RUKMINIBAI KRISHNARAO TAMBVEKAR Vs. LAXMIBAI NARAYAN TAMBVEKAR

JUDGEMENT

(1.) The plaintiff in this case sued the defendants to recover a certain sum said to have been wrongfully withheld by defendant No. 10 and for a perpetual injunction against the BAI defendants, restraining defendant No. 10 from receiving the dues and defendants 1 to 9 from paying the dues to her in respect of the property in suit. The relief was claimed on the footing that the plaintiff was entitled to the Inam rights in the property in suit under a conveyance in his favour dated the 18th of September 1911 by one, Ramkrishna, who traced his title to the said rights under a deed of gift in favour of his father dated the 13th of October 1880. This deed of gift was passed by the members of the Tambvekar family. The gift was described as a religious Agrahar Inain. The land and the house described in the deed were given by way of gift to the donee in these terms: "So you, your sons and grandsons and succeeding generations should enjoy the said land and house and ground &c. according to the deed of gift dated the 5th of the Sudha half of Shravan in the Shake year 1801 and should live in peace at the holy place of Markandeya otherwise known as Mouje Malkhed." The earlier informal deed of the Shake year 1801 (A. D. 1879) is not forthcoming. It is found by both the lower Courts that the conditions of the gift were the same as the conditions laid down in the document of the year 1799 A. D. executed by the members of the Tambvekar family in favour of several Brahmins in respect of different lands described in detail in that document.

(2.) The trial Court found that according to the conditions of the gift the donee was bound to live in the village and that the donee got a "limited interest, limited to specific purpose and liable to be defeated on Ambekar (the donee) leaving the village of Malkhed and going to reside elsewhere." It was found as a fact that Ambekar had left the village at the time, when he conveyed the property in suit to the plaintiff, and that the plaintiff acquired no title as his vendor had no subsisting title at the time of the conveyance. The trial Court accordingly dismissed the plaintiff s suit.

(3.) The plaintiff appealed to the District Court; and the learned Assistant Judge, who heard the appeal, found that the donee was bound to fulfil the condition as to residence in the village, and that "Ambekar had to leave the village temporarily in search of maintenance on account of the hostile attitude of the Inamdars, that his absence from the village under those circumstances is insufficient to prove a positive breach of the conditions of the gift, that he was competent to nominate his successor according to the terms of the gift and that in making the transfer in plaintiff s favour, he (Ambekar) has substantially complied with the conditions imposed by the original donor. On the basis of this finding the lower appellate Court reversed the decree of the trial Court and remanded the suit for a fresh decision.