M.V. Rahemthulla (dead) by LRs. Vs. S.A. Amanulla & Ors.
EmailAppeal: Civil Appeal No. 291 of 1991
Petitioner: M.V. Rahemthulla (dead) by LRs.
Respondent: S.A. Amanulla & Ors.
Apeal: Civil Appeal No. 291 of 1991
Judges: V.N. KHARE & S.N. PHUKAN, JJ.
Date of Judgment: Sep 05, 2000
Head Note:
CIVIL LAW
Suit for declaration and injunction – Defendants-respondents resisting on the strength of the registered settlement deed – Trial court decreeing the suit – First Appellate Court setting aside the decree and High Court affirming the order of first Appellate Court mainly on the ground that no argument was raised before the trial court regarding the settlement deed. Held, on facts since the question of execution of the settlement deed was very much before the trial court as well as before the Appellate and High Courts, the Courts below erred in declining to go into the question. Matter remitted to High Court for fresh disposal in accordance with law. (Paras 6, 7)
JUDGEMENT:
ORDER
1. The legal representatives of the plaintiff are in appeal before us. The plaintiff filed a suit for declaration and injunc-tion. The plaintiff in his suit alleged that he has purchased the property in dispute by registered sale deed, dated 6.3.1978 from one Syed Abubackkar. The plaintiff further alleged that after the execution of sale deed, he was put in possession and he started paying taxes to the Municipal Corporation. He also alleged that his name was mutated in the revenue record. It is at that stage, the defendants tried to interfere with his possession. The case of defendants-respondents is that Syed Abubackkar executed a settlement deed on 1.2.1967 in favour of his wife, defendant no. 2 and on the next date he went to Singapore. On 15.2.1967. Syed Abubackkar executed a Power of Attorney in favour of his father and on the same day, the settlement deed was registered in India.
2. The trial court decreed the suit. However, the decree was set aside by the first Appellate Court and the appeal preferred by defendants-respondents was allowed. The High Court affirmed the judgment of the first Appellate Court. Against the said judgment, the legal representatives of the plaintiff is in appeal before us.
3. Learned Counsel argued that High Court has committed error in holding that no argument was advanced by the plaintiff on the plea that execution of settlement deed has not been proved before the trial court. Learned Counsel took us through the various documents which show that the question relating to the validity of settlement deed was raised before the Appellate Court as well as before the trial court. We have looked into the record and find that the trial court has framed the following issues:
“1. Whether the settlement deed is executed by Syed Abubackkar in favour of 2nd defendant on 1.2.67 is valid. Or the defendants derive title by that.
2. Whether the sale deed executed by Syed Abubackkar in favour of plaintiff on 6.3.78 is valid.”
4. The defendants themselves in their written statement alleged as under:
“Syed Abubackkar has executed a settlement deed on 1.2.67 in favour of his wife, the 2nd defendant Suleka Beevi, six proper-ties including the suit property. Defendant document no. 1 is the settlement deed. On the next day of execution, Syed Abubackkar went to Singapore. On 15.2.67 from Singapore he has given power in favour of his father, Abdul Kathar to register the defendants document no. 1 at Nagercoil.”
5. In the replication, the plaintiff, in paragraph 2, has stated that the alleged gift deed is a sham and void one and is never intended to take effect. In fact, it does not confer any owner-ship on the defendants, and in no way the defendants are entitled to the property scheduled to the plaint.
6. From the aforesaid facts, it is clear that the question of execution of settlement (gift deed) was very much in question before the trial court as well as before the first Appellate Court and the High Court was not correct when it declined to go into that question on the ground that no argument to that effect was raised either before the trial court or before the first Appellate Court.
7. In view of the aforesaid facts, the judgment under appeal is set aside. The case is remitted back to the High Court for decid-ing the appeal in accordance with law.
8. The appeal is allowed accordingly. There shall be no order as to costs.
1. The legal representatives of the plaintiff are in appeal before us. The plaintiff filed a suit for declaration and injunc-tion. The plaintiff in his suit alleged that he has purchased the property in dispute by registered sale deed, dated 6.3.1978 from one Syed Abubackkar. The plaintiff further alleged that after the execution of sale deed, he was put in possession and he started paying taxes to the Municipal Corporation. He also alleged that his name was mutated in the revenue record. It is at that stage, the defendants tried to interfere with his possession. The case of defendants-respondents is that Syed Abubackkar executed a settlement deed on 1.2.1967 in favour of his wife, defendant no. 2 and on the next date he went to Singapore. On 15.2.1967. Syed Abubackkar executed a Power of Attorney in favour of his father and on the same day, the settlement deed was registered in India.
2. The trial court decreed the suit. However, the decree was set aside by the first Appellate Court and the appeal preferred by defendants-respondents was allowed. The High Court affirmed the judgment of the first Appellate Court. Against the said judgment, the legal representatives of the plaintiff is in appeal before us.
3. Learned Counsel argued that High Court has committed error in holding that no argument was advanced by the plaintiff on the plea that execution of settlement deed has not been proved before the trial court. Learned Counsel took us through the various documents which show that the question relating to the validity of settlement deed was raised before the Appellate Court as well as before the trial court. We have looked into the record and find that the trial court has framed the following issues:
“1. Whether the settlement deed is executed by Syed Abubackkar in favour of 2nd defendant on 1.2.67 is valid. Or the defendants derive title by that.
2. Whether the sale deed executed by Syed Abubackkar in favour of plaintiff on 6.3.78 is valid.”
4. The defendants themselves in their written statement alleged as under:
“Syed Abubackkar has executed a settlement deed on 1.2.67 in favour of his wife, the 2nd defendant Suleka Beevi, six proper-ties including the suit property. Defendant document no. 1 is the settlement deed. On the next day of execution, Syed Abubackkar went to Singapore. On 15.2.67 from Singapore he has given power in favour of his father, Abdul Kathar to register the defendants document no. 1 at Nagercoil.”
5. In the replication, the plaintiff, in paragraph 2, has stated that the alleged gift deed is a sham and void one and is never intended to take effect. In fact, it does not confer any owner-ship on the defendants, and in no way the defendants are entitled to the property scheduled to the plaint.
6. From the aforesaid facts, it is clear that the question of execution of settlement (gift deed) was very much in question before the trial court as well as before the first Appellate Court and the High Court was not correct when it declined to go into that question on the ground that no argument to that effect was raised either before the trial court or before the first Appellate Court.
7. In view of the aforesaid facts, the judgment under appeal is set aside. The case is remitted back to the High Court for decid-ing the appeal in accordance with law.
8. The appeal is allowed accordingly. There shall be no order as to costs.
