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17. Aggrieved by the aforesaid, Sehdav Verma (legal representative of deceased plaintiff) has filed the present appeal under Section 96 of Code of Civil Procedure.

18. Arguing the appeal learned counsel for Sehdav Verma, appellant (legal representative of deceased plaintiff) made three broad submissions as under:-

A The gift of suit property by the deceased plaintiff to defendant No.2 was conditional. Clause 4-A of the Gift Deed dated June 10, 1997 categorically prescribes that the deceased plaintiff had gifted the suit property with the condition that „donor (deceased plaintiff) will reside in front (drawing) room throughout his life‟. Admittedly, the defendants had prevented the deceased plaintiff from residing in the front (drawing) room in the suit property thereby committing breach of condition of gift and consequently the gift in question became ineffective and inoperative. In said regards, counsel placed reliance upon the decision of Supreme Court reported as (1997) 2 SCC 225 Narmadaben Maganlal Thakker vs. Prajivandas Maganlal Thakker & Ors.

38. In the decision reported as AIR 1962 Ori 130 Tila Bewa vs. Mana Bewa the law relating to revocation of gift upon breach of condition of gift was succinctly stated in following terms:-

"The well settled legal position, based on authorities, is that a gift, subject to the condition that the donee should maintain the donor, cannot be revoked under Section 126 of the Transfer of Property Act for failure of the donee to maintain the donor, firstly for the reason that there is no agreement between the parties that the gift could be either suspended or revoked; and secondly, this should not depend on the will of the donor; again, the failure of the donee to maintain the donor as undertaken by her in the document is not a contingency which should defeat the gift; all that could be said is that the default of the donee in that behalf amounts to want of consideration; Section 126 thus provides against the revocation of a document of gift for failure of consideration; if the donee does not maintain the donor as agreed to by the donee, the latter (donor) could take proper steps to recover maintenance; it is not open to a settler to revoke a settlement at his will and pleasure and he has got to get it set aside in a court of law by putting forward such pleas as bear on the invalidity of a deed of gift. Under Section 122 the Transfer of Property Act, a gift is complete when it is accepted by or on behalf of the donee; where there is evidence that the gift of property by a person to his wife and children was accepted by the donees, the fact,--that the donor, who had no other property,--stayed on the property, even after the gift,--does not show that the gift had not taken effect; where no right in the property is reserved in the donor, the fact that there is a clause in the deed (as in the present case) that the donee should maintain the donor, does not show that the donor continued to be the beneficial owner; a direction in a gift deed that the donee should maintain the donor till his death will not make the gift a conditional one; if the terms of the gift deed were ,that there had been an absolute transfer of the property in favour of the donee, such a direction for maintenance shall be regarded only as an expression of pious wish on the part of the donor.

9. In support of his proposition, that the deed of gift is revocable, the learned counsel for the defendant respondent relied on a decision of the Allahabad High Court in Balbhadar Singh v. Lakshmi Bai, holding that under Hindu Law if a person makes a gift to another in expectation that the donee will do more work in consideration of the gift, it follows that if the donee failed to do that which it has conditioned he should do, the gift is revocable. The learned counsel's point is that in order that the defendant may get Sebadharma (services) from the plaintiff she (plaintiff) has to remain in the house; but the plaintiff having remarried, she cannot perform the Sebadharma of the defendant because the plaintiff has left the house of the defendant and remarried. In my opinion, this argument cannot stand, in view of the legal position as stated above. With regard to the decision, relied on by the learned counsel, it appears that the Allahabad High Court observed that it was arguable that in the. absence of an express power of revocation for failure of the condition the gift cannot be impugned or revoked. Therefore, the Allahabad decision,--which was decided on the particular facts of the case,--does not support the defendant's contention. In the present case, as is clear from the document itself, there is no agreement that on failure on the part of the plaintiff to perform any of the conditions, namely, Sebadharma etc. the gift will be invalid. In other words, there must be a defeasance or default clause in order to make the gift revocable; if there was a condition that on failure to perform any of the conditions the gift will be void, then certainly the gift could have been revoked; the document "does not make any provision to that effect. Here, the defendant cancelled the gift,--as appears from the deed of cancellation,--in apprehension that the plaintiff might waste the property by transfer; it is not the defendant's case that, by reason of the plaintiff's having failed to perform her Sebadharma etc. that she revoked the deed of gift. (Emphasis Supplied)

40. To put it pithily, the position regarding revocation of gift upon breach of condition of gift is this: „there must be a defeasance or default clause in order to make the gift revocable; if there was a condition that on failure to perform any of the conditions the gift will be void, then certainly the gift could have been revoked; but the gift could not be revoked where the document does not make any provision to that effect.

41. In the instant case, there is no specific condition/stipulation in the Gift Deed dated June 10, 1997 that the gift would be revoked in case the deceased plaintiff does not reside in the front (drawing) room of the suit property. In the absence of such specific condition in the Gift Deed dated June 10, 1997, the Gift made by the deceased plaintiff of the suit property in favor of defendant No.2 cannot be revoked on the ground of (alleged) failure of the defendants to allow the deceased plaintiff to reside in the front (drawing) room of the suit property in view of legal position stated above.