ZULAIQA BEE Vs. MOHAMMAD MAHAMOOD KHAN

JUDGEMENT

(1.) This Letters Patent Appeal is preferred by the defendants 1 and 2 against the judgment of the learned single Judge in CCCA No. 304/82 dt. 13-3-91 confirming the judgment of the trial court in OS No. 233/78 on the file of the II Addl. Judge, City Civil Court, Hyderabad dt. 4-10-82. The respondent before us is the plaintiff. The suit was filed by the respondent in 1978 for a declaration of title in respect of the house property in Hyderabad City and for possession from the defendants 1 and 2 and for future mesne profits from the date of suit. Both the courts have decreed the suit granting a declaration and possession.

(2.) The brief facts of the case are as follows:One Hazi Hidayath Khan had a son by name Rahmath Khan. The said Rahmath Khan had two wives and the 1st defendant (1st appellant before us) is the daughter born to his first wife. The second appellant before us is the 2nd defendant and is the husband of the 1st defendant. The respondent-plaintiff was born to the said Rahmath Khan by his second wife. The grand-father i.e., Hazi Hidayath Khan died on 3-4-72 and the property originally belonged to him. According to the respondent-plaintiff, the property devolved on Rahmath Khan, s/o. Hazi Hidayath Khan (i.e. plaintiff's father) and that subsequently the said Rahmath Khan through his general power of attorney executed a registered gilt deed, Ex. A. 5 on 30-4-73 in favour of plaintiff. It is also the plaintiff's case that Rahmath Khan executed the general power of attorney, Ex. C.1 (copy of which is marked as Ex. A. 4) on 1-6-72 and that it was in pursuance of the said G.P.A. that the gift deed was executed in favour of the plaintiff. By that time, Rahmath Khan was suffering from paralysis.

(3.) On the other hand, it is the case of the appellants-defendants that there was an oral gift of the suit house property by the paternal grand father Hazi Hidayath Khan in favour of the 1st defendant in 1967 and that in view of the said gift, Rahmath Khan had no title to gift the suit property to the plaintiff. Alternatively, it is their contention that even assuming that the oral gift by Haz Hidayath Khan in favour of 1st defendant is not established, still the gift, Ex. A.5 dt. 30-4-73 is invalid inasmuch as there is no proof of delivery of possession by the donor in favour of the donee. It is also pointed out that the defendants 1 and 2 have been in possession of the property from the time the property was under the ownership of the paternal grand father before 3-4-72 when he died, and even there after when it devolved on Rahmath Khan, the father of the 1st defendant. The trial Court as well as the learned single judge came to the conclusion that the oral gift by Hazi Hidayath Khan in favour of the 1st defendant was not established. It was also found that the gift, Ex. A-5, dt. 30-4-73 executed by Rahmath Khan in favour of the plaintiff was valid inasmuch is it was accepted and possession was given to the plaintiff in accordance with the law. On those findings, the suit was decreed by both the courts.