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2023 (9) TMI 1432 - SC - Indian Laws


Issues Involved:
1. Whether the Plaintiff is entitled to ownership and possession of the entire second Schedule property or only a one-sixth share therein?
2. Whether the gift-deed, dated 24.04.1982, was fraudulently obtained from Fathima Beevi and never acted upon?
3. Whether the sale-deed dated 14.11.1990, executed by Fathima Beevi in favour of Plaintiff, is valid?
4. Whether the property described in the second Schedule belonged to Fathima Beevi on the basis of a Hiba executed by her father?
5. Whether a revision under Section 115 of the Code of Civil Procedure is maintainable against an order of the subordinate Court rejecting on merits an application for review of an appealable decree passed in a civil suit?

Summary:

Issue 1: Ownership and Possession
The trial court decreed that the Plaintiff is entitled to a one-sixth share in the second Schedule property, rejecting the claim for exclusive ownership. The High Court, however, modified the decree, declaring the Plaintiff as the absolute owner of the entire property.

Issue 2: Validity of the Gift-Deed
The trial court found the gift-deed dated 24.04.1982, executed by Fathima Beevi in favor of Khaja Mohideen, to be invalid. This decision was upheld by the High Court, which also found that the gift-deed was obtained by exercising undue influence and coercion.

Issue 3: Validity of the Sale-Deed
The trial court held the sale-deed dated 14.11.1990, executed by Fathima Beevi in favor of the Plaintiff, to be valid. This finding was not contested and was implicitly upheld by the High Court.

Issue 4: Ownership Based on Hiba
The trial court determined that the property described in the second Schedule belonged to Fathima Beevi based on a Hiba executed by her father. This finding was not explicitly contested in the appeal.

Issue 5: Maintainability of Revision Under Section 115 CPC
The Supreme Court held that a revision under Section 115 of the CPC is not maintainable against an order rejecting on merits an application for review of an appealable decree. The proper remedy is to file an appeal against the decree itself, with the possibility of condoning the delay if the review application was diligently pursued. The High Court's decision to entertain the revision and modify the trial court's decree was found to be erroneous. The Supreme Court set aside the High Court's judgment and order, allowing the appeal while preserving the Plaintiff's right to file an appeal against the trial court's decree along with an application to condone any delay.

 

 

 

 

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