B.K. SOMASEKHARA, J.
(1) THESE two appeals arise out of a common judgment by the learned additional Chief Judge-cum-II Additional Metropolitan Sessions Judge, Hyderabad in O.S. No. 833 of 1978 and O.S. No. 53 of 1981 dated 29-9-1982. C.C.C. A. No. 28 of 1983 arises out of O.S. No. 833 of 1978 whereas C.C.C. A. No. 40 of 1983 arises out of O.S. No. 53 of 1981. In both the cases, the appellant is common. The two suits are between the close relatives and almost between the same parties. It may be necessary to note the admitted relationship between them. One Safdar Hussain, Meharunnisa Begum @ Bismilla Bai and badrunnisa Begum @ Badar Bai and Khamarunnisa are the uterine brother and sisters of one Bibijohn. Khamarunnisa and Badrunnisa, the two sisters died issueless without leaving any surviving husband behind them. Meharunnisa died in the year 1967 at Ujjain whereas Badrunnisa Begum died on 30-8-1978 in the Osmania General Hospital Hyderabad. Nayyar Bai and fazal Hussain @ Afsar Hussain are the children of Meherunnisa. Ghouse Mohiuddin is the son of Khammar Ba. The reference to the parties by name instead of their status in the trial Court would be more convenient having due regard to the fact that the suits are between the same parties practically. The record of other admitted facts also would be useful, which are as under.
(2) THE three sisters belong to the profession of dancing and singing. They were carrying on the profession like others in the area called as Mehboob ka mehandi, Hyderabad since a long time. Even Naiyer Bai was and has been carrying on the same profession. The deceased person and the contesting parties lived in the same area stated above in different houses. Khamarunnisa and her son lived in House No. 21-6-82 whereas Badar Bai Naiyer Bai and afsar Hussain lived in House No. 21-6-104. The house of Khamarunnisa is opposite to the house of Naiyer Bai and Afsar Hussain. Badar Bai lived with Naiyer Bai and Afsar Hussain till she was admitted to the Hospital before the death in House No. 21-6-104. Naiyer Bai and Afsar Hussain continued to live in the same house even after the death of Badar Ba. As already pointed out, Badar Bai died in the Osmania General Hospital, Hyderabad on 30-8-1978. It is also relevant to note that Khamarunnisa lived in her own house separate from Badar Bai till she died. Each of them were carrying on their profession of dancing and singing independently.
(3) THE plaint schedule properties are 16 in number. Out of them Item No. 1 is the immovable property of house bearing No. 21-6-104 which belonged to Badar Bai whereas Items 2 to 16 are the movable properties comprising gold, silver and diamonds etc., including a pass-book. There were criminal proceedings between the parties wherein Khamarunnisa had filed a complaint to the Police upon which FIR 156/78 in Charminar Police Station was filed and the matter was before the II Metropolitan Magistrate's Court, Hyderabad and in that item Nos. 2 to 16 were seized and kept in the Court custody. An inventory of the movables said to have been belonging to Badar Bai was also conducted in. A. No. 872 of 1988 through a Commissioner on 21-10-1978. It was conceded that most of them bore the name of Naiyer Bai and in the lower court Mr. M.N. Ganu, the learned Advocate for Khamarunnisa conceded that his party was not laying any claim over such properties as having belonged to late Badar Ba. In this Court also, the learned advocate of Naiyer Bai and Afsar Hussain do not seriously contest this aspect of the record made by the trial Court. Therefore, the suit properties are meant to be the items 1 to 16 as detailed supra (described in the plaint schedule).
(4) AFTER the death of Badar Bai, Khamarunnisa and Naiyer Bai disputed with each other regarding their title to the suit properties. The former claimed to be the legal heir of Badar Bai being the sister, and belonging to Sunni sect of Muslim Community whereas Naiyer Bai and her brother claimed them to be theirs and in particular by Naiyer Bai to be hers by virtue of an oral gift given to her by Badar Bai and by virtue of they being the legal heirs having succeeded to the estate of the deceased Badar Bai who is said to be a person belonging to Shia sect of the Muslims. They also claim to be the fostered children of Badar Ba. As already pointed out, there was
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criminal case also between the parties after the death of Badar Ba. These events both admitted and controverted led to the filing of two suits in question, viz. , O.S. No. 833 of 1978 filed by Khamarunnisa against Afsar Hussain and Naiyer Bai as an administration suit seeking the directions of the Court for the purpose of administration and O. S. No. 53 of 1981 filed by Naiyer Bai for permanent injunction to restrain Khamarunnisa and another person from interfering with her peaceful possession and enjoyment of the suit schedule properties on the footing of a gift inasmuch as on the footing of her being the owner of the movable properties having been acquired through the income of her profession. (5) THE following issues in the respective suits were settled." (1) Whether late Badrunnisa Begum @ Badar Bai died leaving behind no estate of her own? (2) Whether the defendants are the exclusive owners of Schedule-A properties annexed to the plaint? (3) Whether the plaintiff and defendants are not governed by Sunni Law? (4) Whether the suit for administration of Schedule-A properties with consequential relief is not maintainable as alleged by the defendant? (5) Whether the plaintiff is not entitled for a decree as prayed for ? (6) Whether the Court fee paid is not proper and correct ? (7) To what relief ? additional Issues : (1) Whether the plaintiff is in possession of the suit premises ? (2) Whether the defendant has interfered in the possession of the plaintiff? (3) To what relief ?"the parties went to trial on these issues wherein common evidence was recorded comprising the testimony of Khamarunnisa, P. W. I and of two witnesses as per P. Ws. 2 and 3 and the testimony of Naiyar Bai, as D. W. I and three witnesses for her as per D. Ws. 2 to 4 respectively. It also comprised the documentary evidence as per Ex. A-1 to Ex. A-8 for Khamarunnisa whereas exs. B-1 to B-13 for Naiyer Bai and Afsar Hussain. Ex. X-1 is the document marked by the Court and Ex. C-I is the paper on which certain names were written. With such evidence before him and after hearing both the sides, the learned trial Judge held that the parties belong to Sunni Sect of Muslims; that Badar Bai died leaving behind her the estate detailed in the suit schedule properties; that Naiyer Bai is the owner of the suit properties; that Naiyer bai is in possession of the suit properties and that the suit of Khamarunnisa deserves to be dismissed whereas the suit of Naiyar Bai deserves to be decreed and accordingly pronounced the judgment and passed the decrees. As already pointed out, they are the subject matter of these two appeals.(6) MR. A.K. Narasimha Rao, the learned advocate for the appellants in the appeals has challenged the judgment and decree of the trial Judge in both the suits on several grounds viz. , (1) the finding that Khamarunnisa @ Khamar Bai is the owner of the suit properties based upon a gift and as legal heir is against the evidence in the case and also the probabilities. (2) that the assessment of the evidence by the learned trial Judge is not according to law particularly in regard to the proof of the alleged oral gift set up by Naiyer Bai through various circumstances which were not reliable or believable. (3) that the procedure adopted by the learned trial Judge in accepting the evidence of D. W. 3 in regard to Ex. X-I and depending upon that is totally opposed to the procedure and law of evidence and probabilities. (4) that the reliance on the evidence of D. W. 2 a neighbour of the parties in the locality merely on the basis of her age and also her so called decision along with similar neighbours in the locality without proper foundation to prove the oral gift is most improper. (5) that the acceptance of the plea of oral gift of Naiyer Bai is opposed to the settled law regarding the ingredients to be established in proof of the same among the members of the Muslim community. (6) the judgment and decree of the learned trial Judge are opposed to facts, probabilities and the law operating upon them as a whole and therefore deserves to be set aside. (7) MR. Narayanacharyulu, the learned advocate for the respondents in both the appeals while trying to repel the above contentions initially contends that the administration suit by a person claiming to be the legal heir is not by itself maintainable apart from the merits of the case. The learned advocate has pointed out that the findings of the learned trial Judge are totally based upon the evidence which is reliable, probable and acceptable and further more, in a case where an oral gift is set up, the circumstances to be established are different from a written gift and all the circumstances placed by his parties are natural, probable and reliable and therefore, the learned trial Judge was justified in acting upon them. The learned advocate has contended that from the facts and circumstances of the case, the evidence of his parties was more probable than the evidence of Khamarunnisa in her suit. As a whole, he has contended that the facts and circumstances of the case would attract the proof of an oral gift among persons belonging to Muslim Community. In regard to the finding that Badar Bai did not belong to Shia Community, sub-sect of Muslim Community, the learned advocate has challenged it on the ground that strictly speaking there is no finding at all and the observations of the learned trial Judge are in the nature of holding over such a factum which is not necessary or relevant for the purpose of the suits in question as the oral gift set up by Naiyar Bai has been established. He has argued that the evidence was sufficient to hold that Badar Bai belong to Shia sect of Muslim Community. At any rate, according to the learned advocate Mr. Narayanacharyulu, there is no reason to interfere with the judgment and decree of the learned trial judge. (8) THE grounds of appeal have been too general in nature, however, comprising therein all the contentions stated above directly or indirectly. Supplementing that with the arguments and counter arguments of the learned advocates as above, the following points arise for determination. (1) Whether Badar Bai was a person belonging to Shia sect of the Muslim community ? (2) Whether the finding of the learned trial Judge that the suit item No. 1, the house was orally gifted by Badar Bai to Naiyer Bai is correct ? (3) Whether the finding of the learned trial Judge that the suit movable items 2 to 16 are of Naiyer Bai is justified ? (4) (a) Whether the appreciation of the evidence by the learned trial Judge drawing inference and leading to the findings is legal, proper and justified? (b) If not, to what extent ? (5) Whether the suit of Khamarunnisa as an administration suit claiming to be the legal heir of Badar Bai is maintainable ? (6) (a) Whether the judgment and decree of the learned trial Judge are illegal, improper and warrant interference by this Court? (b) If so, to what extent?(9) FROM the pleadings there is nothing to indicate that except Badar Bai either her sisters or her brother stated above belong to Shia sect of Muslim community. While Naiyer Bai was in the witness box as P.W.I (sic. D.W. I), it was not suggested or indicated that all the children of Bibijon or Bibijon herself was a Shia by sub sect. There is not even a suggestion to Naiyer Bai that her mother or her aunt were Shias. Therefore, presumably, it must be taken that the contention rested only in regard to Badar Bai that she was a Shia Muslim. Such a theory would be inconsistent with realities. It is nobody's case that the three sisters and their brother were the children through different mothers and to draw the inference is that they were ulterine children. It is also not indicated that they were born to different husbands. Therefore, presumably and initially all of them should be in fact and without any doubt were the members belonging to Sunni sect of Muslims. Apart from this, Mr. Narasimha Rao, the learned advocate is totally right in contending that in India having due regard to the fact that the great majority of the Mohammedans of this Country being the Sunnis, the presumption will be that the parties to the suit or proceedings are Sunnis unless it is shown that the parties belong to the Shia sect. His reliance on the learned expressions of Mulla in Principles of Mohammedan Law is also justified (vide Article 28 in Chapter III of principles of Mohammedan Law, 19th edition of 1990 ). Such a learned expression/opinion is also supported by the precedents consistently in this regard viz, Bafatum vs. Bilaiti Khanum; Mt. Iqbal Begum vs. Mt. Syed Begum; Akbarally vs. Mohamedally; Moosa Seethi vs. Mariakutty. The learned advocate has in particular depended upon Iqbal Begum's case and Moosa Seethi's case in support of his contention and rightly too. Therefore, in this case, the burden of proof to the contrary was very heavy upon Naiyar Bai to establish that badar Bai was a Shia. She has tried to prove this with some evidence through her own expressions and through her witness to some extent about the manner in which Shias offer their prayers and follows certain religious procedures and the practices of burying the dead in a particular burial ground. Regarding the religious practices etc., except the expressions in some part of the testimony, there is no satisfactory supporting basis. In Iqbal Begum's case there was an occasion to deal with the question as to whether a person belonging to muslim community following the religious practices of either Sunni or Shia can be classified as such merely on such basis. It has been pointed out that broadminded-men belonging to either sect tolerate and even respect the observances of the other. The visiting of the shrine and the making of offerings is not entirely confined though very much commoner, among the Sunnis than among the Shias. (10) THERE appears to be a clear indication that Badar Bai was buried in a burial ground belonging to Sunnis, as it is not proved as such the burial ground is exclusively used for burying the members belonging to the Shia sect of community. It is not indicated in the evidence or in the arguments that when three sisters and brother were Sunnis, how it comes that only Badar bai could be treated as a person belonging to Shia sect of the community. During the course of the arguments, it was indicated possibly that she might have married a Shia and therefore might have adopted that faith after a particular point of time. There is no such plea in the suit. Secondly, the law is settled that due to a marriage between a Shia male and a Sunni female, the wife's status is not affected and a Sunni woman contracting marriage with a Shia does not thereby become subject to the Shia law (vide decision in Nasrat vs. Hamidan. Therefore, Naiyar Bai miserably failed to establish that Badar Bai was a Shia. The learned trial Judge was justified in giving such a finding indirectly and however holding that it was not necessary in this case when the plea of oral gift was accepted. (11) THE learned trial Judge has found that the suit item No. 1, house, was gifted orally by Badar Bai to Naiyar Bai based on certain circumstances viz. , (1) Badar Bai treated Naiyer Bai and her brother as her own children as their mother being her own sister is dead and as they looked after her till her death. (2) Naiyar Bai lived in the house of Badar Bai, paid house tax for her during her life time and in her own capacity after her death. (3) Naiyar Bai was carrying on her profession of dancing and singing along with Badar Bai under her licence renewed later in her name till Badar Bai died and even thereafter. (4) The fact of oral gift was informed by Badar Bai to D.W. 3, a family friend of the parties by writing a letter to him as per Ex. X-1 regarding which the witness has testified. (5) There is the evidence of D. W. 3, an old lady in the locality and a neighbour having the same profession that Badar Bai gifted the suit house to Naiyar Bai and handed over the documents to her and that it was decided after the death of Badar Bai by her and other neighbours in the locality that there was a gift in her favour by Badar Ba. (6) The relationship between the parties showed that Khamarunnisa was not close to Badar Bai whereas Naiyar Bai was close to her and had a reason to get the gift of the suit house. (12) ON a careful examination of the evidence in the case and the circumstances projected therefrom, this Court is unable to disagree with the learned trial Judge. After the death of their mother, Naiyar Bai and her brother lived with Badar Bai in the suit house till she died. Exs. B-2 and B-6, the licences for the dancing Profession, corroborates the circumstance that Naiyar Bai carried on her profession along with Badar Bai during her life time and continued it after her death in the same house. She looked after Badar Bai during her life time and also during her old age till she died. Except that, khamarunnisa is stated to have taken Badar Bai to the Hospital according to her own sworn testimony, there is nothing to indicate that she alone exercised extra care or interest in Badar Bai during her old age before her death or at any time for a justifiable reason that she was neglected by Naiyar Ba. It is nobody's case that Badar Bai was neglected by Naiyar Bai or her brother at any time or during her old age. The testimony of Khamarunnisa that she did the last rites to Badar Bai is not supported by any supporting material. It is highly improper that either she would do it or would have allowed it when Naiyar Bai and her brother had all the interest in the deceased and even assuming that she took any interest, there was nothing special about it as she being the sister and as an elderly member in the family ought to have exercised such an interest atleast ater the death. The balancing probabilities tilt in favour of Naiyar Bai than in favour of Khamarunnisa in this regard. This circumstance clearly indicates the inherent intention and interest for Badar Bai to think of gifting the suit house to Naiyar Bai and to no other person much less to Khamarunnisa. It is nobody's case much less of hers that the house was gifted or attempted to be gifted to khamarunnisa. Therefore, it was not improbable that Badar Bai thought of gifting the suit house to Naiyar Ba. (13) THERE is the testimony of Naiyar Bai as D.W. I that Badar Bai gifted the suit house to her and handed over possession of the title deed -Ex.B-1 in regard to the suit house while she gifted the house orally. Admittedly, the document was produced by Naiyar Bai into the Court. There is no indication in the cross-examination of Naiyar Bai that she managed to get hold of the document at any stage or after the death of Badar Bai only to create a circumstance in her favour. When she looked after Badar Bai till she died, it is possible that she was in possession of her documents also both on her behalf and in her own behalf. There is not even a slight suggestion made to Naiyar Bai that she managed to get hold of the document for any unclean means. Her payment of tax to the house under Exs. B-7 to B-11 both on behalf of Badar Bai during her life time and in her own capacity after her death is another indication. It is significant to note that Khamarunnisa did not make even a slight effort to evince any interest in the house after the death of Badar Bai by paying the house tax or making an attempt to get the Khata changed to her name spontaneously in the course of natural events. On the other hand, she has rushed to criminal Court to file a complaint against Naiyar Bai, got the movables attached and rushed to the civil Court to file a suit for administration of the estate of the deceased. On the other hand, when Naiyar Bai was to be disturbed from the possession of the suit properties and when she was forced to face the criminal complaint, she was compelled to file her suit to protect her possession if not her interest in the suit properties. Therefore, the conduct of the parties is so clear that the former had an aggressive attitude to get hold of the property of the sister than the latter who had a reason to be in possession of the property and to continue in possession of the same for the best reasons successfully demonstrated in the case. (14) IN regard to the oral gift, the testimony of Naiyar Bai was sought to be corroborated through the testimony of D. W. 2, neighbour and old lady of 70 to 80 years at the time of her deposition. D.W. 2 has testified in clear terms that the house where Badar Bai was residing was gifted four years prior to her death to Naiyar Bai in presence of the community people and she handed over the documents to Naiyar Ba. She has also stated that Naiyar Bai was almost like a daughter to Badar Bai since she brought her up after the death of her own sister in her house. She has also stated that the gift was accepted by Naiyar Bai and Badar Bai resided in the same house till she died in the hospital. The testimony of this old lady is not impeached successfully. In the first place her credibility is not questioned as either tainted by interestedness in Naiyar Bai or by bias as against Khamarunnisa or due to any other extraneous reasons to benefit herself. Her testimony in this regard hence accepted by inspiring confidence in any reasonable prudent man who reads the evidence objectively and carefully. If an old lady like Badar Bai had orally gifted her property to her niece like Naiyar Bai in the absence of any other relative like Khamarunnisa not to be taken into confidence for the best reasons known to the parties, it is the close neigbours who were carrying on the same profession like D.W.2 who ought to have been taken into confidence by Badar bai as it happened in the present case. There is nothing improper in the testimony of D.W.2 in this regard. Ex. B-13 is no doubt the document brought about by D.W.2 and similar people of the locality after the death of Badar bai to affirm that the suit house had been gifted to Naiyar Ba. It is true that it cannot play any special important role to prove the gift except as a circumstance to corroborate the testimony of D. W. I Naiyar Ba. It cannot be forgotten that by then the parties had gone to streets fighting with each other over the estate of the deceased Badar Bai even to the extent of approaching the police. The movables in the suit house were seized in the criminal proceedings. Some of the movables were also seized by an inventory by a court Commissioner. In such a situation it was not improper for the elder neigbours in the locality to support Naiyar Bai by giving their affirmed opinion that the gift of the house was in favour of Naiyar Bai and to no other person. In law, Ex. B-13 and the testimony of D.W. 2 amounts to opinion evidence and that is relevant under Section 48 of the Indian Evidence Act. Such an opinion is not only relevant in regard to the existence of right or custom etc., but also in regard to the past existence of a fact relating to the right. The illustration appended to Sec. 48 concerns the right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of the section and if the members of the locality have such an opinion as in the present case as to the right of Naiyar Bai to the suit house by virtue of an oral gift, it is not beyond the legal fours within the provision. Therefore, the testimony of D.W.2 in this regard is not only relevant but also rightly made reliable as an acceptable piece of evidence not only to support the case of Naiyar bai but also to corroborate her testimony. More than all, there is not even a suggestion made to D.W.2 that she had a special reason to support the case of Naiyar Ba. Her age and her capacity to depose to such a fact could not have been rejected to any extent under the circumstances as has been rightly done by the learned trial Judge. (15) THEN comes the testimony of D.W.3, one Pandit Elmer, which is accepted as the corroborating evidence regarding the oral gift. In brief, his evidence is that he was being treated by Badar Bai as a brother by courtesy; that he was informed by Badar Bai that she purchased the suit house for the benefit and the use of Naiyar Bai and that according to him, she gifted the house to Naiyar Bai orally. He was not present at the time of gifting the house to naiyar Bai but Badar Bai consulted him before doing that and she informed him that she was going to gift it to Naiyar Ba. It appears that after the gift was over by holding a function, as he could not attend such a function, Badar Bai wrote a letter to him as per Ex. X-1 questioning as to why he did not attend the function wherein she had gifted the suit house to Naiyar Bai and he was also requested to meet her thereafter. It is also in his testimony that eight days later, she came to him and told him that she wrote a letter to him stating that she gifted the house to Naiyar Bai in the presence of her community people and that he should have attended the function. The said letter is marked as ex. X-1. But, it is coming at a very late stage, that too through D.W.3. D.W. 3. is also not conversant with Urdu language in which Ex. X-l is written but still he identified the signature of Badar Bai on the document. The learned trial Judge has gone to the extent of comparing the signature of Badar Bai in Ex. X-l with Ex. C-1 without even mentioning that either he is conversant with Urdu language or that he has expertise in comparing such signatures either due to qualification, experience or due to any other reason. The learned advocate is justified in attacking this part of the finding and inference on the part of the learned trial Judge by adopting an unusual method in coming to such a conclusion. In the first place, the testimony of D.W.2 (sic. D.W. 3) regarding the letter is not satisfactory. Secondly, the method adopted to compare the signature is not only illegal but also judicially impropriate. The mode of proving the writing or signature of a person is provided under Section 47 of the Evidence Act. When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. The Explanation to the said provision elaborates the meaning of a person acquainted as "a person is said to be acquainted with the hand writting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him". That is not the testimony of D. W. 3. The hand-writing or the signature may also be proved by taking recourse to the expert evidence by virtue to Section 45 of the Evidence Act. The law is settled that the opinion of an expert under the provision tantamounts to the knowledge of a person acquainted with the hand writing of an individual. It is as good as the evidence of an acquainted for the reasons mentioned in Section 47 of the Evidence Act. In other words, sections 45 and 47 are to be read together to make use of the expertise in the opinion about the proof of the signature or the handwriting. The learned trial judge has acted in derogation of the true legal implication of the provision supra. As an ultimate mode of proof regarding the writing and signature of a person is also available to the Court under Section 73 of the Evidence Act by comparing the admitted signature in (sic. and) writing with the disputed ones and that has been done by the learned trial Judge. Patently, no recourse to the provision is mentioned in the judgment although the recourse is patent. The law is settled that the recourse to Section 73 should be in extreme cases where the parties will be unable to prove the handwriting and signature through the above procedure and the ends of justice will fail if recourse is not taken to Section 73 of the Evidence Act. Such a provision should be taken recourse by the Courts in the rarest of the rare cases only to meet the ends of justice and not in a routine manner and unless in the absence of any other evidence produced by the parties. The Courts cannot supplement what the parties fail. It can only judicially supplement it by adopting a method permissible in law. It must be noted with concern and caution that any such course adopted by the Courts would instead of serving the ends of justice may defeat the same. It should also be pointed out that a Judge taking recourse to Section 73 of the Act should convince himself and others that he is conversant with the language in which a particular writing or signature is made and secondly make a record of his expertise in the matter however qualified or otherwise by experience or atleast give reasons as to how he is able to draw the similarity between the disputed signature and the admitted signature and the writings. No such exercise is made by the learned trial Judge. To that extent Mr. Narasimha Rao is totally fortified with the legal bearing. But, that itself will not defeat the testimony of D.W.3. As rightly pointed out by the learned trial Judge and as per the admissions of Khamarunnisa in her own complaint, F.. R., D.W. 3 was a close associate of Badar Bai and a family friend and he (D.W. 3) went to the extent of even saying that Badar Bai had left all her movables and valuables in the hands of D.W. 3. D.W. 3 was thus a man of confidence for Badar Bai and if she had taken him into confidence, there was nothing improper or unnatural. It is true that by the time he deposed in the court, Khamarunnisa had already filed the criminal complaint against him and possibly that must have influenced him to some extent to speak against her. But the question is whether such a testimony can be totally thrown over just because he was offended due to a complaint whether false or true, atleast to the extent that his testimony can corroborate the testimony of D. Ws. l and 2. The trial Judge was totally justified in making use of the evidence, if any, as an independent evidence. With all this, the evidence of plaintiff is nil by rebuttal as to why the above circumstances are in favour of Naiyar Bai and whether Naiyar Bai would go to the extent of revolting against her own senior aunt in order to gain herself with the property of Badar Ba. It is apparent that the parties have fallen out only after the death of Badar Ba. There is not even a slight indication that even Khamarunnisa was against Badar Bai or Naiyar Ba. If either D. W. 2 or D. W. 3 or any other party were interested in badar Bai or Naiyar Bai to the detriment of interest of Khamarunnisa, she would not have kept silent without showing any interest in the matter either to create some circumstance in her favour or to create some material so as to dislodge the circumstances in favour of Naiyar Ba. Therefore, the learned trial Judge was perfectly justified in appreciating the evidence in the above fashion to draw inference in favour of the oral gift by Badar Bai in favour of Naiyar Ba. (16) THIS Court even after going through the evidence and examining the circumstances above with the aid of the evidence and probabilities is unable to disagree with the learned trial Judge, in this regard. (17) MR. Narasimha Rao, the learned advocate has tried to demonstrate with the legal basis that the alleged oral gift set up by Naiyar Bai is not proved in accordance with law. According to him, the ingredients in that regard are not brought. According to him, there is no declaration of the intention of the deceased to gift the suit house to Naiyar Bai; there is no acceptance of the same by Naiyar Bai and there is no conduct of taking possession of the property by Naiyar Bai in pursuance of the gift. In this regard, the learned advocate has depended upon Article 138 of Mulla's Mohammedan Law supra. Further more, he has also relied upon the decision of the Supreme Court in Mahboob sahab vs. Syed Ismail wherein the expressions of the learned author Mulla as mentioned above are elaborately dealt with which are as follows;"under Sec. 147 of the Principles of Mohamedan Law by Mulla, 19th edition, Edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential, to the validity of a gift, that the donor should divest himself completely of all ownership and dominion over the subject of the gift. Under Sec. 149, three essentials to the validity of the gift should be (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Sec. 150. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only gift is complete. Section 152 envisages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. It would, thus, be clear that though gift by a Mohammadan is not required to be in writing and consequently need not be registered under the Registration Act: a gift to be complete, there should be a declaration of the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. No evidence has been adduced to establish declaration of the gift, acceptance of the gift by or on behalf of the minor or delivery of possession or taking possession or who had accepted the gift actually or constructively. Admittedly, he was in possession and enjoyment of the property till it was sold to the appellant. "the learned advocate has also depended upon certain expressions made by this Court in a latest pronouncement of this Court in S. A. No. 21 of 1988 dt. 14-2-1996. It is true that as per the settled law, in order to establish a gift among muslims, the ingredients stated above must be established. How those ingredients were established depends upon the facts and circumstances of each case. The declaration of the gift by the donor to the donee may be either in writing or orally or it may be gathered from the conduct of the parties, the possession of the gifted property, the change of patta, payment of assessment, mode of enjoyment etc. That is how while dealing with the facts and circumstances of the case in Md. Usman vs. Md. Anwar Baigh and others this Court had to hold that in spite of the gift deeds, there was no transaction of possession, transfer of mutation and want of conduct of parties in relation to the gift alleged in that case that either there was no gift or that it was not acted upon. While laying down general principles in regard to the muslim gift, this Court had to hold against the parties having due regard to the facts and circumstances detailed therein. But, now in the present case, the declaration of the gift by the donor has been proved with positive evidence, circumstantial evidence, conduct evidence and the corroborative evidence. Added to that, the probabilities in the case have become one more link in the circumstances to believe the oral gift in favour of Naiyar Bai than to reject it. The chain of circumstances as it were in a case depended upon circumstantial evidence has led to only hypothesis that there was in all probability an oral gift in favour of Naiyar Bai and not otherwise. The learned trial Judge has given adequate and satisfactory reasons based on evidence to accept the oral gift in favour of Naiyar Ba. She came into possession of the title deed of Badar bai by being with her in the normal circumstances and without any aggressive or extraordinary strait or trick. She lived with the donor Badar Bai and continued in possession of the house till Badar Bai died and thereafter also. There was a positive conduct on her person by paying the house tax. She continued her profession of dancing and singing along with Badar Bai during her life time and thereafter also in the same house. In such a situation to prove the acceptance of gift, taking of possession, showing any other positive conduct may be rather difficult. In such a situation, it is the circumstances which should influence the Court to think only those ingredients by submission, by conduct or by operation could have been followed and that has happened in this case. In the absence of strong circumstances to disbelieve the case of Naiyar Bai in regard to oral gift, the trial Court was justified in accepting such a plea which is not totally inconsistent with the probabilities as a whole. Thus, this court finds no reason to interfere with the finding of the trial Court regarding the proof of oral gift by Badar Bai in favour of Naiyar Bai regarding the suit house, Item No. 1.(18) IN regard to Items 2 to 16, movables which are the subject matter of the criminal case and seized in FIR 156/78, it was rightly conceded in the trial Court that Naiyar Bai is not claiming any right over the same. There is no plea that Badar Bai gifted the suit movables. i.e., items 2 to 16 also to Naiyar ba. On the other hand, she has specifically pleaded that she acquired those properties herself. But the proof is not satisfactory in that regard. For two reasons, in the first place both Badar Bai and Naiyar Bai were carrying on the same profession of dancing and singing and were having their own income and in fact Badar Bai acquired suit house out of her own income. It is not the case of Naiyar Bai that she acquired the suit house either jointly with Badar bai or exclusively by her own income. Further more, the movables seized under an inventory conducted through a Commissioner bear the names of Naiyar bai whereas the property seized in the Criminal proceedings do not bear her name. That is a strong probability to show that items 2 to 16 of the suit schedule cannot be taken to have acquired by Naiyar Bai and naturally they continued to belong to Badar Ba. Most of them being the jewellery and Badar Bai being a woman, possibly might have been used by her till she died and perhaps allowed to be used by Naiyar Bai also as they were together carrying on the profession of dancing and singing. The learned trial Judge has overlooked such a circumstance and has not given a specific finding in this regard but still has disposed of the suits only in favour of Naiyar Ba. This Court on the materials in the case is certain that items 2 to 16 of the suit schedule were of the ownership of Badar Bai and not of Naiyar Ba. Since the parties were sunnis governed by Hanafi Law of Inheritance, Khamarunnisa being the sister and the legal heir to the extent of her share as a sharer is entitled to succeed to the same and Naiyar Bai is not one of the persons to be brought within either sharer or the residuary (vide Article 63 and 65 and the table at pages 48 to 55 of Mulla's Mohamedan Law ). To that extent, the decision of the trial Judge is not justified. (19) THE judgment and decree in both the suits to that extent requires to be re-examined, however, subject to decision whether the suit was maintainable for administration of the estate of the deceased. (20) PATENTLY, Khamarunnisa has filed her suit O.S. No. 833 of 1978 for administration of the estate of the deceased claiming to be her legal heir. Mr. Narayanacharyulu, the learned advocate has strongly contended that such a suit is not maintainable in law and in this regard he has fortified himself with a precedent in Chand Narain vs. Chasi Ram taking aid of Order 20 rule 13 CPC as to the nature of the suit to determine as to who is the original heir of the deceased and seeking the relief to administer the estate. It was held that where the suit is one between the rival claimants to the estate of the deceased each one claiming to be the sole heir, such a suit is not a suit for an account of any property and for its due administration under the decree of the Court and therefore, an administration suit filed by one of the heirs to obtain possession of the property wrongfully withheld by another person claiming to be the heir is not maintainable. On a careful reading of the ruling, this Court is not able to accept the contention of Mr. Narayanacharyulu, the learned advocate for various reasons. That was a suit filed for possession of the property for administration on the ground of a party being the sole heir of the deceased where there were rival claims, whereas the suit is for administration of the estate of the deceased which should be governed by sections 320, 323 and 325 of the Indian Succession Act, 1925. Such a suit is maintainable as per the settled law (Article 39 and Chapter 5 of the Mulla's mohamedan Law). More over, the High Court of Assam, Bombay and Madras have held to the contrary to the view taken by the Lahore High Court as above in Esufalli Alibhai vs. Abdealli Gulam Hussain Atorjan Bibi vs. Sikandar Ali; Abdul razack vs. Mohd. Shah. The summary of such a view has been recorded by mulla as hereunder. "any heir or creditor of the deceased may bring a suit for the administration of the estate; he is not bound to bring a suit for partition (w ). In an ordinary partition suit, the Court may, in working out its preliminary decree, instead of making an actual division of all the property, give one heir a charge over the share of another for any difference in favour of the former and any such charge imposed will bind the alienee pendente lite from that heir. "therefore, the maintainability of the suit filed by Khamarunnisa for the administration of the estate of Badar Bai in regard to movables. e. items 2 to 16 cannot be questioned. (21) FOR the reasons mentioned above, the appeals are partly allowed as follows; the judgment and decree of the learned trial Judge in the two suits are set aside only to the extent of suit items 2 to 16 of the plaint schedule regarding which there shall be a decree for administration of the estate by Khamarunnisa. Khamarunnisa shall be entitled to take possession of the same in the criminal proceedings in FIR No. 156/78 regarding which Naiyar Bai shall not interfere with the same. At the same time, the judgment and decree of the learned trial judge are confirmed in regard to the suit item No. 1 (House Property) in all respects. In the facts and circumstances of the case, the parties shall bear their respective costs throughout.
"1997 (1) ALT 152" == "1997 (1) ALD 317 REFERRED TO " == "Bafatum vs. Bilaiti Khanum" == "1930 30 Cal 683 RELIED ON " == "Md.Iqbal Begum vs. Mt. Syed Begum" == "1933 140 IC 829 REFERRED TO " == "Akbarally vs. Mohamedally" == "1932 0 BOM.L.R 655 Nasrat vs. Hamidan" == "1882 4 ILR(All) 205 Mahboob Sahab vs. Syed Ismail" == "AIR 1995 SC 1205 Md.Usman vs. Md.Anwar Baigh and others" == "S.A.No. 21 of 1988 dt 14-2-1996" == "1996 4 ALT 105 Chand Narain vs. Ghasi Ram" == "AIR 1940 Lah 179 Esufalli Alibhai vs. Abdealli Gulam Hussein" == "AIR 1921 Bom 424 Atorjan Bibi vs. Sikandar Ali" == "AIR 1960 Ass 183 Abdul Razack vs. Mohd.Shah" == "AIR 1962 Mad 346"