RASHIDA AMAD KAS Vs. ABDUL GAFFAR AMAD KAS

JUDGEMENT

(1.) This appeal by the appellant-original plaintiff has been filed being aggrieved and dissatisfied with the judgment and decree dated 14-10-2009 passed by the learned 7th Addl. Senior Civil Judge, Jamnagar, in Special Civil Suit No.83 of 2007 whereby the suit of the plaintiff was dismissed.

(2.) The facts of the plaintiff in short that the plaintiff is the daughter and the defendant is the son of Amad Musa and are real sister and brother. Their grandfather Meman Musa Amad had acquired the suit property by an entry of promulgation dated 16-1-1956 bearing land Survey No.659/1 without making any administration of the suit property and thus is an ancestral property and her deceased father had no right to deal with the said property. However, their father made a registered gift deed on 17-11-1982 favouring the defendant. The plaintiff came to know about the same when she asked for her share from the defendant and hence, she demanded her right in the suit property on 27-6-2007 and thereafter filed the aforesaid suit seeking partition of her share and administration of the property left by deceased Meman Musa.

(3.) The defendant filed his reply at Ex.16 contending inter alia that the suit suffers from delay and laches. It was further contended that as the suit was for administration of the suit property, legal heirs of the deceased were to be brought on record. According to the defendant, the deceased grandfather made the registered gift deed in favour of their father, who made registered gift deed in his favour and thus he became the real owner of the suit property which fact was known to all family members. It was further contended that well prior to the marriage of plaintiff on 21-10-1989, the registered gift deed dated 17-4-1982 was in existence. It was further contended that their grandfather Musa Amad died in 1970 while their father Amad Musa died in 1995. It was further contended that defendant and Ayishaben and Jabunben were born out of wedlock of Amad Musa with first wife while the plaintiff, Kulsumben and Harunbhai were born out of marriage of Amad Musa with second wife. It was further contended that as per the Muslim Law, father of the parties acquired absolute rights to make gift deed and since the gift deed was executed as per the Mohammedan Law in his favour, suit was not tenable. He therefore prayed for dismissal of the suit.