KUTTIALIKUTTY MARAKKAR HAJI Vs. THAZHATHIL KANDANKUTTY

JUDGEMENT

(1.) The plaintiff has executed a Panayam deed (Ext. B-1) and the 1st defendant in return a Panayakaichit (Ext. A-1) on April 18,1953. The advance under the transaction is Rs. 100/- and the rental payable to the plaintiff Rs. 11 per annum. The 1st defendant contended that, though two items of properties were mentioned in the deeds, they really concerned the 1st item alone, that the 2nd item had not been given possession to him and that till he received the suit notice be was even unaware of the mention of the 2nd item in the deeds. The Munsiff found that item No. 2 did not belong to the plaintiff and that the rental stipulated in the deeds was for the 1st item only; and that has been upheld by the Subordinate Judge. The Courts below have accordingly decreed the arrears of rent claimed. In this second appeal the plaintiff challenges the negation of his title to plaint item No. 2.

(2.) It is conceded that suit item No. 2 belonged originally to the 2nd defendant. On September 26, 1945, he had executed a deed of gift, Ext. B-6, in favour of the 8th defendant, his daughter, who was then 2 months old, expressly stating therein that thereafter he would be holding the property as her guardian. It appears that subsequently the donor had changed his mind, and executed Ext. A-5 on November 6, 1950, assigning the property to the plaintiff and delivering his document of title along with it. Defendants 3 and 8 mother and daughter contend that the assignment to plaintiff is incompetent and void. The Courts below have found Ext. B-6 valid and Ext. A-5 incompetent. The correctness of those findings is canvassed in this second appeal by the plaintiff.

(3.) Counsel for appellant contended that the parties are Shafeis under whose personal law a gift by an ascendant to a descendant is revocable at will and that, under S.42 of the Transfer of Property Act, a subsequent alienation by the father donor operates as revocation of the earlier gift. Counsel for respondents points out that there is neither pleading nor proof in the case that the parties are Shafeis.