Under Mohammedan Law, oral gift (hiba) is valid without registration if declaration, acceptance and delivery of possession are proved. Concept of joint family property is unknown to Mohammedan Law. Suit for mandatory injunction and recovery of possession is maintainable without declaration of title unless a genuine cloud over title is established. Constructive possession is sufficient delivery of possession for validity of Muslim gift. A plea not raised in the written statement cannot be permitted to be raised for the first time in second appeal. Concurrent findings of fact based on proper appreciation of evidence are not open to interference under Section 100 CPC.

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Civil Procedure Code, 1908 — Section 100 — Second Appeal

Scope — Concurrent findings — Interference.

Second appeal lies only on substantial question of law.
High Court cannot re-appreciate evidence or substitute its own findings where the trial court and first appellate court have recorded concurrent findings of fact based on proper appreciation of evidence.
(Paras 13–16, 28)

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Substantial Question of Law — Test

A question of law becomes “substantial” only when it:

• directly and substantially affects rights of parties,
• is not finally settled by superior courts, or
• is open to serious debate.

Mere re-appreciation of evidence does not give rise to a substantial question of law.
(Paras 13–15)

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Mandatory Injunction — Maintainability

Mandatory injunction and recovery of possession — Declaration not always mandatory.

A suit for mandatory injunction and recovery of possession is maintainable without seeking declaration of title where:

• plaintiff establishes lawful right and possession, and
• defendant fails to raise a genuine cloud over title.

(Paras 24–26)

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Injunction suit — Title dispute — Principles

A plaintiff need not seek declaration of title in every case where defendant disputes title.
Declaration becomes necessary only where the defendant raises a genuine and substantial cloud over the plaintiff’s title.
(Para 25)

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Mohammedan Law — Joint family property

Concept of joint family unknown.

Under Mohammedan Law:

• concept of Hindu joint family property does not exist,
• property held by a Muslim is individual property unless proved otherwise.

Plea of joint family property among Muslims is legally unsustainable.
(Paras 21, 25)

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Mohammedan Law — Gift (Hiba)

Oral gift — Validity — Essentials.

Under Mohammedan Law:

• gift need not be in writing,
• registration is not mandatory,
• oral gift is valid if three essentials are satisfied:

(i) declaration by donor,
(ii) acceptance by donee, and
(iii) delivery of possession — actual or constructive.

(Paras 21–24, 27)

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Oral gift — Proof

Oral gift is proved where:

• donor communicates gift to donee,
• donor informs third parties including defendant,
• written communication and legal notice confirm the gift, and
• donor and donee jointly institute the suit.

(Paras 22–24)

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Delivery of possession — Constructive possession

Actual physical delivery is not mandatory in every case.
Constructive possession is sufficient where donor retains control and permits donee to assert ownership.
(Paras 24, 27)

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Registered document — Thirty years old

A registered document more than thirty years old carries presumption of validity and does not require strict proof under the Evidence Act.
(Para 21)

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Licence — Revocation

Where defendant is permitted to occupy property by way of licence, upon revocation of licence, continued occupation becomes unlawful and possession must be restored to the rightful owner.
(Paras 6, 24)

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Pleadings — Absence of plea — Effect

Where defendant has not pleaded in written statement that suit is not maintainable without declaration of title, such plea cannot be raised for the first time in second appeal after suffering concurrent decrees.
(Para 26)

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Admissions and conduct — Evidentiary value

Conduct of parties, acceptance of legal notice, and absence of rebuttal support plaintiff’s claim of gift and lawful possession.
(Paras 22–24)

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Concurrent findings — Finality

Where both courts below have:

• properly framed issues,
• appreciated oral and documentary evidence, and
• applied settled legal principles,

their concurrent findings do not warrant interference under Section 100 CPC.
(Paras 16, 28)

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RATIO DECIDENDI

1. Under Mohammedan Law, oral gift (hiba) is valid without registration if declaration, acceptance and delivery of possession are proved.

2. Concept of joint family property is unknown to Mohammedan Law.

3. Suit for mandatory injunction and recovery of possession is maintainable without declaration of title unless a genuine cloud over title is established.

4. Constructive possession is sufficient delivery of possession for validity of Muslim gift.

5. A plea not raised in the written statement cannot be permitted to be raised for the first time in second appeal.

6. Concurrent findings of fact based on proper appreciation of evidence are not open to interference under Section 100 CPC.