(1.) The question in this appeal is, whether the deed of gift passed by the plaintiff-appellant Annu and her deceased mother-in-law Bai Tanu in favour of Haribai, the deceased wife of the defendant Shripati, is valid. The following genealogical tree shows the relationship of the parties:-
(2.) The property in suit originally belonged to Bhiku, who died leaving two sons, Mukunda and Tukaram and a daughter Haribai. On his death, it was enjoyed by the joint Hindu family consisting of his two sons. Mukunda died first, and Tukaram twelve days later, on August 14, 1907, the estate then vesting in Tanu as Tukaram's heir. On November 23, 1910, Tanu and Annu passed a deed of gift now in question in favour of Haribai. The important recitals of the deed of gift are as follows :- The husbands of both of us are dead ; neither of us have any children. You are always looking after us and we are confident you will continue to look after us, We have no other heirs. Remembering all these things we pass a deed of gift. The property of this description has been handed into your possession to-day. You and your heirs will continue to enjoy it. Neither we nor any of our heirs have any interest left in it now. Possession of the property was given to Haribai on the date of the deed, and she continued in enjoyment till her death, the property being entered in her name in the record of rights.
(3.) In 1917, Haribai died and a year later Tanu. The present dispute arose between Annu and the present respondent Shripati, husband of Haribai. Annu sued to recover possession on the ground that she was the heir on the death of Haribai and that the deed of gift was void and had been obtained from her by misrepresentation. The defendant-respondent supported the deed and denied misrepresentation. Both the lower Courts held that misrepresentation was not proved. The trial Court held that the deed of gift was void on the ground that it was a transfer of a spes successionis under Section 6 of the Transfer of Property Act. In appeal, the learned Assistant Judge held that Annu's consent was an election which caused the present suit not to be maintainable and dismissed the suit. The plaintiff appeals.