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1 - 5 of 5 (0.19 seconds)Mahjibhai Mohanbhai Barot vs Patel Manibhai Gokalbhai & Ors on 11 December, 1964
In Mahjibhai v.
Manibhai (1), this Court by a majority held that an'
:application for restitution under s. 144 of the code of
Civil Procedure is an application for execution of a decree.
The principle of res judicata applies to execution
proceedings. it follows that Khodaija is not bound by the
decree in Title Suit No. 127 of 1939 :and is entitled to re-
agitate all the questions in issue in that suit.
The appellant must, therefore, establish his title to the
land. He claims that after the preliminary decree Najma
orally gave
(1) [1965] 2 S. C. R. 436.
Mohammad Abdul Ghani Khan vs Fakhr Jahan Begam on 21 March, 1922
Mullick Abdool Guffoor And Anr. vs Muleka And Ors. on 22 July, 1884
"Gifts are rendered valid by tender,
acceptance and' seisin.-Tender and acceptance
are necessary because a gift is a contract,
and tender and acceptance are requisite in the
formation of all contracts; and seisin is
necessary in order to establish a right of
property in the gift, because a right of
property, according to our doctors, is not
established in the thing given merely by means
of the contract, without seisin." [See
Hamilton's Hedaya (Grady's Edn), p. 482]
Previously, the rule of law was thought to be so strict that
it was said that land in the possession of a usurper (or
wrongdoer) .,or of a lessee or a mortgagee cannot be given
away, see Dorrul Mokhtar, Book on Gift, p. 635 cited in
Mullic Abdool Guffoor V. Muleka (1). But the view now
prevails that there can be a valid :gift of property in the
possession of a lessee or, a mortgagee and a .gift may be
sufficiently made by delivering constructive possession of
the property to the donee. Some authorities still take the
view that a property in the possession of a usurper cannot
be given away, but this view appears to us to be too rigid.
The donor may lawfully make a gift of a property in the
possession of a trespasser. 'Such a gift is valid, provided
the donor either obtains and gives possession of the
property to the donee or does all that he can to put it
within the power of the donee to obtain possession.
The Code of Civil Procedure, 1908
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