Himachal Pradesh High Court
____________________________________________________________ vs Ganga Singh & Others on 1 November, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 378 of 2004 and Cross Objection No. 583 of 2004 Reserved on: 05.10.2016 .
Decided on: 01.11.2016 ____________________________________________________________ Dola Ram & others.
.....Appellants.
Versus Ganga Singh & others.
......Respondents.
of _______________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
rt ______________________________________________________ For the appellants: Mr. K.D. Sood. Sr. Advocate, with Mr. Rajnish K. Lall, Advocate.
For the respondent: Mr. G.D. Verma, Sr. Advocate,
with Mr. B.C. Verma,
Advocate, for respondents No.
1, 3(a), 3(f), 4 to 6 & 14(a) to
14(g).
Chander Bhusan Barowalia, Judge.
The present regular second appeal is maintained by the appellants/defendants (hereinafter referred to as "the defendants") laying challenge to the judgment and decree passed by the learned Additional District Judge, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 2Mandi, in Civil Appeal No. 40 of 2002, dated 29.06.2004, whereby the learned District Judge, Mandi, has partly modified the judgment and decree, dated 31.12.2001, .
passed by learned Sub Judge 1st Class, Karsog, District Mandi, H.P., in Civil Suit No. 60-1 of 1994.
2. Brief facts giving rise to the present appeal are of that the plaintiffs/respondents (hereinafter referred to as "the plaintiffs") filed a suit for declaration against the rt defendants. As per the plaintiffs, land comprised in Khatta No. 4, Khatauni No. 4, 5 to 7, Kita 54, measuring 63-12-2 bighas, situate at Village Shoungi, Illaqua Janubi Pargna, Tehsil Karsog, District Mandi, H.P. is recorded in joint ownership of the parties and the same has been wrongly recorded so. The land stands partitioned, in a family partition prior to 1940. It is further contended that as per the private partition, the land, as entered against Khewat Khatauni No. 4/4, Kitta-2, measuring 0-1-16 bighas in Khasra No. 140 & 142 and land entered against Khatauni No. 5, Khasras No. 6, 7, 29, 31, 32, 34, 63, 72, 143, 153, 164, 169, 180, 192, 199, 201, 207, 226, 236, 249, 262, 274, 276, 288, measuring 30-1-1 bighas fell to the share of the defendants.
::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 3Consequent upon the private partition, the defendants have been recorded in separate possession of this land and the plaintiffs are not recorded in possession of the above .
land. On account of partition of the land, the defendants are in exclusive ownership of the land and the entries contrary to the claim of the plaintiffs are wrong and illegal.
of It is further contended that the land entered in Khata No. 4, Khatauni No. 6, Khasras No. 18, 20, 27, 28, 18, 65, 66, 68, 76, rt 152, 154, 155, 177, 178, 179, 188, 222, 223, 230, 235, 245, 247, 257, 275, 284, 289, Kitta 26, measuring 31-2-5 bighas and the land entered against Khewat Khatauni No. 7/7, Khasras No. 96, measuring 1-19-4 bighas and Khasra No. 75 measuring 0- 8-16 bighas fell in the share of plaintiffs and now they are absolute owners-in-possession of this land and the adverse revenue entries are wrong and illegal. After the private partition, the plaintiffs and defendants have been put to their exclusive and separate possession of the shares.
3. The plaintiffs have further pleaded that deceased, plaintiff Ragu Ram, remained ill and was not able to move and walk. Defendants No. 1 and 2 by taking undue advantage of ill health of deceased, plaintiff Raghu ::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 4 Ram, swayed him that the suit land has since been partitioned, but the revenue record has not been corrected to that extent in harmony with private partition. Defendants .
No. 1 and 2 took deceased, plaintiff Raghu Ram, to Tehsil office at Karsog and got some papers prepared, contents whereof were not disclosed. The papers were prepared on of the pretext that revenue entries qua the joint Khatta were to be corrected. The deceased plaintiff, Raghu Ram, was rt taken to a Document Writer and under the bona fide belief that the revenue record is to be corrected consequent upon the private partition, he signed the requisite papers.
Thus, defendants No. 1 and 2 executed a gift deed No. 414, dated 17.08.1993, through which 1/6th share of the land in Kheweat Khatauni No. 4/4 to 8, Kita 54, measuring 63-13-2 bighas was gifted to defendants No. 1 and 2. The gift deed, so executed, was the result of misrepresentation and fraud being played by defendants No. 1 and 2 on deceased, plaintiff Raghu Ram. As per the plaintiffs, deceased, plaintiff Raghu Ram, neither had an occasion to make a gift deed to defendants No. 1 and 2, nor he was competent, as the property is ancestral property and the deceased was ::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 5 not in possession of the land entered in Khewat Khataunis No. 4 and 5. Thus, the possession could not be delivered.
Lastly, the plaintiffs prayed for a decree of declaration, .
declaring them as owners-in-possession of the land, mentioned in Khewat Khatauni No. 4, 6, 7 and 8, Kitta 28, measuring 33-10-5 bighas at Kauja Shoungi, Tehsil Karsog, of District, Mandi, H.P., (hereinafter referred to as "the suit land"). A simultaneous prayer for correction in the revenue rt entries and declaring the gift deed No. 414, dated 17.08.1993 null and void, is also made.
4. The defendants, by filing the written statement, resisted the claim of the plaintiffs and took preliminary objections viz., valuation of the suit and estoppel. On merits, the defendants contended that the revenue entries are correct and the suit land is still joint and unpartitioned. The factum qua private partition has been denied and it is further contended by them in case there had been a private partition then a separate Khewat would have been created during the settlement operation. As per the defendants, the revenue entries, depicting the plaintiffs in possession of the suit land are not correct. The deceased, ::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 6 plaintiff Raghu Ram, executed a gift deed with his own free will and he was not ever tempted by the defendants. In fact, deceased, plaintiff Raghu Ram, himself asked the .
defendants to come to Karsog and he came with the revenue record from the Patwari. The gift deed was the result of love and affection. The deed was prepared of through a Document Writer and the deceased, plaintiff Raghu Ram, also acknowledged the execution of the deed rt before the Sub Registrar, Karsog, who attested the same.
The defendants have contended that deceased, plaintiff Raghu Ram, was having every right qua execution of a valid gift deed, which he had exercised voluntarily.
5. The learned Trial Court on 20.10.1994 framed the following issues for determination and adjudication:
"1. Whether the plaintiff is absolute owner in possession of the suit land by way of private family partition between the parties, as alleged? OPP
2. Whether the gift deed No. 414 dated 17.08.1993 is illegal, wrong and void as alleged due to mis-
represendation/fraud and fraud played upon the plaintiff? OPP ::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 7
3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
4. Whether the plaint has not been .
prop0erly signed and verified as alleged? OPD
5. Whether the plaintiff is estopped to file the present suit by his own act and conduct? OPD of
6. Relief."
6. It will be apt to highlight that initially the suit was rt dismissed by the Trial Court, vide its judgment dated 31.05.1996. The said judgment and decree were assailed and the learned First Appellate Court, vide judgment dated 11.05.2001 remanded the matter back to the learned Trial Court for recording the findings on the following two additional issues:
"5-A Whether the suit property inherited by plaintiff is ancestral in nature? OPP 5-B If issue No. 5-A is proved in affirmative, whether plaintiff was not competent to execute gift deed in favour of respondents No. 1 & 2 (defendants) as alleged? OPP."::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 8
After deciding the issues No. 1 and 2 against the plaintiffs, issues No. 3 and 4 against the defendants, issue No. 5 against the plaintiff and issues No. 5-A and 5-B against the .
plaintiffs, the suit of the plaintiffs was dismissed.
Consequently, the plaintiffs laid challenge to the judgment and decree of the learned Trial Court before the learned of First Appellate Court and the learned First Appellate Court vide its judgment and decree dated 29.06.2004, partly rt accepted the appeal qua issue No. 2 and the impugned judgment and decree of the learned Trial Court was modified to that extent, hence the present regular second appeal, which was admitted for hearing on the following substantial question of law:
"1. Whether the findings of the Court below are perverse, based on mis- reading of oral and documentary evidence, pleadings of the parties and the basic document of title Ex. DA?"
7. After the filing of the appeal by the appellants herein, the respondents herein filed Cross Objections (Cross Objections No. 583 of 2004) which were also admitted for hearing on the following substantial questions of law:
::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 9"1. Whether plea of private partition of the property in suit as raised on behalf of the Objectors has not been decided in accordance with Law and findings on this account are as a result of mis-
.
reading and mis-construction of the pleadings of the parties and oral and documentary evidence on record?
2. Whether the findings as recorded by the learned District Judge against the Objectors are vitiated on account of of mis-construction and misreading of oral as well as documentary evidence on record?
rt
3. Whether the presumption correctness as attached to the entries of in the revenue record with respect to land in suit have been rebutted and in any case, the claim of the appellants about the partition of land in suit stand proved."
8. I have the learned counsel for the parties and also gone through the record in detail.
9. The learned Senior counsel for the appellants has argued that the findings recorded by the learned Lower Appellate Court are against the evidence which has come on record and the same are perverse. The law is not correctly applied by the learned Lower Appellate Court and, therefore, the present regular second appeal is required to be allowed. To support his arguments, the ::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 10 learned Senior counsel has relied upon the law, as settled by the Hon'ble Courts in the following judicial pronouncements:
1. Venkati Rama Reddi and others vs. Pillati .
Ram Reddi and others, AIR 1917 (4) Madras 27 (Full Bench),
2. P. Venkatachalam Chetty vs. P.S. Govindasawmi Naicker, AIR 1924 Madras 605,
3. Murikipudi Ankamma vs. Tummalacheruvu Narasayya and others, AIR (34) 1947 of Madras 127,
4. Subhas Chandra Das Mushib vs. Ganga Prosad Das Mushib and others, AIR 1967 rt Supreme Court 878,
5. Amarsing Ratansing and another vs. Gosai Mohangir Somvargir and others,AIR 1972 Gujarat 74 (V 59 C 14),
6. Mst. Samrathi Devi vs. Parasuram Pandey and others, AIR 1975 Patna 140,
7. Afsar Shaikh and another vs. Soleman Bibi and others, AIR 1976 Supreme Court 163 (Patna),
8. P. Saraswathi Ammal vs. Lakshmi Ammal alias Lakshmi Kantam, AIR 1978 Madras 361,
9. Smt. Munni Devi vs. Smt. Chhoti and others, AIR 1983 Allahabad 444,
10. Savithramma vs. H. Garappa Reddy and others, AIR 1996 Karnataka 99,
11. Upasna & others vs. Omi Devi, 2001(2) Current Law Journal (Himachal Pradesh) 278,
12. Shri Kripa Ram and others vs. Smt. Maina, 2002(2) Shimla Law Cases 213,
13. N.V. Srinivasa Murthy vs. N.V. Gururaja Rao and others, (2005) 10 Supreme Court Cases 566 and
14. Jeet Kumar and another vs. Jai Chand and another, 2013(3) Himachal Law Reporter 1463.
::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 1110. On the other hand, the learned Senior counsel representing respondents No. 1, 3(a), 3(f), 4 to 6 and 14(a) to .
14(g) has argued that the gift was never executed by the plaintiff, Raghu Ram, and in fact, the defendants by their cleverness had made plaintiff, Raghu Ram, to understand that some documents are to be executed with respect to of family partition, which took place in the year 1940, and on that basis they persuaded him (Raghu Ram) to execute a rt gift deed without making him to understand the contents of the same. Learned Senior counsel has further argued that the cross-objections filed by the respondents are required to be allowed and the suit may be decreed in toto. To support his arguments the learned Senior Counsel has relied upon the law, as laid down in the following judicial pronouncements:
1. Moti vs. Roshan and others, AIR 1971 Himachal Pradesh 5 (V 58 C 2),
2. Ku. Sonia Bhatia vs. State of U.P. and others, AIR 1981 Supreme Court 1274,
3. Smt. Mallo vs. Smt. Bakhtawari and others, AIR 1985 Allahabad 160,
4. Digambar Adhar Patil vs. Devram Girdhar Patil (died) and another, AIR 1995 Supreme Court 1728, ::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 12
5. Rajendra Tiwary vs. Basudeo Prasad and another, AIR 2002 (89) Supreme Court 136,
6. Krishna Mohan Kul alias Nani Charan Kul and another vs. Pratima Maity and others, (2004) 9 Supreme Court Cases 468, .
7. Ashwani Kumar Rana vs. Balsharan Gautham and others, 2005(2) SLJ 1243,
8. Hari Shankar Singhania and others vs. Gaur Hari Singhania and others, (2006) 4 Supreme Court Cases 658,
9. Ramdev Food Products (P) Ltd. Vs. Arvindbhai Rambhai Patel and others, of (2006) 8 Supreme Court Cases 726,
10. M. Venkataramana Hebbar (dead) By LRs vs. M. Rajagopal Hebbar and others, (2007) rt 6 Supreme Court Cases 401 and
11. Bhagwan Krishan Gupta (2) vs. Prabha Gupta and others, (2009) 11 Supreme Court Cases 33.
11. In rebuttal, the learned Senior Counsel for the appellant has argued that the gift deed was executed by the plaintiff, Raghu Ram, in favour of the defendants out of love and affection, as they were his nephews. He has further argued that the plaintiff, Raghu Ram, was fully aware about the consequences of the gift. He purchased the stamp papers and took the defendants to the Tehsil office at Karsog and executed a gift deed. He has argued that the appeal may be allowed.
::: Downloaded on - 15/04/2017 21:28:51 :::HCHP 1312. To appreciate the arguments of the learned Senior counsel for the parties, I have gone through the record in detail.
.
13. At the very outset, as far as gift deed is concerned, the same is admitted by the plaintiffs, but it is argued that the defendants took undue advantage of the of old age of deceased plaintiff (Raghu Ram) and they make him to understand that the document executed is with rt respect to family partition, which took place prior to the year 1940. This is how the defendants got the gift deed executed from deceased plaintiff (Raghu Ram).
14. In order to prove their case, the plaintiffs have examined nine witnesses, including Raghu Ram, who had executed a gift deed, Gauria, Man Singh, Shyam Singh, Lachmi Ram, Ganga Singh, H.Y. Sharma, Meer Singh and Prem Lal. On the other hand, the defendants, in order to prove their case, have examined four witnesses, namely, Dola Ram, Harish Chand, Chet Ram and D.S. Chandel.
15. The parties are co-owners of the suit land, however, they are in exclusive possession over certain portions of the land. Mere exclusive possession without the ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 14 khata being dismembered is nothing, but it is still a joint possession of other co-owner.
16. The original deceased plaintiff, Shri Raghu Ram, .
has appeared in the witness-box as PW-1 and deposed that he is under treatment from P.G.I., Chandigarh. The defendants, who are from his in-laws' family, and the land, of which is 63-64 bighas was partitioned 60 years ago, during the time of the ancestors. The defendants on the pretext rt that the partition will be given effect in the record got his signatures on the gift deed by mis-representation/fraud and when he came to know about this, he immediately filed the civil suit. In his cross-examination, nothing favourable to the defendants has come with regard to the gift deed. PW-2, Shri Gauria, had deposed with respect to separate possession of the parties after the settlement. PW-3, Shri Man Singh, has corroborated the statement of PW-2, Gauria. PW-4, Shri Shyam Singh, has also deposed with regard to the separate possession of the parties. PW-5, Shri Lachmi Ram, deposed that though he has signed gift deed, Ex. DA, as a witness, but the same was with respect to the settlement of the partition. In his cross-examination, this ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 15 witness has stated that he does not know whether Ex. DA was read-over to Raghu Ram (deceased plaintiff). PW-6, Shri Ganga Singh, is the son of the plaintiff, who substituted .
the plaintiff. He has further stated that the land was partitioned during the time of the ancestors and he has produced on record the pedigree table to prove that he is of successor. PW-8, Shri Meer Singh, is also one of the co-
sharer, who has stated that they had separate possession on rt the land. He has shown his ignorance with respect to Ex.
DA. PW-9 Shri Prem Lal, who has translated the documents from Urdu to Hindu.
17. On the other hand, the defendants have examined four witnesses, namely, Dola Ram, Harish Chand, Chet Ram, D.S. Chandel and Dola Ram was also re-
examined.
18. DW-1, Shri Dola Ram (defendant No. 1), has stated that Raghu Ram has given 10½ bighas of land by making a gift deed. This witness tried to prove Ex. DA. To the similar effect he has examined other witnesses, that is, DW-2 Shri Harish Chand (Document Writer), DW-3 Chet Ram (Clerk) and DW-4, Shri D.S. Chandel (sub Registrar). DW-3, ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 16 Shri Chet Ram, Clerk, sub Treasury, Karsog, was examined to prove the registration of the gift deed. From the above, it is clear that there was no occasion for Raghu Ram (deceased .
plaintiff) to have filed the civil suit after executing gift deed, Ex. DA, had he executed the gift deed.
19. Now this Court is faced with two situations, firstly, of there is a registered gift deed and on the other hand the donor is claiming that he signed the documents taking into rt consideration the fact that the document is with regard to family partition, which took place 60 years before, as the defendants made him understand that by executing this document their position on the land, as per the family partition, will be recorded.
20. Adverting to the available revenue record, it unequivocally demonstrate that the parties are recorded as co-owners, however, it further reveals that the contesting parties are recorded in exclusive possession over some portions of the land. The land can be partitioned legally through an instrument of partition and the status of co-
sharer in the revenue record is treated in the legal parlance as "community of possession and unity of title of all co-
::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 17sharers", although they are depicted in the revenue record in exclusive possession over the separate portions of the land. Precisely, exclusive possession of the contesting .
parties cannot at all be termed/treated as "family partition", which is contended to have taken place inter se the predecessor-in-interest of the parties about 60 years back.
of As a matter of fact, no documentary evidence qua family partition has come on record. Moreover, even if we rt presume that "khangi taksim" took place between the predecessor-in-interest of the parties, then for such a long period of 50-60 years any of the parties should have taken steps to legally validate the same. Admittedly, there is no evidence on record which demonstrates that at any point of time steps were taken for recording the alleged private partition. Even the law mandates for legal validation of the private partition. No overt act is shown which proves that steps were taken for recording that private partition (Khangi taksim). In case the said private partition was legally validated, then the entries qua that should have been recorded in the revenue record, however, it is not so. For this reason only, the parties are still litigating. Khangi taksim ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 18 is to be affirmed as per the provisions mandated by law.
Separation of khata inter se the co-owners is the only mode to effect severance.
.
21. In the case in hand, as Khangi taksim was not recorded in the revenue record, the version of the plaintiff (deceased Raghu Ram), who appeared as PW-1, that of papers of Ex. DA was signed by him assuming that the family partition is to be registered in the revenue record, has force.
rt The original plaintiff (deceased Raghu Ram) immediately maintained a suit before the Court of law, by engaging an Advocate, when he came to know about the Ex. DA (gift deed). In these circumstances, the law, as cited by the learned Senior Counsel for the appellants, is required to be examined.
22. The Hon'ble Full Bench of Madras High Court in case titled as Venkati Rama Reddi and others vs. Pillati Ram Reddi and others, AIR 1917 (4) Madras 27 (Full Bench), has held that registration of a gift deed after the death of the donor is valid and the registration by the donor is not at all necessary. It has also been held in the judgment (supra) that execution of instrument duly signed is sufficient and the ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 19 gift on registration takes effect from the date of its execution. However, this judgment is not applicable to the facts of the case in hand, as the executant has himself .
immediately maintained a suit with respect to mis-
represendation/fraud made by the defendants, which he has also proved on record by leading cogent and of convincing evidence.
23. The Hon'ble High Court of Madras in yet another case rt titled as P. Venkatachalam Chetty vs. P.S. Govindasawmi Naicker, AIR 1924 Madras 605, has held that a deed which disposes of any immediate interest in property is not a gift but a will, relevant text of the judgment is extracted as under:
" ... ...It is contended that it is in effect a deed of gift operating in presenti and not a will at all and that as it is a deed of gift in respect of immoveable property which has not been registered, it is void and has no effect. A will is defined in Section 3 of the Probate and Administration Act (V of 1881), as "the legal declaration of the intentions of the testator with respect to his property, which he desires to be carried into effect after his death." This document which, as I have said, is described as a gift deed purports to dispose of part of a house. The relevant portions of the document are as follows:
"You shall yourself after my lifetime use and enjoy the two rooms built on the ground of the house Municipal No. 11.............I ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 20 shall myself enjoy the rent in respect of those two rooms as long as I may be alive. You shall yourself use and enjoy after my lifetime that rent and that ground and the two rooms from son to grandson and so on in succession with power to gift, mortgage, exchange and sale.
.
No one has any right to or interest in those rooms. To this effect is the gift deed document executed and given in respect of the aforesaid two rooms and their grounds."
In the form it is a deed of gift and not a will, but in fact it is a declaration of the intentions of the donor with respect to her property which she desires to be carried into of effect after he death, because there is no disposal of any immediate rights of possession or any immediate interest in the property. The fact that the document purports to rt reserve a life interest in the property to the donor is an argument against its being a will, but as was pointed out by the Privy Council in Thakur Ishri Singh vs. Thakur Baldeo, (1884) 10 Cal 792 (P.C.), no great attention need be paid to that, because it is a frequent thing in this country to find documents which are in fact wills in terms making clear that the person disposing of the property reserves a life or immediate interest in the property."
This judgment is not applicable to the facts of the present case.
24. The Hon'ble High Court of Madras in Murikipudi Ankamma vs. Tummalacheruvu Narasayya and others, AIR (34) 1947 Madras 127, has held that without there being any express reservation of a power of revocation in the gift deed, a donor does not have any right to revoke the gift and the only custody by the donor of the gift deed does not ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 21 lead to any adverse conclusion against the donee, especially where the entire conduct of the donee shows that he accepted the gift and the document was kept in .
the family box to which the donee also had access. It has also been held that where the donor has the power to revoke and he validly exercises the same, he becomes the of absolute owner of the property in question and in case he has no power of revocation, he ceases to have any interest rt or right in the property in question. However, this judgment is also not applicable to the facts of the present case, as the plaintiffs have proved mis-representation/fraud of the defendants and the deed writer with respect of Ex. DA (gift deed).
25. The Hon'ble Supreme Court in Subhas Chandra Das Mushib vs. Ganga Prosad Das Mushib and others, AIR 1967 Supreme Court 878, has held that in cases of undue influence the Court must consider relations between the donor and the donee and has the donee used that position to obtain an unfair advantage over the donor, Court must also scrutinise the pleadings to ascertain whether undue influence was exercised or not. In the judgment (supra) the ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 22 meaning of expression 'collusion' was expounded as "secret agreement for illegal purposes or a conspiracy and implies that a man does something evil designedly". Apt paras of .
the judgment are reproduced below:
"3. Under s. 16 (1) of the Indian Contract Act a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of of the other and uses that position to obtain an unfair advantage over the other. This shows that the court trying a case of undue influence must consider two things to start with, rt namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor'?
... ... ... ... ... ...
7. The three stages for consideration of a case of undue influence were expounded in the case of Ragunath Prasad v. Sarju Prasad and others, 51 Ind App 101: (AIR 1924 PC 60) in the following words :-
"In the first place the relations between the parties to each other must be such that one is in a position to dominate the will of the other. Once that position is substantiated the second stage has been reached - namely, the issue whether the contract has been induced by undue influence. Upon the determination of this issue a third point emerges, which is that of the onus probandi. If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 23
Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of these parties. Were they such as to put one in a position to .
dominate the will of the other?
... ... ... ... ... ...
10. Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of of undue influence have been given as in the case of fraud. See Order 6, Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli rt Prasad Jaiswal, (1964) 1 SCR 270: (AIR 1963 SC 1279) above referred to. In tht case it was observed (at p. 295) (of SCR): (at p. 1288 of AIR):
"A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other."
... ... ... ... ... ...
12. It will at once be noted from the above that the two portions of the extracts from paragraph 4 are in conflict with each other. According to the first portion the plaintiff's father Prasanna colluded with his sister on the advice of his brother to execute the deed of gift. The word "collusion" means a secret agreement for illegal purposes or a conspiracy. The use of the word "collusion"
suggests that Prasanna knew what he was about and that he did it secretly or fraudulently with the object of depriving the plaintiff. According to the second portion of the extract, Prasanna, because of his old age, was subject to senile decay and could not discriminate between good and evil. This ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 24 hardly fits in with the case of collusion which implies that a man does something evil designedly. There is no suggestion in this paragraph of the plaint that Prasanna was under the domination of Balaram and that Balaram exercised his power over Prasanna to .
get the document executed and registered by Prasanna. It will be remembered that nominally the property stood in the name of the sister who was also a party to the document and according to the extract quoted above Balaram had exercised undue influence over her also.
of
... ... ... ... ... ...
25. There was practically no evidence about the domination of Balaram over rt Prasanna at the time of the execution of the deed of gift or even thereafter. Prasanna, according to the evidence, seems to have been a person who was taking an active interest in the management of the property even shortly before his death. The circumstances obtaining in the family in the year 1944 do not show that the impugned transaction was of such a nature as to shock ones conscience. The plaintiff had no son. For a good many years before 1944 he had been making a living elsewhere. According to his own admission in cross- examination, he owned a jungle in his own right (the area being given by the defendant as 80 bighas) and was therefore possessed of separate property in which his brother or nephew had no interest. There were other joint properties in the village of Parbatipur which were not the subject- matter of the deed of gift. It may be that they were not as valuable as the Lokepur properties. The circumstance that a grand - father made a gift of a portion of his properties to his only grandson a few years before his death is not on the face of it an unconscionable transaction. Moreover, we cannot lose sight of the fact that if Balaram was exercising undue influence over his father he did not go to the length of having the deed of gift in his own name. In this he was ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 25 certainly acting very unwisely because it was not out of the range of possibility that Subhas after attaining majority might have nothing to do with his father."
.
This judgment is not applicable to the present case, as mis-
representation/fraud on the part of the defendants stands cogently proved by the plaintiffs.
26. The Hon'ble High Court of Gujarat in Amarsing of Ratansing and another vs. Gosai Mohangir Somvargir and others, AIR 1972 Gujarat 74 (V 59 C 14), has held that in rt cases of gift or will where the executant of the same intended to convey and confer immediate title on a person subject to his right of resident for the life time and no right of revocation was reserved, the document is "gift" and not a "will". Relevant paras of the judgment are reproduced below:
"6. Applying the twin tests to the document Ex. 45, what we find is that the said document is engrossed on a stamp-paper of the erstwhile State of Baroda and it was registered with the Registrar of document, the suit property was given in gift to the plaintiff No. 3, but the said deceased Bai Andar reserved a right to reside in the said property till her lifetime. It was, therefore, further directed that the plaintiff No. 3 and his heirs or assignees were entitled to use and enjoy and to transfer the same by mortgage, sale, gift or otherwise after her death and at that ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 26 time the other heirs of the executant would have no relation or concern with it. The plaintiff No. 3 further directed to mutate the suit property in the Municipals office after her death and the plaintiff No. 2 should pay the taxes thereafter. On these conditions the suit .
property was given in gift to the plaintiff No. 3 and in spit of this document, if any heir or person claiming interest caused any obstruction or raise any objection, the executant would at her cost and expense remove the said objection or obstruction. It was further directed that the documents constituting title in respect of the said of property were to be collected by the plaintiff No. 3 after the death of Bai Andar. On considering the above gist of the document, it is very clear that the deceased Bai Andar intended to convey and confer the title on rt plaintiff No. 3 immediately subject to her right of residence for the lifetime. It was, therefore, nothing more than reservation of life interest in the property. The mere fact of reservation of life interest in property would not convert a deed of gift into a testamentary instrument. The other test. Viz, there is any right of reservation, impliedly or expressly, for revocation of an instrument, I have been able to find none and Mr. Shah has not been able to point out any relevant provision in the document, Ex. 45, from which it could be suggested, remotely, that there was an intention to reserve the right of revocation. It was, however, contended by Mr. Shah that if it is held that this is a sill, then right of revocation is implicit in it. I am of the opinion that the last contention does not reserve any consideration because in order to determine that the instrument is a testamentary instrument, the various tests as suggested by the High Court of Bombay. AIR 1947 Bom 49, should be satisfied and the two main tests were, whether the arrangement was to be effective in praesenti and whether there is any right of revocation express or implied. On both these tests Mr. Shah has not been able to satisfy me that the document. Ex. 45, was in nature of a will I am therefore, of opinion ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 27 that both the learned Judges were right in holding that the document, Ex. 45, was not a will but a deed of gift.
7. The second contention of Mr. Shah that even if it is assumed that Ex. 45 is a .
deed of gift, it was not validly and legally attested also should be rejected. In the first place, in the written statement the defendants have not raised this plea of want of proper and legal attestment of the document in question. No issue has been raised by the trial Court, secondly no material has been brought out in cross- examination of the attesting witness which of would show that the attestation was not legal and proper, I have been taken through the evidence of attesting witness and I have rt not been able to find any material from which it could be said that the attestation by the witnesses was not made as required by Section 3 of the Transfer of Property Act.
On the contrary the evidence of the attesting witness Chandulal Bapalal, Ex. 41, shows that the persons signing on behalf of the executant as well as the other attesting witness, viz. Chimanlal Shyamlal, had put their signatures in his presence. The other attesting witness Chimanlal Shyamlal has died and therefore, it was not possible for the plaintiffs to examine him. In the cross-
examination nothing has been brought out which would show that the attestation was not according to the law. Both the Courts below have also found that the document was attested and executed. The learned trial Judge has further found from the evidence that the defendant No. 1 has admitted in his cross-examination that he knew that Bai Andar had made a will in favour of plaintiff No. 3 and, therefore, apart from the question; whether the nature of document was a gift or a will, it was found by the Court that the deceased Bai Andar had executed the document. According to Section 68 of the Evidence Act the necessity of examining an attesting witness would arise only when a document which is required by law to be attested is sought to be used in ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 28 evidence and the execution thereof is questioned. Here, it has been found by the learned trial Judge that the defendant No. 3 and had admitted that such a document was in fact executed in favour of plaintiff No. 3. In that view of the matter, therefore, the .
second contention of Mr. Shah should fail."
The judgment is not applicable to the facts of the present case.
27. The Hon'ble High Court of Patna has held as of under in Mst. Samrathi Devi vs. Parasuram Pandey and others, AIR 1975 Patna 140, that the fact of the deed being rt handed over by the donor to the donee is sufficient evidence of his having accepted the gift and the acceptance of the said document is a relevant fact to prove the acceptance of the gift by him. In the judgment (supra) it has also been held that in second appeal matter relating to realm of fact, which was not raised earlier, cannot be permitted to be raised. Apt paras of the judgment are extracted below:
"7. Before proceeding to consider the various contentions raised by learned counsel appearing for the respective parties, I do not feel any difficulty to hold that the reason of the learned Munsif for holding that defendant No. 1 had, no right to execute the deed of gift in favour of the plaintiff as she was only a maintenance holder is unsustainable in law. In view of his own finding that defendant No. 1 ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 29 was in adverse possession over the suit properties and had acquired a title thereby in her own rights, her status from a mere maintenance holder had changed, she having already perfected her title on that account. Accordingly, she was perfectly competent to .
deal with the properties in question in whatever manner she liked as the full owner of the same. The deed of gift executed by defendant No. 1 in favour of the plaintiff was, therefore, not correctly considered and appreciated. The only ground on which the said document was challenged by the defendants was fraud and coercion exercised of on defendant No. I. In this court, Mr. Prem Lal, learned counsel appearing for the respondents, also invited my attention to the various recitals of fact in the said document, rt such as, the description of the plaintiff as the own daughter of defendant No. 1 and that she was living with her and nursing her which, according to the learned counsel, were not factually correct. Be that as it may, as already stated, the deed in question was not challenged by the defendants on these grounds at any stage. These are all matters relating to the realm of fact; and, if the defendants wanted to challenge the document on these materials, it was open to them to challenge this document on these grounds also and to establish as a fact that the testamentary disposition by defendant No. 1 was intended to take place and motivated due to the said factors. In this court, it is too late for them to urge these questions of fact for which no material was brought on the record.
8. Mr. Premlal, however, contended that the transfer by way of gift in favour of the plaintiff purported to have been made under the document (Ext. 5) was not complete as the same was not accepted by the plaintiff, and she herself had stated to this effect in the impugned document (Ext. D). It is true that a transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor. The fact of acceptance, ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 30 however, can be established by different circumstances, such as by the donee's taking possession of the property or by possession of the deed of gift alone. There are numerous authorities in support of the proposition that if a document of gift after its execution or .
registration in favour of the donee is handed over to him by the donor which he accepts, it should amount in law to be valid acceptance of the gift. In support of this proposition, Mr. J. C. Sinha relied upon a decision of the Judicial Committee in the case of Kalyanasundaram Pillai v. Karuppa Mooppanar, (AIR 1927 PC 42). In this case, of their Lordships approved the view of the Full Bench of the Bombay High Court in Atmaram Sakharam v. Vaman Janardhan, (AIR 1925 Bom 210) (FB) that where the donor of immovable property handed over to the rt donee an instrument of gift duly executed and attested, it would amount to the acceptance of the gift by the donee, and the donor had no power to revoke the gift even if the registration of the instrument had not taken place. This court also in Ram Chandra Prasad v. Sital Prasad, (AIR 1948 Pat 130) took a similar view and held that the fact of the deed being handed over by the donor to the donee was sufficient evidence of his having accepted the gift, and that the acceptance of the said document was a relevant fact to prove the acceptance of the gift by him. To the same effect is the view of the High Court of Travancorc and Cochin in the case of Esakkimadan Pillai v. Esakki Amma, (AIR 1953 Trav-Co 336). It is not necessary to multiply authorities in support of this proposition. From the above, discussion, it must be held that the deed of gift executed by defendant No. 1 in favour of the plaintiff was a valid and binding document resulting in a complete transfer of the interest of defendant No. 1 in respect of the suit properties to the plaintiff."::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 31
The judgment is not applicable to the facts of the present case, as no new matter is raised by the in the present regular second appeal.
.
28. The Hon'ble High Court of Patna in Afsar Shaikh Devi vs. Parasuram Pandey and others, AIR 1975 Patna 140, has held it is question of fact where a person is in a position of to dominate the will of another and procure certain deed by undue influence and the same cannot be reopened in rt second appeal, if decided in accordance with prescribed procedure. Separate pleadings qua "undue influence" are necessary and general allegation cannot spell out undue influence. Apt paras of the judgment (supra) are reproduced hereinbelow:
"15. While it is true that `undue influence', `fraud', `misrepresentation' are cognate vices and may, in part, overlap in some cases, they are in law distinct categories, and are in view of Order 6, Rule 4, read with Order 6, r.2, of the Code of Civil Procedure, required to be separately pleaded, with specificity, particularity and precision. A general allegation in the plaint, that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court, or, in the ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 32 first round, even before the first appellate court.
16. The High Court has tried to spell out a plea of undue influence by referring to paragraph 7 of the written statement in which .
the defendant inter-alia stated that he was "looked after and brought up by the plaintiff as his son and he became very much attached to the plaintiff and since his infancy till the middle of this year this defendant always lived with the plaintiff and used to treat him as his father helped him and looked after all his affairs." This paragraph, according to the of learned Judge, contains "a clear admission of the intimate relationship between the two indicative of the position of dominating the will of the plaintiff by defendant No. 1".
rt
17. We are, with due respect, unable to appreciate this antic construction put on the defendants' pleading. All that has been said in the written statement is that the relationship subsisting between the plaintiff and the defendant was marked by love and affection, and was akin to that of father and son.
Normally, in such paternal relationship, the father, and not the son, is in a position of dominating influence. The defendant's pleading could not be reasonably construed as an admission, direct or inferential, of the fact that he was in a position to dominate the will of the plaintiff. In spelling out a plea of undue influence for the plaintiff by an `inverted' construction of the defendants' pleading, the High Court overlooked the principle conveyed by the maxim secundum allegataet probata, that the plaintiff could succeed only by what he had alleged and proved. He could not be allowed to travel beyond what was pleaded by him and put in issue. On his failure to prove his case as alleged, the court could not conjure up a new case for him by stretching his pleading and reading into it something which was not there, nor in issue, with the aid of an extraneous document. Thus considered, the High Court was in error when by its judgment, dated October 16, 1963, it ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 33 remanded the case to the first appellate Court with a direction to determine the question of undue influence "on material already on record."
... ... ... ... ... ...
.
19. It is well settled that a question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact and if arrived at fairly, in accordance with the procedure prescribed, is not liable to be of reopened in second appeal (Satgur Prasad v. Har Narain Das, 59 Ind App 147 = (AIR 1932 PC 89); Ladli Parshad v. Karnal Distillery Co. Ltd., (2964) 1 SCR 270 = (AIR 1963 SC 1279).
rt ... ... ... ... ... ...
21. The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. It is embodied in s. 16 of the Indian Contract Act. Sub-section (1) of s. 16 defines 'undue influence' in general terms.
It provides that to constitute 'undue influence' two basic elements must be cumulatively present. First, the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other. Second, the party in dominant position uses that position to obtain an unfair advantage over the other. Both these conditions must be pleaded with particularity and proved by the person seeking to avoid the transaction.
22. In view of this sub-section, the Court trying a case of undue influence of the kind before us, must, to start with, consider two things, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor? and (2) has the donee used that position to obtain an unfair advantage over the donor ? (Subhas Chandra v. Ganga ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 34 Prasad). 1 SCR 331 at p. 334 = (AIR 1967 SC 878 at p. 880).
23. Sub-section (2) of s. 16 is illustrative as to when a person is considered to be in a position to dominate the will of the other. It .
gives three illustrations of such a position, which adapted to the facts of the present case, would be (a) whether the donee holds a real or apparent authority over the donor, (b) whether he stands in a fiduciary relation to the donor, or (c) whether he makes the transaction with a person whose mental capacity is temporarily or permanently of affected by reason of age, illness or mental or bodily distress.
24. Sub-section (3) contains a rule of rt evidence. According to this rule, if a person seeking to avoid a transaction on the ground of undue influence proves-
(a) that the party who had obtained the benefit was, at the material time, in a position to dominate the will of the other conferring the benefit, and
(b) that the transaction is unconscionable, the burden shifts on the party benefitting by the transaction to show that it was not induced by undue influence. If either of these two conditions is not established the burden will not shift. As shall be disussed presently, in the instant case the first condition had not been established, and consequently, the burden never shifted on the defendant.
25. In Subhas Chandra's case (ibid), this Court quoted with approval the observations of the Privy Council in Raghunath Prasad v. Sarju Prasad, 51 Ind App 101 = (AIR 1924 PC
60) which expounded three stages for consideration of a case of undue influence. It was pointed out that the first thing to be considered is, whether the plaintiff or the party asking relief on the ground of undue influence has proved that the relations between the parties to each other are such ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 35 that one is in a position to dominate the will of the other. Upto this point 'influence' alone has been made out. Once that position is substantiated, the second stage has been reached -namely, the issue whether the transaction has been induced by undue .
influence. That is to say, it is not sufficient for the person seeking the relief to show that the relations of the parties have been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it.
"More than mere influence must be proved so as to render influence in the language of the of law, 'undue' (Poosathurai v. Kappanna Chettiar, 47 Ind App 1 = (AIR 1920 PC 65)). Upon a determination of the issue at the second stage, a third point emerges, which is rt of the onus probandi". If the transaction appears be unconscionable, then the burden of proving that it was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other.
"Error is almost sure to arise if the order of these propositions be changed. The unconscionableness of the bargain is not the first thing to be considered. The first thing to be considered is the relations of the parties. Were they such as to put one in a position to dominate the will of the other".
... ... ... ... ... ...
28. Thus, even the slander shred in the plaint from which the High Court tried to spell out a whole pattern of fiduciary relationship between the parties and a position of dominant influence for Afsar, was torn and destroyed by the plaintiff himself in the witness-stand.
29. In the context of the first-stage consideration, the District Judge found on the basis of the evidence on record, that although the plaintiff was an old man-and he had intentionally, far overstated his age yet he was quite fit to look after his affairs. On this ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 36 point, the District Judge accepted the version of the plaintiff's own witness (PW 7) which was to the effect, that the plaintiff himself yokes the bullocks, and unaided by anybody else, ploughs his lands. In the face of such evidence, the District Judge was right in .
holding that Ebad plaintiff, though old, was physically fit to carry on his affairs. There was no evidence to show that the mental capacity of the donor was temporarily or permanently affected or enfeebled by old age or other cause, so that he could not understand the nature of deed or the effect and consequences of its execution. The mere fact that he was of illiterate and old, was no proof of such mental incapacity. None of the circumstances mentioned in sub-section (2) of s. 16, had been proved from which an inference could be rt drawn that the donee was in a position to dominate the will of the donor."
As mis-representation/fraud on the part of the defendants stands cogently proved by the plaintiffs, the judgment is not applicable to the facts of the present case.
29. The Hon'ble High Court of Madras in P. Saraswathi Ammal vs. Lakshmi Ammal alias Lakshmi Kantam, AIR 1978 Madras 361, has held that 'bargain is tainted by undue influence and it is only after particulars are made available and a reasonable proof thereof has been given, the onus would shift on the so called 'person of domination'. Until then the burden is on the complainant to establish it is so. The Court must scrutinize the pleadings and evidence to ascertain undue influence or coercion.
::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 37Relevant paras of the judgment are reproduced hereinabove in extenso:
.
"11. The plea of undue influence as raised in the pleadings rests upon the following facts urged by the plaintiff. According to the plaintiff she came to understand that the defendants have taken undue advantage of the dominant position which they and the first daughter and the husbands of both the sisters occupied with reference to her and it was in that atmosphere she was compelled to of execute the challenged sale deed. The second objection is that the consideration said to have been paid under the document is rt ridiculously low, the third contention is that the document is a sham one not intended to be acted upon. To further this contention, the plaintiff would allege that she was told that the mother was taking a loan and that she should attest the document and she believed her mother and signed the same. She would also add that the document on the face of it is unconscionable and gives the first defendant unfair advantage. But the telling irreconcilable part of it is that in the alternative, the plaintiff accepts the document partially and she is prepared to redeem the properties without payment of the consideration mentioned therein, if the Court ultimately holds that the money was lent under the document. She claims that she is not liable to pay any amount for such redemption, since the first defendant was in possession and enjoyment of the properties till the date of suit. In a case where a litigant intends to overlook and bypass a registered document under which prima facie certain rights have become vested and under which third parties have acquired indefeasible rights, then the challenging party should be in a position to give such particulars about such undue influence which should form the basis of her complaint. The primary ground on which the plea of undue influence is founded is based on relationship. It is axiomatic that ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 38 mere proof of relationship however near it may be, is not sufficient for a Court to assume that one relation was in a position to dominate the will of the other. Such bonds of kinship which are universally felt should not be mistaken as equivalent to saying that one .
kinsman could unduly influence the other in the circuit of such bondage. Even if any advice is given it may be influence but not undue influence. The tie of relationship need not necessarily be used unwisely, injudiciously and unhelpfully so as to gain an unfair advantage by the relation who is advising the other relation. Particularly in a Hindu family a of widowed mother, who would rather be fairly and affectionately inclined to an unmarried daughter would not make undue preferences in favour of a married one who has already rt been provided for and who was well set in life. The sentiment, the traditional features of a Hindu Home, the love and affection of a mother towards her natural and last child which is a always in one way unless there are very extraneous circumstances to assume otherwise should always prompt a Court to raise the reasonable presumption that any advice or influence which a parent brought to bear on his own child is not to gain an advantage for herself or to see that an unfair advantage is gained by another child of hers in preference to the challenging child. There is also one other important and salient feature which ought to be established on materials pleaded and acts established that the 'bargain is tainted by undue influence' and it is unconscionable that it could reasonably be said that the person to obtain unfair advantage for himself and so as to cause injury to the person sought relying upon his authority or aid. It is only after such particulars are made available and a reasonable proof thereof has been given, the onus probandi would shift on the so-called 'person of domination'. Until then the burden is on the complainant to establish it is so.
12. In the instant case, the particulars given are not so appealing and telling. It is ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 39 essential that in a case where fraud, undue influence or coercion is put at the forefront the complaining party should set forth the facts in full and give such essential particulars instead of making general allegations. That this is the legal requirement as provided for in .
Order 6, Rule 4, C.P.C. is reiterated by the Supreme Court in Subhas Chandra v. Ganga Prosad (AIR 1967 SC 878) . The Supreme Court said that the Court must scrutinize the pleadings to find out that a plea has been made out and that full particulars thereof have been given before examining Whether undue influence was exercised or not. In the of light of this, the pleadings and the evidence let in should be scrutinized.
13. Before doing so, it would be rt convenient to refer to the plaintiff herself and her ability and capability. She had her early education in an Anglo Indian School and studied up to Pre-University Class in the Nirmala College, Coimbatore. She is, therefore, an educated lady and not an illiterate or a person, who could be said to be incapable of acting on her own. In cases where a person suffers from an infirmity or backwardness, then standards of proof regarding undue influence or coercion may be slightly different. The case cited by the learned counsel for the respondent in Nibaran v. Nirupama (AIR 1921 Cal 131) deals with the transaction of a Pardanashin lady. They divided the decisions on the subject under two groups as follows:
"...... First, cases where the person who seeks to hold the lady to the terms of her deed is one who stood towards her in fiduciary character or in some relation of personal confidence; and secondly, cases where the person who seeks to enforce the deed was an absolute stranger and dealt with her at arm's length. In the former class of cases, the Court will act with great caution and will presume confidence put and influence exerted; in the latter class of cases, the Court ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 40 will require the confidence and influence to be proved intrinsically".
A fortiori therefore, in a case where the challenging litigant is capable and literate and the parties are parent and child, the Courts, .
must be doubly careful and would certainly demand strict proof of the misuse of confidence and influence said to have been exercised by the other party when the other party is none else than the mother. P. Ws. 1, 2 and 3 do not convincingly refer to any unfair practice indulged in by the mother when she joined with the plaintiff to sell the property to of the sister of the plaintiff. P. W. 4, the plaintiff's father-in-law, does not even wisper about undue influence having been exercised by the mother or any other member of the family. He would only ask us to draw some rt inference from surrounding facts. He would say that Dr. Punnaivanam, the husband of the first defendant took active part in arranging the marriage of the plaintiff and that the husband chosen was according to the choice of the plaintiff herself and that considerable sums were spent for her marriage. It is in this background of total lack of particulars of undue influence that we should read the evidence of P. W. 5, the plaintiff herself. She admits that she might have read the document Ex. B-2. This necessarily means that she has read it, since there is no denial of it.
Her case is that she was not aware that she was executing a sale deed. Her specific particulars which she gives in the witness box about the practice of undue influence are that her mother, the second defendant, her elder sister, the first defendant, and Punnaivanam, the husband of the first defendant, informed her that another family house had been brought to sale in Court auction and that in order to save the property she must sign the document. There is no corroboration about this extraordinary version. The first defendant as D. W. 6 speaking to the contrary would say that the property had to be sold in order to secure money for purpose of the marriage of the plaintiff and since she was inclined to ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 41 purchase the property she bargained for and fixed a fair price of Rs. 10,000/- and purchased the property under Ex. B-2. No doubt the mother whose act has been challenged and who is obviously in an embarrassing position, did not choose to get .
into the box. D. W. 5 is characterised by the lower court as a respectable person. He deposed that Ex. B-2 was read over and after it was so read over only, the plaintiff signed Ex. B-2, But the trial Judge thought that D. W. 5 should have expressed an opinion besides having spoken the truth. He was of the view that D. W. 5 should have specifically stated of that the plaintiff signed the document after knowing the true nature of it. We are unable to share the view of the trial court in this behalf. When once a person placed in the position of the plaintiff who is not an illiterate rt and who could be said to have such experience in life and matters to understand things it is very difficult to infer that the plaintiff has discharged her burden. She would say in the witness box that she signed because she wanted to avoid a sale of another property of the family. She improves her case in the witness box so as to satisfy the legal requirement about the particulars of undue influence by saying that she believed her mother and her elder sister and signed the document. She would pretend that she signed as a witness to some document. She also would say that there was no necessity for sale, since there were family jewels and other monies of her father which was available for celebrating her marriage. The document is of the year 1964. Her mother was sending her regularly some amounts by way of pocket money and there was therefore no ill-feelings or any difference of opinion in the family. It is only in 1969, when she was in Coimbatore, she came to know that her property has been sold. Excepting for this evidence that it was P. W. 3 who told her about it no other speak about it, P. W. 3 was examined on 23-3-1971 and P. W. 5 was examined on 24-3-1971. There is no consistent version which is acceptable even as regards the information ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 42 said to have been given by P. W. 3 in 1969. P. W. 3 would not specifically refer to the meeting at Coimbatore in 1969, whilst P. W. 5 the plaintiff refers to it very vaguely. In the suit notices which were exchanged under Exs. A-4 and A-2 there is no specific reference to .
the plaintiff having been unduly influenced by her mother. One other important feature Which has to be borne in mind in the instant case is that the plaintiff should be deemed to have understood the challenged deed and signed it. The plea of non est factum is therefore not available to her. She says "PADITTHU ERUKKALAM" but she does not of say " PADIKKAVILLI". The fair assumption is that she read it, understood it and signed it. To quote the observations of the Privy Council in Martin Cashin v. Peter j. Cashin (AIR 1938 PC 103):
rt "In a case where the person executing the deed is neither blind nor illiterate, Where no fraudulent misrepresentation is made to him, where he has ample opportunity of reading the deed and such knowledge of its purport that the plea of non est factum is not open to him, it is quite immaterial whether he reads the deed or not. He is bound by the deed because it operates as a conclusive bar against him not because he has read it or understands it, but because he has chosen to execute it".
Mr. Thiagarajan referred to various decisions. Narayanadoss Balakrishna Doss v. Buchrai Chordia Sowcar (53 Mad LJ 842) : (AIR 1928 Mad 6); Rama Patter v. Lingappa Gounder (69 Mad LJ 104) : (AIR 1935 Mad
726); Mannankatti Ammal v. Vaiyapur Udayar (1961-2 Mad LJ 367); Abdul Malick Sahib v.
Md. Yousuf Sahib and other cases to show that this is a case where the plaintiff should be deemed to have been unduly influenced. In all those cases the following principles were laid down.
"(1) Where confidential relations exist, those standing in such relations cannot entitle ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 43 themselves to hold benefits unless they can show that the persons who have conferred the benefits had competent and independent advice. In this case, neither does the age nor the capacity of the person conferring the benefit affect the principle".
.
"(2) Age and capacity are considerations which may be important in cases where no confidential relation exists".
There can be no quarrel relating to such accepted and general proposition. But each case has to depend upon its facts. In the of instant case, the parties are parent and child. The document was executed at a time when the marriage negotiations of the plaintiff were going on. According to us, the plaintiff understood that it was sale of her property for rt consideration. The story that there were other moveable properties such as jewels and cash which ought to have been sufficient for the conduct of her marriage though spoken to vaguely has not been established. No such evidence has been placed before us either. The normal circumstance of securing competent and independent advice would not enter for consideration in this case because it was all arranged in a family council in which there was no distrust or mistrust as between the one and the other. What was sold did not belong to the plaintiff at all on the date of sale. She had only a bare right of expectancy; it may be a vested right. The subject-matter of the sale was not fully appreciated by the trial court. Both life interest of the mother as well as the ultimate remainder vested in the plaintiff were act (sic) of the second defendant after freely exercising her independent will and mind. The case relied on by Tyagarajan in Lancashire Loans Ltd. v. Black (1934-1 KB 380) which, of course, is a case as between a daughter and a mother, is certainly distinguishable. There, the daughter, who did not understand the transaction, signed the document at the request of her mother. The only advice which the daughter received was that of a Solicitor, who also ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 44 acted for the mother and the money-lenders, who duped the daughter and who prepared the documents. It was in those circumstances the Court of Appeal held that the daughter was under the undue influence of her mother when she entered into the transaction in .
question and as the money-lenders had notice of the facts which constituted undue influence on the part of the mother, the transaction must be set aside. The facts of our case are entirely different.
14. Learned counsel for the first respondent rests his case in the alternative on of the inadequacy of consideration which was more or less the sole ground on which the lower Court found a case of undue influence. The Court thought that the price paid under rt Ex. B-2 was ridiculously low. We have already referred to the fact that the plaintiff came to Court with inconsistent plea and she was not able to substantiate her case of undue influence, by concrete evidence. The sale is both the life estate and the vested remainder. But the lower court did not have this in mind and went on evaluating the property on some uncertain evidence regarding the income which it fetched and came to the conclusion that the price paid was ridiculously low, and therefore, the document should be set aside.
Ex. A-17 dated 3-3-1965 furnished data with reference to some other property but said to be similar. This was proved by P. W. 2, who asserts that the suit land would fetch an annual rent of Rs. 5,000/-. Reliance is also placed on Ex. A-37 which is a diary said to have been written by the second defendant. Apart from the fact that this diary appears to be a book, which cannot be relied upon in a Court of law, the entry therein does not show that the amount mentioned therein related to one year's period only. But according to the Court below Ex. A-41 dated 1'4-12-1950 and Exs. A-60 dated 25-1-1962 and A-61 provided clinching evidence about the income. The mother was a party to Exhibits A-60 and A-61. The lower Court accepted the materials furnished under Exs. A-41, A-60 and A-61 and ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 45 came to the conclusion that the annual rent yield from the property would be about Rs. 3,500/- to Rs. 4,250/-. Prima facie it appears that a sale of a property for a sum of Rs. 10,000/- when its annual yield is in the range of Rs. 3,000/- to Rs. 4,000/-is not a fair .
transaction. But as we said, the second defendant, who is a party to Ex. B-2 had a life- interest over the property and she was selling her life-interest also under it. The second defendant is still alive. The document is of the year 1964, Even now she is reported to be hale and healthy. For six years, therefore, that is, six years before the suit, she lost her annual of income of Rs. 4,000/- subsequent to the institution of the suit, she has lost another like sum. In cases where it is necessary to take subsequent events into consideration, the Court is not powerless to view those events rt also and weigh the reality of the situation or the equity of the bargain. If the mother has lost Rs. 48,000/- so far which ought to form part of the consideration, then the property should be deemed to have been sold for a sum of Rs. 60,000/- in 1964. This is not an unfair price even if the annual yield was about Rs.
4,000/-. This was not borne in mind by the learned Judge. The lower Court apparently was of the view that it was the plaintiff and the plaintiff alone who was entitled to the property on the date of sale and it is in that light, it considered the issue whether the price paid was ludicrously low. The plaintiff's case is that the property could have fetched only a sum of Rs. 40,000/-. Even on the date of suit, the consideration which should be deemed to have passed under the sale was very near that amount. But this is not all. The entirety of the transaction must be taken into consideration and the necessity for the sale, are all factors which should necessarily be borne in mind before a transaction could be set aside on the ground that the price paid therein is so low that it could be said to have been tainted by undue influence. In A. S. No. 644 of 1972 this Division Bench held :
::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 46"When once it is proved that the properties in question were sold for a consideration by the vendor without being influenced either by coercion or by undue influence then the question as to why he had sold the property may not loom large.
.
More so in the instant case when the father of the vendor himself had attested the said document ... ... ..."
For the above reasons, we are unable to share the view of the trial court that Ex. B-2 should automatically fail and be held as an inoperative document on the only ground that of prima facie the consideration is not adequate.
... ... ... ... ... ... ...
16.
rt On the ground that what was sold was
the life-interest and the ultimate remainder of the plaintiff in the property and that the price, therefore, paid therein cannot be said to be inadequate, for the mother parted with her life-interest, the value of which is considerable and on the ground that the mother cannot be said to have exercised any undue influence over her daughter and lastly on the ground that the suit itself should be held to be barred by limitation, we accept the dismissal of the suit made by the court below and would also hold that the plaintiff has failed to prove that Exhibit B-2 has to be set aside or cancelled on the ground that her mother or any of her near relations unduly influenced her to be a party to it."
The above referred judgment is also not applicable to the facts of the present case, as the alleged gift deed, Ex. DA, was executed by Raghu Ram (deceased original plaintiff) presuming that the same is a document giving effect to private family partition and when he came to know about ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 47 the mis-representation/fraud committed by the defendants on him, he immediately maintained a suit by engaging an Advocate.
.
30. The Hon'ble High Court of Allahabad in Smt. Munni Devi vs. Smt. Chhoti and others, AIR 1983 Allahabad 444, has held that promise is not enforceable in law where a of gift deed of property executed by mother in favour of only daughter with promise by daughter of being looked after rt and maintained throughout her life. Apt para of the judgment is reproduced hereinbelow:
"7. The plaintiff-respondent's allegation that the defendant-appellant was residing with her and was solicitous of her comfort and assured to look after her and maintain her throughout her life was probably true, for the defendant-appellant was the plaintiff-
respondent's only daughter, so too the desire of the defendant-respondent to settle her property on the defendant-appellant by way of gift-deed which was executed on 6th Dec. 1963. There was nothing unnatural or improbable in the plaintiff-respondents' expectation that in case of need the defendant-appellant would look after her and maintain her though at the same time the plaintiff-respondent hoped that she would never have to look to her daughter for maintenance and for that purpose she had four bighas of land reserved with her. It, however, appears that some two years before the suit the defendant-appellant shifted to her husband's place. Probably, that was the proper thing for her to do. But the plaintiff- respondent transferred the remaining four ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 48 bighas of land to her brother. It may be that her brother got that sale-deed executed by some sort of undue influence or it may be that the plaintiff-respondent thought that that was the best thing for her to do.
Nevertheless, this act of the sale of the .
remaining property by the plaintiff-
respondent to her brother seems to have annoyed the defendant-appellant, at any rate her husband and that seems to have led to the litigation. The facts so far did not admit of much controversy. The question is of their legal effect and the rights of the parties. The plaintiff-respondent undoubtedly had the of right to sell off the remaining four bighas of land to whomsoever she pleased. That sale could not detract from her right to maintenance against the defendant-appellant rt in case she had any such right in law. So far as the plaintiff's claim for cancellation of the gift-deed was concerned, that was clearly barred by limitation. Under the circumstances, the only claim that could properly be considered by the Court was the plaintiffs claim for maintenance that was made in the alternative. The foundation of that claim is to be found in S. 20 of the Hindu Adoptions and Maintenance Act, 1956. The assurance or the promise, which the plaintiff might have had or might have believed to have had from the defendant-appellant of being looked after and maintained throughout her life when she made the gift is not enforceable as such in law, because the gift must have been made on account of natural love and affection and not in consideration of the said assurance or promise."
The judgment is applicable to the facts of the present case.
31. The Hon'ble High Court of Karnataka in Savithramma vs. H. Gurappa Reddy and others, AIR 1996 Karnataka 99, has held allegation of fraud and ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 49 misrepresentation are high allegations and it can be rated on par with criminal trial. Relevant para of the judgment (supra) is extracted below:
.
"8. In need to dispose of this aspect of the matter which 1 propose to do on a very clear cut consideration. The position that emerged was that after the death of Kalappa Reedy, it was necessary that the legal heirs be brought on record. The wife and the sons were infact impleaded and it is true that the remaining of family members were not impleaded, particularly the four married daughters. The position would have been entirely different if the remaining family members were rt impleaded and only the present applicant was not in which case there might have been some basis for the allegations that have been made. Furthermore, what needs to be stated is that the matter came to be negotiated and it is impossible for any court to attribute dishonesty, mala fides or any other such imputations to the parties in the absence of very strong and cogent material. To my mind, had the matter been compromised in a manner whereby only the land belonging to the present applicant was conceded to Gurappa Reddy, there might have been some warrant for the allegations. On an examination of the facts, I find that an even larger portion of the land belonging to the other heir has been made a part of the compromise. This clearly indicates that there was neither any hostility, ill will nor any form of involvement but that the negotiation for whatever it was worth, was carried on and that it was according to the best judgment of the parties who were before the Court at that time that the compromise was carved out and recorded. It is a well settled law that even within the province of civil litigation when an allegation of misrepresentation or fraud is made, that the level of proof required is extremely high and is rated on par with a criminal trial. On the basis of the material ::: Downloaded on - 15/04/2017 21:28:52 :::HCHP 50 before the Court here, it would therefore be impossible to uphold the charge that the compromise decree stood vitiated on grounds of either misrepresentation or fraud. To my mind, therefore that contention cannot be upheld."
.
In the case in hand, the allegation of mis-
representation/fraud has been sufficiently proved by the plaintiff without any doubt, therefore, the judgment is not of applicable to the present case.
32. The Hon'ble High Court of Himachal Pradesh in rt Upasna & others vs. Omi Devi, 2001(2) Current Law Journal (Himachal Pradesh) 278, document of gift deed has been found to be valid and proper. Apt text of the judgment is as under:
"17. .... ... ... ... ...the allegation of fraud, coercion and undue influence could not be proved by the plaintiffs and as such both the Courts below have rightly held that the plaintiffs have failed to prove that the gift deed was as a result of fraud, coercion and undue influence. The possession of the land in dispute was given to the defendant and the mutation of entry in the revenue record in her name was made by the Patwari in the presence of Beli Ram during his life time. The execution of the gift deed was the personal right of the donor and since Beli Ram had not assailed the gift made by him in favour of the defendant during his life time, the plaintiffs have failed to establish that the donee had not rendered any service to the donor during his life time. The gift has been validily made by the donor in favour of the donee voluntarily and with his free will ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 51 and accepted by the donee it cannot be said that the gift was induced by undue influence under Section 16(2) & (3) of the Indian contract Act, 1872 and was as a result of fraud as defined under Section 1 of the Act. The ratio of the judgment in Ladli Parshad .
Jaiswal vs. The Karnal Distillery Co., Ltd.
Karnal & ors.. Air 1963 Supreme Court 1279 strongly relied on by the learned counsel for the plaintiffs in my view does not advance the case of the plaintiffs that the gift in question was as a result of undue influence under S. 16(2) & (3) of the Contract Act, 1872. In Subhas Chandra Das Mushib v. Ganga Prasad of Das Mushib & ors., AIR 1967 Supreme Court 878, it has been observed that law under Section 122 of the Transfer of Property Act, 1882 as to undue influence is the same in case of a gift inter vivos as in case of a contract. It rt has further been held that the court trying a case of undue influence under Section 16 of the Contract Act, 1872 must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor, and (2) has the donee used that position to obtain an unfair advantage over the donor? Upon the determination of these issues a third point emerges, which is that or the onus probandi.
If the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence is to lie upon the person who was in a position to dominate the will of the other. The judgment further proceeded to observe that merely because the parties were nearly related to each other or merely because the donor was old or of weak character, no presumption of undue influence can arise. In this view of the matter, as noticed hereinabove, the plaintiffs have miserably failed to establish that the gift deed was executed by donor in favour of the donee under undue influence or fraud. ... ...::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 52
In the present case, the plaintiffs have proved on record that gift deed, Ex. DA, was the result of mis-
representation/fraud, therefore, the judgment is of no help .
to the defendants.
33. The Hon'ble High Court of Himachal Pradesh in Shri Kripa Ram and others vs. Smt. Maina, 2002(2) Shimla of Law Cases 213, has held there is presumption of correctness of endorsement on a document. Relevant paras of the rt judgment are extracted hereunder:
"10 Section 60 of the Registration Act specifically provides that certificate endorsed on the document, registered by the Registrar, shall not only be admissible in evidence for the purpose of proving that document has duly been registered in the manner provided under the Act but also that the facts mentioned in the document referred to in Section 59 have taken place as mentioned therein.
It is now well settled that presumption of due execution of a document arises from the endorsement of the Sub Registrar under Section 60 of the Act. As far back as in 1928 Privy Council in Sennimalai Goundan and another v. Sellappa Goundan and others, AIR 1929 Privy Council 81, interpreting the provisions of Section 60 (2) read with Section 115 of the Evidence Act held that where a person admits execution before the Registrar after the document has been explained to him, it cannot subsequently be accepted that he was ignorant of the nature of transaction. In that case, the plaintiff alleged that his father and brothers, with an intention of defrauding the plaintiff of his legitimate share ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 53 in the family properties, entered into a fraudulent collusive partition. The trial Court found that plaintiff's case was proved and he decreed the suit. In appeal, it was held that the plaintiff failed to make out the alleged fraud and allowed the appeal. The decree of .
the trial Court was set aside. The Subordinate Judge had found that the partition was unequal because the land allotted to the plaintiff was less than allotted to other brothers. It was found that contemporaneously with the partition, some land that fell into the share of plaintiff Karuppa were conveyed to his second wife of Nachakkal by a registered sale deed. Nachakkal gave evidence that the transaction was bogus, as she never paid the consideration for the sale though she rt admitted execution of the sale deed before the Registrar. Her story that she was ignorant of the nature of the transaction, it was held, cannot be accepted as she had admitted the execution of the sale deed before the Registrar.
... ... ... ... ...
13. A Single Judge of this Court in Rewat Ram Sharma v. Munish Ram (RSA No. 242 of 1994) decided on December 13, 2001, relying upon Kanwarani Madna Vati, Sennimalai Goundan (supra) and Dinesh Chauhan Chandra Guha v.
Satchindannanda Mukhereji, AIR 1972 Orissa 235, held that admission of signatures on the endorsement made by the Registrar by an executant of the document in the absence of anything else to the contrary, would lead to the inference that the plaintiff was present before the Sub Registrar when the document was presented for registration and the onus to rebut the presumption under Section 60(2) of the Registration Act was heavily on the plaintiff which the plaintiff did not discharge. In that case, the case of the plaintiff was that he had borrowed some money from the defendant and had agreed to mortgage his property in favour of the defendant. The plaintiff was taken to the Tehsil Headquarters for the purpose of execution of the mortgage deed. His signatures were obtained by the ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 54 defendant by making him to believe that it was a mortgage deed and later on, the defendant proclaimed that the property has been gifted to the defendant and plaintiff realized that instead of mortgage deed, gift deed was executed from him fraudulently by .
the defendant. He repudiated the gift deed and filed a suit that the gift deed was a result of misrepresentation, fraud and undue influence on the part of the defendant. It is in this context that the Court held that Section 60(2) of the Evidence Act raises presumption as to the correctness of the endorsements made on the document by the Registering of Officer."
Again, the judgment referred hereinabove is of no help to rt the defendants as the alleged gift deed, Ex. DA, has been found to be tainted with mis-representation/fraud.
34. The Hon'ble Apex Court in N.V. Srinivasa Murthy vs. N.V. Gururaja Rao and others, (2005) 10 Supreme Court Cases 566, has held that jurisdiction under Section 100 can only be exercised in second appeal on the basis of said question of law framed at the time of admission or modified or substituted later, then the appeal is to be heard and decided only on the basis of such duly framed substantial question of law. As the mis-representation/fraud is a question of fact and now of law, so the judgment referred to hereinabove is of no help to the defendants.
::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 5535. In Jeet Kumar and another versus Jai Chand and another, 2013 (3) Him L.R. 1463, this Hon'ble High Court held as under:
.
"24. The learned Single Judge in Subramanian Asari and another Vs. Kanni Ammal Velamma, A.I.R. 1953 T.C. has held that to attract Section 126 of the Transfer of Property Act, the conditions to be satisfied are: (1) that the donor and the done must have agreed that the gift shall be suspended or revoked on the happening of a specified event; (2) such event of must be one which does not depend on the will of the donor; (3) that the donor and the done must have agreed to the condition at the time of accepting the gift and (4) that the condition should not be illegal or rt immoral and should not be repugnant to the estate created under the gift. The learned Single Judge has held as under:
"2. It is not disputed that if an absolute and indefeasible estate was created in favour of the done under Ex. II, the sole heir to succeed to that estate on the death of the done is the plaintiff. But it is argued on behalf of the appellants that the documents read as a whole will show that only a life estate was intended to be created in favour of the done. This contention does not gain any support from the clear and definite expressions used in Ex.II. The donor has unequivocally stated in the document that he is transferring all his right over the property to the done and that she is being put in possession of the property forthwith. It is also stated that from the date of the gift the done is to enjoy the property for ever with absolute powers to deal with the same and that she is to obtain Pattah for the property in her own name and to pay the tax due in respect of the property. No rights of any kind have been reserved in favour of the donor. Thus there is no scope for contending that only a life estate was created in favour of the done. On the other hand, it is clear that the demise under Ex. II was absolute. The gift was accepted by the done and she obtained Pattah for the property and continued to pay the tax in her own name. Reference to these facts is made in the hypothecation bond Ex. I to which the donor was also a party and as such it is clear that the gift came into effect.::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 56
All the same it is seen from the gift deed Ex. II that after conveying the property absolutely to the done, the donor has inserted a clause in the document intending to regulate the devolution of the property on the death of the done. That clause is to the effect that on the death of the done, the property shall not .
devolve on any of her heir but that it is to revert back to the donor himself. It is argued on behalf of the appellants that this provision amounts to a condition subsequent and that a demise subject to such a condition can be validly made. Section 126, Transfer of Property Act, is relied on in support of this contention. That section lays down that "the donor and the done may agree that on the happening of any of specified event which does not depend on the will of the donor, a gift shall be suspended or revoked."
In order to attract this provision, the conditions to be satisfied are: (1) that the donor and rt the done must have agreed that the gift shall be suspended or revoked on the happening of a specified event, (2) such event must be one which does not depend on the will of the donor, (3) that the donor and the done must have agreed to the condition at the time of accepting the gift and (4) that the condition should not be illegal or immoral and should not be repugnant to the estate created under the gift."
25. The learned Single Judge in M. Venkatasubbaiah Vs. M. Subbamma and others, AIR 1956 Andhra 195 has held that gift cannot be revoked for neglecting to maintain donor under Section 126 of the Transfer of Property Act. The learned Single Judge has held as under:
"9. The present case cannot be brought within the ambit of the section 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 under Ex. A-4.
All that could be said is that the default of the done in that behalf amounts to want of consideration of a document of gift for 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 ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 57 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."
29. In Mst. Samrathi Devi Vs. Parasuram Pandey and others AIR 1975 Patna 140, the learned Single Judge has held that handing over a gift deed to done .
amounts to valid acceptance of gift. The learned Single Judge has held as under:
"8. Mr. Premlal, however, contended that the transfer by way of gift in favour of the plaintiff purported to have been made under the document (Ext. 5) was not complete as the same was not accepted by the plaintiff, and she herself had stated to of this effect in the impugned document (Ext. D). It is true that a transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor. The fact of acceptance, however, can be rt established by different circumstances, such as by the donee's taking possession of the property or by possession of the deed of gift alone. There are numerous authorities in support of the proposition that if a document of gift after its execution or registration in favour of the donee is handed over to him by the donor which he accepts, it should amount in law to be valid acceptance of the gift. In support of this proposition, Mr. J. C. Sinha relied upon a decision of the Judicial Committee in the case of Kalyanasundaram Pillai v. Karuppa Mooppanar, (AIR 1927 PC 42). In this case, their Lordships approved the view of the Full Bench of the Bombay High Court in Atmaram Sakharam v. Vaman Janardhan, (AIR 1925 Bom 210) (FB) that where the donor of immovable property handed over to the donee an instrument of gift duly executed and attested, it would amount to the acceptance of the gift by the donee, and the donor had no power to revoke the gift even if the registration of the instrument had not taken place. This court also in Ram Chandra Prasad v. Sital Prasad, (AIR 1948 Pat 130) took a similar view and held that the fact of the deed being handed over by the donor to the donee was sufficient evidence of his having accepted the gift, and that the acceptance of the said document was a relevant fact to prove the acceptance of the gift by him. To the same effect is the view of the High Court of Travancorc and Cochin in the case of Esakkimadan Pillai v. Esakki Amma, (AIR 1953 Trav-Co
336). It is not necessary to multiply authorities in ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 58 support of this proposition. From the above, discussion, it must be held that the deed of gift executed by defendant No. 1 in favour of the plaintiff was a valid and binding document resulting in a complete transfer of the interest of defendant No. 1 in respect of the suit properties to the plaintiff."
.
30. The learned Single Judge in Kasi Ammal Vs. Vellai Gounder and another 1980 Vol. 2 Madras Law Journal 232 has held that first requirement is that a gift of immovable property should be made by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses and the second requirement is that there must be acceptance of of the gift by the done. The learned Single Judge has held as under:
"2. Under Section 123 of the Transfer of Property rt Act, a gift of immovable, property should be mad(c) by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. The second requirement is there must be acceptance of the gift by the donee. In the instant case there is no dispute regarding the compliance of the first condition. Regarding the compliance of the second condition viz., acceptance of the gift by the donee, the plaintiff herein, the appellate Court has held, that there, is no acceptance of the gift by the donee and even the original of Exhibit A-1 was not handed over to her. Exhibit A-4 recites: (Editor: The text of the vernacular matter has not been reproduced. Thus Exhibit A-1 clearly recites that the possession of the property covered under it has been handed over to the donee, the plaintiff herein. Apart from the recitals in Exhibit A-1, P.Ws. 2 and 3, the attestors to Exhibit A- 1 have also given evidence that plaintiff has accepted the gift under Exhibit A-l. Thus the twin requirements of valid execution of the gift deed and acceptance of the gift by the decree, are clearly established by the evidence on record. Exhibit A-1 shows that it is an irrevocable deed and the plaintiff's husband Seetharama Goundar has not reserved any power of revocation under Exhibit A-l. On the other hand, Seetharama Goundar has clearly stated in Exhibit A-1, that he would not revoke the settlement deed (Exhibit A-l) for any reason whatsoever. The recitals in Exhibit A-1, thus clearly establish that it is an unconditional, absolute gift in favour of the plaintiff. When there is a ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 59 valid gift under Exhibit A-1 and the property has vested in favour of the plaintiff, Seetharama Goundar is not competent to execute Exhibit B-5 and revoke the settlement deed which he had executed under Exhibit A-1. Exhibit B-5, is therefore an invalid instrument and has been rightly ignored as not .
affecting the rights of the plaintiff to the suit property which she got under the original of Exhibit A-l."
As noticed hereinabove, in this case, the donee, i.e. Jai Chand has also signed the gift, i.e. Ex.
PW2/A.
32. In Smt. Shakuntla Devi Vs. Smt. Amar Devi, AIR 1985 Himachal Pradesh 109, the Division Bench of of this Court has held that the gift not based on fraud, undue influence or misrepresentation, the cancellation of the same is not valid. Their Lordships have further held that the acceptance of a gift can be rt either expressed or implied. The Division Bench has held as under:
"6. It is contended by Shri D.D. Sud, vice Shri Chhabil Dass, learned counsel for the appellant that the gift made by Shri Sansar Singh being void, he as also his legal representatives were entitled to redeem the mortgage. It is stated by him that the gift was rightly cancelled by Shri Sansar Singh as the donees failed to fulfil the conditions contained in the gift deed. It is also urged that the possession of the property was not delivered to the donees as also the gift was not accepted by them. He has placed reliance on a decision in Mt. Anandi Devi V. Mohan Lal, AIR 1932 All 444. It is convenient to extract relevant observations made in the said decision:
"...........We accept the findings of the learned Judge as regards the value to be attached to the oral evidence called on behalf of the plaintiff and his finding that an express acceptance by Mt. Kapuri has not been proved. The learned Judge however merely finds acceptance not proved, because he disbelieves the actual case set up by the plaintiff as regards express acceptance. He never directed his mind to the vital question as to whether there was proof of acceptance within the meaning of S. 3, Evidence Act. It has been argued here by counsel for the respondents that the only acceptance under S. 122, T.P. Act, contemplated by that section is an express acceptance. We however do not find anything in the section to limit acceptance to an express acceptance, and we must take it that ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 60 acceptance may be either express or implied. As the learned Judge has not considered the question of an implied acceptance based upon circumstantial evidence at all, we must consider it. It has been argued by counsel for the appellant that the law in India based upon S. 122, T.P. Act, is similar to the .
Common Law of England with regard to acceptance.
There is no doubt that in England the law is that acceptance of a gift will be presumed unless dissent is shown. That would mean that in this case, it would be for the defendants to prove that Mt. Kapuri had dissented from the gift. Lord Halsbury in his Laws of England (Vol. 15, P. 418) says:
"Express acceptance by the done is not of necessary to complete a gift. It has long been settled that the acceptance of a gift by the done is to be presumed until his dissent is signified, even though he is not aware of the gift, and this is equally so rt although the gift be of an onerous nature or of what is called an onerous trust."
This rule of law has been applied to India by a Single Judge of the Patna High Court in the case of Muhammad Abdul Nayeem V. Jhonti Mahton. We however are not prepared to go so far. If S. 122 stopped short at saying that the gift must be accepted by or on behalf of the done as it would be natural for any person to accept a non-onerous gift, we might be prepared to hold that the English law applied in India."
The aforesaid observations in the above quoted decision do not help the appellant. The acceptance of a gift can be either express or implied. In fact, there is no evidence on record to show that the donees had dissented from accepting the gift."
33. The learned Single Judge of this Court in Mool Raj Vs. Jamna Devi and others, AIR 1995 Himachal Pradesh 117 has held that failure of donee to render services to donor or to maintain donor not specified to be a condition for revocation, in gift deed, the same cannot be revoked being not conditional. The learned Single Judge has held as under:
"27. Thus, the present gift deed, whether considered as an outcome of custom or of general law, cannot be said to be revocable one on the ground that it was executed for past and future services. When no specific condition for revocation has been made in the deed itself in the event of ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 61 failure of the donee to render services to the donor or maintain the donor, the gift cannot be revoked.
29. As held above, the gift under reference was not a conditional one and could not be revoked. But on the other hand the donor could ask for maintenance from the defendants. To the donor to .
get maintenance through the Court would amount to perpetuate her agony in case the donees were not rendering any service and were not maintaining donor. The donees in the present case are none else but donor's husband's brother's sons. It is expected of them to look after the donor who happens to be their uncle's wife. Under the circumstances, it would be essential, in the interests of justice, to direct the of donees to maintain and look after the donor properly throughout her life. Such an obligation, otherwise also rested upon the defendants and their father and this obligation becomes legal when the defendants rt have bound down themselves to render services to the donor throughout her life on account of the averments made in the gift deed. The defendants, as such, are directed to render proper services and maintain the plaintiff-donor throughout her life failing which the donor shall be at liberty to take such legal action against the donees as would be permissible to her under the law."
34. Their Lordships of the Hon'ble Supreme Court in Khushal Chand Swarup Chand Zabak Jain, Jalgaon Vs. Sureshchandra Kanhaiyalal Kochar and another, 1995 Supp. (2) Supreme Court Cases 36 have held that once execution of the gift deed is admitted, due execution under Registration Act is presumed to have been done, it being a registered document. Their Lordships have further held that the testator having divested herself of her title to the property by gift in favour of respondent after due execution and registration of the gift deed, subsequent will executed by her in favour of the appellant would not confer any right in the bequeathed property on the appellant. Their Lordships have held as under:
"4. Section 68 of the Evidence Act prescribes proof of execution of the document required by law to be attested. It says that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there by an attesting witness alive and subject to the process of ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 62 the Court and capable of giving evidence: Provided that it shall not be necessary to call the attesting witness in proof of execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, unless its execution by the person by whom it .
purports to have been executed is specifically denied.
5. It is seen from the pleadings that the execution of the document has not been denied. On the other hand the recitals in the Will executed by Raja Bai establish that she admitted the execution.
However, she stated therein that it has been obtained by fraud and misrepresentation. Fraud and misrepresentation have been specifically dealt with of and rejected by the learned Single Judge of the High Court as well as by the Division Bench. Once the execution of the document has been specifically admitted, the due execution under the Registration rt Act is presumed to have been done as the gift is admittedly a registered document. Moreover in this case, as seen from paragraph 7 of the judgment of the High Court, one attesting witness has been examined on behalf of the appellant who admitted in the cross-examination that he attested the document. Son of another attesting witness and also the son of the scribe of the document have also been examined on behalf of the respondent. That evidence was considered and the High Court found that the document has been duly proved. Under these circumstances it must be concluded that due execution of the gift deed has been proved by the respondent. It is no doubt clear from the evidence that Raja Bai retained the possession of the property. Obviously the beneficial enjoyment of the property has been retained by her for her lifetime. Under these circumstances Raja Bai having divested (sic herself) of her title to the property after due execution and registration of the gift deed, she has been divested of her right and interest except her beneficial right to enjoyment of the property during her lifetime. Therefore, the Will executed in favour of the appellant is a document which does not confer any right in the bequeathed properties on the appellant and is inconsequential. The appeal is, therefore, dismissed with costs."
35. In Kamakshi Ammal Vs. Rajalakshmi and others, AIR 1995 Madras 415 the Division Bench has ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 63 held that when there is a specific recital in deed that possession is given, the presumption of acceptance arises. The Division Bench has held as under:
"21 Further, paragraphs 3 and 4 of the plaint specifically says that Pavunambal accepted the .
settlement. Further, the plaint also says that the original settlement deeds are also filed along with the plaint. As against this particular allegation regarding the original settlement deeds being filed by the plaintiff, the written statement only states that the original settlement deeds were always with the 7th defendant and they were never in the custody of Pavunambal or plaintiff or defendants 1 to 6. In other of words, there was no allegation a all in the written statement that the original settlement deeds were stolen by the plaintiff's father (1st defendant) from the 7th defendant. The suggestion comes in only rt when PW 1 is examined. Further, DW 1, the 8th defendant does not at all depose so. We cannot accept the story of plaintiff's father or the plaintiff stealing away the original settlement deed from the 7th defendant. Once that story is not acceptable there could be the necessary inference that the original settlement deeds were given over to the donee Pavunambal at the time of the gifts. In Samrathi v.
Parasuram (AIR 1975 Pat 140) also it has been held, relying on Kalyana-sundaram Pillai v. Karuppa Moopanar (AIR 1927 PC 42) and Atmaram Sakharam v. Vaman Janardhan (AIR 1925 Bom 210 (FB)), that the fact of the gift deed being handed over by the donor to the donee, was sufficient evidence of his having accepted the gift. Learned counsel for the appellant was vehemently contending that despite the settlement deed, the 7th defendant alone continued to possess and enjoy the property and that there was also no mutation of names in the Municipal register pursuant to the settlements. According to him, from this, it can be inferred that there was no acceptance of the gift by the donee. But, we are unable to accept this contention. Even assuming that the 7th defendant continued to possess and enjoy the property alter the above referred to settlements, that by itself would not necessarily lead to the inference that there was no acceptance by the donee of the gifts. Even after accepting the gifts, the donee Pavun- ambal could have allowed her father, the 7th defendant to enjoy the income from the properties ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 64 settled in view of the relationship of father and daughter between the donor and donee. Further, Exs.A.3 and A.4 specifically recite that possession has been handed over to the donee. When such recital is there, a presumption arises that possession has been handed over to the donee. (Vide Fatima Bibi v.
.
Khairum Bibi (AIR 1923 Mad 52). No doubt, it may be rebuttable presumption. But, in the present case, delivery of possession of the gifted property is not absolute requirement, for the completeness or the validity of the gift as found in Muslim Law of Gifts. All that we have to find in the present case is whether there was acceptance of the gift by the donee. Even assuming that the donor continued to be in of possession and enjoyment of the property gifted, from that alone, it cannot be necessarily inferred that acceptance by the donee of the gift was not there. No doubt in Venkatasubbamma v. Narayana-swami rt (1954) 1 Mad LJ 194: (AIR 1954 Mad 215) it was held that the facts relied on to draw an inference of acceptance must be by acts of positive conduct on the part of the donee, and not merely passive acquiescing such as standing by when the deed was executed or registered. But, the facts in the present case are different as mentioned above and there are enough features as mentioned above to at least hold that there was implied acceptance of the gifts in question. Even (1954) 1 Mad LJ 194 (supra) has held that law requires acceptance, which may even be implied. Therefore, we concur with the Court below in holding that Exs.A.3 and A.4 settlements are valid."`
36. In Naramadaben Maganlal Thakker Vs. Pranjivandas Maganlal Thakeer & Ors. 1997(1) S.L.J. 80, their Lordships of the Hon'ble Supreme Court have held that execution of a registered gift deed, acceptance and delivery of property together make the gift complete. Their Lordships have held as under:
"3. It is now well settled legal position that a document has to be read harmoniously as a whole giving effect to all the clauses contained in the document which manifest the intention of the persons who execute the document. The material part of the gift deed reads as under:
"The said immovable property as described above with the ground floor and with the ways to pass and with the water disposal and with all other ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 65 concerned rights, titles is gifted to you and the possession whereof is handed over to you under the following conditions to be observed by you and your heirs and legal representatives as long as the Sun and the Moon shine. Therefore, now I or my heirs or legal representatives have no right on the said property.
.
You and your heirs and legal representatives have no right on the said property. You and your heirs and legal representatives have become the exclusive owners of the same. You and your heirs and legal representatives are entitled to enjoy, to transfer or to use the said property as you like under the conditions mentioned in this deed. id immovable property as described above with the ground floor and with the of ways to pass and with the water disposal and with all other concerned rights, titles is gifted to you and the possession whereof is handed over to you under the following conditions to be observed by you and your heirs and legal representatives as long as the Sun and rt the Moon shine. Therefore, now I or my heirs or legal representatives have no right on the said property. You and your heirs and legal representatives have no right on the said property. You and your heirs and legal representatives have become the exclusive owners of the same. You and your heirs and legal representatives are entitled to enjoy, to transfer or to use the said property as you like under the conditions mentioned in this deed. Except myself, there is nobody's right, title, interest or share on the said property: I have not mortgaged the same by any document. Yet however anybody comes forward to claim the fight, I shall remove the same. The said property is gifted to you on such conditions that and you are made owners by the gift deed of said property on such conditions that there are 15 rooms on the said property at present. I am rightful to receive the rents and the mesne profit whatsoever accused from the said rooms throughout my life. I am only entitled to receive the mesne profit of the said property till I live. Therefore, I, the executants, shall be entitled to let out the said buildings (rooms), to receive the rent amount to make all the other arrangement throughout my life. Similarly, the said property shall be in my possession till I live. Therefore, I have gifted this property to you by reserving permanently my rights to collect the mesne profit of the existing rooms throughout my life. And by this gift deed the limited ownership right will be conferred to ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 66 you till I live. After my death you are entitled to transfer the said property. I shall not give in any way my right to anybody to collect the mesne profit. You may get transferred the said property in your name in support of this deed. This gift deed is executed to you under the aforesaid conditions."
.
4. The material part of the cancellation deed reads as under:-
"I have, on 15.5.65, executed a conditional gift deed of Rs.9,000/- in words Rupees nine thousand in favour of you. The said deed has been presented in the office of the Sub Registrar, Baroda at Sr. No. 2153 of the book no. 1 and it is registered on 15.5.65. The description of the property mentioned in the said of deed is as under:
"I executed to you a conditional gift deed of the said property from sky to earth. You had promised me to fulfil the oral conditions between us. But immediately rt after making the gift accordingly, you denied to fulfil the said conditions. The possession of the gifted property is not handed over to you. So in fact you have not accepted the conditional gift of the property and I am also not willing to act according to the conditional gift. It is also mentioned in the said conditional gift deed that the possession shall be kept with me. And so accordingly my possession is continued. My possession is from the beginning and it is permanent. You are not ready to act according to our conditions. Therefore, I have to execute immediately this deed of cancelling the conditional gift deed between us. Therefore, I hereby cancel the conditional gift deed dated 15.5.65 of Rs.9,000/- in words rupees nine thousand presented at the serial no. 2153 on 15.5.65 in the office of the Sub Registrar Baroda for registration. Therefore, the said conditional gift deed dated 15.5.65 is hereby cancelled and meaningless. The property under the conditional gift has not been and is not to be transferred in your name."
6. Acceptance by or on behalf of the done must be made during the life time of the donor and while he is still capable of giving.
7. 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. Thereafter, the donor is divested of his title and the done becomes the absolute owner of the property. The question is: whether the gift in question ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 67 had become complete under Section 123 of the TP Act? It is seen from the recitals of the gift deed that Motilal Gopalji gifted the property to the respondent. In other words, it was a conditional gift. There is no recital of acceptance nor is there any evidence in proof of acceptance. Similarly, he had specifically .
stated that the property would remain in his possession till he was alive. Thereafter, the gifted property would become his property and he was entitled to collect mesne profits in respect of the existing rooms throughout his life. The gift deed conferred only limited right upon the respondent- donee. The gift was to become operative after the death of the donor and he was to be entitled to have of the right to transfer the property absolutely by way of gift or he would be entitled to collect the mesne profits. It would thus be seen that the enjoyment of the property during his life time. The recitals in the cancellation deed is consistent with the recitals in the rt gift deed. He had expressly stated that the respondent had cheated him and he had not fulfilled the conditions subject to which there was an oral understanding between them. Consequently, he mentioned that the conditional gift given to him was cancelled. He also mentioned that the possession and enjoyment remained with him during his life time. He stated, " I have to execute immediately this deed of cancelling the conditional gift deed between us. Therefore, I hereby cancel the conditional gift deed dated 15.5.65 of Rs. 9000/- in words rupees nine thousand presented at the Serial no. 2153 on 15.5.65 in the office of the Sub-Registrar Baroda for registration. Therefore, the said conditional gift deed dated 15.5.65 is hereby cancelled and meaningless. The property under the conditional gift has not been and is not to be transferred in your name." Thus, he expressly made it clear that he did not hand over the possession to the respondent nor did the gift become complete during the life time of the donor. Thus the gift had become ineffective and inoperative. It was duly cancelled. The question then is: whether the appellant would get the right to the property? It is not in dispute that after the cancellation deed dated June 9, 1965 came to be executed, duly putting an end to be conditional gift deed dated May 15, 1965, he executed his last Will on May 17, 1965 and died two days thereafter."
::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 68In the instant case, the gift deed is registered and the possession as per recital contained in the gift has been handed over to the done, i.e., Jai Chand.
37. The learned Single Judge in Tokha Vs. Smt. Biru and others AIR 2003 Himachal Pradesh 107 has held that once the possession of immovable property .
viz land delivered to done, the gift is complete and when no condition of revocation in gift deed in case services were stopped to be rendered by done, the gift deed cannot be termed as conditional and revocable one. The learned Single Judge has held as under:
"22. In the case in hand there is no specific condition either for giving maintenance or for of revoking of the gift deed in case services are stopped to be rendered by the donee. Anyway, the fact remains, as has been stated in the deed of gift that the gift was in lieu of services meaning thereby that rt the donee had to render services to the donor- plaintiff but in the absence of any specific condition in the event of failure of the donee to render services, the gift could not be revoked. Thus, the deed of gift Ext. D-1 if considered as an outcome of general law cannot be said to be revocable one when no specific condition for its revocation has been made in the deed Itself in the event of failure of the donee to provide services to the donor or maintain the donor, the gift cannot be revoked.
23. In that view of the matter, and in the light of the above said decisions of various High Courts, the first appellate Court acted illegally in considering the document of gift to be conditional and revocable one.
The above first question of law accordingly stands answered in favour of the defendants and as a consequence thereof it is held that deed of gift Ext. D- 1 was unconditional, it could not be revoked on account of the failure of donee (since deceased) to render services or to maintain the plaintiff.
29. In Thakur Raghunath Ji Maharaj v. Ramesh Chandra, (2001) 5 SCC 18 : AIR 2001 SC 2340 the facts were that land was gifted for a specific charitable purpose for constructing a Degree College building thereon with the condition attached to it that if the building was not constructed within six months the deed would come to an end and donor would become entitled to the property. An agreement was also executed on the same day when the deed of gift was executed. In the facts of that case their Lordships held ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 69 that relationship between the donor and donee was fiduciary nature, donee continued to be trustee and donor could claim back the property on breach of the conditions mentioned therein and donee having failed to fulfil the conditions the suit for possession filed by the donor was rightly decreed by the first appellate .
Court. The ratio of this judgment is not applicable in the facts of the present case. In the case on hand the agreement Ext. PW-3/A was not executed on 12-1- 1984 when the deed of gift was executed by the plaintiff in favour of donee Singh whereas the alleged agreement was only executed on 5-3-1984 just one day prior to the registration of the deed of gift on 6-3- 1984 and in these circumstances the deed of gift and of the agreement would not form part of the same transaction and cannot be read together and given effect to as held by the first appellate Court."
38. rt The learned Single Judge in Balai Chandra Parui Vs. Smt. Durga Bala Dasi and others, AIR 2004 Calcutta 276 has held that in the absence of coercion, fraud and undue influence, the gift deed could not be revoked. The learned Single Judge has held as under:
"31. Now, let me come to the submissions of the learned counsel for the respective parties as well as the document on record. From the evidence on record and from the judgments and decrees passed by the Court-be-low it appears that there are some facts which are admitted. Such as Smt. Durga Bala Devi executed the deed of gift in favour of Mr. Balai Chandra Parul that is the defendant/said Balai Chandra Parui accepted the deed of gift. In the said deed of gift there remains three attesting witnesses. One Sri Ganesh Chandra Das, the deed writer, another Sri Patitosh Chakraborty and the third is Sri Sarada Charan Das. In the last line of the deed it has been written in Bengali Sri Balai Chandra Parui read and explain the purport of the deed of gift to Smt. Durga Bala Devi the donor herein. Up to this stage everything is admitted and/or comes out of record. Now, let me see the provisions of Section 42 and Section 126 of the Transfer of property Act, Both the Sections are quoted hereinbelow :-
"42. Transferred by person having authority to revoke former transfers - where a person transfers any immovable property, reserving power to revoke the transfer, and subsequently transfers the property ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 70 for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of power."
.
"126. When gift may be suspended or revoked -the donor and donee may agree that on the happening of any specified which does not depend on the Will of the donor a gift shall be suspended or revoked; but a gift which the parties agreed shall be irrevocable wholly or impart, at the mere Will of the donor, is void wholly or impart, as the case may be. Gift may also be revoked in any of the cases (save want or of 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 effect the rights of transferees for rt consideration without notice."
33. The above being the position there I is no scope in normal course for revocation of a deed of gift when the said deed of gift i was executed by the donor accepted by the ! donee and registered by the registering authority. From the provisions of Registration Act it is clear that the registering authority I shall enquire . This term "shall Enquirer" is really important and most relevant here. The Transfer of Property Act also provides that normally a deed of gift cannot be revoked. The Registration Act as referred to above also provides that the registering officer will satisfy himself about the identity of the parties. Therefore, identification and enquiry about the execution of deed of gift completes the deed.
34. Reading the provisions of Section 42 and Section 126 of the Transfer of Property Act the ratio which comes out is that the deed of gift can be revoked if there is an agreement for revocation. In such circumstances the deed of gift is not at all a gift because if somebody agrees to gift some property to anybody at the same time the donor retains the power to revoke the deed then it cannot be termed to be a deed of gift.
34A. The deed of gift however can be revoked :-
(i) If there is any prior condition that the gift can be ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 71 revoked or if the deed of gift has been executed under undue influence or donee commits fraud. The Registration Act also give support to the conditions that Registration or execution of the deed-is done after the satisfaction of the registered regarding identification.(ii) If the donee obtain the deed .
of gift executing under influence or committing fraud.
These are the three conditions 'in which the deed of gift can be revoked. Let me now see whether either of the three conditions successfully prevailing over the first deed of gift which was executed and registered.
35. Second question remains the question of coercion.
This coercion is not the point involved in the instant of case inasmuch as it is nobody's case that the first deed 'of gift executed in favour of the defendant was done under undue influence."
39. rt Their Lordships of the Hon'ble Supreme Court in Asokan Vs. Lakshmikutty and others (2007) 13 Supreme Court Cases 210 have held that in order to constitute a valid gift acceptance thereof is essential.
Their Lordships have further held that there may be various means to prove acceptance of a gift. The document may be handed over to a done, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. Their Lordshps have also held that once a gift is complete, the same cannot be rescinded. And for any reason whatsoever, the subsequent conduct of a done cannot be a ground for rescission of a valid gift. Their Lordships have further held that when a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. Their Lordships have held as under:
"11. Mr. M.P. Vinod, learned counsel appearing on behalf of the appellant, submitted that the first Appellate Court as also the High Court committed a serious error in arriving at the aforementioned findings insofar as they failed to take into consideration the fact that the deeds of gift being not onerous ones and the factum of handing over of possession of the properties which were the subject matter of the gift, having been stated in the deeds of gift themselves, it was not necessary for the appellant to prove that he accepted the same. It was ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 72 furthermore urged that keeping in view the provisions of Sections 91 and 92 of the Indian Evidence Act, no plea contrary to or inconsistent with the recitals made in the deeds of gift is permissible to be raised.
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 of
(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 rt 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 donee also raises a presumption of acceptance. [See Sanjukta Ray v. Bimelendu Mohanty AIR 1997 Orissa 131, Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415 and Samrathi Devi v. Parsuram Pandey AIR 1975 Patna 140]
16. While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. It is not a case that the appellant was not aware of the recitals contained in deeds of gift. The very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometime indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift.
18. Mr. Iyer, however, submitted that it would be open to the donors to prove that in fact no possession had been handed over. Strong ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 73 reliance in this behalf has been placed on S.V.S. Muhammad Yusuf Rowther and another v. Muhammad Yusuf Rowther and other [AIR 1958 Madras 527] and Alavi v. Aminakutty & Others [1984 KLT 61 (NOC)].
22. Section 91 of the Indian Evidence Act covers .
both contract as also grant and other types of disposal of property. A distinction may exist in relation to a recital and the terms of a contract but such a question does not arise herein inasmuch as the said deeds of gift were executed out of love and affection as well as on the ground that the donee is the son and successor of the donor and so as to enable him to live a good family life.
of
23. Could they now turn round and say that he was to fulfill a promise? The answer thereto must be rendered in the negative. It is one thing to say that the execution of the deed is based on rt an aspiration or belief, but it is another thing to say that the same constituted an onerous gift.
What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Indian Contract Act. It was not done. The deeds of gift categorically state, as an ingredient for a valid transaction, that the property had been handed over to the donee and he had accepted the same. In our opinion, even assuming that the legal presumption therefore may be raised, the same is a rebuttable one but in a case of this nature, a heavy onus would lie on the donors.
26. It will bear repetition to state that we are in this case concerned with the construction of recitals made in a registered document.
30. Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift."
40. The learned Single Judge in Bakhtawar Singh and others Vs. Jagdish and another, Himachal Law Reporter 2012 (2) 6 has held that delivery of possession is only one of the means but not the sole mean of accepting the gift. The learned Single Judge has held as under:
"9. Be that as it may, for the reasons stated above I am of the considered view that delivery of possession is only one of the means but not the sole ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 74 mean of accepting the gift. This answers the third question now framed."
The judgment referred to hereinabove is of no help, as the .
gift deed, Ex. DA, here in the present case is proved to be the result of mis-representation/fraud.
36. Now the law, as cited by the learned Senior of Counsel for respondents No. 1, 3(a), 3(f), 4 to 6 & 14(a) to 14(g), is required to be scanned in depth.
37. rt In Moti vs. Roshan and others, AIR 1971 Himachal Pradesh 5 (V 58 C2), this Hon'ble High Court has held that the Trial Court should not only ascertain the matters really at issue between the parties but also see that the evidence given by each of the parties corresponds to the claim or right pleaded by them. Apt para of the judgment (supra) is extracted hereinbelow:
"11. The Trial Court should not only ascertain the matters really at issue between the parties, but it should also take care to see that the evidence given by each party corresponds to the claim or right pleaded by the party. In other words, it has to see that the pleadings and proof correspond. In the instant case, the trial Court failed to perform that elementary duty. The plaintiff cannot take advantage of it and ask this Court to hold that the gap in evidence had been filled up because neither the plaintiffs nor the defendants had seen it earlier."::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 75
In the present case, the plaintiff has convincingly and conclusively proved on record that the original plaintiff .
(Raghu Ram) was mis-represented/defrauded by the defendants in execution of alleged gift deed, Ex. DA.
38. In Ku. Sonia Bhatia vs. State of U.P. and others, AIR of 1981 Supreme Court 1274, the Hon'ble Supreme Court has held gift is a transfer without consideration and in fact where rt there is consideration it ceases to be a gift. Love, affection spiritual benefit etc. are held to be filial considerations and not the legal considerations as understood by law.
Monetary consideration are held to be completely foreign to the concept of gift having regard to the nature, character and the circumstances under which such a transfer takes place. Relevant para of the judgment is extracted below:
"20. from a conspectus, therefore, of the definitions contained in the dictionaries and the books regarding a gift or an adequate consideration, the inescapable conclusion that follows is that 'consideration' means a reasonable equivalent or other valuable benefit passed by the transferor to the transferee, similarly, when the word 'consideration' is qualified by the word 'adequate', it makes consideration stronger so ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 76 as to make it sufficient and valuable having regard to the facts, circumstances and necessities of the case. It has also been seen from the discussions of the various authorities mentioned above that a gift is undoubtedly a transfer which does not contained any .
element of consideration in any shape or form. In fact, where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour. It has been rightly pointed out in one of the books referred to above that we should not try to confuse the motive or the purpose of making of a gift with the consideration which is the subject matter of the gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these filial considerations cannot be rt called or held to be legal considerations as understood by law. It is manifest, therefore, that the passing of monetary consideration is completely foreign to the concept of a gift having regard to the nature, character and the circumstances under which such a transfer takes place. Furthermore, when the legislature has used the word 'transfer' it at once invokes the provisions of the Transfer of Property Act. Under Section 122 of the Transfer of Property Act, gift is defined thus:
" '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.
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."::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 77
In the present case, there is no question with respect to donee not accepting the gift, so the judgment is of no help to the plaintiffs.
.
39. The Hon'ble High Court of Allahabad in Smt. Mallo vs. Smt. Bakhtawari and others, AIR 1985 Allahabad 160, has held that mere admission by executant donor of about the existence of gift deed obtained by fraud did not dispense with proof of attestation. Apt para of the rt judgment (supra) is reproduced below:
"13. In AIR 1972 Gauh 44 it was held that the 'Attestation' and 'Execution' are two different acts, one following the other in the order stated. Attestation is meant to ensure that the executant was a free agent, and not under pressure nor subject to fraud while executing the same.
13.A. In view of law laid down it has now to be seen as to whether the witnesses for attestation were required to be produced. In the present case the validity of the gift deed was specially denied, in the sense that the document had no effect in law. In such circumstances it was necessary for the donee to have produced the attesting witnesses of the gift-deed. The appellate Court on the assessment of evidence found that the attestation of gift deed in question was not proved rather it was dispro9ved. In view of that finding the Appellate Court correctly held that the gift-deed in question did not confer any right on donee the defendant-appellant in respect to the property in question."::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 78
The judgment referred to hereinabove is applicable to the facts of the present case, as the plaintiff has proved on record that the alleged gift deed, Ex. DA, was the result of .
mis-representation/fraud.
40. The Hon'ble Apex Court in Digambar Adhar Patil vs. Devram Girdhar Patil (died) and another, AIR 1995 of Supreme Court 1728, has held that entries in records of rights maintained in official course of business is a relevant piece rt of evidence in case where there is requirement of proof qua factum of partition. Relevant para of the judgment is extracted hereunder:
"5. We find no force in the contention.
Section 32B clearly postulates that the land held as an owner or as a tenant alone should be taken into consideration to determine ceiling limit and if the land held as owner or tenant is within the ceiling limit, he shall be entitled to purchase the land held by him as a tenant. Admittedly, the respondent held the land as an owner to the extent of 36 acres 1 gunta. The area of dispute is only in respect of the land held by his minor son and the land allotted at a partition to his brother Ram Chander. With regard to the land held by the son, even assuming that it is a joint family property for the purpose of the Act and it is includable in his holding yet he is within the ceiling limit, namely, 43 acres 35 guntas. As rightly held by the High Court he cultivated it on behalf of his minor son. As to the land allotted to the brother of the respondent, the Tribunals below negatived it on two grounds, namely, in the cultivation column of the ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 79 Revenue records, it was shown that the respondent had cultivated the land and no documentary evidence of partition was produced before the authorities. The Tribunals below did not advert to the entries in the Record of Rights or to the factum of partition, .
while the High Court has taken this factor into consideration, which in our considered view had rightly been taken into account. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even of in the evidence of Ram Chander, he dearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the rt partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it."
The judgment is not applicable to the facts of the present case.
41. The Hon'ble Supreme Court in another case titled as Rajendra Tiwary vs. Basudeo Prasad and another, AIR 2002 (89) Supreme Court 136, has held that where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 80 granting of a smaller relief, Order VII, Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the plaintiff .
in the suit cannot be granted. Apt para of the judgment (supra) is extracted in extensor as under:
"14. Where the relief prayed for in the suit is a larger relief and if no case is made out for of granting the same but the facts, as established, justify granting of a smaller relief, Order VII, Rule 7 permits granting of such a relief to the parties. However, under the said rt provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted."
The judgment (supra) is not applicable to the facts of the present case as the relief of possession to the plaintiffs is a separate relief, which the plaintiffs have not claimed and it has come on record that the land was in the possession of the defendants, therefore, it is correct that relief can be enlarged, but a new relief of possession cannot be granted in a suit for declaration. In this context, I had considered the arguments of the learned Senior counsel for the plaintiffs that the relief is required to be enlarged for the plaintiffs, but as the relief of possession was not prayed for in the suit, this relief cannot be granted. Therefore, without their being ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 81 pleadings and evidence to that effect, this Court cannot grant the relief of possession. Thus, the findings recorded by the learned Lower Appellate Court on this account, needs .
no interference.
42. The Hon'ble Supreme Court in Krishna Mohan Kul alias Nani Charan Kul and another vs. Pratima Maity and of others, (2004) 9 Supreme Court Cases 468, has held that a person in a fiduciary relation has a duty to protect the rt interest of the person under his care and when the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the fiduciary relation to show that the transaction is perfectly fair and reasonable and no advantage has been taken of his position. This principle is embodied in Section 1 of the Evidence Act, 1872, and the corollary to this principle is incorporated in Section 16(3) of the Contract Act, 1872. Relevant paras of the judgment is extracted as under:
"12. As has been pointed out by the High Court, the first Appellate Court totally ignored the relevant materials and recorded a completely erroneous finding that there was no material regarding age of the executant when the document in question itself ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 82 indicated the age. The Court was dealing with a case where an old, ailing illiterate person was stated to be the executant and no witness was examined to prove the execution of the deed or putting of the thumb impression. It has been rightly noticed by the .
High Court that the courts below have wrongly placed onus to prove execution of the deed by Dasu Charan Kul on the plaintiffs. There was challenge by the plaintiffs to validity of the deed. The onus to prove the validity of the deed of settlement was on defendant No. 1. When fraud, mis- represendation/fraud or undue influence is of alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the latter is in a position of active rt confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with zealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The rule here laid down is in accordance with a principle long acknowledged and administered in Courts of Equity in England ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 83 and America. This principle is that he who bargains in a matter of advantage with a person who places a confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The transaction is not necessarily void ipso facto, .
nor is it necessary for those who impeach it to establish that there has been fraud or imposition, but the burden of establishing its perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. The rule applies equally to all persons standing in confidential relations with each other. Agents, trustees, executors, of administrators, auctioneers, and others have been held to fall within the rule. The Section requires that the party on whom the burden of proof is laid should have been in a position rt of active confidence. Where fraud is alleged, the rule has been clearly established in England that in the case of a stranger equity will not set aside a voluntary deed or donation, however, improvident it may be, if it be free from the imputation of fraud, surprise, undue influence and spontaneously executed or made by the donor with his eyes open.
Where an active, confidential, or fiduciary relation exists between the parties, there the burden of proof is on the donee or those claiming through him. It has further been laid down that where a person gains a great advantage over another by a voluntary instrument, the burden of proof is thrown upon the person receiving the benefit and he is under the necessity of showing that the transaction is fair and honest.
... ... ... ... ... ...
14. It is now well established that a Court of Equity, when a person obtains any benefit from another imposes upon the grantee the burden, if he wishes to maintain the contract or gift, of proving that in fact he exerted no influence for the purpose of obtaining it. The proposition is very clearly started in Ashburner's Principles of Equity, 2nd Ed., p. 229, thus :::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 84
"When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift .
unless the donee can prove that the gift was the result of a free exercise of the donor's will.
15. The corollary to tht principle is contained in sub-section (3) of Section 16 of the Indian Contract Act, 1872. "
of The judgment is fully applicable to the facts of the present case, as the defendants have mis-represented/defrauded rt the original plaintiff (deceased Raghu Ram), so the gift deed, Ex. DA, is non est and non-existent in the eyes of law.
43. The Hon'ble High Court of Punjab and Haryana in Ashwani Kumar Rana vs. Gaur Hari Singhania and others, 2005(2) SLJ 1243, has held that the tenant has no right to challenge the family settlement. Apt para of the judgment (supra) is extracted in extensor as under:
"5. After hearing the learned counsel for the parties, I am of the considered view that the tenant-petitioner has no right to challenge the family settlement as has been held by this Court in the case of Ram Lal vs. Harbhagwan Dass 1995(2) Rent Law Reporter 557. It has been repeatedly held by the Supreme Court that even oral partition of Hindu Undivided Family property is not prohibited. Reference in this regard could be made to the judgments of the Supreme Court in the cases of Nani Bai vs. Gita Bai AIR 1958 SC 706 and Roshan Singh vs. Zile Singh AIR 1988 SC 881 and ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 85 Hans Raj Agarwal vs. CII 2003(2) SCC 295. Moreover, oral partition to which reference has been made has been implemented as is evident from the fact that landlord- respondent No. 1 has to run his clinic from the passage and that father of landlord-
.
respondent No. 1 has not been paid rent by the tenant-petitioner after 7.4.1995 i.e. after the judgment and decree passed on the basis of family settlement. In such a situation no doubt can be entertained with regard to the genuineness of the oral partition. Moreover, both the Courts below have concurrently found that the need of the landlord-
of respondent No. 1 is bona-fide and it has to be considered as covered by Section 13(3)(a)(i) of the Act as interpreted by the Supreme Court in the case of Harbilas Rai Bansal vs. State of rt Punjab (1996) 1SCC 1. In Harbilas Rai Bansal's (supra) it was categorical held that the amendment incorporated by Punjab Act No. 29 of 1956 was ultra vires of Article 14 of the Constitution as it deleted the right of occupation of commercial building on the ground of personal necessity while retaining the same in respect of residential building."
The judgment (supra) is not applicable to the facts of the present case.
44. The Hon'ble Supreme Court in Hari Shankar Singhania and others vs. Gaur Hari Singhania and others, (2006) 4 Supreme Court Cases 658, has held that a family settlement is treated differently and it meets with approval of the Courts and they are also governed by a special equity principle where the terms are fair and bona fide, ::: Downloaded on - 15/04/2017 21:28:53 :::HCHP 86 taking into account the wellbeing of a family. Relevant paras of the judgment are reproduced as under:
"Family Arrangement/Family Settlement:-
.
42. Another fact that assumes importance at this stage is that, a family settlement is treated differently from any other formal commercial settlement as such settlement in the eyes of law ensures peace and goodwill among the family members. Such family settlements generally meet with approval of the Courts. Such settlements are governed by of a special equity principle where the terms are fair and bona fide, taking into account the well being of a family.43.
rt The concept of 'family arrangement or settlement' and the present one in hand, in our opinion, should be treated differently. Technicalities of limitation etc should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. Also it can be seen from decided cases of this Court that, any such arrangement would be upheld if family settlements were entered into ally disputes existing or apprehended and even any dispute or difference apart, if it was entered into bona fide to maintain peace or to bring about harmony in the family. Even a semblance of a claim or some other ground, as say affection, may suffice as observed by this Court in the case of Ram Charan v. Girijanandini Devi, AIR 1966 SC 323.
... ... ... ... ... ...
53. Therefore, in our opinion, technical considerations should give way to peace and harmony in the enforcement of family arrangements or settlements."
The judgment referred hereinabove, is also not applicable to the facts of the case in hand.
::: Downloaded on - 15/04/2017 21:28:54 :::HCHP 8745. The Hon'ble Supreme Court in yet another case titled as Ramdev Food Products (P) Ltd. Vs. Arvindbhai Rambhai Patel and others, (2006) 8 Supreme Court Cases .
726, has held as under:
"35. We may proceed on the basis that the MoU answers the principles of family settlement having regard to the fact that the same was actuated by a desire to resolve the disputes and the courts would not easily of disturb them as has been held in S. Shanmugam Pillai vs. K Shanmugam Pillai, (1973) 2 SCC 312, Kale vs. Dy. Director of Consolidation, (1976) 3 SCC 119 and Hari rt Shankar singhania vs. Gaur Hari Singhania, (2006) 4 SCC 658."
The judgment (supra) is also not applicable to the facts of the present case.
46. The Hon'ble Supreme Court in M. Venkataramana Hebbar (Dead By LRs vs. M. Rajagopal Hebbar and others, (2007) 6 Supreme Court Cases 401, has held that before the court rejects a claim for partition of joint family property, at the instance of all the co-owners, it must be established that there had been a partition by metes and bounds. Apt para of the judgment (supra) is as under:
"11. For the purpose of this case, we will proceed on the assumption that the said deed ::: Downloaded on - 15/04/2017 21:28:54 :::HCHP 88 of family settlement was not required to be compulsorily registered, in terms of Section 17 of the Registration Act as by reason thereof, the relinquishment of the property was to take effect in future. But there cannot be any doubt whatsoever that before the court .
rejects a claim of partition of joint family property, at the instance of all the co-owners, it must be established that there had been a partition by metes and bounds. By reason of the family settlement, a complete partition of the joi9nt family property by metes and bounds purported to have taken place. One of the co-sharer, however, did not join in the of said purported family settlement."
The judgment (supra) is applicable to the facts of the present rt case, as the family partition was not validated/affirmed legally by effectuating the entries in the revenue record, it stands fully established by the plaintiffs, by leading cogent evidence, that the original plaintiff (deceased Raghu Ram) had signed alleged gift deed, Ex.
DA, taking it as a document for enforcing the private family partition, which was contended to be entered into between the predecessor-in-interest of the parties 60 years ago.
47. The Hon'ble Apex Court in Bhagwan Krishan Gupta (2) vs. Prabha gupta and others, (2009) 11 Supreme Court Cases 33, has held that the doctrine of family settlement may not be applicable in stricto sensu in cases of ::: Downloaded on - 15/04/2017 21:28:54 :::HCHP 89 property being self-acquired one. However, where both brother declare each other to be owners of the property having equal shares, arrangement like family settlement is .
permissible in law, such settlement was not only in relation to the title of the property, but also to the use and possession thereof. Relevant paras of the judgment (supra) is of extracted as under:
"12. To the Revenue Authority for the purpose of mutation in respect of the rt premises in question, the testator issued a letter which reads as under:
"I, Murari Lal Gupta S/o Late Sri Ganga Ram hereby informed that I and late Girdhari Lal Gupta are real brothers from late Shri Ganga Ram, House No. C-11, Green Park Extension, New Delhi-110016 is owned jointly by myself and my aforesaid brother Late Sri Girdhari Lal Gupta. My share in the aforesaid house is one half i.e. ground floor and the other one half share i.e. Ist floor and Barsati Floor belongs to my brother late Sh.
Girdhari Lal Gupta. The completion plan of the house showing the details is enclosed herewith. The share belonging to me has been shown in red whereas the share belonging to my brother Late Shri Girdhari Lal Gupta has been shown in green.
It is requested that the division of property be made in my name & in the name of my brother's wife Smt. Subz Kali since my brother has expired. The house tax bill of the property be sent separately in future.
... ... ... ... ... ...
15. Although when a property is a self-
acquired one, the doctrine of family settlement stricto sensu may not be applicable but in a case of this nature where ::: Downloaded on - 15/04/2017 21:28:54 :::HCHP 90 both the brothers declare each other to be owners of the property having equal share therein, an arrangement between them by way of a family settlement is permissible in law. Such a family settlement was not only in relation to the title of the property but also in .
relation to the use and possession thereof."
The above referred judgment is not applicable to the facts of the case in hand.
48. In the light of what has been discussed of hereinabove, this Court finds that the findings arrived at by the learned rt Lower Appellate Court are after appreciating the oral and documentary evidence, pleadings etc. to their right and true perspective and the findings call for no interference, hence the only substantial question of law, which was framed by this Court for determination and adjudication of the present appeal and substantial questions of law framed in cross-
objections are answered as under:
Substantial question of law:
The findings of the learned Courts below are just and reasoned and gift deed, Ex. DA, has been properly appreciated by the Court below. It stands convincingly proved on record that the original plaintiff ::: Downloaded on - 15/04/2017 21:28:54 :::HCHP 91 (deceased Raghu Ram) was mis-
represented/defrauded by the defendants in making him believe that Ex.
.
DA, is a document for recording private family partition. The substantial question of law is answered accordingly.
Substantial question of law No. 1 in Cross-objection::
The plea of family partition has been of rightly decided by the learned Court below, as the plaintiffs have failed to rt prove the partition and it is the case of the plaintiffs themselves that document was executed to record partition, though they have proved that the parties are enjoying separate possession. A coparcener can be at separate possession without any partition, so the plaintiffs have failed to prove the partition, the cross-objection is answered holding that the Court below has appreciated the pleadings, oral and documentary evidence to their right and true perspective and law has been rightly applied.
Substantial question of law No. 2 in Cross-objection::::: Downloaded on - 15/04/2017 21:28:54 :::HCHP 92
As the pleadings and documents have been properly appreciated, so the judgment and decree, passed by the .
learned Lower Appellate Court is just and reasoned and needs no interference. Substantial question of law No. 3 in Cross-objection::
As the factum of family partition has not been proved conclusively, the cross-
of objection is answered accordingly.
49. rt One more substantial question of law arises for determination and adjudication in the cross-objection, which is as under:
"Whether the Court below should have passed a decree for possession after enlarging the claim."
It is found that there was no pleadings/prayer/suit for possession and simple in the suit for declaration, the Lower Appellate Court was right in dismissing the prayer of the appellant for possession.
50. In view of what has been discussed hereinabove, the judgment of the learned Lower Appellate Court does not suffer from any infirmity and the ::: Downloaded on - 15/04/2017 21:28:54 :::HCHP 93 same is legally sustainable. Thus, the net result of the discussion made hereinabove is that the appeal and cross objection, being devoid of merits, deserve dismissal and .
are accordingly dismissed. However, parties are left to bear their own costs in the facts and circumstances of the case. Pending application(s), if any, stand(s) disposed of.
of (Chander Bhusan Barowalia) Judge rt 1st November, 2016 (virender) ::: Downloaded on - 15/04/2017 21:28:54 :::HCHP