PATHAN TALIBKHAN ABDUL Vs. PATHAN HUSENKHAN ABDUL

JUDGEMENT

(1.) This appeal under Sec. 100 C.P.C., arises of the judgment and order dated 8th September, 1980, passed by the learned District Judge, Junagadh, in Regular Civil Appeal No. 66 of 1977 arising of the judgment and order dated 31st March, 1977, passed by the learned Joint-Civil Judge (S.D.) Junagadh, in Regular Civil Suit No. 621 of 1973. The appellant before this Court is the plaintiff.

(2.) The plaintiff is the nephew of one Ibrahimkhan Husenkhan (son of the brother) and the defendants are the brother-in-law and the nephew of the said Ibrahimkhan Husenkhan (brother of the wife of Ibrahimkhan and son of the said brother). The said Ibrahimkhan owned a property bearing Sanad No. 261 of 1973, situated in Bukar Maholla, in the town of Junagadh. The said property originally belonged to the ancestors of Ibrahimkhan and his brother Abdul Rahimkhan-the father of the plaintiff. The said Ibrahimkhan had instituted Regular Civil Suit No. 266 of 1964 against his brother Abdul Rahimkhan for partition of the ancestral property and the possession thereof. The said suit was decreed in favour of the said Ibrahimkhan and in execution of the decree, the suit property came to the share of the said Ibrahimkhan and he was in possession of the said property. The wife of Ibrahimkhan died in the year 1968 and the said Ibrahimkhan also died on 29th October, 1973, leaving no heirs behind him. However, the defendants were at the relevant time, residing with the said Ibrahimkhan and continued to be in possession of the suit property. The plaintiff, therefore, instituted Regular Civil Suit No. 621 of 1973 and claimed that he was the direct heir of the deceased Ibrahim and he was entitled to inherit the suit property. He, therefore, prayed for the possession of the suit property and some movable property like furniture and the mesne profit. The suit was contested by the defendant by filing-written statement at Ex. 9. It was contended that the deceased Ibrahimkhan had given away the suit property to his wife Manuma in gift on 1st November, 1967. The fact of the said gift was recorded in the memorandum dated 26th April, 1968 (Ex. 100). Since then, Bai Manuma had become owner of the suit property. She had mortgaged the upper storey of the suit property to one Arab Aba Said Bin Aba Mahamad Bin and Arab Aba Hasan Bin Aba Mahmad Bin of Junagadh for a sum of Rs. 5000/- and the deceased Ibrahimkhan, Bai Manuma and the defendants continued to reside in the ground floor of the suit property. Rent note (Ex. 76) was executed under which said Ibrahimkhan agreed to pay rent to Bai Manuma for occupation of the ground floor of the suit property. However, Bai Manuma died in the month of November, 1968 and the said Ibrahimkhan and Bai Manuma having no issue of their own, the suit property, on the-death of Bai Manuma, reverted back to the said Ibrahimkhan. After the death of Bai Manuma, said Ibrahimkhan, on 20th December, 1968, gave away the suit property to the defendant No. 2 by an oral gift. The gift was accepted by the defendant No. 2 and he continued to reside in the suit property along with the said Ibrahimkhan. The said gift was acted upon and a rent note dated 17th September, 1969 (Ex-93) was executed, under which the said Ibrahimkhan agreed to pay rent to the donee defendant No. 2 and continued to reside in the suit property. The fact of the said gift was recorded in the memorandum-dated 18th September, 1969 (Ex-92). The said memorandum has been witnessed by 7 persons named therein. After the said gift, the said Ibrahimkhan died on 29th October, 1973. Thus, the defendant No. 2 had become the sole owner of the suit property and the plaintiff had no claim over it.

(3.) The learned trial Judge has held that the gift made by the deceased Ibrahimkhan in favour of Bai Manuma and the subsequent gift in favour of the defendant No. 2 were complete and are proved. Hence, at the time of the death of the said Ibrahimkhan, defendant No. 2 was the sole owner of the suit property and the plaintiff could have no right to inherit the same.'' The learned trial Judge, accordingly, dismissed the suit. Feeling aggrieved, the plaintiff preferred Regular Civil Appeal No. 66 of 1977 in the District Court, Junagadh, which too has been dismissed by the learned District Judge, Junagadh, on 8th September, 1980. Feeling aggrieved, the plaintiff has preferred the present appeal.