Orissa High Court
Gurubari Bewa (Deleted) Netramani ... vs Jagadis Parida And Ors. on 29 October, 1999
Equivalent citations: 1999(II)OLR650
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Plaintiffs have filed this appeal against a reversing judgment. The suit was filed for setting aside the deed of gift dated 20.4.1977 and sale deed dated 23.11.1977 executed in favour of defendant No. 1 by Dhadi Swain and for confirmation of possession, or recovery of possession, and permanent injunction and other ancillary reliefs. Plaintiff No. 1 is the brother of late Dhadi Swain and plaintiff No. 2 is son of plaintiff No. 1. It is alleged that a deed of gift was obtained from late Dhadi Swain by defendant No. 1 fraudulently and by exercise of undue influence in respect of "A" Schedule property on 20.4.1977 and a sale deed was similarly obtained in respect of "B" Schedule property on 23.11.1977. It is not disputed that Dhadi Swain died issueless. The suit was filed after death of Dhadi Swain in the year 1978.
2. Defendant No. 1 is the son of defendant No. 2. In their joint written statement it was claimed that the deed of gift was executed in favour of defendant No. 1 out of love and affection. Subsequently, the sale deed was executed in respect of "B" Schedule land, as Dhadi Swain wanted to meet his personal expenses and to repay the loan incurred by him. It was claimed that the deed of gift was well as the sale deed had been duly executed. It was further claimed that defendants 1 and 2 were in possession of both "A" Schedule and "B" Schedule properties and had constructed house on a portion of the disputed land.
3. Since Jitendra was claiming to be the adopted son of late Dhadi Swain, his natural father and he himself were impleaded as defendants 3 and 4 respectively.
4. The trial Court decreed the suit in respect of "A" Schedule property on the finding that the deed of gift had not been validly executed. The suit was dismissed in respect of "B" Schedule property on a finding that the sale deed had been validly executed for consideration. The plea of adoption set up by defendants 3 and 4 was negatived. The said finding having not been challenged by defendants 3 and 4 any further became final.
5. Appeal was filed by defendants 1 and 2 against the part decree in favour of the plaintiffs relating to "A" Schedule property. A cross- objection was filed on behalf of the plaintiffs in respect of part of the decree of the trial Court dismissing the suit in respect of "B" Schedule property.
6. The lower appellate Court confirmed the decision of the trial Court relating to "B" Schedule property, but reversed the decree in respect of "A" Schedule property on a finding that the deed of gift had been validly executed. Accordingly, the appeal of defendants 1 and 2 was allowed and the cross-objection of plaintiffs was dismissed.
7. Against the aforesaid decision of the lower appellate Court, the present Second Appeal has been filed challenging the findings of the lower appellate Court in respect of both "A" Schedule property as well as "B" Schedule property, that is to .say, relating to the validity of the deed of gift as well as the sale deed. However, at the time of admission of the Second Appeal, the finding relating to sale deed (Ext. B) was confirmed and the appeal was confined to the question of validity of the deed of gift. The following substantial question of law was framed by order dated 18.7.1986 :
"This appeal is restricted only to the validity of Ext. A/1, the Gift-Deed and must be taken to be concluded so far as Ext. B is concerned. The substantial question of law to be urged in this appeal is whether the gift in question was given effect to while Dhadi was alive and whether the conditions of the gift-deed have been duly fulfilled or not."
8. Section 122 of the Transfer of Property Act defines "Gift" in the following terms :
"122. Gift defined -o '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.
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."
A perusal of the aforesaid provision makes it clear that one of the essential conditions for a valid gift is acceptance of the gift by or on behalf of the donee. It is further clear that such acceptance must be made during the lifetime of the donor. The substantial question of law which had been framed at the time of admission, essentially raises the question as to whether the gift had been accepted by the donee during the life-time of the donor. Defendant No. 1 who is the son of defendant No. 2 was the donee. He had already attained majority by the time of the deed of gift. In the deed of gift also it had been described that he was aged about 19 years. In normal course, therefore, the gift is to be accepted by the donee (defendant No. 1) himself. The lower appellate Court has come to the conclusion that the gift was valid and the defendants were in possession and had constructed a house on the gifted property after the death of the donor. Assuming that such finding is correct, the question remains to be considered is as to whether there had been acceptance of the gift during the life-time of the donor.
9. The relevant assertion of defendants, as contained in paragraph- 17(c) of the written statement, is to the following effect :
"(c) That for love and affection Dhadi Swain gifted Ac. 0.52 decimals of land to the defendant No. 1 on 19.4.1977. Out of his free will and independent advice he has executed the said document being read over and explained the contents of the same. Possession of those gifted properties having been delivered, the donee, the present defendant No. 1 is continuing in possession of the same."
The acceptance of gift can be proved by the fact that possession of the gifted property was delivered during the life-time of the donor or even by proving the fact that the deed of gift had been accepted by the donee. The lower appellate Court has not given any finding as to whether the possession of the gifted property had been delivered to the donee during life-time of the donor. It is, of course, true that the gift deed is coming from the custody of the defendants, who have produced the document and proved it as Ext. A/1. But merely from the fact that the gift deed has been produced by defendants 1 and 2, it cannot be assumed that the deed of gift had been made over to defendant No. 1 who was the donee. The witnesses who have spoken about the execution and attestation of the gift deed have not stated anything about delivery of possession of the disputed land, or about handing over of the registered deed of gift. Defendant No. 2, who is the father of the donee, has stated in evidence that after about a month of execution of the deed of gift, the same was handed over to defendant No. 1. No such specific plea was taken in the written statement. Defendant No. 1 himself has been withheld from the witness box. Since defendant No. 1 was, the donee, it was for him to come forward and prove that the gift had been accepted either by taking delivery of possession of the disputed land during the life-time of the donor or by handing over of the deed of gift and acceptance of the same by the donee.
10. The evidence adduced on behalf of the defendants indicates that after death of Dhadi Swain, defendants 1 and 2 constructed on the disputed land. But there is no evidence on record to indicate that during life-time of Dhadi Swain, possession of the property had been delivered to defendant No. 1. Since there is no evidence on record to indicate that the gift had been accepted during life-time of the donor, the gift even if otherwise duly executed cannot be taken to be valid.
11. Even there are certain suspicious circumstances relating to due execution of the deed of gift. Dhadi was admittedly an illiterate person. It is, of course, true that the scribe and the attesting witnesses have stated about the execution of the deed of gift on the basis of instruction of Dhadi and attestation thereof. However, they have not stated anything about any independent advice being available to Dhadi. Since Dhadi was admittedly an illiterate old man, the protection available to a Paradanasin lady was also available to him and the person relying upon transaction from such a person is required to prove that the document had been duly executed after independent advice was made available. Coupled with the aforesaid circumstance, the very fact that the deed of gift was registered at Cuttack even though a Sub-Registrar's Office was available within one kilometre distance from -the village is a suspicious circumstance taken into consideration by the trial Court to disbelieve the deed of gift. The lower appellate Court has glossed over this aspect by stating that in law there is no bar for getting a document registered at the district headquarters. Though in law there was no bar, the fact that it was not registered at a nearer and convenient place was a suspicious circumstance which had not been explained by the defendants. That apart, it appears that the entire homestead property of Dhadi Swain was sought to be gifted away along with certain other agricultural property. The very fact that Dhadi Swain purported to sell rest of his properties after five to six months for the purpose of repaying his loan and meeting his personal necessity itself creates a doubt regarding the genuineness of the gift deed. The sale deed subsequently executed four to five months after was in favour of the very same person. If actually, there was love and affection for defendant No. 1, same love and affection would have prompted Dhadi Swain to donate rest of his properties to defendant No. 1. On the other hand, if there was necessity for repaying loan and for meeting personal expenses, Dhadi Swain would not have gifted away a major portion of his property including the entire homestead without any consideration.
12. The lower appellate Court has placed strong reliance on the fact that defendant No. 1 was the son of maternal uncle of Dhadi. Of course, there is a recital to that effect in the deed of gift. However, defendant No. 2 while being examined as D.W. 5 has stated that he does not know the name of the mother of Dhadi Swain. It is unthinkable to visualise that defendant No. 2 was the maternal uncle of Dhadi Swain and yet he could not state the name of his own sister. Thus suspicion is created as to whether actually defendant No. 2 was the maternal uncle of Dhadi Swain. Statement of Plaintiff No. 2 in his evidence as P.W. 5 to the effect that defendant No. 1 is not related to Dhadi Swain has not been successfully challenged. For the aforesaid reasons, I am unable to agree with the findings of the lower appellate Court.
13. In the result, the decision of the trial Court in respect of "A" schedule property is affirmed and the deed of gift is taken to be invalid. The Second Appeal is accordingly allowed. There would be no order as as to cost.