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ibrahim Shah Mohamad Vs. Noor Ahmed Noor Mohamed - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 1152 of 1978 (cross objections) and C.A. Nos. 3780 of 1982 and 602 of 1983
Judge
Reported inAIR1984Guj126; (1983)2GLR961
ActsMuslim Law; Limitation Act, 1963 - Sections 6; Partnership Act, 1932 - Sections 4; Code of Civil Procedure (CPC), 1908 - Order 29, Rule 1
Appellantibrahim Shah Mohamad
RespondentNoor Ahmed Noor Mohamed
Appellant Advocate P.V. Nanavati and; H.M. Shaik, Advs.
Respondent Advocate G.P. Vyas and; N.L. Jani, Adv. for N.I. Dave and; D.A. M
Cases ReferredIsmail v. Ramji
Excerpt:
family - gift - muslim law, section 6 of limitation act, 1963, section 4 of partnership act, 1932 and order 29 rule 1 of code of civil procedure, 1908 - whether acceptance of gift by mother on behalf of minor proper acceptance to consider gift valid - under mahomedan law for valid gift transfer of property be made immediately and without any exchange by one person to another and accepted by or on behalf of latter - muslim law does not say that person who is entitled to be guardian (mother) cannot be guardian in presence of donor (grandfather) who is legal guardian and cannot take gift - facts revealed no other guardian of property or person of minor - as such acceptance of gift by mother of minor not illegal. - - 6. before proceeding further, it would be worth-while to refer to this.....v.v. bedarkar, j.1. this involves point about an oral gift, trade by a mahomedan and also an oral will, some of the donees and legatees am actual heirs under the mahomedan law, while the one, i.e., the plaintiff, who has filed the suit, is not.2. the suit property belonged to one shah mohmed noor mohmed. lie had four swis - (1) ibrahim (appellant no. 1), (2) usman (appellant no. 2), (3) noor mohmed (respondent no. 1's father), who died during the life-time of shah mohrrked and (4) ismail. he had also one daughter narned kulsumbibi (appellant no. 3).3. plaintiff noor ahmed noor mohmed filed civil suit no. 3615 of 1973 on the ground that. his grand-father shah mohmed had made an oral gift of some properties which are mentioned in schedule 'a, to the plaint, in favor of the three appellants.....
Judgment:

V.V. Bedarkar, J.

1. This involves point about an oral gift, trade by a Mahomedan and also an oral will, Some of the donees and legatees am actual heirs under the Mahomedan law, while the one, i.e., the plaintiff, who has filed the suit, is not.

2. The suit property belonged to one Shah Mohmed Noor Mohmed. lie had four swis - (1) Ibrahim (appellant No. 1), (2) Usman (appellant No. 2), (3) Noor Mohmed (respondent No. 1's father), who died during the life-time of Shah Mohrrked and (4) Ismail. He had also one daughter narned Kulsumbibi (appellant No. 3).

3. Plaintiff Noor Ahmed Noor Mohmed filed Civil Suit No. 3615 of 1973 on the ground that. his grand-father Shah Mohmed had made an oral gift of some properties which are mentioned in Schedule 'A, to the plaint, in favor of the three appellants and respondent No. 1 (plaintiff). This oral gift is alleged to have been made on 1-4-1953. It was also his case that before going to pilgrimage to Mecca, his grand-father also made an oral will in favour of all the four pertaining to the remaining immoveable properties. The trial Court did not believe the case of the plaintiff about oral will pertaining to properties mentioned in Schedule 'B' and hence, for that much, the Plaintiff (respondent no. 1) has filed cross-objections.

4. Defendants Nos. 1 and 2 by their written statements Ex. 95, firstly contend ed that the suit is time-barred, and also that deceased Shah Mohamed was in possession, use, occupation, enjoyment and management of all the properties during his lifetime and that the alleged gift deed was not acted upon or given effect to, These defendants, therefore, denied the fact of the gift, but contended in the alternative that if there was one the same was not legal and valid, Defendant No. 2 in his written statement Ex- 86 did not dispute the factum the gift, and Specifically Stated that the deceased had made an oral gift of the properties as mentioned in the plait It was, however, stated that the gift was not legal and had no effect. It was also contended that he got separate possession of some of the properties. Other defendants merely contested the suit by saying, that they were the bona fide purchasers for value without notice.

5. After hearing, the parties, the learned trial Judge negatived the case of the, defendants that the suit was time barred, and decreed the suit of the, plaintiff so far as the properties, allegedly gifted by deceased Shah Mohmed were concerned. The learned trial Judge did not believe the case of the plaintiff that deceased Shah Mohmed had made any will and also disallowed the claim of the plaintiff so far as Behrampura- properly was concerned. It was decreed that the plaintiff had one-fourth share in the properties described in Schedule 'A' to the plaint except the property situated .in Behrampur Ward bearing survey No. 13, Final Plot No. 173. It was declared and decided that the plaintiff had no share in the properties mentioned in Schedule V to the plaint, which, according to the plaintiff, were bequeathed by the will. It was decreed that sale deed dated 17-4-1968 in favour of defendants Nos. 5, 6 and 7, sale deed dated 11-11-1968 in favour of defendants numbers 9 to 10, and sale deed dt; 9-7-1970 in favour of defendants Nos, 11. 12 and 13 are not binding on the plaintiff and his aforesaid share. It was further ordered that the charge created by the consent decree in Civil Suit No. 1275 of 1966 in favour of defendants Nos. 16 and 17 and attachment and sale of any of the properties in survey Nos. 2928, 2929, 2930 and 2931 to 2933 of Kalupur Warti No. 3 are not binding on the plaintiff's 1/4th share in the said properties.

6. Before proceeding further, it would be worth-while to refer to this dispute to bring out the facts very clearly. It was the contention of the plaintiff in the plaint that the plaintiff is not concerned with the registered partnership firm which does business in the name and style of Ibrahim Noor and Co and that defendants Nos. 1, 2 and one Abdulrashid Karnalbhi, who is the son of defendant No. 3, were carrying' on business in the said name and style The said firm of Ibrahim &,Co., had borrowed huge amounts of money from defendants Nos, 16 and 17, who filed :Summary Suit No., 1275 of 1966 in the City Civil Court at Ahmedabad, and a consent decree dated 1-8-1966 for Rs. 90,000/- with interest was passed therein against the said firm and its partners. A charge was created on some, of the gifted properties. Thereafter, defendants: Nos. 16 and 17 filed Darkhast 'No, 34 of 1968 for recovery of an amount of Rs. 1,06,831.06 paise by the sale of the said properties .The plaintiff, therefore, sought a declaration that the plaintiff's one-fourth share in the said property is not affected by the said charge.

7. If should be rioted that there is further . development that during the appellate stage Civil Application No. 924 of 1981 was filed by Laxmandas Chanchaldas (now respondent in the appeal) stating that original defendants Nos. 16 and 17 Modi Hiralal Manilal and Hiralal Mainlal Halwawala respectively, had filed Civil Suit No. 1275 of 1966 in the City Civil Court for recovery of the money advance by them against the appellants and respondent No. 1 (plaintiff), Execution proceedings were taken after the decree was passed. This Laxmandas stated in the said civil application that the decree passed in Suit number 3615 of 1973 is subject to the rights of aforesaid defendants Nos. 16 and 17. It was his case that the decree passed in Civil Suit, No. 1275 of 1966 was assigned by said defendants Nos, 16 and 17 by a Deed of Assignm6nt dt. 3-8-73 in his favour, It is also the case of this Laxmandas that in 'the auction sale held in the aforesaid Darkhast. being Darkhast. No. 34 of 1966, he had: purchased the undivided share of present appellants Nos. 1 and 2 of the 'property shown in paragraph 2 of that civil application. Then it is the case of this Laxmandas that he had purchased one-fourth share of present appellant no. 3 by sale deed-dated 30-3-1979, and that sale deed is registered with the Sub-Registrar of Assurance, on the same day, i. e, on 30-3-1979. Therefore, he (Laxmandas) had 3/4th share in the said property mentioned in para 2 of that civil application. , It is, therefore, that by that civil application Laxmandas requested to -join him as defendant in the suit and respondent in the appeal. This request was granted by the Court. This further development after this respondent, Laxmandas, wag impleaded -As a party has resulted into civil application filed by respondent No. 1 to which we shall refer at an appropriate stage. The trial 'Court' further declared that the attachment and sale in Darkhast No. 8 of 1970 in the Ahmedabad City -Civil Court filed by, defendant No. 19 civil., firm, of Kanaiyalal Mohanlal,) was not binding on plaintiff's one-fourth share in Kalupur. Ward No. 3, Ahmedabad. The' trial Court also appointed. the Commissioner for taking Accounts- to sever plaintiff's one-fourth, share in the properties and a preliminary decree was passed, to that effect. It should be, noted that after respondent Laxmandas came on record, original, plaintiff (present respondent No,l) filed Civil Application No. 3780 of 1982 requesting the Court to grant injunction against said Laxmandas restraining him from alienating, transferring by sale; mortgage, gift, lease or in any other manner the . suit properties bearing survey- Nos, 2926, 2929, 2930, 2931, 2932 (partly2933, 2934, 2935, 2936 and 2937 till the final decree is made. This is also being heard. Against the aforesaid preliminary decree passed by the learned , trial judge, the appellants have filed this, appeal.

8. Mr. P. V. Nanavati, learned Advocate for the appellants, submitted that in fact, the gift is not-believable, In the alternative he submitted that if at all the oral gift is considered to be a fact, then the gift is not in accordance with the provisions of the Mahomedan Law and, therefore, the same is illegal.

9. So far as the factum of gift is concerned, the learned trial -,Judge has discussed that aspect very elaborately in his judgment from paragraph 31 onwards. The first-aspect considered is that defendant No, 2, in- his written statement Ex. 86, admitted that it was true that deceased Shah Mohmed had made amoral gift of the properties statement ,plaint, and also stated' that the properties were transferred in the names of donees it, the City Survey Records. Then, on record there is application Ex., 319 Dt 18-4-1953 made by deceased Shah Mohmed to the, City Survey Officer, Ahmedabad, In that application he had categorically stated that such a gift was made and requested that the names of the donees be entered on record. This clearly shows that the donor himself accepted the oral gift having been made, by him further, on 20-4-1953 , deceased Shah Mohmed also made a statement before the officer concerned regarding his, having made such a gift. That statement was considered by the learned trial Judge to be a statement made by deceased Shah mohmed against his own interest. Then there is also Ex.409 which is a joint statement dated 20-4-1953 made by defendants Nos. I 2, 3 and 24 (i.e; present appellants, and respondent No. 2, Ball Fatma as a guardian of the plaintiff) before the Officer concerned regarding the said gift. In this statement clear reference- is made regarding the oral gift dated 1-4-1953. Then it was stated that this oral gift, was made according to Muslim Law regarding the properties stated therein in their favour and so, their names be entered is owners in place of the deceased regarding the said properties. That statement has been reproduced by the learned trial Judge in paragraph 33 of his judgment. Therein there is mentioned in Gujarati (vernacular ommitted) on the strength of this, Mr. Nanavati has advanced a. ground about the invalidity of the gift to which we shall immediately refer.

10. The first ground advanced by Mr. Nanavati is that this gift is not valid according to Mahomedan Law. According to him, formalities required under 'the Mahomedan Law for a valid gift are that the transfer of the properly should be made immediately and without any exchange, by one person to another, and accepted by or on behalf of the latter. It was his contention that because the plaintiff was a minor, the gift should be accepted on his behalf by somebody, and it, seems that respondent No. 2 Bai Fatma accepted the gift. Therefore, it is; submitted that as per Section 156 of the Mahomedan Law by Mulla gift to a minor by a person other than his father or guardian may be completed by delivery of possession to the father or guardian. According to Mahomedan Law, it is an accepted position, which has not been denied by Mr. C. P'. Vyas, learned advocate for respondent No. 1 plaintiff also, that mother is not, a guardian if grandfather is there. Therefore, according to Mr. Nanavati, if the mot tier has accepted the gift on behalf of the minor then that is not proper acceptance and, therefore the gift is invalid. It is the submission of Mr. Nanavati that mother is not a legal guardian and therefore, possession given to her, when one of the said guardians is alive is in effective.

11. This ground of attack of Mr, Nanavati in regard to the gift is, not valid in our view even according to law. It is a fact that deceased Shah mohmed was the guardian of the plaintiff when he was a minor. Now, he himself was making a gift and, Muslim Law does not say that any person who is entitled to be a guardian (mother here) cannot be a guardian in presence of a donor who is legal guardian and cannot take the gift. To the argument advanced by Mr. Nanavati, there is a clear answer in Valia Peedikakkandi Katheessa Umma v. Pathakkalan Narayaneth Kunhamu : [1964]4SCR549 , rendered by Hidayatullah, J. (as he then was). In order to appreciate the principles of law propounded, it will be worthwhile to consider some salient features of that case. One Mammotty was married to Seinaba and he made a gift of his properties including immoveable property to Seinaba. This Mammotty who was the husband of Seinaba died issueless. At the time of the gift, Seinaba was 15 years and 9 months old. Therefore, she was a minor. Mammotty was ill for a long time and was in hospital and he was discharged uncured a month before the execution of the gift deed and remained in his mother-in-law's house afterwards. A contention was raised whether the gift was valid, because the donor was the husband who was her legal guardian and mother of Seinaba had accepted the gift. The Supreme Court, in para 7 of the judgment, specifically observed that possession was not delivered to Seinaba but to her mother, and she accepted the gift on behalf of Seinaba. The Supreme Court further observed that Marnmotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living. It was also observed that Seinaba's mother was also not a guardian of the property of Seinaba. Mahomedan Law makes a distinction between guardian of the person, guardian of the property and guardian for the purpose of marriage in case of minor females. Considering these, facts, the Supreme Court observed:

'Where a husband, a Hanafl, makes a gift of properties, including immoveable property, by a registered deed, to his minor wife who had attained puberty and discretion, and the gift is accepted on her behalf by her mother in whose house the husband and wife were residing, when the minor's father and father's father are not alive and there is no executor of the one or the other, such a gift must be accepted as valid and complete, although the deed is handed over to the minor's mother and possession of the property is not given to a guardian specially appointed for the purpose by the civil Court.'

Specific observations made by the Supreme Court further would clearly show that the intention of law is to make a gift valid and legal as far as possible so as to give full justice to the desire of the donor. The Supreme Court observed that there can be no question that there was a complete intention to divest ownership, on the part of the husband the donor, and to transfer the property to the done. In the instant case also, on facts, it can be very clearly said that deceased Shah Mohmed had a complete intention to divest ownership and to transfer the property to all the four donees. In that case the Supreme Court_ further observed that if the husband had handed over the deed (it was a written gift deed) to his wife, the gift would have been complete under the Mahomedan Law and it is impossible to hold that by handing over the deed to his mother-in-law, in whose charge his wife was, the husband did not complete the gift. In paragraph 15, after considering various judgments, the Supreme Court considered that those cases are distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger, and in such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration. Same principle would be applicable in the instant case. Donor Shah Mohamed was the only guardian. There was no other guardian of the property or person of the minor and mother was the only other person who could look after the interest of the minor and, therefore, acceptance of gift by the mother of the minor would not be illegal or invalid, in view of the principles propounded by the Supreme Court in the aforesaid case. Therefore, this ground has no basis.

12. Then it is submitted that this transfer should be of a property on which there is no encumbrance. It is submitted that when a gift is made, actual possession should be available to the donee, and if the property cannot be directly handed-over, then it would not be a proper gift. It should be noted that these grounds are advanced by three of the donees, because if the gift is considered to be invalid, only plaintiff-respondent No. I would be losing his rights, while all the three appellants under the Mahomedan Law would be entitled to retain the property as heirs to the exclusion of the plaintiff and, therefore, strenuous attempts are made on behalf of the appellants to show that the gift is invalid.

13. Section 145 of the Mahomedan Law by Mulla, l8th Edition, mentions that a gift may be made by a mortgagor of his equity of redemption. However there is a conflict of opinion whether a gift of an equity of redemption, where the mortgagee is in possession of the mortgaged property at the date of the gift, is valid, and the Bombay High Court has held that such a gift is not valid. Some other High Courts have held that such a gift is valid. But that judgment of the Bombay High Court in Ismail v. Ramji, (1899) ILR 23 Born 682, is binding on this Court.

14. Then we wanted to know from Mr. Nanavati as to whether there is any evidence to show that there is any encumbrance or equity of redemption and the mortgagee was in possession of the mortgaged property on the date of the gift. He first relied on Ex. 409 to which we have made reference earlier wherein it is mentioned (Vernacular omitted) and submitted that this statement shows existence of encumbrances. It should be. noted that most of the properties were tenanted and it is not disputed that under Mahomedan Law gift of tenanted properties is valid as under Mahomedan Law there should be delivery of such possession as the nature of the property is susceptible (section 150 of Mulla's Book) and constructive possession is permissible. Except tenants, there is no other aspect to connect ('Gujarati word omitted') Ex. 409. But in order to support his argument. Mr. Nanavati submitted Civil Application No. 602 of 1983, to permit to produce rent-note dated 25-9-1942 executed in favour of Amratlal Mohanlal, Jagubhai Bhogilal and Sumanchandra Bhogilal by deceased Shah Mohmed Noor Mohmed and others and requested this Court to order that the same may be received in evidence and exhibited, By this it is attempted by Mr. Nanavati to show that there was some property which was mortgaged with possession (Gujarati word omitted) and the mortgagors continued to remain in possession of that property as tenants and, therefore, it can be said that the mortgagee was in possession. Now, in the civil application it has been stated that this document was produced in the trial Court by Kantilal Gordhandas Patel Ex. 302. Evidence of this Kantilal was recorded on 24-2-107. He merely produced some four documents by list Ex. 303, and they are already exhibited at Exs. 448 to 451. This rent-note does not figure in that list, i. e. it was not produced during the deposition of this witness, who was examined on behalf of defendants Nos. 1 and 3. At the time of arguments. as we are told at the Bar, with an affidavit this rent-note was produced on 9-8-1977. As this was produced after the evidence was over and arguments were going on, probably the learned trial judge (lid not consider it. It, however, seems, as argued by Mr. Vyas, that this rent-note is of year 1942, and the transaction of gift is said to have taken place on 1-4-1953. It could not be shown whether at the time when the gift was made, deceased Shah Mohmed had already redeemed the mortgage. At any rate, we are not inclined to grant this civil application because it is for the production of a document at a very late stage and creating scope for the second round of evidence on the strength of this civil application. Therefore the reliance of Mr. Nanavati on the law laid down by the Bombay High Court about gift of equity of redemption, where the mortgagee is in possession of the mortgaged property at the date of the gift is invalid, would not be of any avail to him.

15. Then the last ground of attack of Mr. Nanavati is that the suit is time barred. Now, the learned trial Judge has discussed this aspect in paragraph 97 of his judgment, that the plaintiff was born on 10-9-1948, about which there is no dispute, and the plaintiff became major on 10-9-1969. The application to sue in forma pauperis was filed by the plaintiff on 13-9-1972. It has been specifically observed by the learned trial Judge that 10-9-1972 was a Sunday, and 11-9-1972 and 12-9-1972 were holidays and, therefore, this suit- was filed within the period of limitation. No exception can be taken to this finding. Therefore, this ground also would not be available to Mr. Nanavati.

16. One more argument was advanced by Mr. Nanavati: Suppose the gift is considered to be valid, then After the gift a Partnership was, formed And hence the suit should have been filed for dissolution of partnership and accounts. Be cause the suit is filed for partition and accounts, and not for dissolution of partnership if partnership is formed, it would not lie. Now, merely because some reference has been made toM/s.Shah Mohmed Noor Mohmed, a ground has been advanced that that was a partnership firm doing business. Now it is clear that so far as that firm is concerned, it was merely collecting rent and not doing any business. In fact, no such contention was raised in the written statement of any of the contesting defendants nor this point was raised so as to make out a triable issue. Still, however, in repeated paragraphs 82 and83 of the judgment, the learned trial Judge has considered that formation of so-called partnership of Shah Mohmed Noor Mohmed cannot be said to be a partnership firm so as to attract the provisions of the Indian Partnership Act, because there was no business being carried out by the firm so as to make it a partnership firm and, therefore, there was no agreement to share profits of the business carried on by all or any of them acting for all. It - was merely collecting rent of properties which were gifted away. Then it is observed that the relationship constituted between the parties is that of co-owners only and not of partners. We fully concur with this finding of the learned trial Judge and, therefore, we do not find any substance in this appeal and the same to be dismissed.

17. Then comes the question of cross objections pertaining to will. In order to support that argument, Mr. C. P. Vyas relied on, plaint Ex. 327, which is original plaint of Civil Suit No. 1594 of 1%9, filed by all the appellants as well as respondent No. 1 (plaintiff) who, at that time, is shown as 'major'. That suit pertained to property bearing City Survey No. 3085 and Municipal Census No. 1626 1/2, situated in Chudi Ole, Pankore Naka, Ward No. 3, Ahmedabad. That property does not. the subject-matter of gift. But, there it has been mentioned that the said property was of ownership of deceased Shah Mohmed, Noor Mohmed, and all the four plaintiffs- (of that suit) .are the heirs of deceased Shah Mohmed. Now, it is the -contention of Mr. Vyas, that if, according to Mahomedan Law, the plaintiff (present respondert No. j.) could not be the heir, how would -be an heir to the property which was the subject-matter of that suit, unless there was a will. It probably seems that there was some mistake in drafting of the plaint, which might have been done without considering the provisions of law or at that time parties must not have been minded to fight tooth and nail as they are doing now, But merely because a mistake has been made, it would not take out the legal position that the plaintiff is not an heir under the Mahomedan law. The endeavour of Mr. Vyas is to show that be said property might have come by will and, therefore name of present plaintiff has been mentioned as an heir in that suit. This is too much to guess from such an averment. 11 is an admitted position under Mahornedan Law that an oral will is permissible (Section 116 of Mulla's book) and hence reliance is on an alleged oral will.

18. In order to suppoit. his argument further,. Mr. Vyas submitted that in the deposited pointed attention of- Ibrahimbhai Shah Mohmed (appellant No. 1) Ex.. 2!92, was drawn in para 151 pertaining to survey No. .3085, which was the subject-matter of Civil Suit No. 1594 of 1969, and he specifically stated that he was not knowing when the suit was filed, that present plaintiff (respondent No. 1) being a son of deceased, had no right in the properties of his (witness') father. In para 152 of his deposition it is his case that in that plaint plaintiffs are shown as heirs of Shah Mohmed, but denied that it was so stated because present respondent No. 1 (plaintiff), was an heir .pursuant to the will, and stated that the Advocate of the plaintiffs in the said suit had stated through oversight (about a plaintiffs there being heirs). This can be said to be a proper explanation.

19. Then Mr. Vyas relied on partition agreement Ex. 305 dated 12-2-1968, It should be noted that the suit to which we have referred earlier was - filed on 254-1969 and this Ex. 305 is prior to that. That refers to various properties, about which claim has been made by the plaintiff as properties bequeathed to all the four donees. It also refers to properties bearing survey Nos. 3083, 5604 and 3085. These properties are not mentioned in the gift deed. Averments made in Paragraph 1 of the agreement that these properties belonged to deceased Shah Mohmed and that he-had gifted those properties by oral gift. Now, as considered earlier. these properties are, not the subject-matter of oral gift, because only the properties for which oral gift was made are in Schedule W. As those three properties are included in the agreement Ex. 305, it is- argued that it should be considered that the appellants committed a mistake by combining all the properties as properties gifted away; but should be considered that these properties formed the subject-matter of the bequest.

20. Then reliance is placed on sale deed Ex. 312 dated 1-9-1967, which is even earlier than Ex. 305 (partition agreement). In Paragraph 5 of Ex. 312 clear mention is made that now Mob,med Shah Mohmed bad a, son named Noor Ahmed and his mother Bai Fatrna is also alive, but according to law, this Noor Mohmed died during the lifetime of his father (i. e. Shah Mohmed) and, therefore, he has no share in the property and as such his son or widow also has no share in the property, meaning thereby, by heir ship. It is. There fore, submitted that if on I-9-1V67 parties knew that the plaintiff 1had no share and still in the subsequent two documents if they mention that the plaintiff has some share in the property which would not be the subject-matter of the gift, then the Court should consider that the plaintiff got right in this property on the strength of the will. It is too much to accept the argument of Mr. Vyas merely on this stray circumstance. In order to prove a will or at least shows resemblance of a will, parties must lead evidence before the Court in such a way that the circumstances would clearly establish that will has been proved satisfactorily. Now, as we find a specific statement before the Mutation Officer so far as the properties gifted are concerned, there is no specific statement so far as the will is concerned. E3tceprt these stray statements, there is no documentary evidence specifically mentioning about any oral will.' The trial Court rightly observed that the witness in this case except the plaintiff and his mother de-posed that deceased Shah Mohrned - had made any, will. The trial Court rightly observed that the evidence of the plaintiff and, his mother does not inspire confidence because that is interested evidence. If there would have been moral will, then after the death of Shah MohMed, some attempts would , have been made to get mutation entries made so far as those properties are concerned. As nothing is done in that behalf, the trial. Court rightly negatived the case of the plaintiff so far as the oral will is concerned. In view of this, the cross-objections filed by, the plaintiff deserve to be dismissed with costs.

21. Then remains Civil Application No. 3780 of 1982 for injunction against respondent Laxmandas chanchaldas. It has been contended by Mr. P. V. Nanavati for the appellants and Mr. P. G lbesai for respondent Laxmandas. That the request of plaintiff- respondent No.1 to get injunction against him is not justified because whatever transactions have taken place earlier and those that would take place in. future would be subject to right, title and interest of plaintiff-respondent No.1 and, therefore, this Court should not grant injunction. A very serious argument about the valuable right of a party to dispose of his undivided share in the property in any way he chooses was advanced and it was stated that a right of a person to deal

with his undivided share would remain uncontrolled and whatever transaction would be made by a co-owner vis--vis his undivided share would be subject to right of a person who has also a share in the property. So far as principle of law about the undivided share of co-owner is concerned, no objection can be raised about it. The court is how ever seized of the matter pertaining to the property. Pending the litigation, the property was transferred and, therefore the respondent Laxmandas had to come on record. The matter is still to go back to the trial Court -for final decree. If during that period property would change hands with any other persons would it not be necessary either for the plaintiff or somebody else to bring all parties on record, meaning thereby, delaying further proceedings for bringing them on record,' having their say, etc and thus delaying the passing of final decree? The Court should 'always lean towards seeing that there is no multiplicity of proceedings and also that the proceedings should go on as far as possible so smooth that the decision can be arrived at between the parties who are on record as early as possible. If injunction is not granted, then probably the result would be as mentioned by us above and, therefore, it is in fitness of things that Civil Application No. 37M of 1982 should be allowed and the relief prayed for therein is granted.

22. In the result, the appeal is dismissed with costs. Cross-objections are also dismissed with costs. Civil Application No. 602 of 1983 is dismissed with no order as to costs. Civil Application No, 3780 of 1982 is allowed, but there shall be no order as to costs. Interim stay for drawing up the final decree granted in Civil Application No. 2852of 1978 is vacated.

23. Judgment accordingly.


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