Case Note & Summary
The dispute centered on ownership and possession of a property within a family, where the plaintiff, a son, claimed that his father had made an oral gift (Hiba) of the suit property to him on 11/06/2005, later reduced to writing on 12/06/2005. The father and the plaintiff were both parties to the suit, with the father (defendant No.7) admitting the oral gift in his written statement. The other sons, defendants Nos.1 to 6, resisted the claim, denying the validity of the gift. The trial court decreed possession in favour of the plaintiff, holding that the oral gift was established by the father’s admission and supporting evidence, including the testimony of a sister. The first appellate court dismissed the defendants’ appeal, affirming the trial court’s findings. Aggrieved, the defendants filed a second appeal before the Bombay High Court (Nagpur Bench), raising the contention that the evidence on record was insufficient to prove the oral gift. The High Court, after perusing the findings of the lower courts with assistance of counsel, noted that the father, the transferor, had made a clear admission in his written statement, and it was not the case of the appellants that the admission was made under any influence. The sister’s testimony further corroborated the plaintiff’s case. The court observed that the lower courts had correctly appreciated the evidence and arrived at concurrent findings of fact, which did not suffer from any perversity or misreading. In the absence of any substantial question of law, as required under Section 100 of the Code of Civil Procedure, 1908, the second appeal could not be entertained. Consequently, the High Court dismissed the appeal and upheld the decree of possession in favour of the plaintiff. The decision reinforces the principle that concurrent findings of fact based on proper appreciation of evidence, particularly when supported by the transferor’s admission, do not give rise to a substantial question of law warranting interference in second appellate jurisdiction.
Headnote
A) Muslim Personal Law - Hiba (Oral Gift) - Proof - Muslim Personal Law (Shariat) - The plaintiff claimed ownership of suit property through an oral gift (Hiba) from his father, who was arrayed as defendant No.7. The father, in his written statement, admitted the Hiba, and no plea of undue influence was raised by the defendant-appellants. Further, the sister of the parties deposed in support. The trial and first appellate courts accepted this evidence as sufficient to establish the gift. Held, considering the admission of the transferor and corroborative testimony, the finding of valid Hiba is based on proper appreciation of evidence and warrants no interference in second appeal. (Paras 1-4) B) Civil Procedure - Second Appeal - Substantial Question of Law - Code of Civil Procedure, 1908, Section 100 - The defendants challenged concurrent decrees of possession by way of second appeal, contending insufficiency of evidence. The High Court observed that both courts below had correctly appreciated the evidence and recorded concurrent findings of fact. No perversity or misreading of evidence was pointed out. Held, in the absence of any substantial question of law, the appeal is liable to be dismissed under Section 100 CPC, and the decree for possession upheld. (Paras 2, 5)
Issue of Consideration
Whether the evidence on record sufficiently establishes the oral gift (Hiba) in favour of the plaintiff, and whether the concurrent findings of fact by the lower courts give rise to a substantial question of law warranting interference in second appeal.
Final Decision
Second Appeal dismissed. Concurrent decrees of possession upheld. No substantial question of law found.
Law Points
- oral gift (Hiba) under Muslim personal law
- proof of gift through transferor’s admission and corroborative evidence
- scope of second appeal under Section 100 CPC
- concurrent findings of fact not giving rise to substantial question of law
