MURIKIPUDI ANKAMMA Vs. TUMMALACHERUVU NARASAYYA AND ORS.

JUDGEMENT

(1.) THE first defendant in O.S. No. 290 of 1942, District Munsiff's Court, Gurzala, is the appellant in this appeal. K. Papayya who owned certain properties in Piduguralla and another village executed a deed of gift Ex. D -3 on 10th June, 1931, in favour of the 5th defendant, T. Hanumayya. It would appear that Papayya had a son who died and subsequently there was a partition between Papayya and his grandson and thereafter there was nobody to take care of him. He therefore took the 5th defendant Hanumayya to his house for the purpose of looking after him and assisting him in the management of the property. It is for this reason that the gift was made in favour of the 5th defendant who was closely related to the donor. It is the appellant's case that Hanumayya after a short stay with Papayya left Piduguralla and went back to his own native place Mallavolu and ceased to bestow any attention on Papayya or render him any assistance as expected. For this reason, it is alleged, Papayya revoked the gift deed Ex. D -3 by means of the deed of revocation Ex. D -4 dated 26th September, 1933. The differences between them are said to have been ultimately composed by mediators in 1934 under an arrangement by which half the suit properties were to revert to Papayya and the remaining half to continue to belong to the 5th defendant, the donee. Papayya sold under Ex. D -1 on 6th December, 1937, the suit properties to the appellant and the appellant claims that in spite of the gift deed Ex. D -3, Papayya had continued to be in possession of the suit properties until the date of Ex. D -1 and that after the sale under Ex. D -r the appellant continued to be in possession of those properties until the date of suit. On nth September, 1941, the 5th defendant Hanumayya sold the suit lands under Ex. P -1 to the plaintiff, the 1st respondent. The plaintiff's case is that ever since the date of the gift Ex. D -3, dated 10th June, 1931, the donee (his vendor) was in possession of the properties until his sale and that soon after that sale, that is, in December, 1941, or thereabouts, he, the plaintiff, was dispossessed by the defendant and his party. The plaintiff therefore brought the suit for a declaration of his right under the sale, Ex. P -1 dated 11th September, 1941, for possession of the property, for a permanent injunction against the defendants and for past and future mesne profits. The trial Court dismissed the suit holding that the gift deed, Ex. D -3, was conditional and that consequently, the donor was entitled to revoke it, the condition that was not fulfilled being that the donor must be maintained by the donee during his lifetime. It was therefore held that the revocation was valid. With reference to the oral arrangement that was said to have been made by the mediators, that was also found to be true. The plaintiff -respondent was therefore held to be estopped from disputing the title of the appellant. On appeal the learned Subordinate Judge reversed the decree of the trial Court and found that the gift was not conditional but absolute, that the donor had no power to revoke it and that consequently the revocation was not valid. He also found against the mediation and the oral arrangement and held that without such a plea there was no estoppel.

(2.) THE main question for determination in the appeal is whether the gift under Ex. D -3 was conditional in the sense that if that condition was not fulfilled, it was open to the donor to revoke the deed. The relevant portion in Ex. D -3 is this:

(3.) WITH reference to possession, reliance is placed on behalf of the appellant on cist receipts, lease deeds and also on the transfer of the patta which was made on 19th February, 1939, under Ex. D -5. It has been pointed out by the learned Subordinate Judge that the transfer was admittedly done without notice to the 5th defendant who was then the pattadar and without any enquiry. That statement has not been challenged before me. The cist receipts do not specifically refer to the suit lands by their survey number. The survey numbers of the suit lands are 795/4 -A and 795/1 -B. Such of the receipts as relate to Piduguralla refer to certain other number and there is no evidence to connect this number with the suit lands. The learned Subordinate Judge, however, adverted to Ex. P -3, Ex. P -4 and Ex. D -9, and said that those cist receipts show that it was the 5th defendant who paid the cist on the lands from fasli 1342 to fasli 1346 and that the patta for the lands stood in the 5th defendant's name till the mutation was effected in February, 1939. The other cist receipts do not throw any further light on the question. The lease deeds which have been filed by the appellant relate to a period subsequent to 1937. They are Ex. D -6 dated 10th May, 1938, Ex. D -7 dated 16th May, 1940, and Ex. D -8 dated 23rd March, 1942. These lease deeds are also not of much evidentiary value, because none of the lessees who is said to have taken the lease has been examined to show that there was actually enjoyment of the suit lands on behalf of the appellant during that period. In this state of the evidence, I find little difficulty in accepting the finding of the learned Subordinate Judge that the gift deed is true and valid, that it is not conditional and that it was intended to be given effect to and was actually acted upon. The revocation of that gift under Ex. D -4 is, it follows, not valid and operative.