MOHAMMAD USMAN Vs. MOHAMMAD ANWAR BAIGH

JUDGEMENT

(1.) The judgmentof the learned District Judge. Krishna district. Machilipatnam in A.S.NO. 101 of 1986 and the cross objections dated 27-2-1987 are in challenge in this appeal. Appellants are the Defendants Nos. 1 and 2 in O.S.No. 90 of 1975 and the Respondents No. 1 to 7 were the Plaintiffs Nos. 2 to 8 in the suit and RespondentNo. 1 is the sonof PlaintiffNo.1 Ibrahim Beigh. Respondents No.8 and 9 are the legal representatives of Plaintiff No. 8. who died pending suit. The convenience warrants the reference to the parties as Plaintiffs and Defendants as they occupied in the trial Court.

(2.) Originally. Plaintiff No. 1 viz.. Ibrahim Beigh filed the suit and on his death the other Plaintiffs were brought on record as his legal representatives. The Defendants No. 2 and 3 Jaibunnisa and Sabrunnessa are the sisters of Plaintiff No.1. Khadar Baigh and Khatija Bibi are their parents. Defendant No. 1 is the husband of Defendant No. 2. Plaintiffs No.2 and 8 are the sons and Plaintiffs No. 3 to 7 are the daughters of the 1st plaintiff. The suit was filed for declaration to declare that the gift deeds dated 16-2-1963 and 29-4-1963 executed by Khatija Bibi in favour of DefendantNos. 2 and 1 respectively are sham. nominal and not binding on Khatija Bibi or the plaintiffs and for partition and separate possession of the plaintiffs' half share in the Plaint 'A' schedule property and for recovery of an amount of Rs. 504/- being the value of 12 bags of paddy due for the year 1971 payable in January.1972 with interest on that amount at the rate of 5 per cent per annum from the date of suit till the date of recovery and for future mesne profits. etc. The suit was resisted by Defendant Nos. 1 and 2 and Defendant No. 3 remained ex parte. The parties went to trial after the settlement of issues. wherein the wife of Plaintiff No.l was examined herself as P.W.I and four other witnesses as per P.W.2 to F.W.5 and got marked as many as 21 documents as per Exs. A-1 to A-21 for the plaintiffs and the Defendants Nos. 1 to 3 examined themselves as D.Ws.l to 3 and witnesses as per D.W.No.4 to 10 respectively and got marked Exs.B-1 to B-23 respectively. After hearing both sides and on the basis of the materials before him. the learned District Munsif. Gudivada has decreed the suit as prayed for with certain directions. The aggrieved defendants took up the matter in appeal before the learned District Judge who. after hearing both sides and on considering the materials before him including the judgment and decree passed by the trial Court. dismissed the appeal and at the same time allowed the cross-objections filed by Respondents Nos.1 to 7 in appeal with costs. The judgment and decree of the trial Court was modified to the extent of allowing the cross-objections. That is how. the present appeal has come up to be presented to this Court.

(3.) The Plaint 'A' schedule property is an agricultural land bearing R.S.No. 10 with an extent of 2 acres and 0.809 hectares situated at Lankadoddi. Hamlet of Dokiparru village in Krishna district. The Plaint 'B' schedule properties are movable properties comprising wearing clothes viz.. shirts and pants. It is not in dispute that Plaintiff No. 1 Ibrahim Beigh was the absolute owner of Plaint 'A' schedule property and he gifted it to his mother with absolute rights for her maintenance. She died on 18-1-1972. It appears that she was in possession and enjoyment of the land till she died. It appears that one Cherukuri Srinivasa Rao filed O.S.No. 94 of 1961 against Khatija Bibi and the 3rd defendant on the foot of a Promisory note for recovery of certain amounts said to have been borrowed by them. It is alleged that such promisory note was forged one and to avoid the decree. the Defendants Nos. 1 and 2 instigated Khatija Bibi to execute two gift deeds in their favour nominally to safeguard her property from the creditor viz.. Cherukuri Sreenivasa Rao from being operated in case a decree is passed against her in O.S.No. 94 of 1961. The gift deed executed in favour of Defendant No.2 is dated 16-2-1963 to the extent of 50 cents in Plaint 'A'schedule property. The gift deed executed by her in favour of Defendant No.l is dated 29-4-1963 to the extent of one acre and 50 cents out of Plaint 'A' schedule property. It was alleged that Defendants Nos.l and 2 had agreed to reconvey the Plaint 'A' schedule property gifted to them to Khatija Bibi after the termination of litigation between herself and Cherukuri Sreenivasa Rao. It is pleaded that in spite of the gift deed executed in favour of Defendants Nos. 1 and 2. Khatija Bibi continued to be in possession of the said lands covered by the gift deeds till her death and paid taxes. It was further pleaded mat the gift deeds executed in favour of Defendant Nos. 1 and 2 were never gifted to be acted upon and in fact they were never acted upon. It was pleaded that the gift deeds were sham and nominal documents and they did not create any righ t in defendants Nos. 1 and 2 and they were void under the Mohammedan Law as there was no delivery of possession of the properties under the gifts and as they were not accepted by Defendant Nos. 1 and 2. Ultimately. O.S.No. 94 of 1961 was dismissed and the appeals to Subordinate Court and the High Court in regard to that came to be dismissed. thus making the decision of the trial Court final. It is alleged that the Courts held that the promisory note said to have been executed by Khatija Bibi in favour of Cherukuri Sreenivasa Rao was a forged one.