Second appeal over disputed 1/4th share of land at Lakhimpur Kheri, where appellant claimed her predecessor acquired it by oral gift (hiba). The High Court found no date, time or possession of the hiba could be proved, found no substantial question of law, and dismissed the appeal.
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Neutral Citation No. - 2024:AHC-LKO:17547
Court No. - 4
Case :- SECOND APPEAL No. - 16 of 2024
Appellant :- Nisha Gupta Respondent :- Inam Ahmed And Others Counsel for Appellant :- Jai Prakash Yadav,Ram Bux Rawat
Hon'ble Rajnish Kumar,J.
without considering the same, therefore the appellant is before this Court.
by a Mohammadan is not in accordance with Section 123 of the Transfer of Property Act. The relevant paragraph 20 to 23 is extracted hereinbelow:
"20. Admittedly, in any gift by a Mohammedan, three essential requirements have to be complied with for a valid gift :
(i) Declaration of the gift by the donor.
(ii) Acceptance of the gift expressed or implied by or on behalf of the donee.
(iii) Delivery of such possession of the subject of the gift by the donor to the donee.
21. Since the deed itself makes it clear that upto the date of the execution of this deed, the executant was in possession, and there can be no oral gift without possession. Therefore, this document cannot be constituted to be a memorandum of gift but it is a gift deed itself.
22. Learned counsel for the respondent No. 1 has fairly conceded that if the gift deed is executed in writing, its registration is compulsory under Section 17 of the Registration Act irrespective of the fact that an oral gift is possible under the Mohammedan Law. In view of the statements of deed noted above, the finding of the learned Appellate Judge, that the deed in question is a memorandum of gift is not found correct and it is perverse based on wrong interpretation of the document in question. It cannot be described as a document evidencing the oral gift but it is a document creating a gift in favour of the plaintiff. In view of the said reasons, I hold that lower appellate court has misread the document dated 9.10.1970 by describing it as a document evidencing an oral gift allegedly made two years earlier.
23. So far as the first substantial question of law stated in the memorandum of appeal is concerned, I hold that in view of the provision under Section 129 of the Transfer of Property Act, the provision of Section 123 of the Transfer of Property Act shall not affect the validity of the gift under any rule of Mohammedan Law, so if an oral gift is there and the aforesaid three requirements are fulfilled, it cannot be ignored on the ground that a gift made by a Mohammedan is not in accordance with Section 123 of the Transfer of Property Act but if a gift deed is executed, it is not exempt from registration in accordance with the provision under
Section 17 of the Registration Act. Section 129 of the Transfer of Property Act does not exempt the written gift deed executed by a Mohammedan."
Order Date :- 27.2.2024 Akanksha
Digitally signed by :- AKANKSHA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether appellant's claimed oral gift (hiba) of Ahmed Ali @ Babu's 1/4th share to Smt. Shafia Begum was valid and entitled her to the disputed land.
Whether a substantial question of law arises warranting prosecution of this second appeal.
Colour shows how this judgement treated each authority
Ashiq Ali and others versus Smt. Rasheeda Khatoon and anotherDistinguished¶9
2005 (23) LCD 258
3 provisions across 2 enactments
Nisha Gupta
Inam Ahmed And Others
Rajnish Kumar
As recorded by the court registry
4 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
