MARDANSAB DAVALSAB HULGUND Vs. KHATUNBI

JUDGEMENT

(1.) This is a second appeal against the concurrent findings of the Courts-below.

(2.) Plaintiff presented the plaint seeking declaration of title and possession of suit schedule premises having earlier failed to obtain in an injunction against the defe idant in proceedings in Civil Court. It was stated by the plaintiff that the suit schedule property was gifted by one Nahima to one Rahim Bi and that gift deed created only a life interest and therefore, the plaintiff is entitled to succeed in terms of the gift deed as a reversioner in interest. The defendant resisted the suit inter alia on the ground that Rahim Bi had never executed the gift deed. It was her daughters, who executed the gift deed after her death. She the defendant was in possession after the death of Rahim Bi. She extended that if any title was acquired by the plaintiff, it was never enforced in time and therefore he had perfected her title by adverse possession. She also pleaded that the suit was hit by rule of resjudicata as the plaintiff had failed to prove possession in the earlier proceedings as she was in possession after the death of Rahim Bi and Rahim Bi admittedly having been in possession by virtue of the so called gift deed, the plaintiff was never in possession since the death of Nahima who must have died prior to 1937, the date of the gift deed which admittedly was executed by the daughters and not by Nahima.

(3.) It is in that circumstance the Court had come to the conclusion that the plaintiffs grandmother Hanima did not execute the gift deed. Strangely enough in both the Courts what had been pleaded as a gift deed was contended not to be gin deed, but a Will. When Nahima did not sign that document, then it could not be a Will, Law requires that gift deed or Will must be proved in a particular manner. If that burden is not discharged, then the plaintiff must necessarily rail.