AVVARI VIRAIAH Vs. SITHIRALA PATTABHI

JUDGEMENT

(1.) This Second Appeal arises out of a suit filed by a defeated claimant to set aside an order passed in execution proceedings. The suit was filed by the defeated claimant against the attaching decree-holder who came to purchase the property attached also in the sale held after the claim was disallowed and the other members of the claimants' family. The second defendant is the widowed mother of the plaintiff -claimant. Defendants 3 and 4 are the brothers and defendants 5 and 6 are the sisters of the plaintiff. The contest was only between the plaintiff and the 1st defendant. The learned District Munsiff in the trial Court dismissed the suit and refused to set aside the claim order. On appeal the learned Subordinate Judge allowed the appeal and decreeing the suit setting aside the claim order passed against the plaintiff. Against that decision of the learned Subordinate Judge the first defendant has preferred this Second Appeal.

(2.) The 1st defendant obtained a decree in O.S. No. 104 of 1958 on the file of the District Munsiff Gurazala, on the foot of a promissory note executed in his favour by the second defendant and her husband, late Guravaiah. In execution of that decree he got attached the property in question which is of an extent of acres 4.18 cents of land which gave rise to the claim petition filed by the plaintiff and subsequently to the suit on disallowance of the claim. The following are the relevant facts : The second defendant and Guraviah, her husband got from the father of the second defendant about acres 20.00 cents of land and some house property. The plaintiff, defendants 3 and 4 and their father Guravaiah had no joint family properties. The promissory note on tne basis of whicn the first defendant obtained the decree and got the property in dispute attached was for a sum of Rs. 1,000 and it was executed by the second defendant and her husband Guruviah and it was dated 12th June, 1957. By the date of the filing of the suit by the first defendant, the second defendant and her husband gifted away their entire property which they got from the second defendant's father in favour of their sons and daughters-in-law. Both documentary and oral evidence in the case show this. But, however the lower appellate Court seems to have committed an error when it was stated " There is nothing on record to show that even after the execution of the gift deeds Guravaiah was still in possession of acres 4-18 cents of land." This observation of the lower appellate Court will be dealt with a little later. Suffice for the present to say that the record shows that the second defendant and her husband gifted away their entire property and there was nothing left when the first defendant filed the suit to recover the promissory note debt. Under Exhibit A-4 dated 7th August, 1952 the second defendant and her husband gifted about acre 1-00 of land to their daugher-in-law, namely the wife of the third defendant; under Exhibit A-3 dated 29th October, 1957 they have gifted to their son 4th defendant acres 7-00 of land and a house. Exhibit A-5 dated 7th March, 1958 is the relinquishment deed in favour of the third defendant. It refers to an earlier gift deed dated 4th December, 1957 under which they gifted acre 8-00 of land and some house property to the third defendant reserving life interest. But under Exhibit A-5 they have relinquished in favour of the third defendant that life interest also. Then comes Exhibit A-1 dated 3rd January, 1958 gift deed executed by them in favour of their son the plaintiff under which an extent of acres 4-18 cents of land was gifted to the plaintiff. This is the land which was attached and is now the subject-matter of the dispute. With the execution of this gift deed the entire property owned by the second defendant and her husband has been gifted away. P.W. 3 in his cross-examination has stated that " on the date of Guraviah's death there was no property standing in his name or in the name of P.W. 1 (second defendant)." The property conveyed under Exhibits A-1, A-3, A-4 and A-5 covers the entire land of acres 20-00 cents and the house property which the second defendant and her husband got from the father of the second defendant. As already stated they were not owning any other property.

(3.) The suit was filed alleging that since their parents became old the third defendant was acting as the manager of the joint family and went on appropriating to himself all the outstandings and movable properties of the family, that the third defendant had about acres 8-00 of land and a house gifted to him about acres 1.oo of land gifted to his wife, that similarly the 4th defendant and his wife got acres 7-00 of land and a house gifted to them that the plaintiff also requested his parents to give some property to him since they had gifted to the other two brothers and therefore his parents gifted the suit land and house to him under registered gift, dated 3rd January, 1958 and immediately the possession of the gifted property was given to him and from that date he has been in possession and enjoyment of that property.