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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Babubhai Ushmanbhai Mandli – Appellant
Vs.
Mehbubbhai Rasulbhai Mandali – Respondent
Second Appeal No. 236 of 2018, Civil Application No. 1 of 2017
Decided On : 19-09-2018
Code of Civil Procedure, 1908 – Section 100 – Second Appeal – Three residential houses are of the ownership of father of petitioner – The father of the plaintiff had three wives in his lifetime. The plaintiff was born in the second wedlock. The father of the plaintiff was serving with the Gujarat State Road Transport Corporation and was residing at Viramgam – Held, it cannot be said that the plaintiff failed in the proceedings before the revenue authorities on the ground that the authorities had no jurisdiction to entertain the application or appeal or revision filed by the plaintiff nor on the ground that there was any other defect of a like nature. In fact, the proceedings before the revenue authorities as noted by me earlier were with respect to mutation of entries in the record of rights. Even otherwise, the law is well settled that the revenue authorities cannot go into the issue of title or the legality or validity of any instrument like a gift-deed or a sale-deed or a Will. Therefore, in my view, the argument of Mr.Kapadia with regard to Section 14 of the Limitation Act would not save the situation -Plaintiff questioned the gift-deed of the year 1960 and the Will of the year 1968. The suit came to be filed in the year 1998. Going by the period of limitation as prescribed under Article 59 of the Limitation Act, the suit should have been filed within three years from the date of knowledge of the fact that the transaction which, according to the plaintiff was void or voidable, had taken place – Second Appeal dismissed
J. B. Pardiwala, J.
This Second Appeal under Section 100 of the Code of Civil Procedure is at the instance of the original plaintiff and is directed against the judgment and order dated 17th May 2017 passed by the 2nd Additional District Judge, Dhrangadhra, in the Regular Civil Appeal No.37 of 2010 arising from the judgment and decree passed by the Senior Civil Judge, Dhrangadhra, dated 21st August 2010 in the Regular Civil Suit No.7 of 1998 filed by the appellant herein - original plaintiff no.1 for declaration, partition and cancellation of the registered gift-deed and a Will.
2. For the sake of convenience, the appellant herein shall be referred to as the original plaintiff and the respondents herein shall be referred to as the original defendants.
3. The case put up by the plaintiff is that three residential houses bearing City Survey Nos.2095, 2140 and 2141 respectively are of the ownership of his father. The father of the plaintiff had three wives in his lifetime. The plaintiff was born in the second wedlock. The father of the plaintiff was serving with the Gujarat State Road Transport Corporation and was residing at Viramgam.
4. It is the case of the plaintiff that all the properties of his father situated at Dhrangadhra were dealt with by the defendant no.1. The defendant no.1 had lot of influence over the father of the plaintiff. The defendant nos.2 and 3 are the sons of the defendant no.1. According to the plaintiff, between his father and the defendant no.1, there was partition of the properties and the property bearing Old Lekh No.112 came to the share of the defendant no.1, whereas the properties bearing Old Lekh No.271 and Old Lekh No.22 respectively came to the share of the father of the plaintiff.
5. It is the case of the plaintiff that as his father was under the influence of the defendant no.1, the defendant no.1 fraudulently got one gift deed executed in his favour through the father of the plaintiff dated 12th August 1960 with respect to the property which came to the share of the father of the plaintiff. It is also the case of the plaintiff that in a similar manner, fraudulently the defendant no.1 got one Will executed of the father of the plaintiff dated 24th July 1968 in his favour with respect to the property bearing City Survey Nos.2041 and 2141. In such circumstances, the plaintiff prayed for the following reliefs in the suit :
"1. Declare that the gift deed dated 12/8/60 and the Will dated 15/10/71 which were got executed by the respondent no.1 from the father of the plaintiff misusing his influence and powers are unlawful and revoke them, in the interest of justice.
2. Declare that the plaintiff nos.1 and 2 are legally entitled as the successors to receive the suit property belonging to Usman Yakubbhai Mandli, the father of the plaintiff no.1.
3. Declare that the suit property obtained vide gift deed dated 12/8/60 and the Will dated 15/10/71 is unlawfully possessed by the respondents and pass an order against the respondents to handover the possession of the property to the plaintiffs, in the interest of justice.
4. Decide the share of the plaintiff nos.1 and 2 in the suit property as per the Muslim Law and pass an order to handover the possession of the same the plaintiffs, in the interest of justice.
5. Grant permanent injunction against the respondents restraining them from transferring the suit properties through any kind of transactions till the disposal of the suit.
6. Grant any other relief which the Ld. Court may deem fit and proper.
7. Order the respondents to pay all the costs of the suit. "
6. The defendants appeared before the trial court and contested the suit by filing their written-statement Exh.13. The defendants denied all the allegations levelled by the plaintiff in the plaint.
7. Having regard to the pleadings of the parties, the trial court framed the following issues vide Exh.30 :
"(1) Whether the Plaintiff proves that the residential houses bearing City Survey Nos.2095/2140/2141 situa
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