S MD ABULAIS Vs. S A AZIZ

JUDGEMENT

(1.) The Plaintiffs in O.S. No. 126 of 1996, on the file of Principal Senior Civil Judge, Nandyal, are the Appellants. They filed the suit for a declaration to the effect that they have vested interest in items 'C' to 'G' of 'B' schedule properties and for recovery of the said items from Respondents 12 to 17. The facts pleaded by them in brief are as under:

(2.) One Mr. Khajamiah of Nandyal had a daughter by name Makthum Bi, and son, by name, Raja Saheb. Raja Saheb had two sons, viz., Raju Bhai and Aziz, the 1st Respondent herein. Aziz is the father of the Appellants. Makthum Bi is said to have executed a gift deed on 09-05-1942 in favour of her brothers, creating life interest in 'A' schedule properties in their favour and vested remainder in favour of male children, that may be born to her brothers. After the death of Makthum Bi, her brothers are said to have divided the properties and that the 'B' schedule properties fell to the share of the 1st Respondent, father of the Appellants. Appellants alleged that the 1st Respondent along with his wife, the 2nd Respondent, effected sale of plaint items 'C' to 'G' carved out of 'B' schedule properties in favour of Respondents 12 and 17, contrary to the recitals in the gift deed, and detrimental to their interests.

(3.) The Respondents 1 to 11 remained ex parte. The suit was contested by the Respondents 12 to 17 alone. The trial Court dismissed the suit holding that the provision in the gift deed in favour of unborn persons unenforceable in law and that the Appellants did not derive any rights under the said document. The trial Court dismissed the suit. The Appellants filed A.S. No. 17 of 2006 in the Court of III Additional District Judge, Kurnool, against the judgment and decree passed by the trial Court. The lower Appellate Court dismissed the appeal on 20-01-2009. Hence, this Second Appeal.