Andhra HC (Pre-Telangana)
Pagadala Bharathi And Another vs J.Radha Krishna on 15 November, 2012
Equivalent citations: AIRONLINE 2012 AP 17
Author: N.R.L. Nageswara Rao
Bench: N.R.L. Nageswara Rao
THE HON'BLE SRI JUSTICE N.R.L. NAGESWARA RAO SECOND APPEAL No.1459 OF 2005 15.11.2012 Pagadala Bharathi and another J.Radha Krishna Counsel for the Appellants: Counsel for the Respondent: <Gist >Head Note JUDGMENT:
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The defendants in O.S.No.21 of 1994 on the file of the Court of Senior Civil Judge, Srikalahasti, are the appellants herein.
2. The suit was filed for declaration of title and for injunction with regard to item No.1 and for recovery of possession of item No.2.
3. The allegations in the plaint go to show that the schedule property belonged to one K.V.G. Murthy having purchased item No.1 from one P.Subba Rao and item No.2 was assigned by the Government. The plaintiff is the brother's son of the said K.V.G. Murthy, who executed a Will on 30.09.1992 bequeathing the schedule properties to the plaintiff and died on 08.10.1992. The plaintiff got possession of item No.1. The 1st defendant is the wife of the second defendant and they have no right over the schedule property. The 1st defendant is an orphan and without any right taking advantage that she worked as a maid servant for sometime in the house of deceased K.V.G. Murhty forcibly took possession of item No.2 of the schedule property. Under the above circumstances, the suit was filed after issuing a legal notice.
4. The defendants filed a written statement. The ownership of K.V.G. Murthy in the schedule properties is admitted. The Will in favour of the plaintiff is disputed. The 1st defendant is the wife of the 2nd defendant and they disputed that they have no right over the schedule properties. The allegation that the 1st defendant is an orphan is defamatory and it is coined for the purpose of the suit and it is nothing but blasphemy to call the daughter of K.V.G. Murhty as his maid servant. It is disputed that the 2nd defendant taking advantage of his position as a Police Constable, has been threatening the plaintiff to take forcible possession of the item No.2 of the schedule properties. The 1st defendant has become the absolute owner of the plaint schedule properties after the death of her father on 08.10.1992. They also disputed that the plaintiff got issued a notice to the defendants on 20.12.1992 and they evaded to receive the notice.
Late K.V.Guru Murhty was an Ex-service man who had joined the Police Force after his discharge from the army. He was assigned the schedule properties by the Government and the super structures were put up by him. His wife Mangamma died on 03.04.1981. The 1st defendant is the only child of K.V.G. Murthy and Mangamma. K.V.G. Murthy who had retired from service in 1978 performed the marriage of the 1st defendant with the 2nd defendant on 22.02.1984. In the last week of September, 1992 the said Gurumurthy was complaining of some uneasiness and he informed the defendants that he would go to Tirupati for medical check up and expert treatment if it is necessary. He returned to his village on 02.10.1992 and informed the defendants that he has no specific complaint and the uneasiness was due to old age. K.V.G. Murthy at one time in 1990 wanted to sell away his item No.1 of the schedule to one Subba Rao of Sathyaveedu and executed a sale deed in his favour. But, K.V.G. Murthy had executed a gift deed in favour of the 1st defendant on 10.01.1986. Having come to know about the gift deed in favour of the plaintiff, the said Subba Rao had sold back the item purchased by him to K.V.G. Murthy himself. In view of the gift deed, where the old man had himself acknowledged the 1st defendant to be his daughter, it is ridiculous on the part of the plaintiff to call her an orphan and one time maidservant of the late K.V.G. Murthy. The said K.V.G. Murthy had no quarrel with his daughter and son-in-law and he had no need to execute any Will in favour of the plaintiff. The Will filed in the Court must be a rank forgery. Therefore, they prayed for dismissal of the suit.
5. No rejoinder has been filed by the plaintiff disputing the allegations in the written statement.
6. On the basis of the above pleadings, the trial Court has framed as many as nine issues, as follows:
1) Whether the 1st defendant is the daughter of late K.V.Gurumurthy?
2) Whether the K.V. Gurumurthy got a brother and the plaintiff is the brother's son of K.V. Gurumurthy?
3) Whether the 'Will' dated 30.09.1992 said to have been executed by K.V. Gurumurthy in favour of the plaintiff is a true and genuine document?
4) Whether the 1st defendant is the legal heir of K.V. Gurumurthy and become the absolute owner of the suit schedule properties?
5) Whether the Late K.V. Gurumurthy executed a gift deed dated 10.01.1986 in favour of the 1st defendant?
6) Whether the plaintiff is entitled mesne profits as prayed for?
7) Whether the plaintiff is entitled to declaration and permanent injunction as prayed for in respect of suit schedule properties?
8) Whether the plaintiff is entitled to possession of item No.2 of the suit schedule property?
9) To what relief?
7. After considering the material evidence on record, the trial Court found that the 1st defendant is the daughter of late K.V.G. Murthy and holding that the settlement deed relied on by the 1st defendant has been cancelled and the Will in favour of the plaintiff is true and accepting the possession and title of the plaintiff held in para No.19 that the 1st defendant is found to be in possession of the property and decreed the suit with regard to item No.1 for injunction and for recovery of possession with regard to item No.2. As against that, the defendants have preferred the appeal A.S.No.120 of 1999 on the file of the Court of VI Additional District Judge (Fast Track Court), Tirupati, challenging the judgment of the trial Court and the 1st appellate Court after framing some issues as points for consideration, held that the 1st defendant is not the daughter of the K.V.G. Murthy and that the possession of the property is not proved and consequently, interfering with some of the findings of the trial Court dismissed the appeal while granting the main relief to the plaintiff. Aggrieved by the said judgment, the present second appeal is filed.
8. The Second Appeal was admitted on the following substantial questions of law:
1) Whether the judgments and Decrees of the Courts below are hit by Section 126 of the Transfer of Property Act?
2) Whether the judgments of the Courts below suffer from perversity?
3) Whether the Courts below were justified in granting a declaration to the plaintiff, who is a stranger to the family, basing upon an unregistered Will ignoring the earlier registered Settlement and Gift Deed?
9. POINTS:
Unfortunately, the Courts below have not gone into the question as to whether the gift deed can be cancelled or not and as to whether the reasons given for cancellation of the gift deed are valid and recognized under law. Both Courts below have proceeded on the premise that there is no proof of the gift deed and the trial Court has found in view of the subsequent execution of the Will, the gift deed has no validity.
10. Section 122 of the Transfer of Proper11
11. ty Act, 1882 (for short, 'the Act') defines valid gift, which is as follows:
"125. "Gift" defined.- "Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.- Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void".
11. Section 126 of the Act deals with the provision for suspension or revocation of the gift deed, which is 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".
12. The learned counsel for the appellants contends that when once a valid gift has been executed without any reservation of right for cancellation, the cancellation is not valid and consequently, the plaintiff cannot get rights in the schedule property and the Will Ex.A.4 cannot supersede the gift deed Ex.B.1. The cancellation deed Ex.A.2 is therefore, not a valid document. Evidently, the date of gift is 10.01.1986. The cancellation deed Ex.A.2 is dated 30.12.1996. According to him, the gift was accepted and the trial Court has accepted the possession of item No.1. So far as item No.2 is concerned, admittedly, the appellants are in possession of the property and consequently, the judgments of the Court below are vitiated by serious error of law. On the other hand, the learned counsel for the respondent contends that the gift is not valid as there is no delivery of possession of the property and it was a conditional gift of maintaining the deceased K.V.G. Murthy and as the promise has failed the gift deed was cancelled and consequently, the appellants have no right in the property.
13. At the outset, it is to be first determined as to whether there was valid execution of the gift deed. In fact, Ex.A.2 the cancellation of settlement deed executed by the owner of the property late K.V.G. Murthy itself discloses that he has executed the gift deed. Added to that, Ex.A.14, which is said to be a complaint addressed by the deceased clearly goes to show that the 1st defendant is the fostered daughter of the deceased and she promised to look after him properly during his lifetime and consequently, executed the gift deed Ex.B.1 and subsequently, she has failed in her promise and therefore, the gift deed was cancelled. To prove the lodging of this complaint with the police, there is no material. But, however, the document having come from the custody of the plaintiff itself is sufficient to hold that apart from accepting the execution of the registered gift deed in favour of the 1st defendant, the fact that the 1st defendant was brought up by him and therefore, he treated her as his daughter gains strength. Therefore, the finding of the 1st appellate Court that the 1st defendant is not treated as a daughter of the deceased is not correct and the finding of the trial Court has to be accepted. So far as the failure to prove the execution of Ex.B.1 as found by the appellate Court is concerned, when the executant himself admits the execution, there is no need for calling of any other attestors to prove the same. Therefore, it cannot but be held that treating the 1st defendant as a daughter of late K.V.G. Murthy executed the registered gift deed and the registered gift deed is in the custody of the 1st defendant and it was produced. The law is also very well settled that the delivery of possession contemplated under Section 123 of the Act is as the property is capable of and the custody of the original document with the 1st defendant is an acceptance of the same.
14. However, it is the contention of the learned counsel for the respondent that what was conveyed under the gift deed Ex.B.1 is a future interest and there is no delivery of possession of the property and as such, the gift is not valid. Before considering this aspect, it is to be made clear that it is not the case of the plaintiff that the gift was onerous or that there was any contemporious agreement with a condition to maintain the deceased and failure of which, the donor has got a right to cancel the same. In spite of the plea of the gift set up by the 1st defendant, though during trial the documents are produced by the plaintiff, no plea as to the contingencies of cancellation of the gift deed was pleaded. Placing reliance on Ex.A.14 and also Ex.A.2, it was sought to be contended that it was a onerous gift and as the 1st defendant failed to maintain the donor, the gift was validly cancelled under Ex.A.2.
15. Therefore, in view of the above circumstances, the question to be considered is whether delivery of possession of the property is essential to make the gift valid. Strong reliance is placed by the learned counsel for the respondent on a decision reported in Naramadaben Maganlal Thakker Vs. Pranjivandas Maganlal Thakker and others1, whereunder in the particular facts and circumstances of the case, where there was said to be a contemporious agreement for maintenance and the breach of such obligation was taken as a right to cancel the gift and upheld the cancellation deed. Some parlance is sought to be drawn from the facts in that case and in this case. But, however, there is no pleading or evidence on record for the reasons of cancellation of the gift or about any contemporious agreement, which was not found in Ex.B.1. In fact, in the above judgment in para No.5 the essentials of the gift are mentioned and in para No.6 the acceptance is also mentioned, which are as follows:
"5. Section 122 of the Transfer of Property Act, 1882 (for short, "the TP Act") defines 'gift' to mean the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
6. Acceptance by or on behalf of the donee must be made during the lifetime of the donor and while he is still capable of giving".
In the next para, it was observed that -
"It would thus be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete".
16. But, in fact, if the entire judgment is read and keeping in view the essentials in para Nos.5 and 6 referred above, it cannot be said that the Court was laying the law that possession of the property is essential for making a gift valid. Therefore, relying on this decision, the learned counsel for the respondent cannot advance much argument and in that case possession was delivered and it was referred by the Court. In this connection, it is useful to refer to the judgment of the Hon'ble Supreme Court reported in Asokan Vs. Lakshmikutty and others2, whereunder the conditions of a valid gift have been specifically mentioned, as follows:
"13. We have noticed the terms of the deeds of gift. Ex facie, they are not onerous in nature. The definition of "gift" contained in Section 122 of the Transfer of Property Act provides that the essential elements thereof are:
(i) the absence of consideration;
(ii) the donor;
(iii) the donee;
(iv) the subject-matter;
(v) the transfer; and
(vi) the acceptance.
14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the done also raises a presumption of acceptance".
17. In fact, Section itself is very clear and it never postulates deliver of possession of the property as a condition precedent. The law is also well settled a gift of vested reminder can be validly made keeping life interest to the donor.
18. The learned counsel for the respondent has relied on several decisions about marking of the document and its proof to substantiate his contention that the gift deed is not proved. As already stated, the donor himself has admitted the execution of the gift deed and consequently, there cannot be said to be any lacunae in proving the gift deed.
19. As stated above, under Section 126 of the Act, if a gift is to be revoked or suspended, there should be a right reserved. In fact, the evidence of PW.1, who is the plaintiff in the suit, only shows that the donor has executed the gift deed in favour of defendant No.1 with the hope that she will look after him till his death. As defendant No.1 was not looking after him, the settlement deed was cancelled. Therefore, it is a clear admission of a valid execution of the gift deed Ex.B.1 and no other proof is required. So far as the right of the deceased to cancel the gift deed for failure to maintain or look after the donor is concerned, the evidence of PW.1 does not show that at the time of execution of Ex.B.1, there was such an understanding between the donor and the 1st defendant. In the absence of such agreement, Section 126 of the Act cannot be relied upon when there is no right reserved or understanding entered into between the donor and donee. Therefore, the decision 1st referred supra cannot be pressed into for the benefit of the respondent herein. In fact, the law on this aspect is very clear and the Courts have repeatedly held a settlement deed once executed cannot be cancelled. In this connection, it is useful to refer to a decision reported in Namburi Basava Subrahmanyam Vs. Alapati Hymavathi and others3, wherein their lordships after considering the interpretation of the document as a Will or a settlement deed found that the document was a settlement deed creating vested reminder and the said settlement deed subsequently cannot be cancelled by bequeathing the same property in favour of other. In a decision reported in M.Venkatasubbaiah Vs. M.Subbamma and others4, it was held that-
"A gift subject to the condition that the donee should maintain the donor cannot be revoked under S.126 for failure of the donee to maintain the donor firstly for the reason that there is no agreement between the parties that the gift should be either suspended or revoked; and secondly this should not depend on the will of the donor. Again, the failure of the donee to maintain the donor as undertaken by him in the document is not a contingency which could defeat the gift. All that could be said is that the default of the donee in that behalf amounts to want of consideration. Section 126 itself provides against the revocation of a document of gift for the failure of consideration. If the donee does not maintain the donor as agreed to by him, the latter could take proper steps to recover maintenance etc. It is not open to a settler to revoke a settlement at his will and pleasure and he has to get it set aside in a Court of law by putting forward such pleas as bear on the invalidity of gift deed".
20. The learned counsel for the appellants tried to contend that "gift" under Section 122 of the Act, "gift settlement" are different and therefore the "gift settlement" can be cancelled. This argument is fallacious. 'Gift' is defined under the Transfer of Property Act, 1882, whereas 'settlement' is not defined and it is only under the Indian Stamp Act, 1899. The word "settlement" is defined under Section 2(24) of the Indian Stamp Act, 1899, which reads as under:-
"Settlement":- "Settlement" means any non-testamentary disposition, in writing, of movable or immovable property [whether by way of declaration of trust or otherwise] made-
(a) in consideration of marriage;
(b) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him; or
(c) for any religious or charitable purpose;
and includes an agreement in writing to make such a disposition where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition);
Therefore, "settlement" referred under the Stamp Act, is of different nature and it can be a family settlement or gift settlement. Sub-clause (b) of the above definition clearly includes a gift. It is only a quantum of stamp duty that makes a difference with regard to gift settlement and other settlements. If the document satisfies all the requirements of the definition of a "gift", then it can only be a gift settlement. Therefore, there cannot be much distinction and the judgment of the Supreme Court in Namburi Basava Subrahmanyam's case(3rd supra) makes the law very clear.
21. Therefore, in view of the above circumstances, it has to be held that the judgment and decree passed by the Court below is against the law and the gift deed Ex.B.1 cannot be cancelled a.nd the rights of the 1st defendant cannot be denied. When her husband was examined as a witness, her non-examination is not fatal and accordingly, the judgments are liable to be set aside.
22. Accordingly, the Second Appeal is allowed dismissing the suit of the plaintiff. Each party do bear their own costs. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.
_______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:15.11.2012