in question as per the platintiffs
was of Quadir Mian whereas as per the
defendents it belonged to both Barati Mian
and also Quadir Mian.

21. The plaintiffs claim ownership on
the basis of gift deed executed by Quadir
Mian dated 20.04.1967 and on the other
hand, the defendant claim ownership on the
basis of an oral gift made by Barati Mian.
Thus, both the parties are claiming title
over the property on the basis of the gift
deed as mentioned above. In case if the gift
deed of the plaintiff is upheld and the gift
made in favour of the defendants is not
proved the ultimate effect would be that
since the ownership of the defendants
would be negatived and since they were
occupying the same since the time of their
father Quadir Mian, hence their occupation
therein would be permissive in nature
which is akin to a licence and it is in this
context that the pleadings of the respective
parties indicated how the plea of licence
was understood by them.

22. The parties were primarily
engaged in the litigation claiming their
respective title on the basis of the two gift
deeds. They had led their evidence on the
basis of issues which were framed by the
trial court and it would be seen that the
issue nos.1 and 2 which encapsulated the
entire controversy hence non-framing of
the issue of licence has no meaning;
inasmuch as it is squarely dependent on the
issue as to whether the plaintiffs were
successful in proving their gift or the
defendant succeeded in proving their gift as
it was a contest of title between the parties.
Once the parties had led evidence knowing
fully well the case they had to meet and
especially in light of the dispute involved
between the parties, the issue of licence,
really
speaking
was
not
of
much
importance, rather upon decision rendered
on title, the status of the defendants would
328 INDIAN LAW REPORTS ALLAHABAD SERIES
be then considered as that of a co-owner or
that of a permissive occupant/licencee.

23. Be that as it may, the defendant if
aggrieved by non-framing of the issue
could have moved an application before the
trial court to get an additional issue framed.
However, the same was not done even
before this Court once the hearing had
commenced in the month of April, 2023
and lot of emphasis was laid on the
applications under Order 41 Rule 27 CPC
but at no point of time, during the pendency
of the instant first appeal since 1977 the
defendant-appellant made any effort to get
an additional issue framed and explain how
the defendant were prejudiced by nonframing of the said issue and even before
this Court, learned Senior Counsel for the
appellant could not convince the Court as
to how the issue of licence was germane so
much so that its non-framing would impact
the trial and the rights of the parties
especially when both parties were claiming
their respective title.

24. Apparently, what this Court finds
is that both the parties i.e. the plaintiff as
well as the defendant are the sons of Quadir
Mian. The plaintiffs are the sons of Quadir
Mian from the second wife whereas the
defendants are the sons of Quadir Mian
from his first wife. The relationship
between the plaintiffs and the defendants is
that of step brothers and both of them have
been occupying the disputed premises
including were doing their business since
the time of Quadir Mian. Thus, the
occupation of both the plaintiffs and
defendants during the life time of Quadir
Mian was permissive and the status only
changed once the plaintiffs claimed title
over the property on the basis of gift deed
executed by Quadir Mian in favour of the
plaintiffs on 20.04.1967 and on the other
hand, the defendants claimed title on the
basis of gift deed made by Barati Mian in
their favour. Thus, the issue of licence was
not significant at all and its non-framing
had no impact and thus for the aforesaid
reasons this Court does not find that there
is any substance in the submissions of the
learned Senior Counsel for the appellant
and is accordingly turned down.

Points No.2 and 3

25. The core issue is the title to the
property as claimed by both rival parties on
the basis of their respective gift. The actual
controversy hinges around the aforesaid
two questions i.e. to say whether the gift
deed executed by Quadir Mian in favour of
the plaintiffs would prevail then the
plaintiffs would be the owner in possession
of the premises and on the basis of title,
they would be entitled to seek the
possession from the portion occupied by
the defendants. On the other hand, in case
if the gift deed executed by Quadir Mian in
favour of the plaintiffs failed and without
anything more or less then necessarily the
property would have to devolve on the
basis of the succession as applicable to the
parties as per their personal law. The other
aspect is that in case if the defendants are
able to prove their gift then the impact
would be that they would be the title holder
of the premises only in respect of the
portion which was gifted by Barati Mian to
them and for the remaining part the parties
would be governed by succession. It is in
this context, that the issue of gift set up by
the plaintiffs and the defendants assume
significance.

26. This Court has to ascertain
whether the gift executed by Quadir Mian
was valid or whether the gift in favour of
the defendants made by Barati Mian is
9 All. Noor Ahmad Vs. Mohd. Ahmad
329
valid and duly proved. In order to answer
the aforesaid issue, the basic pleadings and
the evidence led by the respective parties
would necessarily have to be perused.

27. The record indicates that the
plaintiffs in paragraph-3 laid the foundation
of the gift deed in their favour and in
paragraph-5, it was stated that with the
consent of the plaintiffs, the defendants
continued to work in the premises and one
portion on the first floor was utilized by
them for residential purposes. It was further
pleaded that the plaintiffs revoked the
licence
by
means
of
notice
dated
12.01.1968 and since the defendant did not
comply, hence they filed the suit alongwith
the site-plan annexed indicating the areas
which were in the occupation of the
defendants from which they were to be
evicted.

28. In the written statement, the
defendants denied the allegation and stated
that the father the plaintiff, namely, Quadir
Mian did not have the right to execute the
gift deed. It was also stated that Barati
Mian the grand father of the parties had
also made a gift in favour of the defendants
and as such they were the owner. This was
specifically stated in paragraph-17 of the
written statement. The defendant also
feebly raised a plea of adverse possession.

29.

The
plaintiffs
filed
their
replication wherein it was stated that
Quadir Mian was the exclusive owner of
the property having purchased the same
from Laxmi Narain and some part of the
property was inherited from Barati Mian.
The father of the plaintiffs had full right to
execute the gift deed. It was also stated that
Quadir Mian after obtaining the necessary
permission from the Municipal Board had
made renovation and it was the fund
belonging to Quadir Mian which were
utilized in the property in question.

30. In order to prove its case, the
plaintiffs examined five witnesses, namely,
Jang Mohammad, Uma Shankar (these two
were the witnesses of the gift deed) P.W.3
the plaintiff no.2 examined himself. P.W.4
was Maqsood Ali who was examined to
establish the possession of the plaintiffs and
P.W.5 Aziz Ahmad who was produced to
identify the signature of Munsi Niyamat
Ali.

31. On the other hand, the defendants
in order to prove their case examined Noor
Ahmad as D.W.1, Sajjad as D.W.2 who was
the witness of the gift made by the Barati
Mian. Ramjan Ali was examined as D.W.3
to corroborate the factum of gift made by
Barati Mian in favour of the defendants and
Mohammad Ali was examined as D.W.4.

32. The parties also filed documentary
evidence to prove their respective case.

33. The learned Senior Counsel for
the appellant attacked the gift executed by
Quadir Mian in favour of the plaintiffs on
the following counts:-

(i) Quadir Mian was not the exclusive
owner of the property, hence he could not
execute the gift deed in favour of the
plaintiffs in respect of undivided property.
It was also submitted that it was incorrectly
alleged by the plaintiffs that Quadir Mian
was exclusive owner of the property;
inasmuch as from the perusal of the sale
deed executed by Laxmi Narain and
Saligram in favour of the Quadir Mian
dated 16.07.1954 it would indicate that it
was executed jointly in the names of
Baratai Mian and Quadir Mian.
330 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) It is further stated that the basic
ingredients of gift as per the Muslim Law
was not satisfied; inasmuch as there ought
to be first a declaration of gift by the donor
which is followed by the acceptance made
by the donee and the third crucial
ingredient was the delivery of possession.

(iii) It is further urged by the learned
Senior Counsel that there was no delivery
of possession nor the same could be
satisfied by evidence on record and most
importantly the gift of an undivided
property cannot be made as there are
certain restrictions in respect of gift of an
undivided/indivisible property and such a
gift of 'Musha' is not recognized as valid in
the Muslim Law and for all the aforesaid
reasons, the gift deed as set by the plaintiff
was not proved and the findings returned
by the trial court does not take note of the
concept of Musha which rendered the gift
void and thus in view thereof the gift deed
as sought to be relied upon by the plaintiff
was not proved nor any right could be
conferred upon the plaintiffs, hence the
same was liable to be ignored and since the
suit of the plaintiff was based on title
derived from gift deed which was void,
hence the suit was liable to fail and this
aspect has not been considered by the trial
court.

34. Taking his submissions forward,
learned Senior Counsel has pointed out that
on the contrary it was clearly established
that Quadir Mian who after the death of his
first wife had re-married and thereafter the
plaintiffs were the children of Quadir Mian
from his second wife and the defendants,
who are the children from the first wife,
their relations were not cordial and since
Barati Mian being the grand father wanted
to secure the future of his grand sons who
were being neglected by Quadir Mian and
his second wife, hence he made a gift of his
share in the property in favour of the
defendants and as such this aspect has not
been appropriately considered by the trial
court
despite
the
fact
that
various
documents
were
also
filed
by
the
defendants to indicate that the property in
question was joint between Quadir Mian
and Barati Mian. The defendants had
examined Noor Ahmad as D.W.1 who was
the defendant no.1 himself. D.W.2 Sajjad
who was the witness of the gift and
Ramzan Ali as D.W.3 also to corroborate
the factum of the gift and Mohammad Ali
was examined as D.W.4 to establish that in
pursuance of the gift the defendants were in
possession.

35. It has also pointed out that in
pursuance of the order passed by this Court
dated 23.05.2023 the defendants also led
evidence to prove the memorandum of the
gift deed which was reduced in writing by
Barati MIan and it was proved through the
evidence of Sirajuddin. In light of the
aforesaid evidence, the gift of the defendant
stood proved while the gift of the plaintiff
was void being in respect of an undivided
property,
where
possession
was
not
transferred to the plaintiff exclusively
hence the suit could not have been decreed
and was liable to be dismissed.

36. In light of the aforesaid
submissions and in order to test the veracity
of the submissions of the rival parties, it
will be necessary to first notice the concept
of a gift under the Muslim Law. A gift
under the Muslim Law is known as Hiba.
All muslim men and women to which ever
school they belong, they can gift the whole
of their property to whosoever they want.
The essential condition for a valid gift are
that there must be a declaration made by
the donor that he is making a gift, this is
followed by formal acceptance by the
9 All. Noor Ahmad Vs. Mohd. Ahmad
331
donee and the most crucial aspect is the
delivery of possession to the donee.

37. It will also be relevant to notice
that under the Muslim Law, a gift can also
be made orally and in such a case it is not
required to be reduced in writing. However,
in order to prove such a gift, delivery of
possession assumes great significance.
Certain overt acts must be proved in respect
of an oral gift which could reasonably lead
to a conclusion that the donor had divested
himself from the property gifted and that
the donee having accepted the same dealt
with the property as his own. As a matter of
rule, the delivery of possession is necessary
in case of a gifted property. However, there
may be a certain situation where the delivery
of
possession
can
be
symbolic
or
constructive. Illustratively in a case where the
property in question is tenanted though the
actual possession may not be handed over to
the donee but by handing over the title deeds
with instructions of attornment of the
tenancy, information conveyed to the tenant
that the rent would henceforth be collected by
the donee would suffice and in such a
situation, it cannot be said that the gift is bad
for want of delivery of possession. There are
certain other circumstances where the actual
delivery of possession may be diluted
especially where the gift is between the
spouse inter se, gift made by the parents to
the children amongst others. In so far as a gift
to a minor is concerned, it will suffice if the
guardian of a minor accepts the gift on behalf
of the minor.

38. Since the learned Senior Counsel
has urged that the gift in respect of an
undivided property is void and has
submitted that such a gift of Musha is not
valid. Hence, in order to understand the
aforesaid concept, it will be relevant to
examine and ascertain what is a gift of
'Musha'.

39.