ABDUL GAFOOR Vs. ABDUL SAMADH

JUDGEMENT

(1.) THE plaintiffs are the appellants before this Court. Their suit for partition and separate possession was dismissed in O. S. 277 of 1969, on the file of the Additional Munsiff, Civil Station, Bangalore, on 21-3-1973. On appeal in R. A. No. 17 of 1980 the learned X Additional City civil Judge, Mayo Hall, Bangalore, has confirmed the dismissal by judgment dated 29-8-1985. Hence the second appeal.

(2.) THE second appeal was admitted on the following questions of law. "whether the gift under Ex. P4 dated 25-2-1976, purported to have been made by Haji Mohammed Ibrahim and the parents of his deceased wife Balkies Bivi, in favour of defendants 1 to 5, under the case, satisfied the following two requisite conditions: (1) Acceptance of the gift; and (2) Delivery of possession of the property gifted",

(3.) BRIEFLY stated the facts are: one Mohammed Ibrahim had three wives by name Hameeda Bivi, Balkies Bivi and Omasalama Bivi. Plaintiffs 1 and 2 and defendants 8 and 9 are sons of Mohammed Ibrahim by his first wife Hameeda Bivi, defendants 1 and 5 are the children of mohammed Ibrahim by his second wife Balkies Bivi. Defendant 6 is the third wife Omasalama Bivi and defendant 7 is her daughter by the said mohammed Ibrahim. The suit properties belonged to Balkies Bivi and balkies Bivi died on 15-7-1953 leaving behind her husband and three sons and four daughters. On 25-4-1956 Mohammed Ibrahim and his second wife Balkies Bivi executed a registered gift deed in favour of defendants 1 to 5 in respect of the suit property. It is this gift deed that is being challenged by the plaintiffs, mainly on the ground that on the date of the gift defendant 1 was a minor and therefore she could not have accepted the gift on behalf of her younger brothers and sisters, defendants 2 to 5. It is also stated that actual possession of the properties was not delivered to defendant 1. Then coming to the share of the plaintiffs it is alleged that after the death of Balkies Bivi, her two children, one boy by name Mohammadu and another daughter Zameela Bi had died on 30-11-1953 and 9-1-1956 respectively. Therefore on the death of Balkies Bivi, her heirs were entitled to shares as Husband l/4th share; father l/6th share; mother 1/6th share and children 5/12th share. Finally three sons and four daughters, husband and parents survived Balkies Bivi and their shares are Husband 42/168, father 28/168; Mother 28/168; Sons (14/168 x 3) 42/168; Daughters (7/168 x 4) 28/168. Further as already stated Mohammed Ibrahim and the parents of Balkies Bivi made a gift to their shares of the suit properties totalling to 98/168 in favour of the defendants 1 to 5. It is the case of the plaintiffs that following the death of his son Mohammuda and daughter Zameela Bi, Mohammed Ibrahim had succeeded to their shares as a residuary and he had retained 21/168th share out of the suit properties and the same had not been included in the gift deed and now plaintiffs claim 84/1024th share out of it after allowing l/8th share to defendant 6, who is the third wife of Mohammed Ibrahim. The Trial court dismissed the suit holding that the gift deed is valid and gift has been properly accepted. The Trial Court in para 45 held as follows.