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PETITIONER: SRI RAN NIWAS TODI & ANOTHER

       Vs.

RESPONDENT: BIBI JABRUNNISSA AND OTHERS

DATE OF JUDGMENT:       06/08/1996

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. VENKATASWAMI K. (J)

CITATION:  JT 1996 (7)   264        1996 SCALE  (5)784

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Before the  Trial Court  it was  admitted that the suit land measuring  41.5 decimals was homestead land and several houses of phoos (thatch) and tiles were constructed thereon, which were  in occupation  of the plaintiff-respondent since long, even  prior to the gift Ex.1 executed in her favour by her father-in-law.  Since the  parties were  Mohamedans,  an oral gift  by a   father-in-law  to his  daughter-in-law was permissible but  here was  one which  was  written  but  not registered. It  could not,  in any  event, be  said that  in presence thereof  there was  no oral gift. Significantly, it was followed by possession making the gift complete and that is the finding of all the three courts below.      The debate  before the  High Court  centered round  the erroneous premise  that the gifted property was agricultural land to  which the provisions of the Bihar Tenancy Act, 1885 as also  the Bihar  Land Reforms (Fixing of Ceiling Area and Acquisition of  Surplus Land)  Act got  attracted. Even  so, taking into  account those   provisions, the High Court came to the  conclusion that  the oral  gift made  by a Mohamedan would prevail over the provisions in the tenancy laws, which required occupancy  rights to  be transferred  by means of a registered deed.  We think  that it  was unnecessary for the High Court  entering into  such controversy  and putting the tenancy laws  at a  disadvantage over  Muslim personal  law. Once it  stood established  that the property in dispute was house-property,  which   included  open   spaces   of   land appurtenant and subservient thereto, to which the plaintiff- respondent was  put in  possession after an oral gift in her favour, that per se should have bee, enough to keep her suit decreed rejecting  the pleas  of  the  defendants-appellants that the  gift was  invalid, making the natural heirs of the deceased owner claim it by inheritance.      In this  view of the matter we affirm the orders of the High Court  to the  extent to  which  we  agree  as  to  the validity of  tha gift  on its  own, denuding its judgment of

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the  discussion   on  the   tenancy  laws.   The  appeal  is accordingly dismissed. No costs.