SHETU Vs. DOLU

JUDGEMENT

(1.) This Regular Second Appeal arises out of the judgment and decree passed by the learned Additional District Judge, Mandi, Kullu and Lauhal Spiti Districts, dated March 11, 1976, in camp at Kullu, whereby he dismissed the suit of Shetu, appellant in this appeal, against Dolu (hereinafter referred to as the contesting respondent) and one Kalmu while accepting the appeal of the contesting respondent Dolu.

(2.) The facts in brief are that the appellant as plaintiff instituted a suit in the court of the Senior Sub -Judge, at Kullu, with the averments that one Hudi, since deceased, was inter alia, owner of 3 bighas and 16 biswas of land (hereinafter referred to as the suit land), described in the plaint, said Hudi was issueless and his family consisted only of himself and his wife. Since they were both in old age, they depended upon others to serve and look after them and for this purpose said Hudi alienated substantial part of his landed property and in fact had also us fructuously mortgaged the suit land in favour of Kalmu who was defendant No. 2 in the suit. Since the appellant was serving said Hudi and his wife, said Hudi executed a registered gift deed in favour of the appellant on October 22, 1970 in lieu of past and future service. The mutation qua the said gift, however was not attested as said Hudi colluded with the revenue officer concerned. Besides, said Hudi was also won -over by the contesting defendant to his side and induced said Hudi to execute a will in his favour and the will was actually executed by him in favour of the contesting respondent on June 30, 3972 whereby he not only bequeathed his entire estate in favour of the contesting respondent but also the suit land which said Hudi had earlier gifted in favour of the appellant. Said Hudi died thereafter and then on the basis of the will the entire estate of Hudi including the aforesaid suit land was mutated in favour of the legatee, the contesting respondent. The plaintiff in the suit then challenged this bequest by Hudi qua the suit land, in favour of the contesting respondent and claimed a relief of declaration that by virtue of the registered gift -deed in his favour, dated October 22, 1970, he had become full and exclusive owner of the suit land and said Hudi had no right whatsoever to bequeath the same in favour of the contesting respondent and was in possession thereof as such and in case he was found to be out of possession then he also prayed for a decree of possession as well.

(3.) The suit was resisted by the contesting respondent only in the written statement he took up the plea that since at the time of attestation of mutation in respect of the gift in favour of the appellant, the appellant had made a statement that he would not have the gift since the donor Hudi declined to agree to the attestation of mutation in his favour, the appellant shall be deemed, under law, to have waived his rights under the gift and he was, therefore, estopped from filing the suit on the basis of the gift deed in his favour. It was also asserted that since the gift was based upon the condition that the appellant would render service to the donor and his wife and the appellant failed to fulfil this condition of the gift, the gift stood revoked and, therefore, this suit land which was the subject matter of the gift was rightly included by said Hudi in the property which he (Hudi) bequeathed in favour of the contesting respondent by virtue of the will.