Madras High Court
R. Kanniammal vs Prema, Santha And Kadarkarai on 30 August, 2002
JUDGMENT K. Gnanaprakasam, J.
1. The plaintiff is the appellant.
2. The suit filed by the plaintiff is one for declaration that she is entitled to the suit property and for recovery of possession.
3. The case of the plaintiff is that the 3rd defendant was her husband and as there was difference of opinion from the year 1977, they were living separately and the marriage was also dissolved as per the caste custom, in the year 1980 and since that time, the plaintiff has been living separately. The suit property is the absolute property of the plaintiff and she was in possession and enjoyment of the same. The 3rd defendant with an intention to grab the same, has created a gift deed on 24.9.1978, as if the plaintiff wanted to give the suit property to his minor son Kannan and presented the said documents before the Joint Sub Registrar, for compulsory registration, in which, a notice was sent to the plaintiff to appear before the Sub Registrar on 20.12.1978 and the plaintiff had given a statement that she had not executed the settlement deed in favour of her minor son and the proceedings before the Sub Registrar was over. The 3rd defendant was working in the Registration Department and he had preferred an appeal before the District Registrar and by using his influence, a notice was issued to the plaintiff for her appearance on 6.6.1979, before the District Registrar, as if the gift deed was executed by her on 24.9.1978. Since the matter had already been enquired into and became to rest, by the proceedings before the Sub Registrar on 20.12.1978, the plaintiff kept quiet and did not attend the enquiry on 6.6.1979. But, the 3rd defendant, by misuse of his position, as Sub Registrar, got the Gift Deed dated 24.9.1978 registered. The minor son did not derive any title under the gift deed. The plaintiff has not executed a Gift Deed either on 4.12.1978 or on 20.12.1978 and there was no necessity for the same. By making use of the alleged gift deed, the 3rd defendant, as a guardian for the minor, had sold the suit property to the defendants 1 and 2 and the same is not valid and the defendants 1 and 2 did not derive any right in the suit property and the sale deed is also not valid and binding upon the plaintiff. The defendants 1 and 2 on the strength of the fraudulent document obtained from the 3rd defendant have been arranging to give trouble to the plaintiff from the I Week of April 1982 and a notice dated 10.4.1982 was issued by the plaintiff to the defendants 1 and 2 and they came to know of the facts, refused to receive the same. But, however, the 3rd defendant received the notice on 12.4.1982 and has not chosen to give any reply. After the receipt of the notice, at the instigation of the 3rd defendant, the defendants 1 and 2 have trespassed into the suit property and took possession. Hence, the suit.
4. The defendants 1 and 2, in their written statement, have stated that the sale executed by the 3rd defendant in their favour is true and valid and same was for consideration. The 3rd defendant with the sale consideration of the suit property, had purchased another property in favour of his minor son. The plaintiff had wholeheartedly executed the gift deed in favour of her minor son and the same was accepted by the 3rd defendant, as the guardian of minor son and he had been in possession of the same. The defendants deny the trespass alleged against them.
5. The 3rd defendant filed a separate written statement, wherein he has stated that the plaintiff was having illicit relationship with one Joboi Paulkano and deserted him. Despite the best efforts taken by the 3rd defendant, the plaintiff refused to come and live with him. Only in the said circumstances, she had settled the suit property in favour of her son in July 1977 and executed a settlement deed on 24.9.1978 in favour of her minor son Kannan, represented by guardian and father, 3rd defendant. The plaintiff had executed a settlement deed on her own accord without anybody's interference or inducement and the same was attested by the plaintiff's aunt's son Sangili and the plaintiff's sister's husband Paramasivam. The plaintiff had agreed to register the document, but, she did not do so. She had left with her paramour to Cuddalore and after having waited for some time, the 3rd defendant has sent a word to the plaintiff to come to the Registration Office to register the document, but, she had not turned up. Thereafter only, the document was presented to the Sub Registrar I on 4.12.1978 and a notice was sent to the plaintiff and she had appeared for enquiry and repudiated the settlement deed executed by her. Thereupon, the Sub Registrar has sent a notice to the 3rd defendant on 16.3.1979 and informed him that if he wants to have further enquiry according to law, he should pay the necessary fees and the 3rd defendant also paid the fees and notice was sent to the plaintiff. Enquiry was fixed on 6.6.1979 and the plaintiff having received the notice did not turn up. The Sub Registrar on enquiry, came to the conclusion that the settlement deed dated 24.9.1978, executed by the plaintiff was a true and valid document and ordered for compulsory registration. The plaintiff has not questioned the same. The settlement deed was accepted by the 3rd defendant for and on behalf of the minor son and the same was also given effect to acted upon and therefore, the suit is not maintainable. As the plaintiff's paramour had abandoned her and also got married, she has filed the present suit, with a view to grab the same.
6. Based upon the above said pleadings, the trial court framed necessary issues and after taking into consideration both the oral and documentary evidence, came to the conclusion that the settlement deed, said to have been executed by the plaintiff in favour of her minor son, is not a true and valid document and binding upon the plaintiff and further held that the plaintiff is entitled to recovery of possession and decreed the suit. Aggrieved by the same, the defendants have preferred an appeal in AS.No.163/1986, on the file of the Sub Court, Tenkasi and the lower appellate court has held that the gift deed executed by the plaintiff in favour of her minor son is a true and valid document and binding upon her and the defendants are entitled to the suit property by virtue of their purchase of the same from the 3rd defendant and allowed the appeal. Aggrieved by the same, the plaintiff has preferred this appeal.
7. Heard both sides.
8. The second appeal was admitted on the following substantial questions of law:-
i. Whether Ex.B2, was duly executed and registered after proper enquiry under Section 74 of the Registration Act? ii. Whether the suit as framed is proper and maintainable?
iii. When the suit, when execution of Ex.B2 is denied, filed in 1982, when the respondents 1 and 2 trespassed into the schedule property is out of time?
9. The plaintiff filed the suit for declaration and for recovery of possession. It is the case of the plaintiff that she is the absolute owner of the suit property and the 3rd defendant by misuse of power and by playing fraud, obtained the settlement deed dated 24.9.1978 and got registered by compulsory registration and that therefore, the settlement deed dated 24.9.1978 is not valid and the defendants 1 and 2, on the strength of the sale deed executed by the 3rd defendant in their favour, trespassed into the suit property and therefore, the plaintiff is entitled for possession.
10. The 3rd defendant and the plaintiff were husband and wife and the plaintiff was the owner of the suit property are all not in dispute. But, however, the plaintiff was residing away from the 3rd defendant, from 1977 and the marriage was dissolved by the caste custom in 1980. The settlement deed is said to have been executed in this interregnum period i.e. on 24.9.1978. Now, we have to consider whether any fraud has been played in obtaining the settlement deed from the plaintiff.
11. The execution of the alleged settlement deed is very much disputed by the plaintiff. The settlement deed, Ex.B2, was also written only in a plain paper, i.e. not in stamp paper. On the refusal by the plaintiff, according to the 3rd defendant, it was presented for registration before the Registrar, Tenkasi on 4.12.1978 though it is dated 24.9.1978. Though it has been stated on behalf of the 3rd defendant that the plaintiff refused to come for registration, there is no material to support that statement. But, however, the document was presented for registration only on 4.12.1978 before the Joint Sub Registrar, Tenkasi and on receipt of the document, a notice was sent to the plaintiff for her appearance and objections, if any, to be made on 20.12.1978. The plaintiff appeared before the Sub Registrar and objected to the registration of the document. Thereupon, the Joint Registrar I, Tenkasi, by proceedings dated 17.3.1979 informed the 3rd defendant that as the plaintiff refused for the registration of the document, a proper enquiry has got to be held, as per Section 74 of the Registration Act and if he wishes to do so, he has to file necessary application within a week's time with necessary fees thereof. On the receipt of the said proceedings, Ex.B3, the 3rd defendant applied for enquiry and an enquiry was fixed by the District Registrar on 6.6.1979 and as the plaintiff did not appear for the enquiry, the Registrar examined the 3rd defendant and other witnesses and came to the conclusion that the settlement deed dated 24.91978 executed by the plaintiff is a true and valid document and ordered for registration and the same was registered on 22.6.1979 by the Joint Sub Registrar, exercising the power of District Registrar, Tenkasi. The plaintiff contended that already an enquiry was held on 20.12.1978 before the Sub Registrar with regard to the execution of the deed dated 24.9.1978 and that the plaintiff had already made her objection for the registration of the said document and therefore, according to her, there was no necessity for her to appear once again before the District Registrar on 6.6.1979. But, however, the fact remains that the document dated 24.9.1978 got registered on 22.6.1979. On the strength of the document having been registered, the 3rd defendant has also sold out the suit property to the defendants 1 and 2 under the sale deed dated 30.5.1980, Ex.B1. The attack of the plaintiff with regard to the settlement deed dated 24.9.1978 is that the said document was obtained by the 3rd defendant by fraud and by misuse of power and the plaintiff had no intention to execute a settlement deed or to nominate the 3rd defendant as guardian for the minors in the settlement.
12. According to the plaintiff, the registration of the document was objected to on the enquiry on 20.12.978 itself and as such further enquiry for the very same purpose held on 6.6.1979 is not necessary and the document was registered behind the back of the plaintiff and the same is not valid and binding upon her. Likewise, the plaintiff also attacked the sale deed executed by the 3rd defendant in favour of the defendants 1 and 2 on 30.5.1980 on the grounds (1) that the property stands in the name of minor and that therefore, it is the absolute property of the minor and the 3rd defendant has not obtained any permission from the court for the sale of the property and therefore, the sale is not valid, (2) that there is no recital in the sale deed that the sale was for the benefit of the minor, (3) that the value of the property as shown in Ex.B1 is Rs.3,690/-, but, whereas it was sold only for Rs.3,000/- for a lesser price and that therefore, the sale is not valid as it was not for the benefit of the minor.
13. Now, we have to consider whether the settlement deed dated 24.9.1978, said to have been executed by Kanniammal, the plaintiff, in favour of her minor son, by nominating the 3rd defendant, as guardian, is a true and valid document. The said document is nomenclatured as "ed;bfhil gj;jp[uk;" i.e. it can be said as a gift deed.
14. 'Gift' is defined under Section 122 of the Transfer of Property Act, which states, "gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the life time of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void." The necessary requirements of a gift are:- (1) the gift may be in respect of movable or immovable property, (2) it should be made voluntarily, (3) it should be without any consideration, (4) the person, who makes the gift, is the donor, (5) the person, to whom it is made, is the donee, (6) it must be accepted by or on behalf of the donee, and (7) the acceptance must be during the life time of the donor.
15. The concept of gift is that the property should be made without any consideration or compensation, and as a matter of fact, the gift is diametrically opposed to those requirements. In order to make the gift valid, the pivotal requirement is acceptance thereof. The transaction of gift in order to be complete must be accepted by the donee during the life time of the donor. The essence a gift is that it is a gratuitous transfer and it should be made voluntarily without any coercion and influence or fraud. "
16. It is the case of the plaintiff that the 3rd defendant practised fraud upon her and obtained the settlement deed. 'Fraud' has been defined under Section 17 of the Indian Contract Act, 1872, which states, "Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agents, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:
i. the suggestion as a fact, of that which is not true, by one who does not believe it to be true; ii. the active concealment of a fact by one having knowledge or belief of the fact;
iii. a promise made without any intention of performing it;
iv. any other act fitted to deceive v. any such act or omission as the law specially declares to be fraudulent.
When such is the case, the court trying the case of undue influence, must consider two things to start with, viz. (1) the relationship between the donor and the donee, the donee is in a position to dominate the will of the donor and (2) as the donee that position to obtain an unfair advantage over the donor.
17. Here, the relationship between the 3rd defendant and the plaintiff was husband and wife. However, the said relationship was strained even according to the plaintiff and they were living separately from the year 1977 to 1980. The deed was obtained on 24.9.1978. Therefore, it could be considered whether the plaintiff would have executed the settlement deed at the inducement of the 3rd defendant, as contended by her. When the relationship between the plaintiff and the 3rd defendant was not cordial, the 3rd defendant could not have exercised undue influence over the plaintiff to obtain the document, even if the 3rd defendant is a Sub Registrar and a man of world wise. We are also unable to know, under what circumstances, the plaintiff was made to execute the document dated 24.9.1978. The plaint is conspicuously silent about that aspect, except the statement that the said document was obtained by fraud. It is not her case either in the pleadings or in the evidence that her signature has been forged in the document dated 24.9.1978. what all she has stated in the plaint is that the said document was obtained by the 3rd defendant by practising fraud. In the cross-examination, she has not stated anything about the signature in Ex.B2. But, however, to a question in the cross-examination, she has stated, "24.9.1978 Mk; njjpapl;l ed;bfhilg;gj;jpuj;jpy; fhzg;gLk; ifbaGj;J ehd; nghl;ljpy;iy/ Mdhy;. vd; ifbaGj;Jg;nghy; ,Uf;fpwJ/" Even here, she has not stated that it is her forged signature. In order to satisfy my conscious, I have verified the signature in Ex.B2 and also in the plaint and in the deposition. In Ex.B2, she has signed as *fd;dpak;khs;* and in the plaint she has signed as "R.fdpak;khs;**. In the deposition, she has signed as *fdpak;kh* . The comparison of the signatures in the document dated 24.9.1978, the plaint and the deposition do not make much difference. But, however, it is evident that she has changed the pattern of signing from one year to the other year and the same is made out that the in the settlement deed, she has signed as *fd;dpak;khs;* without any initial and in the plaint, she has signed as "R.fdpak;khs;** i.e. with English initial. Thereby, 'R' denotes her father's name Rakkan and in the deposition she has signed without any initial. These three types of signatures of the plaintiff would definitely raise a great deal of doubt, which dissuade us from accepting her claim that she has not executed the settlement deed dated 24.9.1979.
18. It is not the case of the plaintiff that by undue influence, the document was obtained and on the other hand, it is the specific case of the plaintiff that the document was obtained by practising fraud. Though it has been stated in the plaint that the document was obtained by fraud, no circumstance has been recited or cited by the plaintiff that the said document was obtained by fraud.
19. Yet another circumstance, which is against the plaintiff is that she came to know of the document dated 24.9.1978 at least at the time when she received the notice calling upon her to appear before the Registrar on 20.12.1978 and she had very much appeared before the Registrar on 20.12.1978 and objected for the registration of the document. The nature of objection, which she has made before the District Registrar on 20.12.1978, is not available and the plaintiff has not chosen to file the same before the court. But, however, on further enquiry, the said document was ordered to be registered on 22.6.1979 and it was duly registered and the same was not called into question by the plaintiff. The plaintiff verified the plaint on 13.7.1982 and filed the suit on 20.7.1982, alleging that the suit property was sold to the defendants 1 and 2 and they are interfering with her possession. The prayer in para 15 of the plaint is that the court has to declare that the plaintiff is the owner of the suit property and order for recovery of possession. That goes to show, on the date of the filing of the suit, the plaintiff was not in possession of the suit property. But, however, in para 9 of the plaint, she has stated that the defendants 1 and 2 are trying to interfere with her possession and therefore, the pleadings in para 9 runs contra to the prayer in para 15. That would mean, the plaintiff was not in possession of the suit property even prior to the filing of the suit. The plaintiff had knowledge of the settlement deed dated 24.9.1978 at least on 20.12.1978, when she was called upon to appear before the District Registrar for an enquiry for the registration of the document. If at all the plaintiff's right is at stake, she should have filed the suit within a period of three years from 20.12.1978 i.e. on or before 20.12.1981, but whereas the suit was filed only on 20.7.1982. A suit to obtain any declaration, has got to be filed within a period of three years when the right to sue first accrues as per the Article 58 of the Limitation Act. Even assuming that the plaintiff's case is true that the document dated 24.9.1978 was obtained by the 3rd defendant by fraud and she came to know of the same on or before 20.12.1978, the date on which she was called upon for an enquiry and she has also appeared for the enquiry, she should have sought for declaration of her right within a period of three years from that date, which she has not done and therefore, the suit filed on 20.7.1982 is completely out of time and the plaintiff should have been non-suited on that ground alone.
20. The other argument advanced on behalf of the appellant is that the settlement deed dated 24.9.1978 suffers for want of proper Registration, as the plaintiff objected to the Registration of the document and that therefore, the said deed is not valid.
21. There was a divergence of views as to whether the gift is valid and completed before it is being registered. Section 123 of the Transfer of Property Act, states that "transfer must be effected by a registered instrument" and it has been held on the one hand, that as until registration, there is no complete gift, if the donor dies or revokes or becomes incapable of making the gift before registration, it cannot take effect. "
22. The very same question arose for the consideration of this court and a Full Bench of this court in the case of Venkati Rama Reddi Vs. Pillai Rama Reddi (1917(40)-Madras-204 = 31-MLJ-690), held "There is nothing in Section 123 of the Transfer of Property Act which require the donor to have the deed registered; all that is required is that he should have signed the registered instrument. Once such an instrument is duly executed, the Registration Act allows it to be registered even though the donor may not agree to its registration and upon registration the gift takes effect from the date of execution." The above said decision of the Full Bench was later followed by another Full Bench of this court in the case of Kalianasundaram Vs. Karuppa Moopanar (AIR-1923-Madras-282) and this case went up to the Privy Council and the Full Bench's decision was affirmed by the Privy Council reported in AIR-1927-PC-42 and it was held that "They are unable to see how the provisions of Section 123 of the Transfer of Property Act, can be reconciled with Section 47 of the Registration Act, except upon the view, that while registration is a necessary solemnity in order to the enforcement of a gift of immovable property, it does not suspend the gift until registration actually takes place. When the instrument of gift has been handed over by the donor to the donee and accepted by him, the former has done everything in his power to complete the donation and to make it effective. Registration does not depend upon his (donor's) consent, but it is the act of the officer appointed by law for the purpose, who if the deed is executed by or on behalf of the donor and is attested by at least two witnesses, must register it, if it is presented by a person having the necessary interest within the prescribed period. Neither death, nor the express revocation by the donor, is a ground for refusing registration, if the other conditions are complied with."
23. A similar question "whether the donor can revoke the gift before the document is being registered" arose before the Bombay High Court. The following two questions were referred to a Full Bench of the Bombay High Court, in the case of Atmaram Sakharam Kalkye Vs. Vaman Janardhan Kashelikar (1925-Bombay-210):- (1) Was it competent to the donor to revoke the gift of immovable property before the instrument was in fact registered? and (2) If so, whether the subsequent registration of the document against the wish of the donor makes the revocation ineffective? Before the Full Bench, in the said case, an argument was also advanced that Section 54 of the Transfer of Property Act, which relates to 'Sales' and Section 59 of the same Act, which relates to mortgages are in terms similar to Section 123 and that if a vendor or a mortgagor cannot after execution of the instrument of sale or mortgage resile from the transaction before the instrument of sale or mortgage is registered, a donor also cannot resile after execution of the instrument of gift and before registration thereof. It was observed that "the reason why a conveyance or a mortgage cannot be revoked after execution and before registration is not because registration may be effected in spite of the donor's protest, but because in the case of sales and mortgages once a contract of sale or mortgage is made, neither a vendor nor a mortgagor could rescind it at his pleasure, while in the case of an agreement to make a gift, the intending donor may withdraw it at his will except in the rare cases where an agreement to make a gift is made in favour of a near relation out of love or affection and it has been registered, as provided under Section 25 of the Indian Contract Act. Even in that case the agreement, according to the view may be terminated by the donor at his pleasure and at any time before it is registered." After considering the matter in extenso, the Full Bench answered the first question in the negative and the answer to the second question was unnecessary.
K. Gnanaprakasam, J.
24. It is, therefore, evolved that even if the donor/settler wants to revoke the gift/ settlement deed, before the registration takes place, he cannot stop it, as the registration of the document is the act of the registering authority appointed by law for that purpose, who would look into the requirements of registration, before ordering registration. Registration is only a necessary solemnity in order to enforcement of a gift of an immovable property and it does not suspend the gift until the registration actually takes place.
25. In view of the discussions made above, I am of the view that the judgement and decree of the lower appellate court do not warrant any interference by this court and the same is hereby confirmed.
26. In the result, the second appeal is dismissed. No costs. Consequently, connected CMP is also dismissed.