Madras High Court
J. Kuppuswami Mudali And Ors. vs Mahalingam on 26 July, 1996
Equivalent citations: 1997(1)CTC256, (1997)IMLJ45
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. The defendants is O.S.No. 472 of 1979 on the file of District Munsifs Court, Tiruttani are the appellants in the above second appeal. The respondent, Plaintiff filed the said suit for declaration and for permanent injunction or in the alternative recovery of possession of the plaintiff's property.
2. The case of the plaintiff as found in the plaint are briefly narrated hereunder: One Govinda Mudali was the absolute owner of the suit property. He settled the suit property in favour of one Papammal, the vendor of the plaintiff under the registered settlement deed dated 14.5.1970, and she has also accepted the same. The plaintiff purchased the suit property from the said Pappammal under a registered sale deed 2.4.1979 for Rs. 3,000. Since the vendor of the plaintiff was in possession and enjoyment of the suit property, sold the same to the plaintiff, they have perfected their title to the suit property by adverse possession also. The defendants have no right, title or interest in the suit property, attempted to trespass in the suit property and interfered in his peaceful possession and enjoyment of the same, which necessitated the plaintiff to file present suit.
3. The allegations in the written statement are briefly as follows:- The plaintiff and his vendor are not the owners of the suit property, and they were never in possession of the same. The settlement deed dated 14.5.1970 was not acted upon and the vendor of the plaintiff or the plaintiff have not perfected their title by adverse possession. One Govinda Mudali was the owner of the suit property and he was in possession of the same. He has executed a settlement deed in favour of one Pappammal by stipulating a condition but the settlement deed was not acted upon. Hence Govinda Mudali cancelled the registered settlement deed in favour of Pappammal and with his absolute right he has bequeathed the suit property in favour of the defendants temple as per the registered Will dated 7.4.1975. Till the death of Govinda Mudali he was enjoying the property and after his death, the defendants are in continuous possession of the suit property on behalf of the temple. They have perfected their title by adverse possession also. With these averments they prayed for dismissal of the suit.
4. The plaintiff himself was examined as P.W.1 and four more witnesses were examined as P.Ws.2 to 5 apart from marking Ex.A-1 to A-8 on the plaintiffs side. The 3rd defendant was examined as D.W.1 and two more witnesses were examined as D.Ws.2 and 3. Ex.B- 1 to B-8 were also marked on the side of the defendants.
5. The learned District Munsif, Tirutani after framing necessary issues and on the basis of the evidence on record, came to the conclusion that the plaintiff has not proved his case consequently dismissed the suit with costs.
6. Aggrieved by the dismissal of the suit, the unsuccessful plaintiff filed an appeal in A.S.No. 22 of 1982 before the Sub-Court, Kancheepuram. The learned Appellate Judge after framing the necessary points for consideration and after reappraising the whole evidence, disagreed with the findings of the trial court, allowed the appeal and granted a decree in favour of the plaintiff as prayed for.
7. Against the decree of the lower appellate Court, the defendants have filed the present appeal before this court. While entertaining the appeal this Court has framed the following substantial questions of law for consideration:-
1. Whether there is an omission to construe and misconstruction of the material evidence on record by the lower appellate court when it chore to reverse the judgment and decree of the first Court?
2. Whether there has been a proper construction by the lower applelate Court on Ex.A-1 on the question as to whether it is a Will subject to revocation?
8. Mr. J. Venugopal, learned counsel appearing for the appellants in the light of the substantial questions of law framed contended that in view of the recital in Ex.A-1, the decree of the lower appellate court is erroneous and prays for interference in this appeal. He also submitted that Ex.A-1 is not a valid gift and it is only a will and at any rate Ex.A-1 has not acted upon. According to the learned counsel for the appellants, the lower appellate court has misconstrued the recital in Ex.A-1. On the other hand, Mr. S.T. Balaji, learned counsel appearing for the respondent after pointing out Section 123 of the Transfer of Property Act as well as some decisions contended that the lower appellate court has correctly construed Ex.A-1 and rightly granted decree in favour of the plaintiff, hence prays for dismissal of the second appeal. I have carefully considered the rival submissions.
9. Admittedly, one Govinda Mudali is the original owner of the suit property. It is the case of the plaintiff that the said Govinda Mudali settled the suit property in favour of P.W.4 under registered settlement deed Ex.A-1 dated 14.5.1970, and he has purchased the same from P.W.4 under registered sale deed Ex.A-5 dated 2.4.1979. However, it is the case of the defendants being the trustees of the Grama Devathai Temple, they became the owner of the suit property under the Will executed by Govinda Mudali, i.e., Ex.B-1 dated 7.4.1975. The defendants resist the claim of the plaintiff on the ground that settlement deed Ex.A-1 in favour of Pappammal has not been acted upon and the possession of the suit property was not transferred to the said Pappammal. It is also contended by the defendants that P.W.4 failed to act according to the terms and conditions of Ex.A-1, hence it was cancelled by the said Govinda Mudali as per Ex.B-8, bequeathed the suit property in favour of the temple under Ex.B-1 and the defendants are also in possession of the suit property on behalf of the temple.
10. The learned counsel for the appellant after referring the recitals in Ex.A-1 and in the light of Section 123 of the Transfer of Property Act contended that even though the first ingredient to the said Section has been complied with, however, the second aspect, namely, the possession in the said property has not been passed on the settlee, i.e., P.W.4 and therefore submitted that Ex.A-1 was never acted upon. He very much relies upon the following passages in Ex.A-1 which reads as follows:-
With these sentences in Ex.A-1, the learned counsel points out that possession was never parted with the settlee. hence Ex.A-1 at no point of time acted upon. He also relied on Chief Controlling Revenue Authority v. Tvl. Inca Cables (P) Ltd, 1982 (1) M.L.J. 137 (F.B) to the effect that a document as a whole has to be construed to determine the character of the document. As propounded in the said decision there is no dispute that reading the concerned document as a whole that determines the character of the document and not the nomenclature given to the document. There is no dispute that the proposition of law stated in the said Full Bench decision has to be followed. He also stated another decision, namely, Navaneet Lal v. Gokul, . In the said decision the Supreme Court has formulated how a document has to be construed. Here also absolutely there is no problem in applying the said decision in order to find out the nature of the document, namely, Ex.A-1. In the light of the above-said two decisions, we have to find out intention, meaning and surrounding circumstances of the parties in Ex.A-1.
11. In order to hold that it is a valid settlement we have to find out whether the settlee has accepted the said document. It is also a settled law that in settlement once the settlee accepts the transfer it is presumed that the said document has been acted upon irrespective of the fact whether the settlee has obtained possession immediately or not. A reading of the entire document Ex.A-1 as pointed out by the two decisions referred to earlier leads to an irresistible conclusion that the power of transfer by the settles (Pappammal) alone has been postponed. As a matter of fact the said Govinda Mudali has not written anything in the said document. Hence the contrary conclusion reached by the trial court cannot be sustained. On the other hand the lower appellate court correctly construed Ex.A-1. When there is no provision or reservation in the settlement deed by the settler, namely, Govinda Mudali it is presumed that he has no right to cancel the said settlement deed at a later date. If that is so the cancellation of Ex.A-1 under Ex.B-8 cannot be sustained.
12. The following decisions cited by the learned counsel for the respondent amply support the above view of mine. In Lallu Singh v. Gur Narain. A.I.R. 1992 A11.467. the Full bench of the Allahabad High Court while interpreting Section 123 of the Transfer of Property Act has held that "delivery of possession is not necessary. Section 123, does away with the necessity of delivery of possession even if it was required by the strict Hindu Law, in the case of a registered instrument of gift properly executed and attested" ...A similar view has been arrived at in a decision reported in Gouranga Sahu v. Maguni Dei, . In Balmakund v. Bhagwan Das, 1894 Allahabad Series 185, the Division Bench has observed as follows:-
"The delivery to the donee of immovable property of the deed of gift is sufficient to pass the title to such property to the donee without actual physical possession such property being taken by the donee. Man Bhari v. Navindh followed".
In Bhagwan Prasad v. Hari Singh, A.I.R. 1925 Nag. 199 it is observed as follows:-
"Assuming that delivery of possession was essential under the Hindu Law to complete a gift of immovable property, that law had been abrogated by Section 123 of the Transfer of Property Act in cases where the instrument of gift has been registered."
In Samrathi Devi v. Paraswaran Pandey. , it is observed as follows:
"The fact of the deed being handed over by the donor to the donee was sufficient evidence of his having accepted the gift, and the acceptance of the said document was a relevant fact to prove the acceptance of the gift by him."
In Tila Bewa v. Mana Bewa, it is observed that gift cannot be revoked for failure of donee to maintain donor. A similar view has been taken i.e., gift cannot be revoked for neglect to maintain donor in Venkatasubbiah v. Subbamma, AIR. 1956 A.P. 195.
13. In the light of the above mentioned cotena of decisions and after considering the decisions and after considering the recital in Ex.A-1, I am of the view that the said document has been acted upon and there is no need or warrant to cancel the said document in Ex.B-8, hence I am in entire agreement with the findings of the lower appellate court.
14. Under these circumstances, I did not find any good reason to interfere with the findings of the lower appellate court which are based on acceptable evidence as well as in consonance with the law laid down by various courts. Consequently, the second appeal fails and same is dismissed. However, in the circumstances of the case, there will be no order as to costs.