Oral gift of non-agricultural land by a Muslim is valid notwithstanding subsequent execution and registration of a deed of gift.

Effective delivery of pos­session of gifted immovable property in occupation of tenant will be occurred by delivery of title deed.

The provision of s.23 of the Non-agricul­tural Tenancy Act prohibiting transfer of non-agricultural tenancy without a registered docu­ment shall not apply to gifts of immovable pro­perty by a Muslim.

A valid gift of immovable property with building and structures inter vivos can be made under the Muslim Law by oral gift. According to Mslim Law an oral gift is com­plete as soon as the declaration of gifts and the delivery of possession is given by the donor to the donee. When these essential conditions are complied with the gift becomes perfectly valid and if a written deed is executed afterwards and registered, the oral gift would be valid notwith­standing the latter instrument of gift……………… (21) 

Partition suit

Formal defect in prelimi­nary decree does not nullify the work of Pleader Commissoner-Defect in preliminary decree can be corrected ex debito justitlae.

It will be plainly an act of injustice if for errors of the Court the entire work of the pleader com­missioner is nullified, more so when in allocating sahams he has not gone beyond the order portion of the judgment.

The pleader commissioner's report cannot be set aside on the ground that he lacked any jurisdictional basis. His jurisdiction under the circumstances is unaffected by the for­mal defects in the Preliminary decree which can be corrected ex debito justitiae….. (14 & 16)

Drawing up of final decree without notice to the parties whether Permissible

There is no specific provision of serving notice upon the parties or their respective lawyers after the Pleader Commissioner submits his report. But if considerable time has elapsed between the last occasion when the Court had dealt with the proceedings and the submission of the report, it is only fit and proper, and, indeed there is a practice, that the lawyers of both sides are to be informed of the recommencement of the Court's proceeding. The decree passed without such intimation will not be a nullity, but in the fact and circumstances of each case the aggrieved party can complain about lack of knowledge of the last leg of the proceedings and the Court would be required to examine if the complaint is a reasonable one………(23) 

It is an admitted legal position that there is no limitation for filing a suit for partition and unless there is a total ouster of the right of a co-sharer from the ejmali property he shall be deemed to be in ejmali possession of the properties sought to be partitioned, if not partitioned earlier by metes and bounds. It need not be discussed by wasting so many pages that the cause of ac­tion for filing a suit for partition arises when the other co-sharer or co-sharers refuse the plaintiff to give his due share from the ejmali property. And the cause of action for filing a suit for partition being continuing and recur­ring it shall continue unless the other co-sharers give the plaintiff his due share parti­tioning the suit land by metes and bounds.

Where a partition suit is dis­missed for default, it does not bar a subsequent suit; the reason is that, even after the dismissal of the former suit, the jointness continues and there is a continuing cause of ac­tion...………(6)

Public policy demand that a co-sharer who is enjoying more land than his share should part away with the excess land and give the due share to his other co-sharer, here the plaintiff not to speak of any demand made by him…...................(9) 

Accuser’s right to file appeal under section 410 of the Cr PC was taken away-

Under section 410 of the Cr PC the accused could file the appeal with 60 days from the date of conviction excluding the time requisite for obtaining certified copy of the judgment. But under the Ain an accused after conviction has to file the appeal under section 14 of the Ain within 30 days excluding the time requisite for obtaining certified copy of the judgment. In addition, if an appeal is filed under section 410 of the Cr PC beyond the period of limitation, the accused can avail of the benefit of section 5 of the Limitation Act. But in case of an appeal filed under section 14 of the Ain, no such benefit can be availed of by the accused simply because the Ain is not only a procedural law but also a special law. Consequently, the right of appeal has been curtailed to a great extent. Therefore, the embargo imposed on filing of the appeal by de­positing 50% of the face value of the dishonoured cheque according to the newly inserted section 138A of the Negotiable Instrument Act cannot be said to have taken away the unrestricted right of appeal given to the peti­tioner…..(16)

Prior to amendment of sub-section (4) of section 339C of the Cr PC, a vested right was created in The contention of the accused that prior to amendment of sub-section (4) of section 339C of the Cr PC, a vested right was created in favour of the accused was not entertained.

The insertion of section 138A and amendment of clause (C) of section 141 of the Negotiable Instrument Act is ultra vires of the Constitution could not be substantiated……(23) 

The statute Artha Rin Adalat Ain, 2003 has given scope to the Adalat to hold auction more than once under section 33(1) (2) and (3) or under 33(4). The said view is fortified if we examine section 34(9) of the Ain which reads as follows:

“৩৪(৯) এই ধারার অধীনে কোন দায়িককে দেওয়ানী কারাগারেও আটক করার আদেশ প্রদান করিবে না, যদি না তত্পূর্বে অন্ততঃ একটি নিলাম বিক্রয় কার্যক্রম অনুষ্ঠিত হইয়া থাকে এবং উহার দ্বারা ডিক্রীদারের প্রাপ্য পরিপূর্ণভাবে আদায় হইয়া থাকে৷” meaning that at least one auction sale process is completed, (under linings are made for giving emphasis).

So the aforesaid sub­section categorically says that minimum one sale process is to be taken place or completed. Adalat has the power to hold auction sale more than once. There is no scope to hold that more than one auction sale under the aforesaid provisions is barred.

The statute provides that the auction sale process is to be completed first under section 33(1),(2),(3) and in case of failure to sell the property under the said provisions right under section 33(7) can be exer­cised by the decree holder not prior to that. Again if the auction sale is complete then sec­tion 33(7) cannot be invoked. The right given under section 33(7) is a right given in favour of the decree holder so that when the property cannot be sold in auction, and the decretal dues cannot be realized, the interest of the decree holder is not frustrated. Rather the de­cree holder can enjoy the benefit of the decree by enjoying the ownership of the property in any manner as its lawful owner…….. (19-21)