TMI Blog1995 (3) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... s, therefore, in favour of the appellant were invalid, inoperative and do not bind them. The appellant pleaded that Maqdoom had entered into an agreement of sale under Ex.D-22 on April 12, 1961 to sell 12 acres of land for valuable consideration and had executed the sale deed,Ex.D-1 dated May 12,1961, to discharge antecedent debts. Similarly an agreement of sale of 4 acres of land for 2,500/- was executed and the appellant had obtained permission from the Assistant Commissioner on August 4, 1964 for sale thereof When he and Smt. Chandi refused to execute the sale deed, he filed OS No.4/1 of 1966 for specific performance which was decreed on contest and the sale deed Ex.D-3 was executed and registered by the court. Their parents had not given any gifts which were set up only to defraud the appellant. It was brought out at the trial that in OS No.3/1/1951 filed by one Ismail on the foot of a possessory mortgage, the executability of another decree obtained by another creditor, was impugned, wherein by judgment and decree dated September 24, 1951, the Court held that Maqdoom had jointly gifted the lands to the respondents and their mother by a registered gift deed. 2. The afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings of fact on merits is legal. Having given our anxious consideration to the respective contentions of both the counsel we think that the High Court was wholly wrong in its approach. Neither the mother nor the father examined as witness to prove the gifts said to have been given in favour of their minor sons Ismail and Ibrahim respondents Nos. 1 2. Syed Ismail too was not examined as a witness. Ibrahim in his evidence had admitted the execution of the sale deed by his father and he acted as an attesting witness to the sale transaction under Ex.D-1. He also admitted that his father mortgaged the property under Ex.P-3. In the objection petition the gift was not set up. The appellate court, as a final court of fact found dim alleged registered gift deed said to have been jointly given by Maqdoom jointly to his minor sons and wife was not filed either in this suit or in OS No. 3/1/1951. 5.Under s. 147 of the Principles of Mahomedan Law by Mulla, 19th Ed., Edited by Chief Justice M. Hidayatullah, visages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential to the validity of a gift th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be made under the Guardians and Wards Act, 1890 . Section 359 enumerates the persons entitled, in the order mentioned therein, to be guardian of the property of a minor, namely, (1) the father; (2) the executor appointed by the father's will; (3) the paternal grand father, and (4) the executor appointed by the will of the paternal grand father. Section 362 limits the power of the legal guardian to alienate immovable property except in the circumstances enumerated therein. Similarly, the court guardian has no power to mortgage or charge or transfer by sale, gift exchange or otherwise and part with possession of immovable property of the ward or to lease that prop except with the previous permission of the court and subject to the conditions men- tioned in s.363. Admittedly, no property guardian was appointed to act on behalf of the minors. No evidence, that the father acted as legal guardian. So also there is no proof of acceptance of the oral gifts said to have been made by the, mother to Ismail the eldest son, of her undivided share. There is no proof as well that possession was delivered under the oral gift and accepted on behalf of the minor and taken possession. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rban Ali, 1974 (2) SCC 151. Take for instance that if in a suit by 'A' against 'B C', die matter is directly and substantially in issue between B C, and an adjudication upon that matter was necessary to determine the suit to grant relief to 'A'; the adjudication would operate as res judicata in a subsequent suit between B C in which either of them is plaintiff and the other defendant. in other words, if a plaintiff cannot get at his right without trying and deciding a can between co-defendants, the court will try and decide the case, and the co-defendants will be, bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co- defendants, the codefendants will not be bound as between each other. 9.Where the above four conditions did not exist the decree does not operate as res judicata. It must, therefore., be that all the persons who have right title and interest are made parties to the suit and that they should have knowledge that the right, tide and interest would be in adjudication and the finding or the decree therein would operate as a res judicata to their right, title and int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical application of the principles laid by this Court in Iftikhar Ahmed's case (supra). The pleadings in OS No.3/1/1951 were not produced in the courts below. The judgment, Annexure 11 indicates that the respondents and their another brother and the parents were impleaded as defendants 1 to 5. Sixth defendant was the decree holder in another suit. It was claimed therein that the defendants 1 to 4 were said to have executed possessory mortgage in favour of one Ismail the plaintiff therein a joint written statement was filed by them admitting the claim of the plaintiff who had pleaded the gift said to have been given by Maqdoom in favour of the three sons and his wife. They have admitted the same. Thus it would be clear that there was no conflict of interest between the defendants in that suit On the other hand they had confessed to the claim set up by the alleged possessory mortgage therein. Though the appellant claimed title to the property through the parents of the respondents, there was neither conflict of interest nor was it necessary to decide about the validity of the gift said to have been executed by Maqdoom. The dispute therein was whether the possessory mortgagee was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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