ALLARAKHI Vs. MAHEBUBMIYAN HAMIDMIYA SHAIKH

JUDGEMENT

(1.) THE appellant/original plaintiff has filed this Second Appeal under Sec. 100 of the Civil Procedure Code, challenging the judgment and order passed by the learned District Judge, Bharuch in Regular Civil Appeal No. 86 of 1982 dated 10th May, 1984, dismissing the said appeal and confirming the judgment and decree passed by the learned Civil Judge (Senior Division), Baroda, in Civil Suit No. 555 of 1977, dismissing the said suit.

(2.) THIS appeal was admitted by this Court on 13th April, 1985 and following substantial question of law was framed by the Court : "Whether in the facts and circumstances of the case, the lower Courts erred in holding that there was no valid gift of the suit property and that the gift was nominal and not acted upon?"

(3.) MR. Kashyap R. Joshi, learned Advocate appearing for the respondents, on the other hand, has submitted that there is a concurrent finding of facts of both the Courts below and looking to the limited scope of Second Appeal, the Court may not entertain this appeal and dismiss the same with costs. He has further submitted that the specific finding was recorded by both the Courts below on the basis of evidence on record, and hence, re-appreciation of evidence is not permissible in this Second Appeal. The learned appellate Judge has specifically held that though the deed of gift produced at Exh. 40 does mention that the actual possession was handed over to the donees, the said statement made in the document is superfluous and not correct as is seen from the evidence before the Court and the plaintiff gave her deposition in the suit at Exh. 39. She said during the examination-in-chief that the original gift-deed is not traceable. She further stated that at the time of execution of the deed, the plaintiff was present and it would imply that Fatma and Kulsum were not present, and there was nothing to show as to who accepted the said gift for and on behalf of said Fatma and Kulsum. She has further stated that the gift given by her maternal grandfather was accepted by the donees but she did not clarify as to how the same was accepted by Fatma and Kulsum, whether they were personally present or somebody else had accepted on their behalf. She further stated that even after the gift, the donor was residing in the same property. She firstly attempted to show that Mohmed Sardar Belim and his sons were not intending to go to Pakistan. However, she has made some admissions in respect thereof. She further stated that the defendants took possession of the suit property before about 8 years before her deposition which would amount to the fact that the possession of the suit portion i. e. the ground floor came with the defendants somewhere in 1973 or thereabout. During the cross- examination, she admitted that even at the time of execution of the gift- deed, Shaikh Ahmed and Shaikh Hamid, the two sons of Mohmed Sardar Belim along with their family members were residing in the said property. She further admitted that Mohmed Sardar Belim and his two sons died in the suit property. On the basis of evidence, the learned Judge came to the conclusion that it falsifies the case of the plaintiff that the defendants were not in possession of the suit property since 1952 or sometime thereafter till 1973 or 1976. She further admitted that Mohmed Sardar Belim paid the taxes of the suit property till he was alive. She further stated that Mohmed Sardar Belim and two attesting witnesses alone had gone for the registration of the gift-deed, and as such, the acceptance of the gift by the plaintiff or the three donees is falsified. She further stated that after the registration of the deed, Mohmed Sardar Belim told about the execution of the deed to the plaintiff, her mother and Kulsum. She further stated that Kulsum was residing at Surat since before the execution of the gift-deed and she had come to Bharuch after the execution of the deed. She further stated that after the execution of the gift-deed Exh. 40, the deed was handed over to Bai Fatma, the mother of the plaintiff and except that no other formality was undergone. As such, from her admission, the trial Court came to the conclusion that the acceptance of the gift which is a must formality and the delivery of possession under some overt act on the part of Molimed Sardar Belim was not performed.