FA/414/1990 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 414 of 1990 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== RABIABIBI D/O NOOR AHMEDJI Versus KARIMJI AHMEDJI CHHIPA AND OTHERS ====================================== Appearance : MR SS BELSARE for Appellant. None for Respondent Nos.1,3 - 6. NOTICE SERVED for Respondent No.2. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 15/05/2008 ORAL JUDGMENT 1. By way of this appeal, original defendant no.1 of Civil Suit No. 1683 of 1983 and plaintiff of Civil Suit No.883 of 1985 has preferred this appeal against judgment and order of City Civil Court, Ahmedabad, dated 31st August 1987, whereby suit filed against present respondents FA/414/1990 2/5 JUDGMENT being Civil Suit No.883 of 1985 was dismissed whereas preliminary decree was passed in Civil Suit No.1683 of 1983. 2. The facts in brief, as emerging from record, are as under: 3. Appellant herein is the defendant in Civil Suit No.1683 of 1983 filed by the present respondents and there was a property of joint ownership of the plaintiff and father of defendant no.1, which was managed by father of defendant no.1. The parties to the suit are muslim and they are governed by Muslim Sheriat Act. Upon demise of father of defendant no.1, said property was managed by defendant no.1 (appellant herein). Plaintiff of the aforesaid suit contended that since it is a joint ownership property, they have right, title and interest in the suit property and inspite of request of plaintiff, appellant herein has not agreed to partition the suit property. Therefore, aforesaid suit was filed for appointing receiver and commissioner for the joint property and to partition the suit property as per Muslim Sheriat. 4. As against that, Civil Suit No.883 of 1985 was filed by the present appellant before the City Civil Court, Ahmedabad. In the said suit, present appellant stated that her father's share of the joint property was gifted to her orally as per Muslim sheriat on 29th April 1977 in presence of witnesses and a declaration in this regard was also executed in presence of Notary and vacant possession of the property was handed over to the plaintiff. It is also the case of the appellant in that suit that since then the plaintiff is in possession and occupation of the said property. It is also the case of the plaintiff of that suit that since there was some dispute between father of plaintiff (appellant herein) and defendant no.1 of that suit, defendant no.1 has taken away aforesaid declaration and during riots all movable, cash, utensils, gold and silver FA/414/1990 3/5 JUDGMENT ornaments were also taken away. Not only that defendant of that suit had agreed to sell away his share in the property to the father of the plaintiff for consideration of Rs.50,000/- and an agreement in that behalf was executed on 1st January 1982 and Rs.5,000/- was paid as earnest money, while the balance amount was paid by father of the plaintiff afterwards. However, after demise of father of the plaintiff, defendant no.1 backed out from his promise to execute the sale deed in favour of the plaintiff and filed a suit being Civil Suit No.1683 of 1983 for partition of the property. Therefore, the plaintiff had filed suit being Civil Suit No.883 of 1985 against the present respondents. 5. After considering the evidence on record, trial Court dismissed the suit filed by the present appellant and a preliminary decree was passed in the suit filed by the respondent. While passing the impugned judgment, trial Court has observed as under : “Suit No.883 of 1985 is dismissed. Parties to bear their own costs. A preliminary decree is passed in civil suit No.1683 of 1983. The plaintiff has 4/7th share in the suit property. Defendant No.1 has 3/7th share in the suit property. Each of the defendant Nos.2 to 6's 1/28th share is merged in the share of defendant No.1 as they have assisigned the same in favour of defendant No.1 and therefore no order as to their share is passed. The matter be referred to the Commissioner for Taking Accounts who shall partition the suit property in light of the above shares of the parties. The Commissioner for Taking Accounts shall also take accounts of the properties of premises let out to tenants namely Ramdhan FA/414/1990 4/5 JUDGMENT Sukha and Ghanshyam Sugar Trading. A notional income shall be fixed of property in possession of defendant No.1 and while finalising the accounts all the income to be shared between the parties as per their shares fixed herein-above. The order as to costs shall be passed at the time of passing the final decree. A copy of this judgment be placed in C.S.No.1883/85.” 6. Being aggrieved by said judgment, the appellant has filed this appeal. 7. Heard Mr.S.S.Belsare, learned advocate appearing for the appellant. Nobody appears on behalf of the respondents. Mr.Belsare submitted that in view of respondent's failure to sell his share to the appellant or her father, it ought to have been held that the respondent had seized to be owner of his share and the appellant had become absolute owner of the suit property. It is also contended by him that finding of the trial Court is contrary to the evidence on record and the trial Court has committed an error in disbelieving oral gift made by father of the present appellant. He also contended that overt act on the part of the respondent herein is proved beyond any reasonable doubt and the trial Court has failed to appreciate this fact and, therefore, this appeal is required to be allowed. 8. I have considered the submissions made on behalf of the appellant and also gone through the judgment of the trial Court and other relevant documents. While considering the contentions raised by the present appellant regarding oral gift, trial Court has made detailed observations in that regard in paragraph 19 of its judgment. While considering the question of oral gift, trial Court has considered oral deposition of various FA/414/1990 5/5 JUDGMENT witnesses and also considered documentary evidence in that regard and found that in city survey or municipal records, no mutation is carried out with regard to the appellant's becoming owner of share of her father in the suit property by way of oral gift. In view of this, I am in complete agreement with the reasonings given and finding arrived at by the City Civil Court while passing impugned order. No other evidence is shown to me to take a contrary view. Therefore, I do not find any reason to interfere with the impugned judgment. 7. For the reasons stated herein above, the appeal deserves to be dismissed and the same is dismissed with no order as to costs. (K.S.Jhaveri, J.) /malek