V N ANNAMALAI REDDIAR Vs. GULSUM BIBI

JUDGEMENT

(1.) This is an appeal by an assignee-decree-holder who sought to attach in execution a house in Tiruchirapalli which was claimed by the respondent, Gulsum Bibi, as having been gifted to her by her husband, Yusuf, who appears to have been a Telephone Inspector employed in Burma.

(2.) The learned District Judge of Tiruchirapalli confirmed the finding of the District Munsif that the house belonged to Gulsum Bibi by virtue of a valid and completed gift. This second appeal has been pending since 1949 because, it is explained notice could not be served on Gulsum Bibi despite four attempts made to serve her in Rangoon. Ultimately substituted service was effected and her present whereabouts appear to be unknown. Unfortunatley therefore this appeal has to be heard and deposed of without hearing her or anyone on her behalf.

(3.) The relevant facts are these. The assignee-decree-holder look an assignment of a decree obtained by Yusuf's first wife in respect of her Mahr for about Rs. 816. Gulsum Bibi is Yusuf's second, wife. After Yusuf's death Gulsum. Bibi was impleaded as his legal representative. She contested the execution petition to attach this house: but unfortunately did not go into the witness-box herself. She examined two witnesses, one R.W. 1. who wrote the gift deed, Ex. B. 1, dated 193- 1939 and an attestor, R.W. 2. Ex. B. 1 was not produced from Gulsum Bibi's custody but from that of a third party who produced it on summons and was not himself unfortunately examined as a witness. It is also clear from the municipal tax receipts Exs. A. 3 to A.. 7 and from a Municipal Register extract, Ex. A. 8 that no transfer of registry of this house was effected by Yusuf in the name of Gulsuin Bibi on the basis of this settlement or gift deed, Ex. B, 1. A witness examined for the decree-holder, P.W. 2 deposed that he collected rents from tenants in occupation of this house and remitted it to the judgment debtor who was living with Gulsum Bibi in Rangoon during his life-time. The learned District Judge was fully alive to all these facts but nevertheless took the view that. Ex. B. 1 was a complete- and valid gift containing as it did a declaration that transfer of possession had been made to Gulsum Bibi. , 3a. The courts below did not refer to a condition in Ex. B. 1 which may be translated as follows: