(1.) Defendant No. 2 is the appellant in this Second Appeal against the judgment dated 8-12-1980 rendered by the learned Subordinate Judge, Aska, in Title Appeal No. 27 of 1977 reversing the decision dated 6-9-1977 passed by the learned Munsif, Aska, in Title Suit No. 162 of 1975.
(2.) The plaintiff and defendant No. 2 are the daughter of original defendant No. 1 Rahasa Dakuani, who was the widow of Khali Dakua who died in 1953. Rahasa, after the death of her husband, executed two deeds of settlement. Ext. 3 dated 23-3-1953 is the deed of settlement executed by her in favour of the plaintiff and her husband. On 30-5-1975, Rahasa (original defendant No. 1) made a fresh settlement Ext- A in favour of defendant No. 2 in respect of the property covered under Ext. 1. The plaintiff instituted a suit for declaring Ext. A invalid and for other consequential reliefs. Defendant No. 1, the mother admitted execution of Ext. 1 and Ext. A. She made a fresh settlement in favour of defendant No. 2 when she was not looked after by the plaintiff and her husband. The trial Court dismissed the suit holding that defendant No. 1 was in possession of the property and absolute interest had not been transferred in favour of the plaintiff and the conditions of the settlement having been violated defendant No. 1 was entitled to execute Ext. A. In appeal, the lower appellate Court held that Ext. 1 was acted upon and the plaintiff was in possession thereto and nonfulfilment of the conditions did not render the settlement void nor did it entitle defendant No. 1 to convey the property in favour of defendant No. 2. So holding, it reversed the decision of the trial Court and decreed the suit.
(3.) The only question raised by Mr. Swamy, the learned counsel for the appellant, was that under Ext. 1 no title was conveyed to the plaintiff and her husband and hence it was not a gift but was in the nature of a Will and it was open to defendant No. 1 to make the settlement in favour of defendant No. 1 when the conditions were not fulfilled. Mr. Deepak Misra, the learned counsel for the plaintiff-respondent, has however urged that the lower appellate Court correctly interpreted the recitals of Ext. 1 as conveying title in praesenti as having been acted upon and the plaintiff having acquired absolute title on the commencement of the Hindu Succession Act, it was not open to defendant No. 1 to make a further conveyance in respect of the very property.