A KRISHNARAYA KODGI Vs. A SARVOTHAMA KODGI

JUDGEMENT

(1.) The question for decision in this second appeal is one of construction of a deed of gift, Ex. P. 2, executed on 20-3-1918 by deft. 1 applt. before me in favour of deft. 2, the Indian section of the Theosophical Society, Benares, represented by its General Secretary at the time, for the use & benefit of the local lodge at Coondapur. On 6-10-1942 finding the suit property no longer required for the use & benefit of the local lodge which apparently had by that time ceased to exist & basing itself on the clause of reverter contained in Ex. P. 2 deft. 2 by its General Secretary at the time executed a deed of sale of the suit property in favour of deft, 1. The pltf. resp, 1 before me, used in the Ct. of the Dist. Munsif of Coondapur for recovery of possession of the entire subject matter of the gift deed but succeeded in obtaining a decree for only a half which was later confirmed on appeal by the learned Subordinate Judge of South Kanara.

(2.) Deft. 1 appeals to this Ct. against the appellate decision, urging as he did in the Cts. below, firstly that the suit must be regarded as in effect one for enforcing a right of pre-emption & as not brought in time, i.e., within one year from the date of the taking of possession by deft. 1 as prescribed by Article 49, Limitation Act; & secondly, that the clause of reverter contained in Ex. P. 2 must be regarded as altogether invalid in law & that Ex. D. 1 executed pursuant to such a clause could not operate to clothe the pltf. with any title whatsoever.

(3.) Before I deal with the contentions of Mr. Krishna Rao the learned advocate for the applt. it is as well that I set forth 'in extenso' the document, Ex. P. 2, on the terms of which the validity of the contentions necessarily depends :