Decided on August 04,1971

AMIR ALI KHAN Respondents


- (1.) This appeal by the defendants is directed against the judgment and decree of the learned Subordinate Judge Adoni in A. S. 12 of 1970 reversing the judgment and decree of the learned Munsif Magistrate in O. S. 66 of 1968.
(2.) The suit is for recovering of possession of a house bearing No. 7/125 in Bathamcherla Panchayat. That house belonged to one Ali Khan, the father of the plaintiff. Ali Khan had put one Dasari Subbana in possession of the said those by way of usufructuary mortgage till a loan of R. 50/- taken by him was discharged. This house was the subject-matter of a partition suit. O. S. 76/59 on the file of the Sub-Court, Kurnool, Under the file decree I that suit, the plaint schedule property fell to the share of Nabi Khan/ Nabi Khan executed a gift deed dated 2/6/1067 in favour of the first defendant is the husband of the first defendant. The said gift-deed is marked as Ex. B-1 Nabi Khan who was the resident of Kurnool died on 9-6-1967. The plaintiffs who are the heirs of Nabi Khan have session present suit for recovery of possession of the suit house contending, interalia, that the gift-deed executed by Nabi Khan in favour of the first defendant was not valid in law, as possession was not delivered to the donee. The defendants pleaded that possession was delivered. The trial Court held that the gift was valid in as much as possession was delivered and dismissed the suit. On appeal, the learned Subordinate Judge held that there was not actual delivery of possession, in an much, admittedly the house was in the physical possession and enjoyment of P. w. 2 Maddaiah. In the appellate court, the other issues decided by the trial court observed in paragraph 5 of the judgment that "both the advocates admit that they do not contest the findings of the learned Munsif on other issues."
(3.) The main question, therefore that falls for consideration in this appeal. is whether the gift-deed is valid and whether the donee could be said to have been in possession of the house when it was under usufructuary mortgage with P. W. 2.;

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