Bombay High Court
Vijay Champalal Mohata (Deceased) Thr. ... vs Dinesh Mishrilalji Bora on 24 September, 2018
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
40-J-SA-510-17 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.510 OF 2017
Vijay Champalal Mohata
(Deceased) Hence, through
his legal heirs :
1. Premlata wd/o Vijay Mohta,
Aged about 80 yrs.
Occupation : Housework,
r/o Marwadi Chowk,
Near Oswal Traders, Yavatmal,
Tq. and Dist. Yavatmal
2. Rahul Vijay Mohta,
Aged about 51 yrs.
Occupation : Business,
r/o Marwadi Chowk,
Near Oswal Traders, Yavatmal,
Tq. and Dist. Yavatmal
3. Tilotama @ Pinki w/o Rajesh Bothara,
Aged about 49 yrs.
Occupation : Housework,
r/o c/o Rajesh Bothara,
Near Old Vivekanand School,
Behind Nagar Parishad, Wani,
Wamanghat Road, Wani,
Tq. and Dist. Yavatmal. ... Appellants.
-vs-
Dinesh Mishrilalji Bora,
Aged about 83 years,
Occupation : Business,
r/o Main Road, Yavatmal,
Tq. and Dist. Yavatmal ... Respondent.
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40-J-SA-510-17 2/12
Ms Ratna Singh, Advocate h/f Shri Amol Mardikar, Advocate for appellants.
Shri C. S. Kaptan, Senior Advocate with Shri Palash Mohta, Advocate for
respondent.
CORAM : A. S. CHANDURKAR, J.
DATE : September 24, 2018.
Judgment :
This appeal has been heard on the following substantial questions of law :
I) Whether the factors taken into consideration by the appellate Court are of such nature that could result in concluding that the gift-deed at Exhibit-25 was not validly executed by Mishrilal ? II) If it is found that said gift-deed was validly executed, whether the same was revoked in accordance with law as per document at Exhibit-61 ?
2. The appellants are the legal heirs of the original plaintiff who had filed suit for recovery of two separate houses on the basis of gift-deed executed in his favour by on Mishrilal Bora. In the plaint it is the case that after execution of that gift-deed on 30/03/1983 in favour of the plaintiff, the plaintiff had accepted the same and had taken possession of the suit house. He had made various alterations therein and mutation entry to that effect was also recorded. After the death of the donor-Mishrilal Bora the defendant started quarreling with the plaintiff with regard to the possession of the suit property. There were proceedings initiated under Section 145 of the Criminal Procedure Code, 1973 and taking advantage of the same the ::: Uploaded on - 29/09/2018 ::: Downloaded on - 29/09/2018 23:51:36 ::: 40-J-SA-510-17 3/12 defendant took possession of the suit property on 07/11/1990. Based on the aforesaid gift-deed the plaintiff filed the aforesaid suit for possession.
3. The defendant in his written statement took the stand that the said gift-deed was prepared by exercising undue influence and misrepresentation on the donor. Said Mishrilal was suffering from cancer and was undergoing treatment. At Yavatmal the donor was always surrounded by Champalal who was the brother-in-law of the donor alongwith his sons, the plaintiff and his brother Vijay. The gift-deed was got executed without making the donor aware of its true contents. Possession was not delivered to the plaintiff. When the donor got knowledge about the said gift-deed, he revoked the same by executing a cancellation-deed on 27/04/1983. This fact was informed to the tenants who were in occupation of the suit property. It was also pleaded that the defendant was the adopted son of the donor, the adoption having taken place on 27/04/1983. It was thus pleaded that the suit was liable to be dismissed.
4. The trial Court after considering the evidence on record held that the plaintiff had become the owner of the suit property by virtue of the said gift-deed. Same was not illegal or invalid. The date of revocation was held to be not duly proved. On that basis the trial Court decreed the suit and directed the defendant to hand over possession. The appellate Court ::: Uploaded on - 29/09/2018 ::: Downloaded on - 29/09/2018 23:51:36 ::: 40-J-SA-510-17 4/12 dismissed the appeal filed by the defendant. Second Appeal No.159/1999 was filed in this Court and by judgment dated 20/12/2014 the judgment of the appellate Court was set aside on the ground that the appeal had not been satisfactorily decided. The appellate Court was directed to reconsider the said appeal. After remand the appellate Court by the impugned judgment allowed the same and held that the plaintiff did not prove his title to the suit property on the basis of said gift-deed. It was held that the gift-deed was invalid and that it was validly revoked on 27/04/1983. Being aggrieved the original plaintiff has filed the present Second Appeal.
5. Ms R. Singh, learned counsel for the appellants submitted that the appellate Court committed an error in coming to the conclusion that the gift- deed at Exhibit-25 was not validly executed by Mishrilal. It was submitted that by examining the scribe at Exhibit-42 the due preparation and execution of the gift-deed had been proved. There was not evidence brought on record by the defendant to indicate the ailments suffered by the donor. The appellate Court had wrongly held that the said gift-deed was executed for consideration. It was submitted that the same was executed under the free will of the donor and on reading of said Exhibit-25 it could not be said that it was in lieu of any consideration as held by the appellate Court. It was then submitted that there were no sufficient pleadings in the written statement as required by provisions of Order VI Rule 4 of the Code of Civil Procedure, ::: Uploaded on - 29/09/2018 ::: Downloaded on - 29/09/2018 23:51:36 ::: 40-J-SA-510-17 5/12 1908 (for short the Code) on the aspect of fraud, undue influence and misrepresentation as pleaded. In absence of those pleadings, the appellate Court committed an error in considering that aspect of the matter. For said purpose the learned counsel placed reliance on the decision in Ladli Prashad Jaiswal vs. The Karnal Distillery Co. Ltd. Karnal and ors. AIR 1963 SC 1279. The finding recorded by the trial Court was therefore not liable to be set aside by the appellate Court. Moreover, the evidence of the parties was recorded after more than nine years and hence minor discrepancies therein ought to have been ignored by the appellate Court.
It was then submitted that the gift-deed at Exhibit-25 was not validly cancelled as per deed at Exhibit-61. There was no attesting witness examined as required under Section 68 of the Evidence Act, 1872. Similarly in the light of provisions of Section 7 of the Contract Act, 1872, the revocation deed did not deserve to the accepted. No valid notice was served on the plaintiff who was the donee under the gift-deed at Exhibit-25. Reference was made to the decision in Devidas Ragho @ Ganpat Peche vs. Raghoba s/o Maroti Peche 2008(2) Mh.L.J. 296 as well as to the judgment of the Division Bench in Sheel Arora vs. Madan Mohan Bajaj and ors. (2007) 5 SCC 848. It was thus submitted that the gift having been validly executed and the deed of revocation not having been duly proved, the judgment of the appellate Court was liable to be set aside and that the judgment of the trial Court deserves to be restored.
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6. Shri C. S. Kaptan, learned Senior Counsel for the respondent supported the impugned judgment. It was submitted that there were various legal infirmities in the execution of the gift-deed at Exhibit-25. The evidence on record was rightly appreciated by the appellate court while concluding that valid execution of the gift-deed was not proved. It was submitted that the gift-deed was scribed on document at Exhibit-25 but the stamp paper was purchased in the name of the donee-plaintiff. Same was impermissible in the light of provisions of Section 30(g) of the Maharashtra Stamp Act, 1958. While it was deposed by the witness examined by the plaintiff below Exhibit-42 that the challan was filled in and deposited by the donor, the stamp paper indicated the name of the plaintiff. Moreover, the witness Rahangdale has stated that he had scribed the gift-deed but perusal of Exhibit-25 indicated that the said document was scribed by one Shri Khadse. It was then submitted that in the light of provisions of Section 122 of the Transfer of Property Act, 1872, the gift-deed ought to be executed without there being any consideration in question. In the said gift-deed it was clearly recited that on account of the services rendered by the father of the plaintiff, the gift-deed was executed. This, according to the learned Senior Counsel amounted to a consideration for past services and hence the provisions of Section 122 of the said Act were violated. In that regard reference was made to the dictionary meaning of expression "reward" to urge that when something of value is given in return for some service, then ::: Uploaded on - 29/09/2018 ::: Downloaded on - 29/09/2018 23:51:36 ::: 40-J-SA-510-17 7/12 the same is in the nature of consideration. For said purpose reliance was placed on the decisions in Debi Saran Koiri and anr. vs. Nandalal Choubey and ors. AIR 1929 Patna 591 and Commissioner of Gift-tax (Central), Bombay vs. J. N. Marshall (1979) 120 ITR 613. It was further submitted that the evidence on record clearly indicated that on account of the influence and dominating position of the plaintiff and his relatives, the gift-deed came to be executed. The burden to prove absence of such pressure or undue influence was on the plaintiff and the same was not discharged. The learned Senior Counsel referred to the decisions in Krishna Mohan Kul alias Nani Charan Kul and anr vs. Pratima Maity and ors. AIR 2003 SC 4351 and Bandarupali Mastanamma being minor represented by the next friend and mother Bandarupali Nagaratnamma and ors vs. Ganguri Adinarayana and ors. AIR 1966 Andhra Pradesh 104 in that regard. It was also submitted that there were sufficient pleadings to indicate exertion of influence and pressure on the part of the plaintiff while having the gift- deed executed. Moreover, possession of the suit property was never delivered to the plaintiff nor did the tenants who were occupying the suit premises pay rent to the plaintiff. It was thus submitted that the appellate Court rightly held that the gift-deed was not validly executed.
As regards the deed of revocation at Exhibit-61, it was submitted that the donor was within his legal rights in revoking the gift-deed. In that document it was stated that the donor had been pressurised to execute the ::: Uploaded on - 29/09/2018 ::: Downloaded on - 29/09/2018 23:51:36 ::: 40-J-SA-510-17 8/12 alleged gift-deed. Referring to the provisions of Section 126 of the said Act, it was submitted that the revocation was legal and it was rightly accepted by the appellate Court. Notice was issued to the plaintiff at Exhibit-70 and hence after complying with all legal requirements the deed came to be cancelled. It was further submitted that the property in question was wrongly described in the gift-deed as property No.42/2 while in the plaint it was described as 42/1. It was thus submitted that the appellate Court did not commit any error whatsoever while allowing the appeal and dismissing the suit for possession.
In reply to the aforesaid, the learned counsel for the appellant submitted that the decisions relied upon by the learned Senior Counsel did not support his contentions and the ratio laid down therein could not be applied to the case in hand.
7. I have heard the learned counsel for the parties at length and I have also gone through the evidence led by them.
8. In so far as the gift-deed dated 30/03/1983 is concerned, the appellate Court has held that the said gift-deed was not validly executed nd that it had no legal effect on the title of Mishrilal. According to the appellate Court the evidence brought on record by the plaintiff with regard to execution of gift-deed was not liable to be accepted on the ground that the ::: Uploaded on - 29/09/2018 ::: Downloaded on - 29/09/2018 23:51:36 ::: 40-J-SA-510-17 9/12 deposition of PW-2 Sunil Rahangdale who was the attesting witness did not inspire confidence considering the discrepancies therein. It noted that even according to said witness the donor Mishrilal was suffering from cancer and in March 1983 he was sick. The said witness was not knowing the contents of the said document at Exhibit-25 and that the donor did not sign in his presence. Though it was stated by said witness that he had scribed the gift-deed, its perusal indicates that the same has been scribed by one Khadse.
On considering the deposition of said witness at Exhibit-42 it is found that the appellate Court has not appreciated the said evidence in a perverse manner. On reading the entire deposition of said witness it is clear that the appellate Court was justified in refusing to rely upon that deposition as it did not inspire confidence.
9. Another reason assigned by the appellate Court is that the gift- deed was not in conformity with Section 122 of the said Act inasmuch as the gift was executed as a consideration for the services rendered by the plaintiff's father. For said purpose the recitals in the gift-deed were taken into consideration and it was found that the gift-deed was not executed on account of love and affection of the donor towards the plaintiff. Infact there was no reference to the said gift-deed being executed on account of the donor's affection towards the plaintiff. The learned Senior Counsel for the respondent is justified in relying upon decision in Debi Saran Koiri (supra) ::: Uploaded on - 29/09/2018 ::: Downloaded on - 29/09/2018 23:51:36 ::: 40-J-SA-510-17 10/12 wherein it has been held that if there is presence of consideration either of money or money's worth, the same would amount to consideration as contemplated by Section 122 of the said Act.
On acceptance of the gifted property by the plaintiff, there is no such statement made therein that the plaintiff had accepted the gift-deed and thereafter acted upon the same. It has come in evidence that the tenants were occupying the suit property prior to execution of the gift-deed and they continued to pay rent to the donor and they did not accept the plaintiff as their landlord.
10. Yet another aspect that has weighed with the appellate Court is the admission of the plaintiff wherein it has been stated that as the plaintiff and his family did not have any house at Yavatmal they were requesting the donor to give them a house and due to their insistence the gift-deed was executed. As noted above the plaintiff is related to the donor and was thus in a dominating position over the donor. As held in Krishna Mohan Kul (supra) if a person is in a fiduciary relationship with another and that person is in a position of active confidence, the burden to prove absence of misrepresentation or undue influence is upon the person in the dominating position. He has to prove that there was fair play in the transaction and that the same was genuine and bonafide. When the evidence on record is viewed in this backdrop, it becomes clear that the appellate Court was ::: Uploaded on - 29/09/2018 ::: Downloaded on - 29/09/2018 23:51:36 ::: 40-J-SA-510-17 11/12 justified in holding that the plaintiff and his family members were in a dominating position and that the donor executed said document under their influence. The burden to prove that the execution of the gift-deed was bonafide has not been duly discharged. It is thus found that the conclusion arrived at by the appellate Court and recorded in paragraph 66 of its judgment is after considering the evidence on record and by applying the correct legal tests. I do not find any justifiable reason to hold that the gift- deed at Exhibit-25 was validly executed by the donor. Substantial question of law No.(I) is answered by holding that the appellate Court has taken into consideration all relevant factors while not accepting the gift-deed at Exhibit-
25.
11. Once it is found that the gift-deed was not validly executed the question of its revocation as per document at Exhibit-61 would not be of much relevance. However, it can be seen from the record that the donor in the document at Exhibit-61 has clearly stated that he was required to act as per the say of the plaintiff and his family members. He did not intend to execute the gift-deed. Notices were issued by the defendant to the plaintiff, his father and brother at Exhibits-69 to 72 and therefore it cannot be said that the plaintiff was not intimated about the intention of the donor to revoke the gift-deed. The reasons for revoking the gift-deed have been specifically mentioned in the said document at Exhibit-61 and when the ::: Uploaded on - 29/09/2018 ::: Downloaded on - 29/09/2018 23:51:36 ::: 40-J-SA-510-17 12/12 entire evidence on record is considered it is found that the gift-deed was revoked for valid reasons on 27/04/1983. The appellate Court was therefore justified in coming to the conclusion that the document at Exhibit- 61 was executed in accordance with law.
Though it was urged on behalf of the appellant that it was not permissible for the donor to have revoked the gift as it had become effective, that contention cannot be accepted in the light of aforesaid discussion. The decisions relied upon by the learned counsel for the appellants do not support the case of the appellants. Substantial question of law No.(II) is answered by holding that the deed of revocation at Exhibit-61 was executed in accordance with law.
12. In the light of aforesaid discussion and the answers given to the substantial questions of law it is found that there is no reason to interfere with the judgment of the appellate Court. Second Appeal No.510/2017 is thus dismissed with no order as to costs.
JUDGE Asmita ::: Uploaded on - 29/09/2018 ::: Downloaded on - 29/09/2018 23:51:36 :::