Court No. - 16
Case :- SECOND APPEAL No. - 107 of 2019 Appellant :- Taiyab (Deceased) And 12 Others Respondent :- Rasidun (Deceased) And 49 Others Counsel for Appellant :- Shiv Shankar Pd Gupta Counsel for Respondent :- Gautam
Hon'ble Rajiv Joshi,J.
Heard Sri Shiv Shankar Gupta, learned counsel for the appellants and Sri Gautam, learned counsel for the caveator- respondents.
The present second appeal under Section 100 C.P.C. has been preferred against the judgment and decree dated 23.10.2018 passed by the Additional District Judge, Court No. 7, Azamgarh in Civil Appeal No. 398 of 1993 whereby the appeal filed by the defendants-appellant was dismissed affirming the decree passed by the trial court dated 25.8.1993, decreeing the suit of the plaintiffs for partition to the extent of 1/6th share.
The facts as reflects from the record are that the plaintiff who is the daughter of Badloo, filed suit for partition claiming 1/6th share in the disputed property impleading her brothers as defendant nos. 1 and 2. It was pleaded in the plaint that the disputed property originally belonged to Badloo (father of the plaintiff), Yaad Ali and Sadloo and there was mutual partition amongst them. As per the mutual partition, Badloo, Sadloo and Yaad Ali had separated their share. Subsequently, vide sale deed dated 7.1.1981 Sadloo transferred his share to the plaintiff vide registered sale deed dated 7.1.1981 and therefore, the suit was filed by the plaintiff claiming 1/6th share.
The defendants contested the matter by filing written statement on the ground that oral Will/hiba was made by the Badloo in favour of the defendant no. 12 and further the disputed property is not exclusive property owned by the Badloo. Both the parties in respect of their claims filed documentary evidence and adduced the oral evidence.
The trial court after considering the entire evidence available on record, has specifically recorded a finding that the property exclusive belonged the father of the plaintiff after mutual partition amongst the brothers i.e. Yaad Ali, Badloo and Sadloo. The burden lies upon the defendants to prove the Will/hiba in their favour which they failed to discharge. The suit was decreed by the trial court. The appeal filed by the defendants-appellant was dismissed by the lower appellate court affirming the decree passed by the trial court.
Contention of learned counsel for the appellants is that the Will/hiba has been proved by the defendants.
On the other side, learned counsel appearing on behalf of the plaintiff-respondents supported the findings of fact recorded by both the courts below.
Under the Mohammadan Law, three ingredients are essential for making Will/hiba:
(1) Declaration of the gift by a donee.
(2) Acceptance of gift by a donee expressly or impliedly and
(3) delivery of possession to prove taking possession thereof by donee actually or constructively.
Under the Mohammadan Law the provisions contained in Section 129 Transfer of Property Act are not applicable and the gift is not required to be registered.
From the perusal of the evidence including written statement, it is clearly established only the reference was made that Badloo, the father of the defendants transferred the property to the defendants by way of oral Will /hiba and there is no reference to the acceptance of the Will/hiba and regarding the date on which the possession was delivered.
Learned counsel for the appellant could not point out that such averments were made in the written statement. Admittedly the burden for proving oral Will/hiba lies upon the defendants if they are claiming their rights on the basis of said oral Will/hiba.
From the evidence, it is apparent that the appellants failed to discharge their burden and even no pleadings with regard to the ingredients of the valid Will/hiba has been made in the written statement.
It is well settled that evidence cannot travel beyond the pleadings of the parties and in absence of the same both the courts below have rightly come to the conclusion that the disputed property belonged to Badloo and as per the Muslim Law the plaintiff being daughter of the Badloo, is entitled for partition to the extent of 1/6th share.
In the opinion of this Court, no ground exists to interfere with the findings so recorded by the courts below. The proposed substantial questions of law framed by the appellants in the appeal do not involve any legal issue.
Consequently, appeal is devoid of merit, and is, accordingly dismissed.
Order Date :- 25.2.2019 Akbar