1. The plaint in the suit now under appeal was filed for a declaration of title and possession of the plaint schedule property. The case of the plaintiff is that the property belonged to one Mangamma and that she made a gift of it to the plaintiff on condition that the portion now in dispute should be in her possession till she died and that it might be taken possession of by plaintiff after her death. The defendants who are the appellants claim under a document executed by Mangamma subsequent to the gift.
2. It is in evidence that the suit property was given to Mangamma by her husband Venkatappa for being enjoyed by her till her death. According to his will the property had to go to her daughter Venkatalakshamma thereafter. It is thus clear that Mangamma had only a life interest and the gift could only be effective in respect of such interest as she had in the property. It is also clear that the plaintiff respondent ceased to have any title in the property the moment Mangamma died. It may be stated that the defendants who also claim their title under Mangamma have no better right to the suit property than the plaintiff. What however is not noticed by the lower Courts is that the plaintiff cannot succeed on account of the weakness of defendant's case. Since the plaintiff has no title to the property after death of Mangamma, the suit had to be dismissed.
(2a) The lower Courts have proceeded on the ground that as Mangamma's suit for cancellation of the gift deed executed by her in favour of plaintiff was dismissed) neither she nor the defendants who claim under her can raise in this suit any plea which she had not raised in the previous suit. The lower Courts, however, have not noticed that Mangamma could not herself have pleaded that after her death the plaintiff would cease to have any interest in the property. What has been conveyed by her is only such interest as she had that is her life interest, though she purported to have conveyed the property as if she was the absolute owner of it. Before it could be said that the defendants are barred by principles of 'res judicata' the matter directly and substantially in issue in this suit must have been directly and substantially in issue in previous suit. What was in dispute in the previous suit filed by a limited owner was only her life interest in the property and plaintiff's title to such property after her death was not then in dispute. The defendants can, therefore, claim in this suit that plaintiff ceased to have any right in the suit property the moment Mangamma died.
3. The learned Munsiff has argued that she is the heir of her daughter, as it is in evidence that the latter is dead. If he had been careful, he would have noticed that such a plea had not been taken in this suit and even if such a plea had been taken it has not been shown that her son-in-law is dead. The property was gifted to Venkatalakshamma and it would be her Sthridhana property. There are a number of nearer heirs than the mother to the daughter's estate and in fact the previous judgment Ext. B makes it clear that Venkatalakshamma's husband was alive after her death. Anyway it was for the plaintiff to have pleaded that Mangamma was the nearest heir to her daughter and proved that it was so before he could succeed in this suit. He did not do so. The suit, therefore, ought to have been dismissed.
4. In the result the appeal is allowed andjudgment and decree of the Courts below areset aside and the suit stands dismissed. Considering that the defendants have also notshown to have any title, the parties will beartheir own costs throughout.
5. Appeal allowed.