Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Code of Civil Procedure 1908-Section 11 |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Code of Civil Procedure, 1908-Section 11-:Res judicata-Conditions for applying the doctrine in the case of co-defendants-Fraud or collusion-Effect of.Mahomedan Law-Gift-Essential conditions for validity of Mahomedan Law-Guardianship-Mother cannot act as guardian of a minor.The respondents filed a suit for possession against their father M and the appellant claiming that their father had illegally sold the suit land in favour of the appellant in collusion with the Patwari, while they were minors. The respondents claimed that their father had gifted the suit land jointly in their favour and in the favour of their mother by executing a registered gift deed and their mother in tum had orally gifted her share to one of the respondents and therefore their father had no authority to alienate the suit land. The appellants resisted the suit pleading that the suit lands were sold to him for consideration and in discharge of debts.In another suit filed by another person claiming to be possessory mortgagee of the suit land and impugning a decree in favour of another creditor of the father of the present respondents, it was held that the father of the respondents had gifted the land jointly to the respondents and their mother. The respondent and their father, who were co-defendants in the said suit, had filed a joint written statement admitting the claim of the plaintiff in the said suit. The respondents urged that this would act as a res judicata against the appellant as he was claiming title to the suit property through their father.The trial court rejected the plea of res judicata but decreed the suit on merit.The point of res judicata was not urged before the first appellate court, It held that - (i) the name of the father of the respondents continued to appear as owner in the revenue records till it was mutated in favour of the appellant; (ii) the gift deed executed by the father was not proved (iii) the oral gift made by the mother was false as neither the acceptance of the gift nor delivery of possession was proved (iv) the mother cannot act as a guardian of the property when father was alive. The first appellate court allowed the appeal holding that the alleged gifts were only a device to defraud creditors.In second appeal, the High Court reversed the order of the first appellate court only on the ground of res judicata without disturbing the finding of facts. Hence, the present appeal. |
Judge | Hon'ble Mr. Justice K. Ramaswamy |
Neutral Citation | 1995 INSC 208 |
Petitioner | Mahboob Sahab |
Respondent | Syed Ismail And Ors. |
SCR | [1995] 2 S.C.R. 975 |
Judgement Date | 1995-03-23 |
Case Number | 513 |
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