MUNNI DEVI Vs. CHHOTI

JUDGEMENT

(1.) THIS is a defendant's Second Appeal in a suit for cancellation of a gift-deed executed by the plaintiff- respondent in favour of the appellant in the year 1963, and, in the alternative for the award of maintenance at the rate of Rs. 50/- per month. The plaintiff-respondent is the appellant's mother. The appellant is her only issue. After the gift, the plaintiff-respondent was left with some four bighas of land, but that she is said to have sold to her brother and that sale seems to have been the cause of the present litigation.

(2.) IT was alleged in the plaint that, being the only daughter, the defendant-appellant lived with the plaintiff-respondent and served and flattered her and promised to look alter her throughout her life. The plaintiff was made to believe that there may be trouble about the inheritance of the land after her death, and In view of the promise that the defendant-appellant would look after the plaintiff throughout her life, and the fear that there may be trouble about the property after her death, she made a gift of the property in suit to the defendant on 6th Dec. 1963. The suit was filed on 31st May, 1969, and the plaint proceeds on to allege that some two years before the suit the defendant left the plaintiff's house and started living at her father-in-law's place and stopped serving her or looking after her. That was an act of breach of faith or her part, while claiming the cancellation of the gift on these grounds, a decree for maintenance was specifically claimed.

(3.) ON appeal by the plaintiff, it was pleaded on her behalf that she was an aged and infirm mother without any means of support and was entitled to maintenance from the first defendant, and that the transfer made in favour of the defendants Nos. 2 and 3 being during the pendency of the suit, the title was subject to the result of the suit against the first defendant. The first question raised by the lower Appellate Court was whether the gift deed was liable to be cancelled. That was answered by the lower Appellate Court in favour of the defendants by holding that the claim was time barred: that the witnesses of the gift-deed or oral or documentary evidence to prove fraud or undue influence had not been produced, and that Lal Singh, who had executed the gift-deed along with the plaintiff had not joined in the suit. However, on the question about the plaintiffs' claim to maintenance at the rate of Rs. 50/- per month, the lower Appellate Court found that the word "kushamad" in the gift-deed includes "parvarish", and that it was the legal duty of the first defendant as the only daughter of the plaintiff to maintain her under S. 20 of the Hindu Adoptions and Maintenance Act, 1956. As to the question of creating, a charge on the property in suit, the lower Appellate Court Observed that in their written statement under O. 10, R. 2 of the Civil P. C. the defendants Nos. 2 and 3 admitted that they had received a notice from the plaintiff at the time of the execution of the sale-deed, and thus found that they had notice of her claim of maintenance against the property in suit, and further found that the transfer was lis pendens and was subject to the result of the suit. The argument that the first defendant had not promised to maintain the plaintiff in future was met by the lower Appellate Court by observing that although in paras 17 and 23 of the written statement the first defendant denied having made any promise to maintain the plaintiff, yet in para 33 of the written statement she offered to maintain the plaintiff. According to the lower Appellate Court, it was a false and mischievous offer and the first defendant get angry when her mother sold the remaining four bighas of land. According to the lower Appellate Court, it was not possible for an old widowed lady to survive or maintain herself without the protection of any male member out of four bighas of land, and, therefore, the plaintiffs' claim of Rs. 50 per month for her maintenance appears to be reasonable and just. The lower Appellate Court further observed that even if the sale by the plaintiff to her brother is a collusive transaction, the plaintiff was entitled to maintenance from her daughter, not only under the provisions of the gift-deed, but also under the provisions of Ss. 23 and 28 of the Hindu Adoptions and Maintenance Act. The defendants' argument that the plaintiff's age was only forty years and she could not be said to be old or infirm was countered by the lower Appellate Court by saying that although she could not, be regarded to be infirm, the plaintiff's statement on oath that her age was sixty years was inconsistent with the age of forty years given in the plaint on which the lower Appellate Court found that she "should be treated as aged and infirm in the eyes of law because at this stage she cannot be expected to maintain herself" by doing any service or menial work in accordance with the notions of the society in which she lives". The lower Appellate Court then proceeded to state that "a Hindu widow even of 55 years of age would be treated aged or infirm, particularly when she has sold away all her remaining land". With regard to the argument that only a parent unable to maintain herself or himself from her or his earnings or other properties was entitled to maintenance, the lower Appellate Court held that the first defendant "taking advantage of the fact that she has been able to obtain a major portion of her aged mother's property, tried to give her the remaining property so that she may ultimately be thrown on street and died out of harness and hunger of poverty". In the result, the lower Appellate Court decreed the suit for maintenance at Rs. 50/- per month from 31st May, 1969, which was the date of the institution of the suit, and levied a charge for recovery of the same on the property in suit on half the costs of the suit and the appeal were allowed to the plaintiff.