PARVATIBEN ISHWARBHAI Vs. KASHIBEN CHATURBHAI PATEL

JUDGEMENT

(1.) The present Second Appeal under Sec. 100 of the Code of Civil Procedure is preferred by the original defendant against the judgment and decree dtd. 28/12/1993 passed by the Assistant Judge, Bharuch in Regular Civil Appeal No.95 of 1988 reversing the judgment and decree passed by the learned Civil Judge, Junior Division at Bharuch in Regular Civil Suit No.374 of 1984 dismissing the suit of the plaintiff. It is contended that the Appellate Court has erred in reversing the judgment and decree of the Trial Court which has dismissed the suit of the plaintiff. It is contended that the Appellate Court has erred in holding that the predecessor of the original plaintiff had no right, title or interest, to execute the gift deed of his share in favour of the original plaintiff. It is contended that it ought to have been held that the plaintiff is the owner of the one half of the suit property and he is entitled to get his share by metes and bounds of the suit properties. It is also contended that the Appellate Court ought to have held that the original defendants have failed to prove that the suit property has come to them by process of oral partition. It is also contended that the Appellate Court has not properly considered the oral evidence as well as not interpreted the gift deed at exhibit 55. It is also contended that the Appellate Court has failed to hold that the executor of the gift deed Mr.Mohanlal was having right title or interest to gift the suit property in the year 1979. It is also contended that the Appellate Court has erroneously held that the properties were partitioned prior to the year 1975 between the predecessors of both the sides and that what ever portion remains unpartitioned was finally partitioned by family arrangements as per exhibit 52 and as such the gift deed by Mr.Mohanlal has no right to execute the same.

(2.) It appears from the record that one Ms.Parvatiben has filed a Civil Suit No.374 of 1984 before the Court of Civil Judge at Bharuch contending that the property in question was jointly belonging to her father-in-law Mr.Mohanlal and their defendant Mr.Chaturbhai Amardas Patel. It is also alleged that all are Hindu and therefore Hindu Succession Act,1956 applies. It is contended that Mr.Mohanlal and the defendant Mr.Chaturbhai had one half share in the suit property. It is contended by the plaintiff that on 14/5/1979, by a registered gift deed, Mr.Mohanlal has given it to her and she is in possession. It is contended that she is having equal half share and enjoying it with the defendant. It is contended that on the said, she has informed the defendant for actual partition of the property. The defendant denied to do so. On this basis, the plaintiff has filed the suit for actual partition of the said property and for possession of her share.

(3.) The defendant has resisted the suit. It appears that during the pendency of the proceedings, the defendant has died and therefore their heirs came to be joined in the suit. The defendant side have filed a written statement, at exhibit 20 wherein they have denied the correctness of the plaintiffs averments. According to the defendants, the property nos.214 and 185 were mutually divided among them by oral partition on 8/12/1975 and out of property no.185, the plaintiff's father-in-law were given 102/33 feet while the defendant's father was given 88/33 feet and as the defendant's father was given less land area from the property no.185 and with a view to divide the equal share, property no.214 was given to the defendant's father by mutual partition of both these properties, the remaining property was divided among the brothers on 8/12/1975 in presence and by beneficiary of one Mr.Veribhai Prabhudas and Mr.Chaturbhai and writing was also made to that effect and after that no property was left undivided among the brothers. According to the defendants, the property nos.185 and 214 were mutually divided on 8/12/1975. It is also the stand of the defendants that merely because the suit property runs in the joint name in records, the plaintiff had compelled her father-in-law to execute a gift deed in her favour to harass the defendants. The defendant has also stated that the plaintiff has also served him notice and it was replied and thereafter, the defendant has made constructions of residences on the disputed property and at that time, the plaintiff has not raised any objections. It is the stand of the defendants that the suit is barred by law of limitations and as the property no.214 was given to the defendant by mutual partition, the donor has no right to give a very property to the plaintiff in gift and therefore the defendants have requested to dismiss the suit with cost.