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S.M. Usman Ali and anr. Vs. O.B.V. Kubendra Bai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 814 of 1970
Judge
Reported inAIR1973Mad280
AppellantS.M. Usman Ali and anr.
RespondentO.B.V. Kubendra Bai and anr.
Excerpt:
- .....properties are of an extent of 2.52 acres of nanja land. the property originally belonged to one nagoor ghani sahib. the plaintiffs are the sons of the said nagoor ghani sahib through his second wife. under a gift deed dated 3-5-1948 a registration copy of which has been filed and marked as ex. a-1, nagoor ghani sahib gifted this property to the plaintiffs. on 2-8-1949 the said nagoor ghani sahib executed a mortgage by deposit of title deeds and later on sold the properties to the second defendant under ex. b-7 dated 10-10-1952. the second defendant is stated to be a benamidar for the first defendant and there is no dispute regarding the same. the plaintiff's case is that their father had no right to convey the property under ex. b-7 after executing the gift deed under the original of.....
Judgment:

1. The plaintiffs are the appellants. The suit was filed for a declaration of title and possession of the suit properties. The suit properties are of an extent of 2.52 acres of nanja land. The property originally belonged to one Nagoor Ghani Sahib. The plaintiffs are the sons of the said Nagoor Ghani Sahib through his second wife. Under a gift deed dated 3-5-1948 a registration copy of which has been filed and marked as Ex. A-1, Nagoor Ghani Sahib gifted this property to the plaintiffs. On 2-8-1949 the said Nagoor Ghani Sahib executed a mortgage by deposit of title deeds and later on sold the properties to the second defendant under Ex. B-7 dated 10-10-1952. The second defendant is stated to be a benamidar for the first defendant and there is no dispute regarding the same. The plaintiff's case is that their father had no right to convey the property under Ex. B-7 after executing the gift deed under the original of Ex. A-1. The defendants on the other hand contended that the gift was neither accepted not acted upon and it was merely a nominal document. Both the courts below have concurrently held that the plaintiffs have not proved the acceptance of the gift and on that ground the gift did not operate and that therefore the defendants derived valid title under Ex. B-7. The learned counsel for the appellants contended that since the gift was in favour of minors strict proof of acceptance of the gift could not be expected; nor would it be possible for the plaintiffs to prove such acceptance. But Mohammedan Law does not dispense with the necessity for acceptance of the gift even in cases where the donees are minors. If the donees are minors it may be that the evidence of acceptance will have to be approached with reference to that fact, but that does not mean that no proof of evidence of acceptance is necessary in the case of a gift in favour of minors. In this case, even the gift deed does not recite that possession of the property had been delivered to the minors; nor has it been proved that the original document was handed over to the mother of the plaintiffs even accepting that in the peculiar circumstances the mother could have acted as a guardian. The plea set up by the plaintiffs that the mother was leasing the properties subsequent to the gift had not been accepted by the courts below and I do not find therefore any ground to interfere with the findings of the courts below. The second appeal therefore fails and it is dismissed with costs. No leave.

2. Appeal dismissed.


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