Andhra HC (Pre-Telangana)
Kavali Hanumanna vs Huzurappa And Others on 27 September, 1999
Equivalent citations: 1999(6)ALD815, 1999(6)ALT626, 2000 A I H C 323, (2000) 1 CIVILCOURTC 201, (1999) 6 ANDHLD 815, (2000) 1 ICC 572, (1999) 6 ANDH LT 626, (2000) 2 CIVLJ 632
Author: B.S. Raikote
Bench: B.S. Raikote
JUDGMENT
1. This appeal is preferred by the plaintiff being aggrieved by the judgment and decree of the Additional District Judge, Mahabnbnagar dated 8-4-1985 passed in AS No.32 of 1982. By the impugned judgment and decree, the appellate Court set aside the judgment and decree of the District Munsif, Narayanapet dated 20-1-1982 passed in OS No.41 of 1980. In other words, the trial Court had decreed the plaintiffs suit and on an appeal filed by the defendants, the appellate Court set aside the judgment and decree of the trial Court and consequently dismissed the plaintiffs suit. Hence, the plaintiff is now before this Court in this second appeal.
2. The learned senior Counsel Sri T. Veerabhadriah strenuously contended that the appellate Court has given a finding without considering certain material evidence on record. He further submitted that the appellate Court did not take into account the decree in favour of the plaintiff dated 7th Shererwar 1355 fasli passed in OS 214/1/ 1355 Fasli by the District Munsif Court, Narayanpet. On the basis the gift deed dated 7th Shererwar 1355 Fasli in favour of plaintiff vide Ex.A1, and the said decree vide Ex.A1, the plaintiff has clearly established his case both for declaration of title and as well as for injunction. He submitted that on the basis of Ex.A1, the gift deed executed by Yellamma in favour of the plaintiff, the property has been transferred to the plaintiff and the plaintiff being a minor, his father acting as a guardian, has taken the deliver of the possession. Even the allegations made in the suit in OS No.214/1/1355 Fasli itself shows that the delivery of the possession was taken and consequently the decree for injunction was granted under Ex.A1. The appellate Court did not consider both the documents together. He submitted that the gift deed is more than thirty years old and the same is required to be considered without any further proof in order to hold that the plaintiff has proved both title and possession over the property. He also submitted that the certified copy of Faisal Patti of the year 1955-56. vide Ex.A3 and the certified copies of the pahanies from the years 1958-59 to 1978-79 vide Exs.A4 to A19 clearly establish the possession of the plaintiff over the suit property. The certified copy of the Sethwar, 1344 Fasli vide Ex.A20 also is an important document to prove both the title and possession of the plaintiff over the suit property. In addition to that, the plaintiff has produced the revenue receipts vide Exs.A2 to A29 and from Exs.A31 to A40 for the years 1971 to 1980. The report of the Revenue Inspector vide Ex.A30 clearly establishes the possession of the plaintiff over the property. He further submitted that in addition to them, there is ample evidence on the side of the plaintiff, and PWs.1 to 9 speak to the case of the plaintiffs title and possession. Without considering the entire evidence on record, as done by the trial Court, the appellate Court not have reversed the decree of the trial Court. The appellate Court, as a fact finding Court, should consider the entire material on record to reverse the findings of the trial Court and that has not been done so. Therefore, the judgment and decree of the appellate Court are liable to be set aside. He further submitted that admittedly Hamumanna was the owner and after his death, the patta was changed in the name of Yellamma and therefore, Yellamma became the absolute owner. Even if it is taken that Yellamma, was at least a limited owner and after the commencement of the Hindu Succession Act, she has become the absolute owner by virtue of Section 14 of the Hindu Succession Act. He stated that admittedly, Yellamma died after Hindu Succession Act came into force, therefore, even if it is assumed that at the time of execution of the gift deed she was a limited owner, but she has become the absolute owner after the commencement of the Hindu Succession Act and as such there would be feeding the grant by estoppel and consequently the plaintiff would become the absolute owner, even on this count also. He stated that as against this evidence, defendants have not produced any document evidence, except some documents which are fabricated by them, as held by the trial Court. Therefore, the judgment and decree of the appellate Court are liable to be set aside.
3. On the other hand, the Counsel appearing for the respondents Sri Mahipathi Rao, supported the judgment and decree of the appellate Court and contended that the appellate Court having assessed the entire evidence on record, has rightly set aside the findings of the trial Court and consequently dismissed the suit and this is not a case for interference. He stated that the findings of fact recorded by the appellate Court would be binding on this Court and the appeal does not raise any substantial question of law. Therefore, the appeal is liable to be dismissed.
4. In order to appreciate the rival contentions of both parties, I think it appropriate to note summarily the facts of this case. I will be referring to the parties as plaintiff and defendants as per the ranking assigned to them in the trial Court, for the sake of convenience. The plaintiff filed a suit for declaration of title with a consequential relief for injunction in respect of land in Sy.No.185 measuring Ac. 12-20 guntas known as "Aremoni Chenu", situated within the limits of Mandipalli village, Krishnapatti taluk, Makthal. The plaintiff also prayed for recovery of possession alternatively, in case it is held that the plaintiff has not proved his possession. It is the case of the plaintiff that one Yellamma wife of Hanutmanna, resident of Mandipalli was the previous owner of the suit land and she gifted the land to the plaintiff vide registered gift deed 7th Shererwar, 1355 Fasli, marked in the suit as Fx.A1, out of love and affection and the land also was delivered to the plaintiff. Immediately the plaintiff filed a suit in OS No.214/l/1355 Fasli for injunction alleging that the plaintiff has been put in possession on the basis of the gift deed vide Ex.A1. Consequently, there was a decree in his favour and accordingly the plaintiff has been in possession of the land as the owner and the defendants have absolutely no concern with the suit lands. They are trying to dispossess the plaintiff out of the suit land with the help of their henchman. The plaintiff also alternatively contended that the plaintiff has been in possession for more than the statutory period and as such, the plaintiff has acquired the title by adverse possession. On the basis of these allegations, the present suit was filed. By filing a written statement, the defendants denied the case of the plaintiff. The defendants stated that Yellamma, wife of Hamtinanna was not the previous owner and possessor of the suit land and she never gifted the suit land in favour of the plaintiff on 7-10-1355 fasli and the plaintiff was not put in possession on the basis of the said gift deed and the gift deed is a bogus document created by the plaintiff for this suit purposes and as such the plaintiff could not derive any title from Ex.A1. At any rate, defendants were not the parties to the said document, therefore, they are not bound by the said gift deed. Even the decree obtained by the plaintiff was not binding on the defendants, since they were not made as parties to the said deed. They further contended that the plaintiff was never in possession of the property and as such he could not perfect his title by adverse possession also. They further contended that the suit property belong to joint family property and as such Yellamma was only a nominal pattadar with a limited interest of maintenance. She had also filed a suit in OS No.17/1/1956 on the file of the District Munsif's Court, Narayanapet for maintenance and the said suit was dismissed for default. The said Yellamma died issueless, leaving behind the defendants and one Linganna, s/o Hanmanna and Yellappa, s/o Ashanna, residents of Mandipalli, as reversioners of her husband. In these circumstances, the defendants and other persons have succeeded to the property as reversioners. The defendants also furnished a pedigree contending that they were the reversioners. Accordingly, they prayed for the dismissal of the suit. By filing a rejoinder, the plaintiff denied the allegations made by the defendants made in their written statement. The plaintiff further stated that the defendants were never the reversioners of Hanumanna, the husband of Yellamma. He contended that the defendants were not even the gotraja Sapindas of Hanumanna. In those circumstances, after the death of Hanumanna, the patta was mutated in the name of Yellamma only and as such it did not devolve on the defendants as the reversioners of her husband. The said suit in OS No.17/1/1956 was only a collusive suit and at any rate, the same was dismissed for default by the Court. He stated that the defendants have been trying to take the possession of the property by creating one document or the other. He stated that when the defendants started disputing the title of the plaintiff, there was an attempt to settle the matter and the defendants also executed an agreement in the presence of Panchas, suggesting half share for the plaintiff and defendants. But they went against the said settlement. Thereafter, there was an another settlement, by which the defendants executed a document stating that the suit land belong to the plaintiff. In the rejoinder, the plaintiff further stated that maintenance of Yellamma was entrusted to the plaintiff. Therefore, Yellamma could not have filed a suit for maintenance in OS No.17/1/1956. The plaintiff also stated that the defendants arc not heirs or reversioners to the husband of Yellamma and the defendants could not challenge the gift deed and the decree in favour of the plaintiff. He stated that the defendants have given a false, bogus and a imaginary pedigree. The plaintiff also gave his own pedigree in the rejoinder. He also stated that the surname of Yellamma, wife of Hanumanna was Chintalnawalla, whereas the surname of the defendants is Gampavolla and these two families are quite different and distinct. Therefore, the defendants were not the heirs of Hanumanna and they did not have any title or possession on the suit land at any point of time. In the year 1979-80, the defendants have got a wrong and bogus entry made in Pahani Patrika, therefore, the plaintiff filed a petition before the Tahashildar for the correction of the entries, for deleting the name of the defendants and other persons made behind the back of the plaintiff. The plaintiff also made another representation reminding the Tashildar to consider his earlier application, but the same has not been considered by the Tashildar, Maktal. He further submitted that the defendants are trying to create some documents, only to harass the plaintiff and deny his title with an ulterior motive of grabbing the property. On the basis of these allegations, he prayed for passing of the decree in his favour. In support of his case, the plaintiff examined himself as PW1 and other witnesses as PWs.2 to 9, and got marked Exs.A1 to A42. On the side of the defendants, they examined defendant No.4 as DW1 and other witnesses as DWs.2 to 6 and they also got marked Exs.B1 to B39. The trial Court on appreciation of the entire evidence on record, both oral and documentary decreed the plaintiffs suit. The appellate Court on reappreciation of the evidence, set aside the judgment and decree of the trial Court and consequently dismissed the plaintiffs suit. As I have stated above, in these circumstances, the plaintiff, has filed the present second appeal.
5. The learned Counsel on both sides, took me through the judgments of both the Courts below and also the pleadings and evidence on record. The trial Court framed the following issues:
(1) Whether the plaintiff is the owner and possessor of the suit land on the basis of registered gift deed dated 7th Shererwar 1355 Fasli ?
(2) Whether the registered gift deed executed in favour of the plaintiff by Yellamma is true and valid ?
(3) Whether the defendants are the reversioners of late Yellamma, if so, what is their right in the suit land ?
(4) To what relief?
6. The following additional issues were framed on 1-9-1981:
(5) Whether the plaintiff is entitled for the recovery of the possession of the suit land Sy.No.185 extent 12 acres 20 guntas situated at Mandipalli village ?
(6) Whether suit is within time ?
7. Again on 16-9-1981 the following additional issues were framed:
(7) Whether the suit of the plaintiff is beyond pecuniary jurisdiction of the Court and the Court fee paid is sufficient ?
8. On issue Nos. I and 2 the trial Court held that Ex.A1 gift deed dated 7th Shererwar 1355-FasaIi was proved and the possession was also delivered to the plaintiff. On the basis of this Ex.A1, the plaintiff through his guardian got the decree for injunction in his favour in OS No.214/l/1355 Fasli on the file of the District Munsif Court, Narayanapet vide Ex.A2. Accordingly, the trial Court held that these documents are proved and the plaintiff has succeeded to prove the title and possession over the suit property and that the registered gift deed executed by Yellamma in favour of the plaintiff was true and valid, relying on the certified copy of Faisal patta of 1955-56 dated 28-5-1956 vide Ex.A3 and the record of rights from the year 1958-59 to 1978-79 vide Exs.A4 to A19, it was held that the plaintiff was in possession of the suit property after the execution of the gift deed vide Ex.A1 and the decree vide Ex.A2. It also relied on Ex.A20 (English translation Ex.A21) sethwar of 1344 Fasli of Mandipalli village. It also relied upon the revenue receipts vide Ex.A22 to Ex.A25. It took note of the fact that on 10-4-1980 the plaintiff made a complaint to the Tahsildhar that illegally the defendants have got entered their names in the record of rights. This complaint is Ex.A26 and the same was given under receipt Ex.A27. Similar petition was also made on 23-5-1980 vide Ex.A28 under the receipt vide Ex.A29 and on that basis the Revenue Inspector made a spot inspection and submitted a report vide Ex.A30. On this basis and also on the basis of earlier pahanis and revenue receipt, the trial Court held that in spite of the complaints made by the plaintiff vide Exs.A26 and A28, the record of rights have not been changed by the authorities, nor his representations were considered, inspite also of the fact that the Revenue Inspector has submitted a report vide Ex.A30 stating that the plaintiff was in possession. Consequently the trial Court held that presumption if any, arising on record of rights vide Exs.B2 to B12 are rebutted. The trial Court did not believe the alleged complaint made by Yellamma complaining wrong entry in the record of rights vide Ex.B12 stating that only copy was filed and there was no proof that the same was submitted to Tahsildhar. Consequently, it disbelieved the receipts produced by the defendants and ultimately held that the plaintiff has proved the possession and accordingly it held that the plaintiff was entitled for injunction and his alternative relief for possession was not necessary. This was the finding on issue Nos. 1 and 2. On Issue No.3 which is one of the crucial issues in this case, the trial Court taking note of the difference in the family names of Yellamma, her husband, and the defendants held that the defendants were not persons belong to Yellamma and family. It specifically took note that the family of Yellamma was called Chintawalle and the name of the family of the defendants was Gampavolla and consequently disbelieved the pedigree filed by the defendants and held that the defendants were not reversioners of the husband of Yellatmma who gifted the property in favour of the plaintiff and consequently decreed the suit for injunction answering other issues.
9. To my surprise, I find that the appellate" Court did not consider these findings of the trial Court so as to set aside these findings on reappreciation of the evidence on record. It simply proceeds on certain assumptions that Ex.A1 gift deed made in favour of the minor-plaintiff was void and consequently Ex.A2 decree has no consequence. It presumed that the defendants were reversioners of the husband of Yellamma by name Hanmanna and accordingly held that the plaintiff has not proved his title and the defendants have proved their title and dismissed the suit. The entire approach of the appellate Court is based on the findings which arc not based on the appreciation of the evidence on record. The appellate Court has not repulsed the reasons assigned by the trial Court while reversing the judgment and decree of the trial Court. The appellate Court did not consider the material documentary evidence filed by the plaintiff particularly the report of the Revenue Inspector vide Ex.A30 which was prepared on the basis of the complaint made by the plaintiff. The appellate Court did not specifically advert to certain entries in the record of rights produced by the defendants in which it is stated that the defendants have purchased the suit land from Yellamma but they have not produced any such sale deed. In fact, the trial Court held the record of rights vide Exs.B7 to B11 have been fabricated in collusion with the village patwari who was examined as DW4 in this case. DW4 deposed that he made entries in favour of the defendants without verifying as to who was in actual possession on the basis of any spot verification. The trial Court consequently held that these record rights produced by the defendants vide Exs.B3 to B11 and the revenue receipt vide Ex.B14 to B34 were all fabricated documents in collusion with the village patwari. These findings are not set aside by the appellate Court. From this kind of approach, it is clear that the findings of the appellate Court are vitiated for non-consideration of the material on record. As a fact finding Court, in order to reverse the findings of the trial Court, the appellate Court should assess the entire evidence and repeal the reasons assigned by the trial Court regarding the respective issues and come to a contrary conclusion. But, in the instant case, this has not been done. Therefore, the judgment and decree of the appellate are vitiated by law and procedure and the same calls for interference by this Court under Section 100 CPC for the reasons I have assigned hereinafter.
10. So far as the proposition of law is concerned, the appellate Court considered the case of the plaintiff by observing that:
"Ex.A1 is a registered document executed more than 30 years back and so it can be marked without further proof. But it is an invalid document. Admittedly, the plaintiff who is the donee in Ex.A1 was a minor on the date of the document and no guardian was mentioned in the document. It is not explained by the plaintiff or his witnesses as to who took possession on his behalf and who accepted the gift. The gift becomes valid only when it is accepted by the donee or somebody on his behalf. Ex.A1 which is executed in favour of a minor without guardian is therefore an invalid document. Any decree obtained on the basis of such an invalid document will be of no effect. Thus, Ex.A2 also does not confer any title on the plaintiff for the suit land."
For this approach of the appellate Court, it is clear that the appellate Court has not applied the correct principles of law. Admittedly, Ex.A1 is gift deed in favour of a minor. The document Ex.A1 itself recites that Yellamma gifted the property in favour of minor-plaintiff out of love and affection. Though the plaintiff father was not described as guardian but the fact also remains that a separate suit was filed in OSNo.214/1/1355 Fasli for injunction and consequently there was a decree for injunction in favour of the plaintiff vide Ex.A2. In the decree, it is specifically stated that Yeilamma has conceded the possession of the plaintiff and on the basis of the gift deed (vide Ex.Al) the plaintiff was in possession. On the basis of this admission made by Yeliamma, the donor, the District Munsif Court, Narayanapet, has granted decree vide Ex.A2. If that is so, the short legal point that I have to immediately consider is whether the gift deed made in favour of a minor without being represented by guardian is valid or not?
11. Section 122 of the Transfer of Property Act defines "Gift" as follows:
"122. 'Gift' defined.-- 'Gift' is the transfer of certain existing moveable and 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. Acceptance when to be made -- 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."
From the first part of the definition of 'Gift', it is clear that it is a transfer of certain existing moveable and immoveable property made voluntarily without consideration and such a gift must be accepted by donee himself or somebody on his behalf. From the second part of the definition, it is further clear that such acceptance may be made during the life time of the donor and if the donee died before acceptance the gift is void. In the instant case, the gift deed executed by Yellamma vide Ex. A1 states that "As I have no male or female issues and there are no heirs to me therefore due to natural love I have donated the above land without consideration in favour of above person and have delivered the possession to him to which the donee has accepted it happily. He may possess and enjoy the above land in any manner he likes. I will mutate the patta of donated land in favour of donee through the Revenue Department or through Court. In case of default, the donee has a right and authority to get mutated the patta of donated land through Court. All the rights which were vested in me upto this date shall all be now vested in favour of donee. Except myself, no other person was having any right of succession over donated land." From the above averment in Ex.A1, it is clear that the gift was made in favour of the minor-plaintiff out of love and affection since the donor had no issues. The said document also recites that the donee has accepted the gift happily. It is not in dispute that the plaintiff-donee was under the custody of his father. Therefore, the question arises whether the plaintiff being minor could have accepted it? The fact also remains on record that this is a registered gift deed in Urdu and whatever I have extracted above is the English translation of it made in the case. Therefore, the other side issue would be whether at least father accepted the gift. Ex.A2 is the decree passed in OS No.214/1/ 1355-Fasli. The cause title shows that the minor-plaintiff filed the suit for injunction under the guardianship of real father Bheema son of Gokerappa and the suit was filed against Yellamma, wife of Hanumanna, the donor. In paragraphs 2 and 3 of the decree, the admission made by Yellamma is noted as under:
"2. It is correct that the defendant has gifted away his owned and possessed patta suit land S. No. 185 measuring 12 acres 20 guntas assessment 12.00 Dry situated at village Mandipalli Jagir Taluka Mukthal without consideration under natural love and got it registered in favour of plaintiff and possession of the suit land was also delivered the plaintiff.
3. That the defendant has no objection if the patta of the suit land is made in the name of the plaintiff.
It is therefore, prayed that the suit of the plaintiff may be decreed without costs."
From the above extract of the decree., it is clear that the defendant- Yellamma in the said suit consented for decree stating that the property has been gifted to the plaintiff and possession has also been delivered and she had no objection if the patta of the suit land was made in favour of the plaintiff. It is not disputed nor it can be disputed that the said suit was filed by the donee, as I have stated above, under the guardianship of his natural father Bheema. In these circumstances, it is clear that there has been an acceptance of the gift on behalf of the plaintiff by his father. The gift itself shows that the gift has been accepted by the donee. It, prima facie., means that the plaintiffs father has accepted the gift on behalf of the minor-plaintiff. In addition to that, it is clear that the record of rights for the years 1958-59 to 1978-79 vide Exs.A4 to A19 and also certified copy of Sethwar of 133-Fasli of Mandipalli village vide Ex.A20 clearly shows that the plaintiff was put in possession through his father after accepting the gift, and consequently the plaintiff was in possession of the property. Even the revenue receipts vide Ex.A22 to A40 clearly establish that the plaintiff was paying the land revenue through his father. On the basis of Ex.A1 gift deed and Ex.A2 decree and on the basis of the record or rights vide Exs.A4 to A20 and revenue receipts vide Exs.A22 to A40 it can safely be concluded that the gift was accepted by the plaintiffs father on behalf of the minor-plaintiff, and the trial Court did consider this evidence but the appellate Court did not consider this evidence along with Exs.A1 and A2 in order to find out whether really the gift was accepted by the father of the minor-plaintiff when the gift was made.
12. The consistent law declared by various High Courts in India is that such acceptance may be express or implied. Even such a donee may be a minor and the minor's natural guardian can accept the gift on behalf of the minor. If an authority is required for the purpose of this proposition and I may immediately quote Mullet's Transfer of Property Act (1990 Edition). In the commentary regarding the item 'donee' under Section 122 of the Transfer of Property Act pertaining to the gift at page 786 it is stated as under:
"A gift may be accepted by or on behalf of a person who is not competent to contract. A minor may therefore be a donee; but if the gift is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the gift."
In view of this consistent law in India, it is clear that the observation of the appellate Court in paragraph 9 of its judgment that Ex.A1 executed in favour of the minor without guardian is not a valid document. In my opinion, there is no doubt that there can be a gift in favour of a minor. The only thing that required to be done is that the father should accept such gift as his guardian and nothing more. It is so because as per the definition of 'gift' it is transfer without consideration and if that is so, the gift is not a matter of contract between two persons for consideration. The gift is a voluntary gratuitous transfer. Such a gift could be also in favour of a deity or in favour a unborn person. In such cases, the only thing that is required for completion of gift is that some person has to accept the gift either on behalf of the minor or deity. Since it is not a matter of contract, between donor and donee for consideration, the donee can as well be a minor. Therefore, the principle laid down under Section 11 of the Indian Contracts Act that a contract with a minor is void, would not apply to the gifts. In this view of the matter, there can be a gift in favour of the minor without even being represented by guardian. In case of onerous gift, he may return it after attaining majority. As I have already stated above, there should be a guardian or some person who accept the gift on behalf of the such minor. In the instant case, the plaintiffs father was acting as natural guardian and he has accepted the gift on behalf of the minor as evidenced by the decree vide Ex.A2. As per the definition of gift under Section 122 of the Transfer of Property Act, the acceptance need not be immediate as on the date of execution of the deed. Such acceptance should take place during the life lime of the donor. Exs.A1 and A2 together clearly show that the property was delivered to the donee and the plaintiffs father accepted the said gift on behalf of the minor-plaintiff and it is a registered gift. The decree itself shows that the instrument of gift was also delivered to the plaintiff through his guardian.
13. Having regard to these circumstances, even if there is no express acceptance of gift, but such acceptance of gift at least can be inferred from the reading of both the Exs.A1 and A2 together along with record or rights for the years 1958-59 to 1978-79 vide Exs.A4 to A19 showing that the plaintiff was put in possession on the basis of the gift deed vide Ex.A1. This record of rights clearly show the name of the plaintiff as the owner and possessor. In these circumstances, the acceptance of gift is implied.
14. Dealing with the similar situation in MT, Anandi Devi v. Mohan Lal, AIR 1932 Allahabad 444, the Division Bench of Allahabad High Court observed as under:
'The plaintiff and her sister at that time were very young and minors and Mohan lal was the guardian at any rate of one of them. They were not in a position to protest against or dispute the acts of their father. All these facts amount in our view to very strong circumstantial evidence of acceptance by the donee Mt. Kapuri, of the gift and we hold accordingly that acceptance has been proved by the plaintiff within the meaning of Section 3, Evidence Act."
From the above observation, it is clear that such acceptance may be express or implied. In another judgment in Tara Sahuani v, Raghunath Sahu, , the High Court of Orissa also found that the mutation of the donor's name in the record of rights was sufficient to constitute an acceptance by the donee by observing as under:
"In view of this position, the contention of the respondent that the deed of settlement was not acted upon cannot prevail. It cannot also be disputed under the circumstances that the acceptance, of the gift by the mother, one of the donees, is sufficient to constitute acceptance by all the donees, particularly when they got their name mutated in 1947 in pursuance of the deed of settlement (Ext.A) which comes from the custody of the donees."
The High Court of Patna went further ahead and held in. Samrathi v. Parasuram, ATR 1975 Patna 140, that the fact of handing over the instrument to donee would itself constitute an acceptance of the gift by the donee. The High Court of Patna, in fact, referred to the earlier judgment of the Privy Council and Bombay High Court in coming to the said conclusion. I think it appropriate to extract the relevant part of the said judgment, which is 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 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 life time of the donor. The fact of acceptance 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 Kalyansundaram Pillcti 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 Chundra Prasad v. Sited Prasa, 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 Travancore and Cochin in the case of Esakkimadan Pillai v. Esakki Atnwa, 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 the 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."
In view of the law declared by various High Courts, as I have already noticed above, it is clear that the gift in favour of the minor was valid and there was acceptance of gift by the father on behalf of the minor and as such the gift was complete. From this position of law it is clear that the appellate Court proceeded to consider the case on totally wrong premise. Therefore, the finding of the appellate Court regarding Exs,Al and A2 found in paragraph No.9 are liable to be set aside. It is also clear that the plaintiff has proved the Ex.A1 gift deed and Ex.A2 decree and consequently he has proved the title. Ex.A1 is the registered document of more than 30 years back. It can safely be relied as piece of evidence without there being any proof. This is the document executed in 1355 Fasli and it is not shown that the attestors of the said document are still alive. In these circumstances, the appellate Court has totally mis-directed itself in not relying on this document filed in support of the plaintiffs case.
15. As against Exs.A1 and A2, the only defence of the defendants is that (hey are the rcversioners of Yellamma, the donor, after the death of her husband Hanumanna. Therefore, they have inherited the property as per the Hindu Law and, therefore, they are in possession as owners. The defendants relied upon the plaint said (o have been filed by Yellanma vide ExB) dated 12-9-1956 in OS No.17/1/56. According to the case of the defendants, Yellamma filed this suit for maintenance and they filed a written statement admitting her allegations and a copy of the written statement is at Ex.B35.
They also examined the Counsel who appeared in the said suit. DW2-Sri Raghavender Rao, Legal Practitioner stated that he filed the plaint in OS No.17/56 on the instructions of Yellamma. DW3--SW Ambadas Rao, Advocate, stated that he filed the written statement on behalf of Dl to D7 in that suit, conceding the plaint allegations. On the basis of this document, the defendants want the Court to believe the said Yellamma admitted that the defendants were reversioners to her husband-Hamunama and after the death of Hammanna they have succeeded" to the property as reversioners. The trial Court rejected their case by noticing that the said suit was dismissed for default and the trial Court also observed that the said suit was only a collusive suit and even in the written statement vide Ex.B35 the defendants have admitted that Hanumanna was a pattadar and after his death the patta was transferred in the name of his wife Yellamma, The trial Court observed that under Section 126 of the Evidence Act the communication between the client and lawyer would be a privileged communication and their evidence would not be admissible under Section 126 of the Evidence Act. It also held that vide Ex.A41 the said suit was dismissed for default on 21-11-1956 and consequently in the said suit those allegations were not proved by leading the evidence. The pleading by itself cannot be taken as proof unless there is a sufficient proof of the same. According to the pleadings in that case, when Yellamma herself was pattadar regarding the land in question and some other lands, the question of seeking maintenance did not arise. The defendants also have not examined any elders in the family who had special knowledge of relationship of parties so as to prove their pedigree and ultimately held that the plaint and written statement filed in OS No.17/1/56 on the file of the District Munsif Court, Narayanapet, vide Exs.Bl and B35 are not proved and the pedigree of the defendants is not proved and consequently they did not prove that the defendants were reversioners of the donor- Yellamma. The trial Court also considered the evidence of PWs. 1 and 9 regarding the relationship amongst the parties. According to this evidence, the plaintiff is maternal grand son of Yellamma, PW9 also spoke to the fact that PW1 is maternal cousin sister's son of Yellamma. According to PWs.1 and 9 PWl's maternal grandmother Ashamma and the donor-Yellamma were real sisters. The father of Hamanarma (husband of Yellamma) was one Chintalaiah and their family name was Chintalawalla whereas the family name of the defendants was Gampavolla.
16. Having assessed the entire evidence on both sides, the trial Court at the end of paragraph 30 gave the finding as under:
"The non-existence of relationship of the defendants with Hanumanna under Ex.A1 and the entries in khasra pahani (Ex.B3) and Ex.B4 to B6 would further lead to draw a conclusion that the defendants are not at all related to Yellamma nor they are reversioners of Hanumanna, the husband of Yellamma. I answer this issue accordingly against the defendants."
This finding, the appellate Court has not set aside by re-appreciating the evidence and by repelling the reasons assigned by the trial Court. But in para to it proposes to set aside the finding by observing as under:
"The plaint and written statement filed in Court are public documents and they can be marked without any further proof. Hence, Ex.Bl and the pedigree filed along with the plaint shows that the defendants are the reversioners and gotraja sapindas Hanumanna, husband of Yellamma. The learned Counsel for the plaintiff-respondent also fairly conceded that the finding of the learned District Munsif on this point cannot be supported and the conclusion is incorrect. Apart from the pedigree filed along with Ex.Bl plaint, the evidence of DW1 and the other witnesses proves that these defendants are the reversioners of Hanumanna, husband of Yellamma."
In the above observation, the appellate Court failed to see that the plaint and written statement are of a suit that was dismissed for default and they may be admissible in evidence and they could be marked as documents, but the fact also remains that these allegations made in the plaint and written statement were not proved in that suit and ultimately that suit was dismissed for default. In these circumstances, it is not possible for any Court to conclude that the allegations in the plaint and written statement in OS No. 17/1/56 vide Exs.Bl and B35 stand proved, without there being any evidence on record to prove those allegations. Allegations themselves cannot be taken as proof unless a person belonging to the family or some other person having special knowledge is examined to prove those allegations. Therefore, the appellate Court is not justified in setting aside the finding of the trial Court only because there is a plaint and written statement in the earlier suit, without considering the entire evidence on record. Though the trial Court may not be correct that the evidence of the Advocates would be inadmissible under Section 126 of the Evidence Act, but taking the evidence of those Advocates, only thing that can be ascertained is that they drafted the plaint and written statement on the basis of the instructions from the respective clients and nothing more. To prove those allegations in the plaint and written statement, somebody should be examined, as I have already stated above regarding the relationship of parties, so as to take that those allegations made in the plaint and written statement are proved, but as I have stated above, for non-examination of any evidence on record, ultimately the suit was dismissed for default.
In these circumstances, the appellate Court is not correct in setting aside the finding of the trial Court on this count alone without considering the entire evidence on record including the evidence on the side of the plaintiff. While giving this finding the appellate Court did not consider the evidence on the side of the plaintiff particularly the evidence of PW1 and PW9 and a separate pedigree filed by the plaintiff. Any finding without considering the necessary evidence on record would be vitiated by law and procedure. From this, it follows that after the death of her husband, Yellamma succeeded to the suit property as owner in the absence any co-parcener existing in the family, since as per the findings recorded by the trial Court the defendants belonged to some other family but not to the family of Yellamma and Hanumanna and their family names are different. Assuming for the sake of argument that Yellamma was limited owner having right to be maintained out of the property, she becomes absolute owner after the commencement of the Hindu Succession Act, 1956. The Hindu Succession Act, 1956 came into force on 14-6-1956 whereas Yellamnia died on i.e., subsequent to the commencement of the said Act as per the contention of both the parties. If that is so, her limited interest if any stands enlarged under Section 14 of the Hindu Succession Act, 1956. Assuming for the sake of argument that Yellamnia had only a limited interest as on the date of execution of Ex.A1, the registered gift deed, the plaintiff would get the absolute rights on the basis of equitable principle of 'feeding the grant by estoppel' as per the law declared by the Hon'ble The Supreme Court in B.S.D. Mahamandal, Kanpur v. Prem Kumar, . In the case decided by the Hon'ble Supreme Court, the reversioners challenged the alienations made by the daughters during the life time of their mother on the ground that they had only a limited interest and as such the alienee could not get any valid title on the basis of the deed of transfer. The Hon'ble Supreme Court negatived the said contention by holding that under Section 43 of the Transfer of Property Act, the equitable principle of 'feeding the grant by estoppel' operates and the alienee rights would get perfected. I think it appropriate to extract the relevant part of the judgment which is as under:
"12. It was, however, contended for the appellants in the circumstances of the present case consent of the other daughters will be presumed. The alienations made by the daughters separately to different persons was never challenged by the other daughters. Even the reversioners did not challenge those alienations during the life time of their mothers and they sought to challenge the alienations long after the death of the last limited owner Smt. Mewa Kuer in 1923 and even if the partition between the daughters had no effect on the reversion it can safely be presumed that the transfer made by one of the daughters of the property exclusively in her possession had the consent of the other. We find considerable force in this contention. This aspect of the case has been completely lost sight of by the High Court. The transfer made by one daughter without the consent of the other is only voidable at the instance of the other co-limited owners or at the instance of the reversioners. In any case Smt. Mewa Kuer after the death of her two sisters came into exclusive possession of the entire estate left by Smt. Amrit Kuer, widow of Lala Gurdin. Therefore, the transferees would be entitled to the protection of Section 43 of the Transfer of Property Act which substantially amounts to satisfying the equitable principle of 'feeding the grant by estoppel'."
The gift is a transfer even though without consideration. Hence, the above principle equally applies to gift also. Moreover the defendants as reversioners or reminders have not filed a suit within 3 years in terms of Article 137 of Limitation Act, nor they have filed a suit within 12 years from the death of last female holder in terms of Article 65 explanation (b) of Limitation Act. Thus, their rights stood extinguished in terms of Article 27 of Limitation Act. On this count also, the plaintiff a donee of Yellamma, the last female holder, becomes owner. Having regard to these circumstances, the finding of the trial Court that the plaintiff has become the owner on the basis of the registered gift deed vide Ex.A1 and the decree vide Ex.A2, is according to the principles of law applicable to the facts ofthe case and in accordance with the evidence on record.
17. Even regarding the possession also, the trial Court clearly gave a finding that the plaintiff was in possession as evidenced by the record of rights and revenue receipts. In paragraph 33, it took note of the fact that immediately after execution of the registered gift deed vide Ex.A1 and the decree vide Ex.A2 and the record of rights stand in the name of the plaintiff. Ex.A3 is the certified copy of the fasli patta dated 28-5-1956 for the year 1955-56. Ex.A4 to A19 are the certified copies of the pahanis for the years 1958-59 to 1978-79. These pahanis clearly show that the plaintiffs name has been entered into the record of rights on the basis of the gift deed and the decree and also the possession of the plaintiff was as owner, but when the name of the plaintiff was edited by entering the name of the defendant in the pahanis, the plaintiff made a complaint vide Ex.A26 to the Tahsildhar, Makthal. The said complaint was given under the receipt vide Ex.A27 dated 10-4-1980. He also sent another representation vide Ex.A28 dated 23-5-1980 under the receipt vide Ex.A29. On the basis these complaints, the Tahsildhar directed an enquiry to be conducted by the Revenue Inspector and accordingly the Revenue Inspector submitted a report dated 20-12-1980 vide Ex.A30. The Revenue Inspector reported that it was the plaintiff who was in possession of the property and the entries made in the name of the defendant were wrong. But curiously enough, no further action was taken on the basis of this report till the suit was filed and the record of rights-which were showing the names of the defendants continues inspite of the report of the Tahshildar Ex.A30. The trial Court also took note of the evidence of DW1 that Yellamma filed one petition dated 14-12-1958 vide Ex.B13. But that was stated to be only a copy of the original petition. It is not shown that the same was submitted to the Tahsildhar under any receipt or any acknowledge under and Ex.Bl3 is not bearing the seal of the Tahsildhar Office. Thus on the basis of this evidence on record, the trial Court held that was a make belief document said to be made by Yellamma and no reliance can be placed on the said document. In fact, in this case, the Revenue Inspector who prepared the report vide Ex.A30 was examined as PW7 and he stated that the plaintiff was in possession as on the date he inspected the land. The trial Court also considered the evidence of DW1 that Exs.B4 to R6 the certified copies of pahanis shows that the defendants were purchasers of the land for Rs. 1,900/- from the pattadar-Yellamma privately. But no such private sale deed is produced by DW1. DW1 also admitted that in column No.8 of Ex.B3 the plaintiff is shown as pattadar. It is interesting to note in this case that the defendants have examined. DW4-pahi'ari of Mandipalli village who prepared the original of Ex.B3. He admits that the plaintiff name was also shown as the pattadar in column No.8 of the Ex.B3. For the question of on what basis he entered the name of the defendants, he stated that the Tahsildhar told him to write it in column No.14 and accordingly he wrote it. He also admitted that he has not seen any document for making the entry and he wrote according to his own ideas. He also stated that he did not see the suit land. DW5 who is said to be an Asaldar patwari of seven villages including the Mandipalli village stated that he has seen the land and one Hanumanna was owner and possessor of the suit land and he made certain entries. The Court below in paragraph 34 of its judgment found that on the basis of the evidence of DW4 it is clear that the wrong and false entries were made in Exs.B3 to B6 and B12 in respect of the suit land showing the defendants as pattadars and possessors and share-holders. If that is so, the presumption arising under Section 9 of the Records of Rights stands rebutted since under Section 9 of the Records of Rights the Revenue authorities are entitled to make necessary entries only on the basis of a registered sale deed as per the Government Notification dated 6-6-1962. But DW4 as Patwari has acted quite contrary to the said Government notification and he made certain false entries without verifying the facts. Consequently, the trial Court found that Exs.B3 to B6 are bogus entries. Even otherwise, Exs.B14 to B34 are the revenue receipts but showing the name of the plaintiff in column No.2 as pattadar. Even though PW1 as plaintiff has admitted that he filed one declaration under the Land Reforms Act but the original declaration is not produced in this case and Ex.B30 is not that original declaration so as to accept the contentions of the defendants that in this declaration the plaintiff has shown the names of the defendants in his own declaration. The trial Court also observed that the thumb impression affixed to the declaration is not the one belonging to the plaintiff nor the declaration bears any stamp of office of the Revenue Divisional Officer indicating that the same has been filed by the plaintiff. Consequently, it held that Ex.B39 is also not proved by holding that on the basis of record of rights and receipts produced by the plaintiff, the plaintiff has proved the possession over the property and consequently he is entitled to injunction. This finding given in paragraph 34 of the trial Court judgment is not specifically considered by the appellate Court. Even the appellate Court has not repelled any reasons assigned by the trial Court for disbelieving the records of rights standing in the name of the defendants and ultimately holding that the plaintiff has been in possession on the basis of the Ex.Al gift deed and Ex.A2 decree and A3"certified copy of faisal patta for the year 1955-56 and Exs.A4 to Al 9 the certified copies of pahanis and Exs.A22 to A40 the revenue receipts. Therefore, the finding of the appellate Court is vitiated by for non-consideration of the material evidence on record. Thus, it is clear that the appellate Court proceeded on wrong assumption of law that the gift deed made in favour of the minor was void and the acceptance of the gift was not proved on the basis of Ex.A2 decree and other revenue records as I have already referred to above. Thus, there is a legal error as well as factual error in the findings of the appellate Court. In this view of the matter, I have no option but to set aside the judgment and decree of the appellate Court and accordingly I pass the Order as under:
This appeal is allowed and the impugned judgment and decree of the appellate Court is hereby set aside by restoring that of the trial Court. No costs.