STATE Vs. PARVATHI

JUDGEMENT

(1.) THE defendant contended the gift deed, Ext. B, was a sham transaction, that it was fraudulently executed by Ummini with the object of defeating the State and that the property was liable to be proceeded against for the amount due to the State from Ummini. It was also contended that the suit was barred by limitation. This last plea was, however, not pressed by the defendant at the time of hearing. THE trial court held that Ext. B was a valid gift and that it was not executed for the purpose of defeating the State. THE suit was, therefore decreed with costs.

(2.) THE two questions that arise for decision in this appeal are (1) whether the gift deed, Ext. B, took effect and (2) if it took effect, whether it was executed with intent to defeat or delay the creditors of ummini. So far as the first question is concerned we have only to see whether the gift was accepted by the donees. Under S. 122 of the Transfer of Property act a gift is complete when it is accepted by or on behalf of the donee. S. 122 reads: "gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. " THEre is ample evidence in this case to show that the gift was accepted by the donees. THE gift deed is dated 7. 12. 1105. Under a registered lease deed, Ext. A, dated 1-4-111 0 the first plaintiff leased the property to PW. 2. PW. 2 proves Ext. A and swears that he was in possession of the property as per the lease deed. When dw. 3, Provorthicar, was asked whether PW. 2 was not living in the building in the property and taking the yield from the property the answer given by him was that he does not remember. After the expiry of the term of the lease, Ext. A the property was given on lease by the plaintiffs to one Sankaran Ummini under another registered lease deed, Ext. C dated 10. 4. 1114. PWs. 1, 2 and 3 swear to the possession of Sankaran Ummini under that lease deed. Both in Exts. A and C, it was stated that the plaintiffs got the property under the gift deed, Ext. B. After the date of the gift deed mutation was effected in the names of the plaintiffs. It is not disputed that plaintiffs are paying the tax for the property. THE building that was in the property on the date of the gift deed was rebuilt by the first plaintiff. PW. 1 swears that she rebuilt the house with her own money and that she spent about Rs. 700 for the purpose. PWs. 2 and 3 also swear that the building was rebuilt by the first plaintiff with her own money. THE Proverthicar admits as DW. 3 that the building was repaired after the date of the gift deed. It is clear from those facts that the gift took effect and that the donees were holding the property in their own right. THE fact that ummini was living in the property even after the execution of the right deed does not go to show that the gift did not take effect. Ummini had no other house and it was only natural that he should live with his wife and children. It was argued for the State that there is a provision in the gift deed that the donees should maintain Ummini and that it goes to show that Ummini continued to be the beneficial owner of the property. We do not think that this provision amounts to anything more than the expression of a pious wish. No right in the property is reserved in favour of Ummini under the gift deed. It has been held by this Court that a direction in a gift deed that the donee should maintain the donor till his death will not make the gift a conditional one if the terms of the gift deed show that there has been an absolute transfer of the property in favour of the donee and that such a direction will be regarded only as an expression of pious wish on the part of the donor. (Vide Subramonia Iyer v. Sankara Iyer,1951 KLT 479 ).

(3.) CERTAIN circumstances were relied on by learned counsel for the respondents to show that Ext. B was a bona fide transaction and that it was not executed with any fraudulent intention. It is in evidence that ummini was a consumptive patient. PW. 3 swears to it. DW. 3 Provorthicar also admits it. Ummini had only this one property. There was a debt charged on the property. According to the first plaintiff she discharged this debt by disposing of a property she got in her family partition. Ext. D is the sale deed executed by her and her mother on 27. 9. 1105. One of the recitals in that sale deed is Rs. 700/- to be paid to one Velumbi Parvathi under a mortgage executed in her favour by the first plaintiff, her mother and others in respect of the property covered by Ext. D and another property. Ext. 3 swears that the mortgage was executed by herself, her mother and Ummini charging the plaint property and the property covered by Ext. D. According to her the money under the mortgage was borrowed for Ummini's case and it was a debt he had to discharge. She also swears that this debt was subsequently discharged by one geevarghese Chacko who purchased a portion of the property covered by Ext. D. Ext. E is the copy of the order striking off the decree obtained by Velumbi parvathi. Although the original mortgage deed is not produced in the case there is no reason to disbelieve PW. 3 when she says that the debt discharged by her by the sale of her property was a debt of Ummini charged on the plaint property also. The wording of the recital in Ext. D lends support to this case. PWs. 1 and 2 also swears to the fact that there was a debt charged on the plaint property and that the first plaintiff discharged that debt by disposing of her own property. Ext. D sale deed was executed on 27. 9. 1105. Evidently the first plaintiff was anxious to save the property and the house in which she and her family were living. There was every reason to believe that Ummini who was a consumptive patient would not be able to discharge the debt charged on the property. The house in the property was also in a dilapidated condition and it had to be rebuilt. It was under these circumstances that Ummini executed Ext. B within three months from the date of Ext. D. As already stated, it is admitted by the Provorthicar that the house was repaired after the date of Ext. B. According to the Provorthicar the income from the property in 1105 was only Rs. 5 a year. In the circumstances there is no reason to believe that Ummini executed the gift deed in favour of his wife and children with any ulterior motive. It is only natural that Ummini would have thought it desirable to settle the property in favour of his wife and children in the circumstances in which he was placed. The first plaintiff belongs to Cheppad and she swears that it was while Ummini was in her house at Cheppad that he decided to execute the gift deed and that it was because of that that the document happened to be executed there. Ext. D was executed at Cheppad and Ummini is an attestor in that document. In the circumstances mentioned above we are inclined to take the view that Ext. B is a bona fide transaction and that it was not executed with the object of defeating or delaying the State.