MURIKIPUDI ANKAMMA Vs. TUMMALACHERUVU NARASAYYA

JUDGEMENT

(1.) The first defendant in O.S. No. 290 of 1942, District Munsiff's Court, Gurzala, is the appellant in this appeal. K. Papayya who owned certain properties in Piduguralla and another village executed a deed of gift Ex. D-3 on 10 June, 1931, in favour of the 5 defendant, T. Hanumayya. It would appear that Papayya had a son who died and subsequently there was a partition between Papayya and his grandson and thereafter there was nobody to take care of him. He therefore took the 5 defendant Hanumayya to his house for the purpose of looking after him and assisting him in the management of the property. It is for this reason that the gift was made in favour of the 5 defendant who was closely related to the donor. It is the appellant's case that Hanumayya after a short stay with Papayya left Piduguralla and went back to his own native place Mallavolu and ceased to bestow any attention on Papayya or render him any assistance as expected. For this reason, it is alleged, Papayya revoked the gift deed Ex. D-3 by means of the deed of revocation Ex. D-4 dated 26 September, 1933. The differences between them are said to have been ultimately composed by mediators in 1934 under an arrangement by which half the suit properties were to revert to Papayya and the remaining half to continue to belong to the 5 defendant, the donee. Papayya sold under Ex. D-1 on 6 December, 1937, the suit properties to the appellant and the appellant claims that in spite of the gift deed Ex. D-3, Papayya had continued to be in possession of the suit properties until the date of Ex. D-1 and that after the sale under Ex. D-r the appellant continued to be in possession of those properties until the date of suit. On nth September, 1941, the 5 defendant Hanumayya sold the suit lands under Ex. P-1 to the plaintiff, the 1st respondent. The plaintiff's case is that ever since the date of the gift Ex. D-3, dated 10 June, 1931, the donee (his vendor) was in possession of the properties until his sale and that soon after that sale, that is, in December, 1941, or thereabouts, he, the plaintiff, was dispossessed by the defendant and his party. The plaintiff therefore brought the suit for a declaration of his right under the sale, Ex. P-1 dated 11 September, 1941, for possession of the property, for a permanent injunction against the defendants and for past and future mesne profits. The trial Court dismissed the suit holding that the gift deed, Ex. D-3, was conditional and that consequently, the donor was entitled to revoke it, the condition that was not fulfilled being that the donor must be maintained by the donee during his lifetime. It was therefore held that the revocation was valid. With reference to the oral arrangement that was said to have been made by the mediators, that was also found to be true. The plaintiff-respondent was therefore held to be estopped from disputing the title of the appellant. On appeal the learned Subordinate Judge reversed the decree of the trial Court and found that the gift was not conditional but absolute, that the donor had no power to revoke it and that consequently the revocation was not valid. He also found against the mediation and the oral arrangement and held that without such a plea there was no estoppel.

(2.) The main question for determination in the appeal is whether the gift under Ex. D-3 was conditional in the sense that if that condition was not fulfilled, it was open to the donor to revoke the deed. The relevant portion in Ex. D-3 is this: I had a son and he died. My wife also died. I am now aged 60 years and I have no strength to look after my own affairs and my agricultural duties. So about 4 years ago 1 brought you who are my uterine younger brother's son and kept you in my house. From that time, you alone have been looking after my cultivation works, etc., in my house, have been living in my house alone and maintaining me well. I have a belief that you would maintain me well during my lifetime. And as I bear affection towards you, I have got the idea of conveying my property to you. Therefore, I have conveyed to you under dhakal the property worth Rs. 800. The particular portion upon which reliance is placed to show that the deed of gift was conditional has been underlined (italicised) in the above passage. In the context of the document all that appears to have been entertained in the mind of the donor at the time was a hope or a wish that the donee would continue to bestow the same care and attention on him as he used to do before and that he would maintain him well during his lifetime. I am in agreement with the view taken by the learned Subordinate Judge that the obligation to maintain was not cast upon the donor as a necessary or an essential condition of the grant. The gift was entirely out of love and affection and the reference to maintenance was only as a matter of fond wish. In this view, it is not possible to agree with the appellant's contention that in the absence of any express reservation of a power of revocation, the donor continued to have that right, even after he had divested himself of all the right, title and interest in the property by means of this gift and after he had duly vested the property in the donee. The document itself further recites that the property had then alone been delivered into the possession of the donee.

(3.) A great deal has been said about the non-delivery of the deed of gift to the donee and about the continuance of the gifted property in the possession of the donor. The learned Subordinate Judge considered both these aspects and has found with reference to possession that the donee obtained possession of the property, and with regard to the retention of the gift deed by the donor, that that circumstance by itself did not indicate that the gift was not intended to be acted upon or that the 5 defendant had not accepted it. The entire course of conduct of the 5 defendant (the donee) shows that he accepted the gift. With regard to the custody of the document, it would appear, as remarked by the lower appellate Court, that the document was kept in the family box to which the 5 defendant also had access. When he left the donor's village, he had no idea at all that the gift deed would be revoked sometime later. Therefore there was no necessity to take away the gift deed with him. In these circumstances, the learned Subordinate Judge was right in holding that the mere custody of the document does not lead to any adverse conclusion against the 5 defendant.