SHANTILAL Vs. CHANDANMAL

JUDGEMENT

(1.) This appeal was admitted by this Court vide order dated 21.11.2007 for final hearing on the following substantial questions of law :

(2.) Being aggrieved by the judgment and decree dated 27.8.1998 passed by Additional District Judge, Mandsaur in Civil Regular Appeal N0.8-A/ 1998 whereby the judgment and decree dated 23.3.1996 passed by 2nd Civil Judge, Class I, Mandsaur in Civil Suit No. 153-A/1995 whereby the suit filed by the appellant for partition and for cancellation of gift-deed dated 8.8.1961 was dismissed, was maintained present appeal has been filed.

(3.) Undisputed facts of the case are that appellant and respondent are the real brothers and are sons of Madhavlal. The suit property was purchased vide registered sale-deed dated 3.2.1943 by Madhavlal father of appellant and respondent. In the suit it was alleged that since appellant and respondent are the brothers therefore, both of them are having equal rights in the suit property. It was alleged that Madhavlal executed gift-deed in favour of the respondent on 8.8.1961 whereby the suit property was gifted by him to the respondent. It was alleged that Madhavlal was having no right to transfer or gift the property of which he was not the owner. It was also alleged that there was another property which was purchased by Madhavlal in his own name vide sale-deed dated 14.12.1943. It was alleged that both the properties were purchased by deceased Madhavlal from the funds of undivided joint Hindu family, therefore, in both the properties, appellant is having equal right. In the suit filed by the appellant it was prayed that a decree for partition be passed and that gift-deed dated 8.8.1961 be declared as null and void. The suit was contested by the appellant on various grounds including the ground that the suit itself is not maintainable and be dismissed. It was alleged that the suit filed by the appellant is barred by time. After framing of issues and recording of evidence learned trial Court dismissed the suit against which appeal was filed which was also dismissed. Hence this appeal.