The court dismissed a second appeal challenging concurrent findings regarding ownership of land. The court held that the 'Hibanama' (gift deed) was valid under Mahomedan law as it satisfied requirements of declaration, acceptance, and delivery of possession. No substantial question of law arose.
Second appeal dismissed; impugned decreets upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 5
Case :- SECOND APPEAL No. - 73 of 2024
Appellant :- Nanakana Devi Respondent :- Kanhaiya Lal And Others Counsel for Appellant :- Dhananjai Kumar Tripathi,Devendra Verma,Kajol,Tanupriya Counsel for Respondent :- Anil Kumar Shukla
Hon'ble Rajnish Kumar,J.
allowed the suit and dismissed the appeal filed by the appellant. Hence the present second appeal has been filed.
purposes and their trees of Ber, Sheesam and Babool are on the land in dispute. The appellant is not the owner of the land in dispute.
delivery of possession of the subject of the gift by the donor to the donee and if all the three conditions are fulfilled then it is a valid gift and since the 'Hibanama' can be oral also, therefore it may not be required to be registered.
"5.Under s. 147 of the Principles of Mahomedan Law by Mulla, 19th Ed., Edited by Chief Justice M. Hidayatullah, visages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential to the validity of a gift.
that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under s. 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in s.150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only gift is complete. Section 152 envisages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act; a gift to be complete, there should be a declaration of the gift by the donor, acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subjectmatter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or
constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. No evidence has been adduced to establish declaration of the gift, acceptance of the gift by or on behalf of the minor or delivery of possession or taking possession or who had accepted the gift actually or constructively. Admittedly he was in possession and enjoyment of the property till it was sold to the appellant. Equally, in Mohammadan Law mother cannot act nor be appointed as property guardian of the minor. She equally cannot act as legal guardian."
was decreed by means of the judgment and decree dated 20.01.2023.
Order Date :- 24.5.2024 Haseen U.
...................................................................(Rajnish Kumar, J.)
Digitally signed by :- HASEENUDDIN High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether the 'Hibanama' dated 07.04.1972 constituted a valid gift under Mahomedan law?
Whether the concurrent findings of fact by the trial and appellate courts were perverse enough to warrant interference in second appeal?
Colour shows how this judgement treated each authority
Mahboob Sahab Vs. Syed Ismail & OthersRelied on¶16
Mahboob Sahab Vs. Syed Ismail & Others; (1995) 3 SCC 693 · Who else cites this
Kapil Kumar Vs. Raj KumarRelied on¶25
Kapil Kumar Vs. Raj Kumar; (2022) 10 SCC 281 · Who else cites this
1 provisions across 1 enactments
Nanakana Devi
Kanhaiya Lal And Others
Rajnish Kumar
As recorded by the court registry
3 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
