Karnataka High Court
Jambulingayya Hiremath And Ors vs Smt. Akkamahadevi @ Shashikala & Ors on 28 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 528, 2020 (3) AKR 684
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
R.S.A.No.200221/2015
C/W.
R.S.A.No.200220/2015
R.S.A.No.200221/2015
Between:
Jambulingayya Hiremath
S/o. Siddalingayya Hiremath
Since dead LRs. On record.
1. Smt. Hemavathi
W/o. Jambulingayya Hiremath,
Age: 72 years, Occ: Household,
R/o. H.No.8-11-181/800
NGO's Colony, Vidyanagar,
Raichur - 584 103.
2. Sadyojot
S/o. Late Jambulingayya Hiremath
Age: 46 years, Occ: Govt. Servant,
R/o. H. No.8-11-181/800
NGO's Colony, Vidyanagar,
Raichur - 584 103.
R.S.A.No.200221/2015
c/w.R.S.A.No.200220/2015
2
3. Shivakumar,
S/o. Jambulingayya Hiremath
Age: 44 years, Occ: Private Service,
R/o. H. No.8-11-181/800
NGO's Colony, Vidyanagar,
Raichur - 584 103.
4. Smt. Sridevi Hiremath
W/o. Godayya
Age: 42 years, Occ: Household,
R/o. H. No.EWS-2, KHB Colony,
Vasavinagar,
Raichur -584 103.
5. Chandrashekhar Hiremath,
S/o. Jambulingayya Hiremath
Age: about 49 years,
Occ: Petty Business
R/o. H.No.8-11-181/800,
Vidyanagar,
Raichur - 584 103.
...Appellants
(By Sri Ameetkumar Deshpande for
Sri. Venkatesh C. Mallabadi, Advocate)
And:
1. Smt. Akkamahadevi @ Shashikala
W/o. Late Veeresh Hiremath,
Age: 46 years, Occ: Working as Teacher at
Lakshinarayana Innani
Govt. Higher Primary School, Breshwarpet,
Raichur, R/o. Omkar Nivas (Guptas House)
Geeta Mandir Road, Breshwarpet,
Raichur - 584 103.
2. Arun Kumar S/o. Late Veeresh Hiremath,
Age: 24, Occ: Engineering Student,
R.S.A.No.200221/2015
c/w.R.S.A.No.200220/2015
3
R/o. Omkar Nivas (Guptas House),
Geeta Mandir Road,
Breshwarpet,
Raichur - 584 103.
3. Kirankumar S/o. Late Veeresh Hiremath,
Age: 22, Occ: Student,
R/o. Omkar Nivas (Guptas House),
Geeta Mandir Road,
Breshwarpet,
Raichur - 584 103.
... Respondents
(By Sri. V.K. Nayak, Advocate for R-1 and R-3;
Sri. Arunkumar V. Hiremath - R-2 - party-in-person)
***
This R.S.A. is filed under Section 100 of the Civil
Procedure Code, 1908, read with Order 41 Rule 1 of CPC
against the judgment and decree dated 31-03-2015
passed in R.A.No.55/2010 on the file of the I Additional
District Judge at Raichur, dismissing the appeal and
confirming the judgment and decree dated
31-03-2010 passed in O.S.No.31/2006 on the file of the
Principal Civil Judge (Sr.Dn.) at Raichur.
R.S.A.No.200220/2015
BETWEEN:
Chandrashekhar Hiremath,
S/o. Jambulingayya Hiremath
Age: about 49 years,
Occ: Petty Business
R/o. H.No.8-11-181/800,
Vidyanagar, Raichur - 584 103.
.. Appellant
R.S.A.No.200221/2015
c/w.R.S.A.No.200220/2015
4
(By Sri. Ameet Kumar Deshpande, Advocate)
AND:
Jambulingayya Hiremath
S/o. Siddalingayya Hiremath
Since dead LRs. On record
1. Smt. Hemavathi
W/o. Jambulingayya Hiremath
Age: 72 years, Occ: Household,
R/o. H.No.8-11-181/800
NGO's Colony, Vidyanagar,
Raichur - 584 103.
2. Sadyojot
S/o. Late Jambulingayya Hiremath
Age: 46 years, Occ: Govt. Servant,
R/o. H. No.8-11-181/800
NGO's Colony, Vidyanagar,
Raichur - 584 103.
3. Shivakumar,
S/o. Jambulingayya Hiremath
Age: 44 years, Occ: Private Service,
R/o. H. No.8-11-181/800
NGO's Colony, Vidyanagar,
Raichur - 584 103.
4. Smt. Sridevi Hiremath
W/o. Godayya
Age: 42 years, Occ: Household,
R/o. H. No.EWS-2, KHB Colony,
Vasavinagar,
Raichur -584 103.
5. Smt. Akkamahadevi @ Shashikala
W/o. Late Veeresh Hiremath,
Age: 46 years, Occ: Working as Teacher at
R.S.A.No.200221/2015
c/w.R.S.A.No.200220/2015
5
Lakshinarayana Innani
Govt. Higher Primary School, Breshwarpet,
Raichur, R/o. Omkar Nivas (Guptas House)
Geeta Mandir Road, Breshwarpet,
Raichur - 584 103.
6. Arun Kumar S/o. Late Veeresh Hiremath,
Age: 24, Occ: Engineering Student,
R/o. Omkar Nivas (Guptas House),
Geeta Mandir Road,
Breshwarpet,
Raichur - 584 103.
7. Kirankumar S/o. Late Veeresh Hiremath,
Age: 22, Occ: Student,
R/o. Omkar Nivas (Guptas House),
Geeta Mandir Road,
Breshwarpet,
Raichur - 584 103.
.. Respondents
[By Sri. V.K. Nayak, Advocate for R-5 and R-7;
R-1, R-2, R-3 and R-4 - served;
Sri. Arunkumar V. Hiremath (Party-in-person)-R6]
***
This R.S.A. is filed under Section 100 of the Civil
Procedure Code, 1908, read with Order 41 Rule 1 of CPC
against the judgment and decree dated 31-03-2015
passed in R.A.No.58/2010 on the file of the I Additional
District Judge at Raichur, dismissing the appeal and
confirming the judgment and decree dated
31-03-2010 passed in O.S.No.49/2003 on the file of the
Principal Civil Judge (Sr.Dn.) at Raichur.
R.S.A.No.200221/2015
c/w.R.S.A.No.200220/2015
6
These R.S.As. having been heard and reserved on
05-02-2020, coming on for pronouncement of judgment
this day, the Court delivered the following:
JUDGMENT
R.S.A.No.200221/2015 has arisen from a common judgment and decree passed by the learned Additional Sessions Judge, Raichur (hereinafter for brevity referred to as "first appellate Court") in R.A.No.55/2010 dated 31-03-2015, which in turn, had arisen from a common judgment and decree dated 31-03-2010 passed by the learned Principal Civil Judge (Sr.Dn.) at Raichur in O.S.No.31/2006 (hereinafter for brevity referred to as "Trial Court").
The said O.S.No.31/2006 was filed by the plaintiffs therein against the defendants for the relief of declaration that the registered Revocation Deed No.2409/03-04 dated 31-03-2004 pertaining to the R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 7 suit house plot No.800 and bearing Municipal No.8-11-181/800 situated at NGO Colony, Vidyanagar, Raichur, described in plaint schedule property as illegal, null and void. A relief of permanent injunction, restraining the defendant, his men, agents, etc. claiming through him from interfering in the peaceful possession and enjoyment of the plaintiffs in and over plaint schedule house property was also sought for.
R.S.A.No.200220/2015 has arisen from a common judgment and decree passed by the learned Additional Sessions Judge, Raichur (hereinafter for brevity referred to as "first appellate Court") in R.A.No.58/2010 dated 31-03-2015, which in turn, had arisen from a common judgment and decree dated 31-03-2010 passed by the learned Principal Civil R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 8 Judge (Sr.Dn.) at Raichur in O.S.No.49/2003 (hereinafter for brevity referred to as "Trial Court").
The said O.S.No.49/2003 was filed by the plaintiff therein against the defendants therein for the relief of partition and separate possession and for cancellation of Gift Deed.
The plaintiffs in O.S.No.31/2006 were defendants No.6 to 8 in O.S.No.49/2003 and plaintiff in O.S.No.49/2003 was the defendant No.1(e) in O.S.No.31/2006.
2. The summary of the case of the plaintiff in O.S.No.49/2003 is that, the plaintiff, defendants No.3 and 4 and late Veeresh Hiremath, the husband of defendant No.6 are the sons of defendant No.1 - Sri.Jambulingayya Hiremath. The defendant No.5 is the daughter of defendant No.1; and defendant No.2 - R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 9 Hemavathi is the wife of defendant No.1. Defendant No.6 is the daughter-in-law of defendant No.1, since she is the wife of said late Veeresh Hiremath. The plaintiff and defendants No.1 to 6 are members of the Hindu Joint Family. The defendant No.5 since married after the commencement of amendment to the Hindu Succession Act, 1991, she is also impleaded as a member of the joint family. The defendant No.1 owns and possesses the suit schedule property which includes agricultural lands in Survey No.350, measuring 11 acres, Survey No.856, measuring 17 Acres 18 Guntas, both situated in the limits of Anwari Village of Lingasugur Taluk and a house property bearing Municipal No.8-11-181/800 situated at NGO's Colony, Vidyanagar, Raichur. The defendant No.1 was the Kartha of the said Hindu Joint Family. The said plot which is part of the Hindu property was purchased by defendant No.1 under a registered sale Deed dated R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 10 13-05-1987. Thereafter, he constructed a building on the said plot No.800. Except defendants No.3 and 5, all other parties to the suit are in possession and enjoyment of the suit house property. Since the defendant No.3 is working as a Government servant at Arkonam (Tamil Nadu), he resides at that place of work.
It is further the case of the plaintiffs in the said suit (O.S.No.49/2003) that, defendant No.1 - Sri. Jambulingayya Hiremath had executed a registered Gift Deed No.1471/99-2000 dated 09-09-1999, in favour of his eldest son - Sri. Veeresh Hiremath (since deceased) in respect of plot No.800 unauthorisedly, having no right or authority and behind the back of the plaintiff and defendants No.2 to
5. The said Gift Deed is ab initio void and illegal since on the date of execution of the Gift Deed, the said plot No.800 was not in existence as a plot, since R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 11 construction in the form of a building had already come up on it. Therefore, the said Gift Deed being ineffective, is not binding on the plaintiff.
The plaintiff in O.S.No.49/2003 has further contended that, his suit is for partial partition only with regard to the suit house, reserving his right to the other joint family properties, since the rights and interest of brothers of defendant No.1 were involved.
The plaintiff in O.S.No.49/2003 further contended that defendant No.6 therein filed an application for mutation of suit house in her name before the City Municipal Council, Raichur ("CMC, Raichur" for short). The plaintiff filed his objection to the same. However, his objection was not considered by the CMC, Raichur. Therefore, the plaintiff, having no other efficacious remedy, has filed the suit for declaration to the effect that the Gift Deed R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 12 No.1471/99-2000 dated 09-09-1999 is unauthorised, illegal, void and ineffective against the plaintiff. The plaintiff also claimed that he is entitled for 1/7th share in the suit house property, which consists of ground, first and second floor.
3. After service of suit summons, the defendants No.2 to 6 appeared in the said O.S.No.49/2003 through their counsel. Defendant No.1 - Sri. Jambulingayya Hiremath was placed ex- parte and defendant No.6 - filed her Written Statement.
In her Written Statement, the defendant No.6 though did not deny the relationship between the parties, however, denied the other plaint averment that, the Gift Deed executed and registered in favour of her husband late Sri.Veeresh Hiremath by her father-in-law i.e. defendant No.1 was void and invalid. R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 13 She also contended that her husband who died on 16-03-2002, apart from herself had also left two sons by names, Arun Kumar and Kiran Kumar, as such, they were also necessary and proper parties to the suit. She claimed that the suit plot which was the house property was a self-acquired plot of Sri.Jambulingayya Hiremath - the defendant No.1, as such, it was the exclusive property of defendant No.1
- Sri. Jambulingayya Hiremath who had gifted it to his eldest son Veeresh Hiremath, the husband of defendant No.6, under a registered Gift Deed No.1471/99-2000 dated 09-09-1999. The said gift was made out of love and affection. It is thereafter the defendant No.6 who was working as a Teacher and her husband deceased Sri. Veeresh Hiremath who was attending to Electrical goods and repair works during his life time, availed a housing loan to the tune of `4.00 lakhs from Syndicate Bank, Main Branch, R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 14 Raichur, and by putting their savings from their earnings, have constructed a double-storied building which is the suit house. Thus, after the death of said Veeresh Hiremath, it is the defendant No.6 and her two sons who are in exclusive possession of the suit property. She also contended that apart from the suit schedule immovable landed properties, since defendant No.1 - Jamlingayya Hiremath had other ancestral landed properties also, the suit for partial partition is not maintainable.
4. The defendant No.6 had also preferred a counter claim, stating that, in the joint family properties of her father-in-law, i.e. defendant No.1 - Jambulingayya Hiremath, which was the ancestral joint family properties, her husband deceased Veeresh Hiremath being one of the co-parceners, had his share along with his brothers and father, to an extent of R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 15 1/7th. Thus, after the death of her husband said Sri. Veeresh Hiremath, his share came to be succeeded and inherited by her and her two sons. She described the suit house property in her counter claim as Schedule 'A' property and the remaining items of the joint family property in which she was seeking partition and separate possession to an extent of her alleged 1/7th share as Schedule 'B' property in the counter claim. Stating that her demand for partition and separate possession in Schedule 'B' property since was rejected by the plaintiff and other defendants, she is entitled for her share in the property.
5. The plaintiff in O.S.No.49/2003 filed his Written Statement to the counter claim filed by the defendant No.6, wherein he denied all the averments made by the defendant No.6 in her counter claim, R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 16 more particularly, her averment that, the Gift Deed made by defendant No.1 -Jambulingayya Hiremath in favour of his eldest son Sri. Veeresh Hiremath was valid and binding. The plaintiff also denied that the defendant No.6 is entitled for a share in the property, as claimed in her counter claim.
It appears that during the pendency of the said suit, the two children of deceased Sri. Veeresh Hiremath were also brought on record as defendant No.7 and defendant No.8 in the said suit.
6. The summary of the case of the plaintiffs in O.S.No.31/2006, which plaintiffs are defendants No.6, 7 and 8 in O.S.No.49/2003 is that, plaintiffs No.2 and 3 are the sons of plaintiff No.1. The suit property which is the house bearing No.8-11-181/800 situated at NGO's Colony, Vidyanagar, Raichur, when was in the form of a plot, was gifted by its owner who is R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 17 defendant No.1 - Sri.Jambulingayya Hiremath, under a registered Gift Deed No.1471/99-2000 dated 09-09-1999 to his eldest son - Sri. Veeresh Hiremath (since deceased) who is the husband of plaintiff No.1. The said plot was a self-acquired plot of donor defendant No.1 - Sri. Jambulingayya Hiremath. After the gift, which was accepted by the donee - Sri. Veeresh Hiremath and took over the possession of the said plot, the said Veeresh Hiremath, joined by plaintiff No.1 - his wife, who was then working as a Teacher, by availing a Housing loan and investing their savings from out of their earnings, constructed a double-storied residential house. Thus, the suit property is the exclusive property of Sri.Veeresh Hiremath and the plaintiffs have succeeded to the said property, after the death of Sri. Veeresh Hiremath. However, it came to their notice after the institution of O.S.No.49/2003 that, the said gift made in favour of R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 18 Sri. Veeresh Hiremath was revoked by the defendant No.1 - Sri. Jambulingayya Hiremath, under a Revocation Deed No.2409/03-04 dated 31-03-2003, on the ground that the donee - Sri. Veeresh Hiremath was dead.
The plaintiffs in the said suit O.S.No.31/2006 further contended that, the said revocation of the Gift Deed by the defendant No.1 was unknown to law since the Gift Deed once registered cannot be revoked unilaterally by executing a self-styled Revocation Deed. They further contended that, taking advantage of the alleged illegal revocation of the Gift Deed, the defendants started to interfere in the peaceful possession of the suit property by the plaintiffs. With this, the plaintiffs prayed for decreeing the suit by declaring that the alleged Revocation Deed is null and R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 19 void in the eyes of law and also for the relief of permanent injunction.
7. During the course of the suit in O.S.No.31/2006, since the sole defendant - Sri. Jambulingayya Hiremath died, his legal representatives were brought on record as Defendant No.1(a) to defendant No.1(e). It is defendant No.1(e)
- Sri.Chandrashekhar Hiremath (plaintiff in O.S.No.49/2003) who filed his Written Statement which was adopted by the remaining defendants.
In his Written Statement, defendant No.1(e) denied the plaint averments that the revocation of the gift was null, void and illegal. He contended that the very gift itself is invalid, since as on the date of the gift, there was no vacant plot in the Municipal No.8-11-181/800 situated at Vidyanagar, Raichur, and since already a two-storied building construction had R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 20 come up on the said plot. He also contended that the ground floor and the first floor were constructed from the corpus of the Joint Family Fund. With this, he prayed for dismissal of the suit.
8. The Trial Court framed the following issues for its consideration:-
Issues in O.S.No.49/2003:
"1) Whether plaintiff proves that the plaintiff and defendant No.1 to 4 are the member of the joint family properties?
2) Whether plaintiff is entitled for partition and separate possession of 1/7th share in the suit schedule properties by metes and bounds?
3) Whether plaintiff proves that the gift deed dated 10-09-1999 executed by defendant No.1 in favour of late Veeresh Hiremath is null and void and not binding on the plaintiff?
4) Whether the defendant No.6 proves that whether she is entitled for partition and separate possession of her 1/7th share in the counter claim - B schedule properties at R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 21 Sl.No.1 to 5 as described in the written statement?
5) What order or decree the parties are entitled to?"
Issues in O.S.No.31/2006:
1) Whether plaintiffs prove that, they are the owners and possessors of the suit property?
2) Whether the plaintiffs further prove
that the registered deed in document
No.2409/03-04 dt:31-3-2003 in respect of the suit property is illegal and null and void and as such it is not binding on them?
3) Whether the plaintiffs further prove that the defendant No.1 had gifted the suit house in favour of husband of plaintiff no.1 by name Veeresh Hiremath under registered gift deed in document no.1471/99-00 dated 09-09-1999?
4) Whether the plaintiff prove the alleged interference by the defendants?
5) Whether the plaintiffs are entitled to the relief of declaration and injunction as prayed by them?R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 22
6) What order or decree?"
9. Both the suits were clubbed together and a common evidence in O.S.No.49/2003 was recorded. In order to prove the case of the plaintiff in O.S.No.49/2003, the plaintiff got himself examined as PW-1 and got examined two witnesses as PW-2 and PW-3 and got marked documents at Exhibits P-1 to P-8. The defendants examined five witnesses as DW-1 to DW-4 and got documents marked at Exhibits D-1 to D-29.
10. After hearing both side, the Trial Court by its common judgment dated 31-03-2010, answered issue No.1 in the affirmative, issues No.2 and 4 partly in the affirmative and issue No.3 in the negative in O.S.No.49/2003 and it answered issues No.1, 3 and 4 in the affirmative, issue No.2 in the negative and issue No.5 partly in the affirmative in O.S.No.31/2006, R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 23 partly decreeing the suit of the plaintiff in O.S.No.49/2003 holding that the plaintiff and defendants No.1 to 6 in the said suit are entitled for 1/6th share in the suit schedule properties and the counter claim properties except item No. A i.e. Municipal No.8-11-181/800 situated at NGO's Colony, Vidyanagar, Raichur. It also decreed the suit of the plaintiffs in O.S.No.31/2006 in part. It declared that the plaintiffs in the said suit are absolute owner and possessor of the property bearing Municipal No.8-11-181/800 by virtue of Gift Deed No.1471/99- 2000 dated 09-09-1999. It also granted the relief of injunction as prayed for.
11. Aggrieved by the common judgment and decree passed in O.S.No.31/2006 by the Trial Court, the legal representatives of the deceased defendant No.1 - Sri. Jambulingayya Hiremath preferred a R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 24 Regular Appeal in R.A.No.55/2010 in the first appellate Court. Similarly, the plaintiff in O.S.No.49/2003 preferred a Regular Appeal in R.A.No.58/2010 against the judgment and decree passed in O.S.No.49/2003, before the first appellate Court.
12. The said first appellate Court heard both the appeals together and by its common judgment dated 31-03-2015 dismissed R.A.No.58/2010 with costs by confirming the judgment and decree passed in O.S.No.49/2003. It partly allowed the appeal in R.A.No.55/2010 and modified the judgment and decree under appeal by setting aside the decree of declaration with respect to suit property bearing Municipal No.8-11-181/800, however, confirmed the relief of permanent injunction in favour of the plaintiffs in original suit. It is challenging the said R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 25 common judgment and decrees, the present second appeals have been preferred.
13. The appellants in R.S.A.No.200221/2015 are the legal representatives of the deceased original defendant No.1 - Jambulingayya Hiremath who also includes the appellant - Sri.Chandrashekar Hiremath in the other second appeal. As already observed above, R.S.A.No.200221/2015 has arisen out of O.S.No.31/2006.
R.S.A.No.200220/2015 has been instituted by the original plaintiff in O.S.No.49/2003 against the other legal representatives of his father deceased Sri. Jambulingayya Hiremath who were defendants No.2 to 5 in the trial Court and against the plaintiffs in O.S.No.31/2006 who were defendants No.6 to 8 in O.S.No.49/2003.
R.S.A.No.200221/2015c/w.R.S.A.No.200220/2015 26
14. On 25-08-2015, both the Regular Second Appeals were ordered to be taken up together. The matter was admitted on 15-12-2018 and following substantial questions of law were framed.
"1) Whether the lower appellate Court is justified in rejecting the application for amendment of written statement and the application for production of additional documents without considering the relevance of the documents and the proposed amendment?
2) Whether the Courts below are justified in not holding that the gift deed is void ab initio since the gift is in respect of an open land, though there existed a two storied building as on the date of the deed?
3) Whether the Court below is right in decreeing the suit in O.S.No.31/2006 without production of revocation deed?
4) Whether gift deed can be revoked unilaterally in the facts and circumstances of case?"R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 27
During the pendency of these appeals, respondent No.2 in RSA.No.200221/2015 has filed an application IA.No.3/2019, under Section 151 read with Order XLI Rule 27 of Code of Civil Procedure, 1973 (hereinafter for brevity referred to as `CPC'), seeking permission to produce a certified copy of registered Revocation Deed. The said application is still pending. As such, in addition to the above mentioned four substantial questions of law, one more point that arise for consideration in these appeals is :
Whether IA.No.3/2019 deserved to be allowed?
15. Both the appeals since have arisen out of a common judgment, were taken up together and a common argument was heard from both side.
16. Perused the memorandum of appeals, impugned judgments and decrees and also the entire Trial Court records.
R.S.A.No.200221/2015c/w.R.S.A.No.200220/2015 28
17. Respondent No.4 in R.A.No.58/2010, who originally was defendant No.4 in O.S.No.49/2003, had filed two interlocutory applications in R.A.No.58/2020. The first interlocutory application is IA.No.IV filed under Order VI Rule 17 read with Section 151 of CPC, seeking permission to amend his written statement by way of addition of Paragraph Nos.4 and 5 in it.
In the proposed amendment, the applicant intended to amend his written statement contending that Gift Deed in favour of deceased Veeresh, who is the husband of defendant No.6, is a sham document and not intended to gift away the suit property, hence, the said document cannot be taken into consideration. He has further stated that in the year 1993, the deceased Veeresh intended to establish an Electrical Industry in Raichur, for which, he constituted a Partnership Firm along with one R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 29 Raghavendra V. Kantanavar and the said Firm was named as M/s.Sark Engineers, which was duly registered with the Registrar of Firms at Raichur on 31.7.1993. The said Firm was allotted a Plot No.73(A), measuring 3,164 Sq.Mtrs. from Karnataka Industrial Areas & Development Board (KIADB), Bengaluru. The possession of the said plot was also handed over to the Firm. The Lease-cum-Sale Agreement was also executed by KIADB in favour of the Firm. The deceased Veeresh intended to start an Electrical Goods Manufacturing Unit in the said plot allotted in the Industrial Area, Raichur. For this purpose, he was in need of finance. Therefore, the alleged Gift Deed came into existence only for the purpose of facilitating deceased Veeresh to raise loan on the property comprised in the Gift Deed. Neither the deceased Veeresh nor deceased Jambulingayya R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 30 intended to raise the loan on the said property for the construction of the house.
18. The very same applicant (defendant No.4) in his another interlocutory application i.e., IA.V filed under Order XLI Rule 27 read with Section 151 of CPC, has sought for permission to file certain documents and to lead evidence for marking those documents. He produced a list of documents along with the said interlocutory application which documents were photocopies of registration of Firm M/s.Sark Engineers, letter addressed by the Assistant Engineer, KIADB, Raichur to the said Firm, photocopy of Possession Certificate, photocopy of Form No.A, issued by Registrar of Firms, Raichur, certified copy of Form No.10, issued by Registrar of Firms, certified copy of Partnership Deed and a certified copy of Lease-cum-Sale Agreement dated 27.4.1995. R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 31
In the affidavit accompanying the application, the applicant contended that, to substantiate his claim in the amended written statement, he has to file the documents as mentioned in the list annexed to the application. He has obtained those documents recently and stated that those documents go to the root of the dispute.
19. Respondent Nos.6 to 8 in R.A.No.58/2010 have filed their statement of objections to IA.V, where they denied that the Gift Deed was a sham transaction and that to felicitate deceased Veeresh to avail loan, the said Gift Deed was executed. On the other hand, they stated that the applicant who was respondent No.4 was himself one of the attesting witness to the Gift Deed. The said respondent had filed his short written statement by admitting the entire case of the plaintiff and also written statement of plaintiff is filed R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 32 in reply to the counter claim of respondent Nos.6 to 8. Thus, respondent No.4 having admitted the entire case of the plaintiff, cannot turn round and seek amendment of the written statement nor produce the documents in question. They also stated that virtually the dispute is between plaintiff and defendant Nos.6 to 8. As such, the defendant Nos.1 and 5 cannot seek amendment of the written statement nor produce the documents shown in the list annexed to IA.No.V. They further stated that the act of respondent No.4/applicant enables him to make out a new case at the appellate stage by producing documents and seeking amendment to the written statement. They also stated that ingredients of Order XLI Rule 27 of CPC have not been fulfilled by the applicant.
20. Except stating that the act of the first Appellate Court in rejecting those two interlocutory R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 33 applications is erroneous, learned counsel for the appellants did not substantiate his arguments on this question of law. Similarly, learned counsel for the respondents, as well the party-in-person also did not canvass their arguments on the said question of law.
21. Admittedly, the plaintiff in O.S.No.49/2003 and the applicant in IA.Nos.IV and V in R.A.No.58/2020 are brothers. Their another brother is deceased Veeresh, who is the husband of defendant No.6 and father of defendant Nos.7 and 8 in said O.S.No.49/2003. The said applicant in IA's/ respondent No.4 admittedly has not made any attempt to amend his written statement as defendant No.4 in O.S.No.49/2003. Even according to the applicant, the facts which he intended to bring on record in the form of amendment to his written statement was to his knowledge when he filed his R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 34 written statement in O.S.No.49/2003. The applicant has not shown any reason in the application as to why he did not bring the desired pleading at the earliest in his written statement in the Court below. The applicant has not denied that he was an attesting witness to the alleged Gift Deed standing in favour of deceased Veeresh - his brother. That being the case, had the Gift Deed being a sham transaction and never intended to act upon, he would have at the earliest mentioned the same in his written statement in O.S.No.49/2003. No where he has shown any reason for the delay in filing the application, that too, in the Appellate stage. Thus, without taking any such plea which he now intended to take, he participated in the proceedings in the Court below and allowed the trial Court to adjudicate the matter on its merit upon the issues framed by it.
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22. The Hon'ble Apex Court in Gayathri Women's Welfare Association -vs- Gowramma and another reported in [(2011) 2 SCC 330], was pleased to observe that one of the circumstances to be considered before an amendment is granted is delay in making the application seeking such amendment and, if made at appellate stage, reason why it was not sought in trial Court. In the instant case, the applicant has not explained the delay and has not shown any reason as to why he did not take up the proposed pleas at the earliest in his written statement in O.S.No.49/2003.
23. Apart from the above, the plea that the said Gift Deed dated 9.9.1999 executed by Sri Jambilingayya Hiremath in favour of his eldest son Sri Veeresh Hiremath (since deceased) was void, ab initio and same was illegal had already taken by R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 36 the plaintiff in O.S.No.49/2003. Thus, questioning the said Gift Deed was already made by the plaintiff in O.S.No.49/2003 and in that regard, the trial Court also had framed an issue as Issue No.3 in O.S.No.49/2003 which reads as below:
" Whether plaintiff proves that the Gift Deed dated 10-9-1999 executed by defendant No.1 in favour of late Veeresh Hiremath is null and void and not binding on the plaintiff?"
The evidence was also led from both side on the said issue. The plaintiff got himself examined as PW-1 and the contesting defendants also led their evidence in the matter. However, for the reasons best known to him, the present applicant in IA.Nos.IV and V in R.A.No.58/2010 (defendant No.4 in the Original Suit No.49/2003) did not chose to enter the witness box and lead his evidence. As such, even after filing his short written statement, when the said applicant/ R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 37 defendant No.4 did not chose to seriously contest the matter and did not even lead evidence from his side, has come up with the said applications IA.Nos.IV and V only in the Appellate stage in R.A.No.58/2010, that too, without even explaining the delay and without even mentioning the necessity of amending his pleading in the best interest of justice. Therefore, as observed above, since the challenge to the said Gift Deed was also being made by the plaintiff in O.S.No.49/2003 and specific issue on the said aspect was also framed and tried, the denial of opportunity to the applicant in IA.Nos.IV and V to amend his written statement and to produce additional documents in support of his proposed amendment of written statement would in no way cause prejudice to the interest of the applicant or other parties to the suit.
Further the applicant in IA.Nos.IV and V in the first Appellate Court has also not established that R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 38 notwithstanding the exercise of his due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him at the time when decree appealed against was passed. Further, the very seeking permission to produce additional documents is to corroborate his proposed pleading in the form of amendment to his written statement. As observed above, when the proposed amendment itself is not deserves to be permitted, the question of permitting him to produce additional evidence in the Appellate Court does not arise. The first Appellate Court since after analysing these aspects has rightly rejected the applications for amendment of written statement and for production of additional documents (IA.Nos.IV and V in R.A.No.58/2010), I do not find any error in it. As such, the act of the first Appellate Court in that regard R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 39 cannot be called as non-justifiable. The first substantial question of law is answered accordingly.
24. The suit in O.S.No.49/2003 though is a suit for partition and separate possession, it is also for the relief of declaration to declare that the Gift Deed dated 9.9.1999 was null and void. If the said Gift Deed is declared as null and void, only then the plaintiff in the said suit would be entitled for partition and separate possession of the suit schedule property which is the subject matter of the alleged Gift Deed dated 9.9.1999 also. According to the plaintiff in the said suit, the said Gift Deed was never intended to act upon and the same has been subsequently revoked by the donor under a registered Revocation Deed dated 31.3.2004. The plaintiffs in O.S.No.31/2006 are the beneficiaries under the said Gift Deed dated 9.9.1999. They are the wife and children of deceased donee R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 40 Veeresh Hiremath, in whose favour, late Jambulingayya Hiremath has executed the said Gift Deed giving him the suit schedule property with Municipal No.8-11-181/800, showing it to be a plot under the said Gift Deed. The plaintiffs in O.S.No.31/2006 have sought for the relief of declaration to declare that the alleged registered Revocation Deed dated 31.3.2004 was null and void. Both, the trial Court, as well as the first Appellate Court have confirmed the Gift Deed in favour of the plaintiffs in O.S.No.31/2006. Thus, the remaining three substantial questions of law framed in this appeal are concentrating upon the validity and enforceability of the said Gift Deed dated 9.9.1999 and also the validity of the registered Revocation Deed dated 31.3.2004.
25. The argument of learned counsel for the appellants was that the donor Jambulingayya had no R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 41 absolute title over the house property, because, as on the date of alleged gift, it was not an open plot, but construction was put up on it by the joint family, as such, the gift is null and void. It is also his argument that the Gift Deed dated 9.9.1999 was with respect to the plot only, but, not the super structure built upon it, as such also, the gift in its entirety becomes invalid. He also submitted that substantial question of law No.4 does not arise, for the reason that, it is too general and has no basis in pleading or finding of lower Court.
26. Learned counsel for respondent Nos.1 and 3 in his argument submitted that no where in the plaint in O.S.No.49/2003, the plaintiff has stated that the building structure was a joint family property. He further submits that assuming that there existed a structure on the plot as on the date of gift, still, the R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 42 transfer of the plot in the form of gift includes with it the structure built thereupon. As such, the super structure cannot be bifurcated or differentiated as not a part of gift. In his support, he relied upon two reported judgments which would be referred to at an appropriate stage hereafterwards.
27. The respondent No.2 (in RSA.No.200221/ 2015) and respondent No.6 (in RSA.No.200220/2015)
- Arunkumar, who is appearing as party-in-person, submitted that had the gift made by Jambulingayya was either invalid or was confining to the open plot only, the said Jambulingayya during his life time would have questioned the same. He further submitted that the records shows that it is the family of the donee who have put up construction on the plot gifted to them by availing bank loan. He also submitted that unilateral act of revocation of gift by R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 43 Jambulingayya under the Revocation Deed dated 31.3.2004 is unlawful, illegal, as such, the said Revocation Deed is bad in the eye of law. The trial Court, as well the first Appellate Court after analysing the evidence led before them in detail have uniformly held that gift of the suit schedule `A' property by deceased Jambulingayya in favour of his eldest son Veeresh vide registered Gift Deed dated 9.9.1999, a copy of which is marked at Ex.P-4 and the original is marked at Ex.D-1, is a proven document, as such, the same is a valid gift.
28. The plaintiff in O.S.No.49/2003 as PW-1 in his cross-examination has stated that as at the time of purchase of suit schedule `A' property, which was a plot at N.G.O. Colony, his father Jambulingayya was under Government service in Raichur. He was a member of N.G.O. Officers Registered Association. R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 44 As such, the house bearing No.800 at N.G.O. Colony was allotted to him. Apart from the same, the said witness specifically admitted a suggestion as true that the said property was self-acquired property of his father. Though the said witness has admitted that the said plot was self-acquired property of his father, but, has not produced any documents to show that the structure built thereupon was out of the income of the joint family, for which, deceased Jambulingayya was said to be the karta. The documents produced by the plaintiff from Exs.P-1 to P-8 though shows that initially the katha was standing in the name of Jambulingayya, the donor, and it also shows that the property was proposed for assessment of tax by the City Municipal Council, Raichur, vide Ex.P-7, showing the name of the assessor as Jambulingayya Hiremath (the donor). But, none of the documents produced by the plaintiff could able to show that the alleged structure said to have R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 45 been built upon the said plot was out of the alleged joint family income of deceased Jambulingayya.
On the other hand, the contention of defendant Nos.6, 7 and 8 in the said suit, who are the plaintiffs in O.S.No.31/2006, is that after the registered Gift Deed by Jambulingayya in favour of deceased Veeresh, it was said Veeresh, joined by his wife, who is defendant No.6 in O.S.No.49/2003, availed bank loan of `4 lakhs and also investing their savings, they have put up the construction of a two-storied building on the said plot. The said defendant who was examined as DW-2 has reiterated the same in her evidence also.
However, the defendant No.2 in O.S.No.49/2003, who is the wife of defendant No.1 - Sri Jambulingayya, in her examination-in-chief filed in the form of affidavit evidence has stated that, though R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 46 the gift of the plot was made by her husband in favour of their eldest son Veeresh Hiremath under Gift Deed dated 9.9.1999, which was registered on 10.9.1999, but, the said Gift Deed was void, ab initio and illegal, because, as on the date of Gift Deed, the Plot No.800 neither existed as a plot since a building had already come up on the said plot. In her support, she got produced and marked a Building Licence at Ex.D-2, a Special Notice regarding newly constructed building, dated 28.9.1998, issued by the City Municipal Council, Raichur, at Ex.D-3, Karnataka Electricity Board permission letters at Exs.D-4 and D-5, three property tax receipts with respect to the same building at Exs.D-6, D-7 and D-8 respectively. She has also produced property tax paid receipts with respect to the very same property for the different years from Exs.D-9 to D-15. However, the documents from Ex.D-2 to D-8 shows the name of Jambulingayya as R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 47 the owner of the property, which means, the building construction licence was obtained in the name of Jambulingayya and building was assessed to tax in the year 1998 in the name of Jambulingayya. However, the very same witness in her cross-examination has stated that as on the date of the gift, the gifted property was a vacant site.
Both PW-1 and DW-1 in their cross-examination have not denied that in order to put up a construction on the plot which was gifted to Veeresh, the said Veeresh had availed a bank loan of `4 lakhs from Syndicate Bank at Raichur. PW-1 stated that he came to know about the said loan at a later date, which means that, he had not denied that his brother had obtained a loan for putting up construction on the gifted property. The said witness also stated that he does not know that wife of Veeresh i.e., defendant R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 48 No.6, had joined her husband in availing loan and that she is repaying the loan installments from out of her salary.
Similarly, DW-1, who is the wife of the donor Jambulingayya, also has not denied that to put up the construction on the said plot, defendant No.6 had availed a loan from Syndicate Bank. She has also pleaded her ignorance for the suggestion that the said loan is still outstanding.
29. Therefore, though the plaintiff and DW-1/ defendant No.2 contended that plot was not the part of the Gift Deed dated 9.9.1999, but, they have not specifically denied that the donee, joined by his wife, has put up structure on the said plot. However, the wife of the said donee i.e., defendant No.6, who was examined as DW-2, in her cross-examination has admitted a suggestion as true that in Ex.D-3, it is R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 49 shown that the construction of the building was completed on 28.9.1998, but, still she denied another suggestion that, as on the date of Gift Deed at Ex.D-1, the construction of the building on the plot was completed. However, said DW-2 in her support has produced some of the documents, including the statement of her loan account issued by the Bank at Ex.D-20, Tax Demand Register at Ex.D-21 and letter issued by Bank towards the loan account at Ex.D-24. She has also produced a copy of the Housing Loan Agreement made by herself and her husband with the Syndicate Bank, Raichur, on 18.9.2000 at Ex.D-27. The purpose of the loan appears to be for putting up construction of a house and the said house property is shown as property bearing No.8-11-181/800, situated at N.G.O. Colony, Vidyanagar, Raichur, which is the suit schedule `A' property herein.
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30. Therefore, from these it can be inferred that the oral and documentary evidence is that, though the subject matter of the gift under Ex.P-4/Ex.D-1 was shown to be a plot, but, as on the date of the gift, the donor Jambulingayya had already obtained a building construction licence and a portion of the building was already put up which was subjected for assessment as per Ex.D-3. However, after the gift in favour of Veeresh Hiremath under Ex.D-1/Ex.P-4 on 9.9.1999, the said donee, joined by his wife, who is DW-2, availed a housing loan and continued the construction and completed it. As such, the argument of the appellants that as on the date of the gift, the subject matter of the gift was not a mere plot, but, it had a fully put up two-storied construction upon it, does not stand proved.
In view of the fact that Ex.D-3 shows that Municipal Council, Raichur, had issued a notice to R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 51 Jambulingayya on 28.9.1998 stating that he had put up a newly constructed building in House bearing No.8-11-181/800, at Vidyanagar, Raichur, and the same is due for assessment, as such, the existence of some structure can be inferred as in the year 1998 itself, which was prior to the gift under Ex.D-1. Still, whether the said Gift Deed is void because it does not mention about the existence of any structure upon it is a point to be considered.
31. Though the learned counsel for the appellants submitted that the gift becomes void because of non-mentioning of the alleged structure upon it, however, he did not substantiate his argument by citing any provision of law or by producing any material in his support. On the other hand, learned counsel for respondent Nos.1 and 3 drawing the attention of this Court to Section 3(26) of R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 52 General Clauses Act, 1897 and Sections 3 and 8 of Transfer of Property Act, 1882, (hereinafter for brevity referred to as `T.P.Act'), submitted that transfer of an immovable property implies and includes in it the transfer of the structure put up thereupon.
32. Admittedly, the gift made by Jambulingayya in favour of his eldest son Veeresh under registered Gift Deed dated 9.9.1999 is with respect to an immovable property which is described as Plot No.800, bearing Municipal No.8-11-181/800, measuring 18 x 12 mtrs. situated at N.G.O's Colony (Vidya Nagar), in Survey Nos.886 and 887 on Bolmandoddi Road, Raichur. Thus, the gift is of an immovable property. Section 3 of T.P.Act defines "immovable property" stating that it does not include standing timber, growing crops or grass. R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 53
Section 8 of T.P.Act speaks about the "Operation of transfer" and it says that, unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. It further says, such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth. (Emphasis supplied).
Section 3 of the same Act also defines "attached to the earth" stating that, it means (a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 54 the permanent beneficial enjoyment of that to which it is attached. (Emphasis supplied).
Section 3 (26) of the General Clauses Act, 1897, defines "immovable property" as, it shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
33. Our Hon'ble Apex Court in Suresh Chand
-vs- Kundan (Dead) by LRs. and others, reported in [(2001) 10 SCC 221], was pleased to observe with respect to Sections 3(a) & 8 and 54 of T.P.Act and Section 3(2) of General Clauses Act that, where land owner agrees to sell his right, title and interest in the land, such sale would include the trees standing thereon in absence of any express or implied agreement to the contrary.
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The above provisions of law, as well judgment of Hon'ble Apex Court in Suresh Chand (supra), makes it very clear that where the transferor intends to transfer an immovable property to the transferee, unless specifically the right or liberty is reserved by the transferor, all those things which are attached to the earth in the said transferred immovable property passes to the transferee.
34. In the instant case, a careful study of the Gift Deed at Ex.D-1/Ex.P-4 shows that, no where the donor Sri Jambulingayya had either mentioned about the existence of any building structure on the property gifted to his son Veeresh or had reserved his right over the alleged structure on the transferred plot, which structure, according to the plaintiffs in O.S.No.49/2003, was said to be in existence. As such, even after assuming that there was some R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 56 structure as on the date when the gift was made by the donor in favour of the donee of the suit schedule `A' property, still, the transfer includes along with the plot, the structure built thereupon also. Therefore, the argument of the appellants that the gift is void, ab initio since the gift is in respect of an open land though there existed a two-storied building as on the date of Deed, is not acceptable.
Since both the Courts below have held that Gift Deed is not to be considered as void, ab initio, the said finding given by the trial Court, as well the first Appellate Court are justified. Hence, the second substantial question of law is answered in the affirmative.
35. According to the appellants, the plaintiffs in O.S.No.31/2006, who had prayed for the relief of declaration that registered Revocation Deed dated R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 57 31.3.2004 said to have been executed by Jambulingayya as void, have not produced the said Revocation Deed, as such, the Court below ought not to have decreed the suit in O.S.No.31/2006.
36. Admittedly, the plaintiffs in O.S.No.31/2006 had not produced either the original of the said Revocation Deed or its certified copy. However, the said plaintiffs in appeal i.e., R.A.No.55/2010, which was preferred by the legal representatives of defendant No.1 against the judgment and decree in O.S.No.31/2006, have made an application under Order XLI Rule 27 of C.P.C., seeking permission to produce the certified copy of the said Revocation Deed said to have been bearing No.2409/03-04 and dated 31.3.2004. Admittedly, the first Appellate Court without disposing of the said interlocutory application, had disposed of the main appeal itself. This has made R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 58 the said applicants to file one more similar application before this Court in RSA.No.200221/2015 in the form of IA.No.3/2019 once again seeking permission to produce the alleged copy of the said Revocation Deed. The appellants have not contested the said application nor the learned counsel has submitted his argument on the said application and also about the alleged non-production of the Revocation Deed by the plaintiffs in O.S.No.31/2006.
37. A perusal of pleadings in O.S.No.31/2006 makes it very clear that the plaintiffs in their plaint have given the complete details of the said Revocation Deed with its document number, date of registration, date of execution and the subject matter of the document in detail. The original defendant in the said suit was none else than the Executor of the said Revocation Deed i.e., Jambulingayya Hiremath R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 59 himself. After his death, his legal representatives were brought on record in the said suit. In the written statement filed by the legal representatives of the defendants, no where they have pleaded that in the absence of production of the Revocation Deed, they were not able to understand the details and the nature of the document. On the other hand, a reading of the very entire written statement clearly go to show that the defendants were clearly aware of which document that was challenged in the said suit and also the details of the said document, including its nature and the subject matter. It is only after considering the pleadings of both side parties, the trial Court in O.S.No.31/2006 as issue No.2, has framed issue as follows :
2) Whether the plaintiffs further prove that the registered deed in document No.2409/03-04 dt:31-3-2003 in respect of the R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 60 suit property is illegal and null and void and as such it is not binding on them?
After understanding the issues, both side parties have led their evidence in detail. As such, though it is required of the party to produce the documents with respect to which he has sought for some declaration, however, in the instant case, in the circumstances analysed above, the non-production of the said Revocation Deed either in its original or its certified copy, in no manner has caused prejudice to the interest of either of the party. On the other hand, both side have understood the nature, details and contents of the said document which is the Revocation Deed dated 31.3.2004 and have contested the matter in its entirety.
On the other hand, either remanding the matter to the first Appellate Court to dispose of pending R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 61 interlocutory application filed under Order XLI Rule 27 of CPC by the applicants therein or allow IA.No.3/2019, pending in this appeal (RSA.No. 200221/2015) would further procrastinate the matter, which Original Suit is fourteen years old already. Further it serves no purpose since interest of neither of the parties has been affected by non-production of such Revocation Deed. Therefore, confining to the said facts and circumstances of this case, I hold that the trial Court was not wrong in decreeing the suit in O.S.No.31/2006 without the production of the Revocation Deed. Simultaneously, IA.No.3/2019 filed in RSA.No.200221/2015 also does not require to be allowed. Accordingly, I answer third substantial question of law in the affirmative.
38. In the instant case, the registered Gift Deed dated 9.9.1999 was revoked by the donor R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 62 Sri Jambulingayya through registered Revocation Deed dated 31.3.2004. Admittedly, the said revocation was an unilateral act of the donor Jambulingayya, who is the father of the donee.
39. Section 126 of T.P.Act speaks about when the gift may be suspended or revoked. It reads as below:
" Section 126 : When gift may be suspended or revoked.-The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
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Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice."
40. In a judgment relied upon by the learned counsel for respondent Nos.1 and 2 in his support, which is in the case of Asokan -vs- Lakshmikutty and others, reported in [(2007) 13 SCC 210], the Hon'ble Apex Court at Paragraph-30 of the judgment was pleased to observe that, once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift.
41. In Narayanamma -vs- Papanna, reported in ILR 1987 KAR 3892, a Co-ordinate Bench of this Court at Paragraph-12 of its judgment was pleased to observe as below :
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" 12. As to under what circumstances a gift can be suspended, cancelled or revoked is dealt in Section 126 of the Act which is as follows:
" The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
"Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice."
From the contents of Section 126 of the Act, it is clear that a gift can be cancelled or rescinded only under the following circumstances:-
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a) On the happening of an event specified in the gift deed:
b) The Donor and the Donee must have agreed to such condition;
acceptance of such condition specified in the gift deed must be agreed to by the donee while accepting the gift :
c) The event agreed upon must be such that the happening of it does not depend on the will of the donor :
d) The conditions so imposed must not be repugnant to the gift and should not be illegal or immoral :
e) A gift may also be revoked or rescinded as if it were a contract on the same grounds on which a contract may be rescinded except on the ground of failure of consideration.
A contract is normally rescinded or avoided, as per Sections 19 and 19 A of the Contract Act. When consent to an agreement is caused by coercion, fraud, misrepresentation or undue influence, at the instance of the party whose consent is so obtained. Except on the aforesaid grounds, a gift cannot be rescinded or revoked on any other ground. This position is specifically made clear by stating in Section R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 66 126 of the Act "Save as aforesaid, a gift cannot be revoked." However it may also be noticed that in the event the case falls under Section 20 of the Contract Act, the gift will be void ab initio and in such a situation, the question of avoiding it does not arise. There is no recital contained in the gift deed as to happening of any specific event independent of the will of the donor. There is also no recital in the gift deed enabling the donor to revoke it on the failure of the donee to maintain the donor or on the happening of any other event. A gift deed cannot be revoked save as provided in Section 126 of the Act. The circumstances under which a gift can be revoked or rescinded are already pointed out."
42. In the instant case, a perusal of the original Gift Deed which is at Ex.D-1 would go to show that the said Gift Deed was a simple Gift Deed, where the donor, as a father, has gifted an immovable property in favour of the donee, who is his eldest son out of natural love and affection. Except stating that the gift R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 67 is made out of natural love and affection, no other conditions are attached to the said gift in any manner. The donee has accepted the said gift by specifically mentioning that he has accepted the said gift and putting his signature which is at Ex.D-1(b). Therefore, it is a simple concluded gift which can only be revoked under any of the circumstances prevailing under Section 126 of T.P.Act.
43. In the instant case, there is no evidence to show that the donor and donee had agreed that on the happening of any specified event, independent of the will of the donor, the gift should be revoked. It is also not the case that the gift was vitiated or caused by fraud, coercion, misrepresentation or undue influence as per Section 19 and Section 19(A) of Indian Contract Act, 1872. It is not even the case of the parties who are R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 68 challenging the gift that the said gift was hit by Section 20 of Indian Contract Act. Therefore, the unilateral revocation of the gift which falls out of the ambit of Section 126 of T.P.Act, as in the instant case, is not a valid revocation. Therefore, the fourth substantial question of law is answered holding that the Gift Deed cannot be revoked unilaterally in the instant case.
44. In view of the above answers to all the substantial questions of law, I proceed to pass the following order :
ORDER IA.No.3/2019 filed in RSA.No.200221/2015 is dismissed.
RSA.No.200221/2015 and RSA.No.200220/2015 are dismissed. The judgment and decrees dated 31.3.2015, passed by the learned I Addl.District R.S.A.No.200221/2015 c/w.R.S.A.No.200220/2015 69 Judge, Raichur, in R.A.No.55/2010, connected with R.A.No.58/2010, are confirmed.
No order as to costs.
Registry to transmit a copy of this judgment along with trial Court and first Appellate Court records to the concerned Courts without delay.
Sd/-
JUDGE bmv/bk