Andhra Pradesh High Court - Amravati
Bejjam Leelamma vs Devarapalli Masimma Mary Jayanthi on 23 September, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
SECOND APPEAL No.781 OF 2012
Between:
Bejjam Leelamma,
W/o. Sambasiva Rao,
Aged about 46 years,
R/o.Kanteru Village,
Tadikonda Mandal,
Guntur District. .... Appellant/Defendant
Versus
Devarapalli Masimma alias
Mary Jayanthi, W/o.Sambasiva Rao,
Aged about 36 Years, Coolie,
Badepuram Village,
Tadikonda Mandal,
Guntur District. .... Respondent/Plaintiff.
DATE OF JUDGMENT PRONOUNCED : 23.09.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
2. Whether His Lordship wishes to see
The fair copy of the judgment? Yes/No
,,
______________________________
A.V.RAVINDRA BABU, J
2
AVRB,J
SA No.781/2012
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ SECOND APPEAL No.781 OF 2012
% 23.09.2023
# Between:
Bejjam Leelamma,
W/o. Sambasiva Rao,
Aged about 46 years,
R/o.Kanteru Village,
Tadikonda Mandal,
Guntur District. .... Appellant/Defendant
Versus
Devarapalli Masimma alias
Mary Jayanthi, W/o.Sambasiva Rao,
Aged about 36 Years, Coolie,
Badepuram Village,
Tadikonda Mandal,
Guntur District. .... Respondent/Plaintiff.
! Counsel for the Appellant : Sri N. Harinath,
Rep. Ch. Ravindra Babu.
^ Counsel for the Respondent : Sri Mahadeva Kanthrigala,
> Head Note:
? Cases referred:
1. 1999 (6) ALT 626
2. 2007 (4) ALT 184
3. (2004) 1 SCC 581
This Court made the following:
3
AVRB,J
SA No.781/2012
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
SECOND APPEAL No.781 OF 2012
JUDGMENT:
The judgment, dated 20.04.2012, in Appeal Suit No.31 of 2010, on the file of the Court of Senior Civil Judge, Mangalagiri (for short, „the learned Senior Civil Judge‟) is under challenge in this Second Appeal filed by the appellant/defendant.
2. The respondent herein is the plaintiff in Original Suit No.267 of 2006 on the file of the Court of Principal Junior Civil Judge, Mangalagiri (for short, „the learned Principal Junior Civil Judge‟), who filed the Suit with a prayer to declare that she is the absolute owner of the plaint schedule property and for consequential recovery of possession of the plaint schedule property from the defendant. The learned Principal Junior Civil Judge dismissed the Suit of the plaintiff. Felt aggrieved of the same, the un-successful plaintiff, in the above said Suit, filed the aforesaid Appeal before the appellate Court. The learned Senior Civil Judge set-aside the judgment of the learned Principal Junior Civil Judge in O.S. No.267 of 2006 thereby decreed the suit of the plaintiff declaring that the plaintiff is the absolute owner of the plaint schedule property and directed the defendant to deliver possession of the suit schedule property by 30.06.2012. Felt 4 AVRB,J SA No.781/2012 aggrieved of the same, the un-successful respondent/defendant therein approached this Court by way of this Second Appeal.
3. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the trial Court.
4. The case of the plaintiff, in brief, as set out in the plaint averments in O.S. No.267 of 2006, is that the plaint schedule property originally belonged to Bejjam Marthamma alias Ademma, wife of Seshaiah. She executed a gift deed on 13.08.1982 bearing document No.2111/82 in favour of Devarapalli Yesudasu and Devarapalli Mary Bharathi, both being minors, represented by their guardian Turaka Victor Paul. One Nagamma is no other than Bejjam Marthamma‟s sister‟s daughter. Nagamma had two issues by name Devarapalli Thomas and Gnanasundari. Devarapalli Thomas was blessed with three issues namely Devarapalli Yesudasu alias Ramesh, Devarapalli Mary Bharathi and Devarapalli Mary Jayanthi alias Masimma. Out of them, Devarapalli Mary Bharathi died during her minority and Devarapalli Yesudasu alias Ramesh died on 26.01.2000. Therefore, the plaintiff Devarapalli Masimma alias Jayanthi is the person who succeeded to the estate of her brother Devarapalli 5 AVRB,J SA No.781/2012 Yesu Dasu alias Ramesh, who died intestate. The parents of the plaintiff also died.
5. As per the gift deed, dated 13.08.1982, the property devolved upon Devarapalli Yesudasu alias Ramesh and Mary Bharathi is in an extent of Ac.1.33 cents. Subsequently, said Marthamma alias Ademma executed a gift deed on 09.03.1996 bequeathing an extent of Ac.0.66½ cents to Bejjam Sitamma, wife of Sanjeetha Rao without cancelling the earlier gift deed, dated 13.08.1982. The recitals in the gift deed, dated 09.03.1996, reveal that as the property given to Devarapalli Mary Bharathi, as per the document No.2111/82, died during her minority, the said property was reverted back to Bejjam Marthamma alias Ademma, as such she executed half share in the plaint schedule property to Bejjam Sitamma. In fact, even though Devarapalli Mary Bharathi died during her minority, she has got legal heirs to succeed to her estate and they are no other than her sister Mary Jayanthi alias Masimma and brother Devarapalli Yesudasu. The claim of the defendant that she got the property by means of gift deed, dated 13.07.2001, has no bearing. Plaintiff along with her grandmother Nagamma is cultivating the land. Defendant by creating some false, fake and forged documents and with brutal force got the 6 AVRB,J SA No.781/2012 plaint schedule property and dispossessed the plaintiff. The defendant also filed Injunction Suit against Devarapalli Nagamma in O.S. No.454 of 2002 on the file of the Court of Additional Senior Civil Judge, Guntur. The gift deed, dated 13.08.1982, was not cancelled by any competent Court of law as such still it is in force. The predecessors of the defendant obtained pattadar passbook from the MRO office, Tadikonda by misrepresenting the facts. In view of the gift deed, dated 13.08.1982, plaintiff is the absolute owner of the plaint schedule property. As she was dispossessed illegally, she is filing the Suit for declaration of title and for recovery of possession. Hence, the Suit.
6. The defendant got filed a written statement in O.S. No.267 of 2006 and her contention, in brief, is as follows:
(i) It is true that the schedule property originally belonged to Bejjam Marthamma alias Ademma and she executed a settlement deed, dated 13.08.1982, in favour of Devarapalli Yesudasu and Devarapalli Mary Bharathi, minors, being represented by their maternal uncle as guardian. Subsequently, Devarapalli Mary Bharathi died during her minority and Devarapalli Yesudasu also died subsequently. In the meanwhile, the said Marthamma alias Ademma, during her lifetime, in view of 7 AVRB,J SA No.781/2012 earlier death of Mary Bharathi reverted back the schedule property covered under the settlement deed dated 13.08.1982 as it is in-
executable. Moreover, during the lifetime of Bejjam Marthamma either Devarapalli Yesudasu or his persons did not treat her well. Hence, Bejjam Marthamma executed another settlement deed in her lifetime on 09.03.1996 in favour of Bejjam Sitamma by cancelling the earlier settlement deed, dated 13.08.1982, to the extent of Ac.0.66½ cents and delivered the schedule property in favour of defendant. Remaining half property was kept with her for some time. Subsequently, on 17.05.1996, Marathamma executed a Will in favour of Sitamma in respect of other part of landed property to an extent of Ac.0.66½ cents with a condition to keep the rights with her lifetime and, after her death, property has to be bequeathed to Sitamma with absolute rights. In view of Will, dated 17.05.1996, from the date of death of Marthamma, Sitamma became absolute owner in respect of the will schedule property. In respect of the property covered under the settlement deed, dated 09.03.1996, Sitamma had right and possession over the rest of Ac.0.66½ cents with effect from 09.03.1996.
(ii) While so, Sitamma, after death of Marthamma, executed a settlement deed, dated 13.07.2001, in favour of defendant i.e., Bejjam Leelamma, who is no other than her 2nd 8 AVRB,J SA No.781/2012 daughter-in-law, out of love and affection. Since then, defendant is in possession and enjoyment of the schedule property as donee/owner with absolute rights. The Revenue Authorities issued necessary passbooks by identifying the ownership and possession of the defendant. Plaintiff is in no way concerned with the plaint schedule property. She is a resident of Hyderabad with her relatives. Plaintiff had no possession or enjoyment over the schedule property, at any time. The averment that the plaintiff is the absolute owner and that she was dispossessed with brutal force are all false. Defendant got filed O.S. No.454 of 2002 on the file of the Court of Additional Senior Civil Judge, Guntur against Devarapalli Nagamma, who is no other than the maternal grandmother of the plaintiff for permanent injunction and it was decreed on 13.11.2006. Though it was within the knowledge of the plaintiff, she did not contest the matter. Nagamma received the suit notices in O.S. No.454 of 2002 and failed to contest the matter. The present suit is filed to knock away the schedule property. Plaintiff has no right to get any declaration and to recover possession as such the Suit is liable to be dismissed.
7. On the basis of the above pleadings, the learned Principal Junior Civil Judge, settled the following issues for trial: 9
AVRB,J SA No.781/2012
1. Whether the defendant is owner and having possession of the schedule property or not?
2. Whether the plaintiff is entitled for declaration as prayed for or not?
3. Whether the plaintiff is entitled for possession of the plaint schedule property as prayed for or not?
4. To what relief?
8. On behalf of the plaintiff before the trial Court, PW.1 and PW.2 were examined and Exs.A-1 to A-6 were marked. On behalf of the defendant, DWs.1 to DW.4 were examined and Exs.B-1 to B-12 were marked.
9. The learned Principal Junior Civil Judge, after conclusion of trial, on hearing the arguments of both sides and on consideration of the oral and documentary evidence on record, dismissed the Suit of the plaintiff.
10. Felt aggrieved of the same, the un-successful plaintiff filed Appeal Suit No.31 of 2010, wherein the following points came up for consideration:
i) Whether the donees i.e., Devarapalli Yesudas and Devarapalli Mary Bharathi under Ex.A-1 gift deed 10 AVRB,J SA No.781/2012 dated 09.03.1996 (sic) accepted the gift and thereby it had been acted upon during their lifetime?
ii) Whether cancellation of earlier gift made under Ex.A1-gift deed dated 13.08.1982 by the donee Bejjam Marthamma is valid in law?
iii) Whether Bejjam Sitamma mother-in-law of respondent/defendant became the absolute owner of plaint schedule property by virtue of Ex.B11-Gift Deed dated 09.03.1996 and Ex.B8-Will dated 17.05.1996 and they are valid in law?
iv) Whether the defendant/respondent became the absolute owner of plaint schedule property by virtue of original of Ex.B2-Gift Deed dated 13.07.2001 and it is valid in law?
v) To what relief?
11. The learned Senior Civil Judge, after hearing the Appeal, answered Point Nos.1 to 4, as above, against the respondent/defendant and in favour of the appellant/plaintiff and allowed the Appeal of the appellant by setting-aside the judgment of the trial Court in O.S. No.267 of 2006 thereby decreed the suit of the plaintiff.
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AVRB,J SA No.781/2012
12. Felt aggrieved of the same, the un-successful respondent/defendant filed the present Second Appeal.
13. When the matter was before the composite High Court of Andhra Pradesh, Hyderabad, the following points relating to substantial questions of law were framed on 07.09.2012:
1) Whether the acceptance of the title of the plaintiff based on Ex.A-1 is valid?
2) Whether the appellant has derived any right under Ex.B-2, Ex.B-8 and Ex.B-11 in consequence of cancellation of Ex.A-1 under Ex.B-1?
3) Whether the Courts below have not properly appreciated the binding nature of the judgment and decree in O.S. No.454 of 2002?
4) Whether the lower appellate Court has not properly considered the evidence in disturbing the judgment of the trial Court?
14. POINT Nos.1 to 4: Sri N. Harinath, learned counsel, representing Sri Ch. Ravindra Babu, learned counsel for the appellant, would contend that the learned Principal Junior Civil Judge delivered the judgment with findings that the plaintiff did not derive any title under Ex.A-1 because the donor created a 12 AVRB,J SA No.781/2012 vested interest with her and the said vested interest shall be with the donor and on her death only the donees would enjoy the property. The evidence on record reveals that the gift deed under Ex.A-1 was not acted upon by the minors. There was no proper evidence let in that the donees under Ex.A-1 accepted the gift deed. The property covered under Ex.A-1 would devolve upon the donees only after death of the donor. As the donees died even during their minority, prior to the death of donor, there was no question of passing any title in favour of the donees and further there was no acceptance of the gift deed by the donees. That is the reason why the donor reverted back the property with her and executed settlement deed in favour of Bejjam Sitamma insofar as half share in the property and thereafter executed a Will in her favour. There was no dispute about execution of these documents. The learned Senior Civil Judge delivered an erroneous judgment by reversing a well reasoned judgment of the trial Court. Bejjam Marthamma had every right to cancel Ex.A-1 because it was not acted upon and possession was with her with vested interest and execution of Ex.B-2 by her in favour of Bejjam Sitamma is absolutely valid and when Bejjam Sitamma got rights over the property by virtue of settlement deed under Ex.B-1, and further on account of the Will, she had every right to convey the property in 13 AVRB,J SA No.781/2012 favour of the defendant. Apart from this, the appellate Court committed a grave error in overlooking the judgment delivered under Ex.B-3. The judgment of the learned Senior Civil Judge in reversing a well reasoned judgment of the trial Court is nothing but irregular and invalid and all these points are to be answered in favour of the appellant. He would further submit that the donees were undoubtedly minors as on the date of Ex.A-1, being represented by their guardian, and there was no evidence that they accepted the gift deed. There was no question of acceptance of the gift deed before the death of the donor. So, as the donees died during their minority and as there was no acceptance of gift deed, donor executed Ex.B-1 settlement deed, which is perfectly valid. With these submissions, learned counsel would contend that the judgment of the learned Senior Civil Judge in A.S. No.31 of 2010 is to be set-aside by dismissing the suit of the plaintiff.
15. Sri Mahadeva Kanthrigala, learned counsel for the respondent/plaintiff, would contend that under Ex.A-1, ownership of the property was duly transferred in favour of the minors. What was retained by the donor, under Ex.A-1, was only possession to be enjoyed by her during her lifetime. It is not that ownership shall be transferred only after death of the donor. No such whisper was 14 AVRB,J SA No.781/2012 there in Ex.A-1. So, when Ex.A-1 passes on the title in favour of the minors, and that donor was retained with the possession, it cannot be held that the minors did not derive any title. Though the death of Devarapalli Mary Bharathi might be in the year 1984 but the death of Devarapalli Mariya Dasu was on 26.01.2000, after he became major, and he was born on 05.03.1975 and it is evident from Exs.A-4 and A-5 respectively. There is no dispute that the plaintiff is the sister of the donees under Ex.A-1. The very act of the donor under Ex.A-1 to convey the property in favour of Sitamma, without cancelling Ex.A-1, is invalid. Her act is nothing but against the spirit of the relevant provisions under the Transfer of Property Act, 1882 (for short, „the TP Act‟) governing the „gift'. In support of his contentions, learned counsel would rely upon the decisions of the composite High Court of Andhra Pradesh at Hyderabad in Kavali Hanumanna v. Huzurappa and others1, Pedda Jagannadha Rao and others v. Renanki Janikamma2 and a decision of the Hon‟ble Apex Court in K. Balakrishnan v. K. Kamalam and others3. By stressing upon the decision of the Hon‟ble Apex Court in K. Balakrishnan (3rd supra), he would contend that Ex.A-1, which was executed in favour of the minors, 1 1999 (6) ALT 626 2 2007 (4) ALT 184 3 (2004) 1 SCC 581 15 AVRB,J SA No.781/2012 was deemed to be accepted and the present appellant failed to prove contrary. Appreciation of evidence by the learned Principal Junior Civil Judge was nothing but erroneous overlooking the provisions relating to the gift in the TP Act and the learned Senior Civil Judge rightly looked into the legal and all factual issues and with well considered judgment, set-aside the findings of the learned Principal Junior Civil Judge. He would further contend that under Ex.A-1, the donees got a title and the possession was only with the donor and as such donees accepted the gift deed. Ex.A-1 was acted upon as such the present respondent (plaintiff), who was sister of the donees, succeeded to the property. She has every right to seek declaration and recovery of possession as such the Second Appeal is liable to be dismissed.
16. The plaintiff before the trial Court examined herself as PW.1. She got filed her chief-examination affidavit adverting to the plaint averments and through her examination, Exs.A-1 to A-6 were marked. Ex.A-1 is the registered gift deed, dated 13.08.1982, executed by Bejjam Marthamma in favour of Devarapalli Yesudasu and Mary Bharathi, being minors represented by a guardian. Ex.A-2 is the certified copy of registered gift deed, dated 09.03.1996, executed by Marthamma in favour of Sitamma. 16
AVRB,J SA No.781/2012 Ex.A-3 is the death certificate of Ademma, dated 11.07.1997. Ex.A-4 is the death certificate of Yesudasu, dated 11.12.2002, showing his date of death as 26.01.2000. Ex.A-5 is the transfer certificate in the name of D. Ramesh issued by Head Master, Lutheran Model High School, Guntur dated 22.07.1992 and Ex.A- 6 is the served copy of plaint in O.S. No.454 of 2002. She further examined PW.2, a third party, in support of her case. PW.2 was said to be an attestor under Ex.A-1 gift deed dated 13.08.1982 and literally he supported the case of the plaintiff.
17. DW.1 before the learned Principal Junior Civil Judge is no other than the defendant, who filed her chief-examination affidavit adverting to her case in accordance with the written statement, and she got marked Exs.B-1 to B-12. Ex.B-1 is the certified copy of registered gift deed, dated 09.03.1996, executed by Bejjam Marthamma in favour of Bejjam Sitamma. Ex.B-2 is the certified copy of registered gift deed, dated 13.07.2001, executed by Bejjam Sitamma in favour of Bejjam Leelamma. Ex.B-3 is the certified copy of decree in O.S. No.454 of 2002, dated13.11.2006. Ex.B-4 is the pattadar passbook in the name of Bejjam Leelamma. Ex.B-5 is the title deed passbook in the name of Bejjam Leelamma. Ex.B-6 is the copy of No.3 Adangal of Tadikonda village, dated 24.08.2009. 17
AVRB,J SA No.781/2012 Ex.B-7 is the cist receipt, dated 04.08.2009. Ex.B-8 is the Will executed by Bejjam Marthamma, dated 17.05.1996. Ex.B-9 is the title deed passbook in the name of Bejjam Sitamma. Ex.B-10 is the Pattadar Passbook in the name of Bejjam Sitamma. Ex.B-11 is the registered gift deed, dated 09.03.1996, executed by Bejjam Marthamma in favour of Bejjam Sitamma. Ex.B-12 is the registered gift deed, dated 13.07.2001, executed by Bejjam Sitamma in favour of Bejjam Leelamma. She further examined DWs.2 to DW.4 in support of possession claimed by her and literally DW.2, DW.3 and DW.4 deposed in favour of the plaintiff.
18. The admitted facts are that the plaint schedule property originally belonged to Bejjam Marthamma alias Ademma, wife of Seshaiah and she executed Ex.A-1, the gift deed on 13.08.1982 in favour of Devarapalli Yesudasu and Devarapalli Mary Bharathi, minors, being represented by their maternal uncle as Guardian. There is no dispute about the death of donees subsequently. According to Ex.A-2, certified copy of the registered gift deed executed by Marthamma in favour of Sitamma, the death of Devarapalli Mary Bharathi might be in the year 1984. According to Ex.A-5, the date of birth of Devarapalli Yesudasu was on 05.03.1975 and his date of death, according to Ex.A-4, was on 18 AVRB,J SA No.781/2012 26.01.2000. These documents are not in dispute. There is also no dispute from the side of the plaintiff that the Bejjam Marthamma alias Ademma executed settlement deed, dated 09.03.1996, in favour of Bejjam Sitamma in respect of Ac.0.66½ cents. The further contention of defendant that she also executed a Will dated 17.05.1996 in the name of Sitamma in respect of other part of the landed property i.e., Ac.0.66½ cents is in serious dispute. There is no denial of the fact that the defendant did not examine any attestors of the said Will during the course of trial before the trial Court. So, the Will projected by the defendant, dated 17.05.1996, is not proved in accordance with law. Further, the contention of the defendant is also that Sitamma, after the death of Marthamma, basing on the Will dated 17.05.1996 and earlier settlement deed dated 09.03.1996, executed a settlement deed dated 13.07.2001 in her favour out of love and affection. So, the plaintiff claimed her title from Bejjam Marthamma. Even the defendant also claimed her title from Bejjam Marthamma. The source of title is not at all in dispute.
19. Now, it is pertinent to look into Ex.A-1, which is not in dispute. As seen from Ex.A-1, it is dated 13.08.1982 executed by Bejjam Marthamma in the names of Devarapalli Yesudasu, son of 19 AVRB,J SA No.781/2012 Devarapalli Thomas and Devarapalli Mary Bharathi, daughter of Devarapalli Thomas, minors, being represented by their maternal uncle Turaka Victor Paul, son of Turaka Prakash. For better appreciation, it is pertinent to refer here the sum and substance of Ex.A-1, which is in Telugu language and the translation thereof, in substance, is as follows:
"I am aged about 60 years and I am not blessed with any issues. You being the son and daughter of brothers of my nephew and that the grand children of me and as I have love and affection towards you and as I intended to convey some immovable property and the consideration thereof is nothing but my love and affection (it means that without any monetary consideration), I conveyed the schedule property to you and created the rights of the property in you but I kept the possession thereof with me so as to enjoy the same and, after my death, both of you can take possession of the schedule property and you can enjoy the same, as per your will and wish with hereditary rights as well as saleable rights."
20. The property particulars are mentioned in Ex.A-1. So, undoubtedly, Ex.A-1 is nothing but a gift deed conveying the property by the donor in favour of donees, being represented by a guardian.
21. Now, it is pertinent to look into Ex.B-1, the certified copy of settlement deed, dated 09.03.1996, executed by Bejjam 20 AVRB,J SA No.781/2012 Marthamma in favour of Sitamma. The contents of Ex.B-1 are such that the executant in Ex.B-1 referred about the existence of Ex.A-1 with a whisper that Devarapalli Mary Bharathi died about 12 years ago as such that part of an extent of Ac.0.66½ cents reverted back to her (executant) as such out of love and affection, she executed the said document conveying the said property in her favour.
22. Coming to another document i.e., Ex.B-8, the so called Will, it is not proved in accordance with law. The defendant did not examine the attestors of Ex.B-8. The contention of the defendant is that even before death of another donee i.e., Devarapalli Yesudasu, Bejjam Marthamma executed a Will in respect of rest of Ac.0.66½ cents. The further contention of defendant is that Sitamma, by virtue of Ex.B-12, settlement deed dated 13.07.2001, conveyed the entire property in her favour as such she is in possession and enjoyment of the said property.
23. As seen from Ex.A-1, the fact that both the donees were represented by a guardian is not in dispute. It transferred the ownership of the property in favour of the donees, undoubtedly, without any rider, whatsoever, but the donor only retained the possession thereof by mentioning that subsequent to her death, 21 AVRB,J SA No.781/2012 the donees shall take possession thereof and shall enjoy the property. It is not that the donor executed Ex.A-1 with any whisper that subsequent to her death only the ownership of the property shall be transferred in favour of the donees. As seen from the judgment of the trial Court in O.S. No.267 of 2006, the learned Principal Junior Civil Judge made a finding that a glance of Ex.A-1 clearly shows that Bejjam Marthamma, who is the donor under Ex.A-1, has kept the property covered therein as life interest and thereafter only the said property will devolve upon the donees. The above said finding was nothing but irregular, in the considered view of this Court. When Ex.A-1 reads that ownership of the property was transferred in favour of the donees and only possession was retained with the donor, the findings made by the learned Principal Junior Civil Judge were nothing but irregular overlooking the contents of Ex.A-1. Undoubtedly, Ex.A-1 is nothing but a gift deed. The language in Ex.A-1 makes it clear that without any rider, whatsoever, the ownership of the property was transferred in favour of the donees.
24. As pointed out above, the date of death of Devarapalli Yesudasu was on 26.01.2000. Now, it is pertinent to look into the relevant provisions in the TP Act governing the gifts. 22
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25. Section 122 of the TP Act runs as follows:
"122. "Gift" defined - "Gift" is the transfer of certain existing movable or immovable 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."
26. Undoubtedly, Ex.A-1 clearly satisfies the essential ingredients of the gift under Section 122 of the TP Act. Whether the gift under Ex.A-1 was accepted by the donees is a matter to be considered hereinafter.
27. Section 123 of the TP Act contemplates the manner of effecting a gift and there is no dispute that Ex.A-1 is the registered instrument satisfying the ingredients of Section 123 of the TP Act.
28. Section 126 of the TP Act runs as follows:
"126. When gift may be suspended or revoked:- 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 donor, 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.23
AVRB,J SA No.781/2012 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."
29. A close perusal of Section 126 of the TP Act means that the donor and the donee may agree that on the happening of any specified event which does not depend upon the will of the donor, a gift shall be suspended or revoked and further if the parties agree that the gift shall be revocable wholly or in part at the mere will of the donor is void wholly or in part as the case may be. So, Section 126 of the TP Act contemplates certain situations where a gift can be cancelled.
30. Section 127 of the TP Act runs as follows:
"127. Onerous gifts:- When a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not, burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully.
Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the other, although the former may be beneficial and the latter onerous.
Onerous gifts to disqualified person:- A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after 24 AVRB,J SA No.781/2012 becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound."
31. A close perusal of Section 127 of the TP Act contemplates that a donee even not competent to contract and accepting the property burdened by any obligation is not bound by his acceptance.
32. Now, coming to the case on hand, it is a case where the donees under Ex.A-1 were duly represented by their guardian. Now, it is a matter of appreciation to decide as to whether Ex.A-1 was accepted by/on behalf of the donees in terms of Section 122 of the TP Act. To buttress this contention, learned counsel for the respondent relied upon the aforesaid three decisions.
33. Turning to the decision in Pedda Jagannadha Rao and others (2nd supra), the legal position is that once a valid gift deed was executed, it cannot be cancelled except through the procedure prescribed by law under the relevant grounds stipulated under the TP Act and the Indian Contract Act, 1872 (for short, „the Contract Act‟). Unilateral cancellation of gift deed, which has been acted upon, cannot result in any legal consequences. 25
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34. Turning to another decision in Kavali Hanumanna (1st supra), it is a case where a gift deed was executed in the name of a minor without showing that the minor was being represented by any guardian and the minor was under the custody of his father. The composite High Court of Andhra Pradesh took into consideration the fact that the minor was in the custody of his father and gave a finding that the gift deed was accepted by the minor. Further, the composite High Court took into consideration the conduct of defendant in the earlier suit stating that the property has been gifted to the plaintiff and the possession has also been delivered. The factual matrix in the present case is better than the factual matrix in the above case for the reason that in Ex.A-1, the minors were represented by a guardian.
35. Turning to the decision of the Hon‟ble Apex Court in K. Balakrishnan (3rd supra), it is also a case that the property was conveyed in favour of the minor without mentioning that the minor was being represented by a guardian. The Hon‟ble Apex Court in this regard elaborately dealt with Sections 122, 123, 126 and 127 of the TP Act. For better appreciation, it is pertinent to extract here the observations of the Hon‟ble Apex Court:
26
AVRB,J SA No.781/2012 "16. Section 123 of the Transfer of Property Act provides the mode of effecting transfer by gift which reads:-
"123. Transfer how effected - For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered."
17. The other relevant Section 126 specifies circumstances under which a gift can be suspended or revoked:-
"126. When gift may be suspended or revoked - 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 donor, 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."
[Underlining by the Court] 27 AVRB,J SA No.781/2012
18. For understanding the provisions on "Gift" contained in Chapter VII of the Transfer of Property Act, all the sections therein which are interrelated have to be read conjointly to understand their import and effect.
19. Section 127 thrown fight on the question of validity of transfer of property by gift to a minor. It recognises minor's capacity to accept the gift without intervention of guardian, if it is possible, or through him.
"127. Onerous gifts - Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not burdened by an obligation, the donee can take nothing by the gift unless he accents it fully.
Where a gift is in the form of two or more separate, and independent transfers the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.
Onerous gift to disqualified person - A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound."
[Underlining by the Court]
20. The last part of Section 127, underlined above, clearly indicates that a minor donee, who can be said to be in law incompetent to contract under Section 11 of the Contract Act is, however, competent to accept a non onerous gift. Acceptance of an onerous gift, however, cannot bind the 28 AVRB,J SA No.781/2012 minor. If he accepts the gift during his minority of a property burdened with obligation and on attaining majority does not repudiate but retains it, he would be bound by the obligation attached to it.
21. Section 127 clearly recognises the competence of a minor to accept the gift. The provision of law is clear and precedents clarify the position. See the decisions of Judicial Commissioner in the case of Firm of Ganeshdas Bhiwaraj v. Suryabhan 1917 XXII Nag. LR 18; Munni Kunwar v. Madan Gopal MANU/UP/0126/1915 : AIR1915All107 ; and Firm of Ganeshdas Bhiwaraj v. Suryabhan 39 Ind. Cas. 46.
22. The position in law, thus, under the Transfer of Property Act read with the Indian Contract Act is that "the acquisition of property being generally beneficial, a child can take property in any manner whatsoever either under intestacy or by Will or by purchase or gift or other assurance inter vivos, except where it is clearly to his prejudice to do so. A gift inter-vivo to a child cannot be revoked. There is a presumption in favour of the validity of a gift of a parent or a grandparent to a child, if it is complete [See Halsbury's Laws of England Vol. 5(2) 4th Edn. Paragraphs 642 & 647]. When a gift is made to a child, generally there is presumption of its acceptance because express acceptance in his case is not possible and only an implied acceptance can be excepted.
23. Section 122 (quoted above and underlined) covers the case of a minor donee being a person under legal disability. 29
AVRB,J SA No.781/2012 The section, therefore, employs the expression - 'accepted by or on behalf of donee'.
24. As we have seen above, Section 127 (quoted above and underlined in its last part) clearly indicates competence of a minor donee to accept the gift, if he is capable of so doing. Such acceptance of a gift can be made by himself or on his behalf by someone else."
36. Coming to the present case, even the factual matrix in the present case is better than the facts in the above referred decision. Turning to Ex.B-1, it never whispered that Ex.A-1 was not acted upon by the minors, being represented by the guardian. Ex.B-1 whispers that one of the donee i.e., Devarapalli Mary Bharathi died about 12 years back prior to Ex.B-1. Ex.A-1 was dated 13.08.1982. Ex.B-1 was dated 09.03.1996. So, if these averments are taken into consideration, one of the donees must have been died in the year 1984. So, the donor under Ex.B-1 did not contemplate to get back the property for a period of 12 years. If really, the gift deed under Ex.A-1 was not acted upon, the donor under Ex.A-1 would not have kept quiet till 09.03.1996. The contention of the defendant that the donor under Ex.B-8 executed a will in favour of Sitamma in respect of other part of the property cannot stand to any reason because by the time Devarapalli Yesudasu was alive. As this Court already pointed out, Ex.B-8 was 30 AVRB,J SA No.781/2012 not proved. Another contention that the rest of property conveyed to Sitamma under Ex.B-8 was not proved. So, apart from this, absolutely, there is no pleading on the part of the defendant in her written statement that gift deed under Ex.A-1 was not acted upon. On the other hand, her claim that as the gift deed dated 13.08.1982 is in-executable, Bejjam Marthamma executed settlement deed dated 09.03.1996 in favour of Sitamma and that thereafter, on 17.05.1996, she executed a Will in favour of Sitamma even prior to his death. So, there is no pleading on the part of the defendant that Ex.A-1 was not acted upon. When that is the situation, the findings of the learned Principal Junior Civil Judge that the plaintiff failed to prove that Ex.A-1 was acted upon is nothing but erroneous, overlooking the legal principles and further overlooking the fact that Ex.B-1 did not disclose that Ex.A- 1 was not acted upon and that written statement of the defendant did not disclose that Ex.A-1 was not acted upon.
37. In the light of the above, what is clear is that Ex.A-1 is nothing but a gift deed duly meeting the requirements of Section 122 of the TP Act and there was a guardian in Ex.A-1 and the donor kept quiet for a considerable period of time even after the 31 AVRB,J SA No.781/2012 death of Devarapalli Mary Bharathi, and Ex.B-1 is bereft of necessary details that Ex.A-1 was not at all acted upon.
38. Having regard to the legal principles emerging from Sections 122 and 127 of the TP Act, which are elaborately dealt with by the Hon‟ble Apex Court, as above, I am of the considered view that the plaintiff before the trial Court adduced cogent evidence to prove that Ex.A-1 was acted upon. The learned Senior Civil Judge, while deciding Appeal Suit, duly took into consideration the judgment of the Hon‟ble Apex Court in K. Balakrishnan (3rd supra) and rightly held that the case on hand rests on better footing than case of the Hon‟ble Apex Court in K. Balakrishnan (3rd supra). I am of the considered view that the learned Principal Junior Civil Judge took an erroneous approach in appreciating the evidence and did not understand the language employed in Ex.A-1 in proper manner and made erroneous appreciation of the evidence. The learned Senior Civil Judge rightly took into consideration the legal principles and held that Ex.A-1 was acted upon. So, when Ex.A-1 was acted upon, according to the evidence available on record, and further as it was in accordance with the legal principles constituting a valid gift, the donor under Ex.A-1 had no power to execute Ex.B-1.When she had no power to execute Ex.B-1, it does 32 AVRB,J SA No.781/2012 not convey any valid title in favour of Sitamma as such Sitamma had no right to execute a settlement deed in the name of defendant under Ex.B-12.
39. There is no dispute about the suit filed by Bejjam Leelamma i.e., defendant against Devarapalli Nagamma for permanent injunction and Nagamma remained ex-parte and decree of permanent injunction was passed. The plaintiff is not a party to the above said Suit. So, when the plaintiff was not a party to the above said suit, the judgment in O.S. No.454 of 2002 on the file of the Court of Additional Senior Civil Judge, Guntur is not at all binding on the plaintiff. Even in this regard also the learned Principal Junior Civil Judge made a finding that Devarapalli Nagamma is no other than the maternal grandmother of the plaintiff and when the suit was decreed in favour of the defendant, it is clear that plaintiff and her ancestors are trying to meddle with the property. The above said findings of the learned Principal Junior Civil Judge are un-warranted, according to the evidence available on record.
40. It is to be noted that in Ex.A-6, served copy of the plaint in O.S. No.454 of 2002, the defendant herein in the capacity of the plaintiff has shown Devarapalli Nagamma as if she is the sister of 33 AVRB,J SA No.781/2012 Devarapalli Yesudasu and that she claimed rights over the property. In this connection, the case of the plaintiff is very categorical that Devarapalli Yesudasu, Devarapalli Mary Bharathi and Devarapalli Masimma alias Mary Jayanthi are the brother and sisters. It is never the case of the plaintiff that Devarapalli Nagamma is her sister. So, O.S. No.454 of 2002 was filed against a wrong person, who was not concerned with the schedule property, in the year 2002. Plaintiff in the present Suit filed O.S No.267 of 2006 in the year 2004. Plaint was presented on 12.08.2004. So, when the plaintiff thought to enforce her remedies in O.S. No.267 of 2006, there was no need for her to contest O.S. No.454 of 2002, in which she was not a party at all. So, absolutely on this count also, the judgment in O.S. No.454 of 2002, which was ex parte against Nagamma, is not binding on the plaintiff herein. As pointed out, there was valid acceptance of gift deed under Ex.A-1 by the donees and on account of the death of Devarapalli Mary Bharathi, the property devolved on Devarapalli Yesudasu, who was her brother, and after the death of Devarapalli Yesudasu, the property devolved upon the plaintiff. Hence, the plaintiff is entitled to file the Suit in O.S. No.267 of 2006. The learned Senior Civil Judge, in my considered view, made thorough analyzation of the 34 AVRB,J SA No.781/2012 legal principles hovering around Ex.A-1 and Ex.B-1 and rightly reversed the judgment of the trial Court.
41. Having regard to the overall facts and circumstances, I am of the considered view that Ex.A-1 gift deed passes a valid title in favour of the donees, being represented by their guardian and it was acted upon as such the donor under Ex.A-1 had no right, whatsoever, to execute Ex.B-1 and further the defendant miserably failed to prove Ex.B-8, the so called Will executed by Bejjam Marthamma in favour of Bejjam Sitamma and in the light of the above, Bejjam Sitamma had no right, whatsoever, over the plaint schedule property and she could not have conveyed a better title in favour of the defendant. The learned Senior Civil Judge rightly appreciated the evidence and legal principles in reversing the judgment of the trial Court in O.S. No.267 of 2006 as such there are no merits in the Appeal.
42. In the result, the Second Appeal is dismissed with costs confirming the judgment in A.S. No.31 of 2010, dated 20.04.2012, on the file of the Court of Senior Civil Judge, Mangalagiri. The appellant/defendant is directed to deliver possession of the plaint schedule property in favour of respondent/plaintiff within a period 35 AVRB,J SA No.781/2012 of two months from today, failing which the respondent/plaintiff is at liberty to recover possession by filing an Execution Petition.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date:23.09.2023 DSH