Madras High Court
Perumal vs Rajamanickam And Srinivasan on 25 June, 2002
Equivalent citations: AIR2003MAD27, (2002)3MLJ506, AIR 2003 MADRAS 27, (2002) 3 MAD LJ 506 (2002) 4 CURCC 376, (2002) 4 CURCC 376
JUDGMENT M. Karpavinayagam, J.
1. Perumal, the defendant is the appellant herein.
2. The respondents filed a suit for declaration of title and for permanent injunction in respect of suit property. After trial, the learned District Munsif dismissed the suit. Aggrieved by the same, the respondents filed an appeal before the District Judge, Trichy. After hearing both the parties, the learned District Judge had reversed the judgment of the Trial Court and decreed the suit. Aggrieved by the same, the appellant has come forward with this Second Appeal.
3. According to the plaintiffs/respondents, they are brothers and the suit property was originally belonged to Irulayee Ammal, their grandmother. On 25.7.1975, the said Irulayee Ammal settled the suit property measuring about 24 cents in favour of the plaintiffs/respondents by way of a gift deed. From then onwards, the suit property has been in possession and enjoyment of the plaintiffs. On 5.5.1976, Iyyamperumal, the junior paternal uncle of the plaintiffs obtained another gift deed in respect of 12 cents out of the 24 cents by making mis-representation. On the basis of that, there was disturbance to the possession and enjoyment of the property. The said Iyyamperumal sent a lawyer's notice on 18.05.1976 to the plaintiffs. Reply notice also was sent. Thereafter, on 11.9.1981, the said Iyyamperumal sold the said 12 cents to the defendant. On the strength of the said sale deed, the defendant is trying to get possession of the suit property from the plaintiffs. Hence the suit for declaration and injunction.
4. The case of the defendant is as follows: T "The father of the plaintiffs and Iyyamperumal are brothers. Though Irulayee Ammal was their mother, on 5.5.1975, she executed a gift deed in favour of Iyyamperumal only by settling the suit property. This property has been entrusted to Iyyamperumal under oral gift in the year 1965 itself. From then onwards, the property is in possession and enjoyment of Iyyamperumal. Though it is stated that Irulayee Ammal executed a gift deed dated 25.07.1975 in favour of the plaintiffs settling 24 cents, the said deed is not a valid one. The contents of the said deed are not correct, as the settlement deed was executed not in respect of 24 cents; but only in respect of 12 cents on the Eastern side. The said mistake had been referred to and the same has been clarified by reference about the mistake in the said document dated 5.5.1976. The defendant purchased the suit property on 11.9.1981 from Iyyamperumal. Since then, the defendant has been in possession and enjoyment of the suit property. Hence, the suit is liable to be dismissed."
5. On the strength of the above pleadings, necessary issues were framed and the trial court dismissed the suit. Aggrieved by that, the plaintiffs/respondents filed an appeal before the District Court. The lower appellate court after considering the submissions made by the learned counsel for the plaintiffs and on perusal of the records decreed the suit by setting aside the judgment and decree passed by the trial court. Hence this Second Appeal.
6. While the Second Appeal was admitted, the following two substantial questions of law were framed:
"1. When there is evidence of the Settlor herself that the possession of the suit property was not given to the plaintiffs pursuant to the Settlement deed dated 25.07.1975 and that the extent mentioned as 24 cents is a mistake for 12 cents, is the learned Principal Judge right in holding that the Plaintiffs are entitled to a decree for declaration?
2. When there is evidence of possession by 2nd defendant and his predecessor in interest from 1964 and no evidence of possession by the plaintiffs, is the learned Principal District Judge right in involving the presumption of possession follow title?"
7. The learned counsel for the appellant, while elaborating the above said substantial questions of law would submit that the settlement deed dated 25.7.1975 did not give the correct details as in the subsequent document. It was wrongly mentioned as 24 cents instead of 12 cents and as such, the subsequent document dated 5.5.1976 was executed, by which the said property was settled in favour of Iyyamperumal by Irulayee Ammal. Further, it is contented that the possession by the defendant and his vendors for a long number of years has been established and this aspect has not been gone into by the lower appellate court.
8. I have heard the learned counsel for the respondents also.
9. On consideration of the submissions made by both the parties and also on perusal of records, it is clear that the reasonings given by the lower appellate court are perfectly justified. In Ex.A1, the gift deed executed on 25.07.1975 in favour of the plaintiffs by Irulayee Ammal, it is specifically stated that the same is irrevocable. The relevant recital is as follows:
So, when such is the recital in Ex.A1, it cannot be contended by the defendant that the property in question has been subsequently settled in favour of Iyyamperumal by stating that the extent of the property mentioned in Ex.A1 is wrong.
10. It is settled law that when a gift of immovable property has been accepted by the donees and they are in possession of the property the fact that after making the gift the donors felt that it was a folly or imprudence or want of foresight on their part to have executed the deed of gift will not clothe them with the power of revocation of the gift. A gift cannot be revoked by the mere will of the donor. A gift once made cannot be capriciously recalled by the donor, for a transfer by gift is as complete and binding on the parties when once completed, as any other form of transfer. The donor cannot set aside the gift once made on the plea that he had made a mistake. These principles have been laid down in VANNATHI VALAPPIL JANAKI AND OTHERS VS. PUTHIYA PURAYIL PARU AND OTHERS and MOOL RAJ VS. JAMMA DEVI AND OTHERS .
11. So, the reading of the provisions of Sections 123 and 127 of the Transfer of Property Act, would clearly indicate that once properties have been gifted to donee that too with the recital, it is irrevocable, the donor has no right to revoke the same.
12. In this case, admittedly, Ex.A1 has not been subsequently revoked. Under those circumstances, the finding given by the lower appellate court with regard to this aspect cannot be said to be wrong. Consequently, there is no merit in the Second Appeal.
13. Furthermore, it has to be stated that the lower appellate court discussed about the aspect of adverse possession in detail and rightly concluded that the defendant cannot be said to have been in possession for long number of years. Consequently, there is no ground to hold that the judgment and decree passed by the lower appellate court is wrong. Therefore the second appeal is dismissed. No costs. Consequently, connected C.M.P. is dismissed.