Patna High Court - Orders
Tajan Singh & Anr. vs Sri Raj Nandan Singh & Anr. on 5 December, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.160 of 2013
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1. Tajan Singh S/O Late Haridwar Singh Resident Of Village Ramtari Tola
Chainpura, Police Station Bihta, District Patna.
2. Smt. Shanti Devi W/O Late Jot Narayan Singh Resident Of Village
Ramtari Tola Chainpura, Police Station Bihta, District Patna.
.... .... Appellant/s
Versus
1. Sri Raj Nandan Singh S/O Late Rohan Singh Resident Of Village
Ramtari Tola Chainpura, Police Station Bihta, District Patna.
2. Sri Jamuna Singh S/O Late Rohan Singh Resident Of Village Ramtari
Tola Chainpura, Police Station Bihta, District Patna.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Kamlesh Kumar Sharma
For the Respondent/s : Mr. Ranjeet Tiwary.
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
ORAL ORDER
6 05-12-2014The plaintiffs-appellants having lost the suit and the appeal filed thereagainst have preferred this appeal to challenge the correctness of the judgment and decree dated 14.02.2013 passed by Additional District Judge-II, Danapur in T.A. No. 121 of 1994 affirming the judgment and decree dated 12.07.1994 passed by Sub-Judge-III, Danapur in T.S. No. 47 of 1982.
Plaintiffs filed the suit for declaration of right and title over the suit land detailed in Schedule-I of the plaint and also for setting aside the deed of gift dated 23.9.1978 executed by Ganpat Singh in favour of the defendant. Ancillary relief(s) were also prayed for. As per the plaintiffs, they belonged to the family of Chulhan Singh who had four sons namely Mathura Singh, Dhanraj Patna High Court SA No.160 of 2013 (6) dt.05-12-2014 2 Singh, Ganpat Singh and Sukhari Singh. Except Mathura Singh, all other brothers (sons of Chuhan Singh)died issueless while in jointness. Mathura Singh had one son Jyot Narayan Singh. Jyot Narayan Singh predeceased his uncle Ganpat Singh and was survived by his wife Shanti Devi (plaintiff) besides a daughter (plaintiff no. 2). On the strength of the aforesaid, it was claimed that the property left behind by Ganpat Singh (one of the sons of Chuhan Singh) devolved on the plaintiffs. The defendants being close agnates of Ganpat Singh got a deed of gift executed in their favour by Ganpat Singh on 10.07.1978 which after the death of Ganpat Singh was presented by the defendant no. 1 and registered on 28.9.1978. The said deed of gift was fraudulently got executed and subsequently got registered and was, therefore, not valid. L.T.I. of Ganpat Singh was obtained by playing fraud on a blank paper which was fabricated into a deed of gift. The plaintiffs continued in possession of the suit land. The defendants- respondents contested the suit raising diverse technical objections and further stating that Mathura Singh, Sukhari Singh and Dhanraj Singh had not died in jointness. The estate of Sukhari Singh and Dhanraj Singh was inherited by Ganpat Singh who was unmarried and issueless. He gifted half share of the estate of Sukhari Singh and Dhanraj Singh to his nephew Jyot Narayan Singh (husband of Patna High Court SA No.160 of 2013 (6) dt.05-12-2014 3 the plaintiff Shanti Devi) and under the subject gift deed rest of the property was gifted in favour of the defendant(s) who was taking care of Ganpat Singh during his old age. Ganpat Singh on his own volition had executed deed of gift on 10.7.1978 after getting it scribed in favour of defendant no. 1 and putting his L.T.I. on each and every page of the gift in presence of two attesting witnesses. Owing to paucity of time, the deed could not be presented and Ganpat Singh came back home and fell seriously ill and ultimately died. After his death but within the time prescribed for such presentation, the defendant no. 1 presented the deed of gift which was registered on 28.09.1978 which was valid deed of gift duly accepted by the defendant no. 1.
On a consideration of the rival pleadings, the Trial Court framed diverse issues and the parties led evidence. On going through the evidence, the Trial Court dismissed the suit and upheld the legality of the deed of gift. Dissatisfied therewith, the plaintiffs filed appeal. The Appellate Court considering the rival pleadings, the findings of the Trial Court and the ground(s) of challenge formulated points and reappraised the evidence. Point nos. (I) and (II) being interlinked and crucial were considered together and answered in favour of the defendant and against the plaintiffs. Accordingly, the appeal was dismissed. Patna High Court SA No.160 of 2013 (6) dt.05-12-2014 4
Heard Mr. Sharma for the appellants in support of the appeal and Mr. Tiwary appearing for the defendants-respondents.
Mr. Sharma in order to criticize the judgment under appeal has raised one question. It has been submitted that from perusal of the evidence on record as also the findings of the Courts below, it would appear that the Courts below have not found and recorded that deed of gift (Ext.B) was accepted by the donee i.e. the defendant during the life time of the donor. If it is found that the gift was not accepted by the donee during the life time of the donor then the deed of gift would be void and if that is the case then Article 59 of the Limitation Act shall have no application. Be it noted here that the Trial Court had non-suited the plaintiffs also on the ground that the suit as framed and presented was barred by limitation. In substance, the contention of the appellants is that there is no finding in the judgment under appeal that the donee accepted the gift during the life time of the donor who died on 09.09.1978 whereafter the deed of gift was presented by the defendant no. 1 and registered on 28.9.1978. The appellants in making such submission have obviously accepted the execution of the deed of gift by the donor on 10.07.1978.
Section 122 of the Transfer of Property Act is extracted hereinbelow:
Patna High Court SA No.160 of 2013 (6) dt.05-12-2014 5
"122.Gift.- "Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.- Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void."
It thus appears that one of the essential ingredients of a valid gift is of its acceptance by the donee during the life time of the donor. If the donee dies before the acceptance, the gift would become void. The Trial Court in paragraph 10 of the judgment while dealing with the possession of the suit land referred to the documentary evidence produced on behalf of the plaintiffs as well as the defendants and in the light of oral evidence adduced by them found that possession of the defendants over the suit land was somewhat admitted. The defendants had produced rent receipts, irrigation receipts. Chowkidari receipts, sugarcane purchase receipts etc. to prove that following such gift, the land was possessed by the defendants and the gift deed was acted upon. The appellants have contended that admittedly the donor was living during his last days with the donee and there is evidence on record that the suit land was being cultivated by the defendants from before such finding on possession of the suit land by the defendants would not be adequate to demonstrate or prove that the donee following the gift executed on 10.07.1978 accepted the Patna High Court SA No.160 of 2013 (6) dt.05-12-2014 6 same by taking possession over the suit land during the life time of the donor who died on 09.09.1978. From the evidence of the defendant no. 1 who deposed as D.W. 18, it is found that the deed of gift after execution was in his possession and the same was presented by him as per Section 34 of the Registration Act, 1908 and the same was registered on such presentation. Such registration of document assumes that enquiry, if any, as required under Section 34 was made by the Registering Authority before registering the document. In fact, no issue with regard to the execution of the deed of gift by the donor has been raised in this Court considering the fact that there is/are concurrent findings recorded by both the two Courts below on this score. The Appellate Court noticed from the materials on record that the case of the plaintiffs was that Ganpat Singh was actually living with Jyot Narayan Singh, Chandra Kunwar and Shanti Devi and when he fell ill, the defendants used to visit and clandestinely got the L.T.I. of Ganpat Singh affixed on blank papers. The said case of the plaintiffs was negated by both the Courts below. The Appellate Court on analyzing the oral evidence adduced on behalf of the defendants including the scribe (D.W. 12) found and held that the donee after execution of the deed of gift accepted the gift but due to paucity of time, the same could not be presented on the day of Patna High Court SA No.160 of 2013 (6) dt.05-12-2014 7 its execution. However, subsequently it was presented and registered. D.W. 9, a witness to the execution of the deed of gift in his deposition clearly stated that after execution of Bakshisnama of his property, the executor had given symbolic possession of the suit land covered by the deed of gift to the defendant which was accepted. D.W. 8 and D.W. 11 also deposed to the effect that after execution of the deed of gift, the donee accepted the same and came in possession of the property. There is ample evidence in the shape of documents as also oral to find that the defendant was in possession of the suit land. In order to constitute a valid gift, a seminal requirement is acceptance thereof. However, no particular mode of acceptance is required and the circumstances throw light on that aspect. Factum of acceptance can be established by varied circumstances, such as, donee taking a property or being in possession of deed of gift alone. If a document of gift after its execution or registration is handed over to the donee which he accepts, it would amount to a valid acceptance of gift in law. The submission which the counsel for the appellants has made was precisely raised and considered by this Court in the case of Most Samrathi Devi versus Parasuram Pandey A.I.R. 1975 Pat. 140, paragraph 8 whereof is reproduced hereinbelow:
"8.Mr. Premlal, however, contended that the transfer by way of gift in favour of the plaintiff Patna High Court SA No.160 of 2013 (6) dt.05-12-2014 8 purported to have been made under the document (Ext. 5) was not complete as the same was not accepted by the plaintiff, and she herself had stated to this effect in the impugned document (Ext. D). It is true that a transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor. The fact of acceptance, however, can be established by different circumstances, such as by the donee's taking possession of the property or by possession of the deed of gift alone. There are numerous authorities in support of the proposition that if a document of gift after its execution or registration in favour of the donee is handed over to him by the donor which he accepts, it should amount in law to be valid acceptance of the gift. In support of this proposition, Mr. J. C. Sinha relied upon a decision of the Judicial Committee in the case of Kalyanasundaram Pillai v. Karuppa Mooppanar, (AIR 1927 PC 42). In this case, their Lordships approved the view of the Full Bench of the Bombay High Court in Atmaram Sakharam v. Vaman Janardhan, (AIR 1925 Bom 210) (FB) that where the donor of immovable property handed over to the donee an instrument of gift duly executed and attested, it would amount to the acceptance of the gift by the donee, and the donor had no power to revoke the gift even if the registration of the instrument had not taken place. This court also in Ram Chandra Prasad v. Sital Prasad, (AIR 1948 Pat
130) took a similar view and held that the fact of the deed being handed over by the donor to the donee was sufficient evidence of his having accepted the gift, and that the acceptance of the said document was a relevant fact to prove the acceptance of the gift by him. To the same effect is the view of the High Court of Travancore and Cochin in the case of Esakkimadan Pillai v. Esakki Amma, (AIR 1953 Trav-Co 336). It is not necessary to multiply authorities in support of this proposition. From the above, discussion, it must be held that the deed of gift executed by defendant No. 1 in favour of the plaintiff was a valid and binding document resulting in a complete transfer of the Patna High Court SA No.160 of 2013 (6) dt.05-12-2014 9 interest of defendant No. 1 in respect of the suit properties to the plaintiff."
The Appellate Court has found that by virtue of the deed of gift, the defendants came in complete possession over the suit property. Delivery of possession of the gifted property in legal parlance is not absolute requirement for the completeness or the validity of the gift as required in Muslim Law of gifts.
In view of the aforesaid, the contention of the appellants is not well founded. There is no merit in the appeal. Dismissed.
(Kishore Kumar Mandal, J) Pankaj/-
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