Andhra HC (Pre-Telangana)
J. Mohan Roy (Died) Per Lrs And Ors. vs N. Raj Kumari Padmini Devi on 4 June, 2002
Equivalent citations: 2002(4)ALD281, 2002(6)ALT518
JUDGMENT L. Narasimha Reddy, J.
1. This appeal is filed by the unsuccessful plaintiff in OS No.44 of 1988 on the file of the Subordinate Judge, Nellore. For the sake of convenience the parties are referred to as arrayed in the suit.
2. The plaintiff (who since died and whose LRs are brought on record) filed the suit for the relief of declaration that the settlement deed dated 28-7-1965 executed in favour of the defendant was not acted upon and that the plaint schedule property belongs to the plaintiff and sought for consequential injunction. It was pleaded that the defendant is the foster sister of the plaintiff and at the time of her marriage a deed of settlement was executed on 28-7-1965 gifting the suit schedule property admeasuring Ac 5.00. It is the case of the plaintiff that though the deed was executed, the possession of the property was not delivered and the plaintiff continued to exercise rights of ownership uninterruptedly and even otherwise his possession subsequent to 28-7-1965 can be treated as adverse to the defendant and thereby he is entitled for a declaration. The plaintiff also disputed the parentage of the defendant.
3. The defendant filed written statement denying the allegations of the plaintiff. It is her case that she is the daughter of late J. Edward and natural sister of the plaintiff, that at the time of her marriage, at the instance of her father, the plaintiff gifted the suit schedule property and the possession of the same was delivered on the date of execution itself. Ever since then she has been exercising the rights of ownership. It is her further case that when she noticed some encroachment, she got issued notices to the various authorities, her husband who is an employee has been showing the income out of this land in his declarations and the claim of the plaintiff is absolutely without any basis.
4. Taking into account the pleadings of the parties, the trial Court framed the following issues:
"1. Whether the plaintiff is entitled for declaration as prayed for?
2. Whether the plaintiff is entitled for permanent injunction as prayed for?
3. To what relief?"
5. The plaintiff examined himself as PW1 and no other witnesses were examined by him. He has filed documents, which were marked as Exs.Al to A40. The defendant examined herself as DW2 and her husband was examined as DW1. They filed documents Exs. B1 to B15.
6. On an appreciation of oral and documentary evidence, the trial Court dismissed the suit through its judgment dated 3-9-1992. Hence the appeal.
7. It is contended by the learned Counsel for the appellants Sri J.C. Francis that the plaintiff has pleaded and proved before the trial Court that though he had executed settlement deed, marked as Ex. A1, the defendant was not delivered possession and she was not even aware of this gift. It is his contention that the defendant was neither in possession of the property nor was there any acceptance of the gift as contemplated under the Transfer of Property Act (for brevity 'the Act'). According to him mere execution of gift deed does not convey the title to the donee unless there was acceptance of the same by the latter.
8. The learned Counsel for the respondent Sri M.V. Durga Prasad, on the other hand, submits that the defendant was delivered the possession of the suit property on the day on which the deed was executed. It is also his submission that the very fact that the original gift deed was delivered to the defendant and she continued to hold the same should be treated as the acceptance of the gift by the defendant and apart from possession of the gift deed, the defendant also exercised the rights of ownership over the suit schedule property. He further contends that unless the deed in possession of the defendant is sought to be annulled on any grounds known to law, the relief claimed by the plaintiff cannot be granted.
9. Before undertaking the discussion, one aspect needs to be clarified. The plaintiff does not dispute the execution of the document dated 28-7-1965, which is marked as Ex.Al, the original of which is Ex.B5. In the plaint he described the same as a settlement deed. An effort seems to have been made to treat the said document as a transaction otherwise than gift. The fact, however, remains that the nomenclature, recital as well as the deposition of the parties make it clear, beyond any doubt, that the document in question is a gift deed. The learned Counsel for the appellant also does not seriously dispute the same. Therefore, the document Ex.Al shall be treated as a gift deed.
10. Before the trial Court the plaintiff seriously disputed the parentage of the defendant, While it was his case that the defendant was not the naturally born child of his parents, the defendant asserted that she is in fact natural child of the said parents. Extensive oral and documentary evidence was adduced by both Counsel touching on this aspect. However, inasmuch as the grant or denial of the relief to the plaintiff does not depend on the rights of succession of the defendant and since there is no restriction in law as to conveyance of property by way of gift to blood relations alone, this aspect is not taken into account in deciding this appeal.
11. Having regard to the rival contentions of the parties, the questions that arise for consideration in this appeal are:
(1) Whether there was valid conveyance of the suit schedule property under Ex.Al/Ex.B5 in favour of the defendant ? and (2) Whether the plaintiff has acquired any right to the suit schedule property subsequent to the execution of Ex.Al/ Ex.B5?
12. The plaintiff admits the factum of his having executed Ex.Al on the occasion of the marriage of the defendant. Though the plaintiff disputed the parentage of the defendant, he admitted that her marriage was performed by the plaintiff and his father. The plaintiff does not dispute the recitals of Ex.A1. In Ex.Al it is categorically recited that the property is being given by way of gift and the possession of the same is delivered simultaneously. The plaintiff did not plead that his consent or violation in executing Ex.Al was procured by resorting to acts of fraud, undue influence or misrepresentation. In fact, he did not seek for the relief of cancellation of the document. Therefore, Ex.Al has to be taken on its face value. The only area of controversy is that though the document was executed, the possession of the property was not delivered and that there was no acceptance of the gift by the defendant. Therefore, it has to be seen as to whether there was valid acceptance of the gift by the defendant. It is only on establishing that there did not exist acceptance of the gift as required under Section 122 of the Act, that the plaintiff can succeed and otherwise not.
13. Out of the modes of transfer dealt with under the Transfer of Property Act (sale, mortgage, lease, exchange and gift), gift is the only transfer which is not required to be supported by any consideration. It is for this reason that Section 122 of the Act insists that for a valid gift to take place, the same is required to be accepted by the donee. Section 122 of the Act reads as under:
"Gift' is the transfer of certain existing movable or immovable 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 lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void."
14. While all other forms of transfer require the participation of the transferor as well as the transferee, gift is a transaction almost unilateral in nature. A valid gift deed can be executed even without the knowledge, not to speak of participation, of the donee.
15. So far as the form of acceptance of gift is concerned, it is well recognised in law that it can be express or by implication. Where the acceptance is by express through acts and deeds, it does not present any difficulty. In the realm of implications, it varies from transaction to transaction. While inference as to acceptance of an onerous gift, is somewhat guarded, in case of unconditional gifts the inference is rather liberal. Some of the known circumstances enabling the Court to draw an inference as to acceptance of gift are possession of the document by the donee, delivery of possession of the property to the donee and the like. Where the gift is by a parent in favour of a minor, it has been held that acceptance can be inferred (see Ponnuchami Servai v. Balasubramanian, ).
16. In Halsbury Laws of England as regards the nature of acceptance it is observed as under:
"Express acceptance by the donee is not necessary to complete a gift. It has long been settled that the acceptance of a gift by the donee is to be presumed until his dissent is signified, even though he is not aware of the gift, and this is equally so although the gift be of an onerous nature or what is called an onerous trust."
17. As regards the time of acceptance, it needs to be observed that Section 122 of the Act gives such an enormous latitude to the donee that he can accept a gift at any point of time during life time of donor. In a given case, the donee can convey the acceptance even after the suit of the nature one in hand is filed, as long as the gift deed is not set aside by a Court of competent jurisdiction. The only requirement in law is that by the time the acceptance is conveyed, the donor should be alive, irrespective of the lapse of time between the date of execution of the deed and date of acceptance of the gift by the donee.
18. If the case on hand is examined with reference to these parameters, it emerges that:
(a) the possession of property is delivered to the defendant on the date of execution of the deed;
(b) the original gift deed was delivered to the defendant and it is she who filed it in the Court as Ex.B5;
(c) donor of the property was no other than the brother or atleast the foster brother of the donee who performed her marriage;
(d) the various letters addressed by the defendant to the plaintiff as well as to the Government Officials establish the fact that she has been treating the suit schedule property as her own on the strength of Ex.Al/Ex. BS.
19. Any one of these facts is sufficient to enable the Court to draw an inference that the defendant accepted the gift. If one has any doubt as to the strength of each of the similar facts, there is no impediment in taking the cumulative effect of all factors in to account. Even if these factors leave any doubt, the specific plea in the written statement as well as the oral and documentary evidence put an end to the same. It was permissible for the defendant to convey her acceptance at any point of time as long as the plaintiff was alive. It cannot be said that there still existed any doubt that the defendant had accepted the gift. Therefore, it is held that there was conveyance of the suit schedule property in favour of the defendant under Ex. Al/Ex.B5.
20. The second question becomes significant inasmuch as the plaintiff claimed the relief without seeking cancellation of Ex.Al. Once it is held that the suit schedule property stood transferred to the defendant under Ex. Al the only way the plaintiff could have sought for any relief against the defendant was by pleading that inspite of the operation of the gift deed, possession was resumed by him and acquired ownership rights. The plaintiff made an attempt to press the plea of adverse possession into service.
21. This, however, could have been possible for him, if only he has pleaded and established that he recognised the title of the defendant over the suit schedule property, entered into possession of the same subsequent to the defendant acquired the title in the same, enjoyed the property with the knowledge and to the detriment of the defendant over a period prescribed by law. It is a debatable question as to whether a donor can be permitted to take the plea of adverse possession against donee. Even if it has to be presumed for the sake of argument that such plea is available, it has to be specifically pleaded and established to the satisfaction of the Court. Mere possession does not serve the purpose. Having regard to the requirements under Article 65 of the Limitation Act, the plaintiff has not only to prove the factum of the possession spread over a period exceeding 12 years, but also that such possession was adverse to the defendant. The burden is squarely on the plaintiff.
22. In the present case, except taking a very meak plea in the plaint, the plaintiff did not do anything more. Obviously having realised the weakness of the plea, he gave up the same before the trial Court and the same was recorded. The plaintiff did not plead any other basis or ground of having acquired right, title or interest over the suit schedule property. Therefore, the second question also deserves to be answered against the appellant. No other question aspect remains to be considered.
23. The appeal is accordingly dismissed. However, having regard to the relationship of the parties, there shall be no order as to costs.