NINGAWWA Vs. BYRAPPA SHIDDAPPA HIREKNRABAR

JUDGEMENT

(1.) This appeal is brought, by certificate, from the judgment of the Mysore High Court dated July 29, 1960 in R. A. (B) 71 of 1956, whereby the High Court allowed the appeal of the respondents and dismissed the suit of the appellant.

(2.) In the suit which is the subject-matter of this appeal the appellant asked for a decree for possession of the properties mentioned in the schedule to the plaint on the ground that she was the owner of the properties in spite of the gift deed, Ex. 45 executed by her on January 16. 1938. According to the case of the appellant, plots Nos. 91 and 92 of Lingadahalli village were inherited by her from her father and plots Nos. 407/1 and 409/1 of Tadavalga village were originally the properties of her husband Shiddappa. These plots had been usufructually mortgaged but they were redeemed from the funds supplied by the appellant and a reconveyance of the two plots was taken in the name of the appellant. At about the time Ex. 45 was executed it is alleged by the appellant that her husband Shiddappa was dominating her will and persuaded her to execute the gift deed in respect of plots 407/1 and 409/1 of Tadavalga village. The appellant was taken to Bijapur by her husband on January 16, 1938 and there Ex. 45 was written and she was made to sign it. The document was registered on January 18, 1938 at Indi. The appellant believed that the document, Ex. 45 related to only plots Nos. 407/1 and 409/1 of Tadavalga village. She was never told by her husband that the document related either to plot No. 91 or plot No. 92 of Lingadahalli village. Shiddappa died in about the end of December, 1949 and till then she was amicably living with him and consequently she had no occasion to know about the true character of Ex. 45 or about its contents. Shiddappa had taken a second wife in the year 1941 and after the death of Shiddappa in 1949 the relations of the second wife, respondent No. 4 began to assert their rights in respect of the properties of the appellant. Growing suspicious of the conduct of the respondents, the appellant made enquiries from the Karnam of the village and found that in Ex. 45 she was purported to have made a gift of properties included in plots 91 and 92 of Lingadahalli village to her husband Shiddappa. Consequently the appellant brought the present suit for possession of properties. Respondent No. 4 is the second wife of Shidddappa and respondents 1 to 3 are the children of Shiddappa through respondent No. 4. They resisted the appellant's suit and contended that the gift deed in favour of Shiddappa, Ex. 45 was valid and that the same was executed voluntarily by the appellant and consequently it was not liable to be set aside. The trial court came to the conclusion that Shiddappa obtained Ex. 45 by the exercise of undue influence over the appellant, that he had represented to her that it related only to plots Nos. 407/1 and 409/1 of Tadavalga village and he had fraudulently included in the document plots Nos. 91 and 92 of Lingadahalli village. The trial court, however, dismissed the appellant's suit in respect of plots Nos. 407/1 and 409/1 on the ground that the suit was barred under Article 91 of the Limitation Act. With regard to plots 91 and 92 of Lingadahalli village the trial court gave a decree in favour of the appellant. The respondents took the matter in appeal to the Mysore High Court. The appellant filed cross-objections against the decree of the trial court.' By its judgment dated July 29, 1960, the High Court allowed the appeal and dismissed the cross-objections thereby dismissing the suit of the appellant in its entirety. The High Court confirmed the finding of the trial court so far as plots Nos. 407/1 and 409/1 of Tadavalga village were concerned and held that the suit was barred by limitation as it was not filed within three years of the execution of the deed. As regards plots Nos. 91 and 92 of Lingadahalli village the High Court held that the alleged fraud had not been established by the appellant.

(3.) On behalf of the appellant learned Counsel contended, in the first place, that the High Court was not justified in interfering with the finding of the trial court that plots Nos. 91 and 92 of Lingadahalli village were included in the gift deed by the fraud of the husband without knowledge of the appellant. It was pointed out that the finding of the High Court is vitiated because it has not taken into account certain important circumstances upon which the trial court relied for reaching its finding. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. At the time of the gift deed, the appellant was a young woman of about 24 years of age. She was illiterate and ignorant and all her affairs were being managed by her husband who stood in a position of active confidence towards her. The trial court found that the appellant's husband was in a position to dominate her will. The document of gift also appears to be grossly undervalued at Rs. 1,500 while actually the value of the property was about Rs. 40,000 at the relevant date. The trial court has found that plots Nos. 91 and 92 of Lingadahalli village were the most valuable and fertile lands owned by the appellant before the execution of the gift deed. It is the admitted position that not only the appellant and her husband but her husband's two brothers and their families lived on the income of the two plots. There appears to be no reason whatever for the appellant to agree to transfer the valuable lands of plots Nos. 91 and 92 of Lingadahalli village inherited by her from her father to her husband. It was suggested on behalf of the respondents that it was the desire of the appellant that her husband should marry a second wife and he could not find a bride to marry unless he possessed sufficient properties and therefore the appellant executed the gift deed in favour of her husband with a view to enable him to find a bride. But it is an undisputed fact that the appellant's husband married the 4th respondent about three years after the execution of the gift deed and it is not possible to accept the case of the respondents that there was any connection between the gift deed and the second marriage of Shiddappa. The High Court has referred to the evidence of the attesting witness, Bhimarao who said that the document was read over to the appellant before she put her thumb impression thereon. On the basis of this evidence the High Court came to the conclusion that the plea of fraud could not be accepted as Shiddappa would not have allowed the document to be read over to the appellant if he intended to perpetrate a fraud on her. But Bhimarao was not a disinterested witness because it is admitted that he had been approached by the respondents before they filed the written statement in the suit. For this reason the trial court disbelieved the evidence of Bhimarao and no reason has been given by the High Court for taking a different view of the evidence of this witness. The other attesting witness, Venkappa does not say that the gift deed was read over to the appellant before her thumb impression was taken on it or that she knew of its contents. In our opinion the Civil Judge was right in taking the view that the appellant never agreed to convey the lands in plots Nos. 91 and 92 of Lingadahalli village and that they were included in the gift deed by the fraud of Shiddappa without the knowledge of the appellant.