✦ High Court of India

The High Court

Case Details

- 1 - NC: 2025:KHC:16551 RSA No. 936 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 936 OF 2019 (DEC/INJ) BETWEEN: NAZIR AHMED BOLAR S/O. LATE. B. FAKEER MOHAMMED, AGE 85 YEARS, RTD. PERSON, R/AT NO. 75, ROBERTSON ROAD, FRAZER TOWN, BENGALURU 560005 (BY SRI. MOHAMMED TAHIR., ADVOCATE) …APPELLANT AND: Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA MOHAMMED SHARIFF BOLAR S/O. LATE. B FAKKER MOHAMMED, SINCE DEAD 1. ASHFAQ SHARIFF, S/O. LATE. MOHAMMED SHARIFF BOLAR, AGED ABOUT 54 YEARS 2. NISHAT SHARIFF W/O. ZAKIR MULLA, AGED ABOUT 49 YEARS BOTH ARE BUSINESS PERSONS BOTH ARE R/AT 1/2016. BH ROAD, VIDHYANAGARA, SHIVAMOGGA CITY – 577 203 - 2 - NC: 2025:KHC:16551 RSA No. 936 of 2019 3. B BASHEER AHAMMED S/O. LATE. B. FAKEER MOHAMMED, AGE 79 YEARS RTD CONSERVATOR OF FOREST, R/O. 8/1, BANNI MANTAPA LAYOUT, MYSORE – 570015 4. RASHEED AHMED BOLAR S/O. LATE. B FAKEER MOHAMMED, AGED ABOUT 72 YEARS RTD PERSON, R/O. PEST CONTROL CORPORATION OF INDIA, LIGHT HOUSE HILL, MANGALORE – 575 001 5. B. NOOR MOHAMMED S/O. LATE. B FAKEER MOHAMMED AGE 64 YEARS, RTD PERSON, R/O. A1, MANSURA INTERNATIONAL SCHOOL, PRINCE MOHAMED BIN ABDUL RAHAMAN RAOD, PB. NO. 22949, A MANSURA, RIYADH 11416 (KAS) 6. 7. JAMEELA MOHAMOOD AGE 86 YEARS, D/O. LATE. B FAKEER MOHAMMED, W/O. LATE. M J SHAIKH, R/O. 2G ACCOLADE APTS, BENSON ROAD, BENSON TOWN, BENGALURU – 562 0046 IMTHIYAZ AZIZ SHAH AGE 70 YEARS, D/O. LATE. FAKEER MOHAMMED, W/O. M. AZIZ SHAH, HOUSEHOLD, R/O. 275, KESARE, 2ND STAGE, NAIDU NAGAR, OPP. KESAR BUS STATION, KESARE, MYSORE – 570007 - 3 - NC: 2025:KHC:16551 RSA No. 936 of 2019 8. SHAMEEM ALEEM AGE 68 YEARS, D/O. LATE. FAKEER MOHAMMED, W/O. LATE. A R KHAN, HOUSEHOLD, R/O. B79, KIARA 1888, JALAN KIARA 3, MOUNT KIARA, KOULALUMPUR 50480, MALAYSIA 9. SHAHNAAZ SIDDIQUE AGE 68 YEARS, D/O. LATE. MRS. AFROZE HUSSAIN, HOUSEHOLD, R/O C/O. K MOHAMMED SIDDIQUE, LARI EXCHANGE ESTABLISHMENT, MADINA ZAYED BRANCH, PB NO. 988, ABU DHABI (UAE) 307501 10. ISHRAT KUTUB ROHILE D/O. LATE. MIS. AFROZE HUSSAIN, AGE 67 YEARS, HOUSE HOLD, R/O. 51, MIRAMAR DR. MARKHAM, ONTARIO, L6E1Z8, CANADA 11. JAWAD HUSSAIN S/O. LATE. MIS. AFROZE HUSSAIN, AGE 65 YEARS, HOUSE HOLD, BUSINESS, R/O. 13/1, AMAN MANZIL, 1ST FLOOR, NORTH ROAD, RICHARD TOWN, BENGALURU 560049 12. NAGMA SADIQUE W/O. MOHAMMED SADIQUE, AGED ABOUT 44 YEARS BUSINESS, R/O. 103, MANTRA GARDEN, APARTMENTS, 1ST BLOCK, MADHAVAN PARK, - 4 - NC: 2025:KHC:16551 RSA No. 936 of 2019 JAYANAGAR, BENGALURU 560 011 13. NAKEEM SHAIKH S/O. BILKISH, AGED ABOUT 34 YEARS BUSINEES R/O. 103, MANTRA GARDEN APARTMENTS, 1ST BLOCK, MADHAVAN PARK, JAYANAGAR, BENGALURU 560011 14. NASIMHA PARVIZ W/O. MOHAMMED PARVEEZ, BUSINESS, R/O. ELGIN APARTMENT, C BLOCK, GROUND FLOOR, G11, HOUSUR ROAD, BENGALURU – 562 109 15. NADEEM SHAKH C/O. JANNATH SHAIKH, AGED ABOUT 46 YEARS EMPLOYEE, PETROFEC TOWER 2. PB NO. 23467, SHARJAH (UAE) 61109 16. NAYEEM SHAIKH AGED ABOUT 37 YEARS BUSINESS, HJQ NO. 1601, WILLO ROAD, MANGLO PARK, CA 94025, (USA) (BY SRI. P N HARISH., ADVOCATE FOR R1, R2 VIDE ORDER DATED 06.01.2023 NOTICE TO R3 TO R16 IS D/W) …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 15.02.2019 PASSED IN RA NO/1/2016 ON THE FILE OF THE III ADDL.DISTRICT JUDGE, AT SHIVAMOGGA DISMISSING THE APPEAL AND CONFIRMING - 5 - NC: 2025:KHC:16551 RSA No. 936 of 2019 THE JUDGMENT AND DECREE DATED 28.10.2015 PASSED IN OS NO.125/2012 ON THE FILE OF THE I ADDL.SENIOR CIVIL JUDGE AND CJM., SHIVAMOGGA. THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 15.02.2019, passed in R.A.No.1/2016 by the learned III Additional District Judge, Shivamogga and the judgment and decree dated 28.10.2015 passed in O.S.No.125/2012 by the learned I Additional Senior Civil Judge and CJM, Shimogga. 2. For convenience, parties are referred to based

Facts

on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. The brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for the relief of a declaration of his title over the suit schedule - 6 - NC: 2025:KHC:16551 RSA No. 936 of 2019 property and for consequential relief of a permanent injunction. It is the case of the plaintiff that defendants

Legal Reasoning

Division bench of this Court in the case of MANSOORSAHEB AND OTHERS VS. SALIMA, in RFA Nos.469/1998 c/w RFA 493/1998. He submits that the impugned judgments passed by the courts below are contrary to the records and ratio laid - 15 - NC: 2025:KHC:16551 RSA No. 936 of 2019 down by the Hon’ble Apex Court in aforesaid decisions. Further, he submits that the impugned judgments passed by the courts below are arbitrary, erroneous and perverse. Hence, on these grounds, he prays to allow the appeal. 6. Per contra, learned counsel for defendant No.1 (a) & (b) submits that the suit schedule property was purchased by defendant No.1 in the name of Fakeer Mohammed Bolar and defendant No.1 is the absolute owner of the suit schedule property. He submits that defendant Nos.1 to 7 and deceased Smt. Afroza Hussain never gifted the suit schedule property in favour of the plaintiff and never executed any document before the notary. The said document produced by the plaintiff is created to engulf the suit schedule property. He also submits that the plaintiff has failed to prove the essential ingredients of Hiba i.e., offer, acceptance and the delivery of possession. Both the courts below have considered that the plaintiff has failed to establish that defendants No.1 to 7 and late Afroza Hussain have gifted the suit schedule - 16 - NC: 2025:KHC:16551 RSA No. 936 of 2019 property in favour of the plaintiff and rightly passed the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal. 7. This Court, on 08.06.2022, admitted the appeal to consider the following substantial question of law : 1) Whether the trial Court and First Appellate Court erred in dismissing plaintiff’s suit for declaration of title on the basis of oral gift in ignoring declarations made by defendants No.1 to 3 and 5 to 7 confirming gift by executing Exs.P13 to P.20 affidavits? respect of suit property 2) Whether both courts erred in dismissing entire suit claim when objectors legal heirs of defendant No.1 would at best be entitled for share in suit property? 8. Perused the records and considered the submissions of learned counsel for the parties. 9. Reg. Substantial question of law No.1: The plaintiff, to substantiate his case examined himself as PW.1. He has deposed that the plaintiff and defendant Nos.1 to 7 and one Smt. Afroza Hussain are the - 17 - NC: 2025:KHC:16551 RSA No. 936 of 2019 sons and daughters of late B. Fakeer Mohammed Saheb and he died on 29.08.1975 leaving behind his surviving wife, Hazrambi, the plaintiff, defendants No. 1 to 7 and another daughter Smt. Afroza Hussain. He has deposed that Smt. Afroza Hussain died on 11.10.2007, leaving behind her only heirs i.e, defendant Nos.8 to 10. The deceased B. Fakker Mohammed Saheb was serving as a head post master at Mangalore and retired in 1957. The deceased B. Fakeer Mohammed Saheb purchased the vacant building site bearing No.36 of Mullakere village, Kasaba Hobli, Shivamogga under a registered sale deed dated 19.06.1962. He has deposed that he has contributed to purchasing the said property and at the time of purchasing the afore-said property, he was working in Port Trust, Bombay. He has deposed that all the legal representatives of deceased B. Fakeer Mohammed Saheb has a great love and affection towards the plaintiff and during his lifetime B. Fakeer Mohammed Saheb executed the ‘registered’ power of attorney in favour of defendant No.1 on 17.09.1974. B. Fakeer - 18 - NC: 2025:KHC:16551 RSA No. 936 of 2019 Mohammed Saheb empowered defendant No.1 to sell the plaint/suit schedule property. The power of attorney has ceased to exist on the death of deceased B. Fakeer Mohammed Saheb and defendant No.1 has no power to act upon the said power of attorney. He has deposed that the parties to the suit are Muslims and they are governed by Muslim Personal Law. After the demise of B. Fakeer Mohammed Saheb, the plaintiff and the defendants have succeeded and inherited the suit schedule property as a tenants in common, each son will get 2/14th share and each daughter will get 1/14th share in the plaint/suit schedule property. 10. Defendant Nos.1 to 7 and Smt. Afroza Hussain have gifted their respective undivided share through oral declaration or Hiba, defendant No.1 made an oral declaration or Hiba of his share on 31.01.2000, which was later confirmed by him on 18.04.2000 before the Notary, Public in Mysore. Defendant Nos.1 to 3 made a oral declaration of Hiba of their share on the same day which - 19 - NC: 2025:KHC:16551 RSA No. 936 of 2019 was later confirmed on 18.04.2000. Defendant Nos.1 to 3, 5 to 7 and the mother of defendant Nos.8 to 10 made an oral declaration of Hiba of their share on 31.01.2000 and confirmed the same on 18.04.2000 before the Notary Public, Mysore. 11. Defendant No.4 made an oral declaration of Hiba of her share on 25.07.2005, which was confirmed by her on 21.06.2011. The legal heirs of B. Fakeer Mohammed Saheb relinquished their rights, title and interest and delivered the possession of the suit schedule property. The plaintiff became the absolute owner of the suit schedule property based on the Hiba and the declaration made by defendant Nos.1 to 7 and the mother of defendant Nos.8 to 10. He has deposed that the declaration of oral gift by defendant No.1 was made during the pendency of O.S.No.36/1988, which was disposed of on 23.07.2002, and ultimately culminating regular second appeal in RSA No.415/2007 on 31.05.2009. The plaintiff has invested huge amount for demolition of unauthorized - 20 - NC: 2025:KHC:16551 RSA No. 936 of 2019 construction and for the development of the suit schedule property. 12. Defendant No.1 raised objections for khata regarding the transfer of suit schedule property in the plaintiff’s name. The Tahsildar passed the order against the plaintiff and the plaintiff filed an appeal before the learned Assistant Commissioner. Learned Assistant Commissioner set aside the order passed by the Tahsildar and ordered the khata to be transferred in the joint names of the plaintiff and defendant No.1 reserving the liberty to the parties to settle the dispute in the Civil Court. He has deposed that the defendants have offered to gift the suit schedule property and the plaintiff accepted the offer of defendant Nos.1 to 7 and Afroza Hussain, mother of defendant Nos.8 to 10 and they have delivered the possession of the suit schedule property in favour of the plaintiff. Hence, prays to decree the suit. To prove his case, PW.1 has produced the documents, Ex.P1 is the certified copy of the sale deed, - 21 - NC: 2025:KHC:16551 RSA No. 936 of 2019 Ex.P2 is the lay-out plan, Ex.P3 is the mutation register extract, Ex.P4 is the RTC extract, Ex.P5 is the mutation entry extract, Ex.P6 is a copy of the order passed by the A.C. Ex.P7 is a certified copy of the plaint in O.S.No.36/88, Ex.P9 is the certified copy of the written statement in the said suit, Ex.P10 is the additional written statement in the said suit, Ex.P11 is a copy of the rejoinder of written statement, Ex.P12 is a copy of the decree. Exs.P13 to 20 are the affidavits dated 31.01.2000, executed by defendants No.1 to 3 and 5 to 7 regarding the oral gift in favour of the plaintiff. Ex.P.20 is an affidavit regarding the oral gift dated 25.07.2005, by defendant No.4 in favour of the plaintiff, Ex.P21 is a copy of the legal notice Ex.P22 is the cover, Ex.P23 is the postal cover of the legal notice served to the plaintiff got issued by the defendant, Ex.P24 are postal covers, Ex.P25 is the reply notice given to the defendant, Ex.P26 is a copy of the legal notice dated 20.10.2009, Ex.P27 is a copy of the legal notice dated 22.09.2010 got issued to the defendant, Ex.P28 is the letter written by the defendant, Ex.P29 is the letter - 22 - NC: 2025:KHC:16551 RSA No. 936 of 2019 regarding the loan of Rs.625/-, Ex.P30 is the copy of the challen for having sent money and Exs.P31 to 34 are the letters. 13. During the course of cross-examination, he admitted that his father had property in Karkala and his father was residing at Bolar and he died in Mangalore in 1975. He admitted that once an oral gift is made there is no necessity for confirmation after making Hiba. It is denied that the suit property is in the possession of the plaintiff’s family members and they had no authority to physically take any action regarding the suit property, until the Court delivered the possession of the said property in 2008. He admits that the plaintiff and defendant Nos.1 to 7 and Smt. Afroza Hussain are the rightful owners of the suit schedule property. He admits that in Ex.P13, first it was written as Bangalore and then it was crossed out and written as Mysore and he also admits that in Ex.P13, the identity of the owners, the names of the owners of the suit schedule property are not - 23 - NC: 2025:KHC:16551 RSA No. 936 of 2019 mentioned. It is admitted that defendant No.4 stayed in Saudi Arabia till 2011 and denied the suggestion that that the plaintiff got created Ex.P20 and also denies that after the death of defendant No.1 the suit property was in possession of the defendant No.1’s children. He has deposed that the Hiba was given in Shivamogga on 31.01.2000 i.e., Ex.P.13 to Ex.P.20 in the presence of his family members and it was reduced into writing on 18.04.2000 and said documents were notarized. 14. He was unable to say as what time the Hiba was made. He admits that his father executed the power of attorney in favour of defendant No.1 and authorised him to sell the suit property and admits that the suit schedule property belongs to his father. He admits that all the family members have got a share in the suit schedule property. It is elicited that the suit property was standing in his father’s name even when the civil litigation i.e., original suit in O.S.No.36/1988 was pending and defendant No.1 was representing the entire family. Except - 24 - NC: 2025:KHC:16551 RSA No. 936 of 2019 the oral testimony of PW.1, the plaintiff has not examined any attesting witnesses who were present at the time of the alleged oral Hiba. 15. On the other hand, defendant No.1(a) was examined as DW.1. He has deposed that the suit schedule property was purchased in the name of B. Fakeer Mohammed Saheb, for which defendant No.1 also contributed and after his demise, defendant Nos.1 to 7 and Smt. Afroza Hussain have inherited the suit schedule property. He also deposed that a suit in O.S.No.36/1988 was filed against them and the said suit was disposed of. He also deposed that defendant Nos.1 to 7 and Smt.Afroza Hussain never gifted the suit schedule property in favour of the plaintiff. He has deposed that the plaintiff has failed to establish the essential ingredients of the Hiba i.e., offer, acceptance and delivery of possession. He also deposed that as on the date of the alleged Hiba, the possession was not with the family, but with a third party. He has deposed that defendant No.1 obtained the possession in - 25 - NC: 2025:KHC:16551 RSA No. 936 of 2019 2008. As of the date of the alleged Hiba, the possession was not delivered. He denied the execution of Exs.P13 to 20. To prove the defence of the defendants, they have produced Ex.D1- is the endorsement regarding taking over the possession, wherein the possession of the suit schedule property was taken by defendant No.1 through the Court commissioner on 27.11.2008 in EP.No.26/2007. Ex.D2 is the copy of the order passed on I.A.No.3 in E.P.No.26/2007, wherein an application was filed under Order 21 Rule 97 of CPC by an objector. 16. The executing Court rejected the I.A.No.3 vide order dated 28.05.2009. Defendant No.1 had filed a memo reporting the delivery of vacant possession and prayed to close the execution petition and execution petition was closed vide order dated 30.05.2009. Ex.D3 is the joint report of the Court commissioner in E.P.No.26/2007. Ex.D.4 is the Court commissioner notice. Ex.D5 is the spot mahazar. Ex.D6 is the report, which discloses that the Court commissioner delivered the possession of execution - 26 - NC: 2025:KHC:16551 RSA No. 936 of 2019 petition schedule property to defendant No.1. Ex.D7 is the Court commissioner warrant, wherein the trial Court issued a direction informing the Court commissioner regarding the appointment as a Court commissioner and submitted a report. Ex.D8 is the affidavit of Mohammed Sharif Bolar i.e., defendant No.1, who has stated that he is in possession of the site property bearing No.36, situated at Sy.No.14/1 of old Mullakere village (now Gandhinagar near Muli road), Shivamogga and he has stated that after the litigation in the Court and an execution case in E.P.No.26/2007, he has taken the delivery of the suit schedule property through the Court commissioner on 27.11.2008 and he has stated that he has not executed any Hiba or oral gift in favour of his brother i.e., the plaintiff on 18.04.2000 or in favour of any person by way of any instrument or affidavit. Ex.D9 is the copy of the mutation register extract, wherein the said property was transferred by B. Fakeer Mohammed Saheb in favour of defendant No.1 vide mutation order dated 03.11.2011. Ex.D10 is the RTC extract of the suit land, which discloses - 27 - NC: 2025:KHC:16551 RSA No. 936 of 2019 that defendant No.1 was in possession of the suit property. Ex.D.11 is the RTC extract, which discloses that defendant No.1 is in possession of the suit schedule property. It is elicited that DW.1 has not filed a separate written statement as he was out of station and his sister gave the information to draft the written statement. It is elicited that B. Fakeer Mohammed Saheb had 5 sons and 5 daughters and except defendant No.1 and his two sisters, rest of the daughters and sons of B. Fakeer Mohammed Saheb are alive. It was suggested that defendant No.1 orally gifted the suit schedule property in favour of the plaintiff on 31.01.2010 and said suggestion was denied. 17. The defendants also examined one B.Mahadev as DW.2, who has deposed that he was in acquaintance with defendant No.1 and his children. He came to know that when defendant No.1 was alive, there was a suit regarding the subject suit property and defendant No.1 had taken the possession of the suit schedule property in the execution petition and defendant No.1 was looking - 28 - NC: 2025:KHC:16551 RSA No. 936 of 2019 after the suit schedule property and constructed the small shed. Nothing has been elicited from the mouth of DW.1 and DW.2 to disbelief the defence of the defendants. 18. From the perusal of the entire record, it is the case of the plaintiff that B. Fakeer Mohammed Saheb was the owner of the suit schedule property and after his demise, the plaintiff and defendant Nos.1 to 7 and Smt.Afroza Hussain inherited the suit schedule property. Defendant Nos.1 to 7 and Smt. Afroza Hussain offered the plaintiff to accept the gift. Accordingly, the plaintiff accepted the gift and the donor delivered the possession of the suit schedule property in favour of the plaintiff. From the perusal of the records, produced by the defendants, which discloses that as on the date of alleged oral Hiba, the plaintiff’s family was not possessing the suit schedule property. Hence, question of delivering the possession of the suit schedule property in favour of the plaintiff would not arise. It is not the case of the plaintiff, that defendants No.1 to 7 and Smt. Afroza Hussain have - 29 - NC: 2025:KHC:16551 RSA No. 936 of 2019 delivered the constructive possession of the suit property. Further, the plaintiff has produced a copy of the plaint in O.S.No.36/1988, which discloses that the said suit of title and conservential relief of permanent injunction was filed suit against defendant No.1 before the Munsiff Shivamogga, seeking for the relief of declaration of title and perpetual injunction. 19. Defendant No.1 herein, filed a written statement stating that his father had purchased the suit schedule property under a registered sale deed and defendant No.1 has put up a fence barbed wire on the front side of the house site. Defendant No.1 has also filed an additional written statement as per Ex.P10. Though the written statement as per Ex.P9 was filed on 15.02.1988, the additional written statement as per Ex.P10 was filed on 21.09.1999 and the plaintiffs therein filed a rejoinder as per Ex.P11. The said suit was disposed of on 23.07.2002. If defendant Nos.1 to 7 and Smt. Afroza Hussain have gifted the suit schedule property, - 30 - NC: 2025:KHC:16551 RSA No. 936 of 2019 nothing prevented the plaintiff to file an impleading application in O.S.No.36/1988, but the plaintiff has not filed any application for impleading on the ground that the defendants No.1 to 7 and Smt. Afroza Hussain have orally gifted the suit schedule property in favour of the plaintiff. 20. From the perusal of the documents, defendant No.1 issued a legal notice to the plaintiff on 17.08.2010 as per Ex.P23, wherein he has stated that the defendant was surprised to know that the plaintiff has created the Hiba regarding the suit schedule property and he has stated that he has not executed any affidavit as per Ex.P13. Further called upon the plaintiff to return the said affidavit which was sworn before the Public Notary at Mysore, without his knowledge. Though notice was issued on 17.08.2010, as per Ex.P23, the suit was filed on 03.10.2012. The plaintiff did not file a suit immediately after receiving the notice as per Ex.P23. To consider whether the plaintiff has proved the oral Hiba, and whether the defendants have gifted the suit schedule - 31 - NC: 2025:KHC:16551 RSA No. 936 of 2019 property, it is necessary to consider Section 159 of the Mohamedan Law, which deals with the concept of gift of Mushaa. Section 158 of the Mohamedan Law defines Mushaa as an undivided share in the property either movable or immovable and as per Section 159 the Hiba of Mushaa i.e., a valid gift may be made on the undivided share (Mushaa) in the property which is not capable of partition. 21. Further Section 160 of the Mahomedan Law deals with gift of Mushaa, where property is divisible, which reads as follows: “Sec.160. Gift of mushaa where property divisible: A gift of an undivided share (mushaa) in property which is capable of division is irregular (fasid), but not void (batil). The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated(ill.(a))”. But, “Exceptions” to Section 160 are carved out which reads as under: A gift of an undivided share (musha), though it be a share in property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee, in the following cases:- - 32 - NC: 2025:KHC:16551 RSA No. 936 of 2019 (1) where the gift is made by one co-heir to another; (2) where the gift is of a share in a zemindari or taluka (3) where the gift is of a share in freehold property in a large commercial town. (4) where the gift is of shares in a land company. As per Section 160 of the Mahomedan Law, the undivided interest in the property which is divisible, can be gifted. 22. Section 149 of the Mahomedan Law deals with three essential ingredients of the Hiba (gift), which reads as follows: “It is essential to the validity of a gift that there should be (i) a declaration of gift by the donor, ii) acceptance of gift, express or implied, by or on behalf of donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150.” 23. From the perusal of Section 149 of the Mahomedan Law, it is clear that to prove the validity of the gift, donee is required to prove the essential ingredients of gift i.e., offer, acceptance and delivery of - 33 - NC: 2025:KHC:16551 RSA No. 936 of 2019 possession. Admittedly, in the instant case, as on the date of the alleged gift, neither the defendants nor the plaintiff were in possession of the suit schedule property as the suit was pending in O.S.No.36/1988. The plaintiff except producing Ex.P.3 to P.20 has not produced any records to establish the Hiba. It is settled law that the execution of a document must be proven by admissible evidence, which includes testimony from those who can vouch for the document’s authenticity and contents. This principle is reiterated in multiple cases, emphasizing that mere admission of a document does not suffice for its proof in HARENDRA RAI VS. STATE OF BIHAR reported in 2023 SCC ONLINE SC 1023. 24. The plaintiff has failed to establish that the possession was delivered under the Hiba. The plaintiff has failed to prove the essential ingredients of Hiba i.e, regarding the delivery of possession regarding the suit schedule property. The Courts below considering the entire evidence on record, have rightly held that the - 34 - NC: 2025:KHC:16551 RSA No. 936 of 2019 plaintiff has failed to establish the three essential ingredients of a valid gift and he became the absolute owner of the suit schedule property by virtue of the Hiba. Admittedly, the plaintiff has filed a suit for the declaration of title and injunction. The plaintiff has to prove his case independently, he cannot depend on the weakness of the defendants. The said view is supported by the judgment of the Hon’ble Apex Court in the case of JAGDISH PRASAD PATER (D) THROUGH LRS AND ANR. VS. SHIVNATH & OTHERS reported in (2019) 6 SCC 82. 25. Learned counsel for the plaintiff submits that the suit is contested by defendant No.1, defendant Nos.2 to 7 and legal representatives of Afroza Hussain i.e., defendants No.8 to 10, did not contest the suit and have not denied the execution of Exs.P13 to 20. As observed above, I have already recorded a finding that the plaintiff has failed to prove three essential ingredients of the Hiba as per Section 149 of the Mahomedan Law regarding the delivery of possession. The Courts below have rightly - 35 - NC: 2025:KHC:16551 RSA No. 936 of 2019 ignored the declarations made by defendant Nos. 1 to 7 and Smt. Afroza Hussain. Further, the plaintiff has also not examined any person who was present at the time of oral Hiba. Defendant No.1 has denied the execution of Ex.P13. The burden is on the plaintiff to establish the execution of the alleged gift by defendant Nos.1 to 7 and Smt. Afroza Hussain. The plaintiff has failed to prove the execution of the Hiba. Both the Courts below have rightly passed the impugned judgments. In view of the above discussion, I answer substantial question of law No.1 in the negative. 26. Reg. Substantial question of Law No.2: Learned counsel for the plaintiff submits that defendant No.1 has contested the suit and the other defendants did not contest the suit. The Court could have granted a decree against defendant Nos.2 to 10. As observed above, the plaintiff has failed to prove the execution of an oral Hiba. Merely, defendant Nos.2 to 5 have not filed a written statement, the Court cannot split - 36 - NC: 2025:KHC:16551 RSA No. 936 of 2019 up the cause of action between defendant No.1 and defendant Nos.2 to 7. The Hon’ble Apex Court in the case of ASMA LATEEF AND ANOTHER VS. SHABBIR AHMAD AND OTHERS reported in (2024) 4 SCC 696, held in para Nos.22 and 23, which reads as follows: 22. We are constrained to observe that it is to avoid such a situation of contradictory/inconsistent decrees that power under Rule 10 of Order VIII ought to be invoked with care, caution, and circumspection, only when none of several defendants file their written statements and upon the taking of evidence from the side of the plaintiff, if deemed necessary, the entire suit could be decided. As in the present case, where even one of several defendants had filed a written statement, it would be a judicious exercise of discretion for the court to opt for the second alternative in Rule 10 of Order VIII, CPC unless, of course, extraordinary circumstances exist warranting recourse to the first alternative. In the matter at hand, the filing of the written statement by Kazmi denying the averments made in the plaint warranted that the appellants' claims be proved by evidence, oral and/or documentary, instead of decreeing the suit against one of the defendants in a most slipshod manner. 23. We find close resemblance of the facts and circumstances under consideration in Swaran Lata Ghosh v. H.K. Banerjee11. A money suit instituted by the respondent before this Court was tried by the (1969) 1 SCC 709 High Court at Calcutta and after taking evidence the learned Single Judge on 17th August, 1962, passed the following order: - 37 - NC: 2025:KHC:16551 RSA No. 936 of 2019 for "There will be a decree for Rs 15,000 with interest on judgment on Rs 15,000 at 6% per annum and costs. No interim interest allowed." Pursuant to that order a decree was drawn up. An appeal carried from the decree before the Division Bench failed. The Division Bench assigned sketchy reasons the conclusion that the Trial Court "rightly decreed the suit" and disposed of the appeal with certain modification of the decree. While allowing the appeal and setting aside the the high court and decree passed by remanding the suit to the Court of first instance for trial according to law, this Court noted that Rules 1 to 8 of Order XX, CPC are, by the express provision contained in Rule 3(5) of Order XLIX, CPC inapplicable to a Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction and hence, a judge of a Chartered High Court was not obliged to record reasons in a judgment strictly according to the provisions contained in Rules 4(2) and 5 of Order XX, CPC. Notwithstanding such a provision, this Court proceeded to record in paragraph 6 as follows: is court, intended a between "6. Trial of a civil dispute in court to achieve, according to law and the procedure judicial the of determination the contesting parties of the matter in controversy. Opportunity to the parties interested in the dispute to present their respective cases on questions of law as well as fact, ascertainment of facts by means of evidence tendered by the parties, and adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the - 38 - NC: 2025:KHC:16551 RSA No. 936 of 2019 but, unless reasons facts found, are essential attributes of a judicial trial. In a judicial trial, the Judge not only must reach a conclusion which he regards as otherwise just, permitted, by the practice of the court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent that suggest themselves to the Judge a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest: it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the court has decided against him, and more so, when the judgment is subject to appeal. The appellate then have adequate court will material on which it may determine facts are properly whether the ascertained, the law has been correctly applied and the resultant decision is just. It is unfortunate that the learned trial Judge has recorded no reasons in support of his conclusion, and the High Court - 39 - NC: 2025:KHC:16551 RSA No. 936 of 2019 in appeal merely recorded that they thought the plaintiff had sufficiently proved the case in the plaint." that 27. Hence, the question of splitting up the cause of action against the defendants would not arise. Both the Courts below have rightly passed the impugned judgments. I do not find any error in the impugned

Arguments

No.1 to 7 and Smt. Afroza Hussain are the sons and daughters of one B. Fakeer Mohamed Saheb. He died on 29.08.1975, leaving behind his wife Hazarambi, the plaintiff and defendants No.1 to 7 and another daughter, Afroza Hussain. Smt. Hazarambi, died on 18.11.1980. Afroza Hussain died on 11.10.2007, leaving behind the defendants No.8, 9 and 10 as her legal heirs. 3.1. B. Fakeer Mohammed Saheb, i.e., the plaintiff’s father; had purchased the suit schedule property under a registered sale deed dated 19.06.1962, and based on the registered sale deed, the name of Fakeer Mohammed Bolar was entered in the revenue records. After the demise of Fakeer Mohammed, the suit schedule property was inherited by the plaintiff, defendants No.1 to 7 and Smt. Afroza Hussain as tenants in common, where each son is getting 2/14th share and each daughter is getting 1/14th share. Out of love and affection, defendants No.1 - 7 - NC: 2025:KHC:16551 RSA No. 936 of 2019 to 7 and Smt. Afroza Hussain gifted their respective shares in the suit schedule property in favour of the plaintiff, by way of oral declaration (“Hiba”). Defendants No.1 to 3, 6 and 7 and Smt. Afroza Hussain made a declaration of Hiba on 31.01.2000 and confirmed the same by executing the documents in the form of the affidavits before the Notary on 18.04.2000. Defendant No.4 made an oral gift on 25.07.2005 and confirmed it later on 21.06.2011 before the Indian Embassy, Riyadh, Soudi Arabia. Thus, all the heirs of deceased B. Fakeer Mohammed Saheb, have gifted the suit schedule property in favour of the plaintiff. Hence, the plaintiff became the absolute owner of the suit schedule property and spent huge money for demolition of unauthorised construction. The name of the plaintiff was entered in the revenue records, and defendant No.1 filed his objection. The Tahsildar ordered a mutation in the name of defendant No.1 as he was the eldest son of B. Fakeer Mohammed Saheb. - 8 - NC: 2025:KHC:16551 RSA No. 936 of 2019 3.2. The plaintiff, aggrieved by the order passed by the Tahsildar, preferred an appeal before the Assistant Commissioner. The Assistant Commissioner ordered to transfer the khata in the joint names of the plaintiff and defendant No.1, reserving their right to settle the dispute before the Civil Court. Hence, a cause of action arose for the plaintiff to file a suit for a declaration of title and a permanent injunction. Accordingly, prays to decree the suit. 3.3. Summons was issued to the defendants. Despite service of summons, defendants No.11 to 13 remained unrepresented and they were placed exparte. Defendants No.2 to 10, 14 and 15 appeared through the counsel, but they did not file a written statement; only defendant No.1(b) filed her written statement and defendant No.1(a) has adopted the same. 3.4. Defendant No.1(b) filed a written statement contending that the suit is bad for non-joinder of necessary parties. The relationship between the parties is - 9 - NC: 2025:KHC:16551 RSA No. 936 of 2019 admitted. It is contended that B. Fakeer Mohammed Saheb and his wife, Smt. Hazarambi died on 29.08.1975 and 18.11.1980 respectively. It is contended that Fakeer Mohammed Bolar, was serving as a Post Master. It is denied that Fakeer Mohammed Bolar had purchased the suit property. It is contended that on 19.06.1962, defendant No.1 purchased the suit property, and since then it is under the custody of defendant No.1. It is admitted that there was a suit in O.S.No.36/88 filed by one G.V. Narayana Rao and Venkatesh, and defendant No.1 got the possession of the property from G.V. Narayana Rao in Execution Case No.26/2007 and got demolished all the construction made by G.V.Narayana Rao with the assistance of the Court Commissioner. Defendant No.1 spent a sum of Rs.85,000/- to erect a small shed on the site. It is contended that defendant No.1 has sworn an affidavit on 02.10.2010, stating that he has not made any oral gift in favour of the plaintiff and also to cancel the same if it exists and it is contended that defendant No.1 was in possession of the suit schedule - 10 - NC: 2025:KHC:16551 RSA No. 936 of 2019 property. After his demise the legal heirs are in possession of the suit schedule property. Hence, prays to dismiss the suit. 3.5. The Trial Court, based on the pleadings of the parties, framed the following issues: (1) Whether the plaintiff proves that he is the absolute owner of schedule property by virtue of the Hiba mentioned in para-7 of the plaint? (2) Whether the plaintiff proves that he has been in exclusive possession of the suit schedule property ? (3) Whether the the plaintiff interference by the defendants to his possession? proves (4) Whether the defendant No.1(b) proves that the suit is bad for non-joinder of necessary parties? (5) Is the plaintiff entitled for the relieves claimed in the suit? (6) What order or decree? 3.6. The plaintiff, to substantiate his case, examined himself as PW.1 and marked 34 documents as Exs.P1 to 34. On the other hand, the legal heir of defendant No.1 - 11 - NC: 2025:KHC:16551 RSA No. 936 of 2019 i.e., defendant No.1(a) was examined as DW.1, examined one witness as DW.2 and marked 11 documents as Exs.D1 to 11. The trial Court, after recording the evidence, hearing on both sides and on assessing oral and documentary evidence, answered issues No.1 to 5 in the negative, issue No.6 as per the final order. The suit of the plaintiff was dismissed with costs vide judgment dated 28.10.2015. 3.7. The plaintiff, aggrieved by the judgment and decree passed in O.S.No.125/2012, preferred an appeal in R.A.No.1/2016 on the file of III Additional District Judge, Shivamogga. 3.8. The First Appellate Court, after hearing the parties, has framed the following points for consideration: (1) Whether the appellant has proved that the respondents have gifted the suit schedule property by means of ‘Hiba’ as pleaded? (2) Whether the learned trial judge has erred in holding that the plaintiff has failed to establish oral gift and delivery of possession in his favour? - 12 - NC: 2025:KHC:16551 RSA No. 936 of 2019 (3) Whether the appellant has proved that the impugned judgment and decree passed by the learned I Additional Senior Civil Judge, Shivamogga dated 28.10.2015 is illegal and opposed to law, facts and proved circumstances of the case to warrant interference of this Court? in O.S.No.125/12 3.9. The First Appellate Court, after hearing the learned counsel for the parties and on re-assessing the verbal and documentary evidence, answered points No.1 to 3 in the negative and point No.4 as per the final order. The appeal was dismissed with costs, confirming the judgment and decree passed by the trial Court vide judgment dated 15.02.2019. The plaintiff, aggrieved by the judgments and decrees passed by the Courts below, has filed this regular second appeal. 4. Heard the arguments of the learned counsel for the plaintiff and learned counsel for the defendants No1(a) and 1(b). 5. Learned counsel for the plaintiff submits that the suit schedule property was purchased by Fakeer Mohammed Bolar under the registered sale deed. The - 13 - NC: 2025:KHC:16551 RSA No. 936 of 2019 plaintiff, defendants No.1 to 7 and Smt. Afroza Hussain are the children and wife -Smt. Hazarambi are the legal heirs. He died leaving behind the plaintiff, defendants No.1 to 7 and another daughter, Smt. Afroza Hussain. After his demise, the plaintiff, defendant Nos.1 to 7 Smt. Afroza Hussain inherited the suit property of Fakeer Mohammed Bolar. Defendants No.1 to 7 and Smt. Afroza Hussain have orally gifted the suit schedule property in favour of the plaintiff and have made a declaration of ‘Hiba’ (gift) on 31.01.2000 and confirmed the same by executing the document before the Notary on 18.04.2000 and 21.06.2011. Based on ‘Hiba’, the name of the plaintiff was entered in the revenue records. He submits that the plaintiff has proved the essential ingredients of Hiba. The Courts below have failed to consider that the plaintiff has proved the essential ingredients of Hiba and passed the impugned judgments. He submits that the plaintiff is in possession of the suit schedule property and the suit schedule property is vacant. He submits that other defendants except defendant No.1 have not contested the - 14 - NC: 2025:KHC:16551 RSA No. 936 of 2019 suit by filing a written statement. He submits that the Hiba may be declared valid against defendants No.2 to 7 and the legal representatives of Smt. Afroza Hussain i.e., defendants No.8 to 10 and the suit may be decreed against defendant Nos.2 to 7. Further to buttress his arguments, he has relied on the judgments of the Hon’ble Apex Court in the cases of DAHIBEN VS. ARVINDBHAI KALYANJI BHANUSALI (GAJRA) DEAD THR. LRS AND OTHERS reported in (2020) 7 SCC 366, MANSOOR SAHEB (D) AND OTHERS VS. SALIMA (D) BY LRS. AND OTHERS reported in 2024 SCC ONLINE SC 3809, and relied on the judgment of High Court of Andhra Pradesh in the case of SAYYED SHABBIR VS. KUESHID BEGUM reported in 2023 SCC ONLINE AP 392: (2023) 1 CCC 483 and judgment of

Decision

judgments. In view of the above discussion, I answer the substantial question of law No.2 in the negative. 28. I have perused the citations relied upon by the learned counsel for the plaintiff. There is no dispute regarding the ratio laid down in the aforesaid case. The said decisions are not applicable to the case on hand. 29. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. ii. The judgments and decrees passed by the Courts below, are hereby confirmed. - 40 - NC: 2025:KHC:16551 RSA No. 936 of 2019 No order as to the costs. In view of the dismissal of the appeal, the pending I.A.s, if any, do not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE sks

This is the original judgment text as indexed from the source corpus. Always verify against the official court record before relying on it in a filing — you can do so on eCourts or the Supreme Court of India website. ← Search more judgments