LexMAQBOOL ALAM KHAN versus MST. KHODAIJA & ORS.
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MAQBOOL ALAM KHAN
v.
MST. KHODAIJA & ORS.
February 4. 1966
(K. SUBBA RAO, M. HIDAYATULLAH AND
R.S. BACHAWAT, JJj.
Lis penden~Respondent's nan1e expunged from title suit by compro-
1nise decree in another suit-Whether respondent constructively bound by
'final decree in title suit. Mohamedan law-Essential requirenients of valid
gift.
The Maharaja of Dumraon filed a rent suit against some of the co-
sharers in a tenure held under him of certain lands and at the 9ale in exe-
cution the tenure was purchased by one L. N,
the widow of one of
the original co-sharers instituted a title suit.
(No. 127 of 1939)
for .a
declaration that he.r share in the tenure was not affected by the execution
sale.
During the pendency of this suit the Maharaja instituted a second
rent suit against L and at the sale in execution of the decree the respon-
dent purchased the tenure and obtained possession. The -respondent was
also impleaded as a party in N's suit and a preliminary decree was passed.
Thereafter N died and the appellant was substituted as the plaintiff in
place of N on the ground that before her death N had made an oral
gift of her share to him. A final decree was then passed and the appel-
lant obtained possession of the land dispossessing the respondent. Tho
respondent then instituted title suit No. 126 of 1944 against the appellant
3.Jld others for a declaration that the decree passed in suit No. 127 of
1939 was not binding upon her. The case was disposed of by a compromise
decree whereby the respondent's name was expunged from the category of
eefendants in suit No. 127 though the decree was to stand in othe·r respects.
The respondent then applied for restitution of the land under s. 144· ot
the Code of Civil Procedure and obtained possession.
The appellant thereafter filed the present suit against the respondent
and others for a declaration of his title. to the land and contended, inter
alia, (i) that by the doctrine of Us pendens the respondent was construc-
tively bound by the final decree in suit No. 127 of 1939 in the presence of
her predecessor-in-title L; and
(ii) the decree conclusively dedared his
title to the land on the basis of the oral gift made to him by N.
The trial court decreed the appellant's suit but on appeal to the High
Court the decree was set aside.
On appeal to this Court,
HELD : The appellant had no title to the suit property and the High
Court had rightly dismissed the suit.
The purpose of the compromise decree in suit No. 126 of 1944 was
that the respondent's name should be expunged from the array of parti"'
in suit No. 1Z7 of 1939 so that she should not be bound by tho decree in
that suit either actually or constructively.
An application for restitution under s. 144 C.P.C. is an application for
execution of a decree and therefore the principle of res-judicata applies to
such proceedings.
Accordingly, in view of the restitution obtained by the
respondent, she Wa5 not bound by the decree in suit No. 127 of 1939. [482
G-H)
•80
SUPJlEMB C.OUR T JlJIPOll TS
(1966] 3 S.C.R.
MahJ/ibhai v. Manlbhai (1965) 2 S.C.R. 436 applied.
The High Court bad rigblly hcJ.I that the appellant failed to prove the
alleged oral ait't and furthermore, the gift was also in\1l!id.
A
The three requirement. of a valid gift
under Mohamedan Law are
declaration, acceptance and delivery of possession.
A gift of property in
the possession of a Jessee or mortgagee or a trespasser is not established
by mere declaration of the donor and acceptance by the donec. To validate
B
the gift there must also be delivery of possession, or failing such delivery.
some overt act hy the donor to put it within the power of the donec to
obtain possession.
On
the facts N had done nothing after the alleged
declaration to place it within the power of the appellant to obtnin posses-
sion. [483 G; 484 G; 485 BJ
Case law referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 629 of
1963.
Appeal from the judgment and decree dated April 3, 1961 of
the Patna High Court in Appeal from Original Decree No. 327 of
1955.
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Sarjoo Prasad, R. S. Sinha, and R. C. Prasad, for the appellant.
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S. C. Agarwal, R. K. GarK, D. P. Singh and M. K. Ramamurthi
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for respondent No. I.
K. R. Sinha, for respondents Nos. 16, 24 and 25.
The Judgment of the Court was delivered by
Bachawat, J. Shaik Ahmad Ali was the holder of a tenure
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