NARAYANAMMA v. PAPANNA — 1987 DIGILAW 39 (KAR)

JUDGMENT K.A. Swami, J. This appeal is by the plaintiffs 1 and 3 against the Judgment and decree dated 26-11-1976 passed by the learned Principal Civil Judge, Bangalore City in R.A. No. 26/1975 affirming the Judgment and decree dated 22-11-1974 passed by the learned I Additional First Munsiff, Bangalore City in O.S. 980/1969 dismissing the suit filed the partition and separate possession of half share of the plaintiffs in the suit schedule property. There were three plaintiffs in the suit. During the pendency of the suit, the 2nd Plaintiff died leaving behind no issues. Therefore, she was given up. Similarly, there were two defendants in the suit. The 1st defendant died during the pendency of the suit. The 2nd defendant being the only legal representative of the 1st defendant, he was shown as the legal representative of the 1st defendant. Thus, plaintiffs 1 and 3, the defendant - 2 who became the L.R. of the 1st defendant, remained as parties to the suit. The suit property is a house bearing No. 49, Papanna Lane, Kavadi, Revanna Settypet, Bangalore City. The Trial Court held that Thimmakka, who became the absolute owner of the suit property on the coming into force of the Hindu Succession Act, was competent and entitled to gift the suit property. Therefore, the gift made by her on 7-9-1960 (Ex. P. 4) in favour of Papanna (defendant - 2) was valid. The plaintiff relied upon the deed of cancellation dated 28-7-1962 (Ex. P. 8) executed by Thimmakka - the donor, and contended that having regard to the cancellation of the gift by the donor himself, defendant - 2 Papanna did not get any right in the suit property. Therefore, the suit property is available for partition between the plaintiffs and defendant - 2. The trial Court rejected this contention and it held that the original of the cancellation deed had not been produced. Therefore, it was not open to the plaintiffs to rely upon the same. It accordingly dismissed the suit. In the appeal, it appears the appellants (Plaintiffs) challenge the finding of the trial Court only in so far as it related to the validity of the deed of cancellation (Ex. P. 8), cancelling the gift deed. Therefore, it was not open to the plaintiffs to rely upon the same. It accordingly dismissed the suit. In the appeal, it appears the appellants (Plaintiffs) challenge the finding of the trial Court only in so far as it related to the validity of the deed of cancellation (Ex. P. 8), cancelling the gift deed. The lower appellate Court came to the conclusion that the gift was an absolute one, it did not prescribe any condition as to maintenance of the donor by the donee but it was only a pious desire of the donor. Therefore, Thimmakka, the donor, having regard to the provisions contained in Section 126 of the Transfer of Property Act, (hereinafter referred to as the 'Act'), was not entitled to execute the deed of cancellation (Ex. P. 8) and revoke the gift. The appellate Court did take into consideration the cancellation deed inasmuch as it came to the conclusion that the trial Court was not justified in excluding it from consideration, on the ground that the original of it had not been produced, as the plaintiffs had called upon the 2nd defendant to produce the original deed of cancellation since the same was with him, as he failed to produce the same, the plaintiffs were entitled to adduce secondary evidence and rely upon it, and accordingly they produced secondary evidence by producing a certified copy of the registered cancellation deed. However, as already pointed out on the point of competency, of the donor to cancel the gift deed, the appellate Court held against the plaintiffs. Accordingly, it confirmed the decree of the trial Court. In this second appeal Sri R. Suryanarayanaswamy, learned Counsel for the appellants contends that the gift was a conditional gift and the condition mentioned therein was not fulfilled, therefore, Thimmakka - the donor was entitled to unilaterally cancel it, and she did cancel it on 28-7-1962 by registered documents. It is also further contended that having regard to the recitals contained in the gift deed as to maintenance of the donor by the donee, the right to revoke it, even though it is not explicitly stated in the gift deed, must be held to be an implied condition of the gift itself as otherwise, the condition as to maintenance is rendered nugatory. Therefore, it is contended the case falls under the second portion of Section 126 of the Act viz., "A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded". It is also further submitted that proper issues have not been framed and issue No. 4 is a very bald one and in view of the failure to frame an issue as to whether there was a valid cancellation of the gift deed by the donor, great prejudice is caused to the case of the plaintiffs - appellants. On the contrary Sri B. Rudra Gowda, learned Counsel for the respondent - defendant - 2 submits that the gift is an absolute gift, the recitals contained in the gift deed do not give any scope for construing it as a conditional gift or the donor reserving the right of revocation. Therefore, in the absence of such reservation as to revocation of the gift deed, even if the recital as to maintenance found in the gift deed are construed as amounting to a condition, such a condition does not invest the donor with the power, or reserve any such right to the donor, to revoke the gift deed unilaterally. It is also further submitted that having regard to the provisions contained in Section 126 of the Act, the gift can be cancelled only in the manner provided therein and not in any other manner; that the recital as to maintenance of the donor found in the gift deed, even if construed as amounting to condition, it only enables the donor either to enforce that condition through the Court of law and obtain a decree for maintenance or to have the gift deed cancelled on that ground through the Court of law and in any case it does not enable the donor to unilaterally revoke the gift deed. Having regard to the aforesaid submissions made on both sides, the following points arise for consideration : (i) Whether proper issues have been framed in the suit ? (ii) Whether Thimmakka the donor was entitled to revoke the gift deed, and if so, whether the document dated 28-7-1962 (Ex. P. 8) was valid in Law ? Having regard to the aforesaid submissions made on both sides, the following points arise for consideration : (i) Whether proper issues have been framed in the suit ? (ii) Whether Thimmakka the donor was entitled to revoke the gift deed, and if so, whether the document dated 28-7-1962 (Ex. P. 8) was valid in Law ? I do not find any merit in the submission made by Learned Counsel for the appellant that proper issues have not been framed in the suit. Issues Nos. 4 and 7 framed in the suit areas follows : "4. Whether this 2nd defendant is the absolute owner of the suit schedule property and is in possession of the same by virtue of the Gift deed and Release Deed dated 7-9-1966 respectively? 7. Whether the plaintiffs are entitled to half share in the suit schedule property ?" Admittedly there was a gift deed executed by Thimmakka. If the plaintiffs were to succeed in getting their half share in the suit schedule property which was gifted by Thimmakka through whom the plaintiffs claim half share in the suit property they were required to establish that Thimmakka had the right to revoke the gift and she did revoke it. That being so, the Court below rightly framed issue No. 7. The 2nd defendant claimed exclusive ownership. Therefore issue No. 4 was rightly framed, placing the burden upon the 2nd defendant to establish his title under the gift deed and the release deed dated 22-7-66 Ex. D. 8. It is not possible to hold that any prejudice whatsoever had been caused to the plaintiffs - appellants. No doubt it would have been more satisfactory if a separate issue as to the proof and validity of Ex. P. 8 had been framed. However issue No. 7 is wide enough to cover the deed of cancellation inasmuch as without proving Ex. P. 8 and its validity, the plaintiffs could not think of succeeding in the suit. The plaintiffs were fully aware of the fact that they were required not only to prove the deed cancellation, but its validity also. Accordingly, they called upon the 2nd defendant to produce the same. As the 2nd Defendant did not produce, they adduced secondary evidence. The lower appellate Court has taken it into consideration. The plaintiffs were fully aware of the fact that they were required not only to prove the deed cancellation, but its validity also. Accordingly, they called upon the 2nd defendant to produce the same. As the 2nd Defendant did not produce, they adduced secondary evidence. The lower appellate Court has taken it into consideration. Thus having regard to the facts and circumstances of the case and the evidence adduced by the plaintiffs no prejudice is caused to them. The question as to whether it is valid in law is a pure question of law and it is specifically considered by the lower appellate Court. Hence Point No. (1) is answered against the appellants - plaintiffs. The recitals contained in the gift deed leave no doubt whatsoever that it is an absolute gift and donor also intended to make the donee absolute owner without any reservation. The recitals in the document such as 'donee and his successors should go on enjoying the property as absolute owners' clearly indicate the mind of the donor and the effect of the document, that the donor intended to create absolute title in the donee, in respect of the suit property. No doubt at two places it has been stated that the 'donee has to maintain the donor'. In the earlier portion, the recital as to maintenance is only a pious expectation on the part of the donor or she was confident that the donee would maintain her. In the latter portion, after creating absolute gift in favour of the donee, the donor proceeds to state that the donee must also maintain the donor. No doubt the words used in the latter portion of the document do indicate that it was not a mere wish of the donor that the donee would maintain her, but she had made it clear that the donee must maintain the donor. Thus, she imposed an obligation on the donee to maintain her. But she did not reserve, in herself, the right to revoke the gift in case she was not maintained by the donee. Thus, she imposed an obligation on the donee to maintain her. But she did not reserve, in herself, the right to revoke the gift in case she was not maintained by the donee. Therefore, the recital as to maintenance in the gift deed, in the absence of specific recital reserving the right to revocation of the gift deed in the event of failure to perform the condition mentioned in the gift deed, cannot be held to have the effect of making the gift a conditional gift enabling the donor to revoke the gift on the failure to perform such a condition. As to under what circumstances a gift can be suspended, cancelled or revoked is dealt in Section 126 of the Act which is as follows : "The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor is void wholly or in part, as the case may be." A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. "Nothing contained in this Section shall be deemed to affect the rights of transferees for consideration without notice." From the contents of Section 126 of the Act, it is clear that a gift can be cancelled or rescinded only under the following circumstances : (a) On the happening of an event specified in the gift deed; (b) The Donor and the Donee must have agreed to such condition; acceptance of such condition specified in the gift deed must be agreed to by the donee while accepting the gift; (c) The event agreed upon must be such that the happening of it does not depend on the will of the donor; (d) The conditions so imposed must not be repugnant to the gift and should not be illegal or immoral; (e) A gift may also be revoked or rescinded as if it were a contract on the same grounds on which a contract may be rescinded except on the ground of failure of consideration. A contract is normally rescinded or avoided, as per Sections 19 and 19A of the Contract Act. When consent to an agreement is caused by coercion, fraud, misrepresentation or undue influence, at the instance of the party whose consent is so obtained. Except on the aforesaid grounds, a gift cannot be rescinded or revoked on any other ground. This position is specifically made clear by stating in Section 126 of the Act "Save as aforesaid, a gift cannot be revoked." However it may also be noticed that in the event the case falls under Section 20 of the Contract Act, the gift will be void ab initio and in such a situation, the question of avoiding it does not arise. There is no recital contained in the gift deed as to happening of any specific event independent of the will of the donor. There is also no recital in the gift deed enabling the donor to revoke it on the failure of the donee to maintain the donor or on the happening of any other event. A gift deed cannot be revoked save as provided in Section 126 of the Act. The circumstances under which a gift can be revoked or rescinded are already pointed out. No doubt Sri R. Suryanarayanaswamy, learned Counsel for the appellants, is right when he submits that the gift can be revoked just like any other contract. However, in the present case, no such ground is either averred or proved Further a gift for that matter even a contract also cannot be revoked or rescinded unilaterally on grounds on which a contract can be avoided. It can be avoided on the aforesaid grounds through a Court of Law. That being so, regard being had to the recitals contained in the gift deed, no unilateral rescinding of the gift deed in question is permissible in law. In the case of fraud, coercion, misrepresentation and undue influence, it is not open to the parties to unilaterally cancel the contract. The aggrieved party is entitled to have it avoided through a Court of Law by establishing undue influence, fraud, coercion, or misrepresentation. In the case of fraud, coercion, misrepresentation and undue influence, it is not open to the parties to unilaterally cancel the contract. The aggrieved party is entitled to have it avoided through a Court of Law by establishing undue influence, fraud, coercion, or misrepresentation. The donor having not reserved the right to revoke and having only imposed an obligation on the donee to maintain the donor, she could not have been the judge of the situation and could not have unilaterally cancelled the gift deed on the ground that she was not maintained by the donee. In such circumstances, the only remedy available to the donor having made an absolute gift made in favour of the donee, was to enforce the condition in a Court of Law No doubt, as it is already pointed out the gift deed made it obligatory on the part of the donee to maintain the donor however, without a right to revoke the gift on that ground, if the donee failed to maintain the donor, the donor i.e., Thimmakka could have enforced such an obligation through a Court of Law and could not have cancelled the gift. Sri B. Rudra Gowda, learned Counsel for the respondent has placed reliance on the decisions in M. Venkatasubbaiah v. M. Subbamma and others (AIR 1956 AP 195), Tila Bewa v. Mana Vewa (AIR 1962 Orissa 130), and Kulasekara Perumal v. Pothakutty (AIR 1961 Madras 405). These three decisions are also relied upon by the lower appellate Court in support of its conclusion that the recitals as to maintenance in the gift deed do not make the gift a conditional gift. The learned Counsel for the respondent has also placed reliance on the decision in Smt. Gaurja v. Tarachand (AIR 1962 HP 4). The purport of this decision is also to the same effect. For the reasons stated above, point No. (ii) has to be answered in the negative. It is accordingly answered in the negative. Consequently, the appeal has to fail and the same is dismissed. Having regard to the close relationship of the parties, it is ordered that each party shall bear his/her own costs throughout.