Telangana High Court
P Bharadwaj vs P.Vijaya Kumar on 15 June, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR.JUSTICE G. RADHA RANI
SECOND APPEAL No.215 of 2018
JUDGMENT:
This Second Appeal is filed by the appellant - appellant - plaintiff aggrieved by the judgment and decree dated 14.03.2016 in A.S.No.49 of 2012 on the file of the XIII Additional Chief Judge (FTC), City Civil Court, Hyderabad, confirming the judgment and decree dated 21.11.2011 in O.S.No.3999 of 2008 on the file of the II Junior Civil Judge, City Civil Court, Hyderabad.
2. The parties are hereinafter referred as arrayed before the trial court.
3. The plaintiff filed the suit against the defendants 1 and 2 seeking injunction to restrain them from alienating the suit schedule property. The case of the plaintiff in brief was that the plaintiff and defendants were own brothers and their father late P. Narsinga Rao acquired a land bearing plot No.20/4/B in Sy.No.62, admeasuring 186.01 sq.yds. situated at Ramnagar, Vidyanagar, Hyderabad. Their father purchased the said property after his retirement. Unable to pull up funds for construction of the house over the suit schedule property, he executed a gift deed dated 20.03.1979 in favour of the defendant No.2 with an intention to obtain loan, as the defendant No.2 was a Central 2 Dr.GRR, J sa_215_2018 Government employee. The father of the plaintiff as well as the defendants invested all their savings and constructed the house with the help of the other family members. The house was allotted municipal No.1-9-295/27-7. The plaintiff contended that the said gift deed was only nominal as it was executed only for the purpose of getting loan in the name of the defendant No.2. While so, the defendant No.2 executed a gift settlement deed dated 20.07.1984 in favour of plaintiff and defendant No.1 to avoid future complications. The father of the plaintiff was one of the witnesses to the said document. As per the said gift deed, the plaintiff and defendants would get 1/3rd share each in the suit schedule property. The defendant No.1 constructed first floor. The plaintiff had not constructed the second floor as he was residing in Bangalore. The defendants with a malafide intention were trying to dispose of the suit schedule property secretly. The same came to the notice of the plaintiff on 02.11.2008. As such, filed the suit.
4. The defendants 1 and 2 filed a common written statement submitting that the claim of the plaintiff for a share in the suit schedule property was based on the alleged unregistered gift settlement deed dated 20.07.1984 said to have been executed by defendant No.2 in favour of plaintiff and defendant No.1, granting them 1/3rd share each in the suit schedule property. The defendant No.2 did not remember to have executed any such deed because 3 Dr.GRR, J sa_215_2018 they had never seen it before. They had seen the said document for the first time in the suit. Even if they had executed any such deed, the same was void in law as it was an unregistered document. There was no evidence that the so called unregistered gift settlement deed dated 20.07.1984 was accepted by the plaintiff and the defendant No.1. The building constructed earlier was consisting of only ground floor. As such, the question of giving roof rights over first floor would not arise and as it would be a gift of future property, which was not in existence. Hence, the said deed would be void.
4.1. The defendants admitted that the plaintiff and defendants were own brothers and their father late Narsinga Rao purchased the suit property with his own funds. After purchasing the said plot since he had no money to construct the house, their father executed a gift deed on 20.03.1979 conveying the right, title and interest absolutely in favour of defendant No.2. By virtue of the said registered gift deed, the defendant No.2 became absolute owner. At that time, defendant No.2 was working in Nuclear Fuel Complex, which would come under Department of Atomic Energy, Government of India. The defendant No.2 obtained house building loan from his employer by mortgaging the title deeds of the suit schedule property and constructed a house consisting of ground floor vide municipal No.1-9-292/27-7. After construction of the said house, the defendants' parents lived along with the defendants and defendant's family in 4 Dr.GRR, J sa_215_2018 the said house. Subsequently, defendant No.2 repaid the entire loan to his employer and the said house was re-conveyed back to the defendant No.2. The father of the defendants had no source of income after his retirement, as such, the defendant No.2 constructed the house exclusively with his self-earnings and no other family members had contributed any money for the construction of the said house. The gift deed was not a nominal one but the gift was accepted and acted upon by the defendant No.2. As such, the property belonged to defendant No.2 absolutely.
4.2. The defendants further submitted that in the year 2001, the defendant No.2 executed a registered gift deed dated 22.04.2000 in favour of his elder brother, the defendant No.1 conveying 1/3rd undivided share of land in the said plot to him and also permitted him to construct first floor. The defendant No.1 accepted and acted upon the said gift. Subsequently, the defendants demolished the old house and constructed the ground floor and first floor with their own money. They also obtained municipal number in respect of ground floor i.e., 1-9-295/27/7. The plaintiff also witnessed the demolition of the old house and construction of the new house consisting of ground and first floor on the same. At no point of time, he objected the said demolition and construction of the building. The plaintiff was claiming roof rights of the old building but the same was demolished. Hence, he could not claim any right over the new 5 Dr.GRR, J sa_215_2018 building which was constructed by the defendants recently. There was no right to the plaintiff over the same. If at all he had any rights, they were lost by demolition of the old building. The plaintiff had no right to construct second floor on the building as he had no right in the plot of land. As on that date, they had 2/3rd undivided share in the said land. The defendant No.2 was the absolute owner of the ground floor and the defendant No.1 was the owner of 1/3rd undivided share in the land. The plaintiff had no locus standi to file the suit and prayed to dismiss the suit.
5. On considering the above pleadings, the trial court framed the issues as follows:
i. Whether the plaintiff is entitle to the relief of perpetual injunction as prayed for?
ii. To what relief?
6. The plaintiff examined himself as PW.1 and got examined his mother as PW.2, one of his sisters as PW.3 and one of the attestors to the gift deed marked as Ex.A1, as PW.4. Ex.A1 was the unregistered gift settlement deed dated 20.07.1984 alleged to have been executed by the defendant No.2 in favour of plaintiff and defendant No.1. At the time of making the document, the plaintiff paid stamp duty and penalty. Ex.A2 was the certified copy of the gift deed dated 20.03.1979 executed by the father of the plaintiff and defendants 6 Dr.GRR, J sa_215_2018 by name P. Narsinga Rao in favour of defendant No.2. Ex.A3 was the certified copy of the gift deed dated 22.04.2000 executed by defendant No.2 in favour of defendant No.1. The defendant No.2 was examined as DW.1 and Exs.B1 and B2 were marked on his behalf. Ex.B1 was the mortgage deed vide Doc.No.3304/1979 and Ex.B2 was the mortgage release deed vide Doc.No.20927/1997.
7. On considering the oral and documentary evidence on record, the trial court dismissed the suit filed by the plaintiff observing that he was not entitled for injunction as he was neither owner of the suit schedule property nor in possession of the same.
8. Aggrieved by the said judgment and decree dated 21.11.2011 in O.S.No.3999 of 2008 passed by the II Junior Civil Judge, City Civil Court, Hyderabad, the plaintiff preferred an appeal. The appeal was heard by the XIII Additional Chief Judge (FTC), City Civil Court, Hyderabad and vide judgment and decree dated 14.03.2016, dismissed the appeal confirming the judgment and decree passed by the trial court.
9. Aggrieved further, the plaintiff preferred this Second Appeal contending that the Courts below passed the judgments mechanically without discussing the material facts and documents. The first appellate Court failed to 7 Dr.GRR, J sa_215_2018 discuss the larger Bench judgment of the Hon'ble Apex Court in AIR 1965 An.
W.R(1)384 wherein it was observed that an unregistered deed could be looked into for a limited purpose and in the present case, the document was properly stamped but not registered and it could be looked into. The defendant No.1 clearly admitted that he signed on Ex.A1. Hence, it would prove that there was a gift and the prayer was only for not to alienate. The first appellate Court held that it was a joint family property constructed by the earnings of all the family members but failed to protect the interest and rights of appellant over the same. The first appellate Court failed to consider the roof rights over the first floor but erroneously observed that the possession was not clearly established. The trial Court erroneously held that the property was not delivered to PW.1. It failed to consider that as on the date of Ex.A1, all the parties were residing under one roof. The matter was one for roof rights. The document under Ex.A1 was not registered as the mortgage was not discharged by that time. The trial court erroneously held that PW.1 had not questioned Ex.A3 but failed to consider that Ex.A3 was in terms of Ex.A1 only and contended that the following substantial questions of law would arise for consideration:
i. Whether an injunction can be granted against other co-
owner, restrain him from alienating the property, when the property is held as joint family property? 8
Dr.GRR, J sa_215_2018 ii. Whether the possession of gift deed in the hands of the donee and claiming the property against the donor in the life time of donor, can be treated as acceptance of gift? iii. Whether the possession of the donee, can be treated as the donee's possession when both the donor and donee are residing in the same house?
iv. Whether a suit is maintainable, relying on a gift deed, which is properly stamped, but not registered? v. Whether the possession on the roof, which is open can be treated as possession, when the roof rights were given?
10. Heard the learned counsel for the appellant and the learned counsel for the respondents on the proposed substantial questions of law.
11. Learned counsel for the appellant contended that all the family members contributed for construction of suit schedule property. The mother of the parties examined as PW.2 gave Rs.20,000/- for construction of house by selling her bangles. All the family members were living jointly even after execution of Ex.A2 gift deed dated 20.03.1979, which would show that it was nominal. The wish of the father was that all his sons should reside in the same premises. On the request of the father only, the defendant No.2 executed the gift deed (Ex.A1) in favour of plaintiff and defendant No.1. But as the loan was not discharged and title could not be transferred, Ex.A1 was not registered.
When defendant No.1 tried to construct first floor on the existing house and 9 Dr.GRR, J sa_215_2018 sought for bank loan, the bank objected as the property was not in his name. As such, defendant No.2 executed another gift deed (Ex.A3) in favour of defendant No.1 for construction of first floor. In the year 2008, the defendants 1 and 2 intended to dispose of the property, as such, the plaintiff filed the suit for perpetual injunction not to alienate his share. The possession of original gift deed in the hands of the plaintiff would amount to acceptance of the same and prayed to allow the appeal.
12. Learned counsel for the respondents on the other hand contended that Ex.A1 was an unregistered document. It was written on a plain paper. There was no signature of the donee on the said document. By 1984, only ground floor was existing, as such the question of granting roof rights would not arise when there was no first floor also. As per Municipal Rules, one cannot construct second floor on 186 Sq. yards of land.
. 12.1. He further submitted that the plaintiff filed another suit for declaration to declare the gift deed dated 20.03.1997 executed by their father in favour of defendant No.2 as nominal one vide O.S.No.796 of 2012. But the said suit was also dismissed by the trial Court. The only option left to the plaintiff was to file an appeal against the said comprehensive suit. Without title and possession, the appellant - plaintiff could not maintain the present suit and 10 Dr.GRR, J sa_215_2018 prayed to dismiss the Second Appeal as no substantial questions of law would arise.
13. The Hon'ble Apex Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar1 held that:
"...the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact.
...If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its mere wrong application to the facts of the case could not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law."
1
(1999) 3 SCC 722 11 Dr.GRR, J sa_215_2018
14. On perusal of the record, the trial Court observed that Ex.A1 gift deed was an unregistered document. Under Section 123 of the Transfer of Property Act, the transfer must be effected by a registered instrument, signed by or on behalf of donor and attested by atleast two witnesses. The donor (defendant No.2) and the two attestors (the father of the plaintiff and defendants was one attestor and PW.4 other attestor) signed on it. But there was no signature of donee. There was no acceptance of gift by the donee. As per Section 123 of the Transfer of Property Act, the gift must be accepted by donee. In the absence of acceptance by the donee, the gift itself would be invalid. As there was no endorsement regarding the acceptance of Ex.A1 and the said document was also not registered, held that Ex.A1 was not valid under law.
15. The trial court further observed that as per the evidence, the property was also not delivered to the plaintiff. After execution of alleged Ex.A1, the defendant No.2 (DW.1) executed another registered gift deed Ex.A3 in favour of the defendant No.1 in respect of the same property. Even after knowing the said fact, PW.1 did not question the execution of Ex.A3. The defendant Nos.1 and 2 constructed a building in the suit schedule property. At the time of execution of Ex.A1, the house was having only ground floor. Thereafter, the said ground floor was demolished and defendant No.2 constructed ground floor and the defendant No.1 constructed first floor as per the terms of gift deed Ex.A3. There was no mention of Ex.A1 in Ex.A3. As such disbelieved Ex.A1 and held that the plaintiff failed to prove 12 Dr.GRR, J sa_215_2018 that he was owner of the suit schedule property or that he was in possession of the same, as such, he was not entitled for injunction and dismissed the suit.
16. The first appellate Court also observed that the plaintiff failed to establish that he was the owner of the property and injunction could not be granted if another person was claiming right over it and the plaintiff failed to establish his possession and dismissed the appeal confirming the judgment and decree of the trial Court.
17. Considering the scope of the suit and the relief claimed, this Court does not find any substantial questions of law arising in this matter to admit the Second Appeal. As such, no question of law particularly no substantial questions of law as proposed would arise for entertaining this appeal.
18. In the result, the Second appeal is dismissed at the stage of admission. No order as to costs.
Miscellaneous applications pending in this appeal, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J Date: 15th June, 2023 ss 13 Dr.GRR, J sa_215_2018 THE HONOURABLE DR.JUSTICE G. RADHA RANI SECOND APPEAL No.215 of 2018 Date: 15th June, 2023 ss