Decided on June 09,1952

NAWLA Respondents


- (1.)- This is an application for the revision of the order dated 21. 2. 52, passed by the Additional Commissioner Kotah in a second appeal.
(2.)THE facts of the case, in brief, are that in village Hathiakhedi in Tehsil Chechat the non-applicant Nawla held 41 bighas and 17 biswas of land in his khata. It was mortgaged for Rs. 143/- to Nanudas. He made a conditional gift of this land in favour of his nephew Bhanwaria in 1926 provided he paid the mortgaged amount of Rs. 143/-to Nanudas. THE applicant paid this amount to Nanudas, and the khata was mutated in the name of Bhanwaria. In the mutation register a condition has been laid to the mutation that Bhanwaria will give food and clothing to Nawla all his life. Further it has also been entered that if Bhanwaria failed to give food and clothing to Nawla, the khata may again be cancelled from his name mutated in the name of Nawla provided he paid Rs. 143/-to Bhanwaria. In 1948 Nawla applied to the Tehsildar Chechat that Bhanwaria did not give him food and clothing and the Tehsildar gave decree in his favour. In the first and second appeal the same judgment was upheld. It is against this order that the applicant has come in revision before the Board.
Counsel for the parties was heard. The main arguments of the counsel for the applicant are: - (i) that this is a contract and the condition restricting the alienation are void under sec. 10 of the Transfer of Property Act, (ii) that the non-applicant in his application in Tehsil Chechat has stated that the non-applicant has not been giving him food and clothing eversince the year 1926, therefore cause of action arose in 1926 and consequently, the period of limitation for the filing of such suit ran from that time, and since more than 12 years have elapsed, therefore the application is time-barred.

Counsel for the non-applicant replied that this transfer is not a contract but it is a conditional gift and in support of this he quoted Privy Council ruling No. 123 A. I. R. 1927 in which it has been held that a condition to pay mentioned allowance to donor by donee not observed by donee the property gifted can be recovered by the donor. The second point raised about limitation by the applicant is also not tenable because the period of maintenance is for all the life of his client and during his life he was entitled to claim maintenance every time a breach of this condition was made. Therefore no period of its limitation will begin.

A close examination of the arguments of the parties shows that the transaction is a conditional gift and not a contract as is evident by the fact that no money was charged by the non-applicant from the applicant for his khatedari rights. Further the remark in the mutation register that this mutation in favour of the applicant will hold good till he paid maintenance allowance to the non-applicant also supports the view that the transaction is a gift. Vide sec. 32 of the Transfer of Property Act A condition subsequent which terminates an interest and revests it in the granter is valid provided such condition is not invalid. In the present case the subsequent condition is a valid one, therefore the transaction is valid. Sec. 10 of the Transfer of Property Act as argued by the counsel for the applicant does not apply in this case.

The other point regarding limitation raised by the applicant that the period of limitation started in this case in 1926 and since it is more than 12 years now, the non-applicant is barred to lodge this comp-laint for maintenance, does not appear just. According to the entry in the mutation register, the non-applicant could claim maintenance at any time in his life. Thus the cause for maintenance accrues from time to time according to the want and emergencies of the person entitled. Even where the suit is barred the right is not extinguished and a defence of a right to maintenance shall prevail, as has been decided in Gopal Chandra vs. Kadambini (A. I. R. 192 Cal. 364 ). Therefore it shall be held that the non-applicant is entitled to maintenance. Since the applicant has not paid maintenance allowance uptil now and as has been recorded by the Tehsildar, that he has refused to do so. Thus the lower court was pre-fectly justified in passing an order of mutating the khata in the name of the non-applicant, as he has deposited Rs. 143/- according to the terms of the mutation.

Under the circumstances I see no reason to upset the concurrent judgment of the lower courts. The application is hereby rejected. .

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