Case Note & Summary
The appellant, Shivaji Narayan Gaonkar, filed a suit seeking permanent injunction and declaration that a Deed of Gift executed by Respondent No.3 (Lurdina Martins) in favour of Respondent No.1 (Claudio Marques) was null and void. The appellant claimed to have purchased the suit property (survey no. 151/16 of Salvador do Mundo) from Respondent No.3 and her husband Joao Martins by a registered Sale Deed dated 26.12.1989, and that he was in possession. He alleged that Respondent No.1, with the help of Respondent No.3, got his name mutated in the revenue records based on the gift deed, which was invalid as Joao Martins (the spouse) was not a party. The respondents filed a counterclaim seeking declaration that the sale deed was null and void and for permanent injunction. The trial court dismissed the suit and allowed the counterclaim, holding that the appellant failed to prove title and possession, and that the sale deed was not supported by consideration or delivery of possession. The first appellate court confirmed this. The appellant filed a second appeal under Section 100 CPC. The High Court held that no substantial question of law arose, as the concurrent findings of fact were based on evidence and not perverse. The appeal was dismissed, upholding the decisions below.
Headnote
A) Property Law - Title and Possession - Burden of Proof - The appellant failed to prove his title and possession over the suit property based on a sale deed dated 26.12.1989, as the vendor (Respondent No.3) was only a co-owner and the sale was not supported by consideration or delivery of possession - Held that the concurrent findings of the trial court and first appellate court dismissing the suit and allowing the counterclaim are based on proper appreciation of evidence and do not warrant interference under Section 100 CPC (Paras 1-10). B) Gift Deed - Validity - Co-owner's Right - The Deed of Gift executed by Respondent No.3 in favour of Respondent No.1 without the consent of her spouse (Joao Martins) was held to be invalid under the Portuguese Civil Code, as the property was jointly owned - Held that the gift deed was rightly declared null and void by the courts below (Paras 2-5). C) Civil Procedure - Second Appeal - Substantial Question of Law - The High Court found that no substantial question of law arose in the appeal as the findings of fact were concurrent and not shown to be perverse or based on no evidence - Held that the appeal was liable to be dismissed under Section 100 CPC (Paras 8-10).
Issue of Consideration
Whether the Second Appeal under Section 100 CPC raises any substantial question of law regarding the validity of the sale deed and gift deed, and whether the concurrent findings of the courts below are perverse or based on misreading of evidence.
Final Decision
Both Second Appeals are dismissed. The judgments of the courts below are confirmed. No order as to costs.
Law Points
- Specific performance
- burden of proof
- title and possession
- validity of gift deed
- co-owner's right to transfer
- Portuguese Civil Code
- Code of Civil Procedure 1908 Section 100
