BASAPPA DODFAKIRAPA HEBBALLIYAVAR Vs. FAKIRAPPA SHENKRAPPA HEBBALLIYAVAR

JUDGEMENT

(1.) The plaintiff sued to recover possession of the land and house specified in the plaint. He alleged that he had two brothers Ghatigeppa and Basippa who were divided in interest; that Ghatigeppa died leaving behind him defendant No. 1, his grandson, and defendants Nos. 2 and 3 his sons; that Basappa had a wife Mallava and a son Dodyella; that the father predeceased his son, and that subsequently the son Dodyella also died without any heirs except his own mother who also died about three months before suit after enjoying the plaint property. The plaintiff further alleged that he was the sole heir after Mallava's death and that the defendants had been, without any right, holding the property. The defendants pleaded that Mallava and plaintiff had passed the plaint property by gift, on the 14 February 1917, by executing a duly registered instrument, in favour of the first defendant. The plaintiff in his reply denied having passed a deed of gift along with Mallava and contended that Mallava was incompetent to give away the property, and to alienate the same to a person who was not the next reversioner, and that the deed referred to by the defendants in their written statement was exeouted in the circumstances set forth at para 2 of Exh. 16, under misrepresentation without knowing its contents.

(2.) The learned trial Judge found that the gift passed by the plaintiff and Mallava in defendant No. 18 favour was not passed without the plaintiff's understanding the contents thereof; that it was binding on the plaintiff; that the gift was valid under Hindu law; and accordingly rejected the plaintiff's claim. The learned Judge said : Thus being a consenting party to the deed, plaintiff is not at all justified and Competent fro revoke or resume the gift capriciously as he now attempts to do. Plaintiff cannot be allowed to take advantage of his own wrong or mistake as he says, and it any consideration for the transfer of interest were really needed to complete the essentials of Section 43 of the Transfer of Property Act, it is the natural affection which is also referred to in the deed, Exhibit 61. Plaintiff is thus estopped from contesting the validity of the gift and from contending that the deed is not binding upon him and he is incompetent to repudiate the gift and resume the property.

(3.) In appeal the learned Assistant Judge, relying on the decision in Bai Parvaii V/s. Dayabhai (1919) 22 Bom. L.R. 704 reversed the lower Court's decree and awarded the plaintiff's claim. Now, the case of Bai Parvati V/s. Dayahhai was a case in which the widow together with one of her daughters passed a joint deed of gift of the suit property in favour of the children of a deceased daughter's sons The case was argued on the footing that the deed of gift conveyed the entire property to the done. But the appellant's counsel contended that as the persons who executed the deed of gift were not entitled between them to the whole estate, Bai Parvati having only a contingent interest in it which she could not convey, the deed was valid only with regard to the life-estate of the widow. Respondent's counsel did not contend that it was a case in which an alienation was made by a widow with the consent of the next reversioner, but maintained that the widow and the next reversioner wore competent to convey an absolute estate. With the case presented to the Court in that way, the Court came to the conclusion that there could not be a transfer of a contingent interest, and that the plaintiff was not stopped from raising the question of law that the Transfer of Property Act did not permit of the conveyance or transfer of a spes succession is. The question whether the next reversioner was estopped from contesting the validity of the gift by the widow owing to has having consented to it was not argued.