At, High Court of Judicature at Bombay
By, THE HONOURABLE CHIEF JUSTICE MR. V.S. DESHPANDE
For the Petitioner: S.M. Mhamane, Advocate. For the Respondent: S.G. Page, Advocate.
V.S. DESHPANDE, C. J.
I am unable to see any merits in this second appeal. Plaintiff is a daughter of one Narasgonda. Narasgonda died on 27th February, 1960, leaving behind him widow Akkamma and daughter Sushila the plaintiff. Akkamma also died on 19th May, 1963. Narasgonda had one real brother Balgonda, who had died
Please Login To View The Full Judgment!
earlier in 1930, when he was still joint with his brother Narasgonda. He left behind him his son, Dada who is a defendant in this case. The plaintiff instituted this suit for partition and possession on 15th June, 1974. She claims her father's share in the property, being the only heir of her father. The defendant disputed her claim. His main defence is that Akkamma and Sushila had executed a registered release-deed in his favour on 26th November, 1960, a few months after the death of Narasgonda. He also pleads that on that very day he had executed two documents in favour of Akkamma and Sushila agreeing to pay Rs. 100/- towards maintenance to each for every year. According to the defendant both the documents were executed voluntarily by the plaintiff and her mother. According to the defendant the plaintiff and her mother are therefore, not entitled to any share in the property, and as such the suit for possession and partition was liable to be dismissed.
2. It appears that the plaintiff's case in respect of these two documents at the trial was that they had signed the documents in the belief that it was merely a power of attorney in favour of the defendant and authorising him to look after their property which was required to be looked after by the defendant as the plaintiff and her mother were staying at different places. Both the courts below have rejected this part of the story of the plaintiff. Both the courts have found that the documents are attested by the two witnesses who enjoyed the confidence of the plaintiff being relatives. The documents are registered. Both the courts have further held that the document operated as gift as there was no consideration for the execution of the release-deed. For this proposition reliance is placed on the judgment of the Supreme Court recorded in (Kuppuswami Chettiar v. S.P.A. Arumugam Chettiar and another)1, A.I.R. 1967 S.C. 1395.
3. Mr. Mhamane, the learned Advocate for the appellant contends that finding regarding the voluntarily execution of the documents is contrary to the other evidence on record. I find no substance in this contention. Both the courts have discussed the evidence in detail. In fact the document is attested by the two educated persons interested in the welfare of the plaintiff and her mother. This is an important factor militating against the say of the plaintiff. Secondly, the fact that the suit was filed in the year 19 74 after the execution of the document in November 1960, also militates against the plaintiff's case being true, Mr. Mhamane next contends that the document is without any consideration and, therefore, the same should be held void. The ratio of the Supreme Court judgment in this context comes to the rescue of the plaintiff. Document can still be considered as gift deed. Alternative claim for maintenance is decreed by the courts. Thus there is no merit in the second appeal and the same is dismissed with costs.