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4. The second defendant in the trial court has filed the following written statement.

It is true that under the will dated 10.4.1945 both of them bequeathed the schedule property along with other properties to Smt. Muniyallamma D/o Smt. Ramakka. The gift deed is a conditional gift deed and will come into effect only after the death of all the three executants. The donors under the gift deed also had reserved their right to cancel the gift deed in the event of violation of any terms enumerated in the said gift deed. This defendant did not become the absolute owner of the schedule property by virtue of the conditional gift deed dated 11.7.1962. This defendant had no right to alienate the schedule property to any third party as the conditional gift deed clearly prohibits this defendant from alienating the property during the life time of any of the donors under the gift deed.

The 1st defendant is the brother-in-law of this defendant (sister's husband). This defendant is an illiterate person who knows only to put his signature. The 1st defendant was an employee in the Health Department wanted to raise some loan to meet his family commitments during 1978-79. However, since he had no property to offer as security he requested this defendant to execute a nominal sale deed in his favour in respect of the schedule property so that the same could be offered as security for raising loan. He also promised that as soon as loan was obtained, he would execute another document cancelling the nominal sale deed. Having regard to the relationship between the parties and the situation in which the 1st defendant was placed, this defendant agreed to execute a nominal sale deed. The 1st defendant was also aware of the fact that this defendant had no right to alienate the schedule property as the gift deed is a conditional one and as on the date of Smt. Muniyallamma one of the donors was alive and without making her party to the sale deed, he cannot transfer any valid title in favour of the 1st defendant. This defendant executed a nominal sale deed dated 12.10.1979 purporting to alienate the schedule property in favour of the 1st defendant. It was specifically understood between the parties that the sale deed was only a nominal one and it was executed for enabling the 1st defendant to raise loan on the security of the schedule property. The first defendant has absolutely no right title or interest over the schedule property and the plaintiffs are the absolute owners of the schedule property by virtue of the gift deed dated 21.7.1983. After coming to know of the execution of the sale deed dated 15.10.1979 by this defendant, Smt. Muniyallamma cancelled the gift deed dated 11.7.1962 by document dated 26.7.1983. Under the circumstances, this defendant did not derive any right, title under the gift deed dated 11.7.1962 and consequently the 1st defendant did not derive any right by virtue of the sale deed dated 15.10.1979. Under the circumstances, the plaintiffs are entitled to be declared as owners of the schedule property by virtue of the gift deed in their favour. The plaintiffs are also entitled for possession of 'B' schedule property. The conditions specified under the gift deed dated 11.7.1962, is void in law and the transfer of property by way of gift is valid. The donors have every right to reserve the right to cancel the gift deed on certain conditions. Even if this defendant had executed the sale deed dated 15.10.1979 in favour of the 1st defendant since he has violated the conditions enumerated in the gift deed dated 11.7.1962 and such a sale is invalid and the conditions in the gift deed are valid and perfectly in accordance with law. This defendant did not enjoy the property as absolute owner from 1962 since the conditions imposed under the gift deed prohibit this defendant from doing so. Smt. Muniyallamma on her own will and accord has executed the cancellation deed after coming to know the violations of the conditions under the gift deed by this defendant. The second defendant also prays for decreeing the suit of the plaintiff as sought.

The trial court has also observed that it is also pertinent to note that the plaintiffs have not produced either voter list or ration card to show that the plaintiffs or the second defendant was not residing with the said Pillamma and Ramakka or Muniyallamma and further to show if really defendant No.2 acted detrimental to the interest of the said 3 persons i.e., Pillamma, Ramakka and Muniyallamma.

The trial court has also observed that on perusal of EX.D1 the trial court was of the opinion that it cannot be said that the second defendant A Narayanaswamy acted against the interest of Muniyallamma and EX.D1 has been further renewed for a period of 6 months from 19.3.1979 and since Muniyallamma has also consented to the terms of agreement now the plaintiffs cannot contend that defendant No.2 has no independent right over the plaint schedule property. The plaint schedule property and this property sold to defendant No.1 under EX.D2 and admittedly this sale deed is out and out sale deed executed by the second defendant in favour of the 1st defendant for consideration and as such second defendant cannot contend that EX.D2 is only a nominal sale deed as contended by the second defendant in the written statement. The second defendant has prayed for decreeing the suit of plaintiff which clearly shows the collusion of the second defendant with the plaintiffs. The second defendant has not adduced any evidence. It is also pertinent to note that second defendant has not examined any of the witness, who are the attestors nor scribe to show that EX.D2 is only a nominal sale deed as contended by him in his written statement. The trial court has also observed that EX.P2 is a conditional gift deed by Pillamma, Ramakka and Muniyallamma, the will dated 10.4.1945 executed by Pillamma and Ramakka in favour of Muniyallamma automatically goes cancelled and it is also pertinent to note that subsequent to the execution of EX.P2 conditional gift deed Pillamma and Ramakka died and Pillamma and Ramakka are not the parties to the cancellation of gift deed dated 20.7.1983 as per EX.P4 and admittedly Muniyallamma alone has no right to cancel the gift deed. It is also pertinent to note that since Muniyallamma is a consenting witness to EX.D1 agreement of sale, any conditions that has been mentioned or incorporated in EX.P2 becomes void, since taking into consideration the conduct of the second defendant and the said Muniyallamma clearly goes to show that once the transfer that has been taken place under the said gift deed EX.P2 it is an absolute transfer notwithstanding any conditions that has been mentioned in the said conditional gift deed EX.P2. From the conduct of the said Muniyallamma it can be inferred and it can be held that EX.P2 is an absolute gift deed and the same has been acted upon by the parties therein. From the conduct of the said Muniyallamma and second defendant it can also be held that the said Muniyallamma has no right to execute the gift deed in favour of the plaintiff No.1 and 2 as per EX.P3, since the second defendant has already sold plaint schedule property in favour of the 1st defendant under registered sale deed as per EX.D2. Admittedly the plaintiffs have not produced the original gift deed that has been executed in their favour or produced the original cancellation gift deed executed by the said Muniyallamma. That apart the plaintiffs have not produced nor proved the original gift deed said to have been executed in their favour by the said Muniyallamma. It is also pertinent to note that as per Sections 67 and 68 of Indian Evidence Act, Will, gift and mortgage are the only three documents which requires compulsory attestation and the same has to be proved by producing the original documents and also by examining at least one attesting witnesses, by marking the same. The trial court opined that marking of a document as an exhibit will not dispense with its proof. The gift deed which has been relied upon by the plaintiffs as per EX.P3 has also not been proved in accordance with the provision of Indian Evidence Act by producing the original documents and by marking the same. It is also pertinent to note that the copies of EX.P2 and EX.P4 is obtained by the second defendant A Narayanaswamy and that apart the said Muniyallamma was alive as on the date of EX.D2 and the same has not been questioned by the said Muniyallamma and that apart EX.D2 came into existence only in pursuance of EX.D1 to which the said Muniyallamma is consenting witness. It is also pertinent to note that the original EX.P1 to Ex.P4 has not been produced by the plaintiffs and the same has been withheld.

The trial court while discussing issue Nos.1 and 2 it has been clearly held that the condition has been specified under the gift deed dated 11.7.1962 is void in law in view of the discussions made in the documentary evidence relied upon by both the parties and by virtue of the registered sale deed that have been executed in favour of the 1st defendant by the second defendant as per EX.D2 which is a out and out sale deed, the 1st defendant is the absolute owner of the suit schedule property and he has acquired the right title and interest over the suit schedule property. It is also pertinent to note that by virtue of the conditional gift deed that has been executed in favour of the second defendant as per EX.P2, the second defendant has got right to execute the sale deed in favour of the 1st defendant. That apart, the plaintiffs have thoroughly failed to prove that they are the absolute owners of the suit schedule property by virtue of the documentary evidence EX.P3 and that apart the second defendant also executed an agreement of sale in favour of the 1st defendant and the said Muniyallamma is one of the consenting witness to the said agreement of sale EX.D1 in pursuance of EX.D1 the agreement of sale, the sale deed EX.D2 came into existence on 15.10.1979 which is an out and out sale deed that has been executed for consideration in favour of the defendant with regard to the schedule property and that apart the 1st defendant has produced the documentary evidence EXs.D1 to 23, which goes to show that by virtue of the sale deed he has acquired title to the schedule property. This court has no hesitation to come to the conclusion that the 1st defendant has proved by virtue of the sale deed that he has acquired title to the schedule property. It is pertinent to note that at this stage originally the schedule property belongs to one Pillamma and Ramakka and in view of the execution of EX.P2 conditional gift deed by the said Pillamma and Ramakka and Muniyallamma the will dated 10.11.1945 executed by Pillamma and Ramakka in favour of Muniyallamma stands cancelled automatically and it has no force for the simple reason that the said will if any came into force only after the death of Pillamma and Ramakka and since the said Pillamma, Ramakka and Muniyallamma executed conditional gift deed in favour of the second defendant as per EX.P2. The trial court was also of the opinion that the will in question that has been executed by Pillamma and Ramakka in favour of Muniyallamma as per EX.P1 does not come into force.