Andhra HC (Pre-Telangana)
Abdul Razak Chand vs Mohammed Sayeed And Ors. on 28 March, 2002
Equivalent citations: 2002(3)ALD572
JUDGMENT L. Narasimha Reddy, J.
1. In this appeal, the 3rd defendant in OS No.486 of 1983 on the file of the 3rd Additional Senior Civil Judge, Vijayawada, challenges the judgment and decree therein. The parties are referred to as arrayed in the suit.
2. The plaintiff/respondent filed the suit tor declaration of title in respect of the suit schedule property. According to him, the 1st defendant was the absolute owner of the property. She being the sister of his mother made an oral gift of the suit property on 2-1-1981. Since the parties are Muslims, oral gift is permissible. He was put in possession and ever since the date of gift, he has been enjoying the property. It was further pleaded that the 1st defendant executed a registered settlement deed dated 2-6-1981 in favour of the 2nd defendant, who is her grand daughter, he said settlement deed, however, was revoked by the 1st defendant through another deed dated 24-8-1981. On the same day, she is alleged to have executed a sale deed in favour of the 3rd defendant for a consideration of Rs. 47,500/-. It is the case of the plaintiff that inasmuch as the property stood transferred in his favour on 2-1-1981 itself, the subsequent settlement deed in favour of the 2nd defendant on 2-6-1981 and the sale in favour of the 3rd defendant on 24-8-1981 are of no consequence in law. The plaintiff alleged that he is in possession of the property and he does not expect any threat to his possession. In that view of the matter, the relief of declaration simplicitier was claimed.
3. After the summons in the suit were served, the 1st and 2nd defendants filed a Memo, wherein it was admitted that the 1st defendant made an oral gift of the suit schedule property in favour of the plaintiff on 2-1-1981. It was also stated that the 3rd defendant misrepresented and pleaded fraud in bringing about the sale in his favour. The 1st and 2nd defendants disowned the settlement as well as the sale, Though the 3rd defendant was served, he did not enter appearance and accordingly was set ex parte.
4. In view of the Memo filed by the 1st and 2nd defendants, the trial Court decreed the suit on 30-11-1983.
5. The 3rd defendant filed IA No.297 of 1988 under Order IX, Rule 1 CPC for setting aside the ex parte decree dated 30-11-1983. The IA was allowed on 26-9-1981 and the suit was restored.
6. The 3rd defendant filed written statement pleading that the 1st defendant did not make any oral gift in favour of the plaintiff on 2-1-1981. He claimed that the sale deed dated 24-8-1981 in his favour is supported by consideration and has resulted in conveyance of title. According to him, he was in possession of the suit schedule property as lessee since 1967 onwards and he permitted the plaintiff, who is his brother and also his other two brothers, to reside in a portion of the suit schedule property. The possession of plaintiff, according to the 3rd defendant, was permissive. The 3rd defendant has also submitted that himself and the plaintiff had executed an agreement of sale in favour of one Mr. Radhakrishna Murthy for a consideration of Rs.2.62 lakhs and part of the sale consideration was received.
He stated that the said Radhakrishna Murthy filed OS.No.363 of 1986 on the file of the Sub-Court, Vijayawada, for specific performance of the agreement of sale and the suit was later on transferred to the Court of II Additional District Judge, Vijayawada, where it was renumbered as OS.No.22/1991.
7. The 3rd defendant further alleged that the plaintiff took advantage of his relationship with him and got filed a written statement, which was detrimental to the interest of the 3rd defendant. He, however, pleaded that the plaintiff played similar fraud in bringing about the suit.
8. During the pendency of the suit, the 1st defendant also filed a written statement retracting from the stand taken by her in the memo filed on behalf of herself and the 2nd defendant, on the basis of which the suit was decreed earlier. During the pendency of the suit, the 1st defendant died and, as such, the suit was dismissed against her.
On the basis of the above pleadings, the trial Court framed the following issues:-
"1. Whether the plaintiff is entitled for declaration of title to suit schedule property?
2. Whether the oral gift pleaded by plaintiff is true?
3. Whether the settlement deed dated 2-6-1981 and the revocation deed dated 24-8-1981 are true and valid?
4. To what relief?
Additional Issue :--
Whether the sale dated 24-8-1981 in the name of the 3rd defendant is true, valid, legal and tenable at Law?
On behalf of the plaintiff, PWs.1 to 3 were examined and documents ExsA1 to A72 were marked. On behalf of the defendants, DWs. 1 to 8 were examined and they marked documents Exs. 81 to B36. The memo filed by the 1st and 2nd defendant on 2-11-1983 was marked as Ex.C1. On appreciation of the oral and documentary evidence, the trial Court decreed the suit as prayed for, through its judgment dated 22-4-1998. Thus arises the appeal.
10. Sri T.S. Anand, learned Counsel for the appeilant/3rd defendant, submits that the plaintiff failed to prove and establish that the 1 st defendant gifted the suit schedule property in his favour. According to him, the trial Court had decreed the suit mainly on the basis of the admissions of the 3rd defendant than on independent material, touching on the issue, it is also his contention that the possession of the plaintiff was permissive and the various contradiclions in the evidence should have resulted in denial of the relief to the plaintiff. He has cited number of decisions in support of his various contentions.
11. Sri S. Srinivasa Reddy, learned Counsel for the respondent/plaintiff, on the other hand, submits that the trial Court based its conclusions on the unimpeachable evidence and the findings do not call for any interference. It is his submission that the admission by the 3rd defendant as to the existence of oral gift in favour of the plaintiff was a strong circumstance in favour of the plaintiff. He has also submitted that even if for any reason the gift in favour of the plaintiff is to be disbelieved, the settlement in favour of the 2nd defendant on 20-6-1981, made through a registered deed, could not have been revoked except through a decree of a competent Court, particularly when the 2nd defendant was a minor at the relevant point of time. On this premise, he submits that as long as the settlement subsists in the eye of law, the sale deed dated 24-8-1981 in favour of the 3rd defendant was, on the face of it, illegal.
12. In view of the above submissions of the learned Counsel for the respective parties, are point that arises for consideration is-
Whether the defendant No. 1 has made an oral gift in favour of the plaintiff on 2-1-1981.
13. Gift is one of the modes of transfer of property. Transfer of Property Act stipulates a definite procedure to be followed while transferring any property by way of gift. However, the procedure stipulated under the Transfer of Properry Act is not applicable for the gifts made by persons belonging to the Muslim community. Their personal law permits gift to be made orally and such a right has been recognized in law, if the declaration of title is on the basis of a gift governed by the provisions of Transfer of Property Act, there would be absolutely no difficulty for answering the issue. What is needed to be placed before the Court, in such a case, is a Deed of Gift, which conforms the requirement of provisions of the Transfer of Property Act. However, where the declaration of title is sought on the basis of an oral gift, the Court has to take into account several factors in the form of oral and documentary evidence. It is the net result of appreciation of this evidence that should result in acceptance or denial of the existence of an oral gift. Therefore, it has to be seen as to whether the plaintiff has placed necessary evidence before the Court to establish that there was an oral gift by the 1 st defendant in his favour.
14. The best person to speak about the existence or otherwise of the oral gift is the donor herself, who is no other than the 1st defendant. Her attitude vis-a-vis the property at the relevant point of time or subsequent thereto, would be of great significance. As observed earlier, on receipt of summons in the suit, defendants 1 and 2 filed a common memo, which is marked as Ex.Cl, stating that the suit schedule property was orally gifted on 2-1-1981 in favour of the plaintiff, it was also stated that under the influence of the 3rd defendant, the 1st defendant executed a settlement deed dated 2-6-1981 as well as the sale deed dated 24-8-1981. She further stated that the settlement deed dated 2-6-1981 and sate deed dated 24-8-1981 were not correct and true. On the basis of this, the suit was decreed earlier.
15. Ex.A46 is another document, which indicates the version of the defendant as regards this. It is a memo filed by her in EP 34 1985 in OS. 1042/77. The suit was filed by Vijayawada Municipality against D1 where a decree was obtained and when EP was filed, D-1 herein filed the memo to the following cffect:-
"It is submitted that the JDr herein has already gifted away the schedule property which is shown in the EP proceedings to one Mohd. Sayeed on 2-1-1981".
16. After the suit was restored at the instance of the 3rd defendant, the 1st defendant has also filed a written statement retracting from the statement made by her in Ex.C1. However, even before her evidence could be recorded, she died. In view of the death of the 1 st defendant, the contents of the written statement filed by her remained unproved. Consequently the stand taken by her in Ex.C1 and Ex. A46 remains unaltered.
17. Another strong circumstance which touches on the validity of the gift is Ex.A66, which is an agreement of sale executed by the plaintiff and the 3rd defendant jointly in favour of one Radhakrishna Murthy. The recitals in this agreement show that the 3rd defendant has not only acknowledged the existence of an oral gift in favour of the plaintiff made by the 1st defendant on 2-1-1981. but also stated that the sale deed dated 24-8-1981 (Ex.B1) is invalid. It was declared by him that he has no right or interest in respect of that very property.
18. Sri Anand, learned Counsel for the 1st defendant/appellant, submits that the admission by the 3rd Defendant as DW1 about the oral gift in Ex.A66 cannot be taken into account and at the most, it can be a factor to estop him to plead otherwise. Placing reliance upon Section 31 of the Evidence Act, he submits that the admission in Ex.A66 by the 3rd defendant does not by itself create the title in favour of the plaintiff. The principle of law pleaded by the learned Counsel is correct. It is also true that the plaintiff in a suit for declaration of title has to depend on the strength of his case but not on the weakness of the case of the defendants (See Brahmanand v. Mithrapuri, AIR 1965 SC 1506). The fact, however, remains that there is strong and reliable evidence in support of the plea of the plaintiff in the form of Exs.C1 and Ex.46. Ex.A66 cannot constitute the sole basis for declaration of title in favour of the plaintiff. However, it does strengthen the case of the plaintiff. The admission of the contesting defendant, that too in unequivocal terms, in Ex.A66, cannot be ignored and it constitutes an important piece of evidence in support of the plaintiff. Therefore, it cannot be said mat the finding of the trial Court that the plaintiff proved the oral gift in his favour is without any basis.
19. The learned Counsel for the 3rd defendant/appellant has also submitted mat since the plaintiff failed to examine the persons in whose presence the oral gift is said to have been made, an adverse inference deserves to be drawn. In support of his contention, he relied upon the judgments in Irrudayam Ammal v. Salvath Mary, and Motilal v. Chandra Pratap, , In his evidence, the plaintiff, as PW1, has stated that he could not examine the two persons who were present when the oral gift was made because he could not find the addresses and whereabouts of them. It also needs to be observed that unlike in the case of a Will, examination of witnesses is not inevitable in the case of an oral gift. When the donor herself admitted the gift and DW1, the only person to challenge the same, has admitted and acquiesced the existence of the same (which is evident from Ex.A66), the failure to examine the persons, who were said to have been present when the Gift was made, will not adversely affect the case of the plaintiff.
20. The learned Counsel has also relied upon the catena of citations touching upon the issue of burden of proof, degree of proof, etc. I am of the view that the trial Court had properly placed the burden upon the plaintiff and the plaintiff has discharged his burden in proving the oral gift. Therefore, the finding of the trial Court on this aspect does not call for any interference. There is another aspect of the matter. The learned Counsel for the plaintiff submits that even if the oral gift in favour of the plaintiff is to be ignored, the sale deed in favour of the 3rd defendant cannot be sustained.
21. According to him, admittedly, the 1 st defendant executed a Deed of Settlement on 2-6-1981, Defendant No.2 was a minor. Settlement once made in accordance with law cannot be revoked except through a decree of the Court. He relied upon the judgment of this Court in M. Venkata Subbaiah v. M. Subbamma, AIR 1956 Andhra 195 and also Tukaram Prithamji Patil v. Emperor, AIR 1946 Nag. 256. According to the Counsel, the revocation of the settlement is contrary to law and once that is so, the sale deed executed in favour of the 3rd defendant during the subsistence of settlement in favour of the 2nd defendant cannot convey any title. The proposition of law put forward by the learned Counsel is correct. However, the said proposition does not, in any way, enure to the benefit of the plaintiff. The reason is that absence of title in favour of the 3rd defendant by itself cannot confer title in the plaintiff.
22. The learned Counsel for the 3rd defendant has also submitted that the suit with the relief of declaration simpliciter was not maintainable in law. According to him, the plaintiff sought for a temporary injunction under Order XXXIX, Rule 1 of CPC, which indicated that it was also necessary for him to seek the relief of permanent injunction. In this regard, it needs to be observed that the principle underlying Section 34 of the Specific Relief Act is that the plaintiff seeking the relief of declaration should also seek the other reliefs if he is able to do so. The test is that as to whether on the date of filing of the suit, it was sufficient for the plaintiff to seek the relief of declaration alone or certain other reliefs also ought to have been sought for. If as on the date of filing of the suit, the plaintiff did not have the necessity to seek further relief, suit for mere declaration is maintainable. Subsequent developments do not have any impact on the maintainability. The entitlement or necessity of the plaintiff to seek further relief on account of developments that took place during the pendency of the suit does not render the suit not maintainable. (See Kalyan Singh v. Vakil Singh, ). Therefore, I see no force in this contention.
23. In view of the foregoing discussion. I do not see any ground to interfere with the judgment and decree of the trial Court. The appeal is accordingly dismissed. No costs.