- (1.) THIS is a defendant's Second Appeal in a suit for cancellation of a gift-deed executed by the plaintiff- respondent in favour of the appellant in the year 1963, and, in the alternative for the award of maintenance at the rate of Rs. 50/- per month. The plaintiff-respondent is the appellant's mother. The appellant is her only issue. After the gift, the plaintiff-respondent was left with some four bighas of land, but that she is said to have sold to her brother and that sale seems to have been the cause of the present litigation.
(2.) IT was alleged in the plaint that, being the only daughter, the defendant-appellant lived with the plaintiff-respondent and served and flattered her and promised to look alter her throughout her life. The plaintiff was made to believe that there may be trouble about the inheritance of the land after her death, and In view of the promise that the defendant-appellant would look after the plaintiff throughout her life, and the fear that there may be trouble about the property after her death, she made a gift of the property in suit to the defendant on 6th Dec. 1963. The suit was filed on 31st May, 1969, and the plaint proceeds on to allege that some two years before the suit the defendant left the plaintiff's house and started living at her father-in-law's place and stopped serving her or looking after her. That was an act of breach of faith or her part, while claiming the cancellation of the gift on these grounds, a decree for maintenance was specifically claimed. The age of the plaintiff, as given in the title of the plaint is 40 years, and that of the defendant- appellant 22 years, it appears that after the institution of the suit, the property was sold by the defendant-appellant to the defendants Nos. 2 and 3. who were impleaded as defendants by an amendment of the plaint. The written statement is a joint written statement filed by the three defendants together. Apart from a general denial of the plaintiff's case for the cancellation of the gift- deed, it is said that after the gift the defendant No. 1 and her husband used to look after the cultivation of the land and the defendant-appellant used to live with her mother, the plaintiff but the plaintiff had some other land which was sufficient for her maintenance. The plaintiff was not prepared to take anything from the defendant-appellant as she said that it was a sin to take anything from the gifted property. That is followed by the allegations against the plaintiffs brother-in-law in whose favour the remaining land had been sold by the plaintiff. The written statement then proceeds to allege that the defendant-appellant found it difficult to look after the cultivation on account of the quarrels raised by the plaintiffs' brother and since the defendant-appellant and her husband were in urgent need of money, they sold the property to the defendants Nos. 2 and 3, respondent Nos. 2 and 3 in this Court. The further pleas raised were that the defendants Nos. 2 and 3 were bona fide purchasers for value without notice, that the suit for cancellation was barred by limitation, and that no charge for the plaintiff's maintenance could be created on the property in suit. In para 33 of the written statement, the defendant-appellant offered to look after the plaintiff and to maintain her if she was willing to live with her, that is with the defendant-appellant at her husband's place because it was necessary for her to live at her husband's place in order to properly serve him. The amount of maintenance claimed was also alleged to be heavy. Eight issues were framed by the Trial Court. Issues Nos. 1, 6 and 7 were taken up together for consideration and it was held that the plaintiff did not need any maintenance; that the alleged agreement to maintain her was ineffective nor could any charge for her maintenance be levied on the property in suit. On issue No. 5, the suit for cancellation was held to be time barred. Issue No. 2, which raised the question whether the gift was vitiated by fraud or undue influence, was also answered against the plaintiff. On issue No. 3, the finding of the Trial Court was that the gift-deed being valid and there being no agreement to maintain the plaintiff, there could be no question of the knowledge of the defendants Nos. 2 and 3 of any such agreement, and therefore, their purchase was valid, and they were purchasers in good faith. Issue No. 5 was answered against the defendants. On issue No. 8. the Trial Court found that, although it was urged on behalf of the plaintiff that she was entitled to maintenance under Hindu Law, the claim for maintenance was based on the gift deed, but that was not found to be proved in the context of issue No. 1; hence the plaintiff was not entitled to any maintenance.
(3.) ON appeal by the plaintiff, it was pleaded on her behalf that she was an aged and infirm mother without any means of support and was entitled to maintenance from the first defendant, and that the transfer made in favour of the defendants Nos. 2 and 3 being during the pendency of the suit, the title was subject to the result of the suit against the first defendant. The first question raised by the lower Appellate Court was whether the gift deed was liable to be cancelled. That was answered by the lower Appellate Court in favour of the defendants by holding that the claim was time barred: that the witnesses of the gift-deed or oral or documentary evidence to prove fraud or undue influence had not been produced, and that Lal Singh, who had executed the gift-deed along with the plaintiff had not joined in the suit. However, on the question about the plaintiffs' claim to maintenance at the rate of Rs. 50/- per month, the lower Appellate Court found that the word "kushamad" in the gift-deed includes "parvarish", and that it was the legal duty of the first defendant as the only daughter of the plaintiff to maintain her under S. 20 of the Hindu Adoptions and Maintenance Act, 1956. As to the question of creating, a charge on the property in suit, the lower Appellate Court Observed that in their written statement under O. 10, R. 2 of the Civil P. C. the defendants Nos. 2 and 3 admitted that they had received a notice from the plaintiff at the time of the execution of the sale-deed, and thus found that they had notice of her claim of maintenance against the property in suit, and further found that the transfer was lis pendens and was subject to the result of the suit. The argument that the first defendant had not promised to maintain the plaintiff in future was met by the lower Appellate Court by observing that although in paras 17 and 23 of the written statement the first defendant denied having made any promise to maintain the plaintiff, yet in para 33 of the written statement she offered to maintain the plaintiff. According to the lower Appellate Court, it was a false and mischievous offer and the first defendant get angry when her mother sold the remaining four bighas of land. According to the lower Appellate Court, it was not possible for an old widowed lady to survive or maintain herself without the protection of any male member out of four bighas of land, and, therefore, the plaintiffs' claim of Rs. 50 per month for her maintenance appears to be reasonable and just. The lower Appellate Court further observed that even if the sale by the plaintiff to her brother is a collusive transaction, the plaintiff was entitled to maintenance from her daughter, not only under the provisions of the gift-deed, but also under the provisions of Ss. 23 and 28 of the Hindu Adoptions and Maintenance Act. The defendants' argument that the plaintiff's age was only forty years and she could not be said to be old or infirm was countered by the lower Appellate Court by saying that although she could not, be regarded to be infirm, the plaintiff's statement on oath that her age was sixty years was inconsistent with the age of forty years given in the plaint on which the lower Appellate Court found that she "should be treated as aged and infirm in the eyes of law because at this stage she cannot be expected to maintain herself" by doing any service or menial work in accordance with the notions of the society in which she lives". The lower Appellate Court then proceeded to state that "a Hindu widow even of 55 years of age would be treated aged or infirm, particularly when she has sold away all her remaining land". With regard to the argument that only a parent unable to maintain herself or himself from her or his earnings or other properties was entitled to maintenance, the lower Appellate Court held that the first defendant "taking advantage of the fact that she has been able to obtain a major portion of her aged mother's property, tried to give her the remaining property so that she may ultimately be thrown on street and died out of harness and hunger of poverty". In the result, the lower Appellate Court decreed the suit for maintenance at Rs. 50/- per month from 31st May, 1969, which was the date of the institution of the suit, and levied a charge for recovery of the same on the property in suit on half the costs of the suit and the appeal were allowed to the plaintiff. Mr. V. M. Sahai, learned Counsel for the defendant-appellant, was rather critical of the judgment of the lower Appellate Court. It is not easily possible to say that the criticism was unjustified in some respects at least, but looking at the basic facts of the case and taking a broad view of the matter, I am of the view that the decree passed by the lower Appellate Court does not call for any interference.;