- (1.) THIS appeal is against the judgment and decree passed by learned District Judge, Garhwa in Partition Appeal No. 20/06 whereby learned lower Appellate Court has affirmed and upheld the judgment and decree of learned Trial Court.
(2.) THE appellant was the defendant No. 3 in Partition Suit No. 20/03 filed by the plaintiff Md. Sabir. THE plaintiff had filed the said partition suit praying relief for partition of his half share in the suit land. According to the plaintiff, the suit premises were acquired by his father Md. Jan Mian. The plaintiff and defendant No. 1 were properly looking after their father. Being pleased by their services, Md. Jan Mian had made an oral gift in favour of the plaintiff and the defendant No. 1. A memorandum of the said oral gift was prepared on 20-3-91. As per the terms of the said oral gift, the plaintiff and the defendant No.1 were given the suit property jointly. The plaintiff as such claimed his half share in the suit property. The defendant No. 3 contested the suit on the ground, inter alia, that his father Md. Jan Mian had three sons and six daughters and all the sons and daughters are entitled to get their share in the suit property. The said defendant also disputed the genuineness of the oral gift.
(3.) BOTH the parties led their evidences in support of their respective claims. Learned Trial Court after a detailed discussion and consideration of the facts, evidences and materials on record as well as the provisions of law came to the finding that the parties are Muslims and they are governed by the Muslim Law under which a Muslim has right to make an oral gift. Md. Jan Mian had, thus, legal right to transfer his property by oral gift in favour of the plaintiff and the defendant No. 1. Learned Trial Court further held that the donees also came in possession of the land and property by virtue of the said gift. It has been further held that the defendant No. 3 has failed to prove his right, title and share in the suit property. It has been specifically held that in view of the said gift in favour of the plaintiff and the defendant No. 1, other sons and daughters had no share in the suit property. Learned Trial Court, thus, decreed the suit and a preliminary decree was passed in favour of the plaintiff.;