AZESHABI Vs. SAPRAKARA KATHOONBI

JUDGEMENT

(1.) DEFENDANTS 3 to 5 are the appellants in the second appeal which raises the question of the validity of a gift under the Mohamedan law. The brief facts of the case are: The plaintiff executed a gift deed, Ex. A. 1 dated 21-5-1935, in favour of her son, the first defendant, and the daughter, the second defendant, the latter being represented by the first defendant as guardian. The gift deed contains an express recital that possession of the property has been delivered over to the donees, that they should protect the mother, the donor, during her lifetime, and that the donor and her heirs shall have no right or interest in the property gifted. At the outset it may be mentioned that the property gifted is a residential house in which the donor and her children and the donees were living together, before the gift, at the time of the gift, and for a long number of years thereafter, even after the daughter attained majority.

(2.) IN the year 1946, the second defendant executed a mortgage over her half share of the property in favour of the third defendant, who filed a suit O. S. 469 of 1948, obtained a decree, and in execution of that decree the fourth defendant purchased the same in the year 1955 (Ex. B. 6 dated 5-12-1955 being the sale certificate issued in his favour ). He took symbolical possession and filed a suit O. S. No. 242 of 1956 for partition and possession of the half share which belonged to the second defendant. As the Commissioner found the property to be incapable of division the property was sold under the Partition Act, and in the auction held, the fifth defendant purchased the same for Rs. 1040 on 18-9-1957. He also took possession of the property. At that time the plaintiff raised some objection which was rejected with the result that the plaintiff has filed the present suit for setting aside the order passed in the delivery proceedings.

(3.) IT is necessary to mention that the plaint is completely lacking in averments regarding essential particulars. There is no averment that possession of the property was not delivered to the donee. The only allegations contained in paras 1 and 10 of the plaint are to the effect that even at the time of the delivery proceedings i. e. , 1957-58, the property was in the possession and enjoyment of the plaintiff, and that the first and second defendants did not have possession. The plaintiff has not stated the grounds on which she was questioning the validity of the gift deed. She has not mentioned anything regarding the background in which the gift deed came to be executed and what happened at that time and shortly thereafter. There is not a word in the plaint as to whether the plaintiff's husband (father of defendants 1 and 2) was alive at that time, whether if alive, he was living with them or living away from them, after having deserted the plaintiff and her children. Nor is there any averment about the part played by the first defendant who has been described in the gift deed as the guardian of the second defendant. The evidence in the case discloses that the mother was fully aware of all the prior court proceedings and that the mother, her son and daughter defendants 1 and 2, are acting in active collusion. The plaintiff is fully aware that the price paid by the fifth defendant at the court auction sale was for the entire property and a portion was taken away by the first defendant her son. The gift, as mentioned earlier, is evidenced by a registered document of the year 1935, and its validity is questioned after a long interval of 23 years, alleging (that too in the course of arguments) that the technical rules of Mahomedan law relating to the delivery of possession and acceptance of the gift have not been complied with in the instant case. The fifth defendant who is a stranger court auction purchaser for valuable consideration has therefore no idea as to the grounds on which the validity of the gift deed was questioned by the plaintiff. The written statement of the first and second defendants is equally unhelpful as the proceed mainly on the footing that the gift deed itself never came into effect.