AZIZI Vs. SONA MIR

JUDGEMENT

(1.) THE appellants in this second appeal are the widow and the minor child of deceased Habibullah Mir and the respondent is his brother. The respondent instituted a suit in the court of the Munsiff at Srinagar for partition and separate possession of his alleged share in the suit properties which originally belonged to deceased Habibullah Mir. But Habibullah Mir had executed a deed of gift in respect of the properties in favour of the appellants on 25 -1 -56. The respondent challenged the validity of this gift and claimed his right to a share in the property on the ground that the gift deed was invalid. The defendants appellants resisted the suit on the ground that the gift deed was valid and that the plaintiff had no manner of right or title to any portion of the property in suit.

(2.) THE court of first instance found the deed of gift to be valid and binding and dismissed the suit. On appeal, the District Judge at Srinagar differed from the trial court and held the gift to be invalid. This conclusion of his was based on two grounds, namely, that the gift was of Mushaa and that there was no actual delivery of possession of the property to the donees. The donees have now come up in second appeal to canvass the correctness of the conclusion of the lower appellate court.

(3.) IT is common ground that the gift deed was duly executed by the donor and attested by witnesses and registered. The subject -matter of the gift consists of a three -storeyed house, three stone quarries and two boats. The donor was the absolute owner of all these items of property, and the donees were his wife and minor child. It is recited in the gift deed in the most unequivocal terms that the donor had transferred his ownership and possession of the properties to the donees. The donees have also endorsed on the gift deed itself that they have accepted the gift and duly taken possession of the subject -matter of the gift.