Andhra Pradesh High Court - Amravati
B. Lakshmi vs B. Venkata Subbayyamma on 22 January, 2025
APHC010465532006
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
WEDNESDAY ,THE TWENTY SECOND DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
FIRST APPEAL NO: 300/2006
Between:
B. Lakshmi and Others ...APPELLANT(S)
AND
B Venkata Subbayyamma and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. V S R S NAIDU
Counsel for the Respondent(S):
1. RAVITEJA JAMMALAMADAKA
2. V S R S NAIDU
3. ...
4. M/S INDUS LAW FIRM
5.
The Court made the following:
VENUTHURUMALLI GOPALA KRISHNA RAO,J
THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO
APPEAL SUIT No.300 OF 2006
JUDGMENT:-
This Appeal, under Section 96 of the Code of Civil Procedure [for short „the C.P.C.‟], is filed by the Appellants challenging the decree and judgment, dated 19.12.1988 in O.S.No.138 of 1984 passed by the Subordinate Judge, Tadepalligudem [for short „the trial Court‟].
2. The appellants herein are the plaintiffs and respondents herein are the defendants in O.S.No.138 of 1984.
3. The appellants/plaintiffs filed the suit for declaration that the plaintiffs are the rightful owners of the plaint „B‟ schedule property and to direct the defendants to vacate the plaint „D‟ schedule property and put the same in possession of the plaintiffs; to direct the defendants to pay the plaintiffs Rs.1,080/- as damages for use and occupation with interest thereon from the date of suit till payment; to direct the defendants to pay Rs.30/- per month together with interest from the date of suit till the date of delivery of possession of plaint „D‟ schedule property to the plaintiffs and for costs of the suit.
4. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.
5. The brief averments of the plaint, in O.S.No.138 of 1984, are as under:
(i) One late Bandreddi Venkayamma purchased the house and the site described in plaint „A‟ schedule property with her own money, on 24.03.1945 under a registered sale deed from one Pasupuleti Lakshmanaswami. The said site and house is her Shridhana property and she was in possession and enjoyment of it in her own rights as the owner thereof. One Bandreddi Rathayya, who was serving as an employee in Taluk office at Tadepalligudem, was living with her in the same house and site along with late Venkayamma. The entire burden of supporting late Venkayamma and Thulasamma‟s children, in addition to supporting his wife and children, fell upon late Gangarao. Late Apparao, who was serving places other than Tadepalligudem, did not at all care to maintain either late Venkayamma or late Thulasamma‟s children. Seeing the great burden which late Gangarao was shouldering in maintaining her and Thulasamma‟s children, late Venkayamma was extremely pleased with late Gangarao and evinced much love and affection for him. Out of such love and affection, in consideration of late Gangarao promising to support her and Thulasamma‟s children, late Venkayamma, of her own free will, decided to settle a major portion of her plaint „A‟ schedule house and site on late Gangarao with absolute rights. As her elder daughter Satyavathi was more or less in indigent circumstances, she decided to settle the rest of the house and site on her with absolute rights.
(ii) In pursuance of her such decision, late Venkayamma executed a settlement deed on 24.10.1972 in favour of late Gangarao settling on him with absolute rights in the portion of the plaint „A‟ schedule house and site, which is described in plaint „B‟ schedule property. She executed another settlement deed on the same date in favour of Satyavathi settling on her with her absolute rights in the rest of the plaint „A‟ schedule site, which is described in plaint „C‟ schedule property. She executed both the settlement deeds of her own volition and in a perfectly sound and disposing state of mind and got them duly registered in the Sub-Registrar‟s Office at Tadepalligudem. She delivered possession of plaint „B‟ schedule portion of the house and site to late Gangarao and plaint „C‟ schedule portion of the house and site to Satyavathi on the date of the settlement deeds and the deeds themselves respectively to them after they were received from the Sub-Registrar‟s office. She delivered her title deed to the property i.e., the sale deed, dated 24.03.1945, also to late Gangarao. Late Gagarao and Satyavathi accepted the settlements and the deeds and entered into possession of plaint „B‟ and „C‟ schedule properties respectively on the date of deeds. From that time onwards, they have been in possession and enjoyment of the properties as the owners thereof in their own rights.
(iii) In pursuance of the settlement deeds executed by late Venkayamma in favour of late Gagarao and Satyavathi, both of them dealt with the properties, respectively settled on them, as their owners thereof. Late Gangarao mortgaged it to Sri Gunturi Narayanaraju and thereafter he also executed a gift settlement deed, dated 30.06.1978 settling a life interest in plaint „B‟ schedule property to his wife i.e., the 1st plaintiff and the vested remainder with absolute rights to his children i.e., plaintiffs 2 and 3 equally.
Satyavathi mortgaged plaint „C‟ schedule property to Posamsetti Sathiraju under a mortgage deed, dated 04.08.1973.
(iv) Late Venkayamma had a paralytic stroke in about February, 1973. Late Apparao who was then in service at Eluru, was informed about it. He along with his wife i.e., 1st defendant and children i.e., defendants 2 to 8 came to Tadepalligudem and began to stay in plaint „B‟ schedule property. Late Gangarao let out a portion of the house previously to one Koppela Kesavarao, an employee in Soil Testing Laboratory. As late Apparao‟s family desired to stay for some time at Tadepalligudem and look after late Venkayamma, late Gangarao permitted them to do so and got Kesavarao to vacate the portion let out to him so that late Gangarao‟s family might conveniently stay in it. They accordingly stayed there and late Apparao was now and then visiting them. As they were so staying and looking after late Venkayamma, late Gangarao and the 1st plaintiff went to Gundepalli to see the 1st plaintiff‟s mother and brother. While they were staying at Gundepalli, late Apparao prevailed upon late Venkayamma to execute a deed dated 10.05.1973 purporting to cancel the settlement deed, dated 24.10.1972 executed by her in favour of late Gangarao and executed another settlement deed on the same date as the cancellation deed purporting to settle the plaint „B‟ schedule property on both late Apparao and late Gangarao equally with absolute rights. The settlement deed executed by late Venkayamma in favour of Satyavathi, however, was allowed to stand.
(v) Late Gangarao as well as the 1st plaintiff were kept completely in the dark about execution of the cancellation deed and settlement deed, dated 10.05.1973. Late Apparao‟s family continued to remain in a portion of the plaint „B‟ schedule property with permission of late Gangarao was taken aback and his enquiries revealed that late Venkayamma did not knowingly and willingly execute them, that she was not in mentally fit condition to understand their contents, and that late Apparao, by making of misrepresentation and exercising undue influence on her, got her thumb impressions on the documents without explaining their contents to her and got them registered. But, before late Gangarao could take any action against late Apparao, the latter died in 1978 and the former himself died in 1980. The defendants are continuing to stay in a portion of the plaint „B‟ schedule property. They have not vacated the same in spite of the demands made by the plaintiffs both orally and by means of their counsels registered notices, dated 12.12.1982. They got contentious reply issued by their counsel basing their stand on the cancellation deed and settlement deed, dated 10.05.1973, the recitals in which are utterly false and untenable. The cancellation deed and the settlement deed are void and of no effect. The settlement deed, dated 24.10.1972 executed by late Venkayamma was fully given effect to and unimpeachable from any point of view and so is the settlement deed, dated 30.06.1978 executed by late Gangarao in favour of the plaintiffs. The defendants being mere licensees in permissive possession of plaint „D‟ schedule property, which is a portion of plaint „B‟ schedule property, are bound to vacate it. Hence, the suit.
6. The 3rd defendant filed written statement which was adopted by the defendants 1, 2, 4 to 8 by denying all the averments mentioned in the plaint and further contended as under: -
(i) The properties were originally purchased by Rathayya, the father of Apparao and Gangarao in the name of his wife Venkayamma. Venkayamma has no means to acquire any property. Rathayya working as Class IV employee in the Revenue Department saved money from his salary etc., and as he was working in Government, when he wanted to acquire property, he consulted his departmental people and they advised him that even though he can be the real owner and the acquisition is lawful, to avoid any untold trouble the property can be in the name of his wife, ostensibly benami for the benefit of Rathayya and hence the sale deed was obtained in the name of his wife Venkayammna and the building was also acquired with the funds of late Rathayya and was kept in the name of Venkayamma. The said Rathayya and his sons Apparao and Gangarao were living in the said property and at his late days Rathayya expressed that the property should be conveyed by Venkayamma to Apparao and Gangarao and also to the daughter Pasupuleti Satyavathi and wanted settlement to be executed but meanwhile he died. In the later parts of the year 1972, Venkayamma had a stroke of paralysis and was not in a position to exercise her free will due to mental imbalance and at that time when Apparao was absent from the Town and Gangarao asked Venkayamma to execute settlement deeds to the property as per the directions given by Rathayya and so saying a deed was separately registered in favour of Pasupuleti Satyavathi for part of the property now shown in plaint „C‟ schedule and for the other property Gangarao represented that a deed of settlement is prepared in favour of both of them and mis-representing obtained the settlement deed, dated 24.10.1972. Venkayamma recovered from the stroke and attained normal health. In the last week of May, 1973, the said fraudulent transaction was discovered and as the said settlement was not properly attested and accepted, the same was cancelled by registered deed, dated 10.05.1973 duly executed and registered with her free will and good conscience. On the very same day as intended really, Venkayamma executed a registered settlement deed in favour of Apparao and Gangarao as was originally contemplated and the said document was duly attested and accepted by Apparao and Gangarao and as and when execution and registration took place Gangarao has full knowledge and he was duly informed about the cancellation and he has accepted the same and so Gangarao did not take any action as he was an accepting party. As previously the family of Apparao and Gangarao along with Venkayamma were living in the said property as legal possession was delivered on 10.05.1973. Gangarao himself by his conduct representation and inaction is stopped from questioning the said settlement deed, dated 10.05.1973 and when Gangarao has not questioned the same, the plaintiffs have no right to do so.
(ii) The property is not the self-acquired or the Shridhana property of Venkayamma. Gangarao never maintained his mother. The recitals in the settlement deed, dated 24.10.1972 are all false and are not accepted by Venkayamma and possession was not delivered to Gangarao and Gangarao never enjoyed the same exclusively. Venkayamma executed a settlement deed in favour of her daughter Satyavathi and is not a fraudulent transaction and Venkayamma has not revoked the same. Apparao is not aware of the settlement and then Venkayamma herself discovered the same and found it to be fraudulent and cancelled the same.
7. Based on the above pleadings, the trial Court framed the following issues:
(1) Whether Rathayya purchased the property in the name of his wife Venkayamma as per the sale deed, dated 24.03.1945 benami, for himself?
(2) Whether the settlement deed, dated 24.10.1972 is obtained by fraud and executed under influence?
(3) Whether the cancellation deed, dated 10.05.1973 executed by Venkayamma cancelling the deed, dated 24.10.1972 is true, valid and binding on the plaintiffs?
(4) Whether the settlement deed, dated 10.05.1973 executed by Venkayamma is true, valid and binding on the plaintiffs? (5) Whether the plaintiffs are stopped from questioning the settlement deed, dated 10.05.1973?
(6) Whether the defendants are in permanent possession of plaint „B‟ schedule property?
(7) Whether the plaintiffs are entitled for declaration as prayed for?
(8) Whether the plaintiffs are entitled to possession of plaint „B‟ schedule properties?
(9) Whether the plaintiffs are entitled to claim Rs.1,080/- towards damages for use and occupation?
(10) Whether the plaintiffs are entitled to any future profits? If so, at what rate?
(11) Whether the suit as framed is maintainable?
(12) To what relief?
8. During the course of trial in the trial Court, on behalf of the Plaintiffs, PW1 to P.W.8 were examined and Ex.A1 to Ex.A30 were marked. On behalf of the Defendants, DW1 to DW3 were examined and Ex.B1 to B16 were marked.
9. After completion of the trial and hearing the arguments of both sides, the trial Court dismissed the suit vide its judgment, dated 19.12.1988, against which the present appeal is preferred by the plaintiffs in the suit questioning the Decree and Judgment passed by the trial Court.
10. Heard Sri V.S.R.S. Naidu, learned counsel for the appellants and heard Sri O. Manohar Reddy, learned Senior Counsel, representing on behalf of M/s.Indus Law Firm, Sri J. Ravi Teja, learned counsel appearing on behalf of the respondents.
11. Learned counsel for the appellants would contend that the decree and judgment passed by the trial Court in dismissing the suit is contrary to law, weight of evidence and probabilities of the case. He would further contend that the trial Court committed a grave error of law in reaching its findings on assumptions and surmises without necessary pleadings by the defendants. He would further contend that the trial Court came to a wrong conclusion that Ex.B.2 registered cancellation of settlement deed is valid and binding on the plaintiffs. He would further contend that the trial Court committed a grave error in dismissing the suit and the appeal may be allowed by setting aside the decree and judgment passed by the learned trial Judge.
12. Per contra, learned Senior Counsel Sri O. Manohar Reddy, on behalf of the defendants, would contend that on appreciation of the entire evidence on record, the learned trial Judge rightly dismissed the suit and there is no need to interfere with the finding given by the learned trial Judge and the appeal may be dismissed by confirming the decree and judgment passed by the learned trial Judge.
13. Now the points for determination are:
1) Whether the registered gift settlement deed, dated 24.10.1972 said to have been executed by late Venkayamma in favour of Gangarao is true and valid?
2) Whether the registered cancellation of gift settlement deed executed by late Venkayamma on 10.05.1973 is invalid?
3) Whether the plaintiffs are entitled a relief of declaration of title in plaint 'B' schedule property and also recovery of possession of plaint 'D' schedule property and also damages as prayed for?
4) Whether the decree and judgment passed by the learned trial Judge needs any interference? If so, to what extent?
14. Point No.1:
Whether the registered gift settlement deed, dated 24.10.1972 said to have been executed by late Venkayamma in favour of Gangarao is true and valid?
The specific case of the plaintiffs is that late Venkayamma was original owner of the plaint „A‟ schedule property having purchased for Rs.500/- in total 1000 sq. yards comprising plaint „B‟ and „C‟ schedule properties. Here it is relevant to say plaint „D‟ schedule property is a part and parcel of plaint „B‟ schedule property. Learned counsel for the appellants would contend that out of love and affection late Venkayamma executed a registered gift settlement deed, dated 24.10.1972 in favour of her son late Gangarao in respect of plaint „B‟ schedule property and also executed another registered gift settlement deed in favour of her daughter Satyavathi on the same day in respect of plaint „C‟ schedule property and possession was also delivered to both of them irrespectively. Ex.A.2 is a registered settlement deed, dated 24.10.1972 said to have been executed by late Venkayamma in favour of late Gangarao. The recitals in Ex.A.2 registered gift settlement deed are the schedule property in Ex.A.2 registered gift settlement deed was given to his son Gangarao out of love and affection by giving absolute rights in the said property and the property was also delivered on the same day. There was a clear recital in Ex.A.2 registered gift settlement deed that original registered sale deed under which she purchased the property was also handed over to Gangarao on the same day and possession was also delivered to Gangarao on the same day and the said Ex.A.2 registered gift settlement deed is an unconditional gift settlement deed. The plaintiffs also filed original registered sale deed under which Venkayamma purchased the property and got exhibited as Ex.A.1.
15. The specific contention of the defendants in the written statement is that the recitals in Ex.A.2 registered gift settlement deed are nothing but false and the same is not accepted by Venkayamma and possession was also not delivered to Gangarao and Gangarao never enjoyed the same exclusively and Ex.A.2 registered gift settlement deed is obtained by way of fraud. In order to prove the case of the plaintiffs, the plaintiffs relied on the evidence of P.W.2, P.W.4 and P.W.5. Gangarao was no more and he died prior to filing of the suit. P.W.2 is daughter of late Venkayamma on whose behalf late Venkayamma executed another registered gift settlement deed on the same day in respect of plaint „C‟ schedule property. She deposed in her evidence that her mother settled plaint „B‟ schedule property in favour of her brother Gangarao i.e., husband of P.W.1 under Ex.A.2 registered gift settlement deed and the same was prepared and attested and duly registered and Gangarao accepted the said settlement deed and her mother voluntarily executed Ex.A.2 registered gift settlement deed in favour of Gangarao and she was also present at that time and her brother Gangarao was also present at that time. The evidence of P.W.2 clearly goes to show about the execution of Ex.A.2 registered gift settlement deed by her mother in favour of her brother Gangarao voluntarily by accepting the contents therein and executed the same before the Sub-Registrar.
16. P.W.4 is another witness. As per his evidence, he attested the settlement deed since he happened to go to Taluk office on that day and he was called and he signed on Ex.A.2 registered gift settlement deed and the contents of the settlement deed was accepted by Gangarao and scribe prepared Ex.A.2 registered gift settlement deed and the contents were narrated to the executant and accepting the same and he also identifying witness in Ex.A.2 registered gift settlement deed. P.W.5 is none other than the own brother of scribe of Ex.A.2 registered gift settlement deed i.e., P.V.S.R.B.K. Rangarao. According to his evidence, his brother P.V.S.R.B.K. Rangarao was no more and he died and he can identify the signature of his brother and handwriting on Ex.A.2 registered gift settlement deed and Ex.A.2 was scribed by his brother. The plaintiffs discharged their burden by examining three witnesses as P.W.2, P.W.4 and P.W.5 and the evidence of P.W.2 and P.W.4 clinchingly proves about the execution of Ex.A.2 registered gift settlement deed by Venkayamma in favour of late Gangarao and Gangarao also accepted the same and property was also delivered and link document was also handed over to Gangarao by his mother Venkayamma on the same day.
17. In cancellation of the registered gift settlement deed under Ex.B.2, the donor late Venkayamma admitted about the execution of registered gift settlement deed, dated 24.10.1972 before the Sub-Registrar. The original gift settlement deed is filed and marked as Ex.A.2. It was recited in Ex.B.2 that Ex.A.2 registered gift settlement deed was obtained fraudulently by Gangarao. As stated supra, the plaintiffs discharged their initial burden to prove Ex.A.2 registered gift settlement deed. To prove the defence taken by the defendants in the written statement that Gangarao obtained a settlement deed fraudulently, admittedly no oral or documentary evidence is produced by the defendants. Furthermore, no suit is filed by the donor before a civil court to cancel Ex.A.2 registered gift settlement deed on the ground that the donee obtained Ex.A.2 fraudulently. The material on record reveals that late Venkayamma executed Ex.A.2 registered gift settlement deed in favour of her son Gangarao and original of Ex.A.30 in favour of her daughter Satyavathi out of love and affection without any coercion and undue influence on the same day in a sound and disposing state of mind, but, for the reasons best known to the respondents, they are disputing only Ex.A.2 registered gift settlement deed and they are not disputing Ex.A.30. It is also another important circumstance to believe the case of the plaintiffs is that on the date of registered gift settlement deed, late Venkayamma handed over her original sale deed of the total property and it is also evident from the recitals of Ex.A.2 registered gift settlement deed that "Gangarao is bound to show original sale deed under Ex.A.1 whenever Satyavathi requires". The defendants failed to prove that Ex.A.2 registered gift settlement deed was obtained by Gangarao by playing fraud.
18. Section 122 of the Transfer of Property Act defines gift as a 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 donee. It is well settled that in order to constitute a valid gift, acceptance must. In the case on hand, the donor executed a registered gift settlement deed in favour of her son and the donee was alive till the year 1978 and the donor without issuing any notice or without giving any paper publication to her son late Gangarao cancelled the said registered gift settlement deed before the Sub-Registrar. It is also well settled that the gift may be made by way of registered instrument only signed by or on behalf of the donor and attested by at-least two witnesses, which is a valid document, and the same is accepted by or on behalf of donee. The said acceptance must be given during the life time of the donor and while he is still capable of giving is evident from a plain reading of Section 122 of the Transfer of Property Act.
Admittedly, in the case on hand, the donor out of free will and love and affection executed Ex.A.2 registered gift settlement deed in favour of her son late Gangarao, dated 24.10.1972 by giving absolute rights and the possession was also delivered to him and original link document i.e., sale deed is also handed over to donee and the same is specifically mentioned in Ex.A.2 registered gift settlement deed. To prove Ex.A.2 registered gift settlement deed, the plaintiffs examined the daughter of late Venkayamma i.e., Satyavathi as P.W.2 and also examined another witness as P.W.4 and also examined the own brother of scribe of Ex.A.2 registered gift settlement deed as P.W.5. The thumb mark on Ex.A.2 registered gift settlement deed is not at all disputed by the defendants. The contention of the defendants is that by playing fraud, the plaintiffs obtained gift settlement deed. As noticed supra, the initial burden was discharged by the plaintiffs and they also proved Ex.A.2 registered gift settlement deed. Another important strong circumstance to believe Ex.A.2 registered gift settlement deed is subsequent to execution of Ex.A.2, dated 24.10.1972 property was mortgaged under Ex.A.3 mortgage deed, dated 06.02.1976 by Gangarao, when Apparao was alive and the name of Gangarao was also mutated in Panchayat records and Gangarao paid taxes to the Panchayat in respect of plaint „B‟ schedule property and after the death of Gangarao, his wife P.W.1 also was paid taxes under Ex.A.6 to Ex.A.18 and Gangarao himself was used to pay electricity charges in respect of plaint „B‟ schedule property. The recitals of Ex.A.2 registered gift settlement deed is also quite clear that late Venkayamma gave her title deed Ex.A.1 to Gangarao. For the aforesaid reasons, I am of the considered view that the registered gift settlement deed, dated 24.10.1972 is said to have been executed by late Venkayamma in favour of her son Gangarao voluntarily.
Accordingly, point No.1 is answered.
19. Point No.2:
Whether the registered cancellation of gift settlement deed executed by late Venkayamma on 10.05.1973 is invalid?
The defendants relied on cancellation of gift settlement deed, dated 10.05.1973 under Ex.B.2. The defendants pleaded late Venkayamma executed a registered cancellation deed by cancelling Ex.A.2 registered gift settlement deed, dated 24.10.1972. Admittedly no notice or no paper publication is given to the donee before cancellation of the registered gift settlement deed. The reasons for cancellation of Ex.A.2 registered gift settlement deed is donee obtained Ex.A.2 by playing fraud. It is relevant to say on the same day donor executed two registered gift settlement deeds before the Sub-Registrar on 24.10.1972, one is in favour of her daughter i.e., P.W.2 in respect of plaint „C‟ schedule property and another gift deed executed in favour of her son Gangarao in respect of plaint „B‟ schedule property who is no more by the date of filing of the suit. As per the evidence of P.W.2, the donor executed a registered gift settlement deed under Ex.A.2 in a sound and disposing state of mind voluntarily without any coercion. Her evidence also clearly goes to show that mental condition of donor is also in a good condition on the date of Ex.A.2 registered gift settlement deed. The evidence of P.W.2 clearly goes to show that Gangarao has not played any fraud on the date of Ex.A.2. Furthermore, the evidence of P.W.4 who is one of the witnesses to Ex.A.2 registered gift settlement deed clearly proves that Gangarao has not played any fraud in obtaining Ex.A.2.
20. It was contended by the learned counsel for the respondents that the cancellation of gift settlement deed was done within the knowledge of Gangarao. Admittedly, Gangarao and Apparao were no more. The son of Apparao i.e., 3rd defendant is examined as D.W.1. In cross examination, D.W.1 specifically admits that his father was in the habit of taking liquor by the time of execution of Ex.B.1 and Ex.B.2 cancellation deed, they accepted plaint „A‟ schedule property is the personal property of his grandmother and they have also not advised his grandmother to file a suit for cancellation of Ex.A.2 registered gift settlement deed. He further admits that husband of P.W.1 i.e., Gangarao was not present when Ex.B.1 and Ex.B.2 were executed and his father purchased the required stamp papers for Ex.B.1 and Ex.B.2 and he does not know the value of the stamp papers purchased by his father and contacted the scribe of Ex.B.1 i.e., Venkataramaiah and Venkataramaiah obtained necessary instructions from his grandmother to write Ex.B.1 and Ex.B.2 was prepared by another document writer Suryachandra Rao. The material on record reveals that after obtaining a gift settlement deed late Gangarao used to pay electricity charges and also house tax in respect of the plaint schedule property and in order to prove the same, the plaintiffs relied on Ex.A.6 to Ex.A.22 and late Gangarao was also paid electricity charges pertaining to plaint „B‟ schedule property which is also quite relevant and to prove the same, the plaintiffs produced documentary evidence. Furthermore, after four years of gift settlement deed, late Gagarao mortgaged plaint „B‟ schedule property in the Sub-Registrar Office to third parties and borrowed the amount and subsequently on 30.06.1978 Gangarao executed a registered gift settlement deed in favour of the plaintiffs by giving life interest to his wife 1st plaintiff herein and vested remainder to his children i.e., plaintiffs 2 and 3 herein.
21. The material on record reveals that on the date of unilateral cancellation of settlement deed and execution of Ex.B.1, late Venkayamma was bed ridden and D.W.1 and Apparao took her to Sub-Registrar office, Apparao himself purchased stamp papers for Ex.B.1 in the name of Venkayamma and purchased stamp papers in the name of Gangarao for Ex.B.2 in the absence of Gangarao, the same is well supported by no other than the son of late Apparao who is D.W.1 herein. Therefore, it is quite clear that the beneficiary i.e., late Apparao played active role in obtaining Ex.B.1 and also Ex.B.2 cancellation deed from late Venkayamma.
22. In a case of Sudhakara Reddy vs. Lakshmamma1, the composite High Court of Andhra Pradesh at Hyderabad held as follows:
"The plaintiff is claiming the property basing on Ex.A.1 Will and the defendant is claiming the property basing on Ex.B.1 gift deed. As per the testimony of PWs.1 and 3, late Gowramma by a registered document cancelled Ex.A.1 gift deed. The plaintiff did not plead in the plaint about the alleged cancellation of gift deed. The trial Court in para-6 of its judgment gave a finding that Ex.B.1 gift deed executed in favour of the defendant is cancelled. The first issue framed by the trial Court is with regard to the validity of Ex.B.1 gift deed. It is needless to say that donor is entitled to cancel a registered gift deed by executing another registered document. In order to resolve this issue, this court is placing reliance on the decision in Yanala Malleshwari v Ananthula Sayamma, 2006 (6) ALD 623 (FB) = 2006(6) ALT 523 (FB). Relevant para 26 is extracted hereunder.
26. It is a misconception that in every situation, a person who suffers injury by reason of a document can file a suit for cancellation of such written statement. Two conditions must exist before one invokes Section 31 of Specific Relief Act. These are: the written instrument is void or voidable against such person; and such person must have reasonable apprehension that such instrument if left outstanding may cause him serious injury. Insofar as Section 1 2014 (5) ALD 385 34 of the Specific Relief Act is concerned, it is no doubt true that a person entitled to any right as to any property can seek declaration that he is so entitled to such right. Here again, the person who claims the right to property can institute a declaration suit only when the defendant denies or interested to deny the title of the plaintiff. The difference between the two situations is glaring. In one case, cancellation of deed can be sought in a Court only by a person who executed document and who perceives that such document is void or voidable. In the other case, even if a person is not a party to the document, he can maintain a suit for declaration."
The composite High Court of Andhra Pradesh at Hyderabad further held as follows:
"In view of the principle enunciated in the case cited supra, the finding of the trial Court that the Ex.B1 gift deed executed in favour of the defendant was cancelled is not sustainable. The only remedy available to the donor is to file a suit for cancellation of Ex.B1 gift deed, as provided Section 31 of the Specific Relief Act. The plaintiff filed the suit seeking injunction simpliciter. In such circumstances, the trial Court ought not to have framed the issue, which is in the nature of a declaration. The trial Court decreed the suit basing on oral evidence of PWs.1 to 3 and also on a wrong premise that Ex.B.1 gift deed was cancelled by late Gowramma, during her life time.
In a case of Kapuganti Jagannadha Gupta vs. District Registrar, Srikakulam and others 2, the composite High Court of Andhra Pradesh at Hyderabad held as follows:
"Gift is one of the forms of transfer of immovable property, dealt with under the Transfer of Property Act, 1982. While in all other forms of transfer, such as, sale, mortgage, exchange, consideration flows from the transferee to the transferor, gift is a transaction which is not supported by any consideration. Section 123 of the Transfer of Property Act prescribes the procedure for execution of a valid gift. Once the gift is made in accordance with law and is accepted by the donee, it becomes irrevocable. In case the donor feels that the transaction is tainted with 2 2012 (3) ALD 404 any factors such as fraud, coercion or misrepresentation, the only remedy available to him is to file a suit for cancellation of the document".
In a case of Nakka Parthasarathy vs. Nakka Krishnaveni and others3, the composite High Court of Andhra Pradesh at Hyderabad held as follows:
"From the language of the section, it is clear that there must be "condition subsequent" attached to the gift on the happening of which the gift shall determine. But, such condition shall not depend on the mere will and pleasure of the donor. If it is to be understood that if such 'condition subsequent' is governed by the mere wish of the donor, he can revoke the gift at any time and in the strict sense there would be no gift at all. If the legal position concerning revocation of gift is examined in the context of the present case, even if late Narayanarao made gift in favour of the defendants 1 and 2 thinking that the defendants 1 and 2, who are his sons would look after him properly and later they did not take care his welfare, he could not have revoked the gift on the ground that he was neglected by his sons. In the absence of any specific recital that on the happening in a specific event the gift would be cancelled, it is irrevocable so long as the gift was not made under coercion or undue influence. In the instant case, from the evidence there is no doubt as to the fact that late Narayanarao voluntarily made gift in favour of his sons, defendants 1 and 2. There is no condition of any kind in Ex.A.2, gift deed got recited by late Narayanarao, according to which he and the donees, the defendants 1 and 2 agreed that on the happening of any specific event, the gift would be suspended or revoked."
In the case on hand, under Ex.A.2 registered gift settlement deed, a possession was delivered to late Gangarao by his mother late Venkayamma and on the same day original link document i.e., registered sale deed under which late Venkayamma purchased the property was also given to Gangarao on the date of registration of Ex.A.2 and in the year 1976 late Gangarao also 3 2013 (5) ALD 711 mortgaged plaint „B‟ schedule property during the life time of Apparao. Another crucial recital made in Ex.A.2 registered gift settlement deed is original sale deed was handed over to late Gangarao by donor and donor herself expressed her intention in Ex.A.2 that Gangarao is bound to show the original sale deed Ex.A.1 whenever Satyavathi i.e., P.W.2 insisted.
23. In a case of Kolli Rajesh Chowdary vs. State of Andhra Pradesh and others4, this Court held as follows:
"From the precedential guidance in the decision of the Supreme Court, it is manifest that there cannot be an unilateral cancellation of registered sale deeds and that a cancellation deed cancelling a sale deed can be registered only after the same is cancelled by a competent civil Court, after notice to the parties concerned, and that in the absence of any declaration by a competent Court or notice to parties, the execution of deed of cancellation as well as its registration are wholly void And non est and such transactions are meaningless transactions. In my opinion, the analogy which the Supreme Court applied to cancellation of sale deed equally applies to the present deed of cancellation by which the 4th respondent cancelled unilaterally, the gift settlement deed executed by her in favour of the petitioner. In the present case, the procedure prescribed in the rule afore-stated has admittedly not been followed and the petitioner was not put on notice by the 2nd respondent before registering the revocation deed/deed of cancellation executed, on 29.09.2017, and registered, on 03.10.2017."
In Yanala Malleshwari vs. Smt Ananthula Sayamma 2006 (6) ALD 623 (FB) = AIR 2007 AP 57 (FB), in that decision it was held as follows:
"In this regard, it needs to be noticed that a gift deed, on the one hand, and a sale deed, on the other, stand on different footing. Under Section 126 of the Transfer of Property Act, it is competent for a Donor, to suspend or revoke a gift deed, executed by him, whereas similar facility 4 2019 (3) ALD 229 (AP) is not available, in case of a sale deed. Gift is a transfer, without any monetary consideration, whereas under a sale transaction, mutual rights and obligations exist, as between a vendor and vendee. Section 31 of the Specific Relief Act prescribes the manner, in which a document can be cancelled. What is required to be done through the decree of a Court, cannot be permitted to be undertaken by a party by himself". And finally observed- "This Court is of the view that, if sale deeds, under which valuable properties are conveyed, are permitted to be cancelled unilaterally, it would not only result in several complications, unnecessary litigations, and hardship to the affected parties, but also bring about situations, having far-reaching implications and unrest in the society. These aspects do not appear to have been brought to the notice of the Division Bench, which disposed of W.A. No.972 of 2004. It is felt that the AIR 2007 AP 57 (F.B) matter needs to be examined either by another Division Bench, or, if necessary, by a Full Bench".
The above Full Bench judgment of this Court in Yanala Mallesswari's case is challenged before the Apex Court wherein the Apex Court overruled the above judgment. The Apex Court in the case of Thota Ganga Laxmi and another vs. Government of Andhra Pradesh and others, 2012 (1) ALD 90 (SC), held as follows:
In this connection, we may also refer to Rule 26(i)(k) relating to Andhra Pradesh under Section 69 of the Registration Act, which states:
"The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing natural consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale:
Provided that the registering officer shall dispense with the execution of cancellation deed by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not registerable by any provision of law".
A reading of the above rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after notice to the concerned parties. In this case, neither is there any declaration by a competent court nor was there any notice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions.
The ratio laid down in the aforesaid case laws are squarely applicable to the present case on hand. The law is very clear when the donor executed a registered gift settlement deed before the Sub-Registrar and donee has no right to cancel the same unilaterally before the Sub-Registrar. If the donor wants to cancel the gift settlement deed, she has to approach a civil Court for cancellation questioning the alleged fraud played by late Gangarao, but not by way of cancellation deed before Sub-Registrar. Admittedly, no notice or no paper publication was given to late Gangarao before execution of cancellation of gift settlement deed. As per the own admissions of son of beneficiary of Ex.B.1 i.e., D.W.1, his father played active role in obtaining Ex.B.1 and Ex.B.2 from his grandmother late Venkayamma.
24. Learned counsel for the respondents relied on Shiv Chander Kapoor vs. Amar Bose5 wherein the Apex Court held as follows:
5(1990) 1 Supreme Court Cases 234 "It has been pointed out that 'void' is meaningless in an absolute sense;
and 'unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders'. In the words of Lord Diplock, "the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue".
The facts in the aforesaid case law relate to rent control law and the dispute in the aforesaid case law is in between land-lord and tenant. In the case on hand, the dispute is with regard to execution of cancellation of registered gift settlement deed and the said cancellation of registered gift settlement deed is void document and non est and meaningless. Therefore, the said Ex.B.1 and Ex.B.2 transactions are void, and those transactions have to be ignored and there is no need to approach the civil Court by late Gangarao or plaintiffs for cancellation of said cancellation deed.
25. For the aforesaid reasons, Ex.B.2 cancellation deed is declared as null and void and that it is of no effect and Ex.B.2 is a meaningless transaction consequently Ex.B.1 is not a valid document.
Accordingly, point No.2 is answered against the respondents/ defendants.
26. Point No.3:
Whether the plaintiffs are entitled a relief of declaration of title in plaint 'B' schedule property and also recovery of possession in plaint 'D' schedule property and also damages as prayed for?
The plaintiffs in the suit are claiming relief of declaration of plaint „B‟ schedule property and also recovery of possession of plaint „D‟ schedule property and also damages as sought for. The 1st plaintiff is wife of late Gangarao and plaintiffs 2 and 3 are no other than the children of 1st plaintiff. As stated supra, Gangarao acquired the property under Ex.A.2 registered gift settlement deed from his mother. Since Gangarao was original owner of plaint „B‟ schedule property by virtue of Ex.A.2 registered gift settlement deed, he executed a registered settlement deed, dated 30.06.1978 by giving life interest in plaint „B‟ schedule property to the 1st plaintiff and vested remainder rights to the plaintiffs 2 and 3 equally under Ex.A.5. To prove the recitals of Ex.A.5, the plaintiffs relied on the evidence of P.W.6 i.e., one of the attesting witnesses in Ex.A.5 gift settlement deed.
27. The evidence of P.W.5 and P.W.6 proves about the execution of Ex.A.5 gift settlement deed in favour of the plaintiffs. In fact, there is no denial by the defendants on Ex.A.5 document. The contention of the defendants is that Gangarao has no right to execute Ex.A.5 gift settlement deed because he was not having absolute rights in Ex.A.5 property. As stated supra, it was held in the above points 1 and 2 that Ex.A.2 registered gift settlement deed said to have been executed by Venkayamma in favour of Gangarao is true and valid document and cancellation deed executed by Venkayamma is void document and null and void and it is to be ignored and there is no need to approach civil Court by the plaintiffs for cancellation of Ex.B.2 deed.
28. The respondents relied on State of Punjab and others vs. Gurdev Singh6.
The facts in the aforesaid case law relates to the service matter. Admittedly, in the case on hand, Ex.A.2 registered gift settlement deed is proved and the plaintiffs also proved Ex.A.2 is valid document and late Apparao played active role in obtaining Ex.B.2 and Ex.B.1 from late Venkayamma. In view of law laid down in Thota Ganga Laxmi and another vs. Government of Andhra Pradesh and others, 2012 (1) ALD 90 (SC), the appellants need not approach civil Court for cancellation of Ex.B.1 and Ex.B.2 6 (1991) 4 Supreme Court Cases 1 as well as the registration, because the same are void documents, non est and can be ignored altogether.
29. It was contended by the learned Senior Counsel on behalf of the respondents before this Court that the suit is barred by limitation. The respondents placed a reliance of N. Thajudeen vs. Tamil Nadu Khadi and Village Industries Board7 wherein the Apex Court held as follows:
Once it is held that the gift deed was validly executed resulting in the absolute transfer of title in favour of the plaintiff-respondent, the same is not liable to be revoked, and as such the revocation deed is meaningless especially for the purposes of calculating the period of limitation for instituting the suit.
In the case at hand, the suit is not simply for the declaration of title rather it is for a further relief for recovery of possession. It is to be noted that when in a suit for declaration of title, a further relief is claimed in addition to mere declaration, the relief of declaration would only be an ancillary one and for the purposes of limitation, it would be governed by the relief that has been additionally claimed. The further relief claimed in the suit is for recovery of possession based upon title and as such its limitation would be 12 years in terms of Article 65 of the Schedule to the Limitation Act.
In C. Mohammad Yunus vs. Syed Unnissa And Ors AIR 1961 SC 808, it has been laid down that in a suit for declaration with a further relief, the limitation would be governed by the Article governing the suit for such further relief. In fact, a suit for a declaration of title to immovable property would not be barred so long as the right to such a property continues and subsists. When such right continues to subsist, the relief for declaration would be a continuing right and there would be no limitation for such a suit. The principle is that the suit for a declaration for a right cannot be held to be barred so long as Right to Property subsist."7
2024 SCC OnLine SC 3037 In the case of N. Thajudeen vs. Tamil Nadu Khadi and Village Industries Board8, the Division Bench of the Apex Court held as follows:
It is important to reproduce Section 126 of the Act, which reads as follows:
"126. When gift may be suspended or revoked.--
The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice."
The Division Bench of the Apex Court further held as follows:
"Once it is held that the gift deed was validly executed resulting in the absolute transfer of title in favour of the plaintiff-respondent, the same is not liable to be revoked, and as such the revocation deed is meaningless especially for the purposes of calculating the period of limitation for instituting the suit."
The Division Bench of the Apex Court further held as follows:
"In the case at hand, the suit is not simply for the declaration of title rather it is for a further relief for recovery of possession. It is to be noted that when in a suit for declaration of title, a further relief is claimed in addition to mere declaration, the relief of declaration would only be an ancillary one and for the purposes of limitation, it would be governed by 8 2024 LawSuit (SC) 947 the relief that has been additionally claimed. The further relief claimed in the suit is for recovery of possession based upon title and as such its limitation would be12 years in terms of Article 65 of the Schedule to the Limitation Act".
In the case on hand, the registered gift settlement deed is executed in the year 1972 and cancellation deed is executed in the year 1973 and the suit is filed by the plaintiffs on 22.04.1983 before the trial Court. Here the suit is filed by the plaintiffs for seeking relief of declaration of title in respect of plaint „B‟ schedule property and recovery of possession of plaint „D‟ schedule property, therefore, the suit claim is not barred by limitation. Furthermore, there are no specific pleadings in the written statement itself that the suit claim is barred by limitation. Law is very clear in the absence of any pleadings no importance will be given to the oral pleadings of the parties before the appellate Court in appellate stage. As stated supra, Ex.A.2 registered gift settlement deed was executed in the year 1972 and cancellation deed was executed in the year 1973 and property was mutated in the name of Gangarao and Gangarao was alive till 1978 and Gangarao also executed a registered gift settlement deed under Ex.A.5 in favour of his wife and children, dated 30.06.1978 and Gangarao was not having any knowledge about the cancellation deed for that reason only Gangarao executed Ex.A.5 registered gift settlement deed in favour of his wife and children.
30. Another important circumstance to disbelieve the case of the defendants is that Ex.B.1 and Ex.B.2 were scribed by different persons on the same day which cast doubt on the conduct of late Apparao in obtaining documents under Ex.B.1 and Ex.B.2. Furthermore, the son of Apparao i.e., D.W.1 admits in his evidence in cross examination itself Non-Judicial Stamp papers for both the documents Ex.B.1 and Ex.B.2 were purchased by Apparao in the name of Gangarao and in the name of his mother Venkayamma in the absence of Gangarao without his knowledge and consent. The own admissions of son of beneficiary under Ex.B.1 clearly goes to show that Apparao played active role in cancellation of Ex.A.2 registered gift settlement deed under Ex.B.2 and also Ex.B.1 registered gift settlement deed. Moreover, no counter claim is filed by the defendants along with written statement itself that the defendants are claiming plaint „D‟ schedule property by virtue of Ex.B.1.
31. For the aforesaid reasons, the plaintiffs are entitled the relief of declaration of title in plaint „B‟ schedule property and also recovery of possession of the plaint „D‟ schedule property as prayed for. Since no evidence is produced by the plaintiffs with regard to the quantum of damages, therefore, the relief of damages sought by the plaintiffs is negatived.
32. Point No.4:
Whether the decree and judgment passed by the learned trial Judge needs any interference? If so, to what extent?
In view of my above discussion on point Nos.1 to 3, the learned trial Judge committed error in dismissing the suit and therefore the same is liable to be set aside.
33. In the result, the appeal is allowed by setting aside the decree and judgment, dated 19.12.1988 in O.S.No.138 of 1984 passed by the Subordinate Judge, Tadepalligudem and consequently suit in O.S.No.138 1984 is decreed as prayed for except the relief of damages sought by the plaintiffs. Considering the facts and circumstances of the case, each party do bear their own costs in the suit as well as in the appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed.
_________________________ V. GOPALA KRISHNA RAO, J Date: 22.01.2025 PGR