K. Lakshman, J.
1. Heard Mr. Salman Khurshid, learned Senior Counsel representing Sri Muhammad Veqar Hussain, learned counsel for the appellants and Sri M.S.Prasad, learned Senior Counsel representing Sri Nallamasu Krishna, learned counsel for the respondent Nos.5 and 8/Defendant Nos.5 and 8.
2. The present appeal is filed assailing the order dated 02.05.2025 in I.A.No.616 of 2025 (old I.A.No.656 of 2023) in O.S.No.501 of 2025 (old O.S.No.111 of 2023) by the Additional District and Sessions Judge, Ranga Reddy District at Chevalla.
3. The appellants herein are plaintiffs and the respondents are defendants including defendant Nos.5 and 8.
(For the sake of convenience, the parties herein are referred to as they are referred in the suit.)
4. The plaintiffs filed a suit in O.S.No.111 of 2023 against the defendants to declare the gift deed bearing document No. 4408 of 2016, dated 16.08.2016, registered Development Agreement – cum – General Power of Attorney (GPA) bearing document No.4707 of 2022, dated 20.09.2022 as null and void and not binding on the plaintiffs and grant perpetual injunction restraining the defendants and their men, from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule –A property i.e. All that part and parcel of lands admeasuring Ac.00.13 guntas in Sy.No.66; admeasuring Ac.16.27 guntas in Sy.No.76; admeasuring Ac.17.02 gutnas in Sy.No.79; admeasuring Ac.20.16 guntas in Sy.No.85; admeasuring Ac.00.16 guntas in Sy.No.87, total admeasuring Ac.54.34 guntas, situated at Mokila village, Shankarpally Mandal, Ranga Reddy District.
5. During pendency of the said suit, Defendant Nos.5 and 8 had filed an Interlocutory Application vide I.A.No.656 of 2023 (new I.A.No.616 of 2025) under Order VII Rule 11 (a) and (d) read with Section 151 of CPC, to reject the plaint contending as follows:-
i. The plaintiffs filed the aforesaid suit basing on the collusive decree obtained by playing fraud and by fabricating the documents.
ii. The plaintiffs failed to establish a clear, unambiguous, reasonable title flow along with possession and establish that the suit is not barred by law.
iii. Order VII Rule 11 of CPC casts a duty upon the Court to reject the plaint when the same is hit by infirmities, even without the intervention of the defendant.
iv. The alleged interference with the possession of plaintiffs on 16.01.2023 is created for the purpose of instituting this suit.
v. Plaintiffs did not have title over the suit schedule property and they were not in possession of the same at any point of time.
vi. The plaint lacks cause of action.
vii. The contentions of the plaintiffs that Defendant No.1, husband of plaintiff No.1 gifted the suit schedule property orally, the same was reduced into writing under Memorandum of Hiba (MOH) on 06.01.1990. She has entered into agreement of sale and the same was decreed etc., are false and baseless and they have created the same only to file the present suit and knock away the suit schedule property.
viii. The decree and judgment dated 05.10.2020 in O.S.No.25 of 2020 is a collusive decree. The same was obtained by suppressing material facts and by playing fraud on the Court.
ix. Defendant No.1 is the original owner and possessor of the suit schedule property except the land in Sy.No.76 to an extent of Ac.16.27 guntas situated in Mokila Village. The same was given to villagers. The same survey number forms part of Mokila Thanda Village.
x. Defendant No.1 had executed a Gift Settlement Deed bearing document No.4408 of 2016, dated 16.08.2016 in favour of Defendant No.2. Possession was also delivered in favour of Defendant No.2. Her name was also mutated in revenue records; e-pattadar passbooks and title deeds were also issued in her favour. Thus, Defendant No.2 is the absolute owner and possessor of a part of the suit schedule property in O.S.No.25 of 2020. Even then, they have obtained decree dated 05.10.2020 in collusion with each other.
xi. They have not made Defendant No.2 as a party to the suit O.S.No.25 of 2020. They have not made her a necessary party to the present suit. Therefore, the plaint in the present suit is liable to be rejected on the ground of non-joinder of necessary parties.
xii. Defendant Nos.5 and 8 are in possession and enjoyment of the suit schedule property. Dharani Portal also discloses the said fact.
xiii. The plaintiffs did not have title over the suit schedule property and they are not in possession of the same. Therefore, they cannot seek injunction against the defendants by creating cause of action.
xiv. The contents of Memorandum of Gift/Hiba dated 06.01.1990 would reveal that Defendant No.1 had orally gifted the suit schedule –A property to Plaintiff No.1, which was later reduced to writing.
xv. Thus, the plaintiffs filed the said suit with mala fide intention to knock away the suit schedule property, as such the plaint is to be rejected.
6. Plaintiff No.1 filed counter opposing the said application contending as follows:
i. The decree dated 05.10.2020 in O.S.No.25 of 2020 is not a collusive decree as alleged.
ii. Plaintiff specifically mentioned the cause of action in the plaint.
iii. They are in possession of the suit schedule property.
iv. There are several factual aspects which are triable issues. Defendants have to face trial and it is for the trial court to consider the same.
v. Instead of facing the trial, they sought to reject the plaint.
7. With the said contentions, Plaintiff No.1 sought to dismiss the said application.
8. Vide impugned order, learned trial Court allowed the said application holding that in the entire plaint, there is no pleading as to whether plaintiff No.1 and her husband/D.1 are living together or they got separated after the alleged Hiba. After 33 years of execution of the alleged Hiba, which is already disputed by donor/Defendant No.1, the plaintiffs filed the suit without getting her name mutated in the revenue records. Therefore, the plaint is barred by limitation. Defendant No.1 is contesting the suit and has denied execution of the alleged Hiba. If the oral Hiba, pronounced by Defendant No.1 is genuine, with his free will and consent, there is no need of reducing the same to writing as a Memorandum of Gift. Defendant No.1 contends that he never gifted the suit schedule property in favour of the Plaintiff No.1 with his free will and consent. He has also filed written statement to that effect. When there is no property in the possession of Defendant No.1/Donor, he cannot gift the same to plaintiff No.1. Since the donor/Defendant No.1 was not in possession of the property, he cannot gift the same to plaintiff No.1 vide MOH dated 06.01.1990. Any Hiba/gift of property which is not in possession of the donor is invalid in law. Therefore, the alleged Hiba executed by Defendant No.1 in favour of plaintiff No.1 is invalid.
9. The trial Court further held that in the plaint, the plaintiffs did not mention the date of acknowledgment of oral Hiba and delivery of possession. Without even seeing the land physically, or at least through Google Map, without measuring the land through any licensed surveyor, and without verifying the revenue records pertaining to the suit schedule property; plaintiff Nos.2 and 3 are alleged to have purchased the same, entered into a simple agreement of sale in respect of the suit schedule property with plaintiff No.1. Whereas, plaintiff No.1 was never shown as pattadar or the possessor of the suit schedule property at any point of time in the revenue records. The plaintiffs sought to send the said Memorandum of Gift for validation. Therefore, it is not acted upon. The contents of the said Hiba dated 06.01.1990 do not satisfy the essential requirements of a valid Hiba. The plaintiffs did not file any petition seeking appointment of an Advocate Commissioner to find out as to who is in actual possession of the property in dispute, as per the leave granted by the Supreme Court in SLP No.4543 of 2024 vide order dated 27.02.2024. The plaintiff failed to prove the three essential requisites of a valid Hiba. The Trial Court also held that the plaintiffs had failed to prove the three main ingredients of a Hiba, mainly the third ingredient, i.e. the delivery of possession of the donated property under Hiba, whereby actual physical possession has to be given to the Donee. The gift of immovable property is not complete until and unless the donor physically departs from the premises with all his goods and chattel, and the donee formally enters into possession of the donated property. Actual possession of the suit schedule property was never delivered in favour of plaintiff No.1 by Defendant No.1. There is no cause of action in favour of the plaintiff; the suit is barred by limitation and therefore, it is liable to be rejected and is rejected.
10. Challenging the said order, the plaintiffs preferred the present appeal.
11. Plaintiffs primarily contended that the impugned order is beyond the scope of Order VII Rule 11 of CPC and the grounds on which Defendant Nos.5 and 8 sought to reject the plaint are triable issues. While deciding an application filed under Order VII Rule 11 of CPC, the trial Court has to consider the contents of the plaint and documents filed by the plaintiffs along with the plaint. Whereas, in the present case, learned trial Court gave findings with regard to the validity of the gift, possession etc, which is impermissible and also contrary to the principles laid down by the Apex Court.
12. Whereas, Defendant Nos.5 and 8 contended that on consideration of the pleadings, the law laid down by the Apex Court, learned trial Court rejected the same and there is no error in it.
13. Mr. Salman Khurshid, learned Senior Counsel appearing for appellants and Sri M.S.Prasad, learned Senior Counsel appearing for the respondent Nos.5 and 8 made their submissions extensively. We have given thoughtful consideration to the arguments advanced by both the learned Senior Counsel.
14. Learned Senior Counsel for the appellants placed reliance on the principles laid down by the Apex Court in Om Prakash Srivastava vs. Union of India ((2006) 6 SCC 207), Hafiza Bibi vs. Shaik Farid ((2011) 5 SCC 654), T.Arivandandam vs. T.V.Satyapal ((1977) 1 SCJ 197), H.S.Deekshit vs. Metropoli Overseas Ltd. ((2022) SCC OnLine SC 2024)
15. Whereas, both the learned Senior Counsel appearing for the parties placed reliance on the principle laid down by the Apex Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (GAJRA) ((2020) 7 SCC 366) and Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co. (2025INSC 42).
16. As discussed supra, vide impugned order, learned trial Court allowed the application filed by Defendant Nos.5 and 6 under Order VII Rule 11 of CPC to reject the plaint filed by the plaintiffs.
17. In view of the aforesaid rival contentions and also the facts of the case, it is apposite to refer to the purport of Order VII Rule 11 of CPC. It deals with ‘rejection of plaint’ and the same is extracted below:
“11. Rejection of plaint.— The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.”
Thus, the plaint can be rejected on the aforesaid grounds.
18. It is well settled that Order VII Rule 11 of CPC lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The law ostensibly does not contemplate at any stage when the objections can be raised. The trial court can exercise the power at any stage of the suit, that is, before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII rule 11 of CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage. Instead, the word ‘shall’ is used, clearly implying thereby that Order VII Rule 11 of CPC, casts a duty on the Court to perform its obligations in rejecting the plaint when the same is hit by any of the infirmities contemplated under Order VII Rule 11 CPC, even without intervention of the defendant.
19. It is also a settled law that only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. Order VII Rule 11 does not justify rejection of any particular portion of the plaint. Thus, the real object of Order VII Rule 11 of CPC is to prevent irresponsible law suits out of the Courts. In case, the Court prima facie, is of the view that the suit is an abuse of process of the court, in the sense that it is a bogus and irresponsible litigation, the jurisdiction under Order VII Rule 11 can be exercised.
20. It is also apt to note that the basic question to be decided while dealing with an application filed under Order VII Rule 11(a) CPC is whether the plaint discloses a real cause of action or merely sets out an illusory one with a view to circumvent the provision under Order VII Rule 11 of CPC. The trial court must bear in mind that, if upon a meaningful and not merely formal reading of the plaint, it is found to be manifestly vexatious and meritless, inasmuch as it fails to disclose a clear right to sue, it should exercise the power under Order VII Rule 11(a), subject to satisfaction of statutory requirements. If clever drafting has created the illusion of a cause of action, it has to be nipped in the bud at the first hearing by examining the party searchingly under Order X of the Code. It is true that by ingenious drafting a cause of action in the nature of red herrings cannot be brought into the judicial arena.
21. It is also well settled that merely any particular plea cannot be taken into consideration, rather the plaint has to be read as a whole. There cannot be any compartmentalization, dissection, segregation and inversions of the language in various paragraphs of the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a plaint has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time, it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. What is required in law is not the piecemeal reading of the plaint but in its entirety.
22. It is also apt to note that the Hon’ble Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (GAJRA) ((2020) 7 SCC 366) had an occasion to deal with the object of Order VII Rule 11 (a) and (d) of the CPC, the rejection of plaint, and also the nature of enquiry to be made by the Court while deciding an application filed under Order VII Rule 11 (a) of the CPC. In the said case, the defendant filed an application under Order VII Rule 11 (a) and (d) to reject the plaint on the ground that the suit was barred by limitation and no cause of action has been disclosed in the plaint. A Sale deed was executed on 02.07.2009 and the suit was filed on 15.12.2014. The cause of action as per the averments of the plaint therein had arisen when defendant No.1 therein had issued ‘false’ or ‘bogus’ cheques to the plaintiffs in 2009. The suit for cancellation of the sale deed dated 02.07.2009 could have been filed by 2012, as per Articles 58 and 59 of the Limitation Act, 1963. The suit was filed on 15.12.2014, which was barred by limitation. The relevant paragraphs are extracted below:-
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law.
23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137]
23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139)
“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”
23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC.
23.14. The power under Order 7 Rule 11 CPC may be exercised by the court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial, as held by this Court in the judgment of Saleem Bhai v. State of Maharashtra [Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557] . The plea that once issues are framed, the matter must necessarily go to trial was repelled by this Court in Azhar Hussain case [Azhar Hussain v. Rajiv Gandhi, 1986 Supp SCC 315. Followed in Manvendrasinhji Ranjitsinhji Jadeja v. Vijaykunverba, 1998 SCC OnLine Guj 281 : (1998) 2 GLH 823] .
23.15. The provision of Order 7 Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the court has no option, but to reject the plaint.
23. Considering the said facts, the trial Court rejected the plaint filed by the plaintiff by allowing the application filed under Order VII Rule 11 (d). The High Court confirmed the order passed by the trial Court. On consideration of the said facts and also purport of Order VII Rule 11 of CPC, the Apex court held that in view of Order VII Rule 14 of CPC, documents filed along with plaint are to be taken into consideration for deciding the application under Order VII Rule 11 (a) of CPC. When a document referred to in the plaint, forms the basis of the plaint, it should be treated as part of the plaint. In exercise of power under Order VII Rule 11 of CPC, Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.
24. The Apex Court further held that the test for exercising the power under Order VII Rule 11 of CPC is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon whether the same would result in a decree being passed.
25. In T. Arivandandam v. T.V. Satyapal ((1977) 4 SCC 467), the Supreme Court held that if on a meaningful reading of the plaint, it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11 of CPC, taking care so as to see that ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, it should be nipped in the bud.
26. In Indian Evangelical Lutheran Church Trust Association v. Sri Bala & Co. (2025 (6) ALD 108 SC), the Apex Court held that the Court while dealing with an application filed under Order VII Rule 11 of CPC, has to read the whole plaint and any particular plea in isolation cannot be considered. The averments in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII of the CPC is applicable. The relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint which are germane. The pleas taken by the defendant either in the affidavit filed in support of an application filed under Order VII Rule 11 of CPC or in the written statement would be wholly irrelevant at that stage. Under Order VII Rule 11 of CPC, the Court has to take a decision looking at the pleadings of the plaintiff only and not on the rebuttal made by the defendant or any other material produced by the defendant.
27. In the light of the principle laid down by the Apex Court in the aforesaid judgments, coming to the facts of the case on hand, as discussed supra, the plaintiff filed the aforesaid suit against Defendant Nos.5 and 8 to declare gift deed bearing No.4408 of 2016 dated 16.08.2016, Development Agreement – cum – GPA dated 20.09.2022 as null and void, and also for perpetual injunction in respect of the suit schedule-A property. The plaintiffs specifically contended that originally the suit lands belong to Defendant No.1, he orally gifted the suit schedule-A Property in favour of plaintiff No.1, his wife. She has accepted the same, the possession was delivered in her favour in the presence of witnesses. To avoid future complications, acknowledging the said oral gift deed, he also executed Memorandum of Gift dated 06.01.1990 in favour of plaintiff No.1 since the date of Hiba, plaintiff No.1 in peaceful possession and enjoyment of the suit schedule-A property.
28. Plaintiff No.1 entered into an agreement of sale dated 20.09.2014 with plaintiff Nos.2 and 3 for a total sale consideration of Rs.1,30,00,000/-. He has received advance sale consideration of Rs.35 Lakhs on the date of agreement of sale. Plaintiff Nos.2 and 3 had paid an amount of Rs.25 Lakhs on 21.07.2015, Rs.20 Lakhs, Rs.10 Lakhs on 25.01.2018 and Rs.10 Lakhs on 26.10.2019. Having received the said amount, plaintiff No.1 did not execute registered sale deed in favour of plaintiff Nos.2 and 3. Therefore, they issued legal notice dated 10.03.2020 to the plaintiff No.1 to receive the said balance sale consideration and register the sale deed in favour of plaintiff No.2 and 3. Thereafter, Plaintiff Nos.1 and 2 filed the said suit in O.S.No.25 of 2020 for specific performance of contract against plaintiff No.1. During pendency of the said suit, they have compromised the matter and basing on the said compromise, learned trial Court decreed the said suit on 05.10.2020. Children of Defendant No.1 i.e. Mohammad Karam Ali Khan and Mohd. Abbas Khan, were also witnesses to the agreement of sale dated 20.09.2014 executed by plaintiff No.1. On 16.01.2023, Defendant Nos.2 to 7 along with some anti-social elements criminally trespassed into the suit schedule property and created nuisance, then Defendant No.2 claimed that she is the owner of part of the suit schedule –A property. Thereafter, on enquiry, they came to know about the execution of the gift settlement deed bearing document No.4408 of 2016 dated 16.08.2016 by Defendant No.2.They have also lodged a complaint with police and also an association. Thus, the plaintiffs are lawful owners and possessors of the suit schedule property. Even then, the defendants are trying to dispossess them without following due procedure laid down under law.
29. In the plaint, plaintiffs also specifically pleaded with regard to the cause of action dated 16.01.2023, the date on which defendant Nos.2 to 7 tried to enter into suit schedule property by criminally trespassing into the suit schedule property and created nuisance, execution of a gift settlement deed and also development agreement.
30. Defendant Nos.1 and 3 filed written statement denying the claim of the plaintiffs.
31. It is also apt to note that denying the claim of the plaintiffs, Defendant Nos.5 and 8 also filed their written statements and counter claim seeking to declare the Defendant No.8 represented by Defendant No.5, as owner and possessor of the suit schedule – B,C,E and F properties, also for consequential injunction in favour of Defendant No.8 and also to declare oral Hiba dated 16.01.1990 as null and void and not binding on Defendant No.8 represented by Defendant Nos.5 and 8 who filed the aforesaid application vide I.A.No.616 of 2025 (old I.A.No.656 of 2023) under Order VII Rule 11 of CPC to reject the plaint contending that the plaintiff filed the suit by playing fraud on the Court, it is barred by limitation, there is no cause of action, they do not have title over the suit schedule property and they were never in possession of the same. They have obtained a decree dated 05.10.2020 in O.S.No.25 of 2020 by playing fraud on the Court, by way of suppression of material facts and non-joinder of proper parties.
32. Sri M.S.Prasad, learned Senior counsel appearing for Defendant Nos.5 and 8 strenuously contended that the plaintiff No.1 was not in possession of the suit schedule property. Therefore, the question of she delivering the possession of the same in favour of the plaintiff Nos.2 and 3 does not arise. The contents of gift settlement deed lack three essential ingredients. The decree in O.S.No.25 of 2020 is a collusive decree.
33. He has also placed reliance on the principle laid down by the Apex Court in Hafiza Bibi (supra) wherein it was held that to prove that a gift/Hiba under Muslim Law, it requires three essential ingredients i.e. 1) declaration of a gift by donor, 2) acceptance of gift by done, either expressly or impliedly, and 3) Delivery of possession and taking possession thereon by the donee on acceptance either actually and constructively. It is also settled law that no written document is required under Muslim Law for validity of the oral gift which is acceptable. Section 129 of the Transfer of Property Act, 1882 excludes the rule of Mahomedan law from the purview of Section 123 which mandates that the gift of immovable property must be effected by a registered instrument. But it cannot be taken as a sine qua non in all cases that whenever there is a writing about a Mohammedan gift of immovable property, there must be registration thereof. Whether the writing requires registration or not depends on the facts and circumstances of each case.
34. In the present case, it is the specific contention of the plaintiffs that Defendant No.1, husband of plaintiff No.1 orally gifted the suit schedule property in her favour. She has accepted the same, possession was delivered to her in the presence of witnesses. To avoid future complications, acknowledging the said oral gift, Defendant No.1 also executed Memorandum of Gift/Hiba dated 06.01.1990 in favour of the plaintiff No.1. Since the date of Hiba, she was in peaceful possession and enjoyment of the suit schedule – A property.
35. Perusal of the said Memorandum of Gift, dated 06.01.1990 would reveal that it is a notarized gift deed executed by Defendant No.1. There are two witnesses to the said gift deed i.e. Mr. Mahaboob Khan and Qayam Khan.
36. In the said gift deed, it is mentioned that the donor’s father Karam Ali Khan orally gifted away the said property in Sy.No.76 extent of Ac.16.27 guntas situated in Mokila Village, Shankarpaly Mandal, Ranga Reddy District on 12.12.1969. The Donee accepted the said gift in the presence of well wishers and relatives. The offer of the gift was accepted by the Donee and the said property and as such vacant possession of the said property was also handed over to the Donee by the Donor.
37. The schedule of property in the said gift deed and the suit schedule-A property in the present suit is one and the same. Thus, there is specific pleading in the plaint with regard to execution of gift by the Defendant No.1 in favour of plaintiff No.1, acceptance of the same by the plaintiff No.1 and delivery of possession of the suit schedule –A property in her favour. There is also specific pleading with regard to the cause of action and limitation.
38. As discussed supra, the Court has to consider the contents of plaint, documents filed along with the plaint while deciding an application filed under Order VII Rule 11 of CPC seeking rejection of plaint. The trial Court cannot conduct roving enquiry and gave findings with regard to the several aspects pleaded by the parties. The Court has to read the contents of the plaint meaningfully.
39. As discussed supra, in the present case, the plaintiffs specifically pleaded with regard to cause of action, limitation, execution of gift deed, acceptance of the same and delivery of possession of schedule –A property in favour of plaintiff No.1. It is also the specific contention of the plaintiffs that the plaintiff No.1 executed agreement of sale in favour of plaintiffs Nos.2 and 3 in respect of suit schedule-A property, they have paid part sale consideration. Plaintiff No.1 failed to receive balance sale consideration and execute registered sale deed in their favour. Therefore, after issuing legal notice, they have filed the aforesaid suit in O.S.No.25 of 2020 against plaintiff No.1 seeking specific performance of agreement of sale. During pendency of the said suit, they have arrived at an understanding, settled the dispute and entered into compromise; considering the same, learned trial Court decreed the same vide judgment dated 05.10.2020.
40. Sri M.S.Prasad, learned Senior counsel appearing for Defendant Nos.5 and 8 would contend that it is a collusive decree. They have obtained the said decree by playing fraud. However, the said aspects cannot be considered by the trial Court while deciding an application filed under Order VII Rule 11 of CPC.
41. It is apt to note that respondents Nos.1,2,4,5 and 8 herein/Defendant Nos.1,2,4,5 and 8 filed A.S.No.287 of 2023 against the petitioners herein and others to declare the said judgment as null and void and it is not binding on them.
42. As discussed supra, at the cost of repetition, the Court has to read the pleadings of plaint meaningfully and also consider the documents filed by the plaintiff along with the plaint. The Court cannot go beyond the same.
43. Whereas, in the present case, learned trial Court gave a specific finding that the contents of Hiba/Gift lack three essential requisites. There is no delivery of possession of donated property in favour of plaintiff No.1 by Defendant No.1. Therefore, the gift of immovable property is not complete. Thus, the trial Court transgressed its jurisdiction and gave specific finding with regard to the possession and also validity of gift and that the said gift was not acted upon. Learned trial Court also gave a finding that plaintiff No.1 cannot acquire any rights over the suit schedule property under the unregistered gift/Hiba, therefore, the plaintiffs have no locus standi to file the suit basing on invalid Hiba. The said findings are beyond the scope of Order VII Rule 11 of CPC and the principle laid down in the aforesaid judgments. The said aspects are triable and the parties have to face trial and take the said pleas before the trial Court in a suit and it is for the trial Court to consider the same.
44. It is also relevant to note that Defendant Nos.5 and 8 filed the aforesaid application under Order VII Rule 11 of CPC to reject the plaint and also filed written statement along with the counter claim to declare the Defendant No.8 represented by Defendant No.5, as owner and possessor of the suit schedule–B,C,E and F properties; for consequential injunction in favour of Defendant No.8; and also to declare oral Hiba dated 16.01.1990 as null and void and not binding on the Defendant No.8 represented by Defendant No.5. The contentions of the parties are triable issues. Without considering the said aspects, vide impugned order, learned trial Court allowed the application filed by Defendant Nos.5 and 8 rejecting the plaint erroneously. Therefore, the impugned order is liable to be set aside.
45. In the light of the aforesaid discussion, the appeal is allowed. The order dated 02.05.2025 in I.A.No.616 of 2025 (old I.A.No.656 of 2023) in O.S.No.501 of 2025 (old O.S.No.111 of 2023) passed by the Additional District and Sessions Judge, Ranga Reddy District at Chevalla, is set aside. Learned trial Court shall proceed with the suit. However, liberty is granted to the parties to take all the pleas and grounds which they have taken before this Court in the present appeal before the trial Court and it is for the trial Court to consider the same without being influenced by any of the above findings. However, there is no order as to costs.
Consequently, miscellaneous petitions, if any pending, in this appeal, shall stand closed.
