Andhra HC (Pre-Telangana)
Vigneswarapu Jaggaraju And Ors. vs Gitta, Seetha, Ratnam And Ors. on 12 December, 2006
Equivalent citations: 2007(2)ALD843, 2007(4)ALT404, AIR 2007 (NOC) 852 (A.P.)
JUDGMENT G. Yethirajulu, J.
1. This Second Appeal is preferred by the plaintiff in O.S. No. 268 of 1976 on the file of the Principal District Munsif, Narsapur. The respondents are the defendants in the suit.
2. The plaintiff filed the suit for declaration of title and recovery of possession of the plaint schedule property, damages etc. The plaint schedule property is 0-04 cents vacant land which is useful for construction of houses. The property originally belonged to defendant No. 3. Defendant No. 3 executed a registered gift deed on 26-02-1962 in favour of the plaintiff, who is no other than the son of defendant No. 3 and it was mentioned in the gift deed that the property was delivered on the same day. Defendant No. 1 lent some money to defendant No. 3 and when she failed to repay the same, defendant Nos. 1 and 2 filed a suit in Small Causes Court for recovery of the land and the suit was decreed. Subsequently, an Execution Petition was filed to bring the suit schedule property for sale and accordingly, the sale was conducted in 1976 and it was confirmed on 02-02-1976 and the property was delivered to defendant Nos. 1 and 2 on 11-03-1976. The plaintiff filed the suit on 12-07-1976 for the reliefs as mentioned above.
3. D-3 remained ex parte. D-1 and D-2 contended that D-3 executed the gift deed nominally, it was not acted upon and it is not binding on them. They further pleaded that whenever a gift is given by the donor, the donee must accept the same. As the donee was not present at the time of execution of the gift deed, it was not acted upon, therefore, no title has been transferred to the plaintiff under the gift deed. The lower Court, by accepting the contentions of the defendants, dismissed the suit and the Appeal preferred by the plaintiff was also dismissed by confirming the decree and Judgment of the trial Court. The plaintiff, being aggrieved by the Judgments and decrees of the Courts below, preferred the present Appeal.
4. The following are the substantial questions of law for consideration before this Court:
1. Whether the gift deed is not valid on the ground that the donee was not present at the time of execution to accept the gift?
2. Whether there is any perversity in the Judgments of the Courts below?
5. The defendants did not dispute the execution of the gift deed. D-3 did not deny the execution of the gift deed and she remained ex parte. Defendant Nos. 1 and 2 did not examine D-3 to show whether it was executed with an intention to act upon or it was nominally executed. The gift deed remained in force during the life time of the third defendant.
6. The learned Counsel for the appellants submitted that as per Sections 122 and 123 of the Transfer of the Property Act, the presence of the donee is not required and as there was mention in the gift deed that the delivery of the property has been effected that itself is sufficient to show that the gift deed is acted upon. He further submitted that the gift deed was delivered to the donee who presented the same along with the plaint in the Court, therefore, from the above circumstances, it can be concluded that the gift deed was acted upon and the possession was also delivered to him during the life time of the donee. He further submitted that the delivery of possession is not necessary to complete the transaction of gift and the mutation of the name of the donee in the Revenue Records is also not necessary compliance to show that the gift deed is acted upon. He further submitted that Defendant Nos. 1 and 2 being third parties to the gift deed are not entitled to question the validity and enforceability of the gift deed when the donee remains silent without disputing the execution of the gift deed and delivery of property to the plaintiff.
7. The trial Court, after discussing the evidence, came to a conclusion that the plaintiff failed to prove that Ex.A-2 gift deed is valid and is intended to be acted upon. The trial Court further observed that there are no documents filed on behalf of the plaintiffs to prove the possession and enjoyment of the first plaintiff in respect of the plaint schedule property by the date of the Court sale and held that the first plaintiff was a major by the date of the gift deed by rejecting the contention of the defendants that he was a minor as on the date of gift deed. By making the said observations, the Court came to a conclusion that the plaintiff is not entitled for the reliefs as prayed for. The appellate Court also concurred with the view expressed by the trial Court.
8. The learned Counsel for the appellants submitted under Section 68 of the Evidence Act, when the execution of the document is disputed, it is required to be proved and he further submitted that proviso introduced to Section 68 of the Evidence Act would indicate that in proof of execution of the document when registered in accordance with the provisions of the Registration Act, examination of the attesting witnesses is not necessary unless the execution of the document is specifically denied.
9. Section 68 of the Indian Evidence Act reads as follows:
68. Proof of execution of document required by law to be attested.-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 be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.
The proviso to Section 68 clearly indicates that the attesting witnesses need not be examined to prove the document, if it is a registered document, when it is not specifically denied. In the present case also, the defendants did not examine D-3, but their contention is that it is not acted upon, therefore, I am inclined to accept the contention of the plaintiff in this regard.
10. Section 122 of the T.P. Act reads as follows:
122. "Gift" defined.-"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called donee, and accepted by or on behalf of the donee.
Acceptance when to be made.- Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
Section 122 clearly indicates that the gift deed can be accepted by the donee at any time during the lifetime of the donor who is still capable of giving. The gift deed becomes void only if the donee dies before the acceptance of the ift.
11. Section 123 of the T.P.Act reads as follows:
123. Transfer how effected.- For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.
In this Section, it is clearly mentioned as to how the gift has to be effected. There is no dispute in the present case regarding the formalities that were observed in executing the gift deed. It is not the case of the defendants that the gift is revoked before acceptance or it was not kept under suspension. Had they examined Defendant No. 3 to establish that her intention was different at the time of execution of the gift deed, the position would have been different.
12. The learned Counsel for the appellants also drew the attention of this Court to certain decisions rendered by the Supreme Court and various High Courts.
13. In Kushalchand Swarup Chand v. Sureshchandra Kanhiyalal (1995) 1 S.C.J. 119, the Supreme Court observed as follows:
Section 123 of the Transfer of Property Act, 1882 postulates that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In Section 3 of the Act 'attestation' has been defined, - in relation to an instrument, it shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.
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 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.
14. In Sanjukta Ray v. Bimelendu Mohanty AIR 1997 ORISSA 131, the Orissa High Court held that the acceptance of gift by donee by mentioning in the gift deed itself is an indication that the delivery of possession was given to the donee and when the deed is in possession of the donee, it is sufficient compliance of the provisions of the Act and the recital was sufficient to establish the delivery of possession of the property.
15. In Thirunavukkarasu v. Sankariammal (2001) 3 M.L.J. 464, the Madras High Court held as follows:
The gift of immovable property should be followed by delivery of possession to complete the transaction. It is sufficient if a deed of this type is attested by two witnesses and registered. The gift is complete as soon as the gift deed is delivered to the donee. The donee has filed the gift deed in the Court which is marked as exhibit. The production of the gift deed by the donee itself would show that it has been delivered to the donee by the donor. Therefore, the question of delivery of possession of the property gifted would not assume importance for completion of the gift.
16. In Kadiya Umma v. Mayankutty , the Kerala High Court, while considering the scope of Section 68 of the Evidence Act, observed that the gift deed would not fail on the ground of want of proof of execution in the absence of pleading by the plaintiff specifically denying the execution of the gift deed.
17. In Chhuttan Lal v. Shanti Prakash , the Allahabad High Court held that the proviso to Section 68 of the Evidence Act is attracted when there is no specific denial of gift deed by the plaintiff.
18. The above decisions indicate that unless there is specific denial of the execution of the gift deed, the attestors need not be examined to prove the documents and when there is a recital in the gift deed itself that the property was delivered to the donee and the gift deed was delivered to the donee, it is sufficient to hold that the gift was accepted by the donee. When once it was accepted by the donee and when the donor did not deny the recitals of the gift deed, it can be safely concluded that the gift deed was executed with an intention to act upon and it was not a nominal document, therefore, the defendants' contention that it is not binding on them cannot be accepted. The Courts below, without going into the principles laid down in various Judgments, erroneously came to a conclusion that the gift deed is a nominal document and it was not acted upon and it is not binding on the defendants. The Courts might be under the impression that as defendant Nos. 1 and 2 purchased the property through a Court auction, so more sanctity shall be given to such transaction and ignored the fact that by the date of the attachment and sale of the suit schedule property, the third defendant did not have any right over the property due to execution of Ex.A-2 gift deed in faovour of the plaintiff.
19. In the light of the above circumstances, the sale of the property by the Court has no effect and it is deemed that no valid title has been transferred to defendants 1 and 3, therefore, I am inclined to set aside the Judgments rendered by the Courts below and decree the suit as prayed for.
20. In the result, the Appeal is Allowed. The Judgments of the Courts below are set aside. The suit filed by the plaintiff is decreed by declaring that the plaintiff is the owner of the property and he is entitled for recovery of possession. So far as the claim for cost of the removal of the thatched shed erected by the plaintiff, there is no evidence on record, therefore, I am not inclined to grant any damages. No order as to costs.