SHAIKH ALI JAN Vs. PHAGUNI

JUDGEMENT

(1.) THE subject-matter of the suit out of which this second appeal arises is certain land which admittedly belonged to the plaintiff. In 1939 the plaintiff, who is a Muhammadan woman, executed a deed of gift conveying the laud in suit to the defendants, who are her relations. THE deed of gift contains a recital that, in return for the gift, the defendants undertook to maintain her out of the usufruct of the property for the rest of her life. According to the plaintiff, the defendants, sometime after the, execution of the deed of gift, declined to fulfil this obligation, and, in 1944, she executed and registered a deed purporting to revoke the gift. THE plaintiff asked for a declaration that the defendants had ceased to have any title to the property and for recovery of possession. She also claimed a sum of Rs. 295 as arrears of maintenance for the period of three years. THE suit was dismissed by the trial Court, but was decreed on appeal. THE defendants asserted that the plaintiff was not entitled to revoke the deed of gift as she and they were related within the prohibited degrees. THE lower appellate Court has found it as a fact that they were not so related, and Mr. T. K. Prasad, for the appellants, now concedes that the plaintiff was entitled to revoke the gift. THE plaintiff was under a misapprehension in thinking that the deed of gift was automatically revoked when she executed the deed of cancellation in 1914. THE gift cannot be revoked except by a decree of Court. Mr. T.K. Prasad conceded that the suit might be treated as, in substance, a suit for revocation of the gift, but contended that, in that event, the plaintiff was not entitled to a decree for arrears of maintenance. This argument is, in my opinion, well-grounded. THE return which the plaintiff expected for the gift which she made to the defendants was that she should be maintained by them for the rest of her life. Her cause of action for the revocation of the deed of gift was that the return for the gift which she had expected bad failed. It would, no doubt, have been open to her to sue for arrears of maintenance on the ground that the defendants had committed a breach of contract or a breach of trust. In my opinion, however, she was bound to elect between these two alternative courses which were open to her. If a decree for arrears of maintenance was passed and the amount due under it was paid, the defendants would have fulfilled their obligation. As I understand it, the plaintiff desires to recover possession of her land. THE appeal will be allowed and the decree will be varied in that the sum of Rs. 295 allowed to the plaintiff will be deleted. THE plaintiff is entitled to costs in proportion to the extent of her success in this Court and in the Courts below.