NAMMAYYAMMA Vs. MUSALAYYA

JUDGEMENT

(1.) This second appeal raises a question as to the scope and applicability of Section 68 of the Indian EVIDENCE ACT, 1872 (1 of 1872).

(2.) The material facts and circumstances giving rise to the question may be briefly stated. The plaintiff filed the suit O. S. No. 89 of 1967 on the file of the Court of the District Munsif, Avanigadda, for declaration of title to the plaint schedule land and for a permanent injunction restraining the defendants from interfering with her possession. The plaintiff grounded her action on the registered gift deed, Ex.A-1 dated 5. 4. 1965, executed by her maternal undre, Redrouthu Venkatramayya, the first defendant. In pursuance of the gift deed, she was put in possession of the suit land. According to her, the suit property was sold away in execution of a money decree obtained by the second defendant against the first defendant in S. C. No, 352 of 1986 on the file of the Court of the Subordinate Judge at Machilipatnam, In execution of the said decree in E, P, No, 272 of 1966, the third defendant be came the auction purchaser of the suit land in the Court auction held on 5-11-1967, Subsequently, he obtained delivery of the property through Court and has since been in possession and enjoyment of the same, The plaintiff filed the suit contending (hat the said auction does not bind her and that the gift in her favour is irrevocable, First defendant remained exparte and subsequently he died. Defendants 2 and 3 contested the suit. They denied the execution of the gift deed, Ex,A1, in favour of the plaintiff on 5-4-1965 and contended inter alia thar the gift deed was revoked by the first defendant even by 17-5-1965 under Ex. B-11,that the first defendant, contracted debts from various people for the benefit of himself and the family of the plaintiff and that the gift deed was brought into existence to defeat the rights of the creditors of the first defendant and was intended to derive an unlawful gain and benefit by the plaintiff. It was also averred that there was no delivery of possession of the plaint schedule property to the plaintiff, that the plaintiff was never in possession of the same and that a valid decree was obtained on the basis of the promissory note, Ex. B-6, and in execution of the said decree, the property was sold by court and the third defendant purchased it in the Court auction.

(3.) The trial Court decreed the suit in the first instance, The Appeal preferred by the third defendant was allowed, Against the said judgment, second appeal was preferred to this Court, The High Court by its judgment dated 11-12-1974 remanded the matter to the Lower Appellate Court with a specific direction to permit the plaintiff to aduce evidence of the attestors in proof of the execution of the gift deed, Ex. A1, After remand, P, W. 9, the identifying witness of Ex,A-1 before the Registrar, was examined, The attestors, however, were not examined. Then 1 A No 1639 of 1957 was filed for re-opening the evidence. That petition was dismissed on 21-11-1975, against which C. R. P. 1144 of 1975 was filed in this Court and the same was dismissed, Then the plaintiff filed a memorandum into the Court to the effect that the matter was adjusted between her and the third defendant, But the third defendant denied the compromise. Therefore, I. A, No , 347 of 1976 was filed to record a compromise. That application was also dismissed. The appeal was then heard by the learned District Judge, He held that the plaintiff failed to prove the execution of Ex, A-1, the gift deed, as required under Sec, 68 of the EVIDENCE ACT, 1872. He further held that Ex.A, was not voluntarily executed by the first defendant and that the revocation of Ex.A-1 under Ex.B-11 by the first defendant on 17-1-1965 goes to show that Ex.A-1 was obtained under suspicious circumstances. Consequently, the appeal was allowed and the suit was dismissed with costs throughout. Aggrieved by the said judgment and decree, the plaintiff has preferred this second appeal.