Sec 35 of the specific relief act
basavaraj shiromani
(Querist) 23 April 2014
This query is : Resolved
A Muslim lady gifted her all the proprety in favour of B. Subsequenly after her death, her relatives challanged the gift deed by filing a suit and got decreed the sut exprte as B did not tried to appear before the court. now the children of B filed a suit for declaration that the decree is not bindign upon them.
my question is during the life time of B, his children have a right sue against the said decree ? B is not challanged it. whether it attracts sec 35 of sra
Devajyoti Barman
(Expert) 24 April 2014
A decree can be challenge but only if it is proved that it was obtained by playing fraud upon court.
Without seeing plaint it can not be said whether it is maintainable or not.
Guest
(Expert) 24 April 2014
You have not clarified whether you are the advocate from the side of relatives of the lady or the gifted property owner. You have also not stated whewther the property is being claimed from B or through the children of B.
However, on the face of your generic question, it can safely be opined that if B, the gifted property owner, is disinterested to contest the decree, his children do not enjoy any right to sue against the decree during the life time of B. Only B needs to take initiative.
Rajendra K Goyal
(Expert) 24 April 2014
All documents and decree, gift deed need to seen before any opinion, consult a local lawyer.
basavaraj shiromani
(Querist) 24 April 2014
Mr. Goyalje thank for your reply. please verify my question.
T. Kalaiselvan, Advocate
(Expert) 24 April 2014
Once the property was gifted to B by that lay, it becomes the property of B but it should be seen that whether the Muslim Lady who gifted the property had valid title to execute the said gift deed in favor of B. Therefore it is presumed that the B remained silent knowing the facts that the donor had no rights or title to the property gifted and thus allowed the suit to be decreed ex-parte. Under the circumstances, if the property never was in the possession of B and he had no title over it, his legal heirs are unnecessarily fighting a legal battle in the name of declaration suit knowing it very well that it is not sustainable.
Thus under the given circumstances in my opinion the provisions of section 35 of the Specific Relief Act, 1963 may not attract.
malipeddi jaggarao
(Expert) 25 April 2014
Unless the title of the donor,the plaint filed by the legal heirs challenging alienation of property, it is difficult to give any valid advice. However basing on the presumptions if the donee is not interested to contest the case, his legal heirs cannot do anything.
