JUDGMENT
S. Shamsul Hasan, J.
1. This is an appeal by defendant No. 2. The claim of the parties is as follows:
2. The plaintiff-respondent No. 1 filed a partition title suit No. 31 of 1974 before the Munsif, Arrah, for a decree claiming 12 Annas 4 pie out of the House left behind by the mother of plaintiff and the defendants. The plaintiff’s further case was that the suit House belonged to Bibi Haliman, mother of the plaintiff and defendants No. 1 to 3. and she purchased it by a sale deed dated 3. 12. 1942. During her life time Haliman sold 8 Annas share in the suit property to the plaintiff-respondent No. 1 by a sale deed dated 9.11.1971. The plaintiff-respondent No. 1 also, subsequently, purchased share of defendant No. 1 equivalent to 3 Annas 2 pie 8 Krant by a sale deed dated 21.7.1976, The plaintiff is also entitled to her own share equivalent to I Anna 7 pie 4 Krant. In all she is entitled to 12 Annas 9 pie 4 Krant. The defendant No. 2-appellant filed written statement making averments, inter alia, that the sale deed dated 9.11.1971 is a sham transaction and no consideration passed to Bibi Haliman. The plaintiff has never been in possession of the Scheduled House nor she has purchased the alleged 8 Annas share of Haliman. Defendant No. 1 and 3 are in collusion with the plaintiff. Bibi Haliman made an oral gift of 8 Annas share in suit House on 7.12.1971 in favour of defendant No. 2 in presence of witnesses which she accepted and was put in possession thereof and was also handed over the original sale deed dated 3.12.1942, Exhibit-D. Municipal receipts, Exhibit-B series and notices. Exhibit-C series, by the donor. Bibi Haliman also executed a stamped Ekrarnama dated 7.2.1972 admitting the factum of gift. The defendant-appellant claimed 8 Annas by gift 1 Anna 7 paise 8 Kraut. The defendant Nos. 1 and 3 did not file any written statement in the suit and on the contrary defendant Nos. 1 and 3 filed petition stating that their share may be allotted to the plaintiff. The Munsif decreed the suit by judgment dated 14.2.1977 holding that the sale deed dated 9.11.1971 was genuine and valid and the oral gift made in favour of defendant-appellant is also genuine and valid which is supported by not only the witnesses of the defendant No. 2 but also the rest of the witnesses of the parties and including defendant No. 1, Nasar Ahmad, as D.W.I except the plaintiff who is the witness denying oral gift. The trial court held that the plaintiff was entitled to 8 Annas share whereas the defendant No. 2-appellant was entitled to 8 Anna share in the suit property. The plaintiff preferred Title Appeal No. 50 of 1977 against the judgment and decree of the trial court which was allowed by the 6th Additional District Judge, Bhojpur, on 22.12.1980 without considering the merits of the case and material and evidence on record.
3. The points of law arising in this case are as follows:
(1) whether the ruling relied upon by the appellate court is not applicable to the present case?
(2) whether the appellate court has not discussed the oral and documentary evidence adduced by defeldant No. 2?
The learned appellate court has completely mis-directed itself by relying on a decision which relate to agricultural land which cannot be transferred by an oral gift in view of the relevant provisions of the Bihar Tenancy Act, which is special law of this State that over-rides the Transfer of Property Act in which Section 129 clearly saves the provisions of Mohammaden Law with regard to oral gifts. It is clear that except for agricultural lands oral transfer by gift does not require registration. I do not intend to say that those relates to Heba-bil-Ewaz which must be registered because it has been held to be a sale. Even Section 17 of the Registration Act relates to gifts by instrument which must be registered and does not say that all gifts are within the purview of Section 17 of the Registration Act. The lower appellate court, therefore, was wrong in rejecting the story of oral Heba merely due to lack of registration. The lower appellate court will now, in the light of this legal situation, examine the evidence of the parties de-novo and decide the issues and the appeal keeping in mind the requirements of law in regard to oral gifts.
4. The judgment and decree of the appellate court is set side and the matter is remanded for re-hearing to the lower appellate court who should dispose of the appeal within two months from the receipt of the record which should be sent down immediately. As both the parties have appeared they are directed to appear before the Court and obtain dates. Court will abide the ultiment result.