Gauhati High Court
Uttam Dadhara And Ors vs Sunsbala Dadhara on 12 May, 2015
Author: Suman Shyam
Bench: Suman Shyam
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
RSA No. 186/2003
Uttam Dadhara and Ors. ......Appellant
VERSUS
Sunsbala Dadhara ......Respondent
BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM For the Appellant : Mr. P.P. Baruah, Advocate For the Respondent : Mr. S. Biswas, Advocate Date of hearing and judgment : 12-05-2015 Judgment and Order (Oral) This second appeal has been preferred by the defendant appellants challenging the judgment and decree dated 19-05-2003 passed by the learned Addl. District Judge (Ad-hoc), FTC, Biswanath Chariali, Sonitpur in Title Appeal No. 20/2002 allowing the appeal filed by the respondent/ plaintiff thereby reversing the judgment and decree dated 03-12-1997 passed by the learned Civil Judge (Jr. Div.), Biswanath Chariali in Title Suit No. 50/1998.
2. The brief fact of the plaintiffs case, as emerging from the records, is that she is the wife of late Ratneswar Dadhara. Ratneswar Dadhara had two wives viz. Smti. Sorumaina Dadhara @ Kansoali i.e. the first wife and the plaintiff herself who was the second wife. Ratneswar Dadhara died sometime in the year 1986. In order to avoid any dispute between the two wives, Ratneswar Dadhara, RSA No. 186/2003 Page 1 of 13 during his life time had called up panchayat on 25-06-1976 and in presence of panchayat made his intention clear that he intends to donate certain portion of his land to each of his wives. Accordingly, Ratneswar Dadhara had written a panchayatnama dated 25-06-1976 putting on record his intention to donate some part of his land to both his wives while retaining a portion of the property himself for his own benefit. Subsequently, Ratneswar Dadhara had executed two registered deeds of gift bearing No. 1690 and 1691 on 13-08-1976 in favour of the plaintiff and Sorumaina Dadhara respectively by donating their respective shares of land mentioned in the registered deeds of gift. In this manner the plaintiff became owner in possession in respect of a plot of land measuring 19B- 6L whereas the first wife had been donated a plot of land measuring 21B-1K-7L. It is the case of the plaintiff that although she had accepted the gift as aforesaid and continued to reside with her husband in the gifted property, yet she did not ask for a mutation in respect of the said plot of land as she was feeling shy to do so during the life time of her husband. However, after the death of her husband, the plaintiff had applied for mutation of the gifted land in her name by filing mutation case No. 195/87-88. In connection with the said mutation case the defendant No. 1 and 2 had appeared and filed objection taking a plea that the deed of gift No. 1690/76 executed on 13-08-1976 had been revoked by the donor by executing a registered deed No. 9/80 on 20-03-1980 thereby cancelling the deed No. 1690 executed in favour of the plaintiff. On account of such objection the learned SDC had directed the parties to get their entitlements adjudicated by the civil court.
3. The plaintiff's case is that she had came to know about the execution of the purported deed of revocation only 28-09-1988 when the defendants had filed RSA No. 186/2003 Page 2 of 13 their objection claiming that Ratneswar Dadhara had revoked the gift. The plaintiff had averred in the plaint that Ratneswar Dadhara was all along living with the plaintiff until his death. In the year 1980 the condition of her husband was such that he was not in a position to go to Sootea for the purpose of execution of the deed of revocation of gift due to his poor health condition. It is further contended that even if it is assume that such a deed of cancellation/ revocation was actually executed by her husband yet the same would be void, inoperative in the eye of law and hence, liable to be declared null and void. The plaintiff, therefore, approached the civil court by seeking a declaration of her right, title and interest over the gifted land; for a decree declaring the deed of revocation of gift to be null and void and for cancellation of the same; for a decree of permanent injunction and for other consequential reliefs.
4. The defendants contested the suit filed by the plaintiff by submitting their written statement, inter-alia, questioning the maintainability of the suit on the ground of want of cause of action and also on the ground that a suit was barred by limitation as well as under the principles of waiver, estoppels and acquiescence. Beside taking other formal pleas pertaining to the maintainability of the suit the defendants have also averred that the gift deed executed on 13- 08-1976 was not a valid one as the same was not done voluntarily and under free will of Ratneswar Dadhara on account of fact that at that time his mental faculties were not in normal state and he did not have physical capacity to move from one place to other for the purpose of executing the deed of gift. It has been pleaded that the deed of gift No. 1690/76 was executed under coercion and duress and the same was against the free will and intention of the donor. Moreover, the defendants contended, there was no delivery of possession of the RSA No. 186/2003 Page 3 of 13 gifted property in favour of the plaintiff. Therefore, the gift deed was never implemented nor did it confer any title upon the plaintiff. By way of an alternative argument the defendant had also claimed that since the possession of the gifted property has been with the defendant from long time, hence, such possession had become adverse to the title of the plaintiff. As such, the defendants have claimed to have perfected title over the gifted property by way of adverse possession. Therefore, the defendants have prayed for dismissal of the suit with compensatory cost.
5. On the basis of the pleadings of the parties the learned Trial Court had framed as many as nine issues which are as follows:
1. Whether there is any cause of action for the suit?
2. Whether suit is barred by limitation?
3. Whether any partition took place between the and mother of the defendants in respect of paternal property?
4. Whether gift Deed No. 1690 dated 13-8-76 was executed by plaintiff's husband in free will and sense and whether possession of the suit land was delivered to the plaintiff by the donor after execution of the alleged gift Deed?
5. Whether alleged gift Deed was cancelled by the donor vide Cancellation Deed No. 9 of 1980?
6. Whether Cancellation Deed No. 9 of 1980 is liable to be cancelled?
7. Whether defendants are in adverse possession of the suit land?
8. Whether Plaintiff is entitled to a decree as prayed for?
9. Whether the parties are entitled to any other relief?
6. On perusal of the materials on record and after hearing the learned counsel for the parties the Trial Court had passed judgment and decree dated 03-12-1997 dismissing the suit filed by the plaintiff. While dealing with the issue No. 2 pertaining to the question of limitation the learned Trial Court was of the opinion that since it has been mentioned in the deed of revocation of the gift that the same had been executed with the consent of both the wives, hence, the plaintiff had the knowledge of the said deed in the year 1980 itself. The plaintiff's RSA No. 186/2003 Page 4 of 13 suit being one for declaration of the deed of revocation dated 20-03-1980 as null and void and the suit having been instituted in the year 1989, the Trial Court held that same was barred under Article 56 and 58 of the Limitation Act.
7. As regards issue No. 4 the learned Trial Court had held that the deed of gift (Exhibit-2) had been executed by Ratneswar Dadhara as per dictate of the panchayat and not according to his free will. On such finding the learned Trial Court came to the conclusion that the gift deed No. 1690 was not executed under free will nor had the donor given delivery of possession of the suit land to the plaintiff. As such, the issue No. 4 was decided in negative against the plaintiff.
8. As regards issue Nos. 5 and 6 the learned Trial Court has held that since in the recital of the deed of cancellation (Exhibit-4) it has been mentioned that the same has been done with the consent of both the wives, hence, revocation of the deed was valid in the eye of law and as such both the issue No. 5 and 6 were decided against the plaintiff. Consequently, the suit filed by the plaintiff was dismissed by the learned Trial Court.
9. Being highly aggrieved and dissatisfied with the judgment and decree dated 03-12-1997 passed by the learned Civil Judge (Jr. Div.), Biswanath Chariali dismissing the suit, the plaintiff as appellant had preferred Title Appeal No. 20/2002 (new)/ Title Appeal No. 01/1998 (old) in the court of learned Addl. District Judge (Ad-hoc), FTC, Biswanath Chariali, Sonitpur on the grounds mentioned in the memo of appeal. By the judgment and decree dated 19-05- 2003 the learned First Appellate Court was pleased to allow the appeal filed by the plaintiff by reversing the finding recorded by the learned Trial Court in RSA No. 186/2003 Page 5 of 13 respect of issue No, 2, 4, 5 and 6 thereby holding that the plaintiff was entitled to the decree as prayed for.
10. The learned First Appellate Court while dealing with the issue No. 2 pertaining to the question of limitation was of the view that the plaintiff's pleaded stand is that she had come to know about the purported deed of revocation dated 20-03-1980 only after the receipt of the written objection filed by the defendants on 28-09-1988. The suit having been filed in the year 1989, the plaintiff's suit was not barred by law of limitation reckoned from 28-09-1988 being the date on which the plaintiff had acquired knowledge for the first time in respect of the deed of revocation. The learned First Appellate Court had also observed that there is nothing on record to presume that the plaintiff had knowledge about the deed of revocation at any date prior to 28-09-1988. Further, the mere mention of the fact in the recital of the deed of revocation that the same was being revoked with the consent of the wives without there being any materials to support the said position, was not enough to conclude that the plaintiff had knowledge about the deed of revocation from a prior date.
11. As regards issue No. 4, the learned First Appellate Court after threadbare discussion of the materials on record had come to the conclusion that the registered deed of gift bearing No. 1990 dated 13-08-1976 was executed by the plaintiff's husband out of his free will and consent. The learned First Appellate Court had held that the panchayatnama was executed on 25-06-1976 and thereafter the gift deed was executed on 13-08-1976. Therfore, Ratneswar Dadhara had nearly two months time to reflect upon the decision taken while executing the panchayatnama during the open deliberation and in presence of 7 RSA No. 186/2003 Page 6 of 13 witnesses. Since Ratneswar Dadhara did not feel the necessity to retract from his decision taken on 25-06-1976 at the time of execution of panchayatnama and on the contrary went ahead with the deed of gift, there was no basis to presume that the gift deed had been executed under duress and coercion as has been alleged by the defendants.
12. As regards issue No. 5 and 6 the First Appellate Court has held that the provision of revocation of a registered deed of gift is laid down in Section 126 of Transfer of Properties Act. In the instant case, the First Appellate Court was of the view that the defendants have failed to establish the existence of any ground meeting the requirements of the Section 126 of the Transfer of Properties Act. The recital in the deed of revocation mentions "difference of opinion amongst the sons of Ratneswar Dadhara" which was the reason that has been cited for revocation of the deed. The only other thing that has been mentioned in the deed of revocation is that the same has been executed with the consent of both the wives. The First Appellate Court was of the view that there is nothing on record to show that the said deed of revocation had been executed with the consent of the plaintiff.
13. Coming to the objection raised by the defendants to the effect that there was no delivery of possession of the gifted land and hence the gift itself was not acted upon, the First Appellate Court while discussing the judgment and decision of various High Courts had arrived at the opinion that delivery of possession is not necessary for the purpose of acceptance of a gift made under Section 123 of the Transfer of Properties Act. The fact of acceptance of gift can be inferred from the facts and circumstances of each case. The fact that the registered deed of RSA No. 186/2003 Page 7 of 13 gift has been produced from the custody of the donee is sufficient proof of the fact that the same had been accepted by the donee. On the basis of such finding, the learned First Appellate Court reversed the decision and conclusion recorded by the Trial Court in issue No. 5 and 6 and thereafter decreed the suit of the plaintiff.
14. Being highly aggrieved and dissatisfied with the judgment and decree of reversal dated 19-05-2003 the defendants as appellants had approached this Court by filing the instant second appeal which was admitted to be heard on the following substantial questions of law:
1. Whether the plaintiff rights title and interest can be decreed on the basis of a gift deed, without there being any formal proof of execution i.e. without examining the attesting witnesses as required under Section 123 of the Transfer of Properties Act.
2. Whether a Gift deed can be cancelled by his donor in view of the Section 126 of the Transfer of Properties Act by registered deed of cancellation when the consent of the done was duly recorded in his registered cancellation deed, contents of which has to be accepted, without there being any rebuttal evidence.
3. Whether suit can be filed expiry of three years for cancellation of a registered deed in view of Article 59 of the Limitation Act, 1963.
15. I have Mr. P.P. Baruah, learned counsel for the appellant. Also heard Mr. S. Biswas, learned counsel appearing for the respondents. Mr. Baruah, learned counsel for the appellant submits that the view taken by the learned Trial Court to the effect that the decision to gift the land was taken under the instructions of the panchayat is a valid view and finds support in the own admission of the plaintiff. Such being the position, it is obvious that subsequent deed of gift was not executed under free will and consent of the donor. As such, same cannot be accorded any validity in the eye or law. Mr. Baruah further submits that once it is found that gift deed was not executed under free will and consent of the donor, RSA No. 186/2003 Page 8 of 13 the execution of the deed of revocation would be permissible within the scope and ambit of Section 126 of the Transfer of Properties Act. He further submits that since the cancellation has been done on the basis of a registered deed of revocation, presumption of validity is required to be drawn by this Court in favour of the said deed of revocation (Exhibit-4). To that extent the decree of reversal passed by the First Appellate Court is not sustainable in the eye of law and as such liable to be interfered with by the court.
16. Per-contra, Mr. S. Biswas, learned counsel appearing for the respondent/ plaintiff argued that there is nothing on record to prove and establish the contention of the appellant that registered deed of gift was not executed under free will and consent of the donor. That apart, there was nothing to show the ground on which the same was purportedly revoked save and except "difference of opinion amongst the sons of the donor". Mr. Biswas submits that difference of opinion amongst the sons of the donor would not offer a valid ground within the meaning of Section 126 of the Transfer of Properties Act so as to permit the donor to revoke a registered deed of gift. On the basis of such argument, Mr. Biswas, submits that there is no illegality or infirmity on the judgment and decree passed by the lower Appellate Court. As such, the second appeal deserves to be dismissed.
17. I have considered the rival submission made by and on behalf of both the parties. It appears from the materials available on record that on 25-06-1976 the donor Ratneswar Dadhara had called for a panchayat (meeting) and in front of the panchayat he had made a declaration that he would be giving certain parts of his property to both the wives including the plaintiff. The panchayatnama (Exehibit-1) is not in dispute. Subsequently by executing two registered deeds of RSA No. 186/2003 Page 9 of 13 gift dated 13-08-1976 the husband of the plaintiff had gifted the property mentioned therein in favour of the plaintiff and his first wife. The fact that the execution of the registered deeds of gift both dated 13-08-1976, was preceded by panchayatnama dated 25-06-1976 rather reinforces the intent of the donor to make the gift which was ultimately carried out by the gift deed instead of raising doubt on his true intention. Therefore, the finding of the learned Trial Court to the effect that the gift deed was not executed by the donor out of his free will and consent is definitely not based on materials on record and was complete perverse finding which has been rightly reversed by the learned First Appellate Court.
18. Coming to the question of revocation of deed of gift, Section 126 of the Transfer of Properties Act which lays down the conditions under which deed of gift can be revoked or suspended. The Section 126 of the Transfer of Properties Act is quoted herein below for ready reference:
"When gift may be suspended or revoked.- The donor and done 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 right of transferees for consideration without notice."
19. From a perusal of the materials on record what is apparent is that the only ground for revocation, as has been cited by the donor, is the difference of opinion amongst his sons. The difference of opinion amongst the sons, even if presumed to be correct, cannot be a ground within the meaning of Section 126 of the Transfer of Properties Act for revocation of a gift. RSA No. 186/2003 Page 10 of 13
20. It is settled law that in case of a gift deed once executed by making a gift of immovable property which is accepted by donee during the life time of the donor, the title of the gifted property passes on to the donee. As such, the donor loses all control or title over the gifted property. Under such circumstances even if the donee consents to the proposal of revocation, same cannot be revoked by the donor due to the bar contemplated under Section 126 of the Transfer of Properties Act.
21. In the instant case plaintiff categorically denied the execution of the deed of revocation of the gift. There is no material that could be produced by the defendants to show that deed of revocation of the gift was actually made by obtaining consent of the plaintiff. On the contrary material available on record strongly indicates that the plaintiff was not even aware of the purported execution of such deed of revocation until the time the same was brought to her notice through the objection filed by the defendant in the mutation case. In that view of the matter it is not possible to hold that cancellation/ revocation of deed (Exhibit-4) has any validity in the eye of law so as to extinguish the title of the plaintiff over the immovable property gifted to her by her husband Ratneswar Dadhara.
22. As to the question of acceptance of the gift by means of delivery of possession, it has been categorically held by the Hon'ble Apex Court in the case of R enikuntala R ajam m a Vs K. Sarw anam m a, reported in (2014) 9 SCC 445 that a conjoint reading of Sections 122 and 123 of the Act makes it abundantly clear that "transfer of possession" of the property in cases covered by the registered instrument of the gift duly signed by the donor and attested by at least two witnesses, delivery of possession is not a sine-qua non for the making RSA No. 186/2003 Page 11 of 13 of a valid gift under the provisions of the Transfer of Properties Act, 1882". In paragraph 16 of the said judgment the Hon'ble Apex Court has observed as follows:
16. The matter can be viewed from yet another angle. Section 123 of the TP Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property.
Insofar as the gifts of immovable property are concerned, Section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word "transfer must be effected" used by Parliament insofar as immovable property is concerned. In contradiction to that requirement the second part of Section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or "by delivery". The difference in the two provisions lies in the fact that insofar as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to made delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property.
23. From the above discussion it is clear that transfer of possession is not mandatory for the purpose of making a valid gift under Section 122 and 123 of the Transfer of Properties Act. In the instant case registered deed of gift was lying in the custody of the plaintiff and the same was produced in the court from her control and custody. That apart, the donee had been all along residing in the gifted property with her husband for many years after the registered deed had been executed with the full knowledge and consent of the donor. The existence of the aforesaid two facts are sufficient to prove that the plaintiff had accepted the gift made to her by registered deed of gift bearing No. 1690/76. In such view of the matter there is no ground for this Court to interfere with the decision and RSA No. 186/2003 Page 12 of 13 conclusion recorded by the First Appellate Court in respect of issue No. 5 and 6 holding the same in favour of the plaintiff. In view of what has been discussed hereinbefore this Court is of the opinion that the judgment and decree passed by the First Appellate Court decreeing the plaintiff's suit does not suffer from any infirmity or illegality warranting interference by this Court. As such, the second appeal is devoid of any merit and hence, stands dismissed. The questions of law framed by this Court shall stand answered accordingly in favour of the respondent/ plaintiff and against the appellant/ defendant. However, having regard to the facts and circumstances of the case there would be no order as to cost.
Registry to send back the LCR.
Interim order passed earlier shall stands vacated.
JUDGE GS RSA No. 186/2003 Page 13 of 13