Andhra Pradesh High Court - Amravati
Gaddam Venkata Ramana vs Emani Lakshmana Murthy on 11 November, 2024
APHC010617912011
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
MONDAY ,THE ELEVENTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
SECOND APPEAL NO: 165/2011
Between:
Gaddam Venkata Ramana ...APPELLANT
AND
Emani Lakshmana Murthy and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. T S N MURTHY
Counsel for the Respondent(S):
1. V S R S NAIDU
2. .
The Court made the following:
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
Second Appeal No.165 of 2011
Judgment:
This second appeal under Section 100 of the Code of Civil Procedure is
filed aggrieved against the decree and judgment, dated 24.11.2010 in
A.S.No.172 of 2007 on the file of IV Additional District Judge, East Godavari,
Kakinada, allowed in part by its judgment and decree, dated 09.08.2007 in
O.S.No.154 of 2000, on the file of II Additional Senior Civil Judge, Kakinada
(for short „trial Court‟).
2. The appellant herein is the 1st defendant before the trial Court,
respondent Nos.1 to 3 herein are the plaintiffs before the trial Court and 4 th
respondent herein is the 3rd defendant before the trial Court.
3. The plaintiffs initiated action in O.S.No.154 of 2000, on the file of the
II Additional Senior Civil Judge, Kakinada, with a prayer to declare their title to
the plaint schedule property and for recovery of possession of the same after
ejecting the defendants and their men therefrom and to grant past and future
profits and for costs of the suit.
4. The learned II Additional Senior Civil Judge, Kakinada, dismissed the
suit without costs. Felt aggrieved of the same, the unsuccessful plaintiffs in the
above said suit filed A.S.No.172 of 2007, on the file of the IV Additional District
Judge, East Godavari, Kakinada. The learned IV Additional District Judge,
East Godavari, Kakinada, allowed the appeal in part by setting aside the
judgment and decree passed by the trial Court. Aggrieved thereby, the
unsuccessful 1st defendant/appellant approached this Court by way of second
appeal.
5. For the sake of convenience, both parties in the appeal will be
referred to as they are arrayed in the original suit.
6. The case of the plaintiffs, in brief, as set out in the plaint averments in
O.S.No.154 of 2000, is as follows:
(i) The plaint schedule property is a Mangalore tiled house situated in
Ashoknagar, Kakinada, originally belonged to Smt. Bhupati Nagaratnamma,
wife of Sriramachandra Varma of Kakinada. She worked as Teacher in
Municipal Corporation School, Kakinada where the 1st plaintiff is co-teacher.
Nagaratnamma was neglected by her relatives. She was closed to the
plaintiffs who gave moral support to her and she developed affection towards
the family of the plaintiffs. Out of love and affection, she voluntarily executed a
registered settlement deed, dated 20.07.1979 for the plaint schedule property
reserving her life interest for her and vested interest in favour of the plaintiffs 1
and 2 for their life and the remainder interest in favour of 3rd plaintiff.
Nagaratnamma died on 30.10.1994. By the date of her death, Jammula Veera
Sai Babu and Peddi Venkateswara Rao were in possession of the plaint
schedule property as tenants on monthly rent of Rs.500/-. After her death,
plaintiffs demanded the tenants to pay the rents. They postponed on one
pretext or the other. The plaintiffs got issued a registered notice on 28.02.1996
terminating their tenancy and demanded them to deliver vacant possession of
the property and to pay the rents with interest. The tenants gave litigious reply
on 29.03.1996 in collusion with 1st defendant. Though they admitted the
tenancy, they contended that the rent is Rs.400/- per month and they obtained
the lease from 1st defendant and further stated that the settlement deed in
favour of plaintiffs were cancelled on 21.01.1981 by Nagaratnamma and she
executed a registered Will, dated 10.07.1992 in favour of 1st defendant. The
alleged documents are not valid under law and not binding on the plaintiffs.
She has no right to cancel the settlement deed. The alleged Will was brought
up by 1st defendant by coercion. The plaintiffs are not parties to the alleged
cancellation of settlement deed by Nagaratnamma and it is unilateral one. She
did not execute the alleged Will, dated 10.07.1997 and she has no such right
to execute it.
(ii) The 1st defendant forcibly evicted the tenants referred above and
inducted the 2nd defendant on monthly rent of Rs.600/-. He has no such right.
Thus, the defendants 1 and 2 are trespassers. After knowing the said fact, the
plaintiffs got issued registered notice, dated 20.03.2000 demanding them to
vacate the plaint schedule property. They gave litigious reply on 30.03.2000.
7. The 1st defendant filed written statement before the trial Court
admitting that the plaint schedule property originally belonged to Bhupathi
Nagaratnamma. The settlement deed in favour of plaintiffs was never
executed by Nagaratnamma and it was obtained by fraud and
misrepresentation. Nagaratnamma got right to cancel the said settlement
deed. The said Nagaratnamma is junior maternal aunt of the 1st defendant.
She was treated by him and his family members with love and affection and
attended her needs during her lifetime. Since the 1st plaintiff appears to be her
colleague, he wanted to get unjust benefit from her and obtained the alleged
settlement deed by coercion and undue influence. She enjoyed the property
during her lifetime. She executed a Will, dated 10.07.1992 in a sound and
disposing state of mind bequeathing the plaint schedule property in favour of
the 1st defendant. The 1st defendant is absolute owner of plaint schedule
property. He admitted Nagaratnamma died on 30.10.1994. The suit is filed
with ulterior motive. Therefore, he prays to dismiss the suit with exemplary
costs.
8. The 2nd defendant filed written statement denying the plaint
allegations. He admitted the exchange of notices. He is in the plaint schedule
property as tenant under 1st defendant and he has been paying rents to the 1st
defendant only.
9. On the basis of above pleadings, the learned II Additional Senior Civil
Judge, Kakinada, framed the following issues for trial:
(1) Whether the settlement deed, dated 20.07.1979 is obtained by
playing fraud, using coercion and undue influence on Bhupathi
Nagaratnamma and thereby the same is not valid and binding
on the defendants?
(2) Whether the cancellation of the settlement deed dated
21.01.1981 is true, valid and binding on the plaintiffs?
(3) Whether the will, dated 10.07.1992 is true, valid and binding on
the plaintiffs?
(4) Whether 1st defendant is the absolute owner of the schedule
property?
(5) Whether the plaintiffs are entitled for declaration and
possession of the schedule property?
(6) Whether the plaintiffs are entitled for past profits of Rs.18,000/-
as prayed for?
(7) Whether the plaintiffs are entitled for future profits?
(8) To what relief ?
10. During the course of trial in the trial Court, the 2nd defendant died.
The defendants 3 and 4 are brought on record as his legal representatives.
They did not file any separate written statement.
11. The plaintiffs filed rejoinder contending that the alleged Will, dated
10.07.1992, was not executed by Nagaratnamma in a sound and disposing
state of mind and she has no such right to execute it. The cancellation of
settlement deed by Nagaratnamma is not valid. Nagaratnamma has no right
to execute the Will. Without filing any suit for cancellation of settlement deed,
the cancellation of settlement deed is not valid. The said document cannot be
revoked. The defendants are estopped to contend the same.
12. During the course of trial in the trial Court, on behalf of the plaintiffs,
P.W.1 to P.W.6 were examined and Exs.A.1 to A.9 were marked. On behalf
of the defendants, D.W.1 to D.W.4 were examined and Ex.B.1 to Ex.B.3 were
marked.
13. The learned II Additional Senior Civil Judge, Kakinada, after
conclusion of trial, on hearing the arguments of both sides and on
consideration of oral and documentary evidence on record, dismissed the suit
without costs. Felt aggrieved thereby, the unsuccessful plaintiffs filed the
appeal suit in A.S.No.172 of 2007, on the file of the IV Additional District
Judge, East Godavari, Kakinada, wherein, the following points came up for
consideration.
(1) Whether the plaintiffs are entitled for relief of declaration and
consequential relief of possession of schedule property?
(2) Whether the plaintiffs are entitled for past and future profits?
(3) Whether the settlement deed dated 20.07.1979 is true, valid
and obtained by playing fraud on Nagaratnamma?
(4) Whether the cancellation deed dated 21.01.1981 is true?
(5) Whether the will, dated 10.07.1992 is true?
(6) To what relief?
14. The learned IV Additional District Judge, East Godavari, Kakinada,
i.e., the first appellate Judge, after hearing the arguments answered the
points, as above, in favour of the plaintiffs/appellants and against the
defendants/respondents and allowed the appeal in part. Felt aggrieved of the
same, the 1st defendant in O.S.No.154 of 2000 filed the present second
appeal before this Court.
15. Heard Sri Prabhala Rajasekhar, learned counsel, representing Sri
T.S.N. Murthy, learned counsel for the appellant and heard Sri S. Purushottam
Raju, learned counsel, representing Sri V.S.R.S. Naidu, learned counsel for
the respondents.
16. In this second appeal the substantial question of law on which the
appeal was admitted by the composite High Court of Andhra Pradesh at
Hyderabad is;
"Whether Ex.A.1 suit settlement deed was proved in accordance with
law?
On hearing both sides on 28.10.2024 the following additional substantial
questions of law are framed for consideration under Section 100 of C.P.C.:
(1) Whether the legal effect of recitals/contents of document Ex.A.1,
dated 20.07.1979, infers that it is a „will deed‟ as per Section 2(h) of
Indian Succession Act but not „settlement deed‟ vide AIR 2006 SC
2234?
(2) Whether the 1st appellate Court as being the final Court of fact has
committed a jurisdictional error in exercising its power under Order
41 Rule 31 CPC and erred in reversing the decree and judgment of
the trial Court?
17. The undisputed facts of both parties are originally the plaint
schedule house belongs to Nagaratnamma, who worked as a Teacher in
Municipal Corporation School, Kakinada and the said property is self-acquired
property and the 1st plaintiff is a co-teacher. The contention of the 1st plaintiff is
that Nagaratnamma was neglected by her relatives and so the 1st plaintiff and
his family members provided moral strength and assisted her by all means
and out of love and affection, the said Nagaratnamma voluntarily executed a
registered settlement deed, dated 20.07.1979 in favour of plaintiffs reserving
life interest for her and thereafter, plaintiffs 1 and 2 shall take possession and
thereafter, 3rd plaintiff shall enjoy the property and Nagaratnamma died on
30.10.1994 and subsequently he came to know that the 1st defendant in
collusion with Nagaratnamma cancelled the registered gift settlement deed
and executed a Will, dated 10.07.1992 in favour of the 1st defendant. The
plaintiffs further pleaded that the settlement deed executed by Nagaratnamma
in favour of the plaintiffs accepted voluntarily and the plaintiffs also paid the
tax.
18. The contention of the 1st defendant is that Nagaratnamma never
executed any settlement deed and the 1st defendant admits that the suit
schedule property originally belongs to Nagaratnamma and by the date of her
death, Jammula Veera Sai Babu and Peddi Koteswara Rao were the tenants
in the schedule property. He further pleaded that Ex.A.1 is not a gift settlement
deed and it is a Will and by the date of Ex.A.1, Nagaratnamma contemplated
to make arrangements in respect of the plaint schedule property to be given
effect to after her lifetime and later the settlement deed was duly cancelled
validly and thereafter bequeathed the same to the 1st defendant and the 1st
defendant is the absolute owner of the property of the settlement deed, dated
20.07.1979, which is not valid and enforceable and obtained by way of fraud
and undue influence.
19. The learned counsel for the appellant, Sri Prabhala Rajasekhar
contend that Ex.A.1 is not a settlement deed and Ex.A.1 is a Will deed and he
contend that by cancelling Ex.A.1 registered document, Nagaratnamma
executed Ex.B.3 Will, dated 10.07.1992 in favour of 1st defendant.
20. I have perused Ex.A.1 registered settlement deed. The recitals in
Ex.A.1 registered settlement deed are as follows:
(1) She was effected with paralysis;
(2) she intends to donate the property in favour of Brahmin;
(3) instead of doing so, she intends to settle the property in favour of
plaintiffs;
(4) she was treating 1st plaintiff as her brother, and so also she was
treating his wife as sister-in-law and 3rd plaintiff being their son;
(5) plaintiffs 1 and 2 have to take possession of the property and enjoy
the same during their life time without having right to gift or alienation;
(6) after their death, 3rd plaintiff will become the absolute owner and he
has to enjoy the property;
(7) she settled the property having made belief that she did not execute
any other document in favour of others;
(8) they have to enjoy the property with all structures, doors and door
frames, trees, passages, water sources with easementary rights and
with absolute rights; and
(9) she executed the same voluntarily.
21. The above recitals in Ex.A.1 registered settlement deed clearly goes
to show that the intention of the settler in settling the property in favour of the
plaintiffs is unequivocal and unambiguous terms under Ex.A.1 registered
settlement deed. The settler conveyed vested remainder rights to the plaintiffs
by reserving life interest in her lifetime. So, vested remainder in Ex.A.1 is a
title transferred to plaintiffs 1 to 3 on the date of Ex.A.1 registered settlement
deed. I have perused Ex.A.1. Admittedly, there is no revocation clause in
Ex.A.1 registered gift settlement deed.
22. It was contended by the learned counsel for the appellant that
Ex.A.1 is obtained by the plaintiffs by way of fraud and undue influence. To
discharge their burden, plaintiffs relied on the evidence of P.W.2 to P.W.4.
P.W.2 testified that he is an identifying witness for original of Ex.A.1 registered
settlement deed and he signed before the Sub-Registrar on the original of
Ex.A.1 and one Duvvuri Sarwa Surya Prakasa Rao is second identifying
witness and similarly Nagaratnamma put her thumb mark before the Sub-
Registrar by admitting the contents of the settlement deed, dated 20.07.1979
and she was in a sound and disposing state of mind and his evidence further
testifies he was authorized to receive the said settlement deed from the Sub-
Registrar Office and accordingly he has taken return of original of Ex.A.1 as
per the wish of Nagaratnamma and handed over the same to the plaintiffs.
23. P.W.3, who is one of the attestors on original of Ex.A.1, testifies that
Nagaratnamma and P.W.1 belong to Harijana community. P.W.3 further
testifies Nagaratnamma treated him as a brother and Nagaratnamma and her
husband while living jointly purchased 250 sq. yards of side through him and
constructed a Madras terraced house and husband of Nagaratnamma left
prior to 1972 and his whereabouts are not known. His evidence further
testifies that in the year 1977, Nagaratnamma purchased 199 sq. yards of site
and later she purchased 40 sq. yards in all 239 sq. yards of site under
registered sale deeds and she was a devotee of God Shri Rama Chandra
Murthy varu and she was having love and affection towards the plaintiffs and
as such the 3rd plaintiff named as Shri Ram Chandra Murthy in the name of
God Shrirama. His evidence also testifies that Nagaratnamma was affected
with paralysis to her left leg and hand and on humanitarian grounds the
plaintiffs family used to provide food to her. His evidence further testifies due
to their services and by god grace, Nagaratnamma recovered and attended
her normal duties and so she voluntarily executed Ex.A.1 registered
settlement deed and handed over all the link documents to the plaintiffs 1 and
2. His evidence is well supported by D.W.1 i.e., appellant/1 st defendant. As
per the own admissions of D.W.1, Kamara Raju helped Nagaratnamma while
she was constructing the house in the plaint schedule site and he never
assisted or helped Nagaratnamma while she was constructing the house in
the plaint schedule site. D.W.1 further admits Nagaratnamma was a devotee
of Lord Shrirama and she used to visit Bhadrachalam very frequently and he
further admits that the school Teachers of Nagaratnamma and also their
relatives used to help her in case of her necessity and she suffered with
paralysis and affected to her left leg and hand and he did not attend her
personally when she was affected with paralysis. He further admits that on
the date of original of Ex.A.1 registered settlement deed, the original title
deeds 2 in number in respect of the plaint schedule property were handed
over to the plaintiffs 1 and 2.
24. P.W.4 is the scribe of original of Ex.A.1. He is a licensed document
writer. His evidence testifies about the execution of Ex.A.1 registered
settlement deed by Nagaratnamma and his evidence also testifies about the
ingredients of Ex.A.1 registered settlement deed. Therefore, the plaintiffs
proved Ex.A.1 registered settlement deed by producing cogent evidence.
25. It was contended by the learned counsel for the appellant that
Ex.A.1 registered settlement deed is obtained by way of fraud and undue
influence. To prove Ex.A.1, the plaintiffs discharged their burden by examining
the identifying witness, attestor and scribe of Ex.A.1 registered settlement
deed as P.W.2 to P.W.4. To disprove the same, the defendants did not
adduce any cogent evidence. There is no evidence on record that the plaintiffs
obtained Ex.A.1 registered settlement deed fraudulently. Furthermore, in
Ex.A.9 there is no whisper by the donor that the plaintiffs obtained Ex.A.1
registered gift settlement deed by way of fraud. Execution of Ex.A.1 is
admitted by the donor in Ex.A.9. The reasons to cancel Ex.A.1 registered
settlement deed are that the plaintiffs neglected to maintain her and as such
she cancelled the same. Admittedly, there is no recitals in Ex.A.1 registered
settlement deed that the plaintiffs have to maintain and to look after her.
Further no conditions are incorporated in Ex.A.1 registered settlement deed
and it is not a conditional gift. On seeing the ingredients of Ex.A.1 it cannot be
treated as a Will and it is a settlement deed only. In the absence of revocation
clause in Ex.A.1 registered settlement deed, it cannot be called as a Will.
Though Ex.A.9 cancelled deed is said to have been executed by donor by
cancelling Ex.A.1 deed, the said cancellation deed is not at all valid since
there is no revocation clause in the settlement deed. In the absence of said
revocation clause, it cannot be treated as a Will. Furthermore, the defendant
No.1 failed to prove that the plaintiffs obtained Ex.A.1 gift settlement deed by
playing fraud and undue influence. Therefore, for the aforesaid reasons,
Ex.A.1 registered gift settlement deed is proved by the plaintiffs and it is also
made it clear that Ex.A.1 is a registered settlement deed and it is not a Will
deed.
26. The learned counsel for the appellant relied on a decision of
Rajendra Lalitkumar Arawal vs. Ratna Ashok Muranjan and another 1.
The facts in the aforesaid case law relates to the specific performance
of agreement of sale but not relates to the cancellation of gift settlement deed.
1
(2019) 3 Supreme Court Cases 378
27. The learned counsel for the appellant relied another decision of
Vidhyadhar vs. Manikrao and another2.
The facts in the aforesaid case law relates to validity of the sale deed
but not relates to the cancellation of gift settlement deed.
28. The learned counsel for the appellant placed reliance in the decision
of Hero Vinoth (minor) v. Seshammal 3 wherein the Apex Court held as
follows:
"An inference of fact from a document is a question of fact. But the legal
effect of the terms or a term of a document is a question of law.
Construction of a document involving the application of a principle of law,
is a question of law. Therefore, when there is a misconstruction of a
document or wrong application of a principle of law while interpreting a
document, it is open to interference under S.100, CPC. If a document
creating an easement by grant is construed as an „easement of
necessity‟ thereby materially affecting the decision in the case, certainly
it gives rise to a substantial question of law."
The facts in the above said case law are relates to suit which was filed
by the plaintiff for prohibitory injunction to restrain the defendants from causing
obstruction to the plaintiff putting up a compound wall in his portion of the
property and the facts of the aforesaid case are a partition deed was executed
among five brothers. Therefore, the facts and circumstances in the aforesaid
case are different to the instant case.
29. The learned counsel for the appellant further relied on a decision of
Usha Jayaraman & another vs. M.K. Narayani @ Kokula & others 4
wherein the High Court of Madras held as follows:
2
(1999) 3 Supreme Court Cases 573
3
AIR 2006 Supreme Court 2234
4
2008 0 Supreme (Mad) 3015
"The Court applied the following legal principles in reaching its decisions:
1. The distinction between a Will and a Settlement Deed lies in the
immediate vesting of interest in the latter and the contingent interest
arising upon the death of the testator in the former. 2. Restrictions on the
beneficiaries‟ right to encumber or alienate the property during the
settlor‟s lifetime are indicative of a Will rather than a Settlement Deed. 3.
The validity of a gift deed depends on whether it creates a present and
irrevocable transfer of ownership rights to the donee. 4. In interpreting
documents, courts consider the entire context to ascertain the true intent
and purpose of the parties involved."
Even in the present case the donor executed a registered gift settlement
deed and no restrictions are imposed on donee in Ex.A.1 registered gift
settlement deed by the donor. Therefore, the facts and circumstances in the
cited decision are different to the instant case.
30. In a case of N. Thajudeen vs. Tamil Nadu Khadi and Village
Industries Board5 the Apex Court held as follows:
"In simpler words, ordinarily a gift deed cannot be revoked except for the
three contingencies mentioned above. The first is where the donor and
the donee agree for its revocation on the happening of any specified
event. In the gift deed, there is no such indication that the donor and
donee have agreed for the revocation of the gift deed for any reason
much lesson the happening of any specified event. Therefore, the first
exception permitting revocation of the gift deed is not attracted in the
case at hand. Secondly, a gift deed would be void wholly or in part, if the
parties agree that it shall be revocable wholly or in part at the mere will of
the donor. In the present case, there is no agreement between the
parties for the revocation of the gift deed wholly or in part or at the mere
will of the donor. Therefore, the aforesaid condition permitting revocation
or holding such a gift deed to be void does not apply. Thirdly, a gift is
liable to be revoked in a case where it is in the nature of a contract which
5
MANU/SC/1153/2024
could be rescinded. The gift under consideration is not in the form of a
contract and the contract, if any, is not liable to be rescinded. Thus, none
of the exceptions permitting revocation of the gift deed stands attracted
in the present case. Thus, leading to the only conclusion that the gift
deed, which was validly made, could not have been revoked in any
manner. Accordingly, revocation deed dated 17.08.1987 is void ab initio
and is of no consequence which has to be ignored."
In a case of Nakka Parthasarathy vs. Nakka Krishnaveni and others6
the composite High Court of Andhra Pradesh held as follows:
"Further, when once the gift is voluntarily made without there being any
coercion or undue influence the acceptance of the gift by the donee
would be complete even though the deed of gift is not delivered to the
donee and the gift property continues to be in donor‟s possession."
In a case of Renikuntla Rajamma (D) by Lrs. v. K. Sarwanamma7 the
Apex Court held as follows:
"In the case at hand as already noticed by us, the execution of registered
gift deed and its attestation by two witnesses is not in dispute. It has also
been concurrently held by all the three courts below that the donee had
accepted the gift. The recitals in the gift deed also prove transfer of
absolute title in the gifted property from the donor to the donee. What is
retained is only the right to use the property during the lifetime of the
donor which does not in any way affect the transfer of ownership in
favour of the donee by the donor."
In a case of Asokan vs. Lakshmikutty8 the Apex Court held as follows:
"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,
6
2013(5) ALD 711
7
2014(5) ALD 173 (SC)
8
2007 LawSuit(SC) 1365
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."
In the case on hand, the plaintiffs got valid title under Ex.A.1 registered
gift settlement deed. The recitals in the registered gift settlement deed are the
donor executed a registered gift settlement deed by giving vested remainder
rights to the plaintiffs 1 and 2 and absolute rights to the 3rd plaintiff who is no
other the son of plaintiffs 1 and 2. In the case on hand, the donor is not alive
and she died and the registered gift settlement deed is accepted by the donee
and the title of the plaintiffs is based on Ex.A.1 registered gift settlement deed,
but not by virtue of Will.
31. In a case of Subhas Chandra Das Mushib vs. Gnaga
Prosad Das Mushib and others9, the 3 judges bench of Apex Court
held as follows:
It must also be noted that merely because the parties were nearly
related to each other no presumption of undue influence can arise.
In the aforesaid decision, the 3 judges Bench of Apex Court further
held as follows:
There is no presumption of undue influence in the case of a gift to a son,
grand son, or son-in-law, although made during the donor's illness and a
few days before his death.
In the case on hand, the execution of registered gift settlement
deed is admitted by donor, but the contention of the 1st defendant is that
9
AIR 1967 Supreme Court 878
the same is obtained fraudulently by the donee. Admittedly, in the case
on hand, the donor has no children, she died issueless and she
executed a registered gift settlement deed, dated 20.07.1979 in favour of
the plaintiffs by giving vested remainder rights to the plaintiffs 1 and 2
and later absolute rights to 3rd plaintiff by retaining life interest with the
donor and the donor is alive till 30.10.1994. During the lifetime of donor,
she has not issued any registered notice to the donee by saying that the
said gift settlement deed is obtained fraudulently and also by playing
fraud. The donor did not challenge the registered gift settlement deed
before the Court of law. She simply executed a cancellation deed, dated
21.01.1981 after a lapse of 1 ½ years in the Sub-Registrar Office without
giving any notice or any paper publication to the donee. The validity of
the cancellation of gift settlement deed will be discussed later in the
present case.
32. In a case of Kesava Kurup Raghava Kurup vs. Thomas
Idicula and another10 it was held as follows:
"A gift to be valid must have been accepted by the donee "during the life
time of the donor and while he is still capable of giving". Under
Mithakshara the acceptance of a gift, particularly if it concerned
immovable property, should be express."
As stated supra, in the case on hand, the donor is not having any
children and from out of love and affection she executed a registered gift
settlement deed in favour of the plaintiffs and the donor died issueless,
the same is not all at in dispute. It is well settled that when read with
Section 122 of the Transfer of Property Act, a gift may be made by a
registered instrument duly signed by or on behalf of the donor and
10
AIR 1969 Kerala 21
attested by at-least 2 witnesses is valid, if the same is accepted by or on
behalf of donee. That such acceptance must be given during the lifetime
of the donor and while she is still capable of evident from a plain reading
of Section 122 of the Act. A conjoint reading of Sections 122 and 123 of
the Act makes it abundantly clear that transfer of possession of the
property covered by the registered gift settlement deed duly signed by
the donor and attested as required is not a sine qua non for the making
of a valid gift under the provisions of Transfer of Proper Act.
33. In a case of K.Bala Krishnan vs. K.Kamalam 11 , the Apex
Court held that;
"The gift having been duly accepted in law and thus being complete, it
was irrevocable under Section 126 of Transfer of Property Act. Section
126 prohibits revocation of validly executed gift except in the
circumstances mentioned therein. It was not competent for the donor to
have cancelled the gift and executed a will in relation to the gifted
property."
In the case on hand, the donor out of free will and love and
affection executed a registered gift settlement deed in favour of the
plaintiffs by retaining life interest with her and giving vested remainder
rights to the plaintiffs which is duly proved through P.W.2 to P.W.4. The
thumb mark on Ex.A.1 is not at all disputed by the 1st defendant. The
contention of the appellant is that by playing fraud, the plaintiffs obtained
registered gift settlement deed. As stated supra, the alleged fraud is not
at all proved by the 1st defendant. The above gift deed is duly accepted
by the donee. For the aforesaid reasons, Ex.A.1 registered gift
settlement deed is validly accepted by the donor and accepted by the
donee.
11
AIR 2004 SC 1257
34. In a case of Yanala Malleshwari vs. Smt Ananthula
Sayamma12, it was held as follows:
"In this regard, it needs to be noticed that a gift deed, on the one hand,
and a sale deed, on the other, stand on different footing. Under Section
126 of the Transfer of Property Act, it is competent for a Donor, to
suspend or revoke a gift deed, executed by him, whereas similar facility
is not available, in case of a sale deed. Gift is a transfer, without any
monetary consideration, whereas under a sale transaction, mutual rights
and obligations exist, as between a vendor and vendee. Section 31 of
the Specific Relief Act prescribes the manner, in which a document can
be cancelled. What is required to be done through the decree of a Court,
cannot be permitted to be undertaken by a party by himself". And finally
observed- "This Court is of the view that, if sale deeds, under which
valuable properties are conveyed, are permitted to be cancelled
unilaterally, it would not only result in several complications,
unnecessary litigations, and hardship to the affected parties, but also
bring about situations, having far-reaching implications and unrest in the
society. These aspects do not appear to have been brought to the notice
of the Division Bench, which disposed of W.A. No.972 of 2004. It is felt
that the matter needs to be examined either by another Division Bench,
or, if necessary, by a Full Bench".
The above Full Bench judgment of this Court is challenged before
the Apex Court and the Apex Court overruled the above judgment. The
Apex Court in the case of Thota Ganga Laxmi and another vs.
Government of Andhra Pradesh and others13 held as follows:
In this connection, we may also refer to Rule 26(i)(k) relating to Andhra
Pradesh under Section 69 of the Registration Act, which states:
"The registering officer shall ensure at the time of
preparation for registration of cancellation deeds of
12
AIR 2007 AP 57 (F.B)
13
2012 (1) ALD 90 (SC)
previously registered deed of conveyances on sale before
him that such cancellation deeds are executed by all the
executant and claimant parties to the previously registered
conveyance on sale and that such cancellation deed is
accompanied by a declaration showing natural consent or
orders of a competent Civil or High Court or State or Central
Government annulling the transaction contained in the
previously registered deed of conveyance on sale:
Provided that the registering officer shall dispense with the
execution of cancellation deed by executant and claimant
parties to the previously registered deeds of conveyances on
sale before him if the cancellation deed is executed by a
Civil Judge or a Government Officer competent to execute
Government orders declaring the properties contained in the
previously registered conveyance on sale to be Government
or Assigned or Endowment lands or properties not
registerable by any provision of law".
A reading of the above rule also supports the observations we have
made above. It is only when a sale deed is cancelled by a competent
Court that the cancellation deed can be registered and that too after
notice to the concerned parties. In this case, neither is there any
declaration by a competent court nor was there any notice to the parties.
Hence, this Rule also makes it clear that both the cancellation deed as
well as registration thereof were wholly void and non est and
meaningless transactions.
The ratio laid down in the above decision of Apex Court is squarely
applicable to the facts of the present case. Therefore, the law is very
clear that when the donor executed a gift settlement deed duly
registered before Sub-Registrar, the same is accepted by the donee. If
the donor wants to cancel the said gift settlement deed, he has to
approach the civil Court for cancellation by questioning the alleged fraud
played by the plaintiffs but not by way of execution of cancellation deed
before the Sub-Registrar. In the case on hand, admittedly, no notice was
issued to the plaintiffs i.e., donees before execution of cancellation deed,
after lapse of 1 ½ years from the date of registered gift settlement deed,
the cancellation deed was executed. Therefore, the said cancellation
deed is void and non est.
35. In a case of Satya Pal Anand vs. State of Madhya
Pradesh14, the Apex Court held as follows:
"Thus, in the absence of any power conferred on the Registering
Authority to adjudicate any aspect, it is difficult to agree with the view in
Thota Ganga Laxmi (supra) that the Registering Authority cannot
unilaterally register a deed of cancellation. In my considered opinion, in
the absence of any rule like the one that is prevalent in the State of
Andhra Pradesh, which commands the Registering Officer to ensure at
the time of preparation for registration of cancellation deeds of
previously registered deed of conveyances on sale before him that such
cancellation deeds are executed by all the executant and claimant
parties to the previously registered conveyance on sale and that such
cancellation deed is accompanied by declaration showing natural
consent, the Registering Authority or the superior authority cannot
refuse to register a deed of cancellation solely on the ground that the
claimant parties to the previously registered conveyance are not present
or they have not given consent."
By referring the above case, the Full Bench of the Apex Court in a
case of Veena Singh (deceased) through L.Rs vs. District Registrar
and another15 held as follows:
"A document, once it is registered, can be cancelled or set aside only by
a civil court of competent jurisdiction. Upon the registration of the sale
deed on 16 April 2012, the registration authorities are rendered
infructuous and would have no power to cancel registration even on the
ground of fraud or other irregularities;
14
(2015)15 SCC 263
15
(2022)7 SCC 1
The Apex Court further held as follows:
.... this Court also observed that the role of the Sub-Registrar stood
discharged once the document had been registered, since there is no
express provision in the Registration Act which empowers him to recall
the registration. This Court held:
"34. The role of the Sub-Registrar (Registration) stands discharged,
once the document is registered (see Raja Mohammad Amir
Ahmad Khan [State of UP. v. Raja Mohammad Amir Ahmad
Khan, AIR 1961 SC 787])...There is no express provision in the
1908 Act which empowers the Registrar to recall such
registration. The fact whether the document was properly
presented for registration cannot be reopened by the Registrar
after its registration. The power to cancel the registration is a
substantive matter. In absence of any express provision in that
behalf, it is not open to assume that the Sub-Registrar
(Registration) would be competent to cancel the registration of the
documents in question. Similarly, the power of the Inspector
General is limited to do superintendence of Registration Offices
and make rules in that behalf. Even the Inspector General has no
power to cancel the registration of any document which has
already been registered."
This Court observed that Section 35 of the Registration Act does not
confer a quasi-judicial power on the registering officer, who is not
expected to evaluate title or irregularity in the document. As such, the
validity of the registered deed of extinguishment could be placed in issue
only before a court of competent jurisdiction. On the above facts, this
Court upheld the dismissal of the writ petition by the High Court, with an
opportunity being granted to the appellant to pursue a remedy in
accordance with law. Therefore, the decision in Satya Pal Anand (supra)
has held that once a deed of extinguishment had been registered by the
registering officer, the registering officer had no power to recall it nor
was it amenable to the supervisory control of the Inspector General of
Registration under Section 69 of the Registration Act.
The ratio laid down in the aforesaid case law squarely applicable
to the present facts of the case. The law is very clear that the Sub-
Registrar has no authority to entertain the cancellation deed for
cancelling the registered gift settlement deed. Therefore, the registered
cancellation deed said to have been executed by donor to cancel the
earlier registered gift settlement deed Ex.A1 is null and void and
registration authority has no power to cancel the earlier registered gift
settlement deed.
36. It is also well settled that the gift once completed cannot be
cancelled/revoked, subject to Section 126 of Transfer of Property Act,
which provides for the circumstances under which it can be cancelled.
The donor and donee must have agreed that it shall be revocable only or
in part on the happening of any subsequent event. It cannot be revoked
unilaterally at the will of the donor. In the case on hand, admittedly, no
notice was issued to the donee by the donor before execution of the said
cancellation deed that too after 1 ½ years of execution of registered gift
settlement deed, the donor executed a cancellation deed before the
Sub-Registrar. The donor has not approached the competent civil Court
to challenge the said gift settlement deed by saying that the donee
obtained the said document by playing fraud. The Sub-Registrar
entertained the said document without any authority and cancelled the
said gift settlement deed. Therefore, both the cancellation deed as well
as the registration thereof were wholly void and non est and
meaningless transactions. The transfer of possession of immovable
property in a registered gift deed is not sine qua non for making a valid
gift, even prior to Rule 26 (i) (k) of A.P. Registration Rules, 1960, the
registered gift deed could not be revoked or cancelled contrary to
Section 126 of Transfer of Property Act. Instead of approaching the civil
Court, the donor simply approached the Sub-Registrar that too after 1 ½
years of execution of gift settlement deed for cancellation of registered
gift settlement deed without giving any notice to the donee i.e., plaintiffs,
therefore, the said cancellation deed is nothing but a void and non est
and meaningless transaction.
37. For the aforesaid reasons, I am of the considered view that the
alleged registered cancellation deed said to have been executed by
Bhupati Nagaratnamma is a void document and it is not valid.
38. In view of the aforesaid reasons, Ex.A.1 registered settlement
deed is a valid document and the unilateral revocation deed executed
before the Sub-Registrar by the donor under original of Ex.A.9
cancellation deed is non est and void.
39. The appellant relied on Ex.B.3 unregistered Will. To prove
Ex.B.3, the 1st defendant himself examined as D.W.1 and his brother
examined as D.W.2. Admittedly, the chief affidavit of D.W.2 was
eschewed and he did not appear for cross examination and later the 1st
defendant examined the scribe and attestors of Ex.B.3 as D.W.3 and
D.W.4. The 1st defendant admitted in his evidence in cross examination
that the signatures in Ex.B.3 are deferred and D.W.3 is also alleged to
be the scribe of Ex.B.3 Will and D.W.4 is said to be attestor to Ex.B.3.
D.W.4 stated that he was present at the time of execution of second Will
Ex.B.3, but in his cross examination he categorically admits he is not an
attestor to Ex.B3 and he also admits that he is not an identifying witness
in Ex.B.3. He further admits there is no documentary proof to show his
presence along with Nagaratnamma at the time of Ex.B.3. The
profounder of the Will i.e., appellant failed to prove Ex.B.3 Will by
examining one or more attestors. As stated supra, though the 1st
defendant relied on the evidence of D.W.4, he admits that he is not an
attestor of Ex.B.3 and he is not an identifying witness. Therefore, Ex.B.3
Will is not at all proved. Furthermore, the alleged Ex.B.3 goes to show
that Nagaratnamma executed Ex.B.3 on 10.07.1992 bequeathing the
suit schedule property in favour of 1st defendant and prior to that she
alleged to have been executed Ex.B.2 and Ex.B.2 was cancelled on the
ground that her husband surname was wrongly mentioned and she
executed Ex.B.3. The plaintiffs disputed the alleged Will but the 1st
defendant who is the profounder of the Will failed to discharge his
burden to prove Ex.B.3. Though he relied on the evidence of D.W.3 and
D.W.4, their evidence is no way useful to prove the genuineness of
Ex.B.3 Will. Admittedly, prior to Ex.B.3 Nagaratnamma executed a
registered gift settlement deed a way back in the year 1979 which was
duly accepted by the donee and the said registered gift settlement deed
is valid. As stated supra, Ex.A.9 cancellation deed is a void document,
since Nagaratnamma transferred the plaint schedule property in favour
of the plaintiffs under Ex.A.1 registered gift settlement deed a way back
in the year 1979. Therefore, Nagaratnamma has no right to execute
Ex.B.3 Will in respect of the plaint schedule property which was
mentioned in Ex.A.1 registered gift settlement deed.
40. The learned counsel for the appellant placed reliance in the decision
of Union Bank of India and others vs. Vasavi Cooperative Housing
Society Limited and others16 wherein the Apex Court held as follows:
"In a suit for declaration of title, the burden always lies on the plaintiff to
make out and establish a clear case for granting such a declaration and
16
(2014) 2 Supreme Court Cases 269
the weakness, if any, of the case set up by the defendants would not be
a ground to grant relief to the plaintiff. The legal position, therefore, is
clear that the plaintiff in a suit for declaration of title and possession
could succeed only on the strength of its own title and that could be done
only by adducing sufficient evidence to discharge the onus on it,
irrespective of the question whether the defendants have proved their
case or not. Even if the title setup by the defendants is found against
them, in the absence of establishment of the plaintiff‟s own title, the
plaintiff must be non-suited."
Admittedly, in the case on hand, the plaintiffs are having valid title under
Ex.A.1 registered gift settlement deed and original of Ex.A.9 is a void
document. As stated supra, the appellant failed to prove Ex.B.3 Will as per the
provisions under Sections 68 and 69 of the Indian Evidence Act. Ex.B.3 Will is
not proved in accordance with law. As stated supra, Nagaratnamma has no
right to cancel Ex.A.1 registered gift settlement deed unilaterally by executing
a cancellation deed by cancelling Ex.A.1 registered gift settlement deed.
Therefore, the plaintiffs are having valid title in the plaint schedule property
and the plaintiffs are also entitled for recovery of possession of the suit
schedule property.
41. For the aforesaid reasons, the decree and judgment passed by IV
Additional District Judge, East Godavari, Kakinda in A.S.No.172 of 2007 is
perfectly sustainable under law and it requires no interference, resultantly, the
appeal is liable to be dismissed.
42. In the result, the second appeal is dismissed, confirming the decree
and judgment, dated 24.11.2010 passed in A.S.No.172 of 2007 by the learned
IV Additional District Judge, East Godavari, Kakinda. Considering the
circumstances of the case, I order each party do bear their own costs in the
appeal.
As a sequel, miscellaneous petitions, if any, pending in the Appeal shall
stand closed.
__________________________
V. GOPALA KRISHNA RAO, J.
DT. 11.11.2024. PGR HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO Second Appeal No.165 of 2011 Dt.11.11.2024. (PGR)