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deed of gift

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Apex court uphold the judgement of high court as correct. Wakf Board entitled for the property as the orginal owner gifted the property to her husband and the Husband created Wakf. Hence the question of the property acquired out of prostitution by the orginal owner who gifted does not arise, as the wakf was created by Donor not by Donee=No property acquired out of the income of prostitution can be created valid Wakf=once the property changed hands, even the stigma, if any, did not attach thereafter to the property and therefore the erroneous assumption of law to the contrary by the Courts below vitiated their findings as to the character of the property and the capacity to make it the subject matter of a Wakf.

CASENO.: Appeal (civil) 1505 of 1988 PETITIONER: SHRI HAFAZAT HUSSAIN S/O MUBARAK HUSSAIN Vs. RESPONDENT: ABDUL MAJEED S/O SRI WALI MOHD. DATE OF JUDGMENT: 08/08/2001 BENCH: S. Rajendra Babu & Doraiswamy Raju JUDGMENT: Raju, J. This appeal has been filed against the judgment dated 29.1.1985 of a learned Single Judge of the Allahabad High Court … Continue reading

Hindu law: Hindu adoption-Valid adoption-Necessity of-Held: There should be an actual giving and taking ceremony-Performance of datta homm imperative to constitute valid adoption subject to exception-Adoption of daughter is invalid under Hindu law-Person adopted is to be male-On facts, natural heirs of a female, who is allegedly adopted by her uncle, restraining their predecessor’s natural brothers and sons from alienating the property on the ground that their predecessor inherited her uncle’s property on his death as she was adopted by her uncle-However, predecessor not being validly adopted daughter of her uncle nor adoption permissible in law, the female could claim interest in share of her natural father’s property which fell to his share on partition with his brothers. Code of Civil Procedure, 1908-Order 39, rules 1 and 2-Injunction-Conditions for grant of-Held: Court is to consider prima facie case, balance of convenience and irreparable injury-Plaintiff’s contention should be bonafide-Question to be tried must be serious issue and not merely triable-Conduct of both defendants and plaintiffs is relevant-Court to see whether plaintiffs have pre-varicated their stand from stage to stage-It would look into the documents produced in terms of Order 41, Rule 27-This court must not confine itself only to the questions raised before the courts below-It would consider questions of law, though raised for the first time-On facts, court erred in granting injunction restraining the party from alienating the property-Order 41, Rule 27. O and K were in joint possession of suit properties. O died in 1949. He had no issue and it is alleged that he adopted N, natural daughter of K during his life time. O had executed gift deed in favour of N showing her as daughter of K but under his guardianship. K died in 1961 leaving seven sons and daughter N. Respondent-plaintiffs are natural heirs of N. Respondents claimed that N being adopted daughter of O, inherited property on the death of O. Children of K, G and others and their sons are the appellants. A purported partition took place between K and his sons in 1954. N was not given any share. However, K transferred three properties in favour of N as a trustee, referring her to be the foster daughter of O and describing the said properties to be held in trust. According to the appellants, the joint family property devolved by survivorship to K; and that N during her life time, never claimed to be an adopted daughter and she did not have any interest in the joint family properties. Respondents filed suit for partition of the suit Schedule and allotment in their favour; and for permanent injunction to restrain the defendants from alienating the suit properties. Thereafter, amendment application was filed that since the parties belonged to Brahmo Samaj faith, N could claim as natural daughter of K; and that N was adopted when she was about three years old. Appellants filed an application for rejection of the plaint in terms of Order VII, Rule 11 CPC and the same was dismissed. Thereafter, application for injunction was filed and appellants were restrained from dealing with the properties. High Court then passed an interim order directing that no alienation would take place, save and except the share of the builders. The said order was modified directing that the development of the said property would be subject to restriction in regard to dealing therewith. Further, application for modification of the order was filed but the same was dismissed. Hence the present appeals. Appellants contended that the High Court erred in restraining the appellants from alienating the property; that the properties should be allowed to be utilized as the constructions thereof had been permitted to be completed; that the builders having been permitted to dispose of their share, only few flats remains to be sold, thus, having regard to the claim of the respondents, order of injunction may be confined to only 3 flats; that the property which was the subject matter of the other Civil Appeal being self-acquired and commercial property, the same may be allowed to be transferred subject to certain conditions; that N having admitted the nature of her interest, respondents could not take a stand contrary thereto or inconsistent therewith; that adoption of N by O was neither proved nor was permissible in law; and that the properties had been partitioned in 1954, and, thus, share of N would be only 1/64th. Respondents contended that the courts below having found that the respondents not only have a prima facie case but also balance of convenience lay in their favour, this Court should not exercise its discretionary jurisdiction; that the courts below took serious note of the conduct of the appellants insofar as they disposed of some properties in violation of the order of status quo passed by the court; that the question regarding illegality of adoption cannot be permitted to be raised for the first time before this Court; that the appellants having filed an application for rejection of the plaint in terms of Order VII, Rule 11 CPC, the same having been dismissed, they should not be permitted to raise the said contention once again; and that before the appellate court an interim order was passed on the basis of agreement between the parties, therefore, it is inequitable to allow the parties to take a different stand before this Court.

CASE NO.: Appeal (civil) 4101 of 2006 PETITIONER: M. Gurudas & Ors. RESPONDENT: Rasaranjan & Ors. DATE OF JUDGMENT: 13/09/2006 BENCH: S.B. Sinha & Dalveer Bhandari JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 12 of 2006] WITH CIVIL APPEAL NO. 4102 OF 2006 [Arising out of SLP … Continue reading

Hindu Succession Act, 1956-Section 8-Punjab Limitation (Custom) Act, 1920-Entry 2(b) to the Schedule-Widow, on inheriting suit properties of her husband, gifted the same to appellant by a gift deed-Civil Court, in the suit filed by reversioners, holding that the gift by the widow would not affect reversionary rights-Presuming the death of the widow on ground that she was not heard of for more than 7 years, reversioners filing a suit for possession and permanent injunction for restraining the appellant from alienating the suit properties-Appellant contesting the suit on the ground that the gift deed in his favour was valid; and that the suit is barred by limitation-Trial Court allowing the suit-First and second appeals of the appellant before appellate court and High Court were dismissed-Correctness of-Held, the reversioners rightly claimed title to suit properties by inheritance since judgment and decree passed by Civil Court in earlier suit has attained finality and thus the limitation under the customary law has no applicability. Limitation Act, 1963-Section 3 and Article 65-Held, since the appellant have not raised any plea of adverse possession, the suit for possession by the reversioners on the basis of inheritance is not barred by limitation. Evidence Act, 1872-Sections 107 and 108-Held, the presumption of death of the widow not having been heard for 7 years and above is not a ground to presume that the widow died seven years ago prior to the institution of the suit. A widow, who inherited suit properties on the death of the original owner, gifted them to appellant by a gift deed prior to 1956. Reversioners filed a suit before a trial court challenging the legality of the gift deed contending that the widow had only a limited life interest in the suit properties. The Civil Court decreed the suit holding that the gift deed will not affect the reversionary rights after the death of the widow. Plaintiff-respondents, who are reversioners, filed a suit before trial court for possession and permanent injunction for restraining the appellant-defendant from alienating the suit properties on the basis of the reversionary rights granted by the Civil Court in the earlier suit. The respondents filed the suit presuming the death of the widow on the ground that she was not heard of for 7 years prior thereto by them and by others. The appellant contested the suit contending that the widow was the absolute owner of the suit properties and that she made a valid gift in his favour through a gift deed. The appellant further pleaded that the suit was time-barred. The trial court decreed the suit holding that the respondents are the owners of the suit properties on the basis of the declaratory decree of the Civil Court in the earlier suit; that since there was no cogent evidence of the date of the death of the widow, she was presumed to have died for more than 7 years in terms of section 108 of the evidence Act, 1872; and that since the appellant never pleaded to have become owner by way of adverse possession, the suit of the respondents for possession on the basis of inheritance is not barred by limitation under Article 65 of the Limitation Act, 1963. The first appeal preferred by the appellant was dismissed. The High Court dismissed the Second Appeal preferred by the appellant affirming the findings of the courts below and by relying on Entry 2(b) of the Schedule appended to the Punjab Limitation (Custom) Act, 1920. In appeal to this Court, the appellant contended that the date of death of the widow cannot by fixed by applying sections 107 and 108 of the Evidence Act, 1872; that since the widow gifted the property to him before the coming into force of the Hindu Succession Act 1956, she did not become the absolute owner under the Act and hence the courts below have erred in holding that the suit of the respondents is not barred by limitation under Article 65 of the Limitation Act, 1963; and that it was for the respondents to prove the date of death of the widow. The respondents contended that on the death of the widow, the succession reopened in view of the declaratory decree of the Civil Court; and that since the appellant has not set up any plea of adverse possession, the suit cannot be held to be barred by limitation and hence Article 65 of the Limitation Act, 1963 does not apply. Dismissing the appeal, the Court HELD: 1.1. The judgment and decree passed by the Civil Court in the earlier suit has attained finality. The deed of gift is valid only so long as the widow is alive. The widow had only a life interest. On her death, the succession reopened having regard to the provisions of the Hindu Succession Act, 1956. The respondents, being daughters, inherited the interest of the original owner. They were also reversioners in terms of their personal law as was opined by the Civil Court in the earlier suit. The respondents, therefore, rightly claimed their title by inheritance. [259-h; 260-c] 1.2. Entry 2(b) of the Punjab Limitation (Custom) Act, 1920 has no application herein as the title of the suit property in favour of the respondents had already been declared by the Civil Court in the earlier suit, subject to the condition that they remain owners thereof. The Civil Court took into consideration the customary law and the provisions of the Hindu Succession Act while arriving at the said finding. In the suit, it was not necessary for the respondents to claim their reversionary right as the same had already been declared in the earlier suit. The respondents have a better title. They were not parties in the earlier suit. They, therefore, claimed their title independent of the declaratory decree. [260-d, e, f; 261-e] Giani Ram v. Ramjilal, [1969] 1 SCC 813 and Shankuntla Devi v. Kamla and Ors., [2005] 5 SCC 390, referred to. 1.3. Both the parties have failed to prove the date of death of the widow. Having regard to the presumption contained in Section 108 of the Evidence Act, 1872, the Court shall presume that she was dead having not heard of for a period of seven years by those who would naturally have heard of her, it she had been alive. But that by itself would not be a ground to presume that she had died seven years prior to the date institution of the suit. [262-b, c] Lal Chand Marwari v. Mahant Ramrups Gir and Anr., AIR (1926) PC 9 and LIC of India v. Anuradha, [2004] 10 SCC 131, referred to. 1.4. The question of applicability of the Limitation Act, 1963 does not arise. The respondents have proved their title. It was for the appellant to prove the acquisition of title by adverse possession. Since the appellant did not raise any plea of adverse possession, the suit was not time barred. Since the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. [263-e, f] Vasantiben Prahladji Nayak and Ors. v. Somnath Muljibhai Nayak and Ors., [2004] 3 SCC 376; Md. Mohammad Ali (Dead) By LRs. v. Jagdish Kalita and Ors., [2004] 1 SCC 271 and Karnataka Board of Wakf v. Government of India and Ors., [2004] 10 SCC 779, referred to. P.L. Jain and Balbir Singh Gupta for the Appellant. P.N. Mishra, K.P. Singh, Dr. H.P. Rathi, K.S. Rana, M.M. Kashyap, Shalman Ali and Hirender Chaudhary for the Respondents.

CASE NO.: Appeal (civil) 4426 of 1999 PETITIONER: Saroop Singh RESPONDENT: Banto & Ors. DATE OF JUDGMENT: 07/10/2005 BENCH: S.B. Sinha & R.V. Raveendran JUDGMENT: J U D G M E N T S.B. SINHA, J : The first defendant in the suit is in appeal before us. The plaintiff- respondents filed a suit for … Continue reading

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