Bangalore District Court
Kapaleshwar Sheshadri vs Jagan M Seshadri on 3 January, 2022
1 O.S.No.26776/2009
Govt. Of Katakana
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
Title sheet for AT MAYOHALL UNIT, (CCH-29) BANGALORE.
Judgment in suits
(R.P.91)
Present: Sri. K.M. Rajashekar, B.Sc., LL.M.,
Dated: This the 3rd day of January 2022
Original suit No.26776/2009
Plaintiffs:- 1. Kapaleshwar Sheshadri,
S/o Sri. Jagan M Sheshadri,
Aged about 23 years,
2. Sashwat Seshadri,
S/o Sri. Jagan M Seshadri,
Aged about 19 years,
Both Residing at:
#7, 8, Signature Apartment,
4th Floor, No.56/42,
Kamraj Avenue,
1st Street, Kasturibha Nagar,
Adyar, Chennai-600020.
(By Pleader : Sri. Pradeep C.S Adv., for P.1 and
Sri. Vinod Kumar B.N Adv., for P.2)
V/s
2 O.S.No.26776/2009
Defendant: Jagan M Seshadri,
S/o Late Capt. T.M. Seshadri,
Aged about 60 years,
R/at: # 34, Pillayar Koil Street,
Ashok Nagar, Bangalore-560 025.
(Pleader by: Sri. J. Ravindran Advocate)
Date of Institution of the suit 20.8.2009
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Declaration
injunction, etc.)
Date of the commencement of 28.1.2012
recording of the Evidence
Date on which the Judgment was 3.1.2022
pronounced
Year/s Month/s Days
Total duration 12 04 13
JUDGMENT
The present suit is filed by the Plaintiffs against the Defendant to declare that the Gift Deed executed by the Defendant on 24.1.2003 in favour of the Plaintiffs is valid and binding on the Defendant, consequentially restrain the Defendant from alienating or encumbering the Suit 3 O.S.No.26776/2009 Property in any manner and to declare that the Cancellation Deed dtd: 19.8.2003 unilaterally executed by the Defendant is inoperative, invalid and unenforceable under law and for costs of the suit.
2. The case of the Plaintiffs is that the Plaintiffs are the legitimate children of the Defendant and his wife Mrs.Janaki Manohari. The Defendant i.e., their father had executed Gift Deed dtd: 24.1.2003 with regard to the Suit Schedule Property. The Defendant had transferred the title and the ownership of the property in favour of the Plaintiffs for their benefit alone and have been put in possession and enjoyment of the Suit Property as its absolute owners. In the meanwhile, misunderstanding arose between the Defendant and his wife i.e., the mother of the Plaintiffs in the year 2003 and they got separated themselves by getting divorce on 12.6.2003. The Defendant has not come forward to hand over the original Gift Deed dtd: 24.1.2003. Thereafter, when the Plaintiffs obtained certified copy of Gift Deed 4 O.S.No.26776/2009 dtd:24.1.2003 and also the Encumbrance Certificate dtd:26.9.2008 for the Suit Property in order to get the revenue records transferred in their name and also to improve the Suit Property by putting up fence and other things. They came to know that the Defendant had created a document as a unilateral Cancellation Deed dtd: 19.8.2003 and thereby canceled the Deed of Gift dtd:24.1.2003 in favour of the Plaintiffs. The Defendant/Donor has got no right to revoke the said Deed of Gift as the same was completed in all respects, further the possession of property was handed over on the same day in favour of the Plaintiffs. The Deed of Gift was also accepted by the Plaintiffs. Once the Deed of Gift was completed, it cannot be revoked thereafter for any reasons. Hence, prayed to decree the suit.
3. The Defendant in his written statement specially denied the plaint averments and contended that he is the native of Bangalore, he joined the Indian Police Service in the year 1975 and was allotted to Tamil Nadu Cadre. 5 O.S.No.26776/2009 Though the Defendant worked in Tamil Nadu, the rest of the family and friends lived in Bangalore. In the year 1985, the Plaintiff was allotted the Suit Residential Site in HRBR Layout on 24.5.1985 by the Bangalore Development Authority. The Sale Deed was executed by the Authorities on 27.7.1996. The site was taken possession by the Plaintiff and it is lying vacant till date. In the year 2000, the Defendant was forced to leave the marital home at Chennai because of the untold cruelty meted out to him by the Plaintiff's mother and her mother Mrs. Ramadevi. After the Defendant left the marital home, the common friends and well-wishers made several attempts to strike a rapprochement, but all the efforts failed. They got filed divorce petition in O.P.No.2128/2002 on 29.11.2002 and on the same date they demanded for an amount of Rs.30 lakhs as one time settlement. On 10.1.2003, the Hon'ble Judge, referred the Plaintiffs' mother and Defendant to the Lok-Adalath. The mother of the Plaintiffs agreed for divorce on mutual consent provided the Defendant made a one time payment of 6 O.S.No.26776/2009 Rs.30 lakhs. The Defendant expressed his inability to pay Rs.30 lakhs. Then the Plaintiffs' mother gave a proposal to part with the Suit Schedule site. The Defendant gave a counter proposal for visiting rights. It was recorded by the Lok-Adalath that the Defendant has to make a settlement of the Suit Schedule site and the Plaintiffs mother should send the Plaintiffs to visit the Defendant periodically and also spend half of their vacation period with the Defendant. The Defendant went over to Bangalore and executed the Suit Gift Deed dtd: 24.1.2003 in the name of Plaintiffs, without mentioning the condition of visiting rights. The Plaintiffs mother never allowed the Plaintiffs to visit the Defendant, even after execution of the Gift Deed and they violated the conditions recorded before th Lok- Adalath. On 10.4.2003 the Defendant obtained order in I.A.No.2799/2002 in O.P.No.2128/2002 to meet the Plaintiffs for one hour every Sunday in the Kapleeswara Temple at Mylapore, Channai. Thereafter, the Family Court Judge has specifically recorded the categorical statements made by both the Plaintiffs that they do not 7 O.S.No.26776/2009 want to meet or see the Defendant at all and they are unwilling to go with the Defendant even for a few hours in week. Ever since, the divorce decree was passed on 12.6.2003, the Plaintiffs have not made any attempts to visit or contact the Defendant. In the above circumstances, the Defendant was constrained to cancel the Gift Deed so as to remove the restriction of alienation of his property and enable the Defendant to construct dwelling units by raising development loan for his peaceful living since he retired from service. For constructing the apartments, the Defendant has to raise a loan, and therefore he cancelled the Gift Deed dtd:24.1.2003 on 19.8.2003. Hence the suit is liable to be dismissed.
4. Based on the aforesaid pleadings this Court has framed the following issues:-
1. Whether the Plaintiffs prove that the Gift Deed dated 24.01.2003 executed in favour of Plaintiffs by the Defendant is valid, binding on Defendant?8 O.S.No.26776/2009
2. Whether the Plaintiff proves interference by Defendant?
3. Whether the Plaintiffs are entitle for Permanent Injunction?
4. Whether the Plaintiffs prove that the canceling deed dated 19.08.2003 executed by Defendant is unilateral, the same is invalid, unenforceable?
5. Whether suit is valued properly and CF paid is sufficient?
6. Whether suit is time barred?
7. What Order or Decree?
5. To prove the case of the Plaintiffs, the Plaintiff No.2 got himself examined as P.W.1 and got marked documents as per Ex.P.1 to Ex.P.7. The Defendant got examined as DW.1 and got marked Ex.D.1 to Ex.D.6 documents and closed his side.
6. Heard both the sides.
7. My answers to the above issues are as follows:- 9 O.S.No.26776/2009
Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Issue No.3 : In the Affirmative Issue No.4 : In the Affirmative Issue No.5 : In the Negative.
Issue No.6 : In the Negative.
Issue No.7 : As per final orders for the following:
REASONS
8. Issues No.1 and 4:- All these issues are inter- related, hence, answered in common, in order to avoid repetition of facts.
9. The nutshell of the case of the Plaintiffs is that they are the children of the Defendant who gifted Suit Schedule Property under Gift Deed dtd: 24.1.2003 transferred the title and the ownership, possession in favor of the plaintiff. But misunderstanding arose between the Defendant and his wife Janaki Manohari, they got separated by getting divorce on 12.6.2003. Later the Defendant had unilaterally Cancelled the Deed 10 O.S.No.26776/2009 of Gift dtd: 24.1.2003 through Deed dtd: 19.8.2003. The plaintiffs contention is that Defendant/Donor has got no right to revoke the Gift as the same was completed in all respects and was also accepted by the Plaintiffs. Once the Deed of Gift was completed, it cannot be revoked thereafter for any reasons etc. To prove the case of the Plaintiff, the Plaintiff No.2 got himself examined as P.W.1 and got marked documents as per Ex.P.1 to Ex.P.7. Ex.P.1 & Ex.P.2 are the Birth Certificates of the Plaintiffs. Ex.P.3 is the Copy of Gift Deed dtd: 24.1.2003. Ex.P.4 is the Lease Cum Sale Agreement dtd: 26.7.19969. Ex.P.5 & Ex.P.6 are the Encumbrance Certificates. Ex.P.7 is the Cancellation of Gift Deed.
10. On the other hand, the Defendant do admits the relationship and execution of Gift Deed in favor of the Plaintiff, his stand is that in the divorce petition in O.P.No.2128/2002, before Lok-Adalath, the mother of the Plaintiffs agreed for divorce on mutual consent on payment of Rs.30 lakhs. The Defendant expressed his 11 O.S.No.26776/2009 inability to pay Rs.30 lakhs. It was agreed before the Lok-Adalath that the Defendant has to make a settlement of the Suit Schedule site and the Plaintiffs mother should send the Plaintiffs to visit the Defendant periodically and also spend half of their vacation period with the Defendant. The Defendant alleges that even after execution of the Gift Deed the Plaintiffs violated the conditions recorded before the Lok-Adalath and stated before the Family Court Judge they do not want to meet or see the Defendant at all and they are unwilling to go with the Defendant even for a few hours in week. In the above circumstances, he canceled the Gift Deed dtd:24.1.2003 on 19.8.2003 etc. To prove the case of the Defendant, he got examined as DW.1 and got marked Ex.D.1 to Ex.D.6 documents. Ex.D.1 is the Order of Lok- Adalath dtd: 10.1.2013 of the Family Court, Chennai. Ex.D.2 is the Lease Cum Sale Agreement dtd: 26.7.1996 with BDA. Ex.D.3 is the BDA Letter dtd: 9.9.2011. Ex.D.4 is the Proceedings of the Family Court dtd:10.4.2013 Chennai. Ex.D.5 is the Sale Deed dtd: 14.2.2011 and 12 O.S.No.26776/2009 Ex.D.6 is the Tax Paid Receipt.
11. Before taking the case of the parties on merits, It is useful to have a look at the categorically admission of the Defendant in his cross examination which is self explanatory and ease out the burden of the Court. It is to be noted that the Defendant is not an ordinary man, rather he is the practicing Advocate who is well conversant with the law much less the effect of admission of facts. It reads as under:
It is true that in 2003 my first son Kapaleshwar Sheshadri was aged 17 years. It is true that my second son Sashwat was aged 12 years in the year 2003. It is true that signature now shown to me on Ex.P.3 is my signature and it is marked as Ex.P.3(a). All the three singnatures on Ex.P.3 are my signatures. It is true that this Gift Deed was executed by me for the suit property. It is true that in the year 2003 my children were minors and I acted as a 13 O.S.No.26776/2009 guardian and donee and accepted the Gift Deed o behalf of my minor children. It is not correct to suggest that after executing the Gift Deed, I had no right, title to the Suit Property. I say that since I was the natural guardian for the minor children, I had right over the Suit Property till they attain majority. It is true that in Ex.P.3 it is mentioned that I had no title and right over the Suit Property. I say that those wordings used in Ex.P.3 was a routine format. It is true that after execution of Ex.P.3 Gift Deed, I was in possession of Gift Deed Ex.P.3.
It is true that it was a irrevocable Gift Deed. I say that it was only a format and it was not a valid Gift Deed at all. It is not correct to suggest that I have not produced any document before the Court to show that Plaintiffs after attaining majority, not accepted 14 O.S.No.26776/2009 the gift. I say that Khatha Extract and Tax Paid Receipts are the documents shows that the Plaintiffs have not accepted the gift.
It is true that the Plaintiffs have not written any letter to me stating that they have not accepted the gift. I say that they have also not written any letter stating that they have accepted the gift. It is not correct to suggest that after 24.1.2003, the Plaintiffs are in possession of the Suit Property. It is true that I had filed application seeking custody of Plaintiffs before the Family Court.
12. The Learned Counsel for the Plaintiffs vehemently argued that the Defendant herein is the donor cannot revoke the Gift for the simple reason that, he has lost every right over the Suit Schedule Property once the Gift is accepted. The Learned Counsel added that, in this case the Defendant as a donee has accepted 15 O.S.No.26776/2009 the Gift on behalf of minor children and hence the Gift process is totally completed and the gift is accepted as demanded by law. Hence, once, the Gift is accepted, the donor has lost every right over the Gifted Property. Hence, at no stretch of imagination he can revoke the Gift as he has no title or interest over the Gifted Property.
13. On the other hand, the Learned Counsel for the Defendant vehemently argued that, in the divorce petition in O.P.No.2128/2002 on 29.11.2002 and on the same date they demanded for an amount of Rs.30 lakhs as one time settlement. On 10.1.2003, the Hon'ble Judge, referred the Plaintiffs' mother and Defendant to the Lok- Adalath. The mother of the Plaintiffs agreed for divorce on mutual consent provided the Defendant made a one time payment of Rs.30 lakhs. The Defendant expressed his inability to pay Rs.30 lakhs. Then the Plaintiffs' mother gave a proposal to part with the Suit Schedule site. The Defendant gave a counter proposal for visiting rights. It was recorded by the Lok-Adalath that the Defendant has 16 O.S.No.26776/2009 to make a settlement of the Suit Schedule site and the Plaintiffs' mother should send the Plaintiffs to visit the Defendant periodically and also spend half of their vacation period with the Defendant. The Defendant went over to Bangalore and executed the Suit Gift Deed dtd:24.1.2003 in the name of Plaintiffs, without mentioning the condition of visiting rights. The Plaintiffs mother never allowed the Plaintiffs to visit the Defendant, even after execution of the Gift Deed and they violated the conditions recorded before th Lok-Adalath. On 10.4.2003 the Defendant obtained order in I.A.No.2799/2002 in O.P.No.2128/2002 to meet the Plaintiffs for one hour every Sunday in the Kapleeswara Temple at Mylapore, Channai. Thereafter, the Family Court Judge has specifically recorded the categorical statements made by both the Plaintiffs that they do not want to meet or see the Defendant at all and they are unwilling to go with the Defendant even for a few hours in week. Ever since, the divorce decree was passed on 12.6.2003, the Plaintiffs have not made any attempts to 17 O.S.No.26776/2009 visit or contact the Defendant. In the above circumstances, the Defendant was constrained to cancel the Gift Deed so as to remove the restriction of alienation of his property and enable the Defendant to construct dwelling units by raising development loan for his peaceful living since he retired from service. For constructing the apartments the Defendant has to raise a loan and therefore he cancelled the Gift Deed dtd:24.1.2003 on 19.8.2003 etc.
14. At this stage, it is useful to note here that gifting the Suit Schedule Property by the Defendant as a donor in favour of the Plaintiffs and accepted it donee on their behalf is not in dispute. Even though, the Defendant contended that since the Plaintiffs have not complied the condition accepted in consent divorce, he has got every right to revoke the gift etc. But, as rightly argued by the Learned Counsel for the Plaintiff the question now open for consideration is whether the donee has got right to revoke the gift unilaterally. As mentioned above, the 18 O.S.No.26776/2009 Defendant himself being the donee has accepted the Gift, it is seen that the Defendant himself being the donor knowing fully well about all the consequences has accepted the gift on behalf of the Plaintiffs and gift is totally completed. This fact is categorically admitted by the Defendant in his cross-examination as mentioned above. However, he claims that it is for the Plaintiffs to prove that the Gift is completed etc. But as mentioned above, the Plaintiffs were minors at the time of acceptance of gift. Hence, the transaction has to be viewed always favoring to the minor children. Now, the question is whether the Defendant has got any right to cancel the Gift unilaterally either as a donor or as a donee? As rightly argued by the Learned Counsel for the Plaintiff, Ex.P.3 Gift Deed does not impose any condition while gifting the Suit Schedule Property. The wordings are very plain and clear. The wordings in the Gift Deed reads thus:
"Deed of Gift of Property in consideration of Natural Love' 19 O.S.No.26776/2009 This Deed of Gift made this 24th day of January 2003 between Shri. Jagan M. Seshadri S/o Late Capt. T.M. Seshadri permanent resident of Bangalore at # 34, Pillayar Koil Street, Ashok Nagar, Bangalore - 560 025, presently working in Chennai (hereinafter called the 'DONOR'), of the one part and Shri. Kapaleswar Seshadri S/o Smt. Janaki Manohari and Shri Jagan M. Sheshadri, a minor aged 17 years and Shri. Sashwat Seshadri S/o Smt. Janaki Manohari and Shri Jagan M. Seshadri, a minor aged about 12 years, (hereinafter called as ('DONEES'), both represented by father and natural guardian, Shri. Jagan M. Seshadri, of the other part, Witnesses, that in consideration of natural love and affection which the 'DONOR' had and still has for the 'DONEES', the latter being his sons, the 'DONOR' doeth hereby grant, convey, transfer, gift and assure unto and to the use of the 'DONEES' freely and voluntarily, his only immovable property, mentioned and described in the schedule hereto, in two equal shares, and hereinafter referred to as the said property and delivered possession of the same unto and in favour of the 'DONEES TO HAVE AND TO HOLD' develop, improve the same for their sole use and benefit, absolutely and to enjoy without the power of alienation during their respective life time and thereafter their heirs are entitled 20 O.S.No.26776/2009 to have absolute right, title and interest over their respective shares.
That the 'DONOR' declares that this schedule property was acquired through the allotment by the Bangalore Development Authority vide its allotment order No:
913/HRBR-I/85-86 dated 24th May 1985 for a price of Rs.75,000/- (Rupees Seventy Five Thousand only) and registered in the office of the Sub-Registrar, K.R.Puram, through a Sale Deed bearing No.1337/96-97, on 26th July 1996.
That the 'DONOR' declares that he would have no right, claim, title and interest whatsoever over the schedule property from this day.
That the 'DONOR' hereby puts the 'DONEES' in their possession of the schedule property.
That 'DONEES' are entitled to possess, develop, improve and enjoy the schedule property.
THE SCHEDULE ABOVE REFERRED
TO
Residential site bearing No. 5 C-913,
HRBR Layout, 1st Block, allotted by Bangalore Development Authority measuring 15.25 meters from East to West and 24.4 meters from North 21 O.S.No.26776/2009 to South with a total area of 372.1 Sq.Meters together with all rights, Appurtenances, whatsoever whether underneath or above the surface and bounded as follows:
On the East by : Site No.5 C-915.
On the West by : Site No.5 C-911.
On the North by :Site No.5 AC-916.
On the South by : 5th Cross.
IN WITNESS WHEREOF the 'DONOR' has executed these presents and the 'DONEE' has accepted the gift on the day month and year first above written.
Signed, sealed and delivered by Sri. Jagan M. Seshadri The 'DONOR' in the presence of: Witnesses - T.K. Gajendran."
15. The plain reading of Gift that itself makes very clear that absolutely there were no conditions to be complied by the minor children while accepting the Gift. Even though the Defendant contended that he has got every right to cancel the Gift for non-compliance etc. But, the Judgment relief by the Plaintiffs rendered by the Hon'ble Supreme Court of India, in AIR 2004 SC 1257 :
2004 AIR SCW 14 between K. Balakrishnan V/s K. 22 O.S.No.26776/2009 Kamalam and others, it is clearly mandated that:
(B) Transfer of Property Act (4 of
1882), S.122, S.127 - Contract Act (9 of
1872), S.11 - Gift in favour of minor - Not prohibited under T.P. Act - Minor though disqualified from entering into contract, is capable of receiving property.
(C) Transfer of Property Act (4 of 1882), S.122, S.126, S.127 - Gift in favour of minor -
Implied acceptance of - Instance - Mother, natural guardian, gifted property to minor - Possession and right of enjoyment, however, retained by donor-mother- Owenrship of property by minor can be presumed by silent acceptance
- Particularly, when minor is educated boy of 16 years; had knowledge of execution of gift - Non- delivery of possession of gifted property, non- exercise of rights of ownership over it and failure to get property mutated in his favour on attaining majority - Are not circumstances negativing presumption of implied acceptance of gift by minor - Gift not revocable on account non-acceptance by minor.
Where a gift is made by parent to a child, there is a presumption of acceptance of the gift by the donee.
Non-mention of the fact of non-acceptance 23 O.S.No.26776/2009 of the gift by the donee in the cancellation deed reinforces inference that the donor-mother herself, at the time of cancellation of the gift never assumed that the gift was not accepted and, therefore, it is revocable.
16. In another Judgment of Hon'ble Supreme Court of India between K.Balakrishnan vs K.Kamalam. & Ors it is mandated that:
The only substantial question of law involved in this appeal is whether the appellant, who was minor on the date of execution of the gift-deed dated 24.9.1945, can be held to have legally accepted the property in suit gifted to him and the said gift-deed was irrevocable. The appellant shall hereinafter be described as 'the donee' and his deceased mother as the 'doner.' ................... To us, it appears that the donor had very clearly transferred to the donees ownership and title in respect of her 1/8th share in properties. It was open to the donor to transfer by gift title and ownership in the property and at the same time reserve its possession and enjoyment to herself during her lifetime. There is no prohibition in law that ownership in property cannot be gifted without its possession and right of enjoyment. ...................... The High Court was, 24 O.S.No.26776/2009 therefore, apparently wrong in coming to the conclusion that the gift-deed was ineffectual merely because the donor had reserved to herself the possession and enjoyment of the property gifted. The second question which has been posed by the High Court and answered against the donor is regarding acceptance of the gift and its revocability........................The position in law, thus, under the Transfer of Property Act read with the Indian Contract Act is that "the acquisition of property being generally beneficial, a child can take property in any manner whatsoever either under intestacy or by Will or by purchase or gift or other assurance inter vivos, except where it is clearly to his prejudice to do so. A gift inter- vivos to a child cannot be revoked. There is a presumption in favour of the validity of a gift of a parent or a grandparent to a child, if it is complete. When a gift is made to a child, generally there is presumption of its acceptance because express acceptance in his case is not possible and only an implied acceptance can be excepted. Section 122 covers the case of a minor donee being a person under legal disability. The section, therefore, employs the expression - 'accepted by or on behalf of donee'. As we have seen above, Section 127 clearly indicates competence of a minor donee to accept the gift, if he is capable of so doing. Such acceptance of 25 O.S.No.26776/2009 a gift can be made by himself or on his behalf by someone else.
.....................Where a gift is made in favour of a child of the donor, who is the guardian of the child, the acceptance of gift can be presumed to have been made by him or on his behalf without any overt act signifying acceptance by the minor. In the instant case, mother who is the natural guardian gifted the property to her minor son in the year 1945. The donee was an educated lad of 16 years of age, capable of understanding and living jointly with the donor. Knowledge of the execution of the gift would have been derived in normal circumstances, by the minor, being beneficiary, sooner or later after its execution.
Knowledge of gift deed to both the parents as natural guardians and the donee is sufficient to indicate acceptance of gift by the minor himself or on his behalf by the parents. The gift deed was revoked by the mother much after its execution as late as in the year 1970. By that time, the donee had become major and he never repudiated the gift. We have examined the terms of the gift-deed. Non-delivery of possession of the gifted property, non-exercise of any rights of ownership over it, and failure by the donee, on attaining majority, in getting his name mutated in official records are not circumstances negativing the presumption of acceptance by the 26 O.S.No.26776/2009 minor during his minority or on his attaining majority. The donor had reserved to herself, under the terms of gift deed, the right to manage, possess and enjoy the property during her life time. Since the possession and enjoyment of the property including management of the school were retained by the donor during her life time, the acceptance of the ownership of the property gifted could be by silent acceptance. Such acceptance is confirmed by its non- repudiation by his parents and by him on attaining majority. As is the evidence on record, mother - the donor was herself the natural guardian of the minor donee. The father was also a guardian and had knowledge of the gift. He also did not repudiate the gift on behalf of the donee. The donee himself was of 16 years of age and could understand the nature of beneficial interest conferred on him. He also had knowledge of the gift-deed and on attaining majority did not repudiate it. These are all circumstances which reasonably give rise to an inference, if not of express but implied acceptance of the gift. Where a gift is made by parent to a child, there is a presumption of acceptance of the gift by the donee. This presumption of acceptance is founded on human nature. 'A man may be fairly presumed to assent to that to which he in all probability would assent if the opportunity of 27 O.S.No.26776/2009 doing so were given to him.
In the case of Sundar Bai vs. Anandi Lal [AIR 1983 Allahabad 23], the donee was a child and in the care of the donor himself. The High Court held that in such circumstance, express acceptance could not be insisted upon. In the case of Ponnuchami Servai vs. Balasubramanian [AIR 1982 Madras 281], the father himself was the donor and executed a gift deed in favour of his minor son. The parties continued to stay together in the said property even after the gift. In these circumstances it was held that the gift in favour of the minor would be deemed to have been accepted as the father himself was the guardian and had himself executed the gift- deed.
There is one more relevant fact in the present case. In the judgment of the courts below there is a mention that under the contents of the deed of cancellation dated 28.3.1970, there is no mention by the donor of the gift having not been accepted by the donee although it is said therein that 'none of the stipulations in the said gift have come into force.' But she did not revoke the gift deed by specifically mentioning in the recital of the cancellation deed that the gift was not complete due to non-acceptance and she was therefore, making some other arrangement for succession to her property after her death. 28 O.S.No.26776/2009 In the case of Vannathi Valappil Janaki vs. Puthiya Purayil Paru [AIR 1986 Kerala 110], the donors were real uncles of the donees who were minor children. Subsequently the donors revoked the gift on the ground that the donees were not bestowing proper love and affection on the donors which might endanger their future safety. The High Court of Allahabad on these facts inferred and came to the conclusion that the gift deed in favour of the minor children was definitely accepted or else there would have been mention in the revocation deed that the revocation was necessitated because the children no longer bestowed love and care on the donors. The relevant observations of the High Court deserve to be quoted:-
"When the gift of immovable property is not onerous, only slight evidence is sufficient for establishing the fact of acceptance by the donee. When it is shown that the donee had knowledge of the gift it is only normal to assume that the donee had accepted the gift because the acceptance would only promote his own interest. Mere silence may sometimes be indicative of acceptance provided it is shown that the donee knew about the gift. No express acceptance is necessary for completing a gift. Where the donors who were the real uncles of the donees stated in the deed of revocation that to allow the 29 O.S.No.26776/2009 continued existence of the gift would endanger their future safety as the donees were not bestowing proper love and affection towards the donors which was expected by the donors from the donees as a recompense for the gift, that statement is clear indication that the gift had been accepted by the donees."
In the instant case, non-mention of the fact of non acceptance of the gift by the donee in the cancellation deed reinforces our inference that the donor mother herself, at the time of cancellation of the gift, never assumed that the gift was not accepted and therefore it is revocable.
As seen above, in the case of a minor donee receiving a gift from her parents, no express acceptance can be expected and is possible, and acceptance can be implied even by mere silence or such conduct of the minor donee and his other natural guardian as not to indicate any disapproval or repudiation of it.
In our considered opinion therefore, the trial court and the High Court were wrong in coming to the conclusion that there was no valid acceptance of the gift by the minor donee. Consequently, conclusion has to follow that the gift having been duly accepted in law and thus being complete, it was irrevocable under Section 126 of the Transfer of Property Act. Section 126 30 O.S.No.26776/2009 prohibits revocation of a validly executed gift except in circumstances mentioned therein. The gift was executed in 1945. It remained in force for about 25 years during which time the donee had attained majority and had not repudiated the same. It was, therefore, not competent for the donor to have cancelled the gift and executed a Will in relation to the property.
17. In addition to it, their Lordship of Hon'ble Supreme Court of India in (1993) 4 SCC 38 between Panni Lal V/s Rajinder Singh and Another wherein it is held that:
The Hindu Minority and Guardianship Act, 1956: Section 8--Intent of--Whether protects the property of a minor from the depredations of the parents even. Words and Phrases--Voidable and Void--Sale of the property of the minor by his mother without permission of the court and attested by the father Whether voidable or void. Sale of the property of the minor by his mother and attested by his father-- Interpretation of--Whether amounts to a sale by the natural guardian of the minor for legal necessity and benefit of the 31 O.S.No.26776/2009 minor.
HELD : 1. The provisions of section 8
of the Hindu Minority and Guardianship
Act, 1956 are devised to fully protect the
property (.if a minor, even from the
depredations of his parents. Section 8
empowers only the legal guardian to
alienate a minor's immovable property
provided it is for the necessity or benefit
of the minor or his estate and it further
requires that such alienation shall be
effected after the permission of the Court has been obtained." 2. It was difficult, therefore, to hold that the sale, by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it, was voidable, not void. (592-G) 3. The attestation of the sale deed by the father showed that he was very much existent and in the picture. If he was, then the sale by the mother, notwithstanding the fact that the father attested it, cannot he held to be sale by the father and natural guardian satisfying the requirements of section 8. (592-E) Jijabai Vithalrao Gajre v. Pathankhan & Ors. AIR 1971 SC 32 O.S.No.26776/2009
18. Looking to the preposition of law laid down by their Lordship of Apex Court it clearly indicates that the above principles squarely applicable to the case on hand.
19. Apart from that Section 8 of the Hindu Minority and Guardianship Act 1956 pass on powers under Section 8(2) of the Act which reads as follows:
POWERS OF NATURAL GUARDIAN -
Section 8. Powers of natural guardian - (1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the court,--
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term 33 O.S.No.26776/2009 extending more than one year beyond the date on which the minor will attain majority. (3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in subsection (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890 (8 of 1890), shall apply to and in respect of an application for obtaining the permission of the court under sub-section (2) in all respects as if it were an application for obtaining the permission of the court under section 29 of that Act, and in particular--
(a) proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4A thereof;
(b) the court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal shall lie from an order of the court refusing permission to the natural guardian to do any of the Acts mentioned in 34 O.S.No.26776/2009 sub-section (2) of this section to the court to which appeals ordinarily lie from the decisions of that court.
(6) In this section, "Court" means the city civil court or a district court or a court empowered under section 4A of the Guardians and Wards Act, 1890 (8 of 1890), within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such court, means the court within the local limits of whose jurisdiction any portion of the property is situate.
20. Upon going through materials available on record, the admitted facts of this case indicates that Plaintiffs are none other than the children of the Defendant herein born through his wife Mrs. Janaki Manohari. It is an undisputed fact that the Defendant and his wife i.e., the mother of the Plaintiffs got divorced on 12.6.2003 before the Competent Court. The materials on record indicates that at the time of taking divorce, the matter was before the Lok-Adalath wherein the parties 35 O.S.No.26776/2009 have amicably settled their dispute and the outcome is, the Defendant here has gifted the Suit Schedule Property under Ex.P.3 in favour of the Plaintiffs herein in exchange of his visiting rights. It is interesting here to note that, the Defendant herein himself is the donor and himself accepted the Gift as a minor guardian of the Plaintiffs as donee also. The contents of Ex.P.3 which is an undisputed document makes it clear that the Defendant herein as a donor with his free will has gifted the Suit Schedule Property in favour of the Plaintiffs herein, and he himself at the free will and on behalf of the Plaintiffs herein, has accepted the gift voluntarily and received possession on behalf of the minors. Hence, as rightly argued by the Learned Counsel for the Plaintiffs, the Defendant herein acted in dual capacity as donor has parted away with the Suit Schedule Property by executing Ex.P.3. On the other hand, he himself being the minor guardian of Plaintiffs has accepted the gift for and on behalf of the minor children. As mentioned above, the Defendant himself being the donee has accepted the Gift, hence at no 36 O.S.No.26776/2009 stretch of imagination the Defendant has got right to make gain out of any irregularities or lapses committed by him in accepting the gift. As rightly argued by the Learned Counsel for the Plaintiff the Defendant himself being the donor knowing fully well about all the consequences has accepted the gift on behalf of the Plaintiffs and gift is totally completed. This fact is categorically admitted by the Defendant in his cross- examination as mentioned above. However, he claims that it is for the Plaintiffs to prove that the Gift is completed etc. But as mentioned above, the Plaintiffs were minors at the time of acceptance of gift. Hence, the transaction has to be viewed always favoring to the minor children. Now, the question is whether the Defendant has got any right to cancel the Gift unilaterally either as a donor or as a donee? As rightly argued by the Learned Counsel for the Plaintiff, Ex.P.3 Gift Deed does not impose any condition while gifting the Suit Schedule Property. Hence as per the mandates of the Apex Courts referred above the Defendant has no authority to alienate or 37 O.S.No.26776/2009 cancel the Gift Deed except for the benefit of the minor that too only after obtaining the prior permission from the competent Court. Viewed from any angle, I am of the opinion that the Defendant's act of cancelling the Gift Deed is without any authority. Hence Issue No.1 and 4 answered in the Affirmative.
21. Issue No.2 and 3:- It is specifically claimed by the Defendant in his written statement that in order to construct dwelling units by raising development loan for his peaceful living since he retired from service and For constructing the apartments the Defendant has to raise a loan etc, this fact itself clear indication of the Defendant's interference to the Plaintiffs right and possession of the suit property. In view of the discussion made above the Plaintiffs' right needs to be protected to meet the ends of justice. Hence Issue N.2 and 3 answered in the Affirmative
22. Issue No.5 & 6:- Even though the Defendant has contended that the suit is not valued properly and court fee paid is insufficient and suit is barred by time etc. 38 O.S.No.26776/2009 But, during the course of the trial, both these issues were not pressed into service, rather the Defendant makes no efforts to establish that what is the property valuation of the Suit Property. It is the settled principle of law that the valuation of the Suit Property shall be valued based on the plaint averments. I did not find any reason to decent with the plaint valuation. Above all, the Plaintiff No.2 has approached the Court within one year of his attaining majority. Hence, the question of complying limitation does not arise at all. Hence, Issue No.5 and 6 are answered in the Negative.
23. Issue No.7:- In view of the above discussion, I proceed to pass the following:-
ORDER The suit of the Plaintiffs is hereby allowed with no order as to costs.
The Gift Deed executed by the Defendant on
24.1.2003 in favour of the Plaintiffs is valid and binding on the Defendant.
39 O.S.No.26776/2009
The Defendant is restrained from alienating or encumbering the Suit Property in any manner.
The Defendant is directed to hand over the possession of the Suit Property to the Plaintiffs.
The Cancellation Deed dtd: 19.8.2003 unilaterally executed by the Defendant is inoperative, invalid and unenforceable under law.
Draw decree accordingly.
[Dictated to the Stenographer, transcript thereof, corrected, signed and then pronounced by me in the open Court on this the 3rd day of January 2022].
[K.M. Rajashekar], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
SCHEDULE All the part and parcel of the Residential site bearing No.5 C-913, HRBR Layout 1st Block situated at Kalyan Nagar, Bangalore allotted by Bangalore Development Authority measuring 15.25 meters from East to West and 40 O.S.No.26776/2009 24.4 meters from North to South with a total area of 372.1 sq.meters together with all rights, appurtenances, whatsoever whether underneath or above the surface and bounded as follows:
On the East by : Site No.5 C-915.
On the West by : Site No.5 C-911.
On the North by : Site No.5 AC-916.
And On the South by : 5th Cross.
ANNEXURE
1. List of witnesses examined for the Plaintiffs:-
P.W.1 : Shaswath Seshadri.
2. List of documents marked:-
Ex.P. 1&2 : Birth Certificates.
Ex.P. 3 : Copy of Gift Deed dtd: 24.1.2003.
Ex.P. 4 : Lease Cum Sale Agreement
dtd:26.7.19969.
Ex.P. 5&6 : Encumbrance Certificates.
Ex.P. 7 : Cancellation of Gift Deed.
41 O.S.No.26776/2009
3. List of witnesses examined for the Defendant:-
DW.1 : Jagan M Sheshadri.
4. List of documents marked:-
Ex.D. 1 : Adalath dtd: 10.1.2013 of the Family
Court, Chennai.
Ex.D. 2 : Lease Cum Sale Agreement
dtd:26.7.1996 with BDA.
Ex.D. 3 : BDA Letter dtd: 9.9.2011.
Ex.D. 4 : Proceedings of the Family Court
dtd:10.4.2013 Chennai.
Ex.D. 5 : Sale Deed dtd: 14.2.2011.
Ex.D. 6 : Tax Paid Receipt.
[K.M. Rajashekar],
XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
42 O.S.No.26776/2009Judgment pronounced in open court vide separate judgment :-
ORDER The suit of the Plaintiffs is hereby allowed with no order as to costs.
The Gift Deed executed by the Defendant on 24.1.2003 in favour of the Plaintiffs is valid and binding on the Defendant.
The Defendant is restrained from alienating or encumbering the Suit Property in any manner.
The Defendant is directed to hand over the possession of the Suit Property to the Plaintiffs.
The Cancellation Deed dtd: 19.8.2003 unilaterally executed by the Defendant is inoperative, invalid and unenforceable under law.
Draw decree accordingly.
[K.M. Rajashekar], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.