MUKUNDRAO Vs. WAMANRAO

JUDGEMENT

(1.) THIS appeal arises out of a suit for the recovery of Rs. 15,000 said to have been gifted by the plaintiff's father to the defendants out of the ancestral property in his hands. For the purposes of this appeal the pleadings may be stated as follows : The case of the plaintiff Waman Rao was that his father Marotirao and Balaji, the father of the defendants Mukundrao and Padamrao, were separated brothers. On the 19th May 1911 Maraotirao executed a registered gift deed for Rs. 15,000 in favour of the defendants. The amount was made up as follows: Rs. 13,296-2-0 ... ... Deposited with Balaji. " 1,700-0-0 ... ... The value of three bonds. " 3-14-0 ... ... Cash.

(2.) THE plaintiff sued to recover this amount alleging that it was part of the ancestral property in the hands of his father and that the gift is void as his father had no power to make it without his consent. The defence was that the amount was never actually received by the defendants, the gift deed being a nominal transaction resorted to by the plaintiff's father to save himself from harassment by the plaintiff, and that in any case the father was competent to make it as a gift of affection, the amount gifted being a small, that is, a tenth part of the ancestral estate.

(3.) THE next point urged is that the gift was within the competence of Morutirao as a gift of affection. Though we have held that Marotirao did make a gift of Rs. 15,000 to the defendants, yet considering the circumstances that there was some disagreement between him and the plaintiff and that he was living with Balaji, the gift appears to have been moved rather by displeasure against his son than by affection towards the nephews. This view finds support in one of the defendants' own witness, Maruti (D. W. 4), who says that Marotirao showed no particular affection for the defendants; nor does Makandarao, Defendant 1, say anything in his deposition about Marotirao's affection for him and his brother. We are inclined to agree with the lower Court in holding that there is some truth in the plaintiff's deposition as P. W. 5 that the gift was brought about partly by Balaji spreading false reports about him and prejudicing Marotirao against him and partly by harassment of Marotirao. This being so., the gift is not a bona fide gift out of affection which comes within the class of gifts mentioned in the Mitakrtiara, Ch. 1, Section 1, para. 27: see Raghunath Prasad v. Govind Prasad [1886] 8 All. 76 and Nand Ram v. Mangal Sen [1909] 31 All. 359.