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2004 DIGILAW 280 (MP)

Hotam Singh v. Sewaram

2004-03-22

A.K.GOHIL, S.S.JHA

body2004
JUDGMENT Jha, J. -- 1. This appeal is filed by the defendants challenging the judgment and decree passed by the trial Court and affirmed by the Single Bench of this Court. 2. Brief facts of the case are that respondent No.1 Sewaram filed a civil suit for declaration of his title and possession. He claimed that the property in the suit marked as "A B C D" attached to the plaint is the disputed property and is owned jointly by him and defendant No.4 Ramratan. Suit was filed on 2.1.1985. Later on by order dated 8.9.1994, Ramratan was transposed as plaintiff. According to the plaintiffs, land over which house is constructed belonged to Lalaram, maternal grandfather of Ramratan plaintiff No.2. Lalaram gifted the property to Ratanlal by executing registered gift deed Ex. P-l on 4.11.1938. On 24.7.1946 Ratanlal's mother Bhagwatibai and Jagannath, Ratanlal's uncle (father's elder brother) jointly sold the property for a consideration of Rs. 4,000/- vide sale deed, Ex. D-1. Property was repurchased in the name of Bhagwati widow of Chokhariya on 21.9.1946 for a consideration of Rs. 2,500/-. On the same day, Bhagwatibai mortgaged the property with Prabhudayal and Mataprasad for a consideration of Rs. 1,600/- vide Ex. D-3. On 16.5.1949 decree for recovery of rent of Rs. 217/- at the rate of Rs. 80/- per month was passed against Bhagwatibai. In order to clear the money decree, Bhagwatibai sold the property to the appellants Ganesh Ram, Hotam Singh and Chhotelal for a consideration of Rs. 1,500/- vide sale deed Ex. D-2. On 22.4.1950 purchaser paid the mortgaged money to Mataprasad and secured possession vide Ex. D-4. On 29.1.1951 remaining part of the disputed property was purchased by the appellants from the Municipal Council vide Ex. D-8. Appellants then applied for permission for raising construction over the said property and permission to construct the house was granted to them on 11.8.1959 vide Ex. D-7. This sale deed was not challenged and no action was taken by Ramratan to secure the possession. On 2.1.1985 Sewaram filed a civil suit for declaration and possession claiming therein that the house over the plot is joint family property and he has half share in the property. Defendants 1 to 3 were permitted to occupy the portion of the house marked as "A BCD" on licence. On 2.1.1985 Sewaram filed a civil suit for declaration and possession claiming therein that the house over the plot is joint family property and he has half share in the property. Defendants 1 to 3 were permitted to occupy the portion of the house marked as "A BCD" on licence. When he asked the defendants to vacate the house, they refused to vacate the house and denied the title of the plaintiff and defendant No.4. Plaintiff claimed that defendants are occupying the portion "A BCD" as his licensee, therefore, he filed a suit for declaration of his title over the portion "A BCD" and possession. 3. Defendants No.1 to 3 filed their written statement and opposed the suit. Specific plea was taken by the defendants that the suit is barred by limitation. Suit at the instance of Sewaram is not maintainable. Trial Court framed issues regarding limitation, title of Sewaram and right of Bhagwatibai to alienate the property. Trial Court decreed the suit. During the first appeal before Single Bench, appellants entered into compromise with Ramratan. Ramratan had filed an application for compromise under Order XXIII Rule 3, CPC before the first appellate Court. First appellate Court dismissed the application under Order XXIII Rule 3, CPC on the ground that Ramratan cannot be permitted to cross le floor and dismissed the appeal. 4. Counsel for the appellants submitted that the trial Court as well as Single Bench has committed an error in holding that the suit was within limitation. He further submitted that suit at the instance of plaintiff Sewaram was not maintainable. Alienation of the property by Bhagwatibai being Karta of the family was a voidable transaction and the Courts below have wrongly held that sale by Bhagwatibai is void. In the absence of plea of legal necessity by the plaintiffs, sale deed in favour of the appellants cannot be set aside and rejection of the application under Order XXIII Rule 3, CPC by the first appellate Court is contrary to law. 5. Counsel for the respondents supported the judgment and submitted that Jagannath and Bhagwatibai had no right to transfer the property on 24.7.1946. In the gift-deed Ex. P-1 it is mentioned that the property shall not be alienated, therefore, the alienation was bad in law. Since at the time of execution of gift-deed, Sewaram was not born, after his birth, he acquired right in the property. In the gift-deed Ex. P-1 it is mentioned that the property shall not be alienated, therefore, the alienation was bad in law. Since at the time of execution of gift-deed, Sewaram was not born, after his birth, he acquired right in the property. Lateron they have sold agricultural land of their father and from the sale proceeds, house was constructed over the said plot, therefore, the property is joint Hindu Family property. It is further contended that since sale by Jagannath and Bhagwatibai itself is a void transaction, therefore, it is not necessary to file a suit for cancellation of sale deed. When plaintiffs' title was denied and defendants refused to deliver possession, present suit was filed. Suit is well within limitation. 6. We have heard counsel for both the sides. From document Ex. D-4, it is apparent that possession of the property was received by defendants 1 to 3-appellants on 22.4.1950. Trial Court in its judgment has held that the defendants are not occupying the property as licensee but they are in possession of the property by virtue of the document Ex. D-4. Trial Court has held that Bhagwatibai and Jagannath had no right to alienate the property and sale deed is void. As regards possession of the appellants, trial Court has recorded a finding that defendants No. 1 to 3 are in possession of the property by virtue of documents Exs. D-2 and D-4. This finding was recorded while determining issue No.2 in the civil suit. In para 19 of the trial Court's judgment, trial Court has recorded a specific finding that even if it is admitted that defendants are in possession by virtue of the sale deed Ex. D-2, it will not adversely affect the right of the plaintiffs as the sale deed is void ab initio. Once the trial Court has recorded a finding that the defendants were trespassers and in possession with effect from 9.3.1950, then the period of limitation shall start running from the date of dispossession. As pleaded by the parties, Ramratan had right in the property. On perusal of the gift deed Ex. P-1 executed by Lalaram in favour of Ratanlal, it is apparent that gift deed was executed in favour of Ratanlal through guardian Bhagwatibai. Bhagwatibai is the mother of Ramratan. This document was executed on 4.11.1938. As pleaded by the parties, Ramratan had right in the property. On perusal of the gift deed Ex. P-1 executed by Lalaram in favour of Ratanlal, it is apparent that gift deed was executed in favour of Ratanlal through guardian Bhagwatibai. Bhagwatibai is the mother of Ramratan. This document was executed on 4.11.1938. It is admitted that at the time of execution of the document on 4.11.1998, Ratanlal was aged about nine years. Therefore, if Ratanlal was aggrieved by the act of Bhagwatibai then he had remedy of filing suit claiming therein that. Bhagwatibai being karta has no right to alienate the property or the sale is bad for want of legal necessity. Ratanlal has not filed any suit for possession till limitation Act, 1963 came into force. Admittedly, if the sale is void, suit for possession must be brought within twelve years of dispossession under Article 142 of the Limitation Act, 1908. Section 31 of the Limitation Act, 1963 provides that any suit which was barred by limitation under the old Limitation Act of 1908 then period of limitation will not revive under the Limitation Act, 1963. This question has been decided in the case of Kashi Ram v. Rakesh Arora [ AIR 1987 SC 2230 ]. Burden was on the plaintiffs to prove their possession within twelve years of the date of filing of the suit. When a party claims to be in possession under an invalid document, then also its possession is adverse to the true owner as held in the case of Kalika Prasad and another v. Chhatrapal Singh [ (1997) 2 SCC 544 ]. Admittedly, plaintiffs have pleaded that gift deed of the property was executed by Lalaram in favour of Ratanlal S/o Chokhariya, therefore, rights in the suit property, if any, were acquired by said Ratanlal. Sewaram has failed to prove his right over the suit property. There is no evidence on record to arrive at the finding that the suit property is joint family property of the plaintiffs. There is no evidence that the property was thrown into joint stock. Initially, plaintiff has pleaded that the property was purchased by his father from his own income. There is no evidence on record to arrive at the finding that the suit property is joint family property of the plaintiffs. There is no evidence that the property was thrown into joint stock. Initially, plaintiff has pleaded that the property was purchased by his father from his own income. But this pleading was deleted from para 2 of the plaint and lateron plaint was amended and para 7-A added in the plaint wherein plaintiff has admitted that property was originally held by Lalaram and by executing the gift-deed he has gifted the property to Ratanlal. It is further pleaded that on 24.7.1946 on the date of execution of the sale deed Ratanlal was aged about 17 years and was minor. Plaintiff has described the sale deed dated 24.7.1946 as mortgage and he has pleaded that said mortgage is null and void. In view of the said pleadings and evidence on record, it cannot be presumed that the property has acquired the status of joint Hindu Family property. 7. Question came up for consideration when the individual property can become joint family property and has been answered by the Apex Court in the case of Lakkireddi Chinna Venkata Reddi and others v. Lakkireddi Lakshmama ( AIR 1963 SC 1601 ). It has been vaguely pleaded that the house was constructed from the consideration received after selling father's agricultural land. But this fact has not been proved. Plaintiff has admitted that there was no sanction from the Municipal Council for construction of the said house. On the contrary, defendants had produced permission to construct the house with map Ex. D-7. Thus Sewaram has no right, title or interest in the suit property. Definitely, Ratanlal had a right in the suit property but he did not file any suit to challenge the sale deed or to secure possession of the property. On the plaintiff's own pleadings. Ratanlal was 17 years of age in the year 1946. Even after repurchase of the property and fresh sale deed on 9.3.1950 by Bhagwatibai, Ratanlal had right to file the suit for possession which he had not filed within twelve years. Ratanlal having failed to file suit within twelve years, suit as filed was barred by limitation. Trial Court as well as first appellate Court has not considered this aspect in the right perspective. Ratanlal having failed to file suit within twelve years, suit as filed was barred by limitation. Trial Court as well as first appellate Court has not considered this aspect in the right perspective. Trial Court has not considered this aspect of the matter and has decided the suit merely on the pleading about refusal of the defendants to vacate the premises. But the fact remains that once the trial Court has recorded a finding that defendants are trespassers, then the date of knowledge will not extend the cause of action but the time will start running from the date defendants .had acquired possession. There is no definite evidence on record to demonstrate when plaintiff secured possession of the house after execution of the document Ex. D-4 dated 22.4.1950. In the absence of proof by the plaintiff that he has secured possession after 22.4.1950 it can safely be held that defendants are in possession of the property from 22.4.1950. As such, suit filed by plaintiff Sewaram was not maintainable at his instance and was liable to be dismissed. We refrain from answering any other question since we hold that the suit as filed was not liable to be decreed as plaintiffs have no right, title or interest in the suit property. 8. Yet another question requires consideration in this case. It is an admitted position that Lalaram was father of Bhagwatibai. Gift deed was executed. But there is no averment in the plaint that said gift was accepted by Bhagwatibai on behalf of minor. Gift is complete only after its acceptance during the life time of donor. From the conduct of Bhagwatibai, it is apparent that said gift in the name of Ratanlal was not accepted by her as she exercised her right over the property of Lalaram after his death. Gift will be complete only after acceptance by the donee from the donor. There is no evidence that said gift was accepted by the guardian on behalf of minor child. Conduct of Bhagwatibai in selling the property and subsequently repurchasing the property in her name demonstrates that the said gift by Lalaram was not accepted by her on behalf of minor. Even otherwise, when Ratanlal attained majority, he has not challenged the sale deed by Bhagwatibai which demonstrates that the gift was not accepted on behalf of Ratanlal by his maternal grandfather. 9. Even otherwise, when Ratanlal attained majority, he has not challenged the sale deed by Bhagwatibai which demonstrates that the gift was not accepted on behalf of Ratanlal by his maternal grandfather. 9. Section 122 of the Transfer of Property Act defines gift. It provides that gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. In the erstwhile State of Gwalior, Transfer of Property Act Gwalior State Samvat 2001 was applicable. Section 118 of the aforesaid Act defines "Gift" which is reproduced below" "Gift is the acceptance of certain existing moveable or immoveable property made voluntarily and without consideration by one person, called the donor, to another called the donee, and accepted by or on behalf of the donee." The definition of the gift in Transfer of Property Act Gwalior State Samvat, 2001 is identical to section 122 of the Transfer of Property Act, 1882, and gift is not complete unless it is accepted. In case of gift, acceptance by or on behalf of donee during the lifetime of donor is sin quo non. Thus, execution of registered gift deed, acceptance of gift and delivery of property makes the gift complete. See Narmadaben Manganlal Thakker v. Pranjivandas Manganlal Thakker [ (1997) 2 SCC 255 ]. 10. Thus, one of the ingredient essential for the gift is that there must be acceptance by or on behalf of donee and such acceptance must be made during the life time of the donor while he is still capable of giving. Ratanlal or Sewaram had nowhere pleaded that the gift was accepted by Bhagwatibai on behalf of minor Ratanlal there is no evidence regarding acceptance of gift. Acceptance depends upon the facts of each case. Circumstances after execution of the gift deed are essential to determine the acceptance. In this case, from the evidence on record, it is apparent that Bhagwatibai had exercised right over the property in her name and the gift was not accepted by her. Even after Ratanlal attained majority, he has not asserted any right over the property claiming it to be his property. In this case, from the evidence on record, it is apparent that Bhagwatibai had exercised right over the property in her name and the gift was not accepted by her. Even after Ratanlal attained majority, he has not asserted any right over the property claiming it to be his property. Thus, in the absence of acceptance of gift particularly where Bhagwatibai has claimed herself to be the owner being the daughter of Lalaram, demonstrates that there was no acceptance of gift. In the said facts of the case, sale-deed so executed cannot be termed as void. If any inheritable right has accrued to Ratanlal or Sewaram, they should have filed the suit within the period of limitation. But in the absence of said pleading, gift itself was not complete and the plaintiff No.2 has not acquired any right under the said gift deed. 11. In the present case, in the absence of any evidence or pleading that said gift, though executed, was accepted by or on behalf of the donee during the lifetime of the donor, the plaintiffs will have no right, title or interest in the property. Bhagwatibai had alienated the property, repurchased the property and sold it again. Aforesaid three acts of Bhagwatibai show that she has exercised her exclusive right over the property and has not accepted the gift on behalf of minor Ratanlal. Even otherwise, father of Ratanlal, at no point of time during his lifetime, had exercised any right over the property under the gift deed as a guardian of Ratanlal. In the absence of any evidence about acceptance of gift during the lifetime of donor, no right has accrued to the plaintiff No.2 in the property under the gift. 12. In the result, judgment and decree passed by the trial Court and affirmed by Single Bench is set aside and suit filed by the plaintiffs is dismissed. Appeal succeeds and is allowed with costs throughout. Counsel's fee as per schedule. ..........................