HAYATUDDIN Vs. ABDUL GAIN

JUDGEMENT

(1.) This is a plaintiff's appeal challenging the dismissal of his suit for a declaration and injunction that he was lawfully in possession of house property in suit in pursuance of a gift deed dated 10-6-1952 executed in his favour by one Rashidbi and Amnabi. The suit was decreed by the trial Court but was dismissed by the first appellate Court. One Lamiya had admittedly two wives, Rashidbi and Makboolbi. One Mahoboolbi also claimed to be Lalmiya's wife. Lalmiya had admittedly two wives, Rashidbi and Mahaboolbi also claimed to be Lalmiya's wife. Lalmiya had a sister Amnabi. He died in 1948 leaving behind the house property in dispute. Amnabi, Rashidbi and Makboolbi admittedly succeeded to the estate of Lalmiya. Amnabi got 12 annas share and the two widows, Rashidbi and Makboolbi, got 2 annas share each. Amnabi our of Hayuttuding on 10-6-1952. The recitals in the said gift deed (Ex.P-4) show that they were gifting their house property valued at Rs. 1,000/- to Havatuddin. The description of the property recited in the gift deed shows that according to the donors a part of this property was already separated and handed over to Makboolbi on account of her share in the estate of Lalmiya. The gift deed also recites that the property gifted was in possession of the donee and that possession was handed over to the donee and the donee being the owner was entitled to make use of the property, in any manner he liked. It was further recited in the gift deed that Makboolbi's 2 annas share had been separated, that the donors were gifting in favour of the donee were gifting in favour of the donee their interest in the property of the heirs of the donors would have any interest in the gifted property.

(2.) In 1955 the two donors as plaintiff No.1 and 2 and donee Hayatuddin filed Civil Suit No. 227 of 1955 for a declaration that Hayatuddin was the owner of the property and an alternative relief of the property and an alternative relief of partition and separate possession was of partition and separate possession was also claimed in the plaint. The main contestants in that suit were Makboolbi who claimed that the gift in favour of the present plaintiff was not binding on her two annas share in the property of deceased Lalmiya and Mahaboolbi who also claimed to be the widow of deceased Lalmiya. The two tenants who were in physical possession of the property in dispute. Sk. Chhote and Mohd. Gulab, were defendants Nos. 3 and 4 in the suit. The Civil Judge , Class II, Nagpur who decided that suit by this judgment dated 25-1-1956 held that there was no partition in 1950 as alleged by the plaintiff and the house property which was mentioned in the gift deed was not allotted to the plaintiffs Nos. 1 and 2. It however, found that in fact the gift had been made of the portion. A B C X Y H I J by the plaintiff Nos. 1 and 2 to the plaintiff No. 23 on 10-6-1952 but that the said gift did not bind Makboolbi who had 2 annas share in the suit property. It was also found that the plaintiff No.3 i.e. Hayatuddin was not placed in possession of the property said to have been gifted under the gift deed. The claim of Mahaboolbi that she was the widow of Lalmiya was negatived. Mahaboolbi's share to the extent of 2 annas having been upheld in that suit. the trial Court passed a decree in favour of the plaintiffs Nos. 1 and 2 and defendant No.1 who were found entitled to get 12 annas. 2 annas and 2 annas share respectively in the suit house and the plaintiff Nos. 1 and 2 were jointly held entitled to get 7/8th share in the said house which was directed to be separated by metes and bounds subject to their payment of the proportionate amount of dower debt within three months time from the date of decree to the defendant No.1 A commissioner was appointed. It is not now in dispute that after Mahaboolbi's appeal negativing her status as a widow of Lalmiya came to be dismissed, a final decree for partition was passed allotting to the share of the original plaintiffs Nos. 1 and 2. Amnabi and Rashidbi, the same part of the house property which was gifted by them Havatuddin. One intervening event which must be referred to is that during the pendency of the appeal filed by Mahaboolbi. Amnabi died on 18-111956 and the present defendants Nos. 1 to 6 were brought on record as her legal representatives in the appeal. While disposing of the civil suit, the trial Court had declined to pass a decree in favour of the plaintiff No. 3 without giving any reasons but the observation made was "Fest of the Plff.'s claim seems to me misconceived in view of the facts pleaded by them and as made clear in my discussion above."

(3.) The suit out of which appeal arises then came to be filed by Hayatuddin along with Rashidbi who was original plaintiff No. 2 in the earlier suit for a declaration that Hayatuddin was the exclusive owner of the property described in the schedule which, according to him was gifted to him on 10-6-1952 by Rashidbi and Amnabi. The plaintiff alleged that since the date of the gift he has been in possession of the said property and has also introduced tenants therein but that on the strength of the decree passed in Civil Suit No. 227-A of 1955 the defendants who were earlier suit as legal representative of Amnabi tried to dispossess him . The present defendants raised a two fold defence to the suit. They firstly relied on the fact that the claim of the present plaintiff who were plaintiff No. 3 in the earlier suit was rejected and secondly, they contended that the gift was void and the judgment in the earlier suit cooperated as res judicata. The trial Court found that the gift deed dated 10-6-1952 would operate in respect of the separate share in the suit property which is represented by the letters A B C X Y H I J in the plaint map , and that the donors Amnabi and Rashidbi admitted to have gifted the said house property to the plaintiff. It also found that the present defendants did not inherit any property from Amnabi and Rashidbi admitted to have gifted the said house property to the defendants did not inherit any property from Amnabi and they were not entitled to possession of the suit property. It further found that the decree in Civil Suit No. 227-A of 1955 did not operate as res judicata and the suit filed by the plaintiff was competent. In view of this finding a declaration was granted to the plaintiff Hayatuddin that he was the exclusive owner of the suit house as described in the plaint map and the defendants were restrained permanently from disturbing the plaintiff's possession and enjoyment of the suit house.