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2006 DIGILAW 1347 (MAD)

Nagamuthu Gounder v. Palanivel & Others

2006-06-15

S.ASHOK KUMAR

body2006
Judgment :- (Second Appeals preferred against the common judgment and decrees dated 21.10.1994 made in A.S.Nos. 30 and 31 of 1993 respectively, on the file of the learned Subordinate Judge, Villupuram, against the common judgment and decrees dated 24.12.1992 made in O.S.Nos: 731 of 1988 and 429 of 1987 respectively on the file of the Learned District Munsif, Thirukoilur.) Common Judgment: In O.S.No:731 of 1988, the plaintiff Palanivel, who has purchased the suit property from the Donee Velliangiri has filed the suit for declaration of title and for mesne profits. According to the plaintiff the suit property originally belonged to the 1st defendant Nagamuthu and he gifted the same by a gift deed on 22.8.1963 to his sister's son Velliangiri. The said Velliangiri accepted the gift and has been in possession and enjoyment of the same and on 24.5.1987 he sold the same to the plaintiff. But the first defendant Nagamuthu to defeat the sale has cancelled the gift deed dated 22.8.1963, which is illegal and he is not entitled to do the same. It is not correct to state that the gift was not effected and acted upon by the donee Velliangiri. The first defendant also filed a suit in O.S.No.429/87 claiming title in the suit properties wrongly and he has also mortgaged the suit property to the 4th defendant and based on that the defendants 5 to 7 have encroached the suit property without any authority and are in possession of the same. Hence the suit for the aforesaid reliefs. 2. The defendants in the said suit filed a common written statement contending that though the gift deed had been executed by him in favour of his sister's son Velliangiri, out of love and affection and with the intention that he will look after him later, but the same has been cancelled by him on 6.3.1987 by a revocation deed since Velliangiri after his marriage got separated and also stolen some of the documents from his custody and disputes arose in that respect. Thus the said gift deed dated 22.8.1963 has not been acted upon and came into effect and the suit properties are in possession and enjoyment of the first defendant alone. The sale to the plaintiff by the said Velliangiri is without any consideration. The defendants are not in illegal possession. 3. Thus the said gift deed dated 22.8.1963 has not been acted upon and came into effect and the suit properties are in possession and enjoyment of the first defendant alone. The sale to the plaintiff by the said Velliangiri is without any consideration. The defendants are not in illegal possession. 3. O.S.No.429 of 1987 has been filed by the plaintiff Nagamuthu, the first defendant in O.S.No:731/88 filed by Palanivel, for the relief of declaration of title of the same suit property and for permanent injunction and in the alternative for recovery of possession with mesne profits. The pleadings are more or less one and the same of the written statement filed by him in the suit filed by Palanivel in O.S.No:731/87. The defendant therein, namely Palanivel has pleaded the same averment as has been mentioned in his Plaint in the said suit. 4. On the pleadings of the parties and evidence, both oral and documentary and on hearing the learned counsel for either side, the learned District Munsif, Thirukolur by a common judgment and decrees dismissed O.S.No.731 of 1988 filed by Palanivel and allowed O.S.No:429 of 1987. On appeals filed by the aggrieved Palanivel, the learned Subordinate Judge, Villupuram, reversed the common judgment and decrees of the trial court, and allowing both the Appeal Suits. Hence, the second appeals against common judgment and decrees of the first appellate court by Nagamuthu. 5. At the time of admission, this court framed the following separate substantial questions of law in both the Second Appeals:- SA.No:1539 of 1994: "Whether the court below has not erred in law in failing to see that the gift under Ex.A.1 has not been accepted as per the provisions of Section 122 of the Transfer of Property Act and therefore there was no valid gift and this would be evident from the fact that the appellant had paid the kist under Exs.B.4 to B.16 and by the patta and chitta granted in favour of the appellant under Exs.B.3 and B.19 and from the depositions of DWs.2,3 and 4? SA.No:1340/94: (i) Whether the judgment and decree of the court of the Subordinate Judge, Villupuram in A.S.No.31/93 is not bad inasmuch as he has failed to advert to Issue No.1 in O.S.No.731/88 and Issue No.1 in O.S.No.429/87 with regard to the validity and genuineness of Ex.A.1, the gift? SA.No:1340/94: (i) Whether the judgment and decree of the court of the Subordinate Judge, Villupuram in A.S.No.31/93 is not bad inasmuch as he has failed to advert to Issue No.1 in O.S.No.731/88 and Issue No.1 in O.S.No.429/87 with regard to the validity and genuineness of Ex.A.1, the gift? (ii) Whether the court below has not erred in law in failing to see that the question of revocation would arise only in the case of a valid gift and when the provision of Sec.122 of the Transfer of Property Act itself have not been complied with there was no need or necessity to advert to Section 126 of the Act and whether the judgment of the court below in not adverting to this crucial aspect has not vitiated its finding and conclusions and rendered its judgment liable to be set aside?" 6. Learned counsel appearing for the appellant contended that the settlement deed was never in force, nor it was acted upon since Velliangiri was a minor at that time. His father died thereafter during 1966. Cancellation of the settlement deed had taken place in March 1987 and only subsequent thereafter is the sale in favour of the plaintiff. The suit for recovery of possession itself shows that Velliangiri was not put in possession of the property. The first appellate court wrongly presumed that the settlement deed was acted upon ignoring the evidence and findings of the trial court. 7. Per contra, learned counsel appearing for the respondent contended that the revocation deed itself is a concocted document, the stamp paper for the same has been purchased at Chennai when there is a prohibition for selling the stamp papers in some other area, moreover the registration of Ex.B.1 revocation is long subsequent to its execution. Learned counsel also contended that as per Section 91 of the Indian Evidence Act, the documentary evidence will prevail over the oral evidence. Further, there is no stipulation or condition to alienate the suit property has been mentioned in the settlement deed. There is no recital as to not giving effect of the settlement in the revocation deed. Further, the patta has been transferred and there is no challenge by the appellant. 8. There is no dispute as to the ownership of the suit property originally by Nagamuthu and his settlement in favour of Velliangiri under Ex.A.1, on 22.8.1963. There is no recital as to not giving effect of the settlement in the revocation deed. Further, the patta has been transferred and there is no challenge by the appellant. 8. There is no dispute as to the ownership of the suit property originally by Nagamuthu and his settlement in favour of Velliangiri under Ex.A.1, on 22.8.1963. According to Palanivel, the said Velliangiri was in possession of the suit property on the basis of the said settlement deed and on 24.5.1987 he sold the suit property to Palaniveli and he was in possession of the same till filing of the suit. On the basis of the sale deed, he also obtained patta. But the said Nagamuthu purposely to defeat the sale in favour of the plaintiff, cancelled the settlement by a revocation deed on 6.3.1987 and encroached upon the suit property. But it is the case of Nagamuthu that the settlement deed Ex.A.1 never acted upon and enforced by the parties. 9. As rightly held by the first appellate court, there is no reservation found in Ex.A.1 settlement deed entitling the donor, namely Nagamuthu to cancel or revoke the said settlement. More over nearly after 24 long years, the said settlement has been revoked on 6.3.1987. There is no proper reason recited in the revocation deed to cancel the earlier settlement after 24 years. To establish that after the settlement in 1963 it has been acted upon and enforced by the donee, Exs.A.3 to A.12 which are kist receipts have been produced by Palanivel in support of such a case. Further the finding of the trial court that the suit property cannot be alienated by Velliangiri is a wrong finding when there is no stipulation or condition in the settlement deed. Further, the said Palanivel, purchaser has obtained patta in his name, which has not been disputed or challenged by Nagamuthu. 10. As regards purchase of stamp papers for Ex.B.1, the first appellate court rightly presumed that it could be a concocted document. Admittedly, the stamp paper has been purchased at Chennai. Though it has been written on 6.3.1987, the same has been registered only on 10.6.1987. The stamp paper has been purchased in the year 1986. Thus it is clear that only after sale by Velliangiri to Palanivel, Nagamuthu could have prepared Ex.B.1 revocation deed and registered the same on 10.6.1987. 11. Admittedly, the stamp paper has been purchased at Chennai. Though it has been written on 6.3.1987, the same has been registered only on 10.6.1987. The stamp paper has been purchased in the year 1986. Thus it is clear that only after sale by Velliangiri to Palanivel, Nagamuthu could have prepared Ex.B.1 revocation deed and registered the same on 10.6.1987. 11. It is well settled position of law that when once the settlement deed has been accepted and acted upon the executor has no right to revoke the same subsequently. In this case the executor Nagamuthu has also not reserved his right to revoke the settlement deed on a later date. The first appellate court also relied on the judgment of this court in Sarojini Ammal Vs. Krishnaveni Ammal, reported in 1990 (1) L.W. page 599 in support of its conclusion. IN the said decision it has been held that "If the settlement deed had been accepted by the settlee, then the settlement would be completed and in the absence of a power of revocation reserved by the settlor to be exercised by him on specified contingencies and on the mere will of the settlor, the settlement cannot be revoked. This is the implication of Section 126 of the Transfer of Property Act." 12. In Lallu Singh V. Gur Narain, reported in AIR 1992 All.467, a Full Bench of the Allahabad High Court while interpreting Section 12 of the Transfer of Property Act has held that "delivery of possession is not necessary, Section 123, does away with the necessity of delivery of possession even if it was required by the strict Hindu Law, in the case of a registered instrument of gift property executed and attested. A similar view has been arrived at in a decision reported in Gouranga Sahu Vs. Maguni Dei, reported in AI?R 1991 Ori.151. In Balmakund Vs. Bhagwan Das, 1894 All. Series 185, a Division bench has observed that "The delivery to the donee of immovable property of the deed of gift is sufficient to pass the title to such property to the donee without actual physical possession such property being taken by the donee. Maguni Dei, reported in AI?R 1991 Ori.151. In Balmakund Vs. Bhagwan Das, 1894 All. Series 185, a Division bench has observed that "The delivery to the donee of immovable property of the deed of gift is sufficient to pass the title to such property to the donee without actual physical possession such property being taken by the donee. In Bhagwad Prasad V. Hari Singh, reported in AIR 1925 Nag.199 it is observed that "Assuming that delivery of possession was essential under the Hindu Law to complete a gift of immovable property, that law had been abrogated by Section 123 of the Transfer of Property Act in cases where the instrument of gift has been registered". In Tila Bewa V. Mana Bewa, reported in AIR 1962 Ori.130 it is observed that gift cannot be revoked for failure of donee to maintain donor. A similar view has been taken i.e., gift cannot be revoked for neglect to maintain donor in Venkatasubbiah Vs. Subbamma, reported in AIR 1956 A.P.95. 13. In Sarojini Ammal Vs. Krishnaveni Ammal @ Baby Ammal, reported in 1990 (I) L.W.599 this Court held that "Whether there was an acceptance of a deed of settlement has to be inferred from the facts and circumstances of each case. The law has not prescribed any particular form of acceptance. It is permissible for the court to draw a presumption of acceptance from the conduct of the parties and from the factual materials, exposed in the case, and this is a presumption of fact. Merely because there was no formal parting with or handing over of the settlement deed by the settlor to the settlee is not a factor by itself to be counted against acceptance of the settlement, especially when the parties stand in a peculiar relationship and when they were found to be living together." 14. In K.Balakrishnan Vs. K.Kamalam, reported in 2004 (I) SCC 581 , the Supreme Court held that "...by the time the donor revoked the gift, the donee had become a major and he never repudiated the gift. In K.Balakrishnan Vs. K.Kamalam, reported in 2004 (I) SCC 581 , the Supreme Court held that "...by the time the donor revoked the gift, the donee had become a major and he never repudiated the gift. Non delivery of possession of the gifted property, non exercise of any rights of ownership over it, and failure by the donnee, on attaining majority, in getting his name mutated in official records are not circumstances negativing the presumption of acceptance by the minor during his minority or on his attaining majority...Moreover, the donor did not revoke the gift deed by specifically mentioning in the recital of the cancellation deed that the gift was not complete due to non acceptance and she was, therefore, making some there arrangement for succession to her property after her death. This fact reinforces the inference that the donor mother herself, at the time of cancellation of the gift never assumed that the gift was not accepted and therefore it was revocable...."Therefore, it has to be held that the gift having been duly accepted in law, and thus being complete, it was irrevocable under Section 126 of the Transfer of property Act. It was, therefore, not competent for the donor to have cancelled the gift and executed a Will in relation to the property.". 15. It is also clear from the documentary evidence that from the date of settlement, Velliangiri had been in possession and enjoyment of the suit property and after sale, till date of filing of the suit, the plaintiff has been in possession of the suit property and Nagamuthu and his men have been unauthorisedly encroached upon the suit property and are in possession of the same which is illegal. Thus the first appellate court has rightly allowed the suit O.S.No:731 of 1988 filed by Palanivel and dismissed the suit O.S.No.429 of 1987 filed by Nagamuthu. Since it is found out that the gift has been accepted and acted upon, all the questions of law are answered against the appellant in both the appeals. 16. For the reasons stated above, both the Second Appeals are dismissed confirming the common judgment and decrees of the first appellate court. No costs.