Orissa High Court
Gouranga Sahu And Ors. vs Maguni Dei And Ors. on 31 July, 1990
Equivalent citations: AIR1991ORI151, AIR 1991 ORISSA 151, (1991) CIVILCOURTC 578 (1991) 1 CURCC 45, (1991) 1 CURCC 45
Author: G.B. Patnaik
Bench: G.B. Patnaik
JUDGMENT G.B. Patnaik, J.
1. Plaintiff is the appellant against the judgment and decree passed in a suit for declaration of title and recovery of possession of the suit property which consists of two plots, namely plot No. 1018 in Khata No. 597 of mauza Choudwar measuring Ac. 0.07 decimals and plot No. 759 in Khata No. 236 covering an area of 5 kadis out of Ac. 0.01 decimals from the south with houses standing thereon.
2. Plaintiff is the purchaser of the suit lands under a registered sale deed (Ext. 9) dated 3-7-1970 from defendant No. 3. Plaintiffs case is that one Chintamoni was the common ancestor and the recorded owner of the property who died prior to 1930. His son Murali died unmarried in 1940. Kamala, the widow of Chintamoni got the propery on death of Murali and Kamala had a daughter called Maguni who is defendant No. 1. Maguni's daughter Sarala is defendant No. 3 and Mahendra is the husband of Sarala. Maguni's son Paramananda has a son Naba-kishore who is defendant No. 2. It is the further case of the plaintiff that Kamala executed two gift deeds in favour of Sarala (defendant No. 3), namely Ext. 15 dated 8-8-1955 who in respect of 5 kadis out of plot No. 759 and 3 decimals out of plot No. 1017 and Ext. 16 dated 3-5-1958 for 7 decimals out of plot No. 1018. Kamala executed the gift deeds in favour of Sarala as she along with her husband Mahendra were staying with the grand-mother Kamala and were looking after her. On the "strength of the gift deeds, defendant No. 3 continued to remain in possession of the land by constructing pucca houses thereon. Mahendra, the husband of defendant No. 3, was in need of money for his business and, therefore, defendant No. 3 entered into an agreement for sale of the suit property for a consideration of Rs. 30,000/-on 31-3-1965 -- Ext. 10/a and received Rs. 5,000/- as advance. In the agreement for sale it was stipulated that the sale deed would be executed within five years from the date of the agreement. Subsequently, on I9-S-1968, defendant No. 3 had executed a mortage by conditional sale "(Ext. 11) in favour of the plaintiff's wife in respect of the land appertaining to plot No. 1018 together with the structure standing thereon for a consideration of Rs. 6,000/-as money was urgently needed for Mahendra's business. It was also stipulated in the said deed that if the mortgage was not redeemed by 18-8-1973, then the mortgagee would become the absolute owner of the property and the mortgagee was to be put in possession of the land together with the building-standing thereon, though Mahendra was running the rice huller machine. Finally, defendant No. 3 executed the registered sale deed in favour of the plaintiff on 3-7-1970 Ext. 9 by receiving the balance consideration of Rs. 20,000/- as by that date she had received Rs. 4,000/- as advance under Exhibit 10/a and Rs.6,000/- from the plaintiffs wife under Ext. 11. But in the meantime, defendant No. 1 had obtained a sale deed on 5-5-1956 (Ext. 17) in respect of the entire Ac. 0.10-5 kadis which land had been gifted to Sarala (defendant No. 3) and according to the plaintiff in the guise of executing a power-of-attorney, the sale document was got executed without reading or explaining the contents thereof. The said sale deed, however, was cancelled on 27-6-1970 under Ext. 12. Notwithstanding the sale in favour of the plaintiff under Ext. 9, defendant No. 1 was recorded in the Settlement records and on 7-1-1974 said defendant No. 1 restrained the plaintiff from going upon the premises and, therefore, the plaintiff filed the suit for the relief as already stated.
3. Defendant No. 1 contested the suit. In the written statement, execution of the two gift deeds by Kamala in favour of Sarala was admitted, but it was stated that the gift deeds were never acted upon nor were intended to be acted upon. It was further pleaded that even if the gift could be said to have been acted upon, but Kamala had merely a life interest in the land in question and, therefore, the gift could remain valid till the lifetime of Kamala and after death of Kamala the property passed on to her only daughter Maguni (defendant No. 1) as the nearest reversioner. It was also pleaded in the written statement that the two gift deeds were nominally brought into existence to persuade Sarala's husband Mahendra to settle somewhere by doing business as he was going wayward. In fact, Maguni's husband Natha purchased a rice huller in the name of Mahendra and installed the same on plot No. 1018 and Kamala gave the money by mortgaging her property and, therefore, the question of Kamala transferring the property to Sarala by gift did not arise and no title was intended to be conferred by virtue of the gift deeds. So far as the sale deed (Ext. 17) dated 5-5-1966 is concerned, it is the case of defendant No. 1 that as Mahendra did not like to settle down and he continued with his conduct and habit, Maguni (defendant No. 1) apprehended trouble from Mahendra as the two gift deeds stood in the name of Sarala. On the intervention of Bhadralogs it was decided that Sarala would execute a deed of re-conveyance and Mahendra would get a compensation of Rs. 2,000/- and this proposal being accepted, the deed (Ext. 17) was executed on 5-5-1966 and the said document in fact could not be hold to be a sale deed. It was also averred that in view of Ext. 17, plaintiff did not derive any title under Ext. 9 which was admittedly much later than Ext. 17. It was further broadly averred that plaintiff could manage to get the deed by capturing Sarala's husband Mahendra,
4. Nabakishore, who is minor defendant No. 2 filed a written statement through his guardian. Sarala (defendant No. 3) filed a written statement fully supporting the plaintiff's case, but both defendants 2 and 3 remained ex parte during trial.
5. During trial on behalf of the plaintiff 10 witnesses were examined and on behalf of defendants Nos. 1, 5 witnesses were examined. Each of the parties exhibited a number of documents. The learned Trial Judge on the pleadings of the parties framed 9 issues and came to hold that the two gift deeds (Exts. 15 and 16) executed by Kamala in favour of Sarala (defendant No. 3) had not been acted upon and as such were not valid documents and, therefore, Sarala could not have conveyed any title in favour of the plaintiff under the registered sale deed (Ext. 9) dated 3-7-1970. In coming to the aforesaid conclusion, the learned Trial Judge held that even though the documents were unambiguous yet extraneous evidence could be looked into in order to judge the intention of the parties. It was also held that defendant No. 1 did not derive any title under Ext. 17 and accordingly the deed of cancellation (Ext. 12) was redundant and superfluous. On the question whether the suit was barred by limitation or not the learned trial Judge held that the suit was not barred by limitation. The alternative case pleaded by defendant No. 1 with regard to her title under Ext. 17 was considered to be unnecessary as the gift was found to be invalid and it was further held that the agreement (Ext. 10/a) and the mortgage (Ext. 11) did not arise for consideration in the suit. In those findings, the suit was dismissed.
6. Mr. Rath, the learned counsel for the appellants, raises the following contentions in assailing the judgment and decree of the trial Judge:--
(i) The gift deeds being unambiguous and clear, oral evidence to judge the intention of the parties is not admissible and, therefore, the learned Subordinate Judge committed an error in considering the oral evidence to find out whether the gift had in fact been acted upon or not.
(ii) On the evidence on record, all the essential ingredients of a valid gift having been satisfied, the learned Subordinate Judge committed an error in coming to the conclusion that the gift in question was a nominal one and was never intended to be acted upon.
(iii) It is the donor who could assail the validity of the gift and the defendants being strangers at their instance validity of the gift could not have been assailed.
(iv) In view of the admission of the defendants themselves that Ext. 17 really was not a sale deed and does not convey any title in favour of defendant No. 1 and there being no infirmity in plaintiffs title deed under Ext. 9, plaintiffs suit ought to have been decreed.
Mr. B.H. Mohanty, the learned counsel appearing for the respondents, on the other hand, contends that though oral evidence is barred to prove the terms of a document in view of the provisions of sections 91 and 92 of the Evidence Act, but it cannot be pleaded as a bar where a party impugns a document on the ground that in fact there was no transaction or that the document was nominal or sham. He further urges that in view of the voluminous evidence on record, the only conclusion possible is that the gift in question had not been acted upon or had never been intended to be acted upon and the finding of the trial judge on this point is unassailable. On the question whether a person other than the donor could assail the validity of the gift, Mr. Mohanty contends that any person claiming title from the donor could also assail the validity of a gift and defendant No. 1 having claimed title on the basis of the sale from Sarala was competent to assail the validity of the gift. So far as the admission of the defendant is concerned, Mr. Mohanty contends that the statement of defendant No. 1 cannot be construed to mean that no title passed on to her under Ext. 17 and once the gift is held to be invalid, the plaintiff's sale deed under Ext. 9 will not convey any title in his favour.
7. In view of the rival submissions made by the counsel for the parties, the following questions arise for my consideration :--
(i) Whether the gift deeds (Exts. 15andl6) executed by Kamala in favour of Sarala (defendant No. 3) are valid or not?
(ii) Whether Ext. 17, executed by defendant No. 3 in favour of defendant No. 1, conveys any title to defendant No. 1, or not?
(iii) Whether Ext. 9, the sale deed executed by defendant No. 3 in favour of the plaintiff on 3-7-1970 is valid and conveys good title to the plaintiff, or not?
8. Coming to the first question, one of the main attacks of Mr. Rath, the learned counsel for the appellants, is that the gift deeds being unambiguous, no oral evidence could have been adduced to prove the intention of the parties and in support of the said contention, Mr. Rath relies upon the decisions of the Supreme Court in Chunchun Jha v. Ebadat Ali, AIR 1954 SC 345, Ravel & Co. v. K.C. Ramachandran, AIR 1974 SC 818 and Hindustan Lever Ltd., Bombay v. The Monopolies & Restrictive Trade Practices Commission, New Delhi, AIR 1977 SC 1285. In the first case (AIR 1954 SC 345), the question for consideration was whether a transaction was a mortgage by conditional sale or a sale outright with a condition of re-purchase. It was held by their Lordships that where a document had to be construed, the intention must be gathered in the first place from the document itself and if the words were express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended was ruled out. If, however, there was ambiguity in the language employed then it was permissible to look to the surrounding circumstances to determine what was intended. In the decision reported in AIR 1974 SC 818, one of the questions that arose for consideration before their Lordships was whether a variation of the terms of a registered lease deed could be inferred from the oral evidence adduced in the case. In that connection, it was held that in view of Section 92 of the Evidence Act, oral evidence to prove the variation in the terms of a registered lease deed was barred. In the decision reported in AIR 1977 SC 1285, clauses of an agreement under the Monopolies & Restrictive Trade Practices Act came up for consideration before their Lordships. In that connection, it was observed (at pp. 1289-90):--
"..... If these clauses are capable of being so used, on the meanings which appear un-ambiguously from them, as to undoubtedly restrict trade, the intention to so use them to restrict trade could reasonably be inferred without any difficulty. Otherwise, why have them? No oral evidence could be led to deduce their meaning or to vary it in view of the provisions of Sections 91 and 92 of the Evidence Act, the principles of which were, we think, rightly applied by the Commission. ......"
Mr. Mohanty for the respondents does not dispute with the proposition laid down in any of the cases referred to earlier. But what he really contends is that when factun of transaction in question is denied, then oral evidence could be looked into for that purpose. In support of the said contention, he relies upon the decisions of the Privy Council in the case of Tyagaraja Mudaliyar v. Vedathanni, AIR 1936 PC 70, as well as the decision of the Supreme Court in the case of Smt. Gangabai v. Smt. Chhabubai, AIR 1982 SC 20. In the Privy Council case, their Lordships after analysing Sections 91 and 92 of the Evidence Act hold :--
".... When a contract has been reduced to the form of a document, Section 91 excludes oral evidence of the terms of the document by requiring those terms to be proved by the document itself unless otherwise expressly provided in the Act, and Section 92 excludes oral evidence for the purpose of contradicting, varying, adding to, or subtracting from such terms. Section 92 only excludes oral evidence to vary the terms of the written contract, and has no reference to the question whether the parties had agreed to contract on the terms set forth in the document. The objection must therefore be based on Section 91 which only excludes oral evidence as to the terms of a written contract. Clearly under that section a defendant sued, as in the present case, upon a written contract purporting to be signed by him could not be precluded in disproof of such agreement from giving oral evidence that his signature was a forgery. ......"
In the decision reported in AIR 1982 SC 20, Section 92 of the Evidence Act came up for consideration and, their Lordships observed (Para 11):--
"..... It is clear to us that the bar imposed by Sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties. ....."
In view of the aforesaid position of law, and the plea of the defendant being that the gift in question was not acted upon at all, there would be no bar lo look to the oral evidence for that purpose. The oral evidence can certainly be led and looked into to establish whether the gift had in fact been acted upon or not, which is one of the essential ingredients of a valid gift. In the premises, as aforesaid, disagreeing with the submission made by Mr. Rath for the appellants and agreeing with the submission made by Mr. Mohanty for the respondents, I hold that oral evidence can be looked into for finding out whether the gift had, in fact, been acted upon or not.
9. The next question that crops up is whether the two gift deeds are valid or not. Gift is a transfer of moveable and immovable property made voluntarily and without consideration by the donor to the donee and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor. The two documents of gift (Exts. 15 and 16) on a plain reading would establish that those were the two deeds by which transfer of an existing property had been made voluntarily and without any consideration by the donor. The essential conditions of a gift are that the donor divests himself of all his interests in certain existing property and such transfer is made voluntarily and without any consideration. The expression "voluntarily" has been held to mean exercise of unfettered free will. In other words, when a gift is made it must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect and that no pressure or undue influence had been exercised upon him by the party in whose favour the gift was made. But where a gift is impeached as being procured by undue influence or pressure, it would be for the person attacking the gift to prove the same. The main ground on which the gift deeds were attacked is that the gift had not been accepted by the donee. Certainly acceptance of a gift by the donee is also a condition of a valid gift, inasmuch as an offer without acceptance by the donee cannot complete the gift. The acceptance may be inferred from acts prior to the execution of the deed of gift and acceptance may be implied, but the facts relied upon must be acts of positive conduct of the donee or persons acting on his behalf and not a mere passive acquiescence and such an acceptance must be before the death of the donor. Acceptance is usually signified by an overt act such as the actual taking over possession of the property or such acts by the donee as would in law amount to taking possession of the property. Acceptance is usually presumed if the donee possesses the land. Donee's name being mutated in the revenue records is also a proof of acceptance. In the case of T.V. Kalyana-lundaram Pillai v. Karuppa Mooppanar, AIR 1927 PC 42, their Lordships of the Privy Council have held that where the instrument of gift duly executed and attested is handed over to the donee and the donee accepts the same, it may constitute a sufficient acceptance of the gift. Bearing in mind the aforesaid legal requirements, I shall now examine the argument advanced by Mr. Mohanty for the respondents that the gift had not validly been accepted by the donee.
10. According to Mr. Mohanty the evidence of P.Ws. 5 and 7 clearly indicates that the donor Kamala was in possession of the properties till her death and this is apparent from the evidence of P.W. 5 who in cross-examination states that Kamala was owner and in possession of all her properties till her death. The death of Kamala took place in the year 1958 and the gift deed (Ext. 16) was also executed on 8-5-1958. In that view of the matter, the aforesaid statement of P.W. 5 in cross-examination would not disprove the case of a valid acceptance. On the other hand, the positive evidence of P.W. 5 was that Sarala possessed the gifted properties and the rice huller and a flour mill as well as paddy husking machine had been installed by Sarala. This proves the positive overt act of Sarala in respect of the gifted properties after execution of the gift deeds in her favour. P.W. 4 whose house stands 100 cubits away from the gifted property in cross-examination has stated that the undisputed residential house is on the northern side and the disputed house is on the southern side of the courtyard and both residential houses of Maguni and the suit house are within one stone compound wall. On the basis of the aforesaid evidence, Mr. Mohanty contends that it is unusual that a part of the residential house itself will be gifted away. I do not find any substance in the same particularly in view of the unambiguous language used in the gift deed itself. That apart, the very evidence of P.W. 4 indicates that there are two main doors, one faces to the east and another opens to the west and, therefore, there is no difficulty in gifting away the property. Further, the donee is nobody else than the grand-daughter of Kamala. Therefore, I do not find any substance in Mr. Mohanty's contention that a part of the residential house could not have been gifted away. P.W. 7 clearly states that after the transfer to Sarala, she possessed the disputed property and Mahendra thereafter constructed a house and installed a mill. This proves the valid acceptance of the gift by Sarala. In the aforesaid premises, disagreeing with the submission made by Mr. Mohanty for the respondents, I hold that there had been a valid acceptance of the gift under Exts. 15 and 16 and the donee Sarala had become the owner of the properties. Disagreeing with the learned that Judge, I hold that the gifts had been validly acted upon and conferred valid title on Sarala in respect of the properties covered thereunder.
11. The next question that arises for consideration is whether Ext. 17 conveyed any title to defendant No. 1, Ext. 17 purports to be a sale deed executed by defendant No. 3 in favour of defendant No. 1 for a sum of Rs. 2,000/-. The learned trial Judge held Ext. 17 to be invalid because no title had been conveyed to Sarala under Exts. 15 and 16. But in view of my conclusion that the gifts are valid, it must now be decided as to whether Ext. 17 at all conveyed any title to defendant No. 1. Defendant No. 1 who is examined as D.W. 1 in her evidence clearly states that there was no sale of any property under Ext. 17 and the amount of Rs. 2,000/- was not in fact towards any consideration, but it was paid to Mahendra for facilitating his business as suggested by the Bhadralogs. In view of this categorical admission of defendant No. 1, it is not necessary for me to consider any other evidence and I hold that Ext. 17 was not at all a sale deed conveying title in favour of defendant No. 1. That apart, the very fact that the consideration itself was mentioned as Rs. 2,000/- for a valuable property covered under Ext. 17 indicates that it was not at all a transaction of sale. In my view, therefore, the conclusion of the learned Trial Judge on this score with regard to Ext. 17 must be sustained though for reasons different from the reasons advanced by him. In my considered opinion Ext. 17 did not confer any title on defendant No. 1.
12. The only other question that remains for my consideration is whether the sale deed, Ext. 9, executed by defendant No. 3 in favour of the plaintiff confers valid title on the plaintiff. The plaintiff has proved the said document of sale which is backed by full consideration: In fact, the defendants have not led any evidence to disprove the plaintiffs sale deed. Sarala (defendant No. 3) was the owner of the property on the basis of the gift deeds in her favour and, therefore, could convey valid title in favour of the plaintiff under Ext. 9. Therefore, the plaintiff became the owner of the land in question by virtue of the sale deed (Ext. 9) in his favour and, therefore, the plaintiffs suit must succeed.
13. In the result, therefore, the judgment and decree of the learned Subordinate Judge are set aside and the plaintiffs suit is decreed.
The defendant No. 1 is directed to deliver possession of the property mentioned in Schedule-B of the plaint within one month from today, failing which the plaintiff will be entitled to recover possession through process of court. This appeal is accordingly allowed, but there will be no order as to costs.