TIMMAVVA DUNDAPPA BUDIHAL Vs. CHANNAVA APPAYA KANASGERI

JUDGEMENT

(1.) This appeal arises from a somewhat unfortunate dispute between the plaintiff and her father. The plaintiff has been a widow since her childhood and it is her case that she was brought up by her father and treated with great affection. In 1936 her father made a gift to her of the property in suit and in that behalf executed a registered document on August 21, 1936. Almost immediately after the deed was executed the father apparently changed his mind and would not allow the plaintiff to take possession of the property conveyed to her under the deed or to enjoy it peacefully. That is why the plaintiff was driven to file the present suit on the deed of gift executed in her favour. Originally the plaintiff had asked for an injunction on the ground that she was in possession of the property in question at the date of the suit. Subsequently, however, she made an alternative claim for possession and gave up her claim for injunction.

(2.) The claim made by the plaintiff on the deed of gift was resisted by her father, defendant No. 1, on three main grounds. He alleged that the deed of gift had been executed by him as a result of undue influence practised on him by the plaintiff's friend Rangappa; that the property which had been conveyed under the deed of gift was not his separate property but that it belonged to the joint and undivided family of himself and his nephew who was defendant No: 2 to this suit and the deed of gift executed by him was therefore invalid under Hindu law. He also pleaded that the document on which the plaintiff relied had not been properly executed. Pending the hearing of the suit in the trial Court the father died, and his widow was brought on the record.

(3.) In both the Courts below the first two pleas made by defendant No. 1 were negatived. The third plea which he had made, however, succeeded. Both the Courts have found that it has not been satisfactorily proved that the document had been duly attested by two witnesses as required by Section 123 of the Transfer of Property Act. On that view the plaintiff's suit was dismissed. Thereupon, the plaintiff preferred second appeal No. 496 of 1941. Mr. Justice Lokur who heard the said second appeal came to the same conclusion that the plaintiff had not proved that the document had been duly attested. The result was that the second appeal was also dismissed. Thereafter the plaintiff obtained a certificate from Mr. Justice Lokur and has filed the present Letters Patent appeal.