Case Note & Summary
The second appeal arose from a suit for possession filed by the respondent (plaintiff) against his brother (defendant) in 1978. The plaintiff claimed that their father had gifted the suit property to him on 14th March 1961 and delivered possession on the same day, but the defendant forcibly obtained possession later. The trial court dismissed the suit, and the first appellate court confirmed the dismissal. The High Court, in second appeal, held that the plaintiff failed to prove the gift and delivery of possession. The court noted that the concurrent findings of fact were not perverse and did not raise any substantial question of law. Accordingly, the second appeal was dismissed.
Headnote
A) Property Law - Gift Deed - Burden of Proof - Transfer of Property Act, 1882, Section 122 - Plaintiff claimed gift of suit property by father in 1961 and forcible dispossession by defendant brother - Trial court and first appellate court found plaintiff failed to prove valid gift and delivery of possession - Held that concurrent findings of fact cannot be disturbed in second appeal unless perverse or based on no evidence (Paras 1-3).
Issue of Consideration
Whether the plaintiff proved valid gift and delivery of possession of suit property; whether concurrent findings of fact can be interfered with in second appeal.
Final Decision
Second appeal dismissed; judgment of trial court and first appellate court confirmed.
Law Points
- Burden of proof
- Gift deed
- Delivery of possession
- Concurrent findings
- Second appeal limited to substantial question of law
Case Details
2010 LawText (BOM) (04) 80
Second Appeal No.455 of 1990
Mrs. Anjali Helekar i/b. Mr. Neel Helekar for the Appellants; None for the Respondents
Faridsaheb Hussensaheb Sharikmaslat (deceased through Aminabai F. Sharikmaslat & Ors.)
Ahmedsaheb Hussensaheb Sharikmaslat (deceased through Didima A. Sharikmaslat & Ors.)
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Nature of Litigation
Civil suit for possession of property based on alleged gift deed.
Remedy Sought
Plaintiff sought possession of suit property from defendant.
Filing Reason
Plaintiff claimed father gifted suit property to him in 1961 and delivered possession, but defendant forcibly obtained possession.
Previous Decisions
Trial court dismissed suit; first appellate court confirmed dismissal.
Issues
Whether the plaintiff proved valid gift and delivery of possession of suit property.
Whether concurrent findings of fact can be interfered with in second appeal.
Submissions/Arguments
Plaintiff contended father gifted suit property to him on 14th March 1961 and delivered possession, and defendant forcibly obtained possession.
Defendant denied the gift and possession delivery.
Ratio Decidendi
Plaintiff failed to prove valid gift and delivery of possession; concurrent findings of fact not perverse; no substantial question of law arises in second appeal.
Judgment Excerpts
The Second Appeal has been preferred against the Judgment dated 1st December, 1982, delivered by the Civil Judge, Junior Division, Miraj, in Regular Civil Suit No.223 of 1978, which has been confirmed by the Judgment delivered in December, 1989, by the Additional District Judge, Sangli, in Regular Civil Appeal No.89 of 1983.
The respondent, who was the plaintiff before the trial Court, filed a Suit for possession in 1978 against his brother, the defendant. He contended that their father had gifted the suit property to him on 14th March, 1961 and had on the same day delivered possession of the suit property to him.
Procedural History
Regular Civil Suit No.223 of 1978 filed in 1978 before Civil Judge, Junior Division, Miraj, dismissed on 1st December 1982. Regular Civil Appeal No.89 of 1983 filed before Additional District Judge, Sangli, dismissed in December 1989. Second Appeal No.455 of 1990 filed before Bombay High Court, dismissed on 9th April 2010.
Acts & Sections
- Transfer of Property Act, 1882: Section 122
