R. C. Lahoti, J. - (1.) Thimmegowda, the sole respondent herein, has died during the pendency of these proceedings and his widow and one daughter (major and unmarried) are on record as legal representatives of the deceased. Thimmegowda and Subbegowda were real brothers. Thimmegowda did not have any son. His family consisted of his wife and four daughters. Narayani (or Narayana), impleaded as appellant No.2, is the son of Subbegowda. Subbegowda, the appellant No.1, has also died during the pendency of these proceedings.
(2.) Thimmegowda, having no male issue, adopted Narayani, the son of his younger brother Subbegowda. A deed of adoption dated 4-6-1965 was executed and registered. On 1-8-1969, another deed came to be executed and registered by Thimmegowda and this deed is the subject matter of controversy in these proceedings. The deed is styled as Settlement Deed. The contents of the deed reveal what had impelled Thimmegowda to execute the deed. Thimmegowda had agricultural land but was unable to carry out agricultural operations. Out of his four daughters, he had performed the marriage of the two and the remaining two, respectively aged 10 and 4 years at that time, were yet to be married and were residing with the parents. The deed goes on to state- "I have not given right of any kind over my properties to you, my adopted son Narayani. You represented to me that in case I hand over the total responsibility of the family properties to you, you together with your natural father and brothers would manage the properties and discharge the existing debts of the family and further that you would require the power through written records, I am today executing this settlement deed in your favour, my adopted son Narayani. I have made this arrangement so that hereafter you may in a wise manner along with your natural father improve my property and manage the same as per your wish without any obstruction. Hereafter I shall have no objection for your management of the family properties. You shall look after my welfare and that of my wife and children and you shall get my daughters married. Since you have taken the responsibility of my welfare and that of my wife and since the responsibility of protecting us has been taken over by you and further since you have to discharge the debts incurred by me till now for the family, I have handed over the possession of scheduled properties under this settlement deed to you. In case either my wife or I incur any further debt hereafter you shall not be responsible for the same. You shall not violate any one of the abovesaid conditions. In case you violate any condition, I shall have the right to cancel this settlement deed. You shall have the right to enjoy hereafter all the treasure, trove, water, plants etc. in the scheduled property and you shall have the right to sell, gift and alienate the same and may enjoy the same from generation to generation peacefully." (emphasis supplied) The above statement is followed by a schedule wherein six landed properties are listed. Below the schedule there is yet another endorsement made by the executant Thimmegowda as under :- "I have settled the six items of properties as mentioned above and therefore have executed this settlement deed. Sd/- on behalf of minor Narayani his natural father, Subbegowda as guardian. Since you, Narayani have been under my care and custody since the beginning and since I wanted to give you something for your livelihood, I have through this settlement deed entrusted the scheduled properties to you. The approximate value of the scheduled properties is Rupees one thousand (Rs. 1000/-). Sd/- Thimmegowda Sd/- Witnesses" (emphasis supplied)
(3.) On 9-11-1970, Thimmegowda filed a suit against Narayani and his natural father Subbegowda seeking setting aside of the settlement deed dated 1-8-1969 on the ground of fraud and misrepresentation and the consequential relief of restoration of possession over the suit schedule properties. The trial Court dismissed the suit on the finding that any circumstances vitiating the voluntary execution and registration of the deed were not made out. Fraud and misrepresentation, as alleged by the plaintiff, were not proved. First appeal preferred by the plaintiff was dismissed. A second appeal was preferred. The High Court framed and dealt with a single substantial question of law- "Whether a deed purported to be settlement deed could be validly executed with a term enabling the settler to have the deed set aside and in such a case whether such a deed could convey valid title to the settlee - In a brief judgment, dealing with the question of law as framed, the High Court formed an opinion that the power of revocation of settlement deed was expressly reserved to himself by the settler in the deed itself and, therefore, the settler was fully justified in law to invoke the revocation clause. Other issues were of no significance. It was open for the executant to cancel the deed of settlement and that having been done the suit was liable to be decreed. The High Court set aside the judgments and decrees of the trial Court and the first appellate Court and passed a decree in favour of the plaintiff. Feeling aggrieved, the defendants namely Narayani, the adopted son, and his natural father Subbegowda are in appeal of whom, as already stated, Subbegowda has died.;