Bombay High Court
Smt. Satyabhamabai Wd/O Raghunath ... vs Raghunath S/O Dewaji Shende (Dead) And ... on 8 February, 2018
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2-J-SA-134,184-16 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.134 OF 2016
Satyabhamabai wd/o Raghunath Shende,
Aged 69 years, Occ. Service
R/o Plot 128, Harijan Colony,
Jaripatka, Nazul Layout, Nagpur ... Appellant.
-vs-
1. Ragunath s/o Dewaji Shende (Dead)
R/o Plot No.128, Harijan Colony,
Jaripatka, Nazul Layout, Nagpur
And his L.Rs.
(i) Niranjan s/o Raghunath Shende,
Aged 58 years, Occ. Private Service,
(ii) Ajay s/o Raghunath Shende,
Aged 54 years, Occ. Private Service,
(iii) Jayant s/o Raghunath Shende,
Aged 52 years, Occ. Private Nil
(iv) Shaila d/o Raghunath Shende,
Aged 48 years, Occ. Household,
(v) Abhaya s/o Raghunath Shende,
Aged 46 years, Occ. Private Service,
All the legal heirs of Raghunath Shende
are R/o Plot No.128, Harijan Colony,
Jaripatka, Nazul Layout, Nagpur
2. Prakash s/o Dewaji Shende,
Aged 56 years, Occ. Service,
R/o Plot No.128, Harijan Colony,
Jaripatka, Nazul Layout, Nagpur
::: Uploaded on - 17/02/2018 ::: Downloaded on - 18/02/2018 00:20:13 :::
2-J-SA-134,184-16 2/9
And his L.Rs.
(a) Chandraprabha wd/o Prakash Shende,
Aged 65 years, Occ. Household,
(b) Pravin s/o Prakash Shende,
Aged 45 years, Occ. Service,
(c) Vibha w/o Milind Sao,
Aged 40 years, Occ. Household,
All R/o Plot No.128, Harijan Colony,
Jaripatka, Nazul Layout, Nagpur ... Respondents.
WITH
SECOND APPEAL NO.184 OF 2016
Raghunath s/o Dewaji Shende (Dead)
R/o Plot No.128, Harijan Colony,
Jaripatka, Nazul Layout, Nagpur
And his L.Rs.
(i) Niranjan s/o Raghunath Shende,
Aged 58 years, Occ. Private Service,
(ii) Ajay s/o Raghunath Shende,
Aged 54 years, Occ. Private Service,
(iii) Jayant s/o Raghunath Shende,
Aged 52 years, Occ. Private Nil
(iv) Shaila d/o Raghunath Shende,
Aged 48 years, Occ. Household,
(v) Abhay s/o Raghunath Shende,
Aged 46 years, Occ. Private Service,
All the legal heirs of Raghunath Shende
are R/o Plot No.128, Harijan Colony,
Jaripatka, Nazul Layout, Nagpur ... Appellants.
::: Uploaded on - 17/02/2018 ::: Downloaded on - 18/02/2018 00:20:13 :::
2-J-SA-134,184-16 3/9
vs.
(1) Prakash s/o Dewaji Shende,
Aged 56 years, Occ. Service,
R/o Plot No.128, Harijan Colony,
Jaripatka, Nazul Layout, Nagpur
And his L.Rs.
(i) Chandraprabha wd/o Prakash Shende,
Aged 65 years, Occ. Household,
(ii) Pravin s/o Prakash Shende,
Aged 45 years, Occ. Service,
(iii) Vibha w/o Milind Sao,
Aged 40 years, Occ. Household,
All R/o Plot No.128, Harijan Colony,
Jaripatka, Nazul Layout, Nagpur
2. Satyabhamabai wd/o Raghunath Shende
(Deleted vide order dated 02/03/2016)
... Respondents.
Shri S. P. Kshirsagar, Advocate for appellants.
Shri V. S. Dhobe, Advocate for respondents No.2(a to c) in S. A.
No.134/2016 and for respondent No.1(i to iii) in S.A. No.184/2016.
CORAM : A. S. CHANDURKAR, J.
DATE : February 08, 2018.
Common Judgment :
Since both these second appeals raise a challenge to the common judgment of the first appellate Court, they are being decided together by this common judgment.
According to the original plaintiff-Raghunath, he was the elder ::: Uploaded on - 17/02/2018 ::: Downloaded on - 18/02/2018 00:20:13 ::: 2-J-SA-134,184-16 4/9 brother of defendant No.1-Prakash. Their father Dewaji expired in the year 1956. The plaintiff from his own earnings had purchased plot bearing No.128 in the year 1953. The defendant No.1 being a minor when their father expired he started residing with the plaintiff. The plaintiff then constructed a house on the said plot. Out of love and affection the plaintiff on 09/05/1972 executed a Gift Deed of the aforesaid house property in favour of Prakash and Satyabhamabai who was the wife of plaintiff- Raghunath. As per that Gift Deed both the parties would get half share each in the suit property. However, subsequently the defendant No.1 started quarreling with the plaintiff. Therefore on 18/12/1989 the plaintiff executed a deed of revocation so as to cancel the earlier Gift Deed. On that basis suit came to be filed for a declaration that the Gift Deed dated 09/05/1972 be treated as revoked on the basis of the deed of revocation dated 18/12/1989.
2. The defendant No.1-Prakash filed a written statement and denied the case as pleaded. According to him a Gift Deed was duly executed and the same had been so executed as it was the desire of their father that the defendant No.1 should have half share in the suit property.
The defendant No.2 who was the wife of the plaintiff filed her written statement as well as raised a counter-claim. According to her on 07/07/1993 the plaintiff-Raghunath had executed a Will in her favour and had bequeathed the suit property to her. The plaintiff had expired on ::: Uploaded on - 17/02/2018 ::: Downloaded on - 18/02/2018 00:20:13 ::: 2-J-SA-134,184-16 5/9 24/10/2001 and hence by virtue of this Will the property stood in the name of defendant no.2. She therefore sought a declaration of her right as owner of the entire plot.
3. The parties led evidence before the trial Court which held that the plaintiff has executed Gift Deed dated 09/05/1972 and that the same was not revoked thereafter. The suit was therefore dismissed. Being aggrieved the legal heirs of the original plaintiff filed R.C.A. No.126/2010 challenging the dismissal of the suit. The original defendant No.2 filed R.C.A. No.464/2010 being aggrieved by dismissal of the counter-claim. Both the appeals were decided together and the appellate Court confirmed the findings recorded by the trial Court and held that the Gift Deed dated 09/05/1972 had not been revoked on 18/12/1989. Both the appeals were therefore dismissed. Being aggrieved the aforesaid two appeals have been filed by the legal heirs of original plaintiff as well as by defendant No.2.
4. Learned counsel for the parties have been heard on the following substantial question of law :
" Whether the finding recorded that the document at Exhibit-37 was a Gift-Deed has been arrived at after considering the entire evidence on record and in the light of the contents of the said document which was to take effect after the death of the executor ?"
::: Uploaded on - 17/02/2018 ::: Downloaded on - 18/02/2018 00:20:13 ::: 2-J-SA-134,184-16 6/9
5. Shri S. P. Kshirsagar, learned counsel for the appellant submitted that no right was conferred on the basis of the document at Exhibit-37 executed by Raghunath in favour of defendant No.1. According to him as per recitals of this Gift Deed it was conditional in nature and that it was to operate after the death of the donor-Raghunath. The donor had retained life interest in the suit property and therefore he was competent to revoke that document during his lifetime. Such revocation was done on 18/12/1989 after which Raghunath executed a Will in favour of his wife on 07/07/1993. Placing reliance on the judgment of the Honourable Supreme Court in Naramadaben Maganlal Thakker vs. Pranjivandas Manganlal Thakker and ors. (1997) 2 SCC 255, it was urged that such conditional Gift-Deed could not be relied upon for divesting Raghunath of his title. It was only the Will at Exhibit-55 that was required to be taken into consideration for determining the right of the parties. He thus submitted that the appellate Court committed an error in holding that the Gift-Deed at Exhibit-37 had operated. He also referred to the decision in Renikuntla Rajamma vs. K. Sarwanamma (2014) 9 SCC 445 in support of his submissions.
6. Shri V. S. Dhobe, learned counsel for respondent No.1 on the other hand supported the impugned judgment. According to him in the document at Exhibit-37 the Gift as made was shown to have been accepted by the donees. Their signatures had been obtained thereon and therefore the ::: Uploaded on - 17/02/2018 ::: Downloaded on - 18/02/2018 00:20:13 ::: 2-J-SA-134,184-16 7/9 Gift-Deed had come into operation on 09/05/1972 itself. The aspect of possession being transferred by the donor was not very relevant for completing the Gift-Deed. Referring to the provisions of Section 126 of the Transfer of Property Act, 1882 it was submitted that unilateral revocation of a Gift-Deed already executed was not permissible. According to him the plaintiff had described the document dated 09/05/1972 as a Will and submitted that Raghunath was aged about 46 years when he had executed the said Gift-Deed and hence it could not be accepted that at that age he would execute a Will. According to him the decision in Naramadaben Maganlal Thakker (supra) had no application to the case in hand and the legal position stood settled by the judgment of the larger bench in Renikuntla Rajamma (supra). He also placed reliance on the decision in Yellapu Uma Maheswari and anr. vs. Buddha Jagadheeswara Rao and ors. 2016(1) Civil L.J. 691 to urge that the document has to be considered as a whole while determining its nature and pleadings of the parties describing the same are not very relevant. He therefore submitted that the appellate Court had rightly decided the aforesaid question and the appeals were liable to be dismissed.
7. I have heard the learned counsel for the parties at length and with their assistance I have perused the records of the case. Perusal of the document at Exhibit-37 indicates that same is titled as a Gift-Deed and it ::: Uploaded on - 17/02/2018 ::: Downloaded on - 18/02/2018 00:20:13 ::: 2-J-SA-134,184-16 8/9 intends to gift the property in question in favour of the donees. There is a recital that the donees had accepted the gift and their signatures have also been obtained thereon. In Renikuntla Rajamma (supra) it was held that the delivery of possession was not an essential prerequisite for making of a valid Gift and that the intention to do so was sufficient. The decision in Naramadaben (supra) was referred to and it was clarified that said decision was rendered in the facts of that case and that if the Gift was conditional without any acceptance, it would not operate as a Gift. In the present case as noted above, the acceptance of the Gift was complete when it was executed and the execution was followed by the act of the donees' endorsing their acceptance of said Gift. Hence that decision does not assist the case of the appellant.
8. Though it was urged on behalf of the appellants that the Gift- Deed did not operate in prasenti and therefore could not revoked, said contention cannot be upheld when it is found that the Gift was duly accepted after its execution. It has also been found by the first appellate Court that defendant No.1 was in possession of the eastern half portion of the suit property gifted to him for which there was no explanation from the plaintiff. It has also been found that after executing the document on 09/05/1972 the plaintiff remained silent for almost seventeen years. I find that both the Courts have rightly found that the Gift-Deed at Exhibit-37 was ::: Uploaded on - 17/02/2018 ::: Downloaded on - 18/02/2018 00:20:13 ::: 2-J-SA-134,184-16 9/9 a valid document and the Gift was accepted by the donees. It was not possible to revoke the same unilaterally in view of provisions of Section 126 of the Transfer of Property Act, 1882. The Will executed thereafter on 07/07/1993 did not confer any right on defendant No.2 in view of the fact that Raghunath had no legal authority to execute that Will as the Gift-Deed had operated.
9. In view of aforesaid the substantial question of law as framed is answered against the appellants and it is held that the Gift-Deed at Exhibit- 37 was a valid document. In view of this fact both the Second Appeals stand dismissed with no order as to costs.
JUDGE Asmita ::: Uploaded on - 17/02/2018 ::: Downloaded on - 18/02/2018 00:20:13 :::