Himachal Pradesh High Court
Smt. Soma Devi Daughter Of Late vs K. Sarwanamma on 13 May, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13th DAY OF MAY 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
REGULAR SECOND APPEAL No. 551 OF 2008
Between:-
SMT. SOMA DEVI DAUGHTER OF LATE
SHRI RANJHA RAM, WIFE OF SHRI RAM ASARA
SHARMA, RESIDENT OF VILLAGE KATHER,
POST OFFICE CHANBAGHAT,
TEHSIL & DISTRICT SOLAN (H.P.)
THROUGH GPA SHRI RAM ASHRA SHARMA.
.....APPELLANT
(BY SH. VINOD GUPTA, ADVOCATE)
AND
1. SMT. MURTU DEVI
WIFE OF SHRI KEWAL RAM,
RESIDENT OF RANJHA RAM BUILDING,
NEAR RAILWAY TUNNEL, MAUJA KATHER,
SOLAN CITY, TEHSIL AND DISTRICT SOLAN,
HIMACHAL PRADESH.
2. SMT SANTOSH KUMARI
DAUTHER OF LATE SHRI RANJHA RAM,
WIFE OF SHRI RAMESH CHAND,
RESIDENT OF RANJHA RAM BUILDING,
NEAR RAILWAY TUNNEL, MAUJA KATHER,
SOLAN CITY, TEHSIL AND DISTRICT SOLAN,
HIMACHAL PRADESH.
.....RESPONDENTS
(SH. VINOD THAKUR, LEGAL AID COUNSEL FOR R-1
NONE FOR R-2 THROUGH SERVED)
Whether approved for reporting?
_________________________________________________
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2
This petition coming on for hearing this day, the
Court passed the following:
.
JUDGMENT
Appellant was the plaintiff before the learned trial Court.
A civil suit was filed by him for declaration that the gift deed executed by late Sh. Ranjha Ram in favour of respondent No.1 (contesting defendant No.1) was void ab initio. Further prayer was made for restraining respondent No.1 from creating any charge or alienating the suit property in question.
2. Learned trial Court vide judgment and decree dated 13.07.2006 dismissed the suit. The learned trial Court held that late Sh. Ranjha Ram had executed the gift deed of his own free will. That the gift deed was duly proved in evidence by defendant No.1 in accordance with law. It was held that defendant No.1 was not in a position to dominate the will of Sh. Ranjha Ram. The first appeal filed by the plaintiff was also dismissed on 13.06.2008. Not satisfied, the plaintiff has taken this third chance in terms of the present regular second appeal. This appeal was admitted on 19.06.2012 on the following substantial question of law:-
"4. Whether in the facts and circumstances of the case, the gift can be said to be valid when the property in question had not passed in favour of the donee during the life time of late Ranjha Ram."::: Downloaded on - 13/05/2022 20:07:09 :::CIS 3
3. After hearing learned counsel for the parties and carefully perusing the records, it comes out that the question of law .
No.4 so framed by the plaintiff was never raised before the learned Courts below. The plaintiff had challenged the gift deed only on ground of alleged fraud, undue influence and also on alleged mental incapacity of Sh. Ranjha Ram. Issues were accordingly framed in the Civil Suit. Parties led evidence thereupon. Concurrent findings of both the learned Courts below are to the effect that the gift deed was duly registered and attested by the witnesses. Its due execution was proved by defendant No.1 by examining the scribe Sh. Om Parkash Sharma (DW-2) and attesting witness Baldev Singh DW-3.
Defendant No.1 in her deposition as DW-1 proved her defence that Sh. Ranjha Ram was mentally fit at the time of execution of gift deed and that he had made the gift deed of his own free volition and will as well as without any influence or fraud. The Gift deed was a registered document. Both the learned Courts below also noticed that the plaintiff and defendant No.2 (plaintiff's sister) were residing far from the place of residence of Sh. Ranjha Ram. That the plaintiff and defendant No.2 never rendered any services to late Sh. Ranjha Ram.
There are also concurrent findings recorded by learned Courts below to the effect that the there is no evidence on record to show that late Sh. Ranjha Ram had lost his mental capacity and that he was not in ::: Downloaded on - 13/05/2022 20:07:09 :::CIS 4 a position to understand good or bad at the time of execution of the gift deed.
.
It has also been noticed by the learned Courts below that the plaintiff had not stepped into the witness box and therefore adverse inference was drawn against her. Plaintiff's application moved under Order 41 Rule 27 CPC before the learned First Appellate Court was dismissed, wherein the plaintiff wanted to examine herself. The plaintiff had not appeared a witness before the learned trial Court. Her husband had appeared as her General Power of Attorney. In view of the nature of the case instituted by the plaintiff, there was no illegality in the order passed by the learned First Appellate Court in dismissing her application as requirements of Order 41 Rule 27 CPC were not met with.
The question being raised now, was not at all raised by the plaintiff before the learned Courts below. Sh. Ranjha Ram, the executant of the gift deed had not assailed this document during his life time. The learned Courts below have already held on facts that defendant No.1 was in possession of property in question prior to the execution of the gift deed in her favour by Ranjha Ram. In this regard it would be appropriate to refer to (2014) 9 SCC 445 titled Renikuntla Rajamma Vs K. Sarwanamma, wherein following was observed in respect of Sections 123 to 129 of Transfer of Property Act:-
::: Downloaded on - 13/05/2022 20:07:09 :::CIS 5"10. Section 123 regulates mode of making a gift and, inter alia, provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of .
the donor and attested by at least two witnesses. In the case of movable property, transfer either by a registered instrument signed as aforesaid or by delivery is valid under Section 123. Section 123 may at this stage be gainfully extracted:
"123. Transfer how effected - For the making of a gift of immoveable 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."
11. Sections 124 to 129 which are the remaining provisions that comprise Chapter VII deal with matters like gift of existing and future property, gift made to several persons of whom one does not accept, suspension and revocation of a gift, and onerous gifts including effect of non-acceptance by the donee of any obligation arising thereunder. These provisions do not concern us for the present. All that is important for the disposal of the case at hand is a careful reading of Section 123 (supra) which leaves no manner of doubt that a gift of immovable property can be made by a registered instrument singed by or on behalf of the donor and attested by at least two witnesses. When read with Section 122 of the Act, a gift made by a registered instrument duly ::: Downloaded on - 13/05/2022 20:07:09 :::CIS 6 signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the 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 Sections 122 and 123 of the Act makes it abundantly clear that "transfer of possession" of the property covered by the registered instrument of the gift 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 Property Act, 1882.
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19. The above decision clearly rests on the facts of that case.
If the gift was conditional and there was no acceptance of the donee it could not operate as a gift. Absolute transfer of ownership in the gifted property in favour of the donee was absent in that case which led this Court to hold that the gift was conditional and had to become operative only after the death of the donee. The judgment is in that view clearly distinguishable and cannot be read to be an authority for the proposition that delivery of possession is an essential requirement for making a valid gift.
20. 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."
::: Downloaded on - 13/05/2022 20:07:09 :::CIS 7In view of the above discussions, no case of interference in the concurrent findings recorded by the two learned Courts below .
is made out. The present appeal is dismissed accordingly. Pending application(s), if any, also stand disposed of accordingly.
Jyotsna Rewal Dua Judge 13th May 2022 (rohit) ::: Downloaded on - 13/05/2022 20:07:09 :::CIS