Mohammad Ghayasulla vs H Asadulla Shariff on 7 September, 2010

[Cites 18, Cited by 3]

Karnataka High Court

Mohammad Ghayasulla vs H Asadulla Shariff on 7 September, 2010

Bench: Aravind Kumar

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1
IN THE HIGH COURT OF KARNATAKA, BANGALORE

DATED THIS THE 7TH DAY OF SEPTEMBER 2010
BEFORE

THE HON'BLE MR. JUSTICE ARAVIND 

REGULAR FIRST APPEAL NO. 125o%AOE   

BETWEEN:   

1 MOHAMMAD GHAYASULLA, _
S /O MOHAMMAD KALEEMULLA
AGED 38 YEARS, ' " 
OCC: SERVICE.

2 MOHAMAD NA.bEAEMULLA«,j' 
S /O MOHAMAD.KALEEMLJLLA'; O 'A 
AGED 34 YEARS   "    
OCC: B[?vSINESS"."'» -- if

 BOTH RES.,ID1NG_ATr+JO.1577 NEW No.99,
'-{KV NO. 1065), ' V.E1\I.K.ATESHPURA LAYOUT,
(B-.M: LAYOUT); ARABIC COLLEGE POST.
_ BANGALORE-'s60-"045.

 :--APPELLANT*'NO.1 REPRESENTED BY

OPAHOLDER MOHAMMAD NADEEMULLA.
   ...APPELLANTS

S1E€.Rahamathulla Shariff, Adv. for Appellant-2)

A519:   



H. ASADULLA SHARIFF',

S/O M. HUSSAIN SI-IARIFF',

AGED 60 YEARS,

OCC: BUSINESS,

R/O.NO.9, MUNISWAIVIAPPA ROAD,
J .C. NAGAR, BANGALORE.

MOHAMMAD KALEEMULLA,
S /0 ABDUL JABBAR,
AGED 61 YEARS,

OCC: NIL,   j;
C/O. MOHAMMAD z1AULL;AH;._ "

15/77, PILLANNA GARDEN,"-._ ' 
111 STAGE, BANGALOR_E=560045., A _

_ ...iéESi90NDENTs
(By Sri. B.N. Anaﬁ{ra'N5:~afyana,,:_Acix;,fa; R-1
Sri. Iqbal patevi,-Adv. for R-2]  'V ~ "

This..Vapi;§ea1i' i1s--.V'Cﬁie-air}/sii 96 of cpc against the
JudgnieI1--t_a;nd Cfijecreet'idated'"'1'O-4--2007 passed in 08 No.
4692/1977'0:n..VVthe file"-Qf the V111 Addl. City Civil Judge,

I~3ang'a_1oi*e 'City~,.V"~dis:r1i's.:9i"ng the suit for declaration and
permanenttginjunction.  '

 "  appeal earning on for Further Hearing this
day, the __Court delivered the following:

JUDGMENT

his a defendants' appeal questioning the ..eQrrectness and legality of the judgment and decree ""._i'p'aéAsed in O.S.No.4692/1997 dated 10-4-1997 on the "ifile of the V111 Additional City Civil Judge, Bangalore ﬂﬁ whereunder the suit filed by the appellants for declaration came to be dismissed.

2. The facts leading to the filing of as under and the parties are referr,ed._ toA'as"p»egrl their 9' rank in the trial Court.

2.1. The plaintiffls'~.._ll?linstituted9"1all} suit in O.S.No.4692/1997' the file' "of».,itl1=e_ City Civil Court, Bangalore, seeking tihe. Q1,1oiyii:2_g "

. .9 (11) H as the absolute _ .s'ched'ule property and that the A:tlefenrjdan'ts"l1ave_"Vno manner of right, title or property;

'To 'issue' an order of permanent injunction xrestraihing the defendants from interfering the peaceful possession and enjoyment the schedule property in any manner; To declare that the sale deed registered as No.8244 dated 28.4.1994 at pages 71--74 in Book I Volume 5086 of 1993-94 between the Defendants as null and void; and W

(iv) To grant such other consequential'grelief including costs as this Hon'ble....Court'jjdeern fit in the circumstances of the' case' interest of justice .e_quity.'" " " . ' 2.2. It was contended schedule property bear1ngl'V"l:\.I:VV:o.";»52, /til» in Venkateshpura;._ anahialli V Dakhle, Bangalore North, in the plaint and here1ri'aft'e.r'rei'err€ed'; to' schedule property was 'defendant under a registered salelradeed It was contended that suit by way of Hiba; delivered po_fssession 'plaintiffs on 23-94991 and on the :dpay"'~-.origina1 title deeds of the suit schedule handed over to the plaintiffs. It was also ﬂcontended that second defendant wrote it » it confirrnatory letters to the concerned authorities namely lithe Municipal authorities to change over the khatha to W the names of the plaintiffs. It was further contended consequent to Hiba plaintiff took possession of the suit schedule property and enjoyed all the of ownership and got the khatha transferredto and leased out the shop.»~»preprni'seisif f'diiffefent'e« defendants and also applied construction. Hence, it i T p contendepdrj plaintiff's' were in possession and rights over the suit schedule propertyffi that second defendant jsuitlii and was living separate'ly32$/ithifiiitiieiil'secondwvvife and he never interfered with i'pyoissessioI1.i;:_"lfigvhtj title and interest of the plaintiffs.

it 2.3. It contended that process server came .A :'over,i:to_ suit schedule property to serve the Court '«psu.1nm'oi?_1's'[t.o the second defendant in respect of an evicztilonipietition filed by the first defendant against the if second defendant in HRC 10357/1995 before Smail 'i§Causes Court and he was informed that the second M defendant is not living in the suit schedule property. It was contended by the plaintiff in the suit that immediately they suspected foul play made enquiries and found that first defen-danit an eviction petition falsely conter_1_ding"that'.fitii"i's,i_"l.eased~_ out by first defendant to second rent of Rs.2,800/-- Vpriopertyii as the petition schedule ltiixzxias-.cov1ii.tended by the plaintiffs that if with the first defendant aiidv..he V' registered sale deed dated" it has been sold by the second first defendant as such the plaintiffs"=co11t,e'i1de_dVi"'that an application for getting irripleadyed in the said I-IRC petition was filed "ands to be rejected and immediately on of the said application the plaintiffs ppapproaiched the Civil Court for redressal of their ii --..V"g»ri.evances contending that defendants have no manner .--of right title and interest over the suit schedule property M and the proceedings in HRC.No.10357/1995 has been ﬁled by the first defendant against second defendant to defraud the plaintiffs and dispossess them fromv_::'thee.suit schedule property. On these contentionis'C'i't--. contended that the cause of ac_ti.on_for_'" . 239-1991 When the second favour of the plaintiffs when khatha was transferred also on 10--3~l997 when getting themselves impleaded rejected by the Smal1"i'Cag;;es":€o1i'r't.a"- Orrthese grounds the prayer abovvégreferred: t.o':_sw_avs.i_:sou.ght for by the plaintiffs. it 2.4. O'n._fsVervi:«:e of notice defendants filed their .A 1written,staternent. The first defendant contended that " ._»p;l1FielreiV.iw}as eel cause of action for the suit and all the co4ntentio'ns raised in the plaint came to be denied. It 2 V. 'wee further contended that there was no gift whatsoever "since the second defendant had the intention of allowing 4% the plaintiffs to act under the gift since second defendant had exercised right of ownership there was no valid gift and as such it was contendedvvgift was invalid. It was contended that plairitiffslsi have any right whatsoever :'e§{c'ep.t«_ 'hei.ng' if member of second defendant and fordsflpsp take advantage of the first second defendant to 'continue in the premises and at let out to the second de;feni;l,tant ".since'; other alternate accornlrnod.ation§V allso"'clontended that the suit is barred and it was also contended that there' vvlasno cause of action and the one alleged in .- . A suit was barredl by limitation. On these grounds the first sought for dismissal of the suit. The second defendant entered appearance and the written statement and admitted the eixeécution of Hiba in favour of the plaintiffs on W 23-1-1991. It was contended by the second defendant that it is his self acquired property and subsequent to Hiba in favour of the plaintiffs he was residin'g_:i'ia.long with his 2nd wife and plaintiffs are residing schedule property and contenhdedtha_t'yVhef;. was 2 executed plaintiff No.2 was aiInin'or'~ care of the plaintiffs.

plaintiff was takengncare the second defendant and thou:ghl'1'--.'.that he would maintain and the second defe:1:1dar1'ti;sivjyvifeia_*1:di.c'liilidr_en'till his death, Hiba came to ..-isaid bonafide plea. It was contended defendant that though first plaintiff 'vl--WentiViVto"'iigulf country and started earning month but he did not care to send n:oney~tof.~' the second defendant as promised and as pp such-it'was contended that he was in a financial crunch there was no help from the plaintiffs, and at that .-Tipoint of time he decided to cancel Hiba and accordingly @/ 10 sent notices during 1993. In order to eke out livelihood, he decided to sell the suit schedule property and accordingly sold the same to first defendant 1984. He has contended that after selling the property the plai_ntiffs with this defendant and it was;"contended invalid and it was well theft Hiba. Second defendant--eonteindps .tihough~:§Hiba was made actual pot given to the plaintiffs anci:;it--~_has'l c.ointe.ndeld that there was no altern'at'e-a§:Con9irnoda_ti-on second defendant and as he first defendant to permit the second defendant to he in possession as a tenant and to r'e._oei'-J6. rent the permission granted to the first second defendant started residing as tenant a'.~nrii_onthly rent of Rs.2,800/-- till this defendant psec1i1*.ed alternate accommodation. Second defendant

-.."eontends that since rent was not paid for long first xldefendant filed eviction petition in HRC.No.10357/ 1995 at"

and obtained an order of eviction against this defendant and he admits therein that he participatedi-~i__n the eviction proceedings and did not file objectioris.iVSin.ciehe was a defaulter in payment rent. I-'i:=,_nce,V..iiitii Wash' contended that piaintiffs didv'inot'thaiV_e right to squat over the suit scheidtiie pro[.):e'_rty~vg;7hi'eh'vhasL been sold by him to deferidafitii-I and "specific contention is takenw.,. Svectionsiiii 1001 of the Mohammedan Law, in~..:f.ai~fjo1,i-V1' of two persons without spcﬁiciijdiig di.Visio'n is .not"v--a1id and a contention was 1 ' tailiieni 7: no 0 'Was taken simultaneously with viithe.arid::ii"after revocation the alleged Hiba has no aiithority' aiidiidoes not have the force of law. He 'i ii Av'voi11d"=cotntendithat khata stood in his name as on the date the Written statement on 27-1-2000 and all ot_hervii.iicontentions raised in the plaint came to be 12 2.6. On the basis of the pleadings of the parties, the trial Court framed the following its consideration:

ISSILE;§;_

(i) Whether the Plaintiffs pttwetlitithet absolute owners of <sch_edule.. ;51*opeirtjzAi..andVVthe l Defendants have no lntaiiner of~--right, title or interest in the"'p.ropertj?'? -I'; it

(ii) Whether the _P1a:in.tiffsA T.pre*vet:'ss'tiitet the Sale Deed;dat.e:'d Defendants is nult'l'lalInf1d;VOi'(_i?:' V

(iii) prove the alleged "'inte_rferene.e. oiI'v4l;1efendants?

(iv). . whethe_r' the eiiit is barred by limitation?

'{v_):V _i\?t'.T1f1*Svl'.}1Cr the Court Fee paid is insufficient? .'{\.ri')'l the Defendants prove that there is no " z "catise of action for the suit?

Whether the Plaintiffs are entitled to declaratory relief as prayed for?

M l3

(viii) Whether the Plaintiffs are entitled for permanent injunction as prayed for?

(ix) What order or decree?

2.7. The plaintiffs in order to_.p.yoi2:e.sitheir exarnined second plaintiff asp P.::'.Kl,.Iv 'getv';:r;la::1;ed 0' EXs.P.1 to 13.18. Defendalm;.vNollllsgfctVhi:§is'e.lf.v_e;;areinegjs. as D.W.1 and Second defendant got and did not get any documents the arguments advancetjA...ti:3Iu_' on considering the on record, the trial Court by its judém.erit deilcreieldated 10-4-2007 has dismissed suit," it""iS.,____tlvlis judgment and decree which is ' ,.a'susai1_ed :t'1"--.~e present appeal.

-ilileard Srilqbal A.Shariff, learned counsel A.a.ppe.-aring for the appellant and Sri. B.N.Anantha Narayana learned advocate for first respondent and Ma 14 Sri.Iqba1 Patel, learned counsel appearing for the second respondent.

4. It is the contention of Sri.Shariff....th_ai_'second defendant purchased the suit schedule__p'ropert}r.4_during his life time under Registeredghsalepldeed dAated--.6_--j1{i_g9l:79 and constructed a residential huilding and he was in possessionilaind the same. The said second' sons namely the defendant .

On property to the delivering possession of the suit the plaintiffs and also handed the connectedititle documents to the plaintiffs and .A Hiba by writing to the concerned r pa.t1thiorit'ipesA'g:toi change over the khatha to the name of the pl4a_intViffs'.l: Consequent upon this plaintiff is said to have if taken possession according to Mr.Shariff after getting khatha transferred to their names and applied for Q/.

15 regularisation of construction. It is contended in the suit that plaintiffs are in possession and enjoyment of the suit schedule property and on execution..Lof_4iHiba second defendant left the suit schedule_'.propefjiy:i was living with his second wife and at_-"no oftirne' » up he interfered with the poss'ession; fight; interest of the plaintiffs.

5. It is contended b:-,21\{1rV;'-siigﬁffthatiduring 1996 process server from came near the suit schedulef;;prop:erty_ "to ':_4'ser*v'e'*-~(Z;ourt summons to second of an eviction petition filed by first"v-cdeifenidantyl second defendant in HRC 1Q£ji:t3l7;'1995i}"tilt iwas contended in the suit that .i :p1a_intii'fs enquiries and found that first defendant H eviction petition as referred to above claiming himself to be the owner and depicting second idefendlant as the tenant and on enquiry with the first 'defendant they came to know that he had purchased W 16 the suit schedule property and immediately thereafterwards an application for getting themselves as parties to the eviction proceedil'lagso:vvas.'_ filed by them which application extras "the ; year 1997 and immediately present suit has been stated herein above,» it was"'conteVild_edithat' 1~8-1991 the first wife of the i.e., plaintiffs mother ceremony the second ipropierty in favour of the P1ai"Fif1"S iia23ri9;l99ila'iand confirmed the Hiba. Secoriid given consent letter to the Corporation vauthorivties. for change of khatha in favour of-ithesplaiintiffsiibyletter dated 259-1991 and confirmed thie"Hi12t1'v4id~ecl.aration has been given by the second de.fendanti':l.1itnse1f which is dated 23~9-1991 as also an affidavit' of even date and contends that the said Hiba is " ._i'n._c_onsonance with the Mohammedan Law and as such ii .,V_ti'ial Court has dismissed the suit without examining as M £7 to whether Hiba is revoked in accordance with law. He would submit, trial Court also did not examine as to whether Hiba suffers from any infirmities andV~.co.ntevnds that as per Ss. 167 of Mohammedan La.-at made, it cannot be revoked ex__ce.pt_by;a''decifee'''of:~Court' . and contends that finding of no.1 is erroneous sin§i§:Vy:._.,,£he 'trials not examined as to .-viifrom any infirmities and considered the fact that plaintiffs possession over the suit --As.(:i:Ei1edJ1:i1e f5ro'perty_"'as'ﬂ4on the date of the suit. Mr.Sih_arif by drawing the attention of the Court toi4"}~:waragria1:il'1_ ?.'''''of the written statement filed by the second defeiidant whereunder he admits execution fayour of the plaintiff of 2391991 and when such Vadrittission is there the burden is not on the Aplaintiiffs to disprove these facts since admitted facts not be proved. He would contend that when aisecond defendant has taken a contention that Hiba W 18 executed by him is revoked. The burden is on the second defendant to prove this fact and the second defendant having not proved this fact trial Cou_rt_hc.ught not to have dismissed the suit. He attention of the Court to Ex.P.2..to__sho_vvthatplossegssion» _ has been delivered and evidence the fact that 'bf plaintiffs and theygnhave He would also submitll4'th_at defendant had the suit schedule propve"rties;'to these facts clearly go to shovvlﬂthatl in possession of the suit schevdu1e"'p1jépVer"ty.A if "V A 6 He would contend that defendant No.2 has not » :pr_ovevd«.rev'ocation of gift and there has been no cross» if P.W.1 on EXs.P.2 and 13.3 and in View of the zaldrnilssion by the second defendant about the 2 iexecution of Hiba and also in view of the fact that as W 19 per Section 167 of Mahomeclan Law there is no revocation of I-Iiba, the suit ought to have beeniiecreed by the trial Court. He would submit that yvell within time and the trial Court comn1ittecl'~--a error' in answering issue No.4 by T. barred by limitation andg,c0ntendsiithat Limitation Act is attracteri:.:.to the off} the case. Since the sale and suit having been filed impleading i.e., 10-3-1997 ﬁV]§)i:ci1;iVO'(Ilii of limitation. In support' would rely upon the judglnient of: High Court in the case of Mo_h}3ool5~~K'i1a3i- aiadibthers vs. Hakim Abdul Rahim " r'eii5'oi:ted"~-i.n AIli"1'964 Rajasthan 250. i5er_v:contra Sri.B.N.Anantha Narayana, learned c»o_usne~l:viiapfpearing for first defendant would contend x that the first instance there is no gift at all as i"..V'l'recfuired under Mahomeclan law and to buttress his W 20 argument he would draw the attention of the Court to Section 123 of the Transfer of Property Act whereunder gift by transfer is defined and hastens to add ~_th.a_'t4.there is a savings clause under Section 129 Trans-sfcr_""eoi'»<_ Property Act which excludes the p~rovisio_n i f case of gift made by Mahomad:ens--l.l_g<{r1d being cast on the plaintliffsiigiito prove was valid Hiba, they hafvepgfailred fact. He would submit that are claiming that second defendantghas property and once the crelated by a document it would part t'al<e.the-- ».o.t'--~ gift and once it part takes the gift. deedlhituiibet:om.es"vcornpulsorily registerable under AReglig:t'1<ation proper duty is required to be paid Stamp Act. He would submit that ir;..__view~oflplaintiffs themselves contending that gift was A.ns1ad.ev..--:under EX.P.2 the said document is to be if 'AAv_lcon'strued as gift deed and the savings clause found in

--7:Section 129 of the Transfer of Property Act has to be Q//' 21 excluded to the present document. He would also draw the attention of the Court to contend that plaintiffs have no where stated in the plaint there was a Hib§t«..ear1ier and subsequently it is confirmed under. taking through Ex.P.2 in exten.so_._the' for the first respondent would"-

confirrnatory dec1aration'ib_u't..Vit is"in_ fact'-arrdeed by' itself.

8. He would subrriit no doubt has admitteidfinr2._ivof"the written statement about 'gift deed/Hiba and contends that written to be read in its entirety, since theiffirst defendant has denied the Hiba: and there being caiuse-_of,action for the suit by drawing attention to paragraph 9 of the written statement filed g.b;gjth¢=;i first defendant. 3 9. Mr. B.N. Anantha Narayana would contend that .. ,,_.,§\rticle 59 of the Limitation Act is attracted and suit V' 23

10. Sri.B.N.Ananthanarayana further contends that averrnents made in written statement filed by the second defendant would go to show that tl'1ere..i_fisV no valid gift--Hiba made by him in favour no possession was delivered, no separately"po1'tions_were at allotted to each of the plaintiffs defendant has revoked been made by him in favour of He would draw the attention of 3 of the plaint whereunder.-pla_inti.:ffs:'have'<«..'¢Ont'6%;'died that gift was madein "1 it goes to show that gift couldnnlot earlier to 1991. He would submit thateveh tl'1is"fact is incorrect and to drive home p-oint he draw the attention of the Court to the-- of P.W.l whereunder the witness has stated- the first time in the affidavit filed in lieu of AA exaniint'ation--in-chief stating that the gift was executed the year 1990. He would contend that the pleadings sand examination--in-chief are contrary to each other and was 24 if the pleadings are accepted the evidence is to be discarded and vice--Versa. He would submit that paragraphs 4 and 5 of the Chief examination of is contrary to plaint averrnents.

11. He would submitm is admittedly has been deliverediiioni"2.3--9--:i9§?.i:

second defendant was reisidingithieremeven as per EX.P.2 and if as stated in the affidavit is to jthere is no date of oral gift Ex.P.2 is accepted then'-._two namely:

to the pleadings and the has to be considered as gift deed .i requiringregistration and stamp duty. He would draw the Court to the contents of Ex.P.2 and byiireaiding it in extenso he would submit that contents 2 iofﬁthei said document would reveal that it is not recording of past events and recording of the present 4/ 25 events and the recitals thereof show that his right is divested on the said date and this goes to show that there is no earlier transfer as pleaded in paragra"p_h~.._4 of the exarnination in chief.

12. On this ground he if is a gift in presenti the trapping's_of-- the be there and it becomesllaxigiftgaslil the Transfer of Propertgfijpftct $iection 123 of the Transfer of Priovpeirty and hence he submits3__that»i'.theVisairl be acted upon. Z13'.«.Mr.-lq'bial._Pa.tel,¢iearned counsel appearing on behalf of"th_:eVsecondirespondent would contend that 'plaintiff has notfstated in the plaint as to which portion *sie'e.or1dv'*~defendant executed gift and it is also not st-ateciﬁ to which portion they are in possession to Hiba. He would also submit that second i fdefeindant did not seek for revocation as required under = -----i3s.l67 of Mohamedan Law since there was no valid gift é:h,/"

in the eye of law. He would also submit that__EX.P.14 namely the judgment passed in I-IRC 1Q3$'?'-{£1995 would clearly go to show that second possession of the suit scheduIe:pro_pert.y.

14. In reply to the__ coﬁt.entions'i' respondent's counsel who has contended by limitation, Mr. Shariff app.earing...fot_ /iplaintiffs to the reply by of the Limitation Act, the plaintiffs were bonaiiide__ wfong forum i.e., by filing an applicationfor'"'ii'fipleleiei.iiné in HRC 10357/1995 which appglioation e'atzieiv'toA:'be dismissed on 10-3-1997 and as namely from the date of filing fo the sppucssisis9.2-1995; till date of disposal of the pp ap;dlieeitionli.i(10--3--1997) is to be excluded. In support of tlhissubrnission he relies upon the following judgment:

d"

27

AIR 2002 SUPREME COURT 2768 Deena (dead) through L.Rs. Vs. Bharat Singh through L.Rs. and others. (paragraph 14 v1_'5.}VV" ' 2003 SCC (6) 423 Arm Group Enterprises _Ltd., :4'-[s1;'.r_Waldo:iff:' and Others. (Paragraph He would also suhrnit isxnot used in Ex.P.2. and it is a such it does not require the following judgemeggip; _ ._ ._ p .

AIR (1952 7) Assan Ravther and others Vs.Manabapara':--Chara3ril, (paragraphs 8, 9 85 10) .l also-eontends that in View of admission made by 'defendant in the written statement admitted iofthe appeal.

faets. needﬁnot be proved. Accordingly seeks for allowing % 28

15. In support of his submissions on this issue he relies upon the following judgements:

Ii)

(ii)

(iii) AIR 1974 J 85 K 59 (FB) Ghulam Ahmad Soﬁ Vs. Mohd; 1s..sic;:.z.r.;:¢;~.gez and others.

AIR 1975 AP 271 others.

AIR 1962.__AP 199."".[s .

Inspector"Crenergaﬁof'Regtstrqtion and Stamps Vs. . _ Smt. Vfaghzhappo "

' ' Law Journal 172 ht/.Iahe.ndra Apex Corporation Ltd. Vs. 'V o'5;f"vrLt'lla hand others.

MR 1974 J 65 K 59 (FB) Ghulam Ahmad Soﬁ Vs. Mohd. Sidiz Dareel and others.

We Chota Uddandu_4_Sahib,'h'Vs. 29

16. Having heard the learned advocates appearing for the parties the following points arise for my consideration:

(1) Whether there is a valid Hibq..iiiade.1'gby second defendant in favourHofi_:the"-iplairitiiis.

as per Mahomrnedan 1avv;?_

(ii) If so, is therea -v_a1idV"1*evocatie.o"1i1 by the second die'feVnd_ant?" *

(iii) Whether have been made on 23--9--1A99i'1._Vha_s to 'be construed as gift as perﬁectiion of of property Act, not fall under Savings " A of Transfer of Property Act _coin"se'guent1y requiring payment of it duty and requires Registration? '«.:Vv'hether the suit in question is governed by Agrifiicle S8 or Article 59 of the Limitation Act ~ fzand is it barred by limitation?

'A (iv). Whether the judgment and decree passed in O.S.No.4692/1997 dated 10-4-2007 is required to be affirmed or reversed? 30

(vi) To what order?

17. Re:Points 1 to 3: Point Nos.1 to herein above being inter--1inked with being taken up for consideratiioin::toget'he:r,.' 9' appreciate the contentiorzisapof 9t1*1ev.9i'parti€~s; necessary to state the ofithe:

BAcKGrzor.Iiv1§h9o1;5 99 if

18. Plaintiffs A1...,<'::.1_I§;d of second defendant." purchased the property iifformed in Sy.No.88/4 situated Kadugondanahalli dakhle, Bangaliore North "Tpa1-uikg(hereinafter referred to as the suit'scheduieproperty) under a registered sale deed dvatied1§f97_9 and was in possession and enjoyment of fact is not in dispute.

Plaintiffs contended that on 23-9-1991 their gifted the suit schedule property to them by way Hiba with deiivery of possession and also handed it/' 31 over title deeds of the suit schedule property to them and wrote a letter to the Municipal authorities' 'to:"jc1i1'=-ange the khata of suit schedule property to the 4' plaintiffs. It was contended Hiba khata of suit schedule was their names and therea_ft'erwards.__ seco";j1di'~:VV4defendant started living separately with s'e.cond vvi'fe;*'l

20. During the in HRC ijtohloelliiiserved at the suit and it is during this about said case and came had filed an eviction petition in H'.R,VC.1O:357/1995 before the Small Causes .A their father 2nd defendant herein seeking suit schedule property. Hence, an application.' was filed by them to get themselves inipleaded which came to be dismissed on 10-3-1997 immediately thereafterwards they filed the present W 32 suit on 20-6-1997 with a prayer to declare that __a1leged sale deed said to have been executed in faVG1ii'l:.:(}lﬂ"l'lA4I'St defendant by the second defendant. FINDINGS 0N Fo1g»i.Tsa'_y'ili'f°li3i A

21. It would also be neces'1saryl_lt'o looliyliinto. 123 and 129 of the Transfe-riof>Prope_1jt3;. 'under Section 129 of Transfer Actla"'gift: executed by a Mahornaden from the provisions of and consequently the proVi:éioii.s.of' Act and Registration Act vy'ou1'd liowever, if the gift deed does of exclusion clause as provided undVer..Sec"t.ion: 129 of the Transfer of Property lit gwiou-l.d autofriaticaily fall under Section 123 of the Prvoperty Act and the provisions of Stamp Act and Registration Act would automatically would get attract.ed. Hence, point No.1 to 3 are considered A A 1 ' together. 4'/g 33

22. Under the Mahornaden Law gifts haye been defined under chapter XI which is to the foIlowi11igf"~etTect:

S5. 138. Hiba or gift._,, A hiba orj ' transfer of property, made immedia-te_Eg,V"'Va7';d without any exchange, "Q p_er-sio'n' .i another, and accepted bytiorion beholfof the"< V Persons who are capable of_'ifn,ak:i.,ng gifts.._the§ extent of donor's powers are» the succeeding Sections of essential gifts to constitute.-at»v\{aiiQd;'.gift_:'1;tid_er.."tn'e Mahomaden law under Ss.14_9.. "

r ' 'thfee essentials of gift._ Itiiseessen-tiatigito validity of a gift that there 5 -- ..shouZd be if) ah'-declaration of gift in y the donor, it an acceptance of the gift, express or implied, V' " 1 ---behalf of the donee, and (3) delivery of possessiion of the subject of the gift by the d.Cinor:'to the donee as mentioned in sec.J50. If "these conditions are complied with, the gift is " it completeﬂc) %"

34

If the gift is made in favour of more than one person that is where donees are more than one it covered by Ss. 161 of the Mahomaden 4_ as under:

"Ss 161. Gift to two or1imo:&e'r'do1neés.iitA of property which isv'capzableic3f: dii3is9iori{__tc-..t1.:}o or more persons withoii1t"sxpccyFying efhares or without dividing may be rendered valid is taken by each_*donee"of property given" thefre' subsequent cilii the donees with oregardiig the property gifted. to the case mentioned in t-he"third_ to sec. 160{h), nor, it is conceived; "to the cases mentioned in the other ﬂ. ..... -4 what circumstances the gift can be revo'keciiA.:_is.:V enumerated in S3. 167 which reads as I [_'~uVrider:

"S5. 167. Revocation of gifts. (1) A gift may be revoked by the donor at any time before 35 delivery of possession. The reason is that before delivery there is no completed gift at. (2) Subject to the provisions of sub--sec._(f¥"',' it may be revoked even after deiiver-Ag. of T' possession except in the foilowing -eases; it A

(a) when the gﬁ is made 'a btiiusbandftoyV75.A his wg°e or by ivzfe to her hiisband:

(b) when the donee_'_'is'»vretanted.to.theVA,,donor within theﬁro hibitedu CZ-eg.rees,' {c; wh;env__the;do'nee; cieadf

(d) given' has" passed out of _V sale (e), gift or " iAot9herii'Qise',' ' ' »

(e) given is lost or destroyed;

thing given has increased in .:value, whatever be the cause of the 2 " increase 0');

(gig. " "iuhen the thing given is so changed that it cannot be identified, as when wheat is converted into ﬂour by grinding (g); 3?"

(h) when the donor has received something in exchange (iwaz) for the gift {seeWse_cs.._' 168 and 169).

(3) A gift may be revoked by the not if by his heirs after his death 'It law that will apply to a revocation not b' of the donee (i).

{4} Once possession .is'"de.li'i-ered, nothing short of a decree of to revoke the gift. .Neithe:r"a" owrevocation by the donioi§}nor.veve€nlithe'institution of a suit for resiimiiig. to revoke the gift.

.i«Uifttili.iii:ydeci?e'e 'is_passe'd,"kthe donee is entitled '.130 use as ciispsss's,£ the subject of the gift[j). "

TIaA:hﬁSFER""OE he open TY ACT, 1 882 $.s.123.frdnsfer how effected: For the of making a gift of irnmoveable the transfer must be effected by a registered instrument signed by or on behalf of zthte donor, and attested by at least two witnesses.

For the purpose of making a gift of rnoveable property, the transfer may be %"

37

effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same-'--.,_y way as goods sold may be delivered, Ss.129. Saving of dOn(1tiOI'1.~5--.V.A4lf:l'fit£;§VT"Atfi::'.§ T causa and Muhammadan;;£dw:g this Chapter relates to property made in conteVrf;p_latio7i:_of shall be deemed to ariywrtileifi of Muhammadari

23. In Claims in the suit that onbithei 4091 day ceremony of their Inotherl seeondi"de'fendant made Hiba in their favouﬁ, Qi'dei.'-- ascertain as to what was the .°eon't*enti'on "of the filaiintiffs at the first instance it would look into Ex.P.1-4 namely the certified co1o'y._0fv__theVii.order sheet in H.R.C.10357/ 1995 since it is Jtheii" contention that they became aware of sale deed e.'_ief§Vv;Veci;1:ted by 2nd defendant in favour of 15? defendant if "only at that point of time. It is the claim of the plaintiffs if 38 that when Court process server attempted to serve the summons in the said I-{RC case on their father i.e., second defendant showing the address of suitvppscphedule property as his place of residence they about the pendency of the said stilt eviction: petition second defendant having eX'ecu:ted:' salheei 28--2--1994 EX.D.2 in favciiit'---.of thefirst application for impleading..i:il¢&iIr1e_p toi.ibe.:v._disr3nissed on 10.3.1997 as per -application under Order 1 Rule_:10__ of «.:l;cii'i*oicedure had been meeey _ oni"_9¥2i--i1996 as seen from the ordersheet / 1995 as per EXP. 14.

5- .. ._pe1*Li'sal'-of"l§3x.P.2 namely declaration of Hiba .V(io'rialE"-lflib'a_)A' wotilidiiireﬂect that declarant therein namely has stated to the following effect. _ if A "This declaration of HIBANAMA is i' vexecuted to transfer the right of ownership over the same in favour of my two sons mentioned above." V 39 "AND NOW WHEREAS I further decigir-e that, I am out of lover and affection forward to effect this Hibanama tn faigoitrhl ' two sons, to enable them to enjoy_--the.: 9' jointly in equal share." y 9 _ "I declare that, my above, have also this igivejn their consent for the executtion of thisl_l_D_eeo3'. "

"1 funherllildeelarev 'y-ir'tue of this Hibanarnav my""i'wo so.ns_'haizehubeen put in posseslsiognh '_.r.-ff bthits 9' "and they have actLEalll3V;""gotfitlliftgvht' day onwards to in lhtolhatever manner they I have absolutely no objection. "' _ V'

25. The foiiiﬂrlidation of gift having been made by lZVi1_\'i'!1;f tatheifi-$'«:~'iaid in the plaint by the plaintiff's and reIe.Var;i:' pleading is at paragraph 3 which reads as 1_,11v1de1'f*~' 9 if "On 23-9-1991, the second defendant gifted the schedule property to the plaintiff by way ﬁt"

40

of Hibba with possession of the schedule property to the plaintiffs and handed over the connxected title documents to the plaintiﬁs and alsoAV..uirotee-litoiythe concerned authority to change over the' name of the plaintiffs. Copies Q__f°Hib't5.a ' f letter enclosed as Annexu.res:_-'EA'. 235it'C:res_,*iect'i1ge'iy_.'"

(Emphasis supplied by it A i

26. As against this pieadring that has been tendered by thije"'seco'nd_ as P.HWV.1 is to the following effect: V _ 9 "I 1990, our ;foif--.-.secof:1d-:»'marriage with one started living with 'her __ He used to visit our house also.' . At~.Atiiat:.4i:tiirze our father Gifted the , _aboi)e progaerty to me and my brother ;_vay""'o_f'--.------0ral Hibba and adviced us to cﬁAoAllect"t.he rents from the Tenants of the shops. 3 "brother used to collect the rents."

V T (Emphasis supplied by me) These '*ti1ree are to be read together namely Hiba, vpie--ading and the evidence to examine as to whether it er"

would constitute a vaiid gift as required___ under Mahomaden Law.

27. A gift by a Mahomaden can orailvpiori written. In the instant case the p.14a1jntisffs.'claim-».eint.the 9 suit that on 23-94991 the-psecofndhf'defen.d'ant:<giifte;duthe1 suit schedule property to of Hiba. On the day of decIara:tion pert Ex.P.2 an affidavit also .V_came.t'~-to. the second be marked as per Ex.P.3_,mI:n~. which is at Ex.P.3 a "which reads: "In lieu of my oral that there was an oral rnade: recitals in E)x.P.2 reﬂects that .9 Vjdeclarationipffhas been made under Ex.P.2 on 23-9-1991 ;'tE:'iss1=vdeclaration of HIBANAMA" which means that had been executed prior to the execution itself. A conclusion is supported by virtue of admission rnade by second plaintiff in his exarninationwinwchief A/' 42 itself wherein P.W.1 states that at the time of the second marriage of his father (second defendant) during the year 1990 he made oral Hiba. If the oral Hiba_ha_d_:b--een made by 2nd defendant in the year 1990.,as a bymemamanumummmmsmsmaﬁawamﬂmﬁb7 found a place in Ex.P.12. It the other hand declaratiioziras oer,Ex.,l9;_,2iil:"ret1'ects as though Hibanamvcvsg is the ownership on the and gift was not in 'y.ear-If 199:0 by the second pmmﬁawgﬁﬁggmﬁamnnmmznmwwm clearly'go-- is inconsistency between the p.leadir'1g_s evidence on record. Thus, exact date if becomes a doubtful event. Even of examination--in--chief P.W.1 states that expired on 1-8-1991 and after the 40th day ..cerern'ony the second defendant made an affidavit i'"._corrfirming the earlier oral Hiba. Thus, if pleadings are " "accepted, evidence tendered by the plaintiff would get a\""

43

erased and if evidence tendered by P.W.1 is to be accepted pleadings would recede to the background. In conclusion it can be said that pleadings'...Van_:d~.i_ the evidence are at variance and they do nc_.»--t:__ go' hand. V g

28. Under Section 123 of thgg.l15raI*1sifei1*'--.g§f'lﬁtoperty A' Act gift is defined as to 'What vvioulid Vcon';sitif'LL3.teVV a valid' gift. Section 129_ of th_e_i:ii"'Tran_sfer"' Property Act excludes gifts rI1adi(§~r',1,»95'/g If the gift is not in accordance with " " consequently Section--_123 into play and the provisions of the relevant' and Registration Act would also ge1i.att1'acted." wIn____t_h_e instant case a defence has been set ' that there is no valid gift and even otherwise there i 'oeenj*j_re'i}ocation of the Gift as per Ss. 161 and 167 ofiihlahioinaden law. In the instant case, plaintiff has to out that there is a valid gift or Hiba. No doubt in lgparagraph 3 of the written statement first defendant has 4/ 44 admitted about Hiba. However, at paragraph 4 it has been denied. To constitute a valid gift under Mahomedan Law three essential ingredients Ss. 149 of Mohammedan Law are to be sati_sfl.ed':' are as follows:

(i) Declaration of gift the Donor."

(ii) Acceptance of lthe;-w..gift,A'expressv-,oi9..irr1plied, by' or on behalf ofgthelclonee; anlci~...,.

(iii) Delivery oflpossessiolijfgfeiitiie subject of the tlftel donee as mentioned ssss 9 jtt; seetto"ni'e5o.

If these .conditi'orilsv«..l_:are..--~ fulﬁlled the gift would be com_plete9.'"'~ .o1'fdeii to" examine this issue it would be A. tohave a look at Ex.P.2 namely the "decia:r:ationHiba. A reading of Ex.P.2 would reveal that declaration of Hibanarna is made on AA23w9L1§'91. p.w.1 has stated in his evidence that V."l'.,,gift:?5was made in the year 1990 at paragraph 4 of the V. .,...eXamination--in--chief. It has been stated that in the W 46

29. l\/Ir.Shariff would contend that revocation of gift is not in accordance with Mahomedan law as required under Section 167 for the reasonVV.th;at_V the possession of the property in question 'been delivered to the donee namely the plain'tif:fj~_as'=requii-led,he-_ under Section 160 of the Maho»:nedari' lavv alndliii::'''vie'w':of . the fact that there is revocation would not tithe same contention of Mr.Sl'1'§;-llifl as pleaded is not in accordance accepted.

it would not reﬂect that it is recordingvvof'alllpastilevent. It reflects as acts done in presénti. Even on the date of execution of Ex.P.2 » ;secVonVd~.de_fendant was in possession of suit schedule '<p.roipertyi;'pj~-- if-nce it is held possession in presenti and it is a transaction recording a past event and the gift in" question would not come within the exclusion clause inf Section 129 but would fall within the inclusion clause W 47 of Section 123 of the Transfer of Property Act. ___Hence, the document Ex.P--2 would become coinpu-l.so.ri1y registerable and appropriate Stamp duty" 4' provisions of the Karnataka Stamp.Act'_:is A "

paid. Even otherwise no witnes'ses..A.vvho affixed their signature Vto.:Vy:'y:"I{ibananj1a._at are"

examined as required' the Indian Evidence Act. At be relevant to analyse the learned counsel for the dee'feri(i-a:i1t'i3V'Sri;'i3'ji-:i;I';'A._riantyhaNarayana. which are as under: 'ii p ti A 2 ('ii A' Am 5: 59 (PB) Soﬁ Vs. Mohd. Sidiz Dareel artd..otherf.s.

Ahmad's case it has been held that vvhe'n contemporaneous document is executed the gift in that 'case or the instrument would require to be 'lirejgistered as per Section 17 of the Registration Act. fifhus the gift has to be antecedent Act. Then only the at"

Registration Act would not be applicable since it does not created make or transfer the ownership from the executant to the person in whose favour it is"

in the instant case a perusal of Ex.P.2 wou..1dmre§<ea1:' transfer of ownership has taken p1ace':::'_fgnde_1*.V document and it is a right in:'pre'_.Serttiii'created executant in favour of the __d"o.neesi." The releV_va1'1tc1ause' V in Ex.P.2 reads as under:

"This declaration 'of Vexe cuted to transfer the rightvof'voW:nership$o'ver the same in favcauriof "sons .rn'en't--i--o'ned above"

Henceit__has to.'b'eA'he'i'dTtii.at the ratio iaid down in this cas»{:'ivs_app.iica'xb1e' toiithe facts of the present case to hold Ex.P.2 is not a document of confirming a1i'__antec'e,dewn'tw "act.

"qr;-:j* AIR 1975 AP 271 Chota Uddandu Sahib, Vs. Masthan Bi and W others.

" V' _ lawf' ' 49 In Chota Uddandu's case at paragraph it has been held that if there is a contemporaneous.'daeurnent it shouid be registered and if the gift is the debt is subsequent mere1y__éevideneiing p"astf transaction it does not required does not by itself make <5ir.,:;t:ionf1p1e'te__theVgift:;:VV4"'H'o§szever,'L in the instant case,-the '1<1,irr1s'eﬂIf"eontends and assert that under made and as such has prayer and thus it cannot' it reflects the past dthevfsame the Hiba Ex.P.2 claimed this instrument cannot be held ais"~aV_'gi:ft 'asi'e0n'temp1ated under the Mohamedan

- 1952 AP 199 . 'ifrispector General of Registration and Stamps hi it Vs. Smt. Tayappa Begum.

In I.G.of Regns & Stamps, the very same issue i "nameiy as to when a gift by a Mahomedan Wouid W/.

50 constitute a valid gift came to analysed and was held as follows:

"Para 8. The main test to be ~ these cases is whether thefpdrtiers regarded the instrumeht and appropriate . «.

transaction. Was' T " intenhded to 1 the gift or was it to1"se;rue_ as 'a of a past euent?;::1f'it ,.vfnepmorahdtzm of the things azamyttgansgctegand did not embody the ' .:re§iste'red"'document is nee_es.'3:a.ry. 3.' ' A 2 twp; ' 3 *'V199s_(2)j Law Journal 172 'A Apex Corporation Ltd. Vs. Jajratla others.

__Mahendra Apex Corporation Ltd. 's case of the Andhra Pradesh High Court re'ttersted as to when the document would become xcodmpuhlhsorily registrabie and not when an instrument tecords 3. past transaction. In the instant case the M"

51

right, title and interest of the second defendant has been reflected by him under Ex.P.2 and as such it becomes a compulsorily registrable document'--ﬁnder Section 17 of the Registration Act.

31. IVIr.Shariff would it admission made by the seconld-cd'efendant::in wfritteng statement at paragraph 3l"'adn*1it_ting" of Hiba the written statemenﬂt"~will"iiha§re:«toi_Tbep loolced into as a Whole. In this regarAdV_i't».woVnld hevhlnecelssaiy to extract the judgrnentésl afe "as

(i) A112¢%'%1i986 comer 1509 Neath' Pandey {dead by L.Rs.}, Vs. Suresh {Jhalndra Bhdttasali (dead) by L.Rs.} % it plea was however negatived by the A High_C?ourt at it has never been taken when the case was remanded to the First Appellate Court it judgment dated 8th Feb.1961. Besides the 'A question requires investigation into certain facts which was not possible in the Second Appeal. A"

The High Court however reversed the ﬁnding of the First Appellate Court on the question of limitation relying on the so--called admission..:of_V the defendant in the written statement evidence of the witnesses produced OTL'A.l:lff.7l'eh:C1.l_'}":i'l)f it the defendant. Virtually, _the.__Hig_h""Cov[7tl.ll1(i§' made a fresh appraisal ofitvhe gevidelnce-.and':3 it come to a diﬁerent; ﬁ_nding.hcontra_.ryV.. th§'.,.. ﬁnding recorded by t?'lse::"}?'irst. which the High. Court' notﬂdclo the exercise of powerl:rl'u.nderff-S.l'OVQ .of--..the Civil P. C. Even on 'had to rely upon t'hé};..:alIeged€g the written be taken as a

-perrnissible to rely on a part of t_he_adntissio:ri"«--igrioring the other. The High _Court; inrohuriopinion, has erred in making a appraisal of the evidence to come to a !1lifferenvt__ conclusion. Even otherwise, the to stand on his own strength. "

(ii) is 'li.AI1§ 1971 sc 1542 V"'Chikkam Koteswara Rao Vs. Chikkam Subbarao %5 and others.

" It is clear from the judgment of the High Court that but for the aforementioned statement of the appellant, the High Court would not have disturbed the ﬁnding of the trial regards the properties covered by Before the right of a party can be it have been defeated oni; the" basis alleqed admission by him,' of the statement made "be clear and conclusive;'fifhere he no doubt or anzhiqyitu the Vuuaulvvleqed admission. There the nature of the acauis_itio;ns"m'ade: to B~5 and that: :fp'L£ttol:(§l";lExh.B.5. They tigers' the ly'"etime of Reddinaidu.

(i) by the I-Ion'b1e Apex Court that admis.sio.n in the---written statement must be taken as a V "is impermissible to rely upon a part of the ignoring the other. Though in paragraph 3 of written statement defendant No.2 has admitted the execution of Hiba on 23-9-1991 in the succeeding paragraphs it has been stated as to Why the M 54 Hiba is invalid and as to Why he invoked or revoked the Hiba. Hence, the contention of Mr.Shariff that admitted facts need not be proved, principle would..Vi_inioit.V_ be applicable to the facts of the present case.

(11) In Chikkam Koteswara h.aeestc eater Hon'b1e Supreme Court, has admission Vis~a--vis oi "the while interpreting the sarr;eiii:c.has'--~..hel.d lithatadmissions must be clear in conclusive and there should '_o.r anitbiguity and only in laldmvission can be taken into .-instant case defendant No.2 hguri,ng he had executed a Hiba on heedehied that there is a valid Hiba in the In Vi€W of the same, it cannot be held that admission is clear and unequivocal.

32. It would also be necessary to note that more marking of the documents would not dispense with the M 55 proof of the documents or contents thereof and the I-Ionfbie Supreme Court in the case of Sait V.Teu.rajee Khimchand 85 Others V/ s Yelamarti reported in AIR 1971 SC1865 has held as T " The plaintiffs wanted to jrely'o«n_ and A43, the day book respectively. The plaintiffs dict» not i books. There is no reference_VV to books in the judgments. . m;ere oflainﬂexhibit does not dispense documents. It is commonplace"to"sa:yV_tha»t_the negative cannot be proVi}ed.;fThe., qf.vtlf.e" plaintiffs' books of §ieeoa'n.tfbeetifrnefimportantklbyecause the plaintiffs' a'c._eozl_nts: and falsiﬁed by the defe'n._a7ants"_oa--seof larger payments than those _;'ad.mittecl. the plaintiﬂs. The irresistible AV "¢'rtfereooe meet that the plaintiffs books would V Vt supported the plaintiffs."

In_":'view--ot"lthe above, I am of the considered view that"p_o~int Nos. 1 to 3 has to be held in favour of the respondent and agaisnt the appellant. ;_"i"rescissio;n_ of a _____ _. or decree contract. , cancelled or set 56

33. Re:Point No.4: The learned counsel for the appellant has contended that the suit is goVerne_d.___by Article 58 of the Limitation Act whereas the counsel for the respondent has contended that ii is governed by Article 59 of the T;;irnitatic.n two Articles are extracted herein beloiiv'--:_V_i. THE LIMITATI0'i'%io:.:1&€T,V1963'-of Description of Period' -93%'! ~»_i'I'_ime from suit lAiwmvi,tatieo1;a_ A eiwhich period " hifbegins to run 1 to 574.. ~. 3 :3 XXXX

58. To obxtai_nj_ ii if ._ A A 3. When the right to any -------- .Qti:er'*;, Three years" sue first accrues.

declaration. _ v;'_#_V__ " ' _ _'

59. To 'earlcel or When the facts set aside » an» ,_ A entitling the instrument or " " plaintiff to have decree{or,for tlieﬂw Three years the instrument aside or the contract V 3 rescinded first '-- A "' 4' become known to A ' " if him.

i_'_e.'_{r1"._the":instant case plaintiff has pleaded that cause of if faction for the suit arose When on 2349-1991 the date of ye 57 Hiba and on subsequent dates when the khata of suit schedule property was transferred to their names and also on 10-3-1997 when application for implieading in H.R.C.10357/1995 was rejected by the Causes. Certain undisputed dates which:arei"'ret:;uired'._i'--.. to be noted for the purpose ofi:'exafrni.tiiation~ol' would be as follows: K p i i ' V i 2 V i

(i) 23-9-199;» DateidfiHi1ia.iil "

(ii) from second to selling the suit ' as aiP5°P€f#§i¥ i V9'-2.-'i:f:9i*'.i3i(i_'a":-:+:_:':"i:A. ﬁied by plaintiffs under order Rule 10 C.P.C. filed in H.i1é.Cs.1\Ie.1o357/ 1995.

LA. for impieading filed in ii.R.c.10357/1995 was dismissed.

" -M 20~6~1997:- Present suit filed. Q/.

58

34. In so far as suits relating to declaration is governed by Part HI of the Schedule to Limitation Act, 1963. Article 58 stipulates three years of limitation to obtain any other declaration__an'd-«i..it..:vv0~uld begin to run when the right to sue firs.t"accrue's. "In , instant case sale deed Ex.D.1 'has"beenliceﬁcecutéﬁjyyezthe second defendant in fav*(3mv_V.. of the firWi.:lld'e_fenVdantl 28-2--1994 which plaintiff.'.sl:"c.lairn ai's"«ncii11_7and void. Thus, it would be tolei.':e§;:ai=nine as to when plaintiffs carcie»._to father having sold the tolltheA.l.:l_'first"_llVdefendant. In the cross- exarnination' o_f'iP.W'.*~1i:p:"dated 20-92005 plaintiff admits that in the 199¥§..itself he came to know about his having the property to the first defendant. p ad'I--niss'ion reads as under:

_ if A "In the year 1994, I came to know that if any father sold the schedule property to the first defendant"

Thus, when the plaintiff does not specify either in the pleading or in his evidence as to the exact date on which W 59 he came to know about the sale made by the second defendant in favour of the first defendant it inferred from facts that as on the date of ~ the sale deed itself piaintiff was aware of if Sale deed in respect of suit schelduie be executed by 2nd defendant.:v:i'n_Mfavour of devferidfant 0' on 28 /2 / 1994 and suit...ought***to"e_:1aav-3.'beenﬁled Within three (3) years from of sale deed, i.e, on or before 2:3 has been filed on 26-9-1997 it-a s: .bi;:0:i~ed by iirnitation. of the Limitation Act, the right to seek devcliarationiiiwould accrue when the right to sue iaccrues-... the instant case, the plaintiff No.2 i":_Vi».e;.','-» cross--eXa:mination dated 20--9»2005 ihieivcame to know about sale in 1994 itself. 'Thus; iztiiilwould emerge that right of the plaintiff to sue if defendants accrued in the year 1994. Plaintiff has .___""neither stated in the present suit or in his examination- are 60 inmchief as to the exact date of his knowledge namely, the date on which he came to know about execution of the sale deed. Thus, it is to be presumed of knowledge is the date of execution of is a registered document. Though in » in--chief he contends that only:ii'wh7'e_n attempted to serve No.' 10357 / 1995 in 199'?_.enqpuirieis:were he came to know about the his father in favour of thefirst such knowledge is to be 1997 same cannot be accepied'* since,'.y_.;1imself admits in the cross- examination as extracted herein above that he came to i .pl<iiI1oV\}\."g.bout theiiexecution of the sale deed by his father iiofdfirst defendant in 1994, plaintiff ought to have expliained this admission. In View of the same A. not "having been explained, the trial court Kiwas justified in arriving at a conclusion that suit "Twas barred by limitation. On reappreciation of evidence a«' 61 and the contention raised by the parties, I am not inclined to take a different View from the one taken by the trial Court.

36. Though Mr.Shariff would contend of the Limitation Act would ha\"emapp«licationfpsincie' 9 T a bonafide belief plaintiffs Court in HRC.No. 10357 by V. ﬁ~1ir;g+ ;;.niiiVf'aj;;§j;5'1i'{:atiof1i for impleading '_get_ti'1\{gt between 9-2-1996 to to be excluded, this Court i.n"clir:ecl to' acceptihe said contention prosecuting a right claim before a the other hand they were ""thVe_ir_:right for being impleaded in the , 4:sfe'vicAtio'nproceedings on the ground that they possessed by their father in respect of suit if Hence, the decisions relied upon by the leiarned counsel for the appellants in this regard would iﬁbe inapplicable to the facts of the case. Accordingly on W 62 point No. 4 it is to be held that suit was barred by limitation under Article 58 of Limitation Act,

37. Re:Po:int No.5.:. The tr.i~aE.--l.:jCourt«._has"~ considered the evidence placed entirety and while answering issue No.1 that plaintiffs were unable 1 are the absolute owners of and has answered the same in_.th:e herein above while 3 and on re-

appreciatioln,ollentire t1:'li?isllCourt has come to a conclusion! 1 «yield by the trial Court in negativelreqluiresV.td«l:.'be:.lliiaffirrned in View of points 1 to 4 herein' being lanswelred' in favour of the respondents and tithe" A~.appelVlant plaintiffs and in View of the herein above, I am of the considered view": that»; judgment and decree passed in does not suffer from any infirmity ﬁx' 63 either on facts or in law whatsoever and same deserves to be confirmed and accordingly it is confirmed,'

38. In View of the above discussion...fO.i_}'gwing«ordpgl-._\ is passed. ' Appeal is dismissed. decrieie passed in O.S.No.4692/199?';:dated_ﬁi1Qp;;da1§t§:? Joy VII Additional City Civil Judge, Banga1o;=e confirmed. No order peculiar facts and _ also considering the relationship-Add "defendant and plaintiffs being thatajof Registry to draw the declfeie 'accordingly, _ Sa/5 Tudcfé i«Vsbb/?itasti

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Karnataka High Court