Document Fragment View
Fragment Information
Showing contexts for: void deed in Deepak Gupta vs Mr. Ajay Gupta on 28 March, 2022Matching Fragments
30. He further stated that in order to oust him from the suit property, his father Sh. Janardhan Gupta and his three brothers hatched a conspiracy as per which his father Sh. Janardhan Gupta executed a gift Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 16 /77 deed dated 05.11.2009 in favour of Sh. Deepak Gupta and Ms. Ritu Gupta (Defendants no. 5 & 6 herein) i.e. the plaintiffs in the first suit. He came to know about the execution of the gift deed on 10.12.2009. It is alleged that the said gift deed is void and illegal as his father Sh. Janardhan Gupta had no authority to gift the suit property in favour of anyone as he was not the sole owner of the suit property. The suit property is alleged to be a Joint Hindu Family property. It is also stated that the physical possession of the gifted property was not given by the donor to the donee. The donees i.e. the plaintiffs in the first suit and the defendants no. 5 and 6 in the second suit had got executed gift deed from Sh. Janardhan Gupta who is aged about 80 years under influence and pressure. The disputed portion of suit property is in possession of the plaintiff since March 1997 without any interference.
6. "para 6 as stated is wrong and denied. It is wrong that defendant no.3 Sh. Janardhan Gupta was competent to transfer the suit property vide gift deed dated 05.11.2009. The said gift deed is a manipulated, forged and fabricated document and was got executed from defendant no. 3 in collusion, conspiracy and fraud by the plaintiff and Sh. Abhimanyu Gupta, Sh. Vijay Gupta and Sh. Abhinav Gupta, sons of defendant no. 3 Sh. Janardhan Gupta. The said gift deed is void document unenforceable against the answering defendants.
96. I have perused the said citation carefully. There is no dispute that as per section 123 of Transfer of Property Act, the only requirements for gifting of immovable property are registered instrument, signed by the donor and attested by at least two witnesses. Once these requirements are fulfilled the transfer of title in the immovable property by way of gift is completed. Law does not mandate any other requirement leave aside the transfer of possession of the gifted property by the donor to the donee. Accordingly, the argument of Ld. Counsel for Sh. Ajay Gupta that the fact that the physical possession of the suit property has not been transferred by Sh. Janardhan Gupta to Sh. Deepak Gupta and Smt. Ritu Gupta at the time of execution of gift deed makes the gift deed void and invalid is deprived of any merit. As regards the argument that the gift deed is an unnatural document, as it purports to gift the suit property to one of the grandson and one daughter in law of Sh. Janardhan Gupta leaving aside his other children, wife and grandchildren, I do not find any merit in this arguments. As held above, Sh. Janardhan Gupta was the absolute owner of the property gifted vide gift deed (Ex.PW1/4) and was thus, completely entitled to transfer it to anyone by way of gift or through any other mode. Mere bald argument that other legal representatives of Sh. Janardhan Gupta have been left out by him while executing the gift deed shows practice of fraud and undue influence in executing the gift deed without support from any kind of pleadings or evidence does not inspire the confidence of the court.
xxxxxx
4. The limited question that arises for consideration is what is the court fee payable in regard to the prayer for a declaration that the sale deeds were void and and not "binding on the coparcenary", and for the consequential relief of joint possession and injunction.
xxxxxx
7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a nonexecutant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, Civ. DJ. No. 609563/2016 Deepak Gupta Vs. Ajay Gupta & Anr. & Civ. DJ. No. 609627/2016 Ajay Gupta Vs. Janardhar Gupta & Ors. 70 /77 can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non est/illegal and he is not bound down by it. In essence both may be suing to have the deed set aside or declared as nonbinding. But the form is different and court f is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad volorem court fee on the consideration stated in the sale deed. If B, who is a nonexecutant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay fixed court fee of Rs. 19.50 under Article 17 (iii) of the Second Schedule of the Act. But if B, a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad volorem court fee as provided under Section 7 (iv) (c) of the Act.