Plea given by done held not acceptable.

Sengottuvelan, J.

1. The defendant in the suit O.S. 677 of 1976 on the file of the Principal District Munsif, Pondicherry has filed this appeal challenging the legality and correctness of the judgment of the Second Additional District Judge, Pondicherry in A.S. 51 of 1982.

2. The facts of the case are as follows: The respondent herein as plaintiff filed the suit O.S. 677 of 1976 on the file of the District Munsif, Pondicherry, for cancellation of the settlement deed Ex. A-1 in view of the non-performance of the condition imposed in the said settlement deed and for recovery of possession. Originally, the suit was dismissed on the ground that it was barred by Res Judicata in view of the dismissal of the earlier suit O.S. 284 of 1972. Thereupon an appeal was preferred in the District Court in A.S. 4 of 1978 and the First Additional District Judge, Pondicherry, remanded the matter to the lower Court for disposal on other issues. C.M.A. 495 of 1978 was preferred to the High Court and the same was dismissed confirming the order of the first Additional District Judge, Pondicherry. The Principal District Munsif considered the matter on merits and decreed the suit. As against the said decree and judgment, the appellant defendant filed A.S. 51 of 1982 and the said appeal was dismissed. This second appeal is filed challenging the legality and correctness of the judgment of the second Additional District Judge, in A.S. 51 of 1982.

3. The point for determination in the second appeal is whether the settlement deed Ex. A-1 is liable to be cancelled on account of the non-performance of the condition incorporated in the settlement deed.

4. The respondent herein executed the settlement deed Ex. A-1 dated 27.7.1971 with the following recitals.

The respondent herein filed the suit for cancellation of the settlement deed on the ground that the appellant failed to maintain him as per the conditions in the settlement deed and as such he is entitled to pray for cancellation of the settlement deed in view of the provisions contained in Ex. A-1. Both the Courts below on the question of fact found that the appellant failed to maintain the respondent and the said finding cannot be challenged in the second appeal.

5. The only contention of Mr. T.R. Rajagopalan, learned advocate for the appellant, is that the term of the settlement deed imposing a condition that the appellant should maintain the respondent will amount to only a pious wish on the part of the settlor, the respondent herein, and that the failure to comply with the same will not entitle the respondent to have the settlement deed cancelled. Section 126 of the Transfer of Property Act deals with the suspension or revocation of a gift and the same is as follows:

The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part; at the mere will of the door, is void wholly or in part, as the case may be;

A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded;

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

According to the above section, a gift can be revoked by agreement between the donor and the donee on the happening of any specified event; but the same cannot be revoked by the mere will of the donor. Bearing in mind the above section we have to consider whether the recital in Ex. A-1 will empower the respondent to have the settlement deed cancelled in view of the fact that the appellant failed to maintain the respondent. Learned Counsel for the appellant, Mr. T.R. Rajagopalan, contends that what is contained in the settlement deed Ex. A-1 is only a pious wish of the donor and the same will not clothe the donor with any right to canc