Andhra Pradesh High Court - Amravati
Ande Sambasiva Rao vs Gunti Rama Subba Rao on 21 June, 2019
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
SECOND APPEAL No.205 of 2019
JUDGMENT:
This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, by the unsuccessful 2nd defendant, is directed against the decree and judgment, dated 01.03.2019, of the learned XI Additional District Judge, Tenali, passed in A.S.No.54 of 2015 whereby the said learned Additional District Judge confirmed the decree & judgment, dated 17.07.2015, of the learned Principal Senior Civil Judge, Tenali, passed in OS.No.349 of 2011 filed by the sole plaintiff - 1st respondent herein.
2. I have heard the submissions of Sri Nuthalapati Krishna Murthy, learned counsel appearing for the appellant - 2nd defendant ['2nd defendant', for brevity], and of Sri N. Sri Ram Murthy, learned counsel appearing for the 1st respondent - plaintiff ['plaintiff', for brevity]. The 2nd respondent - 2nd defendant died. I have perused the material record.
3. In this Second Appeal coming up for admission, the parties shall hereinafter be referred to as arraigned in the suit for convenience and clarity.
4. Since this Second Appeal deserves admission only when the 2nd defendant establishes that substantial questions of law are involved, the submissions of the learned counsel for the 2nd defendant and of the learned counsel for the plaintiff are heard on the limited aspect as to whether the questions raised in the grounds as substantial questions of law or any other 2 MSRM, J S.A.No.205 of 2019 substantial questions of law are involved and if so, whether the second appeal deserves admission.
5. In the grounds, the following questions are raised as substantial questions of law:
(a) Whether the Courts below had not failed to see the Ex.A.1 the so called gift deed was only a will but not a gift deed in view of the recitals therein.
(b) Non joinder of necessary parties whether the courts below had not failed to see that the whole trial of the case was vitiated by non impleading of legal heirs of 1st defendant after her death during the trial of the suit.
(c) And whether the Courts below had not given perverse finding in accepting the Ex.A1 even though the attester and the scribe were not examined and that only PW2 the father of the plaintiff a highly interested witness only.
[Reproduced verbatim]
6. Learned counsel for the appellant - 2nd defendant contended that exhibit A1, the so called gift settlement deed, is in fact a Will in view of the recitals therein and that only PW2, the father of the plaintiff, who is one of the attestors and who is interested in the plaintiff, is only examined and that the other attestor and the scribe are not examined and that therefore, exhibit A1 is not proved and that the suit is bad for non joinder of necessary parties and that the whole trial is vitiated for not impleading the legal representatives of the deceased 1st defendant and that the findings of the Courts below are perverse and that therefore, the above substantial questions are involved.
3 MSRM, J S.A.No.205 of 2019
7. Per contra, learned counsel for the plaintiff contended that both the Courts below dealt with the issues/points involved, in detail, and recorded concurrent findings of fact on all issues/points after dealing with the pleadings and oral & documentary evidence in correct perspective and that no substantial questions of law are involved and that none of the questions raised are substantial questions of law and that for the first time, a contention that exhibit A1 is a Will and not a gift settlement deed, is being raised in this second appeal, and that even the said question is also a pure question of fact and that the second defendant cannot be permitted to raise such a new contention for the first time before this Court and take the plaintiff by surprise and that the second appeal is liable for dismissal, at the stage of admission.
8. The pleadings and the core facts are as follows: -
8.1 The sole plaintiff filed the suit against defendants 1 & 2 for declaration that he is the absolute owner of the plaint schedule property, for consequential relief of recovery of possession of the same and for costs, inter alia, contending as follows : 'The 1st defendant is the absolute owner of the plaint schedule property. The husband of the 1st defendant is the brother of Gunti Subba Rao, the grandfather of the plaintiff. The 1st defendant had no issues. Out of love and affection towards the plaintiff, she intended to convey one of her properties to the plaintiff, to be enjoyed by the plaintiff after her demise. Therefore, she executed registered gift settlement deed, dated 27.01.2005, in favour of the plaintiff in respect of 4 MSRM, J S.A.No.205 of 2019 plaint schedule wet land in an extent of Ac.1.00 cents and delivered the said document to the plaintiff. The gift was accepted and acted upon. The 1st defendant has no right to revoke the gift. However, the plaintiff came to know that the 1st defendant fraudulently and without any manner of right and without the knowledge of the plaintiff, executed a document cancelling the above said registered gift settlement deed executed in his favour by her and that she registered the said cancellation deed on 04.03.2010. The said cancellation deed is void under law. The 1st defendant fraudulently and without any right or title in the property executed a registered sale deed, dated 14.07.2010, in favour of the 2nd defendant though the 1st defendant has no right to revoke the gift settlement deed and convey any rights, much less, absolute rights in the property under the said sale deed to the 2nd defendant. The 1st defendant died, on 14.01.2013, at Vetapalem, Prakasam District. As per the recitals in the gift settlement deed, dated 27.01.2005, the plaintiff became entitled to take possession of the plaint schedule property immediately on the death of the 1st defendant. Hence, the suit is filed for declaration and recovery of possession.' 8.2 The 1st defendant filed a written statement denying the plaintiff's case and claiming herself to be the absolute owner of the plaint schedule property and inter alia contending that she is a senior citizen and that she is depending upon her nearest relatives and that after the death of her husband, on 13.01.2004, the plaintiff, in order to grab the plaint 5 MSRM, J S.A.No.205 of 2019 schedule property, came to her house and obtained her signatures on blank papers on the pretext of securing pension and that she signed on empty papers believing the plaintiff and that the plaintiff and his men created the gift settlement deed without her knowledge & consent and that the said deed is invalid and that the suit is filed suppressing the real facts.
8.3 Be it noted that after 1st defendant died, the plaint was amended showing that the 1st defendant died; but, no LRs of her are brought on record on the ground that she had no issues.
8.4 The 2nd defendant filed a written statement inter alia contending that the plaintiff without being in possession of the property cannot file a suit on the basis of a gift and that the gift settlement deed was revoked and that the 2nd defendant is a bona fide purchaser and that he is in peaceful possession and enjoyment of the plaint schedule property and that the 1st defendant and her husband had no issues and that the relatives of the husband of the 1st defendant and other relatives including the plaintiff had an evil eye over the property of the 1st defendant and her husband and that the plaintiff neglected to take care of the 1st defendant and that she was under the care of some others and that some others performed her obsequies and the said facts are recited in the revocation deed.
9. During the course of trial, the plaintiff and his father, who is one of the attestors of the gift settlement deed, dated 27.01.2005 (exhibit A1), 6 MSRM, J S.A.No.205 of 2019 executed by the 1st defendant in favour of the plaintiff, were examined as PWs1 & 2. The 2nd defendant and his supporting witnesses were examined as DWs 1 to 4. The registration extracts of deed of cancellation, dated 04.03.2010, and of the sale deed executed by 1st defendant in favour of the 2nd defendant are marked as exhibits A2 & A3. The original of exhibit A3, that is, the sale deed of the 2nd defendant, pattadar pass book, two tax receipts and adangal are marked as exhibits B1 to B5. Thus, exhibit A3 is a registration extract of exhibit B1 sale deed.
10. The trial Court, having framed the following issues : 'Whether the plaintiff is absolute owner of the plaint A schedule property? Whether the plaintiff is entitled for the consequential relief of recovery of possession as prayed for? Whether the suit is not maintainable without seeking cancellation of the alleged registered sale deed in favour of D2 said to have been executed by D1? And to what relief?' answered all the issues in favour of the plaintiff, after marshalling the facts correctly and examining the evidence in proper perspective and on applying the applicable law.
11. In the appeal filed by the unsuccessful 2nd defendant, the first appellate Court dealt with the contentions of the 2nd defendant, in further detail.
11.1 The first contention advanced is that since possession over the property was not delivered to the plaintiff as on the date of exhibit A1, exhibit A1 is not valid. While answering this contention, learned 7 MSRM, J S.A.No.205 of 2019 Additional District Judge referred to the contents of exhibit A1, which is admitted in the pleadings as a gift settlement deed, and also the legal position to the effect that delivery of possession of property is not an essential condition for a valid gift and that a gift of vested reminder can be validly made keeping life interest to the donor (See: Pagadala Bharati and another v. J. Radha Krishna [2013(2) ALD 373]; Asokan v.
Lakshmikutty and others (2007) 13 SCC 210]; and, Renikuntla Rajamma (D) by LRs v. K. Sarwanamma [AIR 2014 Supreme Court 2906]). The first appellate Court also held that the contention of the 1st defendant that her signatures were obtained on blank papers in the circumstances stated by her and that the plaintiff created exhibit A1 is also not established and that the evidence sufficiently established that the 1st defendant voluntarily executed exhibit A1.
11.2 Dealing with the contention that exhibit A1 is cancelled by executing a cancellation deed under the original of exhibit A2, the Court below having referred to the legal position including the decisions of the Supreme Court (Thota Ganga Laxmi v. Government of Andhra Pradesh [2012 (1) ALD 90 (SC)] and Renikuntla Rajamma (D) by LRs v. K. Sarwanamma [AIR 2014 Supreme Court 2906]) held that unilateral cancellation of exhibit A1 is not valid and, therefore, the document executed cancelling exhibit A1 is a void document and that when once the cancellation deed executed by the 1st defendant is declared as void, the 2nd defendant does not get any right and title over the property in pursuance 8 MSRM, J S.A.No.205 of 2019 of the sale deed as the sale deed executed by the 1st defendant, is not valid. The first appellate Court also held that since the 2nd defendant took delivery of possession of the property in pursuance of a void sale deed, the plaintiff can seek the relief of delivery of possession of the plaint schedule property from the 2nd defendant after the death of the 1st defendant and, therefore, the suit is maintainable. The Court below also held that one of the attestors of exhibit A1 - PW2 was examined and though he is the father of the plaintiff, the suggestions given to him to the effect that plaintiff did not get any absolute rights over the suit schedule property as on the date of the suit and that there was no gift of the property was denied by him and that no specific suggestions are given to PWs1 & 2 in line with the alleged defence that plaintiff obtained the signatures of 1st defendant on blank papers in the circumstances stated by her. Thus, both the Courts below concurrently held that the plaintiff proved execution and the truth & validity of exhibit A1 by examining himself as PW1 and PW2, the attestor.
11.3 Dealing with the contention that the LRs of the 1st defendant are not brought on record, though she died during the pendency of the suit, the first appellate Court held that since 1st defendant left behind no issues and as the plaintiff is entitled to the property on the death of the 1st defendant as per the recitals in exhibit A1, there is no necessity to implead any LRs of the deceased 1st defendant. During the course of hearing before this Court, when this Court posed a question as to who are the LRs 9 MSRM, J S.A.No.205 of 2019 of the deceased 1st defendant, who are not impleaded, it is simply stated that her relatives are her LRs without even mentioning their names and relationship. Moreover, none of her relatives, if any, did not come forward and dispute the claim of the plaintiff and, therefore, it is not for the 2nd defendant to espouse the cause of any such persons, who are not before this Court.
12. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by the Courts below on all the issues/points in favour of the plaintiff and against the 2nd defendant do not brook interference and that the Courts below are justified in decreeing the suit of the plaintiff. The findings of facts recorded by the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of the Code of Civil Procedure. The questions raised strictly speaking are not even pure questions of law let alone substantial questions of law.
13. Though a contention was raised for the first time before this Court that exhibit A1 is a Will and not a gift deed, it is pertinent to note that this question is also a mixed question of fact & law as the basis for the contention depends upon the recitals, the transaction embodied in the document and the circumstances. However, this Court deems it 10 MSRM, J S.A.No.205 of 2019 appropriate to deal with the said contention also to give a quietus. As already noted, the Court below religiously extracted the contents of exhibit A1. I have also gone through the document. The recitals in the said document reflect that -
(i) The recipient/plaintiff is the grandson of the brother of the husband of the executant.
(ii) With the desire to give one of her properties, (described in the schedule annexed to the document) to the recipient after the life time of the executant, the executant had conferred absolute right, title and interest over the same on the same day on the recipient while retaining possession of the property to enjoy the usufruct for her life by paying taxes, however, without any rights of alienation whatsoever.
(iii) The recipient shall take possession of the property after the death of the executant and enjoy the said property with trees, water resources and treasure troves along with all the rights and with absolute powers of disposition by way of gift, mortgage and sale etcetera.
(iv) Nobody shall raise an objection or dispute for such enjoyment of the property by the recipient.
(v) The executant executed exhibit A1 having assured and having made the recipient to believe that the schedule mentioned property is not in any manner alienated or encumbered and that she is alone having absolute right, title and interest and that there are no other persons having any rights over the property.
11 MSRM, J S.A.No.205 of 2019
(vi) Consideration is love and affection, the executant had for the recipient.
(vii) The property is not assigned by the Government and it is not in the Government's list of assigned properties.
(viii) The deed is a settlement deed (dakhalu dasthaveju) executed with the consent of the executant.
Thus, from the above and other recitals in exhibit A1 it is apparent that the executant's desire to give the property to the recipient is coupled with the relinquishment of rights of the executant over the property and simultaneous conferment of the same on the same day on the recipient with absolute rights; and, that the retention of possession of the property by the executant is only to enjoy the usufruct for life without any rights of alienation. From all the recitals, it is also evident that exhibit A1 is a deed of settlement (dakhalu dasthaveju) and that the same was executed with free volition and consent of the executant. Further, all the recitals, when read harmoniously and wholly, would indicate that the document conferred interest in the property in praesenti so as to take effect intra vivos and that by virtue of the document irrevocable interest in the property is created in favour of the recipient and that no right of revocation is reserved. Thus, the combined reading of the recitals in exhibit A1 clearly indicate that the deed is a gift settlement deed and it is to take effect on the day of its execution and that the rights created thereunder are to take effect from that day. It is apt to note that the recitals in exhibit A1, which are referred to supra, generally do not find place in a testament or a Will.
12 MSRM, J S.A.No.205 of 2019 Further, under a testament, no interest in praesenti would be conferred irrevocably; and in a Will there would generally be a recital that the bequests in the Will shall come into operation after the death of the testator; and in a Will the testator would retain a right to cancel the Will or alter the recitals in future. Such recitals are conspicuously absent in exhibit A1. Further, a Will is not a compulsorily registerable document. Even if a testator chooses to register a Will, no stamp duty would be paid on the value of the properties bequeathed under the Will as no such stamp duty is collectable on a deed of Will. Admittedly, exhibit A1, which is a 'dakhalu dasthaveju' (deed of gift settlement), was engrossed on non judicial stamp papers of the value of Rs.140/- and the endorsement of the Registrar shows that Rs.7,140/- towards stamp duty including transfer duty, besides Rs.608/- towards registration fee are collected. Thus, necessary stamp duty payable on the value of the property, which is the subject matter of the gift settlement deed, was paid and the document was duly registered. Under a Will, no consideration for the bequests is necessary. But, in exhibit A1, as the executant desired it to be a gift settlement deed, she made a specific mention that the consideration is love and affection towards the plaintiff, the recipient. All the recitals when read together and considered in harmony would indicate that on the date of execution itself, the executant created right, title and interest in the property in favour of the recipient; but it was stated that the possession of the property shall be taken by the recipient only after the demise of the executant. Thus, the 13 MSRM, J S.A.No.205 of 2019 recitals in exhibit A1 that are beyond pale of controversy would signify that the executant created life interest in herself in the property and vested remainder in favour of the recipient and that the executant while divesting herself of the title to the property and vesting the title on the recipient retained life estate for enjoyment during her life time without any right of alienation. As a result, it is not in doubt that the executant created right and interest in praesenti in favour of the plaintiff, who is the recipient, and, however, delivery of possession of the property was postponed till after the demise of the executant. There is no dispute with regard to the legal position that any executant while divesting herself to the title to the property could create life interest in her and vested remainder in favour of the recipient. For all the above reasons, the document could be construed as a gift settlement deed but not as a Will. In this regard, it is to be noted that the facts of the instant case and the facts of the case in the decision of the Supreme Court in Namburi Basava Subrahmanyam v. Alapati Hymavathi and others [AIR 1996 SC 2220] are nearly akin. In the said decision, the Supreme Court has considered squarely a similar question and while answering the said question examined the issue with reference to the disputed document in the said case. As noted, the facts of the said case are nearly akin to the facts of the instant case in view of the commonality between the recitals in exhibit B1 therein and the recitals in exhibit A1 herein. Therefore, the ratio in the said decision, which squarely applies to 14 MSRM, J S.A.No.205 of 2019 the facts of the case, fortifies the view of this Court that exhibit A1, in question is a gift settlement deed and not a Will.
14. On the above detailed analysis, this Court holds that exhibit A1 is a deed of gift settlement and that, therefore, the deed of cancellation, under the original of exhibit A2, cancelling exhibit A1 and the exhibit B1 (= A3) sale deed executed by the 1st defendant in favour of the 2nd defendant would in no way affect the validity and binding nature of exhibit A1. As a result this Court holds that the plaintiff is entitled to a decree declaring his right and title over the plaint schedule property and for the consequential relief of recovery of possession after evicting the 2nd defendant, his men, agents and successors in interest therefrom. Therefore, no substantial questions of law as being sought to be raised are involved.
15. Viewed thus, this Court finds that none of the questions raised are substantial questions and that there is no substance in the questions raised and that therefore, the second appeal is devoid of merit and is liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratio in the decision in Gurudev Kaur v. Kaki (AIR 2006 SC 1975). In the case on hand, as this court finds, after careful examination of the pleadings, the evidence and the contentions, that no substantial question of law is involved, this second 15 MSRM, J S.A.No.205 of 2019 appeal is liable for dismissal at the stage of admission in view of the narrow compass of Section 100 of the Code of Civil Procedure.
16. In the result, the Second Appeal is dismissed. However, having regard to the facts and submissions and the nature of the decree, which is confirmed, the 2nd defendant is granted three months time from the date of receipt of a copy of the judgment of this Court for vacating and delivering vacant peaceful possession of the plaint schedule property to the plaintiff. It is needless to state that on failure of the 2nd defendant so to do, the plaintiff shall be at liberty to obtain delivery of vacant possession of the plaint schedule property in accordance with the procedure established by law. No order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
__________________________ M.SEETHARAMA MURTI, J 21.06.2019 Note: LR copy to be marked.
b/o.
Vjl