MAHADEVI Vs. SARASWATI AND

JUDGEMENT

(1.) This second appeal arises from a suit brought by respondent I against the Appellant and respondent-2 for a declaration that the suit property which is a land with a house standing thereon was the property of defendant 2 (Respondent-2) as it had devolved on him by inheritance from his mother, that the statement alleged to have been given by defendant-2's mother for the transfers of the property to the name of defendant-1 (Appellant) without consideration was fraudulent and that the property was liable for attachment and sale in execution of the decree in Civil Suit No. 182 of 1947 obtained by the plaintiff against defendant-2. The plaint was later amended by adding a prayer for a permanent injunction restraining defendant-1 from obstructing the plaintiff from executing the abovementioned decree. Defendant-1 resisted the suit contending that defendant 2, had never had any interest in the property, that the transfer made to her name by her mother-in-law was valid and bona fide, that the suit was not maintainable and that it was barred by limitation. Defendant-2 supported her contending that he had no interest in the suit property which was the (sic) property of his mother who, not desiring that the property should go either to him or her daughter or her daughter's son, made it over to her daughter-in-law, and that it was a bona fide transaction. He further contended that even if the transfer in favour of defendant-1 had not been effected be (defendant-2) would not have inherited the property. The learned trial Judge held that there was no effective transfer of the property as the gift was not made by a registered instrument, that defendant-2 was the sole heir of his mother and became the owner of the property on his mother's death, that the suit was maintainable under Section 42 of the Specific Relief Act and that it was sot barred by limitation. He accordingly made a decree declaring that the suit property belonged to defendant-2 and that it was liable to be attached and sold in execution of the plaintiff's decree in G. S. No. 182 of 1947 and restraining defendant 1 from obstructing the plaintiff in executing her decree as against the suit property.

(2.) On appeal by defendant 1, this decision, was confirmed by the appellate Court below except for the modification that the declaration in regard to the liability of the property for attachment was deleted since it had already been attached before judgment in the earlier suit. Defendant 1 has preferred this second appeal against the concurrent decision of the Courts below.

(3.) The game contentions as in the Courts below have been urged here. It is clear that defendant 1 obtained no right to the suit property since the transfer by her mother-in-law was not effected by a registered instrument and even assuming that defendant I was in exclusive possession of the property in her own right, from the date of the gift, the present suit was filed within 12 years from the date of the alleged gift, namely, 30-5-1947 and defendant 1 could not claim to have perfected her ownership by adverse possession, nor indeed did she put forward any such case. As regards the character of the transfer the Courts below have come to the conclusion, that it was not a bona fide one. This is a concurrent finding of fact and does not call for interference. It is certainly borne out by the material on record. The alleged statement by defendant 2's mother, a copy of which is marked Ex. 28, purports to have been addressed by her to the inhabitants xzkeLFk: of Honavar village. I am told that the word is used in the sense of village officer. All that it states is that the suit property which was standing in her name should be entered in her daughter-in-law's name. Defendant 2 has stated in the course of his evidence that the Shanbhogue village officer did not take any statement from his mother, that it was his wife who took the statement to the Gramasthas and that one Bhat from Udipi wrote the Patrika (statement). The plaintiff's suit was pending at that time, or about to be filed. Defendant-2's mother died on 3-6-1947, i.e., four days after the statement and the entry in the name of defendant-1 in the revenue register appears to have been got made on 10-6-1947. The plaintiff appears to have had the attachment before judgment of the property effected on nth June 1947. It cannot be said that the Courts below were not warranted in holding on the basis of these circumstances that the alleged transfer in favour of defendant-1 was not bona fide.