CHANDRAKANT HARMALKAR Vs. SUMATI SAGUN HARMALKAR

JUDGEMENT

(1.) THE appellants herein are the original defendants against whom the respondents-plaintiffs had filed the suit for declaration and injunction. The declaration sought was that the Gift Deed dated 27th February 1976 executed by defendant no.1 in favour of defendants 2 and 3 was null and void and the injunction sought was for restraining the defendants from making any construction upon the suit property. The trial Court decreed the suit partly but the first appellate Court decreed it fully. Feeling aggrieved thereby, the defendants have preferred this appeal.

(2.) THE relevant facts necessary for the decision of this appeal are in brief that according to the plaintiffs, plaintiff no. 1 Sumati was married to deceased defendant no.1 Sugan and that plaintiff no.2 Bhikaji and plaintiff no.4 Krishnabai are the son and daughter respectively of the said Sagun. It was further averred in the plaint that the suit property was purchased by plaintiff no.2 Bhikaji in the name of his father defendant no.1 Sagun. According to the plaintiffs, plaintiff no.1 Sumati being the wife of Sagun, had her half share in the suit property. It was alleged that despite this position, defendant no.1 Sagun made a gift of the entire suit property in favour of defendant nos. 2 and 3 by a registered deed dated 27th February 1976. According to the plaintiffs, defendant no.1 had no authority to make a gift of the entire suit property. They, therefore, filed a suit for declaration that the Gift Deed dated 27th February 1976 was null and void. They further prayed for perpetual injunction restraining the defendants from making any construction in the suit property.

(3.) THE learned Civil Judge upon consideration of the evidence on record came to the conclusion that both the plaintiff no.1 Sumati and defendant no.3 Kamlabai were the wives of defendant no.1 Sagun. The learned Civil Judge further held that defendant no. 1 Sagun was, however, not entitled to make a gift of the entire property and at the most he could have made a gift of 1/4th of his disposable share. In this view of the matter the learned Civil Judge proceeded to declare the Gift Deed in question as null and void only to the extent of the share of the plaintiff no.1. In substance, he held that the Gift Deed was valid to the extent of 1/4th share only. In appeal by the plaintiffs, the learned Additional District Judge decreed the suit fully and declared that the Gift Deed dated 27th February 1976 is null and void. He also granted the relief of perpetual injunction as prayed for by the plaintiffs.