JUDGMENT :

PRAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree, dated 23.07.1998 and made in A.S.No.34 of 1997 on the file of Additional District Judge cum Chief Judicial Magistrate, Pudukkottai, reversing the judgment and decree, dated 06.12.1993 and made in O.S.No.299 of 1992 on the file of Additional District Munsif, Pudukkottai.

The defendants in the suit are the appellants. The deceased first respondent filed a suit for recovery of possession against the appellants. Pending Second Appeal, the first respondent died and the respondents 2 to 11 were brought on record as his legal representatives. The suit filed by the deceased first respondent was dismissed by the trial Court. On appeal filed by the first respondent, the suit was decreed as prayed for. Aggrieved the same, the defendants are before this Court.

2. According to the 1st respondent, who is the plaintiff, originally the suit property belonged to him. He executed a document dated 23.09.1968 gifting the suit property to the first appellant subject to the condition that the first appellant should perform the charity of “Thanneer Panthal” for the benefit of general public and school children who are studying in the school run by the first appellant in the suit property. It was also stated in the plaint that the deceased first respondent and the first appellant herein were entered into an agreement on 23.09.1968, whereunder, it was agreed that the charity mentioned in the gift deed dated 23.09.1968 should commence within one year from the date of execution of the document and if the first appellant fails to commence the charity within one year, the property should be retransferred to the deceased first respondent and the first appellant should also pay a sum of Rs.1,000/- to the first respondent. It was further stated in the plaint that the first appellant commenced the charity and carried out the same for a period of one year and subsequently the first appellant discontinued the charity and sold the suit properties to appellants 2 and 3 on 16.07.1970 under two sale deeds marked as Ex.B.1 and Ex.B.2.

3. The appellants filed a written statement and had taken a stand that under document dated 23.09.1968, the property was gifted to the first appellant and consequently the respondents cannot maintain the suit for recovery of possession. It was further averred by the appellants that the document dated 23.09.1968 was an irrevocable gift and hence the first appellant acquired absolute title under the same.

4. Before the trial Court, the deceased first respondent was examined as P.W.1 and one another witness was examined as P.W.2. Ex.A.1 to Ex.A.6 were marked on behalf of the 1st respondent/plaintiff. On the part of the appellants/defendants, no witness was examined. However, the sale deeds executed by the first appellant in favour of the appellants 2 and 3 were marked as Ex.B.1 and Ex.B.2.

5. The trial Court held that under Ex.A.1, first appellant acquired absolute title and in the absence of any recital in Ex.A.1, reserving the right of the first respondent to revoke the gift, the first appellant is entitled to treat it as her absolute property. Therefore, the trial Court held that the deceased first respondent/plaintiff was not entitled to maintain a suit for recovery of possession as he was divested of his title under Ex.A. 1. The trial Court also held that under Ex.A.2, the first appellant has to commence the performance of charity within one year and as per the averments found in the plaint, the charity was commenced by the first appellant within the time stipulated. But however, the performance of charity was stopped after two years. The deceased first respondent/plaintiff ought to have filed the suit within 12 years from the date on which the performance of charity was stopped by the first appellant. But however the suit was filed only in the year 1993, after 23 years and therefore, the suit was barred by limitation.

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