Madras High Court
Marius Louis Peria vs Santo Rane Charles on 30 April, 1987
Equivalent citations: (1988)1MLJ360
JUDGMENT Sengottuvelan, J.
1. The defendant in the suit O.S. 677 of 1976 on the file of the Principal District Munsif, Pondicherry has filed this appeal challenging the legality and correctness of the judgment of the Second Additional District Judge, Pondicherry in A.S. 51 of 1982.
2. The facts of the case are as follows: The respondent herein as plaintiff filed the suit O.S. 677 of 1976 on the file of the District Munsif, Pondicherry, for cancellation of the settlement deed Ex. A-1 in view of the non-performance of the condition imposed in the said settlement deed and for recovery of possession. Originally, the suit was dismissed on the ground that it was barred by Res Judicata in view of the dismissal of the earlier suit O.S. 284 of 1972. Thereupon an appeal was preferred in the District Court in A.S. 4 of 1978 and the First Additional District Judge, Pondicherry, remanded the matter to the lower Court for disposal on other issues. C.M.A. 495 of 1978 was preferred to the High Court and the same was dismissed confirming the order of the first Additional District Judge, Pondicherry. The Principal District Munsif considered the matter on merits and decreed the suit. As against the said decree and judgment, the appellant defendant filed A.S. 51 of 1982 and the said appeal was dismissed. This second appeal is filed challenging the legality and correctness of the judgment of the second Additional District Judge, in A.S. 51 of 1982.
3. The point for determination in the second appeal is whether the settlement deed Ex. A-1 is liable to be cancelled on account of the non-performance of the condition incorporated in the settlement deed.
4. The respondent herein executed the settlement deed Ex. A-1 dated 27.7.1971 with the following recitals.
The respondent herein filed the suit for cancellation of the settlement deed on the ground that the appellant failed to maintain him as per the conditions in the settlement deed and as such he is entitled to pray for cancellation of the settlement deed in view of the provisions contained in Ex. A-1. Both the Courts below on the question of fact found that the appellant failed to maintain the respondent and the said finding cannot be challenged in the second appeal.
5. The only contention of Mr. T.R. Rajagopalan, learned advocate for the appellant, is that the term of the settlement deed imposing a condition that the appellant should maintain the respondent will amount to only a pious wish on the part of the settlor, the respondent herein, and that the failure to comply with the same will not entitle the respondent to have the settlement deed cancelled. Section 126 of the Transfer of Property Act deals with the suspension or revocation of a gift and the same is as follows:
The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part; at the mere will of the door, is void wholly or in part, as the case may be;
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded;
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.
According to the above section, a gift can be revoked by agreement between the donor and the donee on the happening of any specified event; but the same cannot be revoked by the mere will of the donor. Bearing in mind the above section we have to consider whether the recital in Ex. A-1 will empower the respondent to have the settlement deed cancelled in view of the fact that the appellant failed to maintain the respondent. Learned Counsel for the appellant, Mr. T.R. Rajagopalan, contends that what is contained in the settlement deed Ex. A-1 is only a pious wish of the donor and the same will not clothe the donor with any right to cancel the settlement deed fur the failure to maintain the respondent. He relied upon the case reported in Jayalakshmi v. Kaliaperumal (1985)1 M.L.J. 202 : 98 L.W. 167, wherein a single Judge of this Court held that a deed of gift cannot be cancelled in view of the provisions contained in Section 126 of the Transfer of Property Act. The exact recitals in the gift deed are not extracted in the said judgment. But it is specifically mentioned in the said case that in the gift deed no condition is stipulated. When no condition regarding cancellation is found in the gift deed, then the same cannot be cancelled since it will not amount to a cancellation on the happening of any specified event, but cancellation by the will of the donor. In the present case, in Ex. A-1, there is a specific recital that if the appellant fails to maintain the respondent, then the respondent has a right to cancel the document. Hence the facts of the present case are different from that of the case in Jayalakshmi v. Kalaiperumal (1985)1 M.L.J. 202; 98 L.W. 167, and the principle laid down therein cannot be applied to the facts of this case. The next case relied on by Mr. T.R. Rajagopalan is the one in Tila Bewa v. Mana Bewa , where a single Judge of the Orissa High Court held that a gift subject to the condition that the donee should maintain the donor cannot be revoked under Section 126 for failure of the donee to maintain the donor, firstly, for the reason that there is no agreement between the parties that the gift could be either suspended or revoked, and secondly, this should not depend on the will of the donor; again, the failure of the donee to maintain the donor as undertaken by her in the document is not a contingency which should defect the gift. On a perusal of the facts of that case, it is seen that in the gift deed there was no contingency which should defeat the gift. But in this case, the gift deed contains an express contingency that in case of failure to maintain, the gift is liable to be cancelled. Hence, the facts in the case in Tila Bewa v. Mana Bewa, are different and the principle laid down therein is not applicable to the facts of this case. The case reported in Venkatasubbiah v. Subbamma A.I.R. 1956 A.P. 195 : 1956 An.W.R. 632, is also relied on by the appellant. In that case, ft has been held that a gift subject to the condition that the donee should maintain the donor cannot be revoked under Section 126 of the Transfer of Property Act, for failure of the donee to maintain the donor firstly for the reason that there is no agreement between the parties that the gift should be either suspended or revoked; and secondly this should not depend on the will of the donor. It has been held that the failure of the donee to maintain the donor as undertaken by him in the document is not a contingency which could defeat the gift. All that could be said is that the default of the donee in that behalf amounts to want of consideration. The Andhra High Court held that it is not open to a settlor to revoke a settlement at his will and pleasure and he has to get it set aside in a Court of law by putting forward such pleas relating to the invalidity of gift deed. From the facts of the case, it is seen that there is no contingency mentioned in the document which could defeat the gift itself. Under this circumstance, the Court held that the donor cannot cancel the document, in view of the absence of such a contingency, but it is open to the donor to file a suit to set aside the gift deed. But, in the present case, in view of the fact that there is a contingency mentioned in Ex. A-1, the donor is entitled to file a suit for setting aside the deed of gift on the happening of the contingency. In Smt. Gaurja v. Tarachand , the donor alleging that she had gifted the suit land on the condition that the donee would maintain her during her lifetime sought the cancellation of the gift on the ground that the donee had ceased to maintain her. The Court held that the donee had ceased to maintain her. The Court held that the gift was an unconditional gift. On a perusal of the facts of that case, it is seen that there was no express provision for cancellation or suspension of the gift. But in the present case, we have such a recital in Ex. A-1, and hence, the facts of that case will not apply to the present case. Reliance was also placed on the decision reported in Gangadhara Iyer v. K.S. Iyer A.I.R. 1952 Trav. Cochin 47, where it has been held that when once the gift becomes complete it cannot be revoked unless there is an express reservation in that behalf in the deed of gift itself. This case will again not apply to the present case since there is no provision for the revocation in the gift deed.
6. On the other hand, in the following cases it has been held that where there is a contingency agreed upon at the time of the acceptance of the gift, then for breach of the same, the donor is at liberty to cancel the gift deed. In the case reported in Ankamma v. Narasayya (1946)2 M.L.J. 551 : 59 L.W. 663 : A.I.R. 1947 Mad. 127, it has been held that in the case of a gift, where a donor has the power of revocation and validly revokes the gift, he becomes the absolute owner of the property intended to be gifted away. In the case reported in Sarba Mohan v. Manmohan A.I.R. 1933 Cal. 488, it has been held that the gift itself is not sufficient, but the acceptance of the onerous condition is also necessary. In the present case, there is a specific condition which forms part and parcel of Ex. A-1, which had not been complied with. In the case in Jagatsingh v. Dungar Singh , there was a gift and a subsequent agreement on the same day agreeing that the donee would maintain the donor. It was held that the deed of gift and the agreement formed part of the same transaction and that the transaction read as a whole fell within the purview of Sections 31 and 126 of the Transfer of Property Act. The donor was therefore entitled to revoke the deed of gift on the donee's failure to maintain him. In the case reported in Subramania v. Kanniammal A.I.R. 1953 T.C. 115, it has been held that in order to attract Section 126 of the Transfer of Property Act, the conditions to be satisfied are: (1) that the donor and the donee must have agreed that the gift shall be suspended or revoked on the happening of a specified event, (2) such event must be one which does not depend on the will of the donor, (3) that the donor and the donee must have agreed to the condition at the time of accepting the gift and (4) that the condition should not be illegal or immoral and should not be repugnant to the estate created under the gift. In the present case, the incorporation of such recital in Ex. A-1 amounts to an agreement between the donor and the donee that in case of failure of the donee to maintain the donor the gift deed is liable to revoked. In the case reported in Mt. Purnia v. Manindranath A.I.R. 1968 Assam and Nagaland 50, there was a gift deed and on the same day the donee executed a deed and accepted the gift deed lying down the condition that he will maintain the donor. It was held that both the deeds taken together superadded a condition to gift and the condition formed an integral part of transaction and could not be divorced from gift. Following the principle laid down in the said decisions, I have no hesitation in coming to the conclusion that the condition mentioned in Ex. A-1, that the appellant is bound to maintain the respondent and in the event of failure to comply with such condition by the appellant to maintain the respondent, the settlement deed is liable to be cancelled is a contingency provided in the agreement and agreed to between both the parties even at the time of the acceptance of the gift deed. The said condition cannot be divorced from the other terms of the gift. Accordingly the conclusion of both the Courts below is correct and there are no merits in the second appeal and the same is dismissed. However, there will be no order as to costs.