The absence of essential elements for a valid gift deed under Mohammedan law led to the dismissal of the suit due to limitations.

JUDGMENT :

C M JOSHI, J.

The plaintiff in O.S.No.49/2003 is before this Court assailing the reversal of the judgment of the Trial Court by the First Appellate Court in R.A.No.86/2007 dated 17.10.2008. 2. The factual matrix of the case that is relevant for the purpose of this appeal is summarized as below:

(a) The plaintiff/appellant herein sought the following reliefs in the suit:

“XIV. The Plaintiff, therefore, prays that the Honourable Court be pleased to pass the Decree in favour of the Plaintiff and against the Defendant:

(a) declaring the title -absolute ownership of the Plaintiff to the Plaint Schedule described house;

(b) consequentially directing the Defendant to deliver the vacant possession of the Plaint Schedule described house to the Plaintiff;

(c) granting costs of the suit; and

(d) granting such other relief or reliefs as the Honourable Court may deem fit and necessary in the circumstances of the Case.”

(b) It is the case of the plaintiff that he is the absolute owner of the suit schedule property bearing Door No.168 situated at 9^th ward in Hospet. The plaint avers that the defendant is the plaintiff’s sister’s husband and the plaintiff has married the sister of the defendant. For some years, both the plaintiff and the defendant were in the business of coconuts. The defendant had settled down in Hiriyuru for few years for procuring coconuts. He had rented a house and later he purchased the said house. The defendant used to procure the coconuts and dispatch them as per the plaintiff's instructions to the northern part of Karnataka.

(c) In the end of the year 1990, the plaintiff left for North Karnataka along with his family members for developing the coconut business. When the plaintiff returned after few months, the defendant had forcibly occupied the suit house and prevented the plaintiff and his family from entering the house. When questioned his high handedly, the defendant claimed the ownership over the suit house contending that the plaintiff had executed a gift deed in his favour. The plaintiff was surprised since he had at no point of time had executed any such gift deed. On demand to show the original deed, the defendant stating that the original had been lost and he has only a copy, showed the same.

(d) The plaintiff got suspicious and felt that the defendant had fabricated the said gift deed.

(e) In view of the relationship, the plaintiff did not force the defendant to vacate the suit house and later the plaintiff complained about the defendant's high handed act of trespass to the elders of the community who advised the defendant to vacate and settle the matter. The plaint avers that lot of time was spent by elders in making efforts to settle the matter. Finally, the defendant adamantly refused to deliver the possession of the suit house in favour of the plaintiff.

(f) It was further alleged that the gift in favour of the defendant is not in accordance with the principles of the Mohammedan Law and therefore, finding no other alternative and efficacious remedy, the plaintiff approached the Court seeking a declaration of his title over the suit schedule property and also for possession of the said property.

3. In pursuance to the suit summons, the defendant appeared and filed his written statement.

(a) The defendant admitted the relationship between the plaintiff and the defendant but however, he denied all the contentions of the plaintiff. The defendant contended that plaintiff has executed the registered gift deed on 12.02.1969 and as such, the plaintiff has lost his right over the suit schedule property. The defendant denied the allegation of the plaintiff regarding forcible occupation of the suit house and that an effort was made by the plaintiff for amicable settlement with the help of the elders.

(b) The defendant contended that the gift by the plaintiff in his favour is legal and valid and is in accordance with the principles of the Transfer of Property Act as well as the Mohammedan Law.

(c) The defendant further c