Orissa High Court
Braja Mohan Behera vs Chakradhar Dehury on 21 May, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.293 of 2002
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Braja Mohan Behera .... Appellant
-versus-
Chakradhar Dehury ..... Respondent
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellant - Mr. U. K. Samal,
Advocate.
For Respondent- None
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :15.04.2024 :: Date of Judgment :21.05.2024 A.C. Behera, J. This 2nd appeal has been preferred against the reversing judgment.
2. The appellant of this 2nd appeal was the defendant before the Trial Court in the suit vide T.S. No.101 of 1995 and he was the respondent in the First Appeal before the First Appellate Court vide T.A. No.18 of 1998.
The respondent of this 2nd appeal was the plaintiff before the Trial Court in the suit vide T.S. No.101 of 1995 and he was the appellant Page 1 of 25 {{ 2 }} before the First Appellate Court in the First Appeal vide T.A. No.18 of 1998.
3. The suit of the plaintiff (respondent in this 2nd appeal) before the Trial Court against the defendant (appellant in this 2nd appeal) vide T.S. No.101 of 1995 was a suit for declaration.
4. The case of the plaintiff before the Trial Court in the suit vide T.S. No.101 of 1995 was that, one Sobha Dehury was the uncle of his father. The suit properties described in Schedule 'A' & 'B' of the plaint were acquired by the said Sobha Dehury. Laxmi Dehury was the wife of Sobha Dehury. As Sobha Dehury and Laxmi Dehury had no issue, for which, they (Sobha and Laxmi) adopted plaintiff as their son in the year 1969 and kept him (plaintiff) with them in their house at village Baibai. But, in the year 1975, when there was some quarrel between the natural father of the plaintiff, Sobha Dehury and Laxmi Dehury, the plaintiff went to his natural father's house from the house of Sobha and Laxmi. Subsequent thereto, Laxmi Dehury went to the natural father's house of the plaintiff and brought him (plaintiff) to her house. Accordingly, the plaintiff stayed in the house of Sobha and Laxmi as their adopted son. Out of love and affection, Sobha Dehury and Laxmi Dehury gifted the suit properties to the plaintiff by executing and registering a gift deed on dated 27.12.1975. Page 2 of 25
{{ 3 }} Accordingly, the plaintiff possessed the suit properties as exclusive owner of the same by staying in the house of Sobha and Laxmi as their son. But, Sobha and Laxmi died on 14.05.1993 and 18.09.1994 respectively leaving behind the plaintiff as their son and only successor. On 09.09.1995, when, the plaintiff went for cultivation of the suit properties, the defendant created disturbances in his possession over the suit properties and disclosed that, he (defendant) is the owner of the suit properties, because the suit properties have already been mutated to his name by an order of the Tahasildar, Rajgangpur. After hearing about the same, he (plaintiff) enquired the reasons thereof and came to know that, the defendant has mutated the suit properties to his name behind the back of the plaintiff as per order dated 29.06.1995 passed in Mutation Case Nos.326 & 327 of 1995 without following the due procedures of law.
According to the plaintiff, in fact the defendant is a stranger to the family of the plaintiff and he (defendant) had initiated Mutation Cases vide Mutation Case Nos.326 & 327 of 1995 for mutation of the suit properties from the name of Sobha Dehury to his name through forged and fabricated document and he (defendant) has managed to obtain an order from the Tahasildar for mutation of the suit properties to his name illegally and the said illegal order of mutation is not binding upon him Page 3 of 25 {{ 4 }} (plaintiff). For which, he (plaintiff) approached the Trial Court by filing the suit vide T.S. No.101 of 1995 against the defendant and prayed for the declaration of his right, title and interest over the suit properties and also to declare that, the R.o.Rs, if any, issued in favour of the defendant as per order of Mutation Case Nos.326 & 327 of 1995 in respect of the suit properties is null, void and inoperative under law and in alternative to pass the decree for recovery of possession, if he (plaintiff) is found to be dispossessed from the suit properties during the pendency of the suit along with other relief(s), to which, he (plaintiff) is entitled, as the Court deems fit and proper as per law and equity.
5. Having been noticed from the Trial Court in the suit vide T.S. No.101 of 1995, the defendant challenged that suit denying the allegations alleged by the plaintiff against him taking his pleas/stands in his written statement that, the original residence of Sobha Dehury was at village Lad. He (Sobha Dehury) had married the eldest sister of the father of the defendant i.e. Laxmi. After marriage of Sobha Dehury with Laxmi, Sobha Dehury came to his in-laws house and lived there with his wife as the illatom son-in-law of his father-in-law. Sobha Dehury through his separate earnings acquired the suit properties and constructed a separate house near the house of his father-in-law. The father of the plaintiff is not Page 4 of 25 {{ 5 }} the brother of Sobha Dehury. The grandfather of the plaintiff i.e. Satyananda was the separated brother of Sobha Dehury. So, the plaintiff is the grandson of Satyananda. Though Sobha Dehury and his wife were issue less, but they had not adopted any child including the plaintiff. The plaintiff was a relative of Sobha Dehury, for which, he (plaintiff) had visiting term to the house of the plaintiff. Once the plaintiff committed theft of five tolas gold ornaments from the house of Sobha Dehury, for which, Sobha Dehury lodged F.I.R. against him (plaintiff) and since then, the plaintiff did not visit the house of Sobha Dehury. Neither Sobha Dehury nor his wife Laxmi had executed any document in favour of the plaintiff. The plaintiff might have forged such documents, on which, he (plaintiff) is relying in order to grab the self acquired properties of Sobha Dehury, those are the suit properties. Sobha Dehury and Laxmi Dehury had cancelled the so-called gift deed dated 27.12.1975 by executing a deed of cancellation on dated on 28.08.1989 and the said Sobha Dehury and Laxmi Dehury bequeathed the suit properties in favour of the defendant by executing and registering a will on dated 02.09.1989 and had handed over all the documents to him (defendant). As the defendant being one of the relative of Sobha Dehury through his wife Laxmi, he (defendant) was looking after the cultivation and nourishments of both Page 5 of 25 {{ 6 }} Sobha Dehury and his wife Laxmi Dehury, for which, on being satisfied with the nourishments of the defendant, Sobha Dehury bequeathed the suit properties to him (defendant) by executing a will on dated 02.09.1989 in his favour in presence of the witnesses thereof by declaring therein that, the defendant shall be the owner of the suit properties after the death of Sobha Dehury and his wife Laxmi. Accordingly, the defendant was looking after Sobha Dehury and his wife Laxmi taking their all cares properly till their respective deaths and he (defendant) has been possessing the suit properties. In order to execute that will on dated 02.09.1989 in favour of the defendant in respect of the suit properties, Sobha Dehury himself had purchased the stamp papers, on which, the said will was written by the scribe Dasarathi Routray of village Tudaloga in presence of the witnesses as per the say of Sobha Dehury and Laxmi Dehury. After scribing the will, the contents thereof were read over and explained to Sobha Dehury and his wife Laxmi Dehury in presence of the witnesses and the defendant and knowing the contents of that will as correct, they (Sobha and Laxmi) executed that will properly. After the death of Sobha Dehury and Laxmi Dehury, the defendant being the legatee of Sobha Dehury and his wife Laxmi Dehury through that will dated 02.09.1989 succeeded the suit properties. He (defendant) has been Page 6 of 25 {{ 7 }} possessing the suit properties since the death of Sobha Dehury and Laxmi Dehury as the owners of the same through that will dated 02.09.1989 in his favour. The suit properties have already been mutated to his name i.e. to the name of the defendant through that will dated 02.09.1989 properly. He (defendant) has been possessing the suit properties as the owner of the same, but the plaintiff has no interest in the same.
Therefore, the suit of the plaintiff is liable to be dismissed with cost.
6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 8 (eight) numbers of issues were framed by the Trial Court in the suit vide T.S. No.101 of 1995 and the said issues are:-
ISSUES
(i) Whether the deed dated 07.09.1975 executed in favour of the plaintiff is valid and genuine?
(ii) Whether the gift deed is invalid and inoperative after its cancellation?
(iii)Whether the R.o.R. issued in favour of the defendant vide Mutation Case Nos.326 & 327 of 1995 is correct?
(iv) Whether the plaintiff has right, title and interest over the suit schedule lands?
(v) Whether there is cause of action?
(vi) Whether the suit is barred by law of limitation?
(vii) Whether the suit is maintainable in the present form?
(viii) To what relief, the plaintiff is entitled?Page 7 of 25
{{ 8 }}
7. In order to substantiate aforesaid reliefs sought for by the plaintiff, he (plaintiff) examined 4 (four) numbers of witnesses from his side including him as P.W.3 and relied upon the documents vide Exts.1 to 6.
On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendant also examined four witnesses on his behalf including him as D.W.3 and exhibited documents vide Exts.A to D.
8. After the conclusion of hearing and on perusal of the materials, documents and evidence available in the Record, the Trial Court answered all the issues against the plaintiff and in favour of the defendant and basing upon the findings and observations made by the Trial Court in the issues against the plaintiff and in favour of the defendant, the Trial Court dismissed the suit vide T.S. No.101 of 1995 of the plaintiff on contest against the defendant, but without cost as per its judgment and decree dated 31.07.1998 and 13.08.1998 respectively assigning the reasons that, the plaintiff has not been able to prove that, he is the adopted son of Sobha Dehury and Laxmi Dehury and the so-called gift deed dated 27.12.1975 vide Ext.6 said to have been executed by Sobha Dehury and Laxmi Dehury in respect of the suit properties in favour of the plaintiff is an invalid and inoperative deed. The plaintiff has also failed to prove his possession over the suit properties. The mutation of the suit properties in Page 8 of 25 {{ 9 }} favour of the defendant on the basis of the will vide Ext.A dated 02.09.1989 is proper and the defendant is in possession over the suit properties, for which, the suit of the plaintiff is liable to be dismissed and accordingly, the Trial Court dismissed the suit vide T.S. No.101 of 1995 of the plaintiff on contest against the defendant.
9. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.101 of 1995 passed on dated 31.07.1998 and 13.08.1998 respectively, he (plaintiff) challenged the same by preferring the First Appeal vide T.A. No.18 of 1998 being the appellant against the defendant arraying the defendant as respondent.
10. After hearing from both the sides, the First Appellate Court allowed that First Appeal vide T.A. No.18 of 1998 of the plaintiff on contest against the respondent (defendant) and set aside the judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.101 of 1995 as per its judgment and decree dated 16.09.2002 and 01.10.2002 respectively passed in that T.A. No.18 of 1998 and declared the right, title and interest of the plaintiff over the suit schedule lands and directed the defendant to give delivery of possession of the suit schedule lands to the plaintiff within a period of two months from the date of passing of the said judgment and decree of that 1st appeal vide T.A. No.18 of 1998. Page 9 of 25
{{ 10 }}
11. On being aggrieved with the aforesaid judgment and decree dated 16.09.2002 and 01.10.2002 respectively passed by the 1st appellate Court in T.A. No.18 of 1998 in favour of the plaintiff (appellant) and against the defendant (respondent), he (defendant) challenged the same by preferring this 2nd appeal being the appellant against the plaintiff by arraying him (plaintiff) as respondent.
12. This Second Appeal was admitted on formulation of the following substantial questions of law i.e.-
(i) Whether the lower appellate Court has committed grave illegalities and irregularities in setting aside the judgment and decree passed by the trial court by holding that the trial court has not framed some important issues?
(ii) Whether the lower appellate court is correct in holding that the donor cannot revoke the gift deed already executed as the conditions are not fulfilled?
(iii) Whether the lower appellate court has committed illegalities in interfering with the order passed by the Tahasildar which has not been challenged in appeal and the civil courts have only the power to make scrutiny about the procedure adopted is contrary to law or not?
13. I have already heard from the learned counsel for the appellant (defendant) only, as none appeared from the side of the respondent (plaintiff) for hearing of the 2nd appeal.
14. When the above three formulated substantial questions of law are interlinked having ample nexus with each other according to the materials Page 10 of 25 {{ 11 }} available in the record as per the pleadings of the parties, judgments and decrees passed by the Trial Court and First Appellate Court, then all the three substantial questions of law are taken analogously for discussion hereunder.
15. This 2nd appeal has arisen out of the judgment and decree passed in a suit for declaration filed by the plaintiff (respondent in this 2 nd appeal), vide T.S. No.101 of 1995.
It is very fundamental in civil law that, a plaintiff is entitled to get a decree of declaration of title, if he/she is able to establish his/her title over the suit properties by leading convincing evidence for the same, because any weakness or fault in defendant's case cannot establish plaintiff's title over the suit properties automatically. Therefore, the plaintiff shall establish his/her own case, but he/she cannot take the advantage of any weakness of the defendant in establishing his/her case.
16. Here in the suit at hand, plaintiff has prayed for declaration of his title over the suit properties through inheritance and succession claiming him as the sole successor of Sobha Dehury and Laxmi Dehury stating him as their adopted son. At the same time, he (plaintiff) has also claimed his title over the two properties through document i.e. gift deed dtd 27.12.1975 (Ext.6) said to have been executed by Sobha Dehury and his Page 11 of 25 {{ 12 }} wife Laxmi Dehury in his favour in respect of the suit properties.
Accordingly, the plaintiff has claimed his title over the suit properties above both the ways i.e. through succession as well as thorough document i.e. gift deed (Ext.6).
17. It is the settled propositions of law that, "when an adoption displaces the natural line of succession, for which, the burden to establish adoption is squarely upon the person, who propounds the same and the said burden is heavy. Giving and taking (receiving) are absolutely necessary for the validity of an adoption and they are the operative part of the ceremony, being that part of it, which transfers the boy from one family to anywhere. Therefore, the party, who is trying to sustain adoption is to prove the same by making free from suspicion or fraud and should be consistent and probable as to leave no occasion for doubting its truth. The ceremony of giving and taking is very essential to be proved through clear, cogent and legally admissible/acceptable evidence dispelling all such suspicions whatsoever in that connection for deciding the validity of an adoption. Therefore, evidence in support of the adoption must be sufficient enough to satisfy the very grave and serious onus, that rests upon the person, who seeks to displace the natural succession by alleging adoption."
Page 12 of 25
{{ 13 }}
18. Here in this suit/appeal at hand, the plaintiff (respondent in this 2 nd appeal and whose adoption is under challenge) has neither pleaded in his pleadings (plaint) nor has adduced any evidence during trial about the performance of any giving and taking ceremony by his natural parents and adoptive parents and he (plaintiff) has neither pleaded nor has adduced any evidence stating about the venue of any adoption ceremony for his adoption. None of the witnesses of the plaintiff including the plaintiff (P.W.3) has deposed any date, on which, any ceremony was performed for his adoption. The natural father or natural mother of the plaintiff has not been examined before the Trial Court to prove the so- called adoption of the plaintiff. He (plaintiff) himself as P.W.3 has admitted in his deposition that, in his school admission registers, the name of his natural father has been indicated as his father.
On this aspect, the propositions of law has already been clarified by the Hon'ble Courts and Apex Court in the ration of the following decisions:-
(i) AIR 1961 (S.C.) 1378--Lakshman Singh Kothari Vrs. Smt. Rup Kanwar--Hindu Law--Adoption--Essential condition of a valid adoption--Transfer of adoptive boy by ceremony of giving and taking is essential.
(ii) 2014 (II) OLR--1008--Sri Bhakta Prasad Sahu alias Bhismadev Sahu Vrs. Additional Commissioner of Settlement and Consolidation, Sambalpur and others--
(Para 9)--Factum of adoption--Requirement of a valid Page 13 of 25 {{ 14 }} adoption is that the adopted child must have been given by the parents or the guardian and must have been accepted by the person taking on adoption--A deed of adoption or acknowledgment of adoption only serves as a piece of evidence to which a presumption may be attached if the document is registered, but by mere proof of the document, the factum of valid adoption cannot be proved without there being any evidence about giving and taking of the child in adoption.
(iii) 2015 (I) CLR--97--Upendra Kumar Dhal Vrs.
Bichhamali Dhal & others--(Para 14)--Hindu Law--Plea of adoption--Oral evidence of giving and taking as well as the factum of adoption are neither consistent nor free from doubt and bristle with improbabilities--Adoption, not proved.
(iv) 2001 (4) CCC 88 (Orissa)--Raghunath Mohanty Vrs. Juti Dai--(Paras 5 to 7)--Hindu Law--Adoption--Title suit on basis that plaintiff was the adopted son--Since adoption displaces natural course of succession, onus lies on person who claims on basis of adoption--Inconsistent and vague evidence on the point of adoption--Natural father and mother of plaintiff were alive but none of them was examined-- Person who functioned as priest was also not examined-- Recital in sale deeds that plaintiff was the adopted son of vendor could not confer the status of adopted son on plaintiff--Oral evidence and documentary evidence fell short of required proof regarding adoption--Trial Court decree that plaintiff was the adopted son was liable to be set aside.
(v) 2010 (II) OLR 305--Nayan Sundari Bewa (dead) by LRs Vrs. Subash Chandra Behera & Others--Defendant No.1, whose adoption is under challenge has not pleaded about the performance of giving and taking of the child by the parents as well as the venue of the alleged adoption ceremony--None of the witnesses coming to depose on his behalf have revealed the date of alleged adoption and the ceremony--Adoption not proved.
19. When, there is no pleadings or evidence on behalf of the plaintiff regarding the performance of any giving and taking ceremony for the adoption of the plaintiff or any venue of any ceremony for the adoption of the plaintiff and when no witness has deposed any date, on which, any Page 14 of 25 {{ 15 }} ceremony was performed for his adoption and when any of the natural parents of the plaintiff has not been examined to state about the so called adoption of the plaintiff by Sobha Dehury and Laxmi Dehury and when, the plaintiff (P.W.3) himself has admitted in his depositions that, in his school certificates, the name of his natural father has been indicated as his father, then at this juncture, by applying the principles of law enunciated in the ratio of the above decisions, it is held that, the pleadings and evidence on behalf of the plaintiff are neither consistent nor free from doubt to establish and prove that, he (plaintiff) is the adopted son of Sobha Dehury and Laxmi Dehury. Because, the aforesaid evidence are bristle with improbabilities relating to the adoption of plaintiff by Sobha Dehury and Laxmi Dehury. So, the plaintiff has failed to establish that, he is the adopted son of Sobha Dehury and Laxmi Dehury. Therefore, it is established in otherwise that, plaintiff is not the adopted son of Sobha Dehury and Laxmi Dehury.
20. So far as the claim of title of the plaintiff over the suit properties on the basis of acquisition of the same through gift deed dated 27.12.1975 said to have been executed by Sobha Dehury and Laxmi Dehury in his favour in respect of the suit properties is concerned; Page 15 of 25
{{ 16 }} The copy of the so-called gift deed dated 27.12.1975 relied by the plaintiff has been marked as Ext.6.
It appears from the contents of the said vide Ext.6 that, the said Ext.6 was a conditional gift deed. Because, there were conditions that, "the donee (plaintiff) shall maintain the donors (Sobha Dehury and Laxmi Dehury) by providing them proper foodings, clothings and nourishments till their respective deaths and in no case, he (donee) shall neglect in maintaining them and he shall keep them well placed in their old age and during ailment. If the donee (plaintiff) fails to maintain them properly or put them into harassment and inconvenience in their foodings and clothings etc., they (donors) have free right to cancel that gift deed and the donee shall have no right whatsoever in the properties involved in that gift deed. The donee after accepting the above conditions in the gift deed and giving his undertakings to maintain them (donors) properly, he (donee-plaintiff) had signed in that Ext.6."
21. It appears from the Ext.B that, the conditional gift deed vide Ext.6 has been cancelled by the donors through that deed of cancellation vide Ext.B indicating the reasons of such cancellation that, as, since the date of execution of Ext.6, the so called donee thereof i.e. plaintiff did not come to take any care of them (donors) in any manner whatsoever and left his Page 16 of 25 {{ 17 }} own village Lad to somewhere and his whereabouts was unknown and deliberately violated the conditions of Ext.6, to which, he (donor/plaintiff) had undertaken to obey/comply, for which, they (Sobha Dehury and Laxmi Dehury) cancelled that Ext.6 through Ext.B according to their sweet will and volition.
22. It is the concurrent findings of the Trial Court and First Appellate Court after appreciating oral and documentary evidence of the parties that, the deed of cancellation of the gift deed vide Ext.B was not the outcome of any fraud and misrepresentation. Because, the donors of the Ext.6 i.e. Sobha Dehury and his wife Laxmi Dehury have executed and registered the said deed of cancellation of the gift vide Ext.B voluntarily.
The First Appellate Court has reversed (set aside) the judgment and decree of the dismissal of the suit of the plaintiff passed by the Trial Court in T.S. No.101 of 1995 assigning the reasons in paragraph 13 of the judgment of the First Appellate Court that, the donors of that gift deed vide Ext.6 i.e. Sobha Dehury and his wife Laxmi Dehury had made a completed gift deed of the suit lands in the operative portion of that gift deed vide Ext.6 making the plaintiff full owner and in possession over the suit properties from the date of execution thereof, but the donors thereof had indicated their pious wish later on in that gift deed vide Ext.6 as some Page 17 of 25 {{ 18 }} conditions indicating that, the donee thereof i.e. the plaintiff shall maintain them (donors) properly providing them foodings, clothings and nourishments till their respective deaths and in no case, he (donee) shall neglect in maintaining them and shall keep them well placed in their old age during ailment and if donee fails to maintain them properly or put them into harassment and inconvenience in their foodings and clothings etc., they (donors) have free right to cancel that gift and the donee shall have no right whatsoever in the properties involved in that gift, then by applying the ratio of the decisions reported in AIR 1962 (Orissa) 130 & AIR 1956 (A.P.) 195, the First Appellate Court held that, a recourse to Section 126 of the T.P. Act for cancellation of the said gift deed cannot be made and the donors thereof cannot revoke the gift deed already executed by them on the ground of non-fulfillment of conditions thereon by the donee (plaintiff).
The aforesaid findings and observations made by the Trial Court as well as First Appellate Court are indirectly going to show about the proper execution and registration of the deed of cancellation of the gift deed vide Ext.B as per the own wish and volition of the donors of Ext.6 i.e. Sobha Dehury and Laxmi Dehury.
Page 18 of 25
{{ 19 }}
23. Now, it will be seen, whether as per law, the donors of the said gift deed vide Ext.6 had power and authority to cancel the said gift deed in question vide Ext.6 through the deed of cancellation vide Ext.B. On this aspect, I thought it proper, to place it on record to the settled propositions of law enunciated by the Hon'ble Courts and Apex Court in the ratio of the following decisions:-
(i) 2023 (2) Civ.C.C. 296 (Calcutta)--Amar Nath Dutta Vrs. The State of West Bengal & Ors.--(Para 6)--Transfer of Property Act, 1882--Conditional Gift--Revocation--
Deed of gift followed by a declaration, within seven days of the execution of gift deed, signed by both the parties that transferee would look after the food, daily needs and medical requirements of transferor--
Declaration/undertaking should be taken as continuation and part and parcel of the deed of gift--Since transferee failed to provide maintenance to senior citizen contrary to undertaking given by him, order of Tribunal revoking gift deed is proper.
(ii) 2018 (II) OLR (SC)--1096, 2019 (1) Civil Court Cases 280 (S.C.)--
S. Sarojini Amma Vrs. Velayuddin Pillai Sreekumar--Transfer of Property Act, 1882--Section 122, Section 123 to 126--Gift--Document styled as gift executed for consideration with further condition that donee will look after the donor and her husband and transfer will be operative after death of donor--Not a completed gift-- Donor was within her rights to cancel the same.
(iii) (1997) 2 SCC 255--Naramadaben Maganlal Thakker Vrs. Pranjivandas Maganlal Thakker and others--Property--gift--Section 122 of Transfer of Property Act, 1882--matter related to gift-deed--donor executed conditional gift deed and retained possession and enjoyment of property during his lifetime--possession not handed over to respondent--gift deed conferred only limited right upon respondent-donee--gift did not complete during lifetime of donor--donor cancelled gift-deed during his Page 19 of 25 {{ 20 }} lifetime--recitals in cancellation deed consistent with recitals in gift-deed--Therefore, gift became ineffective and inoperative and duly cancelled.
(iv) 2022 (I) CLR (S.C.)--714--Keshav and others Vrs. Gian Chand and another--Transfer of Property Act, 1882--Sections 122 & 123 read with Specific Relief Act, 1963 Section 34 & 38--Relief of declaration, permanent injunction & possession--Entitlement--Plaintiffs filed suit on the basis of gift deed executed in their favour--Executant and an illiterate aged woman during her lifetime had staunchly refuted having executed any gift deed transferring property to the plaintiffs--Executant residing with sister's son, who was looking after her and providing for all needs. Plaintiffs did not take any steps to get mutation of land records for about 4 years. Rejection of mutation application by Revenue Authority remained unchallenged till the death of executants--Order of High Court decreeing suit in favour of plaintiff, set aside.
24. When, there were specific indications in the so-called gift deed vide Ext.6 relating to the intention of the donors thereof i.e. Sobha Dehury and his wife Laxmi Dehury for execution of that gift deed in respect of the properties covered therein in favour of the plaintiff imposing specific conditions therein that, the donee (plaintiff) shall maintain them (donors) properly providing them foodings, clothings and nourishments till their respective deaths and in no case, he (donee) shall neglect in maintaining them and shall keep them well placed in their old ages during ailment and if donee fails to maintain them properly or put them into any sort of harassments, then they (donors) have free right to cancel that gift deed and the donee shall have no right whatsoever in the Page 20 of 25 {{ 21 }} properties in that gift and the donee (plaintiff) after accepting the above conditions in the gift deed (Ext.6) signed on the same giving undertakings to obey/comply the said conditions in the gift deed vide Ext.6 to make that gift deed vide Ext.6 complete & operative, then at this juncture, by applying the principles of law enunciated in the ratio of the aforesaid decisions, it is held that, the declarations/undertakings given by the donee (plaintiff) in the said gift deed (Ext.6) accepting the conditions therein to maintain the donors properly were the continuation and part and parcel of the gift deed vide Ext.6.
The contents of the deed of cancellation of the gift vide Ext.B is going to show that, since the date of execution of the gift deed vide Ext.6, the donee (plaintiff) did not take any care of the donors, rather, he left his village to somewhere and his whereabouts remained unknown and when he (plaintiff) violated all the above conditions of the gift deed vide Ext.6, then they (donors of Ext.6) cancelled that Ext.6 through Ext.B. As the donee (plaintiff) did not comply any of the above conditions in the gift deed vide Ext.6 and acted contrary to the undertakings given by him in the conditional gift deed vide Ext.6 by moving somewhere else from his village and as the possession of the properties covered in the gift deed vide Ext.6 i.e. the suit properties was with the donors as usual even Page 21 of 25 {{ 22 }} after the execution of Ext.6 and when the recitals of the cancellation deed vide Ext.B are consistent with the conditions in the gift deed vide Ext.6 for the cancellation of Ext.6 and when the so called donee (plaintiff) has not taken any step for mutation of the suit properties to his name through the so called gift deed vide Ext.6, then at this juncture, by applying the principles of law enunciated in the ratio of the decisions referred to (supra), it cannot at all be held that, the donors of the gift deed vide Ext.6 had no power or authority (locus standi) to cancel such gift deed vide Ext.6 through execution and registration of a deed of cancellation thereof vide Ext.B. Therefore, it is held that, the cancellation of such conditional gift deed vide Ext.6 by the donors thereof i.e. by Sobha Dehury and Laxmi Dehury through execution and registration of the deed of cancellation vide Ext.B was proper under law. Because, the conditions of the so-called gift deed vide Ext.6 as discussed above, had not made the said gift deed vide Ext.6 as a completed gift, but the same was an incompleted gift, as the title and possession of the properties indicated therein were with the donors (Sobha Dehury and Laxmi Dehury).
25. When it is held that, the cancellation of the gift deed (Ext.6) through the deed of cancellation vide Ext.B by the donors thereof was not Page 22 of 25 {{ 23 }} improper under law and the said gift deed vide Ext.6 was not a completed gift deed, then at this juncture, it can be held that, no interest in the suit properties was created in favour of the plaintiff through the so called gift deed vide Ext.6 due to the valid cancellation of the same through Ext.B. When, the plaintiff has claimed his title and possession over the suit properties through gift deed vide Ext.6 and when, as per the discussions and observations made above, it is held that, the said conditional gift deed vide Ext.6 was not a completed gift deed and the same was properly cancelled by the donors thereof, then at this juncture, it is held that, the claim of title of the plaintiff over the suit properties through gift deed vide Ext.6 is not tenable under law. For which, in other words, it is held that, the plaintiff has failed to establish his title over the suit properties through the gift deed vide Ext.6.
26. As per the discussions and observations made above, when the plaintiff has failed to establish his title over the suit properties either through inheritance/succession or through document vide Ext.6 and when the suit properties have already been mutated in the name of the defendant on the basis of the will dated 02.09.1989 vide Ext.A executed by Sobha Dehury and his wife Laxmi Dehury in favour of the defendant through the orders of the Tahasildar, Rajgangpur passed on dated Page 23 of 25 {{ 24 }} 29.06.1995 in Mutation Case Nos.326 & 327 of 1995 and when the said orders of the Tahasildar, Rajgangpur for mutation of the suit properties to the name of the defendant have not been varied/altered/set aside as yet, then at this juncture, it cannot be held that, the Trial Court has committed illegalities without interfering with the orders of the Tahasildar, Rajgangpur due to non-setting aside of the said orders.
When, the suit of the plaintiff vide T.S. No.101 of 1995 was a suit for declaration of his right, title and interest over the suit properties as well as for declaration that, the R.o.Rs. of the suit properties in the name of the defendant on the basis of the orders passed by the Tahasildar, Rajgangpur in Mutation Case Nos.326 & 327 of 1995 as null and void and when, as per the discussions and observations made above, the plaintiff has not been able to establish his interest over the suit properties and when, the R.o.Rs of the suit properties in the name of the defendant through the orders passed in Mutation Case Nos.326 & 327 of 1995 have not been cancelled or set aside as yet, then at this juncture, the judgment and decree passed by the First Appellate Court in T.A. No.18 of 1998 in setting aside the judgment and decree of the dismissal of the suit passed by the Trial Court in T.S. No.101 of 1995 cannot be sustainable under law. Because, for the reasons assigned above, the learned First Page 24 of 25 {{ 25 }} Appellate Court should not have set aside the judgment and decree of the dismissal of the suit of the plaintiff vide T.S. No.101 of 1995 passed by the Trial Court. For which, there is justification under law for making interference with the judgment and decree passed by the First Appellate Court in T.A. No.18 of 1998 through this 2nd appeal filed by the appellant(defendant).
Therefore, there is merit in the 2nd appeal of the appellant (defendant). The same must succeed.
27. In result, the 2nd appeal filed by the appellant (defendant) is allowed on merit, but without cost.
The judgment and decree dated 16.09.2002 and 01.10.2002 respectively passed by the First Appellate Court in T.A. No.18 of 1998 are set aside.
The judgment and decree i.e. dismissal of the suit of the plaintiff (respondent in this 2nd appeal) vide T.S. No.101 of 1995 passed by the Trial Court are confirmed.
Sd/-
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
21st May, 2024//Utkalika Nayak// Signature Not Verified Junior Stenographer Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack True Copy Date: 21-May-2024 16:08:41 Page 25 of 25