Madras High Court
Thiru N.Raghuraman And Tmt. R.Jayasree vs V.Ezumalai Kounder (1996(Ii) C.T.C. ... on 21 October, 2011
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2011 CORAM THE HON'BLE MR. JUSTICE VINOD K.SHARMA O.P.No.521 of 2011 ORDER
Thiru N.Raghuraman and Tmt. R.Jayasree, the father and mother of R.Narasimhan @ R.Sreeram Narasimhan, minor have filed this petition with the prayer that the petitioner No.1 N.Raghuraman be declared as guardian for the person and property of the minor i.e.R.Narasimhan @ R.Sreeram Narasimhan and to permit him either by himself or through lawfully constituted Power Agent execute and register one or more sale deeds as confirming parties along with Mr.V.S.Subramaniyan as the vendor, in respect of the following property:
SL. No. Description of the Property Approx. Value Persons in Possession of the Property 1 Property situated at Plot No.102, V.G.P. Veerabadhra Nagar, VGP Avenue Part I and comprised in survey Nos.4/1 to 4/4, Vengaivasal Village, Tambaram Taluk, Kancheepuram Dist. Measuring an extent of 2400 Sq.ft.
Rs.26,40,000/-
V.S.Subramaniyan 20/3, Veeramamunivar street, Maraimalai Nagar, Chengalpet 603 209.
2 It is pleaded that no notice of this petition is necessary as the petitioners are only close relatives and legal heirs of the minor i.e. the father and mother. This averment on the face of it wrong as the petitioners are the natural guardian of the minor and not the legal heirs of the minor.
3 It is next pleaded that R.Narasimhan is aged 14 years having been born on 11.12.1996 and is residing with the petitioners being their son.
4 Thiru V.S.Krishnan who was the brother of V.S.Sivaramakrishnan, grand father of the minor, was the owner of the property bearing Plot No.102, V.G.P. Veerabadhra Nagar, VGP Avenue Part I and comprised in survey Nos.4/1 to 4/4, Vengaivasal Village, Tambaram Taluk, Kancheepuram Dist. measuring 2400 Sq.ft. as detailed above.
5 Thiru V.S.Krishnan executed a registered gift deed in favour of the minor vide Deed of Settlement No.223/1998 dated 23.01.1998 registered in the Sub Registrar Office, Tambaram. Thiru. V.S.Sivaramakrishnan is father of the second petitioner and father in law of the first petitioner and the minor is grand-son.
6 It is submitted that Thiru V.S.Krishnan unilaterally cancelled the above said settlement deed dated 23.01.1998 by way of registered deed of cancellation registered with the Sub Registrar, Tambaram vide No.7150/2006 dated 14.08.2006. It is questionable as to whether Thiru V.S.Krishnan could unilaterally cancel the gift deed executed in favour of the minor and the effect thereof, set for the present, this Court is not concerned with this question in this petition.
7 It is submitted by the petitioners, that in pursuance to the deed of cancellation, Thiru V.S.Krishnan acquired absolute title and ownership of the said proeprty. He therefore executed a registered Will No.112/ 2006 dated 14.08.2006 bequeathing the property in favour of Thiru V.S.Subramaniyan (son of his brother Thiru V.S.Sivaramakrishnan).
8 Thiru V.S.Krishnan died on 14.11.2006, and his wife Lakshmi Ammal also died on 14.04.2007. Thiru V.S.Subramaniyan acquired absolute title in the said property under the Will and patta No.3193 dated 09.01.2008 was issued in his favour by the Zonal Deputy Tahsildar, Tambaram.
9 Thiru V.S.Subramaniyan registered a Power of Attorney No.1918/2010 dated 20.08.2010 appointing and nominating Mrs.M.K.Chandra as Power of Attorney to deal with the inherited property.
10 Thiru V.S.Subramaniyan also entered into an agreement of sale dated 20.08.2010 with Mrs.M.K.Chandra for the transfer of the said property in her favour or in favour of her nominee for a sum of Rs.50,00,000/- (Rupees fifty lakhs only), and received a sum of Rs.5,00,000/- (Rupees five lakhs only) towards advance. The balance payment was agreed to be paid within nine months of execution of sale deed.
11 Thiru V.S.Subramaniyan along with Thiru M.K.Chandra obtained building plan approval No.2163/2010 dated 18.11.2010 from the Commissioner, St. Thomas Mount, Panchayat Union for construction of five flats in the property.
12 It is pleaded case of the petitioners, that when steps were taken for the sale of undivided share of the property, the purchasers, their bankers, and financial institutions lending money to the purchasers of the flats insisted that the minor R.Narasimhan @ Sreeram Narasimhan be included as a confirming party, since cancellation of settlement in his favour was unilateral, thus not valid in law, as Thiru V.S.Krishnan had not retain the right of cancellation of settlement deed. It may be observed here that the gift deed is irrevocable, and donor cannot retain the right of cancellation of a valid gift deed.
13 On the pleadings referred to above, the prayer made is for permission of this Court to execute the sale deeds of the undivided shares in respect of the property, in favour of the nominees of M/s.V.S.Subramaniyan and M.K.Chandra.
14 It is also the submission of the petitioners, that the minor is not having title in the immovable property set out in schedule mentioned hereinabove, and is to be added merely as confirming party, through natural father /Guardian in the sale deeds to be executed in favour of purchasers of the undivided shares of land.
15 It is further the case of the petitioners, that the petitioners are having income of Rs.20,000/- per month and are taking care of the minor, and that according to Hindu Law, the petitioners being the parents of the minor are entitled to be declared as Guardians of the minor.
16 In support of the petition, Thiru N.Raghuraman was examined as P.W.1 and he deposed on his behalf as also on behalf of the petitioner No.2. The statement of the petitioner No.1 reads as under:
"SOLEMNLY AFFIRMED:
I am the 1st petitioner herein. The 2nd petitioner is my wife. I am deposing on behalf of my wife also. Minor Sreeram Narasimhan is my son. I have filed this petition to declare me as the guardian for the person and property of my minor son R.Sreeram Narasimhan. My minor son R.Sreeram Narasimhan was born on 11.12.1996. I have not submitted the original Birth Certificate. I am in a position to produce the original Birth Certificate before the Hon'ble Court. The minor's grandfather's brother Mr.V.S.Krishnan executed a settlement deed in respect of the property situated at Plot No.102, VGP veerabadhra Nagar, VGP Avenue Part I, Survey No.4/I to 4/4, 176, Vengaivasal Village, Saidapet Taluk, Chengalput District on 23.01.1998 and the same was cancelled on 14.08.2006. Thereafter, the said V.S.Krishnan executed a registered Will on 14.08.2006. By that Will, he bequeathed the said property in favour of Mr.V.S.Subramaniam, his brother's son. Mr.V.S.Krishnan died on 14.11.2006. His wife V.S.Lakshmi died subsequently on 14.04.2007. V.S.Subramaniam obtained the patta in his name with regard to the said property as a legatee under the Will executed by V.S.Krishnan. After becoming the owner of the said property, he executed a Power of Attorney dated 20.08.2010 in favour of M.K.Chandra. He also executed an agreement of sale in favour of M.K.Chandra on the same day. When Mr.V.S.Subramaniam through M.K.Chandra applied for building plan permission and sell the property, everybody insisted on minor being included as confirming party. Though, I object, the reasons mentioned in the cancellation of the settlement, I accept the cancellation. I do not intend to question the cancellation deed. Since, I have no interest in the property, I intended to include the minor as a confirming party with the permission of this Court. The minor's interest no way compromise. Nor any ownership rights are being divested by impleading him as a confirming party. My son's name has been changed to R.Narasimhan as R.Sreeram Narasimhan vide a Gazette notification of Government of Tamil Nadu dated 07.07.2010. Ex.P1 is the said Gazette notification. Ex.P2 is the consent affidavit of the 2nd petitioner expressing her no objection in declaring me as the guardian for the person and property of the minor R.Sreeram Narasimhan. Therefore, I pray this Court that to grant permission as prayed for."
17 The petitioners neither placed on record or proved the gift deed, or the cancellation deed. The Will said to have been executed in favour of V.S.Subramaniam, who is brother of the second petitioner was also not proved. Only documentary evidence lead was the gazette notification showing change of name of the minor, and the consent affidavit of the petitioner No.2.
18 The learned counsel for the petitioners vehamently contended that the petitioners are entitled to be appointed as guardian of the minor and his property, in view of the unrebutted pleadings are the evidence led in by the petitioner.
19 In support of his contention that the gift deed in favour of the minor was illegal, the learned counsel for the petitioners placed reliance on the judgment of this Court in the case of R.Kumarasamy Kounder vs V.Ezumalai Kounder (1996(II) C.T.C. 150) wherein this Court was pleased to lay down that the gift requires acceptance under Sec.122 of Transfer of Property Act.
20 In this very judgment, this Court was pleased to lay down, that gift once accepted by donee, cannot be revoked under any circumstances.
21 The learned counsel for the petitioners also placed reliance on the judgment of this court in the case of R.Jamuna Bai vs M.A.Anusuya and 3 others (2001(2) C.T.C. 277) wherein this Court was pleased to lay down that gift is not valid till, it is accepted by the donee. The finding of this Court on which reliance was placed reads as under:
"13 The next question is assuming without admitting it was a settlement deed, whether there was any acceptance on that date. The legal provisions regarding the gift is very clear. Section 122 of the Transfer of Property Act reads as follows:
"Gift defined... "Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor to another, called the donee, and accepted by or on behalf of the donee."
Acceptance when to be made... Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void."
Acceptance when to be made... Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void."
Unless there is acceptance there can be no gift. In the judgment relied on by the learned counsel for the appellant in R.Kumarasamy Gounder v. V.Ezhumalai Kounder, 1996(2) C.T.C. 150, there is a reference to the decision reported in Venkatasubbamna v. Narayanswami, AIR 1954 Mad. 250.
"If there is acceptance of the gift after execution of the deed, even though the registration was postponed to a letter date, the gift would become irrevocable. The fact that the deed was executed and registered would not make it irrevocable, if in fact there was no acceptance by the donee, either before registration but after execution or even after registration. What the law requires is acceptance of the gift after its execution though the deed may not be registered. Anterior negotiations or talks about the transfer of property by way of gift would not amount to acceptance of the transfer of the property by gift. Acceptance may be implied but the facts relied on to draw an inferenced of acceptance must be acts of positive conduct on the part of the donee or persons acting on his behalf and not merely passive acquiescence, such as standing by when the deed was executed or was registered."
This shows that mere standing bywhen the deed was executed or registered will not be sufficient to prove acceptance. It is true as pointed out by the learned counsel for the appellant that it was extremely probable that Arunachalam was standing beside his father Varadiya Chetty when Ex.A1 was registered. But that alone will not amount to acceptance. The learned counsel for appellant submitted that the title deeds were with the appellant, so this should prove delivery and acceptance. Even regarding the title deeds in the plaint the appellant had averred that Varadaiya Chetty had insisted and prevalied upon the plaintiff to give the documents of title relating to the suit property. From this the learned counsel wanted to draw the conclusion that custody of the title deed would show acceptance. However, in the evidence she has stated that, ",e;j gj;jpu';fs; fjtpyf;fk; 49, nfhtpe;jg;gehaf;fd; tPl;oy; vdJ je;ij itj;jpUe;jhh; vdJ kfd; ,we;j gpwF vjph;thjpaplk; nfl;nld;/ mtw;iw mth; bfhLf;ftpy;iy."
Therefore, even with regard to custody of title deeds the evidence and the pleadings are very unsatisfactory. But it must be remembered that it is Arunachalam who ought to have accepted the settlement deed for the settlement deed to come into effect. On the date of the settlement deed Ajit Kumar's right was still depending upon Arunachalam not having any natural children of his own. If a son or daughter had been born to Arunachalam, then the clause in the settlement in fvour of the Ajit Kumar would have no effect. Therefore, what is crucial in tis case is acceptance by Arunachalam for the gift deed to come into effect. There is not an iota of evidence to show that Arunachalam had accepted the gift. In the absence or pleadings and other evidence, I do not think this Court sitting in second appeal can draw inference merely from the fact that Arunachalam must have stood by at the time of the registration of Ex.-A1 and arrive at the conclusion that the deed was accepted. In fact the trial Court holds as follows;
"No document has been produced on the side of the plaintiff to prove the acceptance of the gift during the life time of the deceased Varadaiya Chetty.
14. In the appeal also the learned Judge had held that there was no document to show that the property had vested in the name of Arunachalam. Both the courts had therefore, held that the intervening interest in favour of Arunachalam had not come into effect."
22 The learned counsel for the petitioners also placed reliance on the judgment of this Court in the case of Balagurusami Pillai (deceased) and others vs Lakshmi Ammal (died) and others (2007(3) C.T.C. 32), wherein this Court was pleased to lay down that acceptance of gift on behalf of minor by the grand aunty was no acceptance in law, when the father and mother of the minor were alive to accept the gift.
23 On consideration, I find no force in this petition. The petitioners for the reasons best known to them, they have not proved or placed on record the gift deed executed in favour of the minor. Therefore, question whether the gift deed was valid or not cannot be adjudicated, nor this question is of any relavance in view of pleaded case.
24 It is not proved that the gift deed executed in favour of the minor was cancelled by way of cancellation deed or the Will executed bequeathing the property in favour of Thiru V.S.Subramaniyan to show as to whether he was/is the absolute owner of the suit property.
25 In the absence of documents, the pleadings cannot be accepted especially the Will as it can only be proved by examining the attesting witness, who have to prove that the Will has been executed as per law.
26 This petition also deserves to be rejected also for the reason the petition as framed is not competent. The petitioners being the natural guardian are not entitled to seek guardianship by moving a petition to appoint petitioners as guardian.
27 The object of the petition seems to be for disposal of the property which is claimed to be not belonging to the minor. Whether the property belongs to the minor or not in either of the case, this petition cannot be accepted, as it is not shown that the transfer is in favour of the minor. In case the minor is not the owner of the property, he cannot be made as party to the disposal of the property. The petition is not in the interest of the minor @ rather it is against the interest of the minor.
28 The petitioners being the natural guardian, have to act for the welfare of the minor and not challenged the gift deed executed in favour of the minor. The petition cannot be said to be in the interest of the minor. Therefore, the petition is not maintainable in law.
29 The judgments relied upon by the learned counsel for the petitioners, have no application to the present case, as the gift deed has not been challenged, to be invalid for want of acceptance, but on the ground of cancellation of gift deed, which is not permissible in law.
30 For the reasons stated, finding no merit, this petition is dismissed.
No cost.
vaan