JUDGMENT

K. RAMASWAMY, J. :—Syed Ismail and Ibrahim, sons of Magdoom, Panchamale filed O. S. No. 28 of 1965, impleading their parents and appellant/purchaser, for possession of the suit lands and for mesne profits from the appellant. The averments made in support thereof are that their father had executed a gift deed bequeathing 15 acres 38 gunthas out of 31 acres 36 gunthas in Survey No. 781 of Aland village, jointly in their favour and their mother Smt. Chandi, third defendant, who in her turn, orally gifted over her share to Syed Ismail in April, 1958 at the time of his marriage. Being minors, their father second defendant, while cultivating the lands on their behalf, and colluded with the Patwari and executed sale deed Ex-D-1 in favour of the appellant. On their becoming aware of the same, they filed the suit since their father had no right, title and interest therein to alienate the lands. The sales, therefore, in favour of the appellant were invalid, inoperative and do not bind them. The appellant pleaded that Maqdoom had entered into an agreement of sale under Ex. D-22 on April 12, 1961 to sell 12 acres of land for valuable consideration and had executed the sale deed, Ex D-1 dated May 12, 1961, to discharge antecedent debts. Similarly an agreement of sale of 4 acres of land for 2,500/- was executed and the appellant had obtained permission from the Assistant Commissioner on August 4, 1964 for sale thereof. When he and Smt. Chandi refused to execute the sale deed, he filed OS No. 4/1 of 1966 for specific performance which was decreed on contest and the sale deed Ex. D-3 was executed and registered by the court. Their parents had not given any gifts which were set up only to defraud the appellant. It was brought out at the trial that in OS No. 3/1/1951 filed by one Ismail on the foot of a possessory mortgage, the executability of another decree obtained by another creditor, was impugned, wherein by judgment and decree dated September 24, 1951, the Court held that Maqdoom had jointly gifted the lands to the respondents and their mother by a registered gift deed.

2. The aforesaid finding was pleaded to operate as res judicata against the appellant. As a preliminary issue, the trial court held that the decree in OS No. 3/1/1951 does not operate as res judicata but decreed the suit on merit. In R. A. No. 211/1970, the Additional Civil Judge, Gulbarga reversed the decree and dismissed the suit holding that Maqdoom as an owner had alienated the property. His name continued to be the owner in revenue records till it was mutated in the name of the appellants after his purchase. Neither the original nor certified copy of the gift deed alleged to have been executed by Maqdoom was filed. A letter of the Sub-Registrar to show its loss filed in the appeal cannot be used as evidence of execution of the gift over. The mother cannot act as a property guardian when the father is alive. The oral gift by the mother to the respondents was false as neither acceptance of the gift nor delivery of possession of the lands either by the father or the mother was proved. It was not proved that the father or any one had acted as guardian when Smt. Chandi gifted her undivided share to the first respondent nor any proof of taking possession from the wife under the oral gift deed. The alleged gifts, therefore, were not proved, nor valid in law. Maqdoom, was a chronic debtor and to defraud the creditors, he set up false plea of gifts in favour of his children and wife or spurious mortgages in favour of third party. Before the appellate court, the decree in OS No. 3/1/1951 was not pressed into service as res judicata to sustain the decree of the trial court.

3. The High Court without disturbing any of the findings of facts recorded by the appellate court, reversed the judgment solely on the finding that the decree in OS No. 3/1/1951 operates as res judicata, as the parents and the respondents are co-defendants in that suit and, therefore, it would operate