P.N. Shinghal, J.
1. This appeal by defendant Smt. Chandra Mani against the appellate judgment of District Judge, Jodhpur, dated April 30, 1962, decreeing the suit of the plaintiffs-respondents for possession of the suit house and declaring the 'patta' and the gift-deed as inoperative.
2. The house in question admittedly belonged to Roopram. The plaintiff's therefore traced the genealogy from him in order to show that while they were the descendants of Shivrup, Prabhushanker was the descendent of Shambhuram, Prabushanker used to reside in the suit house when he died issueless on Jeth sud 7, Section 2000. The plaintiffs claimed to be his only heirs. Mangilal, who was the sole defendant in the suit (as instituted on November 8, 1948) used to reside in the house from the life-time of Prabhushanker. The plaintiffs asked him to vacate the house, but he refused to do so inspite of notice, on the plea that it had been gifted to him by Prabhushanker by gift-deed Ex. A. 3 dated May 21, 1938 and he had obtained a 'patta' on that basis. The plaintiffs however challenged the gift-deed as illegal and void on the grounds that it was made for valuable consideration and was a grant, in charity, from the Rule so that it was inalienable,
3. Defendant Mangilal denied the claim altogether, except that he admitted the genealogical table showing the relationship of Mangilal and Prabhushanker. He pleaded that the suit house fell to the share of Prabhushanker and was in his possession. He denied that it was received in charity and pleaded that Prabhushanker was its absolute owner and lived in it until his death. He denied the right of the plaintiffs to the suit house and claimed that he had been living in it for a period of more than 20 years. He also pleaded that the plaintiffs were aware of the earlier will, the gift-deed and they did not raise any objection so that they were estopped from challenging them now. He pleaded further that Prabhushanker was satisfied with the services rendered by him and delivered possession of the suit house to him during his life-time. Then he pleaded that he made made additions, and alterations repairs in the house during the life-time of Prabhushanker and thereafter, resulting in an expenditure of Rs. 815/1/6 and the plaintiffs were estopped from raising the suit for the further reason that they did not make any objection at that time. A plea was also taken that the suit was barred by limitation. Further, the defendant pleaded that he served Prabhushanker during his illness, and spent money after his death in connection with the funeral and other ceremonies, so that, including the expenditure on the repairs of the house, he had spent Rs. 8,111/8/6 which were a charge on the house.
4. Eight issues were framed in the trial court to cover the points in controversy between, the parties. Defendant Mangilal died during the course of the trial and his daughter Smt. Chandramani, the present appellant, was brought on the record as his legal representative.
5. The trial court reached the conclusion that the plaintiffs had not succeeded in proving that the suit house was the same which was given in charity by the Ruler of Jodhpur in Section 1860, and also that Prabhushanker had the right to make a gift of it in favour of Mangilal. It held further that the suit was barred by limitation, that the plaintiffs were estopped from challenging the impugned gift, and that the gift was valid as it was not made for valuabl consideration. The defence regarding the expenditure said to have been incurred on the house was, however, rejected; and so also the regarding the value of the house In the result, the trial court dismissed the suit by its judgment and decree dated February 28, 1958.
6. An appeal was taken to the District Judge of Jodhpur. He reached the conclusion that the suit house was the same which was given in charity by the Jodhpur Ruler to the ancestors of the plaintiffs in 1860 He also held that the house was given to the ancostors of Prabhushanker by partition and that he occupied it as an absolute owner so that he had every right to make a gift of it to any one liked. The learned Judge however held that the gift made by Prabhushanker in favour of Mangilal under document. Ex A 3 dated May 21, 1938 was for consideration and was therefore void and inoprative. He also held that the suit was within limitation under Article 144 of the First Schedule of the Limitation Act. The cross-objection regarding the expenditure' said to have been incurred on the house was rejected. The lower appellate court thus reversed the judgment and decree of the trial court and decreed the plaintiff's claim for possession as well as for the declaraion that gift-deed Ex. A 3 and 'patta' obtained by Mangilal in his name in 1940 were inoperative. This is why the defendant has preferred the present second appeal.
7. By the very nature of the controversy, the first point for consideration is whether the suit house is the same which was given in charity by the Ruler of the former Jodhpur State to Roopram, the commonancestor of the plaintiffs and Prabhushanker, in Section 1960? As has been stated, the learned Judge of the lower appellate court has decided the pome in favour of the plaintiffs by holding that this was so, and the question is whether that finding of fact has been vitiated by any substantial error of law or procedure so as to require reconsideration in second appeal.
8. It has been argued by Mr. Chacha, learned Counsel for the appellant, that finding of the lower appellate court on this point of controversy has been based mainly on Ex. P.W. 5/1 which was a copy of a copy and was therefore inadmissible in evidence. The record shows, however, that the document was produced and was exhibited in evidence at the instance of Fatehnath P.W. 5 who was then working as a clerk in the office of the Registrar of Records, Jodhpur. He brought the connected 'patta' file of defendant Mangilal. It contained a compared copy of the 'patta' dated Asoj sud 15, Section 1860, bearing the signature of the person who had compared it. It was the compared copy which was tendered in evidence during the course of Fatehnath's statement, and it was a matter of convenience that a copy of that copy was marked as Ex. P. W. 5/1 for purposes of this case instead of putting that mark on the certified copy which was on the record of the 'patta' files. These facts have been fully established by the statement of Fatehnath and have, not been rebutted.
9. Now it cannot be doubted that the 'Patta' of Asoj sud 15, Section 1860 was granted by the Ruler of the former Jodhpur State who was a Sovereign. It was therefore a public document within the meaning of Section 74 of the Evidence Act. Its certified copy was therefore admissible in secondary evidence under Section 63 of the Evidence Act in the absence of the original which was not made available to the court inspite of demand and in respect of which secondary evidence was allowed by the trial court. In such facts and circumstances, there is no reason why it should not be presumed under Section 79 read with illustration (e) of Section 114 of the Evidence Act that the certified copy which was on the record of the 'patta' case was a genuine document. I had occasion to consider a some what similar point in civil Regular Second Appeal No 569 of 1965 (Smt. Gopi and Anr. v. Madan Lal) decided on April 30, 1969, and it is not necessary for me to deal with it at length again. There is thus no force in the argument that an error of law has been committed by the learned Judge of the lower appellate court in placing reliance on Ex. P. W 5/1, and there is no reason to re-examine his finding of fact in regard to the identity of the house.
10. It may be mentioned, all the same, that a perusal of Ex. P. W. 5/1 shows that it is a copy of the 'patta' of a house which was given in chanty by the Ruler to Roopram and his sons on Asoj sud 15, Section 1860, and there is no suggestion on the record that it related to a house other than the suit house even though it was of the same date and was for the same purpose. Then it is also a fact that the house described in 'patta' Ex. P. W. 5/1 is situated in.'mohalla' Brahmpuri, in Jodhpur city, where the suit house is situated. Further, it is not disputed before me that at least two boundaries of the suit house tally with the boundaries of the house described in 'patta' Ex. P. W. 5/1 inspite of the lapse of such a long period of time. Moreover plaintiff Gopiballabh P.W. 6 was not cross-examined on his statement that he learnt from his father that the suit house was the same which was given in charity to his ancestors Roopram, Shivrup and Shambhuram in Section 1860. It may also be mentioned that although it has been proved beyond doubt that defendant Mangilal obtained a 'patta' of the suit house in his own name, that document has not been produced in evidence inspite of demand even though it would have been of some evidentiary value for the purpose of tracing out the earlier 'patta'. I am therefore quite satisfied 'that the finding of fact of the court below that the suit house is the same which was given in charity by the Ruler to the ancestors of the plaintifits in Section 1860, is quite correct. It is true that in gift-deed Ex. A 3 the 'Samvat' of the bcuse has been mentioned as 1867 instead of 1860, but I fully agree with the trial court that as the 'miti' and the month are the same, there was an inadevrtent error in writing the Samvat as 1860, and this inaccuracy can therefore be of no consequence.
11. Connected with this is the other question whether the suit house was he joint property of the plaintiffs and Prabhushanker, or whether it was he exclusive property of Prabhushanker at the time of the alleged gift? The learned Judge of the lower appellate court has arrived at the conclusion that the suit house fell to the share of the ancestors of Prabhushanker by by partition and that he was occupying it as an absolute owner when he made the impugned gift Ex. A. 3. This is a finding of fact and I am unable to agree with Mr. Joshi, learned Counsel for the plaintiffs-respondents, that it requires to be reopened and reconsidered merely because in arriving at it the learned Judge made a reference to Section 110 of the Evidence Act. It may be that in view of the finding that the property belonged be the common ancestor of the plaintiffs and Prabhushanker at one point of time, not much assistance could be taken from Section 110 of Evidence Act, but the fact nontheless remains that the origin of the title to the property went as far back as Section 1860 which was also the date when Roopram and his sons took possession of it In the case of such an old title and its devolution it is difficult to produce the evidence of partition or the manner of the devolution. I am therefore not persuaded that this is a case in which a presumption of jointness should be drawn simply because the sons of Roopram were once the members of a joint Hindu family. It has been held in Yellappa Ramappa Naik and Ors. v. Tipanna AIR 1929 P.C. 8 that the presumption of union is, stronger in the case of brothers than in the case of cousins and that it grows weaker at each stage of descent from the common ancestor so that second cousins, are generally separated. Their Lordships have further upheld the view that the presumption that the old state of things continued is, at some point' met by the presumption that the present state of things had a legal origin and that cannot be said that the Hindu law looks on all separation of families with disfavour. So when it appears from the facts that through generations the property has been possessed in a single line, there is no justification for the view that it lies upon that line to establish that it was disassociated generations ago from another line which raised the controversy subsequently but is not able to propone the facts of jointness with the last holder of the property.
12. Thus when it is not disputed before me that the plaintiffs were not living jointly with Prabhushanker, it is quite justifiable to conclude that the property had been divided between the two branches of the family, and it is for the person who alleges that this was not so or that the property had not been partitioned, to prove his case. In cases of this nature when the origin of the property dates back almost to 150 years, a decision on a point like the present has to be taken on the broad and undisputed facts. The learned District Judge has in this connection made a reference to the facts that Prabhushanker resided separately from the plaintiffs, he was messing separately from them, he was in exclusive possession of the suit house, the plaintiffs had never been in possession of it or of the 'patta' dating back to Section 1860, they had never gone inside the house, and they did not raise any controversy when Prabhushanker brought defendant Mangilal to live in it for many years. All these are important facts and I am quite satisfied that the finding that the suit house was the exclusive property of Prabhushanker at the time he made a gift of it under Ex. A. 3 is correct.
13. I shall next deal with the question of limitation. The trial court decided it against the plaintiffs, but the lower appellate court has reversed that finding holding that the suit is within limitation. It has been argued by the learned Counsel for the appellant that in reaching this conclusion the lower appellate court has committed an error of law inasmuch as Article 91 of the first Schedule of the Limitation Act is attracted to the case and not Article 144. He has made a reference to the reliefs claimed in the plaint and has argued that as the plaintiffs have asked for a declaration that the gift deed dated May 21, 1933 is void against them and that its 'patta' dated March 14, 1950 in favour of the defendants should be cancelled, Article 91 and not Article 144, will apply The learned Counsel has placed reliahce on Kirkwood v. Maung Singh and Anr. AIR 1926 PC 216 in support of his argument.
14. But it is by now well settled that if any immoveable property cannot be recovered until a document is set aside, it is necessary to bring a suit for such a relief and it will squarely fall within the purview of Article 91. It should not matter if, in such a case, the substance of the relief is lost sight of and a prayer is made for recovery of possession But it is also equally well settled that it a document is void, Article 91 will have no application. So when the plaintiffs have specifically pleaded in paragraph 5 of plaint that the gift deed in question is void, for the reason, inter alie, that it was made for valuable consideration, it cannot be said that the present is a suit for the cancellation or setting aside of a voidable instrument. The answer to the question of limitation has therefore to be found within the frame work of the plaint and it must, for the reason already stated, be in favour of the plaintiffs inasmuch as Article 144 and not Article 91 will govern the case. I am fortified in this view by the decision in Petherpermal Chetty v. Mudiandy Servai ILR 35 Cal. 551 where their Lordships of the Privy Council held that if the deed is inoperative, it is unnecessary for the plaintiff to have it set aside as a preliminary to his obtaining possession of the property. It was therefore held that the suit was governed by Article 144 and not Article 91. Reference may also be made to the decisions in Mst. Aisha Begam v. Mst. Kundan Jan and Ors. AIR 1945 All. 367, Mst. Bibi Salcha and Ors. v. Md. Zakariya Khan and Ors. : AIR1950Pat247 , and Chandi Charan Pandit and Ors. v. Sarat Chandra Sarma and Ors. AIR 1955 Assam 231.
15. It should not therefore matter if the plaintiffs have asked for a declaration that Prabhushanker had no right to make the gift or that it is inoperative against them and should be cancelled. The important point is that the plaintiffe have stated the facts and circumstances under which the gift deed has been challenged as void ab initio and have prayed for possession on that basis. The prayer for declaration or cancellati in was unnecessary and immaterial, and cannot be said to form an essential part of the relief asked for in the suit, as has been held in Uoni and Anr. v. Kunchi Amma and Ors. ILR 15 Mad. 26. Morever, Mr. Joshi, learned Counsel for the plaintiffs-respondents, has frankly conceded that if the other relief regarding declaration and cancellation are found to be unnecessary, or barred by limitation, they may be refused, but that there is no reason why the relief of possession should be denied to the plaintiffs when it is clearly within limitation under Article 144 to the first Schedule of the Limitation Act. The suit for possession must therefore be held to be within limitation.
16. I shall next examine the question whether the gift dated May 21, 1938 was illegal or void because it was made by Prabhushanker for valuable consideration. This was the subject matter of issue No. 3 It was decided by the trial court against the plaintiffs and has been decided by the lower appellate court in their favour.
17. Section 122 of the Transfer of Property Act defines 'gift' as 'the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the doner, to another, called the donee, and accepted by or on behalf of the donee ' It is therefore an essential requirrenent of a valid gift that it should be 'without consideration'.
18. The question whether a gift deed is without consideration depends on the real intention of the executant of the document. Thus it has to be seen in a given case whether the intention was to give away the property without any consideration as for example for love or affection If, on the other hand, some right, interest, profit accrues in favour of the doner, or some forbearance, detrimental loss or responsibility is given, suffered or under taken by the donee at his request, the gift would be void for it will not then be without consideration. So if a legal obligation is cast on the donee, the gift will undoubtedly be void
19. The test of the real intention of the donor has therefore to be applied to the deed of gift Ex. A. 3 dated May 21, 1938, which is said to have been executed by Prabhushanker in favour of Mangilal, father of defendant Smt. Chandramani, and the following facts appear to be well established, (1) Mangilal, the donee, was not a relation of Prabhushanker. This is admitted before me to be so. So that it cannot be said that the gift was made out of love or affection. (ii) It is also admitted that he had not served Prabhushanker. It cannot therefore be said that the gift was made on account of any past service, (iii) Prabhushanker at first made a will in favour of one Bansilal on February 16, 1932 on the specific condition and for the specific purpose that he would maintain him during his life-time, (iv) The said Bansilal and his wife a actually served Prabhushanker for a period of about 16 years and spent about Rs 800/- on him in that connection, (v) Bansilal did not however ask for he re-payment of Rs. 800/- from Mangilal (the donee) out of his regard and because of his goodness, (vi) But the said Bansilal and his wife were unable to serve Prabhushanker any further due to their illness, (viii) Prabhushanker therefore cancelled the will in favour of Bansilal, with his consent, and delivered the document to Mangilal (the donee), (viii) He executed the giftdeed (Ex A. 3) in favour of Mangilal in respect of the house and the household effects and other moveable property and delivered it to him. (ix) Prabhushanker stated in Ex. A. 3 that Mangilal and his heirs would thereafter be the owners of his house and household effects. But he stated, in the same breadth as follows.--
20. It will thus appear that Prabhushanker was so circumstanced that even though he had a house and some household effects, he required the help of someone for his maintenance and service in his old age. He first tried to secure such an arrangement from Bansilal by making a will in his favour; but it broke down because of the illness of Bansilal and his wife. He was therefore driven to the necessity of finding some other person who was willing to maintain and serve him. He was able to find Mangilal for this purpose and executed document Ex. A. 3 in his favour containing the above important recitals which leave no room for doubt that a legal obligation was cast on him (donee) to maintain and serve him (donor) and that it formed the consideration for the gift. As has been stated, Mangilal was not related to Prabhushanker and had not served him on any previous occasion so as to justify the argument that the gift was made in his favour out of love or affection or personal regard. The gift was therefore undoubtedly with consideration.
21. It is true that Section 126 of the Transfer of Property Act provides, inter alia, that the donor and the 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 this cannot be so interpreted as to permit the making of the gift with consideration, for that is what has been expressly prohibited by Section 122.
22. The learned Counsel for the appellant has cited a number of cases in an attempt to show that gift deed Ex A. 3 was not made for consideration, but all those cases are clearly distinguishable. Thus in Khushalchand Bhagchand v. Trimbak Ramchandra and Ors. AIR 1947 Bom. 49 the gift deed conferred on the donee a complete and immediate title to the property subject to the right of the donor to enjoy it during his lifetime, and it was therefore held that it was the donor's intention to make a gift, and not merely a will in favour of the donee, and that he debarred himself from revoking it in case he were to change his mind in future. That was therefore quite a different case.
23. In Jagat Singh Chilwal and another v. Dungar Singh : AIR1951All599 the gift was made subject to the condition that the donors would be entitled to revoke it or, in the alternative, to claim the amount of maintenance from the donees in case they failed to maintain the donor and his wife. It was, however, admitted in that case that that deed was a gift and in view of that admission the provision regarding maintenance was not taken to be the consideration for the gift.
24. in Gangadhara Iyer and Ors. v. Kulathu Iyer Sankara Iyer AIR 1952 TC 47 the gift was made because of the love and affection the donor had for the donee, and for his well being. The donee was also asked to enjoy the properties and affect the mutation in his favour. The gift was therefore complete. It was then that the other clauses, providing for expenses in connection with the donor's funeral ceremonies and for the services expected from the donee, were introduced. These were therefore naturally held to be only pious wishes and no more and I am unable to think that the decision can be of any help to the appellant in the present case.
25. In Kanak Sunder Bibi v. Ram Lakhan Pandey and Ors. : AIR1955Pat458 the donor had stated that the donee was his sister and had always been obedient and submissive to him The gift was therefore made on account of natural love and affection and could not be said to be a transfer for consideration.
26. M Venkatasubbaiah v. M. Subbamma and Ors. AIR 1956 AP 195 was a case in which the application of Section 126 of the Transfer of Property Act came up for consideration and it was held that the case could not be brought within the ambit of that section for the reasons stated in the judgment. It is therefore of no real help in deciding the present case. It will be sufficient for me to say that Section 156 does not purport to provide that a gift would be valid even if it was made for consideration for it is the clear requirement of Section 122 that the gift must be without consideration.
27. Mst. Nozi and Ors. v. Mohanlal was a case in which the donor continued to live in the house gifted by him and it was held that this would not necssearily mean that there was no gift if the other circumstances showed the intention to gift away the property. The judgment is therefore of no avail to the appellant.
28. In Tila Bewa v. Mana Bewa : AIR1962Ori130 the question of the invalidity of the gift on account of the existence of consideration does not appear to have come up for consideration for, in that case, the decision tuned on the question whether the subsequent provision for the donor's maintenance was anything more than an expression of her pious wish when she had made a complete gift of the lands in the operative portion of the document and made the plaintiff full owner in possession from the date thereof. After reading the document as a whole, it was held that it was an out and out gift and that the diractions as to maintenance were only pious wishes. That case was therefore decided on facts which were different.
29. Ayeeshee Bivi v. K.S.A. Shaik Mohammed Alim Sahib and Ors. : AIR1964Mad309 was a case in which the gift was made by the mother. In the gift, deed she stated that out of love and affection for the donee and in the expectation that, as a son, he would maintain her, she had made the gift of the property to him. It was therefore held that the expression of the desire that the donee would maintain her was not in the nature of a stipulation for it was not a demand as a part of the bargain or agreement.
30. Mt. Purnia Kurmi v. Manindar Nath Mahanti AIR 1968 Assam 50 was a case in which a gift was made to a stranger who was however treated as a son by the donor. The gift was therefore made out of love and affection The decision in that case turned on the right of the donee to revoke the document with refernce to Section 126 of the Transfer of Property Act and the question of the validity of the gift with reference to the requirement as to want of consideration in Section 12 was not examined.
31. In the remaining case of Ibrahim Bivi and Ors. v. K.M Pakkir Mohideen Rowther : AIR1970Mad17 the question for consideration was that regarding the reservation by the donor of the right to reside in the house alongwith the donee during his life-time. It was therefore held that the donor need not necessarily depart from the house in order to make the gift effective if there was a clear intention to make the gift and to part with the possossion of the property. That case was therefore of a different nature altogether.
32. It will thus appear that the cases cited by the learned Counsel for the appellant have no bearing on the present controversy. On the other hand Kulasekaraperumal v. Pathakutty Thalavanar and Ors. : AIR1961Mad405 was a case in which the meaning and significance of consideration vis-a-vis condition requiring the aliense to discharge the debte and maintain the wife of the alienor specifically came up for consideration and it was held that the transfer was not valid as a gift.
33. Section 2(d) of the Contract Act contains the definition of 'consideration', and the same holds good for purposes of a gift under Section 122 of the Transfer of Property Act. A gift will not therefore be valid if it is shown to be with consideration. And this will be so inspite of the provisions of Section 126 of the Transfer of Property Act. I have already made a reference to the provisions of that section and I have no doubt that the use of the word 'event' is not synonymous with 'consideration'. Section 126 merely provides for the circumstances in which a gift may be suspended or revoked and it may well be said that it subserves the requirement of Section 122 and does not, at any rate, qualify or defeat it. But as in the present case there was consideration for the execution of document Ex. A. 3 dated May 21, 1938, it must be held to be invalid and void.
34. Connected with this aspect of the validity of the gift deed is the other question whether it could be said to be valid in the face of the notification published in the Marwar Gazette dated April 21, 1917,. which contained the following rules:
(1) All immovable property originally granted by the State or by a Thikana shall be governed by the laws of Mouris Ala, that is, that the heirs to this property must be within the line of the original grantee.
(2) Adoptions are not to be restricted except under law of Mouris-Ala, and will be governed by rules of law applicable to each case.
(3) Except in case of property subject to Mouris-Ala rules, all heirs of a deceased person according to the law to which be is subject will be recognised and only in case of failure of a legal heir, his property will escheat to the Darbar or to the Thikana in which such property is situated or is found.
It has been argued by the learned Counsel for the respondents that as the suit house was granted by the Ruler of the former Jodhpur State, the heirs to it must be within the line of the original grantee, and that it could not therefore be the subject matter of any gift to a stranger. The argument appears, prima facie, to be attractive, but I do not think it necessary to consider it in detail now that I have reached the conclusion that the gift was invalid and void for the other reason that it was made for valuable consideration.
35. It has however been argued by the learned Counsel for the appellant that even if document Ex A. 3 is not upheld as a valid gift, it will be valid as a contract between- Prabhushanker and Mangilal by which Prabhushanker agreed to transfer his property to Mangilal in view of his promise to maintain him and to incur the expenditure on his funeral. The learned counsel has placed reliance on Ibrahim Bivi and Ors. v. K.M. Pakkir Mohideen Rowther (17) in support of this argument and has also invited attention to certain observations in Kulasekaraperumal v. Pathakutt Thalevanar and Ors. (18).
36. I would have gone into this respect of the matter also but, as has been pointed out by the learned Counsel for the respondents, no such plea was taken in the written statement. What was pleaded was that even if Ex. A. 3 did not create a valid gift, it was at least a sale deed so that the plaintiffs were not entitled to succeed in their claim in the suit. This plea could not, however, be sustained because Section 54 of the Transfer of Property Act defines 'sale' to mean a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised, and it is nobody's case that any such price was at all paid by Mangilal to Prabhushanker. In the absence of a money consideration the transaction could not be said to amount to a sale. So when there is nothing in the written statement to justify the argument that Ex. A. 3 was valid contract between the parties the point cannot be allowed to be raised and considered in this court. The question whether any particular transaction amounts to a valid contract, is essentially a question of fact, or at least a mixed question of fact and law, and it cannot be allowed to be raised in second appeal when it has not been pleaded, when no issue has been framed in respect of it and when it was not raised in the courts below for their consideration. If any such plea had been taken, it would have been open to the other party to take an appropriate defence, and then the matter would have been tried and decided. Thus, for instance, it would have been permissible for the plaintiff, as has been argued by their learned Counsel, to show that the alleged consideration for the contract was not paid or did not ultimately pass. As there is nothing to show that the plaintiffs knew that the question of such a contract was in issue at the trial and they did not lead their evidence in respect of it, the point cannot be allowed to be raised at this late stage.
37. The appeal fails and is dismissed, except that the plaintiffs are not entitled to the declaration that the 'patta' obtained by Mangilal in his name in 1940 and the gift deed Ex. A. 3 are inoperative against them. The plaintiffs will therefore be entitled only to the relief for the possession of the suit house. The parties are left to bear their own costs in this court. Leave to appeal is prayed for, but is refused.