VIMALA Vs. B NARAYANASWAMY

JUDGEMENT

(1.) certain interesting facets of the law relating to the conferring of a gift within the framework of the Transfer Of Property Act have been canvassed in this pair of appeals and require to be resolved. There is on record a document dated 26-11-1945. That was executed in relation to the property in dispute by deceased sadamma. On the date of execution of that document, the admitted position was that all her children except two daughters by the name of sharadamma and rajamma had died. The document in question though it is in kannada was admittedly executed by the deceased and is on record. It is in relation to certain clauses in this document that the entire controversy has arisen for which purpose i propose to summarise the significant Provisions that were contained therein.

(2.) the recitals in the document are to the effect that only two of sadamma's children namely sharadamma and rajamma were alive as on the date of execution of that document. No reference is made to the legal heirs of the deceased children though there is a statement to the effect that these two ladies were the only surviving children of sadamma. The mother proceeds to state that as far as sharadamma is concerned that she has no children and that she is residing with the mother sadamma and looking after her. She also states that sharadamma has no other means of livelihood. On the other hand, she states that as far as rajamma is concerned, that she is married and residing with her husband and that she has children and she goes on to implicate that rajamma appears to be reasonably well off insofar as she states that she has no problems of any type. Thereafter the averments are to the effect that the property in question is being gifted to sharadamma who in turn is permitted to use one-half of the property during her lifetime and she was given the option of donating the other half of the property to a temple or for religious purposes to an institution of her choice for the benefit of the family. The document goes on to state that the choice of the institution shall be left to sharadamma as far as one-half of the property is concerned but it states that as far as the other half is concerned which is retained by sharadamma, that it will go to rajamma and her sons after sharadamma's death. There is one more clause which states that if the option to donate half the property for religious purposes is not exercised and if sharadamma retains the whole of the property then, that on her death the whole of it will devolve on rajamma and her sons. Lastly, there is a general embargo both on sharadamma and rajamma as far as alienation of the property is concerned which appears to signify that sadamma desired that save and except the possible donation of one-half of the property for religious purposes, that neither of her daughters were permitted to alienate the property to a third party insofar as obviously she desired that it should stay in the family and that too with the sons of rajamma since sharadamma had no children.

(3.) it is with regard to the interpretation of these clauses and the legal effects that flow therefrom and the restrictions if any placed by the Provisions of the Transfer Of Property Act that a real dispute has arisen. Sometime after the death of sharadamma, the present plaintiff who is the daughter of the predeceased sister nanjamma agitated her claim on the ground that the aforesaid document must be treated as having conferred absolute rights in respect of the whole of the property on sharadamma and on her death, since she had no children, by operation of the Provisions of Section 15 of the hindu Succession Act that the property must devolve equally on rajamma or her heirs and on the plaintiff who was one such heir entitled to receive the other half share. This suit which was numbered as o.s. No. 404 of 1973 came to be withdrawn on 23-8-1974. A submission was made at the bar that the suit was withdrawn because sharadamma was promised her share and since this did not materialise, that she has reinstituted the proceedings. This averment also finds place in the plaint. I have referred to this aspect of the matter because one of the contentions that was argued by the respondents' learned Advocate at the hearing, is that the second suit is barred by virtue of the Provisions of order 23, Rule 1 insofar no leave of the court was obtained to reinstitute the proceedings if so advised at a later point of time. In support of this contention, apart from the relevant Provisions of the c.p.c., the respondents learned counsel has drawn my attention to a decision of the Supreme Court in M/s. Hulas rai baij nath v firm of M/s. K.b. bass and co.. The dispute on that occasion was slightly different namely the question as to whether the plaintiff has the unqualified right of withdrawal of the suit because it had made considerable headway and there is an observation in the judgment to the effect that even though the plaintiff has an unqualified right of withdrawing the suit that having regard to the position of order 23, Rule 1, if leave of the court is not obtained to institute a fresh proceeding, that a bar would arise having regard to the aforesaid provision. Quite apart from the merits of the matter, respondents' learned Advocate has submitted that having regard to this legal infirmity, this court will have to treat the suit itself as having been stillborn and consequently, record an order of dismissal on the ground that the suit itself was not maintainable.