Andhra Pradesh High Court - Amravati
Sri Kasani Subba Rao, vs Sri Puli Radhakrishna Murthy, on 16 February, 2024
APHC010159512006
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)
[ 3397 ]
FRIDAY ,THE SIXTEENTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO
FIRST APPEAL NO: 441 OF 2006
Appeal against OS.No.34/2000 dt:28/04/06 on the file of the III Additional District
Judge, Guntur.
Between:
1. Sri Kasani Subba Rao,, S/o.Malleswara Rao Employee R/o.Goudapalem,
Vadlamudi, Chebrole (M),
2. Kasani Naga Raju,, S/o.Malleswara Rao R/o.Goudapalem, Vadlamudi,
Chebrole (M),
3. Kasani Rama Krishna, R/o.Goudapalem, Vadlamudi, Chebrole (M),
4. Kasani Chitti Babu,, S/o.Prasad R/o.Goudapalem, Vadlamudi, Chebrole (M),
5. Kasani Sambasiva Rao,, S/o.Prasad R/o.Goudapalem, Vadlamudi, Chebrole
(M),
...APPELLANT(S)
AND
1. Sri Puli Radhakrishna Murthy, S/o.Peda Kotaiah R/o.Goudapalem,
Vadlamudi, Chebrole (M),
...RESPONDENTS
IA NO: 1 OF 2023
Petition under Section 151 CPC praying that in the circumstances stated in
the affidavit filed in support of the petition, the High Court may be pleased pleased
to Grant 4 weeks time by permitting that the petitioners 2nd /3 appellants 2 and 3
to deposit the entire arrears as conditional order of stay passed in A.S.M.P
1458/2006 dated 1-8-2006 in A.S.No 441/2006 including stay of further
proceedings in E.P.No. 140 of 2022 pending on the file of the court of the III
Additional District Judge, Guntur pending disposal of the appeal in the interests of
justice and pass
Counsel for the Appellant(s):SRI. P ANAND SESHU (SC FOR APEPDCL)
Counsel for the Respondents: 1125/V S R ANJANEYALU
Counsel for the Respondents: VAJJHALA SATYANARAYANA PRASAD
The Court made the following:
JUDGMENT:-
This Appeal, under Section 96 of the Code of Civil Procedure [for short 'the C.P.C.'], is filed by the Appellants/defendants challenging the Decree and Judgment, dated 28.04.2006, in O.S. No.34 of 2000 passed by the learned III Additional District Judge, Guntur [for short 'the trial Court']. The Respondent herein is the plaintiff in the said Suit.
2. The respondent/plaintiff filed a Suit for declaration that the cancellation deed dated 24.07.1995 is invalid and has no legal effect in view of the gift deed dated 27.03.1984 and for consequential relief of possession of the plaint schedule property, for past mesne profits of Rs.8,000/- at the rate of Rs.4,000/- per annum for the years 1998-1999 and 1999-2000 and for future mesne profits over the plaint schedule property.
3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.
4. The brief averments of the plaint, in O.S. No.34 of 2000, are as under:
The plaintiff's mother's brother by name Kasani Venkata Subbaiah, who was the owner of the plaint schedule property, executed a gift deed in respect of plaint schedule property on 27.03.1984, (an extent of Ac.1.00 cents situated in S.No.223 of Vadlamudi village) out of love and affection in favour of the plaintiff with absolute rights, where under he conveyed vested remainder rights to him reserving life interest for himself (Kasani Venkata Subbaiah), that the gift deed was delivered to him and the gift deed was accepted and acted upon though the delivery of possession of the plaint schedule property was postponed till the death of Kasani Venkata Subbaiah, that after the death of Venkata Subbaiah on 04.08.1998, he came to know that Kasani Venkata Subbaiah without any manner of right, executed a document styled as 'gift cancellation deed' on 24.07.1995 as per the original of Ex.A2, that when he tried to occupy the plaint schedule property after the demise of Kasani Venkata Subbaiah, the defendants prevented him from taking possession of the schedule property and that thereafter, he got issued legal notices to the defendants 1 to 5 and filed the suit.
5. The defendants 1 to 5 filed common written statement by denying the averments mentioned in the plaint and further contended as under: -
Kasani Venkata Subbaiah is their senior paternal grand father, that the plaintiff obtained the above alleged gift deed from Kasani Venkata Subbaiah by playing fraud, and thereafter Kasani Venkata Subbaiah came to know in the year 1995, about the fraud played by the plaintiff upon him and executed a document on 24.07.1995 cancelling the alleged gift deed and thereafter executed a registered will dated 05.06.1996 bequeathing the written statement A schedule property to the defendants 1 to 3 and B schedule property to the defendants 4 and 5 and therefore the plaintiff is not entitled to any relief against them and prayed the Court to dismiss the suit.
6. Based on the above pleadings, the trial Court framed the following issues:
(i) Whether late Kasani Venkata Subbaiah bequeathed A schedule property in favour of D1 to D3 and B schedule property in favour of D4 and D5 as mentioned in the written statement under a registered will dated 05.06.1996 with absolute rights?
(ii) Whether the defendants are in possession and enjoyment of the property of Kasani Venkata Subbaiah on 04.08.1998, in pursuance of the will said to have been executed by late Venkata Subbaiah?
(iii) Whether the gift deed dated 27.03.1984 said to have been executed by late Kasani Venkata Subbaiah in favour of plaintiff conveying the plaint schedule property is true and correct?
(iv) Whether the cancellation of the gift deed by late Kasani
Venkata Subbaiah on 24.07.1995 is invalid and
ineffective?
(v) Whether the plaintiff is entitled to the relief of permanent
injunction against the defendants?
(vi) Whether the plaintiff is entitled to the past profits of
Rs.8,000/- for two years (i.e., at Rs.4,000/- per acre per year) and also for future profits?
(vii) To what relief?
7. During the course of trial in the trial Court, on behalf of the Plaintiff, PW1 to PW3 were examined and Ex.A1 to Ex.A9 were marked. On behalf of the Defendants DW1 to DW7 were examined and Ex.B1 to Ex.B9 were marked.
8. After completion of the trial and on hearing the arguments of both sides, the trial Court decreed the suit vide its judgment, dated 28.04.2006, against which the present appeal is preferred by the appellants/defendants in the Suit questioning the Decree and Judgment passed by the trial Court.
9. Heard Sri P.A.Seshu, learned counsel for appellants and Sri V.S.R.Anjaneyulu, learned senior counsel for respondent/plaintiff.
10. The learned counsel for appellants would contend that Ex.A1 registered gift settlement deed dated 27.03.1984 was obtained by the respondent/plaintiff from Kasani Venkata Subbaiah by playing fraud. He would further contend that the executant of alleged gift deed has right to cancel the gift deed and accordingly the donor cancelled the said gift deed. He would further contend that after executing Ex.A2 cancellation deed, the executant executed Ex.B7 will in favour of appellants and that the plaintiff is not having any title in the plaint schedule property. He would further contend that the trial Court came to wrong conclusion and decreed the suit and appeal may be allowed.
11. Per contra, the learned senior counsel on behalf of respondent/plaintiff would contend that Kasani Venkata Subbaiah unilaterally cancelled the gift settlement deed by executing a registered cancellation deed, the same is not valid. He would further contend that on appreciation of the entire evidence on record, the learned trial judge rightly decreed the suit by setting aside the said cancellation deed. He would further contend that the appeal may be dismissed.
12. Having regard to the pleadings in the suit, the findings recorded by the trial Court and in the light of rival contentions and submissions made on either side before this Court, the following points would arise for determination:
1. Whether the registered gift settlement deed dated 27.03.1984 said to have been executed by late Kasani Venkata Subbaiah in favour of plaintiff is true and valid?
2. Whether the registered cancellation of gift settlement deed executed by late Kasani Venkata Subbaiah on 24.07.1995 is in valid?
3. Whether the plaintiff is entitled recovery of possession of the plaint schedule property?
4. Whether the decree and judgment passed by the trial Court needs any interference, if so, to what extent?
13. Point No.1:
Whether the registered gift settlement deed dated 27.03.1984 said to have been executed by late Kasani Venkata Subbaiah in favour of plaintiff is true and valid?
The case of the plaintiff is that the plaint schedule property originally belongs to Kasani Venkata Subbaiah and he is the sister's son of the said Venkata Subbaiah. He further pleaded that on account of love and affection towards him, the said Kasani Venkata Subbaiah executed a registered gift settlement deed on 27.03.1984 where under he conveyed vested remainder rights to him reserving life interest for himself and the same is accepted by donee. He further pleaded that the said gift deed is accepted and acted upon and in view of the recitals of gift settlement deed, the possession of the property is postponed till the death of Venkata Subbaiah. The plaintiff further pleaded that the said Kasani Venkata Subbaiah died on 04.08.1998 and on his death as per the recitals of gift deed he is entitled to take possession of the plaint schedule property as a right. The case of the defendants is that plaintiff obtained Ex.A1 registered gift settlement deed by playing a fraud. The execution of Ex.A1 registered gift settlement deed is not at all disputed by the defendants, but the contention of the defendants is that the said gift settlement deed is obtained by the plaintiff by playing fraud. The defendants relied on Ex.B6 registration extract of cancellation deed dated 24.07.1995 said to have been executed by Venkata Subbaiah by cancelling the earlier Ex.A1 registered gift settlement deed. In Ex.B6 it was clearly admitted by Kasani Venkata Subbaiah that he executed Ex.A1 registered gift settlement deed in favour of the plaintiff by retaining life interest with him and vested remainder rights to the plaintiff and the plaintiff is none other than the son of his own sister. It is not in dispute that the plaintiff is the son of sister of Kasani Venkata Subbaiah. Kasani Venkata Subbaiah had no children, he died issueless. Defendants 1 to 3 are the grand sons of his younger brother by name Veeraiah and sons of Malleswara Rao. Defendants 4 and 5 are the grand sons of Veeraiah and sons of Prasad. The execution of registered gift settlement deed in favour of the plaintiff is clearly admitted by Kasani Venkata Subbaiah in Ex.B6. But it was recited in Ex.B6 cancellation deed that when he came to Sub-Registrar office on 27.03.1984 in connection with execution of registered sale deed in favour of the plaintiff, the plaintiff obtained the signatures on the gift settlement deed by playing fraud and he obtained his signatures on the gift settlement deed along with the said registered sale deed. Since the execution of Ex.A1 gift settlement deed is not in dispute, it is for the defendants to prove that Ex.A1 was obtained by the plaintiff by playing fraud.
14. The plaintiff in order to prove the case of the plaintiff examined himself as PW1. PW2 is one of the attestor in Ex.A1. PW3 is scribe of Ex.A1.
15. The plaintiff reiterated the contents of plaint in his evidence affidavit as PW1. To prove the Ex.A1 will, the plaintiff examined one of the attestor in Ex.A1 gift settlement deed as PW2. He deposed in his evidence that the plaintiff is the sister's son of Kasani Venkata Subbaiah and Kasani Venkata Subbaiah on account of love and affection towards plaintiff executed a registered gift deed on 27.03.1984, where under he conveyed vested remainder rights to the plaintiff reserving life interest for himself. He further deposed that at the time of execution of the said gift settlement deed himself, Yanumula Venkata Swamy were present. Kasani Venkata Subbaiah executed the gift settlement deed, signed the same and got it registered. He further deposed that himself and Venkata Swamy attested the said gift settlement deed and himself and Venkata Swamy witnessed about the making signature by the Kasani Venkata Subbaiah in the gift settlement deed, likewise, the scribe also witnessed the attestation of both the attestors. He further deposed that the scribe of the gift deed also put his signature being the scribe on the gift settlement deed.
16. The plaintiff also relied on the evidence of PW3, who is the scribe of gift settlement deed. As per his evidence Kasani Venkata Subbaiah signed the gift deed in the presence of himself and PW2 and another attestor and after scribing the gift settlement deed, he signed as a scribe and both the attestors signed on the said document. He further deposed that Kasani Venkata Subbaiah voluntarily out of free will and love and affection executed the gift settlement deed in favour of the plaintiff. He further deposed that the second attestor Venkata Swamy died about 4 years ago. Therefore, to discharge his liability, the plaintiff examined one of the attestor in Ex.A1 as PW2 and the scribe of Ex.A1 as PW3. The case of the plaintiff is that another attestor Venkata Swamy died at about 4 years ago. Therefore, the plaintiff discharged his burden to prove the Ex.A1 gift settlement deed.
17. As stated supra, in cancellation of gift settlement deed, the donor admitted about the execution of registered gift deed dated 27.03.1984, the original registered gift settlement deed is filed by the plaintiff and marked as Ex.A1, it was recited in Ex.B6 cancellation deed that the donee obtained gift deed fraudulently. To discharge his burden, the plaintiff relied on the evidence of PW2 and PW3, though PW2 and PW3 were cross examined by the leaned counsel for defendants, in cross examination, nothing was elicited from PW2 and PW3 to discredit the testimony of PW2 and PW3. Ex.A1 goes to show that the stamps used for Ex.A1 were purchased in the name of donee(plaintiff). PW2 one of the attestor admits in cross examination that the donor Venkata Subbaiah purchased the stamps for Ex.A1. PW3 scribe also admits the donor Venkata Subbaiah paid expenses for the stamps for Ex.A1.
18. Learned counsel for appellants would contend that the donee fraudulently obtained gift settlement deed on the date of sale deed that is the reason the donee obtained the signatures of donor on first page and last page of Ex.A1only. Original gift settlement is filed and marked as Ex.A1, registration extract of sale deed said to have been executed by Venkata Subbaiah in favour of the plaintiff is filed by the defendants and marked as Ex.B4. Ex.B4 document is not at all disputed by both the parties. I have perused Ex.A1 and Ex.B4, in Ex.A1 last page at page No.8 the donor specifically stated he signed on first and last page of the document. Similarly on the last page of sale deed Ex.B4 it was stated by vendor Venkata Subbaiah he signed on first and last page of document. Therefore, on the sole ground that the donor signed on first page and last page of gift settlement deed, the gift settlement deed cannot be disbelieved. As stated supra, the donor also signed on first page and last page of sale deed as a vendor which is undisputed document by both the parties. DW1 stated he had no personal knowledge about the execution of Ex.A1. Both Ex.A1 and original of Ex.B4 were duly accepted by registering authority, before the Sub-Registrar the Venkata Subbaiah signed on the Ex.A1 and original of Ex.B4 and also affixed his thumb mark and both are duly accepted by the Sub-Registrar and registered by the Sub-Registrar as per registration rules.
19. It is not the case of the defendants that the signature of Venkata Subbaiah and thumb impression of Venkata Subbaiah on Ex.A1 and original of Ex.B4 are not that of Venkata Subbaiah. The defendants are admitting the signature and thumb mark of Venkata Subbaiah before the Sub-Registrar on Ex.A1 and original of Ex.B4. Further more the defendants are not questioning the original of Ex.B4 sale deed. There was a clear recital in the plaint itself that Kasani Venkata Subbaiah on account of love and affection towards the plaintiff executed a registered gift settlement deed in favour of the plaintiff, where under he conveyed vested remainder rights to the plaintiff reserving life interest for himself. It was recited in the plaint itself that the plaintiff got title to the plaint schedule property by virtue of the said gift settlement deed on the same date, even though the possession of the same is postponed till the death of K.Venkata Subbaiah and the said gift deed is accepted and acted upon. Further there was a clear recital that the said gift deed was delivered to the plaintiff on 27.03.1984. Therefore, in view of the above reasons, the plaintiff discharged his burden by examining one of the attestor in Ex.A1 as PW2 and also scribe of Ex.A1 as PW3. The reason for non- examination of another attestor is also explained by the PW3 in his evidence that the another attestor died at about 4 years ago. Per contra, to prove the defence taken by the defendants in the written statement that the plaintiff obtained Ex.A1 gift settlement deed fraudulently, no oral or no documentary evidence is adduced by the defendants. Further more no suit is filed by the donor before a civil Court to cancel the Ex.A1 registered gift settlement deed on the ground that the donee obtained Ex.A1 fraudulently. The defendants also failed to prove that Ex.A1 was obtained by the plaintiff by playing fraud.
20. The learned counsel for appellants placed a reliance in the judgment in Bandarupalli Masthanamma vs. Ganguri Adinarayana and others1, in that decision it was held as follows:
The natural conclusion from all the circumstances is that he was affected by mental distress at the time owing to the treatment meted out to him by the members of his family. The transaction under Exhibit A1 was on the face of it unconscionable. Thus the facts give rise to the presumption under Section 16(3) of the Contract Act. Nagarattamma in her evidence 1 AIR 1966 AP 104 gives no rational explanation whatever for the gift. She denies having agreed to maintain him as mentioned in exhibit A1.
The learned counsel for appellants placed another reliance in the judgment in Smt Samitra Devi vs. Sukhwinder Pal2, in that decision it was held as follows:
If in a given case the genuineness of the will or gift is accepted as having been executed by the real executant then no wrong recital made by the executant goes against the legatee or the donee but where the genuineness of the document is in question and it is found that the same was obtained by fraud and misrepresentation then the recital cannot be attributed to the executant and will have to be attributed to the person who wanted to obtain undue benefit by mentioning wrong facts.
21. In a case of Subhas Chandra Das Mushib vs. Gnaga Prosad Das Mushib and others3, the three 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 three 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 defendants is that the same 2 AIR 1990 Punjab and Haryana 23 3 AIR 1967 Supreme Court 878 is obtained fraudulently by the donee. In the case on hand, the donor had no children, he died issueless and he executed a registered gift settlement deed in favour of his own sister's son on 27.03.1984 out of love and affection by giving vested reminder rights by retaining life interest with him.
The donor is alive till 1998, after 14 years of the execution of gift settlement deed, the donor died on 04.08.1998. During the life time of donor he has not issued any notice to the donee by saying that the said gift settlement deed is obtained fraudulently and so also by playing fraud. The donor did not challenge the gift settlement deed before the Court of Law. He simply executed a cancellation deed after a lapse of 11 years, in the year 1995, before the Sub-Registrar 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.
22. The learned counsel for the appellants relied on a judgment in Sonamati Devi and others vs. Mahendra Vishwakarma and others4 and also relied on a judgment in Amarsing Ratansing and another vs. Gosai Mohangir Somvargir and others5, in that decision it was held as follows:
According to Section 68 of the Evidence Act the necessity of examining an attesting witness would arise only when a document which is required 4 2021 Law Suit (SC) 1174 5 AIR 1972 Gujarat 74 by law to be attested is sought to be used in evidence and the execution thereof is questioned.
23. The learned counsel for appellants relied on another judgment in Duddumpudi Venkatarayudu vs. Duddumpudi Rajagopal @ Tatabbai and another6, in that decision it was held as follows:
Section 68 of the Evidence Act mandates that if a document, which is required by law, to be attested, cannot be used as evidence until one attesting witness, at least, has been called, for the purpose of proving its execution. Alternative methods are also indicated. If the deed is registered, the necessity to examine the attestors may not arise unless, the executant of the document denies his signatures on it.
24. The learned counsel for appellants placed another reliance in Kesava Kurup Raghava Kurup vs. Thomas Idicula and another7 in that decision 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.
In the case on hand the donor is not having any children and from out of love and affection he executed a registered gift settlement deed in favour of his own sister's son. The defendants are none other than the grand sons of the brother of the donor. The donor executed a registered 6 2012 (2) ALT 421 (S.B) 7 AIR 1969 Kerala 21 gift settlement deed in the year 1984 before the Sub-Registrar from out of love and affection in favour of the plaintiff by retaining life interest with him and vested remainder rights to the plaintiff. Subsequently after 14 years, the donor died on 04.08.1998 issueless. Chapter VII of Transfer of Property Act deals with the gifts generally and inter alia provides for the mode of making gifts. Section 122 of the Act defines gift as a 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. It is well settled that in order to constitute a valid gift, acceptance must, according to this provision be made during the life time of the donor and while he is still capable of giving. It stipulates that a gift is void if the donee dies before acceptance. In the case on hand, the donee is alive and the plaintiff is the donee and the donee accepted the said gift settlement deed. It is well settled that when read with Section 122 of the Act a gift may be made by a registered instrument duly signed by or on behalf of the donor and 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 life time of the donor and while he is still capable of giving is evident from a plain reading of Section 122 of the Act. A conjoint reading of Section 122 and 123 of the Act makes it abundantly clear that Transfer of possession of the property covered by the registered gift 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.
25. In a case of K.Bala Krishnan vs. K.Kamalam, 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 plaintiff by retaining life interest with him and giving vested remainder rights to the plaintiff. Here the plaintiff is none other than the son of own sister of the donor. The donor is not having children and the defendants are the grand sons of younger brother of the donor. To prove the Ex.A1 gift settlement deed to discharge his burden the plaintiff examined one of the attestor as PW2 and so also examined the scribe of Ex.A1 as PW3. The explanation offered by the plaintiff for non-examination of another attestor is another attestor died at about 4 years ago. The evidence of PW2 and PW3 inspires confidence about the execution of Ex.A1 gift settlement deed. Another important point is the execution of gift settlement deed is not at all disputed by the donor. The signatures and thumb mark on Ex.A1 is also not at all disputed by the defendants. The contention of the defendants is that by playing fraud the plaintiff obtained the said gift settlement deed. As stated supra, the alleged fraud is not proved by the defendants. The above gift deed is duly accepted by the donee. For the aforesaid reasons Ex.A1 gift deed is validly executed by the donor and accepted by the donee, accordingly the point No.1 is answered in favour of plaintiff.
26. Point No.2:
Whether the registered cancellation of gift settlement deed executed by late Kasani Venkata Subbaiah on 24.07.1995 is in valid?
The defendants relied on a cancellation of gift settlement deed Ex.B6, they pleaded that the Venkata Subbaiah executed a cancellation deed dated 24.07.1995 by cancelling the earlier gift settlement deed dated 27.03.1984, the reasons stated by the donor of gift settlement deed in cancellation deed is that the Ex.A1 gift deed is obtained by way of fraud by the plaintiff. As stated supra, the alleged fraud is not at all proved by the defendants. Now it has to be seen that whether the said cancellation deed is valid in accordance with law.
27. As per the own admissions of DW1 he is not having personal knowledge about the execution of Ex.A1 gift settlement deed and the original of Ex.B6 was written as per the instructions of the deceased Kasani Venkata Subbaiah. It goes to show that DW1/ first defendant was not having any knowledge about the gift settlement deed. DW2 is one of the attestor in Ex.B6. His evidence has confined with regard to the attestation of Ex.B6 only, but surprisingly as seen from the chief affidavit of first defendant i.e., DW1 and DW2, the entire contents of chief examination affidavit of DW1 and DW2 are one and the same.
28. A reliance has been placed by the learned counsel for appellants in Yanala Malleshwari vs. Smt Ananthula Sayamma8, in that decision 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 8 AIR 2007 AP 57 (F.B) 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, 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 others9 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 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".9
2012 (1) ALD 90 (SC) 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-Register, 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 questioning the alleged fraud played by the plaintiff but not by way of execution of cancellation deed before the Sub-Registrar. In the case on hand no notice was issued to the plaintiff i.e., donee before execution of cancellation deed before the sub registrar and the donor unilaterally cancelled the above gift settlement deed after a lapse 11 years from the date of registered gift settlement deed. Therefore, the original of Ex.B6 cancelation deed is void and non est.
29. The learned counsel for appellants placed a reliance in the case of Satya Pal Anand vs. State of Madhya Pradesh10, in that case, the Apex Court held as follows:
10
(2015)15 SCC 263 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 another11 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;
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:
11 (2022)7 SCC 1 "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 decisions 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.
30. The learned counsel for appellants placed a reliance in the judgment in Satya Pal Anand vs. State of Madhya Pradesh (supra), the facts in the case on hand relates to the cancellation of gift settlement deed which was registered before the Sub-Registrar. The facts and circumstances in the cited decision are different to the instant case.
31. The learned counsel for appellants placed a reliance in Naramadaben Maganlal Thakker vs. Pranjivandas Maganlal Thakker and others12, the 3 judge Bench of Apex Court by referring the above decision in a later judgment in Renikuntla Rajamma (deceased) by LRs. Vs. K.Sarwanamma13 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.12
(1997)2 SCC 255 13 (2014) 9 SCC 445
32. Another reliance is placed by the learned counsel for the appellants in Vella Satya Rajendra Krishna vs. Smt Vella Saroja Devi14, in the said case, this Court held as follows:
Coming to Section 126 of the Transfer of Property Act, a donor cannot suspend or revoke the gift deed unless there is condition. It is not a case where the plaintiff on her own cancelled Ex.A1. She duly approached the competent Court of law to declare Ex.A1 as vitiated fraud and misrepresentation. Hence, the contentions canvassed before the learned Additional District Judge that the plaintiff cannot cancel gift deed under Section 126 of the Transfer of Property Act deserves no merits and it is unsuited to the present situation.
33. Another reliance is placed by the learned counsel for the appellants in the case of Alapati Hymavathi (deceased) and others vs. Namburi Basava Subrahmanyam and others15 of composite High Court of Andhra Pradesh at Hyderabad, the decision of composite High Court of Andhra Pradesh was challenged before the Apex Court by the respondents before the composite High Court. The Apex Court allowed the appeal and set aside the judgment of composite High Court of Andhra Pradesh in the judgment in Namburi Basava Subrahmanyam vs. Alapati Hymavathi and others16 in Civil Appeal No.7599 of 1996. 14 2023 (6) ALT 422 (S.B) 15 1995 (3) ALD 889 (D.B) 16 AIR 1996 SC 2220 In the case on hand, the material on record amply proves that the plaintiff is the sister's son of Venkata Subbaiah and Venkata Subbaiah out of love and affection towards the plaintiff executed a registered gift settlement deed on 27.03.1984 in favour of the plaintiff where under he conveyed vested remainder rights to the plaintiff, by reserving life interest for himself. In the case on hand, the Ex.A1 gift settlement deed is duly accepted by the donee and the same is proved by examining one of the attestor in Ex.A1 as PW2 and so also scribe of Ex.A1 as PW3. Further more the execution of Ex.A1 gift settlement deed is not at all disputed by the donor. In the cancellation deed Ex.B6 itself the donor admitted about the execution of gift settlement deed. The contention of the defendants is that the said gift settlement deed is obtained by the plaintiff donee by playing fraud. As stated supra, the alleged fraud is not at all proved by the defendants. Therefore, the plaintiff got title in the plaint schedule property even though the possession of the same is postponed till the date of death of Kasani Venkata Subbaiah, the said gift settlement deed is accepted by the donee and acted upon. The material on record amply reveals that the donor, after 11 years of execution of registered gift settlement deed, unilaterally cancelled the registered gift deed before the Sub-Registrar without giving notice to the donee i.e., plaintiff, therefore, the said cancellation is non est.
34. The fact that the donor had reserved the right to enjoy the property during his life time did not affect the validity of the gift deed. A gift made by registered instrument duly executed by or on behalf of donor and attested by at least 2 witnesses is valid, if the same is accepted by or on behalf of donee. Such acceptance must, however, be made during the life time of donor and while he is still capable of making an acceptance.
35. 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 11 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 11 years of execution of gift settlement deed for cancellation of registered gift settlement deed without giving any notice to the donee i.e., plaintiff therefore, the said cancellation deed is nothing but a void and non est and meaningless transaction.
36. For the aforesaid reasons, I am of the considered view that the alleged registered cancellation deed said to have been executed by Kasani Venkata Subbaiah is a void document and it is not valid, accordingly, the point No.2 is answered in favour of the plaintiff.
37. Point No.3:
Whether the plaintiff is entitled recovery of possession of the plaint schedule property?
It was held on point No.1 that the donor Kasani Venkata Subbaiah validly executed a registered gift settlement deed in favour of the plaintiff by reserving life interest with him and vested remainder rights to the plaintiff. The same is accepted by the donee. As stated supra, the said registered gift settlement is duly proved by the plaintiff as per the provisions of Indian Evidence Act. It was also held in point No.2 that the donor Venkata Subbaiah unilaterally cancelled the said registered gift settlement deed after a lapse of 11 years from the date of execution of gift settlement deed without issuing any notice to the done, therefore, the said cancellation deed is non est and meaningless transaction. The contention of the defendants is that the Kasani Venkata Subbaiah executed a will on 05.06.1996 bequeathing the plaint schedule property in favour of the defendants. As stated supra, the date of will is 05.06.1996. 12 years prior to alleged Ex.B7 will, the Kasani Venkata Subbaiah executed a gift settlement deed on 27.03.1984 by retaining life interest with him and by giving vested remainder rights to the plaintiff and the said Kasani Venkata Subbaiah died in the year 1998. Therefore, the plaintiff is having absolute rights in the plaint schedule property and the Kasani Venkata Subbaiah has no right to transfer the ownership in the plaint schedule property by way of executing a will in favour of the defendants. Therefore, in view of the aforesaid reasons, the plaintiff is entitled the relief of recovery of possession of the plaint schedule property from the defendants. The plaintiff also entitled mesne profits as ordered by the trial Court till the date of delivery of possession. Accordingly, this point is answered.
38. Point No.4:
Whether the decree and judgment passed by the trial Court needs any interference, if so, to what extent?
In view of my findings on point Nos. 1 to 3, the trial Court is justified in decreeing the suit in OS.No.34 of 2000 and the decree and judgment passed by the trial Court is perfectly sustainable under law and it requires no interference.
39. Resultantly, this appeal is dismissed confirming the decree and judgment passed by the trial Court in OS No.34 of 2000 dated 28.04.2006. The defendants are directed to deliver the vacant possession of the plaint schedule property to the plaintiff within 3 months from the date of this judgment. The plaintiff is also entitled mesne profits as ordered by the trial Court till the date of delivery of possession. Considering the circumstances of the case, I order that 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 Date: 16.02.2024 sj 13 THE HON'BLE SRI JUSTICE V.GOPALA KRISHNA RAO APPEAL SUIT No.441 OF 2006 Date: 16.02.2024 sj IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI APPEAL SUIT No.441 OF 2006 Between:
Kasani Subba Rao, S/o.Malleswara Rao, aged about 62 years, Employee, R/o.Goudapalem, Vadlamudi, Chebrole Mandal, Guntur District and 4 others ... Appellants / defendants And Puli Radhakrishna Murthy, S/o.Peda Kotaiah, aged about 62 years, R/o.Goudapalem, Vadlamudi, Chebrole Mandal, Guntur District.
... Respondent/
plaintiff
DATE OF ORDER PRONOUNCED : 16.02.2024
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO
1. Whether Reporters of Local Newspapers
may be allowed to see the order? : Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? : Yes/No
_________________________
V.GOPALA KRISHNA RAO, J
* HONOURABLE SRI JUSTICE V.GOPALA KRISHNA RAO
+ APPEAL SUIT No.441 OF 2006
% 16.02.2024
APPEAL SUIT No.441 OF 2006 :
Between:
Kasani Subba Rao, S/o.Malleswara Rao,
aged about 62 years, Employee,
R/o.Goudapalem, Vadlamudi, Chebrole Mandal,
Guntur District and 4 others ... Appellants /
defendants
And
Puli Radhakrishna Murthy, S/o.Peda Kotaiah,
aged about 62 years, R/o.Goudapalem,
Vadlamudi, Chebrole Mandal, Guntur District.
... Respondent/
plaintiff
! Counsel for Appellants : Sri P.A.Seshu
^ Counsel for Respondent : Sri V.S.R.Anjaneyulu
< Gist:
> Head Note:
? Cases referred:
1. AIR 1966 AP 104
2. AIR 1990 Punjab and Haryana 23
3. AIR 1967 Supreme Court 878
4. 2021 Law Suit (SC) 1174
5. AIR 1972 Gujarat 74
6. 2012 (2) ALT 421 (S.B)
7. AIR 1969 Kerala 21
8. AIR 2007 AP 57 (F.B)
9. 2012 (1) ALD 90 (SC)
10. (2015) 15 SCC 263
11. (2022)7 SCC 1
12. (1997)2 SCC 255
13. (2014) 9 SCC 445
14. 2023 (6) ALT 422 (S.B)
15. 1995 (3) ALD 889 (D.B)
16. AIR 1996 SC 2220