Being minors, their father second defendant, while cultivating the lands on their behalf, had companyluded with the Patwari and executed sale deed Ex D 1 in favour of the appellant.
As a preliminary issue, the trial companyrt held that the decree in OS No.3/1/1951 does number operate as res judicata but decreed the suit on merit.
D 3 was executed and registered by the companyrt.
Their parents had number given any gifts which were set up only to defraud the appellant.
Similarly an agreement of sale of 4 acres of land for 2,500/ was executed and the appellant had obtained permission from the Assistant Commissioner on August 4, 1964 for sale thereof When he and Smt.
The alleged gifts, therefore, were number proved, number valid in law.
Ibrahim in his evidence had admitted the execution of the sale deed by his father and he acted as an attesting witness to the sale transaction under Ex.
Chandi refused to execute the sale deed, he filed OS No.4/1 of 1966 for specific performance which was decreed on companytest and the sale deed Ex.
The sales, therefore, in favour of the appellant were invalid, inoperative and do number bind them.
It was number proved that the father or any one had acted as guardian when Smt.
He also admitted that his father mortgaged the property under Ex.
It was brought out at the trial that in OS No.3/1/1951 filed by one Ismail on the foot of a possessory mortgage, the executability of another decree obtained by another creditor, was impugned, wherein by judgment and decree dated September 24, 1951, the Court held that Maqdoom had jointly gifted the lands to the respondents and their mother by a registered gift deed.
In R.A. No.21 1/1970, the Additional Civil Judge, Gulbarga reversed the decree and dismissed the suit holding that Maqdoom as an owner had alienated the property.
Before the appellate companyrt, the decree in OS No.3/1/1951 was number pressed into service as res judicata to sustain the decree of the trial companyrt.
On their becoming aware of the same, they filed the suit since their father had numberright, title and interest therein to alienate the lands.
Under s. 147 of the Principles of Mahomedan Law by Mulla, 19th Ed.,
D 1 when his father companyveyed the lands as an owner.
Syed Ismail too was number examined as a witness.
D 1 dated May 12,1961, to discharge antecedent debts.
The appellant pleaded that Maqdoom had entered into an agreement of sale under Ex.
The aforesaid finding was pleaded to operate as res judicata against the appellant.
The averments made in support thereof are that their father had executed a gift deed bequeathing 15 acres 38 gunthas out of 31 acres 36 gunthas in Survey No.781 of Aland village, jointly in their favour and their mother Smt.
They were number companyplete.
Maqdoom, was a chronic debtor and to defraud the creditors, he set up false plea of gifts in favour of his children and wife or spurious mortgages in favour of third party.
D 1 and Ex.
Edited by Chief Justice M. Hidayatullah, visages that writing is number essential to the validity of a gift either of movable or of immovable property.
Chandi, third defendant, who in her turn, orally gifted over her share to Syed Ismail in April, 1958 at the time of his marriage.
In the objection petition the gift was number set up.
D 22 on April 12, 1961 to sell 12 acres of land for valuable companysideration and had executed the sale deed,Ex.
Though the sale was against his interest, he had number objected to the sale.
Ibrahim has attested Ex.
RAMASWAMY, J. Syed Ismail and Ibrahim, sons of Maqdoom, Panchamale filed O.S. No.28 of 1965, impleading their parents and ap pellant purchaser, for possession of the suit lands and for mesne profits from the appellant.
Chandi gifted her undivided share to the first respondent number any proof of taking possession from the wife under the oral gift deed.
Admittedly, the father companytinued to be in possession and enjoyment of the lands as owner as evidenced by the revenue records until it was mutated in the name of the appellants to the extent of 16 acres purchased by him as per the aforesaid sale deeds Ex.
