JAITUNBI FATRUBHAI Vs. FATRUBHAI KASAMBHAI

JUDGEMENT

(1.) The suit out of which this appeal arises was filed by the plaintiff for a declaration that she was the owner of survey No. 347 at Deolali, and that its sale by her husband, defendant 1, to defendant 2 was not binding on her, and for the recovery Of its possession from the defendants. When defendant 1 married the plaintiff in 1935, he agreed to pay her Rs. 2500 as mahr, and in lieu of the mahr he made a gift of survey No. 347 to her at the time of the marriage. In spite of the gift, defendant 1 sold the land to defendant 2 for us. 1600 on 4- 4.1938, and hence the plaintiff had to file this suit. Defendant 1 did not contest the suit, but defendant 2 did not admit the alleged gift to the plaintiff and claimed that he was its full owner under the sale deed passed to him by defendant 1. In proof of the gift, the plaintiff relied upon the entry made in the Kazi's book at Bombay at the time of her marriage with defendant 1. That entry says: Certified... that marriage was celebrated by the gift of a piece of land at Deolali, Ahmednagar District, in lieu of mahr of Rs. 2500.

(2.) The learned trial Judge raised various issues at Ex. 51, the first issue being: Whether the plaintiff proves that suit Survey No. 347 was given to her in mahr by defendant 1 on 4-4-1935 as alleged and that she was put into possession on that date.

(3.) On the date of hearing, the plaintiff applied for time to have a witness examined on commission in Bombay, and below that application, Ex. 59, the learned Judge ordered the following preliminary issue of law to be argued out first, before recording any evidence: Would a statement at marriage that the said land is given to wife and she is put in possession be sufficient to constitute her full owner? What is the importance of possession in such a case?