K.A. Swami, J. This appeal is by the plaintiffs 1 and 3 against the Judgment and decree dated 26-11-1976 passed by the learned Principal Civil Judge, Bangalore City in R.A. No. 26/1975 affirming the Judgment and decree dated 22-11-1974 passed by the learned I Additional First Munsiff, Bangalore City in O.S. 980/1969 dismissing the suit filed the partition and separate possession of half share of the plaintiffs in the suit schedule property.

There were three plaintiffs in the suit. During the pendency of the suit, the 2nd Plaintiff died leaving behind no issues. Therefore, she was given up. Similarly, there were two defendants in the suit. The 1st defendant died during the pendency of the suit. The 2nd defendant being the only legal representative of the 1st defendant, he was shown as the legal representative of the 1st defendant. Thus, plaintiffs 1 and 3, the defendant - 2 who became the L.R. of the 1st defendant, remained as parties to the suit.

The suit property is a house bearing No. 49, Papanna Lane, Kavadi, Revanna Settypet, Bangalore City.

The Trial Court held that Thimmakka, who became the absolute owner of the suit property on the coming into force of the Hindu Succession Act, was competent and entitled to gift the suit property. Therefore, the gift made by her on 7-9-1960 (Ex. P. 4) in favour of Papanna (defendant - 2) was valid. The plaintiff relied upon the deed of cancellation dated 28-7-1962 (Ex. P. 8) executed by Thimmakka - the donor, and contended that having regard to the cancellation of the gift by the donor himself, defendant - 2 Papanna did not get any right in the suit property. Therefore, the suit property is available for partition between the plaintiffs and defendant - 2. The trial Court rejected this contention and it held that the original of the cancellation deed had not been produced. Therefore, it was not open to the plaintiffs to rely upon the same. It accordingly dismissed the suit.

In the appeal, it appears the appellants (Plaintiffs) challenge the finding of the trial Court only in so far as it related to the validity of the deed of cancellation (Ex. P. 8), cancelling the gift deed. The lower appellate Court came to the conclusion that the gift was an absolute one, it did not prescribe any condition as to maintenance of the donor by the donee but it was only a pious desire of the donor. Therefore, Thimmakka, the donor, having regard to the provisions contained in Section 126 of the Transfer of Property Act, (hereinafter referred to as the 'Act'), was not entitled to execute the deed of cancellation (Ex. P. 8) and revoke the gift.

The appellate Court did take into consideration the cancellation deed inasmuch as it came to the conclusion that the trial Court was not justified in excluding it from consideration, on the ground that the original of it had not been produced, as the plaintiffs had called upon the 2nd defendant to produce the original deed of cancellation since the same was with him, as he failed to produce the same, the plaintiffs were entitled to adduce secondary evidence and rely upon it, and accordingly they produced secondary evidence by producing a certified copy of the registered cancellation deed. However, as already pointed out on the point of competency, of the donor to cancel the gift deed, the appellate Court held against the plaintiffs. Accordingly, it confirmed the decree of the trial Court.

In this second appeal Sri R. Suryanarayanaswamy, learned Counsel for the appellants contends that the gift was a conditional gift and the condition mentioned therein was not fulfilled, therefore, Thimmakka - the donor was entitled to unilaterally cancel it, and she did cancel it on 28-7-1962 by registered documents. It is also further contended that having regard to the recitals contained in the gift deed as to maintenance of the donor by the donee, the right to revoke it, even though it is not explicitly stated in the gift deed, must be held to be an implied condition of the