Himachal Pradesh High Court
Baldev Singh vs Surinder Singh (Deceased) Through Lrs ... on 22 September, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 239/2007 Reserved on: September 20, 2016 Decided on: September 22, 2016 .
__________________________________________________________________ Baldev Singh ..Appellant Versus Surinder Singh (deceased) through LRs and others ....Respondents __________________________________________________________________ Coram:
of Hon'ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting? 1 yes. __________________________________________________________________ For the appellant : Mr. Neeraj Gupta, Advocate.
For the respondents :
rt Mr. Peeyush Verma, Advocate.
__________________________________________________________________ Rajiv Sharma, Judge This Regular Second Appeal has been instituted against judgment and decree dated 25.4.2007 rendered by the learned Additional District Judge, Fast Track Court, Una, District Una, Himachal Pradesh in Civil Appeal No. 5/98 RBT 179/04/98.
2. "Key facts" necessary for the adjudication of the present appeal are that the respondents-plaintiffs (hereinafter referred to as 'plaintiffs', for convenience sake) filed a suit for declaration against the appellant-defendant (herein after referred to as 'defendant', for convenience sake). According to the averments made in the plaint, plaintiffs and the defendant are the only legal heirs of deceased Anar Devi alias Ganga Devi widow of Ran Singh son of Ram Saran, 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 2resident of village Jalgran Tabba, Tehsil and District Una, in respect of the area of land as detailed in the plaint. After the death of Ran Singh, share of the parties including Anar Devi to the property of .
Ran Singh was to the following extent:
i) Karam Singh 1/4th share
ii) Kartar Singh 1/4th share
iii) Baldev Singh 1/4th share
iv) Anar Devi @ Ganga Devi 1/4th share
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3. Karam Singh also died leaving behind his legal representatives-successors. Anar Devi @ Ganga Devi died on 26.4.1990 leaving behind the plaintiffs and defendant as her only rt legal representatives and successors. Now the shares of the plaintiffs and defendants after the death of Anar Devi in the whole of joint land were as under:
1. Karam Singh 1/3rd share
2. Baldev Singh 1/3rd share
3. Raksha Devi 1/9th share
4. Rajinder Singh 1/9th share
5. Ganga Devi (widow) 1/9th share
4. Deceased Anar Devi was an illiterate and old aged, physically sick, Parda Nasheen lady and was hard of hearing.
Defendant filed a partition case against the plaintiffs and Anar Devi in the Court of Tehsildar regarding suit land. Defendant exercised fraud and undue influence by way of misrepresentation and got Gift Deed of entire land executed fraudulently and illegally in his favour under the garb of compromise. Possession of the suit land was never transferred to the defendant under the Gift Deed dated ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 3 26.12.1989, Ext. PW-5/A. Plaintiffs came to know about fictitious Gift Deed when they approached village Patwari for entering the inheritance mutation in the revenue record in respect of the share .
of the deceased Anar Devi.
5. Suit was contested by the defendant. According to the averments made in the written statement, plaintiffs and defendant have succeeded to the estate of Anar Devi. Suit land was not part of of her estate as same was gifted during her life time to the defendant.
Anar Devi alias Ganga Devi was hale and hearty and of sound mind. She executed gift deed dated 26.12.1989 in the presence of rt witnesses in favour of the defendant. Gift deed was duly registered with the Sub Registrar, Una. Plaintiffs were having the knowledge of the said gift deed from the very day of its execution.
6. Plaintiffs filed replication. Issues were framed by the learned Sub Judge First Class, on 21.11.1992. He dismissed the suit on 29.11.1997. Plaintiffs filed an appeal before the Additional District Judge, Fast Track Court. He allowed the appeal vide judgment and decree dated 25.4.2007. Hence, this Regular Second Appeal.
7. The appeal was admitted on 27.8.2007 on the following substantial questions of law:
"1. Has not the Lower Appellate Court committed grave illegality in decreeing the suit of plaintiffs-respondents which was not maintainable for assailing the Gift executed by Smt. Anar Devi, who survived for about 4 months and did not challenge the factum of Gift on any ground whatsoever during her lifetime? Was not the plea ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 4 of fraud, misrepresentation and undue influence etc. pleaded by plaintiffs-respondents for setting aside the gift Deed Ex. DW2/A personal to Smt. Anar Devi who accepted her act of gifting the property in favour of defendant-appellant?
.
2. Whether the findings by the Lower Appellate Court are erroneous and perverse by putting reliance on such oral and documentary evidence which were beyond the scope of pleadings? Has not the Lower Appellate Court committed grave illegality in ignoring the provisions of Order 6 Rule 4 of Code of Civil Procedure for scrutinizing the pleadings which lacked full and material particulars?
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3. Whether the Lower Appellate Court has acted in a highly arbitrary, erroneous and perverse manner in putting wrong reliance on the judgments of the Hon'ble Supreme Court and this Hon'ble Court with respect to the law laid down by rt interpreting Section 60 of the Registration Act? Has not Lower Appellate Court exceeded in its jurisdiction in shifting the onus of proof on the defendant-appellant, when registered document of gift and the endorsement made thereon, had presumption of truth attached to them and also had the presumption of regularity of official acts?
8. Mr. Neeraj Gupta, Advocate, on the basis of substantial questions of law framed, has vehemently argued that Anar Devi survived for about four months after the execution of the gift deed but did not challenge the factum of gift in her life time. He then contended that the first appellate Court has mis-construed the oral as well as documentary evidence. He lastly contended that the gift deed was a registered document.
9. Mr. Peeyush Verma, Advocate, has supported the judgment and decree of the first appellate Court.
10. I have heard the learned counsel for the parties and also gone through the record carefully.
::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 511. PW-1 Karam Singh testified that the suit land was ancestral property. Earlier Ram Saran was owner and after his death Ran Singh became the owner. Suit land devolved upon Anar .
Devi, he and his brothers. His mother divided her share into three equal shares and gave possession to all the brothers in equal shares. Suit land was joint. Anar Devi died at the age of 94 years.
She was hard of hearing. She was a Parda Nasheen lady. His of brother was in armed forces. Mother appointed him General Power of Attorney. Baldev Singh used to quarrel with her. Defendants filed an application for partition of land as he had inimical relations with rt him. After the death of mother, when he visited Patwari, he came to know about the gift deed. During cross-examination, he admitted that he was not on talking terms with Baldev Singh. He denied that he tried to sell share and only then she cancelled the General Power of Attorney. He denied that he was present before the revenue authorities at the time of mutation. Volunteered that he came to know about the Gift Deed after one year of death of his mother.
12. PW-2 Mahant Ram testified that the mother of Baldev Singh cancelled the General Power of Attorney which was in favour of the plaintiffs. She divided her share in three equal shares and handed over possession to all the sons. He has admitted that the land was partitioned amongst parties in equal shares. Partition was not scribed but it was a private partition. He denied that Anar Devi used to live with Baldev Singh after 1982. He feigned ignorance about the fact that Anar Devi executed Gift Deed.
::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 613. PW-3 Vijay Kumar testified that at the time of death, Anar Devi was not mentally alert and was not in a sound disposing state of mind. Relations between Baldev Singh and Anar Devi were .
inimical. He has admitted that Karam Singh has not attended the last rites of his mother. He admitted that Karam Singh could walk with the help of a stick at the time of death of his mother.
14. PW-4 Ganga Devi has testified that her mother-in-law of Anar Devi divided her share in three equal shares and handed over possession to them. She further testified that her mother-in-law was not in a sound disposing state of mind, 5-6 months prior to her rt death. She has admitted in her cross-examination that it was the plaintiff Karam Singh, who tried to sell the land qua the share of his mother. At that time, Anar Devi in consultation with Baldev Singh cancelled the General Power of Attorney. She admitted that Karam Singh has not attended the funeral of his mother.
15. PW-5 Sohan Lal, Registration Clerk, has proved the copy of Gift Deed dated 26.12.1989 Ext. PW-5/A. General Power of Attorney is ext. PW-5/B.
16. DW-1 Baldev Singh deposed that he used to look after his mother. His mother executed Gift Deed in his favour on 26.12.1989. She was in a sound and disposing state of mind. Gift Deed was executed in the presence of Nambardar Jagdev Singh and Gurdev. It was duly registered with Registrar Una. When Gift Deed was registered, Rajinder Kumar son of Shri Karam Singh and Surender Singh were present in the office of Registrar. Karam Singh ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 7 filed objections during mutation proceedings. When mutation was sanctioned, Jagdev and Gurdev were present. His mother died on 26.4.1990. He attended the last rites of his mother. Karam Singh .
wanted to dispose of the suit land on the basis of the General Power of Attorney. It is in these circumstances, mother was constrained to cancel the General Power of Attorney. He has purchased stamp papers and all the proceedings regarding Gift Deed have taken place of in his presence.
17. DW-2 Rajinder Kumar has scribed the gift deed Ext.
Ext. DW-2/A dated 26.12.1989.
rt
18. DW-3 Jagdev Ram and PW-4 Gurdev Singh are the marginal witnesses.
19. DW-5 Roshan Lal deposed that Anar Devi resided with Baldev Singh and she was in a sound and disposing state of mind.
She was not a Parda Nasheen lady.
20. Fact of the matter is that Anar Devi has not challenged the execution of Gift Deed dated 26.12.1989. Gift Deed was scribed by DW-2 Rajinder Kumar. He has entered it at Sr. No. 372 on 26.12.1989 at Page No. 191. Gift Deed was scribed at the instance of Anar Devi. Contents of the Gift Deed were read over to her. She, after admitting the same to be true and correct, put her thumb impression on the same. Jagdev Nambardar and Gurdev Singh are the marginal witnesses. DW-3 Jagdev Ram testified that he knew the parties. Anar Devi has executed Gift Deed dated 26.12.1989. He has signed it as a marginal witness alongwith Gurdev Singh (DW-4).
::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 8She was in a sound disposing state of mind. Her eye-sight was normal. Contents of the Gift Deed were read over to Anar Devi.
Thereafter, she also put her thumb impression on the same. Anar .
Devi was present before the Registrar. She also put her thumb impression before the Registrar. DW-4 Gurdev Singh testified that Gift Deed was executed. He identified his signatures as a marginal witness on Ext. DW-2/A. Anar Devi was in a sound disposing state of of mind at the time of execution of the gift deed. Contents of the Gift Deed were read over to her and thereafter, she admitted the same to be correct and thereafter put her thumb impression. She was not rt under the influence of anybody. She was not a Parda Nasheen lady.
21. Defendant has duly proved the execution of the Gift Deed dated 26.12.1989. Learned first appellate Court has wrongly applied the principles applicable to prove the Will while setting aside well reasoned judgment of the learned trial Court. Smt. Anar Devi was in a sound and disposing state of mind. Her eye-sight was normal. The will has been scribed by DW-2 Rajinder Kumar. Shri Jagdev Ram DW-3 and Gurdev Singh DW-4 are the marginal witnesses. They have categorically stated that contents of the Gift Deed were read over to Anar Devi and after admitting the contents to be true, she put her thumb impression and thereafter they put their signatures as marginal witnesses. It has also come on record that the relations between Karam Singh and Anar Devi were not cordial. Karam Singh has not even attended the funeral of his ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 9 mother. Anar Devi was residing with the defendant since 1982. He was looking after his ailing mother.
22. Plaintiffs have not produced any tangible evidence that .
Anar Devi was residing with them. Anar Devi has earlier executed General Power of Attorney in favour of Karam Singh. General Power of Attorney in favour of Karam Singh was cancelled by Anar Devi after visiting office of the Registrar. She was not a Parda Nasheen of lady. Plaintiffs have not led any evidence to prove that Gift Deed dated 26.12.1989 was outcome of fraud or misrepresentation.
Plaintiffs have also not proved that the land was partitioned. Merely rt that the stamp papers were prepared by the defendant would not cast any doubt on the Gift Deed dated 26.12.1989. First appellate Court has wrongly appreciated the oral as well as documentary evidence. Gift Deed dated 26.12.1989 is a valid document.
23. In Naramadaben Maganlal ThakkerVs. Pranjivandas Maganlal Thakeer & Ors. 1997(1) S.L.J. 80, their Lordships of the Hon'ble Supreme Court have held that execution of a registered gift deed, acceptance and delivery of property together make the gift complete. Their Lordships have held as under:
"3. It is now well settled legal position that a document has to be read harmoniously as a whole giving effect to all the clauses contained in the Court of H.P. document which manifest the intention of the persons who execute the document. The material part of the gift deed reads as under:
"The said immovable property as described above with the ground floor and with the ways to pass and with the water disposal and with all other concerned rights, titles is gifted to you and the possession whereof is handed over to you under the following conditions to be observed by you and your heirs and legal representatives as long as the Sun and the Moon shine. Therefore, now I or my heirs or legal ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 10 representatives have no right on the said property. You and your heirs and legal representatives have no right on the said property. You and your heirs and legal representatives have become the exclusive owners of the same. You and your heirs and legal representatives are entitled to enjoy, to .
transfer or to use the said property as you like under the conditions mentioned in this deed. id immovable property as described above with the ground floor and with the ways to pass and with the water disposal and with all other concerned rights, titles is gifted to you and the possession whereof is handed over to you under the following conditions to be observed by you and your heirs and legal representatives as long as the Sun and the Moon shine. Therefore, now I or my heirs or legal representatives have no right on the said property. You and your heirs and legal of representatives have no right on the said property. You and your heirs and legal representatives have become the exclusive owners of the same. You and your heirs and legal representatives are entitled to enjoy, to transfer or to use the said property as you like under the conditions mentioned in this deed. Except myself, there is nobody's right, title, rt interest or share on the said property: I have not mortgaged the same by any document. Yet however anybody comes forward to claim the fight, I shall remove the same. The said property is gifted to you on such conditions that and you are made owners by the gift deed of said property on such conditions that there are 15 rooms on the said property at present. I am rightful to receive the rents and the mesne profit whatsoever accused from the said rooms throughout my life. I am only entitled to receive the mesne profit of the said property till I live. Therefore, I, the executants, shall be entitled to let out the said buildings (rooms), to receive the rent amount to make all the other arrangement throughout my life. Similarly, the said property shall be in my possession till I live. Therefore, I have gifted this property to you by reserving permanently my rights to collect the mesne profit of the existing rooms throughout my life. And by this gift deed the limited ownership right will be conferred to you till I live. After my death you are entitled to transfer the said property. I shall not give in any way my right to anybody to collect the mesne profit. You may get transferred the said property in your name in support of this deed. This gift deed is executed to you under the aforesaid conditions."
4. The material part of the cancellation reads as under:-
"I have, on 15.5.65, executed a conditional gift deed of Rs.9,000/- in words Rupees nine thousand in favour of you. The said deed has been presented in the office of the Sub Registrar, Baroda at Sr. No. 2153 of the book no. 1 and it is registered on 15.5.65. The description of the property mentioned in the said deed is as under:::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 11
"I executed to you a conditional gift deed of the said property from sky to earth. You had promised me to fulfil the oral conditions between us. But immediately after making the gift accordingly, you denied to fulfil the said .
conditions. The possession of the gifted property is not handed over to you. So in fact you have not accepted the conditional gift of the property and I am also not willing to act according to the conditional gift. It is also mentioned in the said conditional gift deed that the possession shall be kept with me. And so accordingly my possession is continued. My possession is from the beginning and it is permanent. You are not ready to act according of to our conditions. Therefore, I have to execute immediately this deed of cancelling the conditional gift deed between us. Therefore, I hereby cancel the conditional gift deed dated 15.5.65 of Rs.9,000/- in words rupees nine rt thousand presented at the serial no. 2153 on 15.5.65 in the office of the Sub Registrar Baroda for registration. Therefore, the said conditional gift deed dated 15.5.65 is hereby cancelled and meaningless. The property under the conditional gift has not been and is not to be transferred in your name."
6. Acceptance by or on behalf of the done must be made during the life time of the donor and while he is still capable of giving.
7. It would thus be clear that the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete.
Thereafter, the donor is divested of his title and the done becomes the absolute owner of the property. The question is: whether the gift in question had become complete under Section 123 of the TP Act? It is seen from the recitals of the gift deed that Motilal Gopalji gifted the property to the respondent. In other words, it was a conditional gift. There is no recital of acceptance nor is there any evidence in proof of acceptance. Similarly, he had specifically stated that the property would remain in his possession till he was alive. Thereafter, the gifted property would become his property and he was entitled to collect mesne profits in respect of the existing rooms throughout his life. The gift deed conferred only limited right upon the respondent donee. The gift was to become operative after the death of the donor and he was to be entitled to have the right to transfer the property absolutely by way of gift or he would be entitled to collect the mesne profits. It would thus be seen that the enjoyment of the property during his life ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 12 time. The recitals in the cancellation deed is consistent with the recitals in the gift deed. He had expressly stated that the respondent had cheated him and he had not fulfilled the conditions subject to which there was an oral understanding between .
them. Consequently, he mentioned that the conditional gift given to him was cancelled. He also mentioned that the possession and enjoyment remained with him during his life time. He stated, " I have to execute immediately this deed of cancelling the conditional gift deed between us. Therefore, I hereby cancel the conditional gift deed dated 15.5.65 of Rs. 9000/- in words rupees nine thousand presented at the Serial no. 2153 on 15.5.65 in the office of the Sub-Registrar Baroda for registration.
of Therefore, the said conditional gift deeddated 15.5.65 is hereby cancelled and meaningless. The property under the conditional gift has not been and is not to be transferred in your name." Thus, he expressly made it clear that he did not hand over the possession to the respondent nor did the gift become complete rt during the life time of the donor. Thus the gift had become ineffective and inoperative. It was duly cancelled. The question then is: whether the appellant would get the right to the property? It is not in dispute that after the cancellation deed dated June 9, 1965 came to be executed, duly putting an end to be conditional gift deed dated May 15, 1965, he executed his last Will on May 17, 1965 and died two days thereafter."
In the instant case, the gift deed is registered and the possession as per recital contained in the gift has been handed over to the done, i.e., Jai Chand.
24. The learned Single Judge in Tokha Vs. Smt. Biru and others AIR 2003 Himachal Pradesh 107 has held that once the possession of immovable property viz land delivered to donee, the gift is complete and when no condition of revocation in gift deed in case services were stopped to be rendered by donee, the gift deed cannot be termed as conditional and revocable one. The learned Single Judge has held as under:
"22. In the case in hand there is no specific condition either for giving maintenance or for revoking of the gift deed in case services are stopped to be rendered by the donee. Anyway, the fact remains, as has been stated in the deed of gift that ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 13 the gift was in lieu of services meaning thereby that the donee had to render services to the donor-plaintiff but in the absence of any specific condition in the event of failure of the donee to render services, the gift could not be revoked. Thus, the deed of gift Ext. D-1 if considered as an outcome of .
general law cannot be said to be revocable one when no specific condition for its revocation has been made in the deed Itself in the event of failure of the donee to provide services to the donor or maintain the donor, the gift cannot be revoked.
23. In that view of the matter, and in the light of the above said decisions of various High Courts, the first appellate Court acted illegally in considering the document of gift to be conditional and revocable one. The above first question of of law accordingly stands answered in favour of the defendants and as a consequence thereof it is held that deed of gift Ext. D-1 was unconditional, it could not be revoked on account of the failure of donee (since deceased) to render services or to maintain the plaintiff.
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29. In Thakur Raghunath Ji Maharaj v. Ramesh Chandra, (2001) 5 SCC 18 : AIR 2001 SC 2340 the facts were that land was gifted for a specific charitable purpose for constructing a Degree College building thereon with the condition attached to it that if the building was not constructed within six months the deed would come to an end and donor would become entitled to the property. An agreement was also executed on the same day when the deed of gift was executed. In the facts of that case their Lordships held that relationship between the donor and donee was fiduciary nature, donee continued to be trustee and donor could claim back the property on breach of the conditions mentioned therein and donee having failed to fulfil the conditions the suit for possession filed by the donor was rightly decreed by the first appellate Court. The ratio of this judgment is not applicable in the facts of the present case. In the case on hand the agreement Ext. PW-3/A was not executed on 12-1-1984 when the deed of gift was executed by the plaintiff in favour of donee Singh whereas the alleged agreement was only executed on 5-3-1984 just one day prior to the registration of the deed of gift on 6-3-
1984 and in these circumstances the deed of gift and the agreement would not form part of the same transaction and cannot be read together and given effect to as held by the first appellate Court."
25. The learned Single Judge in Balai Chandra Parui Vs. Smt. Durga Bala Dasi and others, AIR 2004 Calcutta 276 has held that in the absence of coercion, fraud and undue influence, the gift ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 14 deed could not be revoked. The learned Single Judge has held as under:
"31. Now, let me come to the submissions of the learned .
counsel for the respective parties as well as the document on record. From the evidence on record and from the judgments and decrees passed by the Court-be-low it appears that there are some facts which are admitted. Such as Smt. Durga Bala Devi executed the deed of gift in favour of Mr. Balai Chandra Parul that is the defendant/said Balai Chandra Parui accepted the deed of gift. In the said deed of gift there remains three attesting witnesses. One Sri Ganesh Chandra Das, the deed writer, another Sri Patitosh Chakraborty and the third is Sri Sarada Charan Das. In the of last line of the deed it has been written in Bengali Sri Balai Chandra Parui read and explain the purport of the deed of gift to Smt. Durga Bala Devi the donor herein. Up to this stage everything is admitted and/or comes out of record. Now, let me see the provisions of Section 42 and Section 126 rt of the Transfer of property Act, Both the Sections are quoted hereinbelow :-
"42. Transferred by person having authority to revoke former transfers - where a person transfers any immovable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of power."
"126. When gift may be suspended or revoked -the donor and donee may agree that on the happening of any specified which does not depend on the Will of the donor a gift shall be suspended or revoked; but a gift which the parties agreed shall be irrevocable wholly or impart, at the mere Will of the donor, is void wholly or impart, as the case may be.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 effect the rights of transferees for consideration without notice."
33. The above being the position there I is no scope in normal course for revocation of a deed of gift when the said deed of gift i was executed by the donor accepted by the ! donee and registered by the registering authority. From the provisions of Registration Act it is clear that the registering authority I shall enquire . This term "shall Enquirer" is really important and most relevant here. The Transfer of Property ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 15 Act also provides that normally a deed of gift cannot be revoked. The Registration Act as referred to above also provides that the registering officer will satisfy himself about the identity of the parties. Therefore, identification and enquiry about the execution of deed of gift completes the .
deed.
34. Reading the provisions of Section 42 and Section 126 of the Transfer of Property Act the ratio which comes out is that the deed of gift can be revoked if there is an agreement for revocation. In such circumstances the deed of gift is not at all a gift because if somebody agrees to gift some property to anybody at the same time the donor retains the power to revoke the deed then it cannot be termed to be a deed of gift.
of 34A. The deed of gift however can be revoked :-
(i) If there is any prior condition that the gift can be revoked or if the deed of gift has been executed under undue influence or donee commits fraud. The Registration Act also give support to the conditions that Registration or execution of the deed-is done rt after the satisfaction of the registered regarding identification.(ii) If the donee obtain the deed of gift executing under influence or committing fraud. These are the three conditions 'in which the deed of gift can be revoked. Let me now see whether either of the three conditions successfully prevailing over the first deed of gift which was executed and registered.
35. Second question remains the question of coercion. This coercion is not the point involved in the instant case inasmuch as it is nobody's case that the first deed 'of gift executed in favour of the defendant was done under undue influence."
26. Their Lordships of the Hon'ble Supreme Court in Asokan Vs. Lakshmikutty and others (2007) 13 Supreme Court Cases 210 have held that in order to constitute a valid gift acceptance thereof is essential. Their Lordships have further held that there may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. Their Lordshps have also held that once a gift is ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 16 complete, the same cannot be rescinded. And for any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift. Their Lordships have further held that .
when a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. Their Lordships have held as under:
of "11. Mr. M.P. Vinod, learned counsel appearing on behalf of the appellant, submitted that the first Appellate Court as also the High Court committed a serious error in arriving at the aforementioned findings insofar as they failed to take into consideration the fact that the deeds of gift being not rt onerous ones and the factum of handing over of possession of the properties which were the subject matter of the gift, having been stated in the deeds of gift themselves, it was not necessary for the appellant to prove that he accepted the same. It was furthermore urged that keeping in view the provisions of Sections 91 and 92 of the Indian Evidence Act, no plea contrary to or inconsistent with the recitals made in the deeds of gift is permissible to be raised.
13. We have noticed the terms of the deeds of gift. Ex facie, they are not onerous in nature. The definition of gift contained in Section 122 of the Transfer of Property Act provides that the essential elements thereof are:
(i) the absence of consideration;
(ii) the donor;
(iii) the donee;
(iv) the subject matter
(v) the transfer; and
(vi) the acceptance.
14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. [See ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 17 Sanjukta Ray v. Bimelendu Mohanty AIR 1997 Orissa 131, Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415 and Samrathi Devi v. Parsuram Pandey AIR 1975 Patna 140]
16. While determining the question as to whether delivery .
of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role.
It is not a case that the appellant was not aware of the recitals contained in deeds of gift. The very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometime indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift.
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18. Mr. Iyer, however, submitted that it would be open to the donors to prove that in fact no possession had been handed over. Strong reliance in this behalf has been placed on S.V.S. Muhammad Yusuf Rowther and another v. Muhammad Yusuf Rowther and other [AIR 1958 Madras 527] and Alavi rt v. Aminakutty & Others [1984 KLT 61 (NOC)].
22. Section 91 of the Indian Evidence Act covers both contract as also grant and other types of disposal of property. A distinction may exist in relation to a recital and the terms of a contract but such a question does not arise herein inasmuch as the said deeds of gift were executed out of love and affection as well as on the ground that the donee is the son and successor of the donor and so as to enable him to live a good family life.
23. Could they now turn round and say that he was to fulfill a promise? The answer thereto must be rendered in the negative. It is one thing to say that the execution of the deed is based on an aspiration or belief, but it is another thing to say that the same constituted an onerous gift.
What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Indian Contract Act. It was not done. The deeds of gift categorically state,as an ingredient for a valid transaction, that the property had been handed over to the donee and he had accepted the same. In our opinion, even assuming that the legal presumption therefore may be raised, the same is a rebuttable one but in a case of this nature, a heavy onus would lie on the donors.
26. It will bear repetition to state that we are in this case concerned with the construction of recitals made in a registered document.
::: Downloaded on - 15/04/2017 21:17:10 :::HCHP 1830. 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."
27. Substantial questions of law are answered accordingly.
.
28. Regular Second Appeal is allowed. Judgment and decree dated 25.4.2007 rendered by the learned Additional District Judge, Fast Track Court, Una, District Una, Himachal Pradesh in Civil Appeal No. 5/98 TBT 179/04/98 are set aside. The Judgment of & Decree dated 29.11.1997 rendered in Civil Suit No. 93/1990 passed by the learned Sub Judge 1st Class, Court No.2, Una, HP are upheld. Pending application(s), if any, also stand disposed of. No rt costs.
(Rajiv Sharma) Judge September 22, 2016 (Vikrant) ::: Downloaded on - 15/04/2017 21:17:10 :::HCHP