Indian Kanoon - Search engine for Indian Law

"1. Without proving the alleged oral gift, whether the unregistered declaration deed will confer any title upon the plaintiff through Ex.A-1?

2. Whether the oral gift can be relied upon in pursuance of the Declaration Deed, dated 03.03.1994, when the witnesses of the alleged oral gift was not examined?

3. When late Kider Fathima Thayar, the vendor of the plaintiff deposed in the previous suit that possession was not given in pursuance of the alleged oral gift, whether the plaintiff can claim title in pursuance of the same?"

(v) The declaration deed, dated 03.03.1994, is a fabricated document brought into existence for the purpose of the suit. In any event, this document will not prove gift of suit property by the defendant to his mother.

(vi) The evidence given by Smt.Kider Fathima Thayar in O.S.No.29 of 1997 will prove that the settlement executed by her has not been cancelled and that the declaration deed, dated 03.03.1991, was not executed by the defendant.

(vii) The settlement deed executed by the defendant's mother can be cancelled only by another registered document.

8. The plaintiff claims title to the suit property by virtue of Ex.A-1 sale deed, dated 08.11.1996. This sale deed has been executed by Smt.Kider Fathima Nachiyar. In respect of the very same property, she has executed a settlement deed, dated 28.08.1986, under Ex.B-2. When the defendant's mother has executed a settlement deed in his favour during 1986, the question is how the sale deed came to be executed in favour of the plaintiff during 1996 in respect of the same property. The answer of the plaintiff is that the defendant's mother, i.e., the plaintiff's grandmother, got the property back from the defendant, by virtue of the oral gift, which is acknowledged / declared under Ex.A-2, declaration deed. This declaration deed has been mentioned in the sale deed, dated 08.11.1996. But the execution and the validity of the declaration deed is challenged by the defendant as invalid. But the contention of the plaintiff is that the execution and validity of Ex.A-2, declaration deed, has been finally decided in O.S.No.29 of 1997 (A.S.No.298 of 1997 and S.A.No.728 of 1999) and therefore, it is not open to the defendant to challenge the validity of Ex.A-2 declaration deed. According to the plaintiff, the validity of Ex.A-2 declaration deed has been upheld right from the District Munsif Court and up to the High Court and therefore, the issue regarding that would be barred by res judicata.

8.10. In fact, the pleadings and the issues are the most important aspect to be considered when the issue of res judicata is raised. The pleadings and the issues of the previous proceedings are not filed. The only document filed is the judgment of this Court in the second appeal.

9. Learned counsel for the appellant contended that it is not the validity of the declaration deed that is under the challenge, but the oral gift, as is said to have been spoken to in the declaration deed that remains unproved. Further contention is that when the execution of declaration deed itself is denied by the defendant / appellant, then the plaintiff cannot take shelter under Ex.A-2 declaration deed. Contending that conditions of oral gift are neither available nor proved, the learned counsel for the appellant relied upon the following decisions:-