- (1.) THIS is an appeal by the defendant against decree of injunction granted in favour of the plaintiff by the lower appellate Court in AS No.20 of 1992, dated 11.12.1997.
(2.) FOR the sake of convenience, the parties are referred to as they are arrayed in the suit. The respondent/plaintiff filed a suit for injunction simplicitor with respect to suit schedule land while contended that the said land was gifted to her by her father (since deceased) under Ex.A1 registered gift deed, dated 17.5.1985. The said gift deed is attested by PW2 and that the plaintiff is paying the land revenue with respect to the said land as evidenced by Ex.A2 land revenue receipt dated, 7.1.1989, while asserting that the plaintiff is in possession and defendant is threatening to dispossess the plaintiff she filed the present suit for injunction on 13.7.1989. The appellant, who is the defendant resisted the suit by filing a written statement claiming that the property is ancestral property of the father and that the father had no right to execute the gift of a part thereof and that the document of gift relied on by the plaintiff and marked as Ex.A1 in the suit is void. The trial Court framed the issues as follows: 1. Whether the plaintiff is entitled to permanent injunction as prayed for? 2. Whether the gift deed dated 17.5.1985 is valid? 3. To what relief? While considering the same issues on the basis of evidence of plaintiff namely PW1 and that of the attestor of gift deed PW2 and Exs.A1 and A2 marked on behalf of the plaintiff together with defendant's evidence as DW1 and pattadar passbook of his land as Ex.B1, came to the conclusion that Section 30 of the Hindu Succession Act saves only testamentary dispositions and as such the father of the plaintiff had no right to execute the gift deed. Ex.A1 gift deed was therefore held void. The trial Court discussed the evidence relating to possession as claimed by the plaintiff but on the basis of its finding that the gift deed is void, dismissed the suit holding that plaintiff ought to have filed a suit for partition but cannot maintain the suit for permanent injunction.
(3.) THE said decree was reversed by the lower appellate Court by taking into consideration several admissions of the defendant as DW1 and on the basis of evidence laid by the plaintiff, came to the conclusion that the aspect of validity of gift deed did not arise in a suit of this nature and that the trial Court committed error in not even choosing to discuss the aspect of the possession of the plaintiff and dismissing the suit. THE appellate Court in particular, noted the admission of the defendant that he is not in possession and enjoyment of suit schedule property and that he is in exclusive possession and enjoyment of another Ac. 1.22 cents in the same survey number. THE appellate Court, therefore, was of the view that the plaintiff has established her case and she is entitled to injunction. THE said appellate Court's decree is questioned in this second appeal and at the time of admission, this Court has admitted the appeal on the following substantial questions of law: 1. Whether the plaintiff is entitled to permanent injunction without establishing her possession on the date of filing of the suit? 2. Whether the conveyance made in respect of a joint family property without the consent of the other coparcener is valid? 3. Whether a relief of permanent injunction be granted against a coparcener? Heard both sides. The learned Counsel for the appellant raised contentions that the gift deed itself is void as the father had no right to gift away part of the ancestral property. He also submits that the admissions of the defendant are clearly explainable and that itself is not sufficient to decree the suit of the plaintiff. Learned Counsel also relied upon judgment of this Court reported in V. Venkataramayya v. B. Venkateswara Rao, 1991 (2) APLJ NRC 56, for the proposition that Section 30 of the Hindu Succession Act saves only testamentary dispositions of joint family properties by coparceners and disposals by gifts are not saved and such gifts are void. He also relied upon the unreported judgment of the Supreme Court in Mukund Singh v. Wazir Singh, SC 1971, Volume 3, page 204, which is found in unreported judgments of the Supreme Court also for the proposition that a gift made by an adoptive father of coparceners property is void.;