Document Fragment View

Matching Fragments

OS.No.2851/2012
1. Whether the plaintiff proves that the Gift Deed dtd.13.3.1958 is conditional gift deed?

(REFRAMED on 16.9.2020)

2. Whether the plaintiff further proves the alleged interference by the defendants in respect of suit Schedule B property?

3. Whether the 1st defendant proves that the suit filed by the single person ie., the original plaintiff is not maintainable as contemplated under Sec.92 of CPC?

4. Whether the defendant No.1 further proves that the suit is barred under Order 2 Rule 2 CPC?

29. When there is no conditions in the Gift deed itself, fulfilling unknown conditions does not arise and the argument of the Plaintiff that the Gift Deed was conditional cannot be accepted. Moreover, in the present case, the Gift deed itself states that the property is transferred without any conditions. The relevant para has been extracted as below:

"In pursuance of the aforesaid request made by the donor and it is acceptance by the donee, the donor hereby doth convey, assign and transfer to the donee, the schedule plot absolutely by way of gift and to have and to hold the same as his absolute property free from all encumbrance, charges, conditions and claims whatsoever made by the donor or any one claiming through him."

32. It is also specifically stated in para 4 of the plaint that the clause in the Gift deed is very clear that the property shall not be put to any commercial activities other than for the benefit and welfare of the Catholics and towards the activities of the church and they have been of acting contrary to the desire of the donor, the donor is having every right under the provisions of the T.P.Act for revocation. The said revocation can be done on the happening of a specified event which is against the wish of the donor as recited in the Gift Deed. On meticulous perusal of the Gift Deed, gift deed do not reflect the pleadings as stated in para 4 of the plaint. There is no specific recitals in the entire pleading that the Suit schedule property should not be used for any commercial purpose. There is also no recitals in the gift deed that on the happening of event, the plaintiff is having right to revoke the Gift Deed. Hence, the contention of the plaintiff that the Gift deed is conditional cannot be accepted. Even perusal of the lease deed dtd.15.11.1954 Ex.D2, original lease is dated 1.7.1961 Ex.D3 and lease deed dtd.21.11.1984 Ex.D4, it shows that 1st defendant was in habit of leasing the church OS.No.2851/2012 property on lease for using the rent collected for the charitable purpose. Therefore, this court is of the firm opinion that the Gift deed is not a conditional gift Deed. Therefore, question of violation of Gift Deed does not arise for consideration.

34. Evidence has to be weighed and not counted. When both the parties have led the evidence, the question of onus fades into oblivion and the entire evidence has been appreciated as a whole. While appreciating the evidence, it is the duty of the Court to OS.No.2851/2012 sift the grain from the chaff. The court has to appreciate the evidence in its total gist and not to pick one some scattered sentences, else one may miss the wood for the trees. The final picture that has emerged on the basis of the entire evidence, and testing the same on the altar of preponderance of probabilities that Ex.P2 is an absolute Gift Deed and the Gift Deed is not conditional. When the Gift Deed is not conditional, the violation of Gift Deed does not arise for consideration. Even if it is considered as conditional, there is no event that has taken place to render the Gift Deed as Void. Therefore, issue No.1 is answered in the negative and Addl. Issue No.2 does not arise for consideration,