Mohasin Faizur Rahaman Saheb vs Zamilabi

Ravi V. Malimath, J.—Aggrieved by the concurrent findings recorded by both the courts below in decreeing the plaintiffs suit and entitling her for a share in the properties, the first defendant has filed this appeal.

The parties would be referred to as per their rank in the trial court.

The case of the plaintiff is that the first defendant is her brother and the second defendant is her sister. They are the children of deceased Haji Mohammed Kasim Saheb who died on 5.9.1988 leaving behind certain immovable properties in terms of plaint "C" schedule properties. ''B'' schedule properties are tenanted and the tenants have claimed occupancy in respect of the said property before the Land Tribunal. Occupancy rights has been granted and compensation was also awarded. The plaintiff has sought for, her share in the said compensation. The plaintiffs case is that after the demise of her father, a share was sought for from the first defendant who, turned down her request and was hostile towards her. Notices were issued to the first defendant. However, the same were denied by the first defendant. Hence the instant suit was filed seeking division of the plaint schedule properties.

Defendant No. 1 took up a plea in his written statement denying the suit averments while admitting the relationship between the parties. His case is that he has spent huge amounts in improving the property which has fallen to his share. Their father had given valuable property situated in Udupi to the plaintiff and property to the second defendant also. These properties have fallen to his share and neither the plaintiff nor the second defendant is entitled to any share.

On the basis of the pleadings, the trial court framed the following issues and additional issues:

What is the share of the plaintiff in plaint ''A'' and ''B'' schedule properties?

Whether the plaintiffs proves that ''C'' schedule properties are available for partition?

If yes, what is the share of plaintiff in ''C'' schedule properties?

Whether the plaintiff is entitled for mesne profits?

Whether there shall be a direction to ascertain mesne profits?

For what reliefs the parties are entitled?

Additional Issues:

Whether the plaintiff proves that the description of the property (A and B schedule) is correct and proper?

Whether the plaintiff proves the existence of movable property at 2 to 4 and 6 and 8 to 11?

Whether the defendants proves item No. 1 of the movable exclusively belong to them?

Whether the defendants prove that the plaintiff had already received valuable property situated in Udupi from their father and hence is not entitled to any share as contended?

Whether the proper court fee is paid after making proper valuation?

Whether the defendant is entitled for compensatory costs as contended?

Since the said issues were framed on two different occasions, the trial court framed the common issues as under:

Whether the plaintiff proves that the description of plaint ''A'' and ''B'' schedule properties is correct and if so what share the plaintiff is entitled to in the said properties?]

Whether the plaintiff proves that ''C'' schedule properties are available for partition on and if so, what is the share of the plaintiff?

Whether the defendant proves that item No. 1 of the movable belonged to him exclusively?

Whether the plaintiff proves the existence of movable properties at 2 to 4 and 6 to 8 to 11?

Whether the defendants proves that the plaintiff had already received valuable pro; situated in Udupi form their father and hence is not liable to a share as contended?

Whether the proper court fee is paid for making proper valuation?

Issues 1, 2 and 6 were held in the affirmative and issue No. 4 was held partly in affirmative. Issues 3, 5, and 7 were held in the negative.

The trial court decreed the suit of the plaintiff holding that the plaintiff is entitled to 1/4th share, the first defendant is entitled to 1/2 share and second defendant is entitled to 1/4th share. Aggrieved by the same, the first defendant preferred an appeal before the First Appellate Court, which was dismissed. Hence the present second appeal.

The learned counsel for the appellant/defendant contends that the plea set up by her with regard to the suit schedule property is based on an oral gift by their father; that there are sufficient material to show that after the oral gift, he has been in possession of the same; that he has invested hugged amounts for their development. Hence, he pleads that both the courts committed an error in not accepting his case on oral gift.

I have considered the contentions, defence as well as the material on record. The trial court on considering the plea of the first defendant on the oral gift, declined to accept the same. It was of the view that if the contention of the first defendant was to be accepted, then from the date of the oral gift, possession should also be given to him. However, there is no material to show that the properties were given to him. This was in view of the fact that even after the death of the father in the year 1988, the properties were not transferred to the name of the first defendant. Obviously that would have occurred much prior to his death, i.e., prior to 1988. Since none of the documents show the name of the first defendant, it cannot be presumed that the properties were gifted in favour of the first defendant.

Even though a gift need not be in writing, there should be material to show that the oral gift has been acted upon by accepting the same. None of these is forthcoming. The contention with regard to oral gift is only a defence put forth in the pleading by the first defendant. Hence the trial court has rightly negatived the contention of the first defendant in respect of the oral gift. Even otherwise, the case of the first defendant is that even if he is entitled to take a different plea, he has pleaded that the other properties have been willed to him. However, his pleadings have not been substantiated by any materials. His deposition is to the effect that the properties have fallen to his share through oral gift by his father. Under these circumstances, when he has failed to show that the properties have been gifted by his father and also to establish that the properties have been willed to him, none of the contentions have been supported by evidence or material on record. The first defendant has failed to prove any of the contentions taken by him. Under these circumstances, both the courts below have rightly held that none of the properties have been gifted or willed to the first defendant.

Only because some of the properties have been gifted to the share of the plaintiff and the second defendant does not imply that the rest of the properties have to be given to the first defendant. It is needless to state that, if that was the intention of their father, he would have ensured that the same takes place. But he has not. Therefore, to contend that the sisters who have received part of the properties are not entitled to the remaining share, is misconceived. Hence I ''am of the view that there is no error committed by the courts below which calls for interference. More over, the entire case revolves purely around facts. No substantial question of law arises for consideration in the appeal.

For the aforesaid reasons, the appeal being devoid of merit is dismissed.