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Madhya Pradesh High Court · body

2007 DIGILAW 13 (MP)

RAM NIWAS AWASTHY v. NARAYAN PRASAD

2007-01-05

K.K.LAHOTI

body2007
Judgment ( 1. ) THE plaintiff whose suit was decreed in part by the Court below has preferred this appeal, aggrieved by the judgment and decree passed in Civil appeal No. 15-A/1999 by Additional District Judge, Sihora dated 4-1-2000, and the judgment and decree passed by the IInd Civil Judge Class-II, Sihora in Civil suit No. 48-A/1977. ( 2. ) THIS appeal was admitted on 4-7-2000 on following substantial question of law:- "whether the Court below failed to see that the document Exh. D-1 styled as Tamliknama is in effect as a deed of gift which can be proved only after compliance of provisions mentioned in Sections 122 and 123 of the Transfer of the Property Act ?" ( 3. ) LEARNED Counsel for the appellant submitted that the Court below erred in relying on Exh. D-1 Tamliknama, while it is a deed of gift and without compliance of Sections 122 and 123 of the Transfer of Property Act, 1882 (hereinafter referred to as act for short) the aforesaid gift deed could not have been given effect to. Reliance is placed to the Apex Court judgments in Ram gopal Vs. Nand Lal and others ( AIR 1951 SC 139 ), N. M. Aryamurthi and another Vs. M. L. Subbaraya Setty ( AIR 1972 SC 1279 ), K. V. Narayanan Vs. K. V. Ranganadhan and others ( AIR 1976 SC 1715 ) and submitted that this appeal be allowed and the suit of plaintiff be decreed in toto. ( 4. ) SHRI Jain, learned Counsel for the respondents submitted that in fact Exh. D-1 Tamliknama is a deed of settlement and provisions of Section 122 or 123 of the Act do not apply in the matter. The father of the parties Gaya prasad executed the aforesaid deed of settlement in favour of respondent krishna Kumar and settled the property in his favour. The deed was executed by gaya Prasad in accordance with law and respondent Krishna Kumar got the property by the deed. Reliance is placed on a Single Bench judgment of this court in Shyam Narain Vishwakarma Vs. Ajay Patel [1998 (1) MPWN Note 93] and submitted that the contention of appellant has no substance. The deed was executed by gaya Prasad in accordance with law and respondent Krishna Kumar got the property by the deed. Reliance is placed on a Single Bench judgment of this court in Shyam Narain Vishwakarma Vs. Ajay Patel [1998 (1) MPWN Note 93] and submitted that the contention of appellant has no substance. Apart from this the plaintiff had not challenged the Tamliknama in the plaint and until and unless a specific prayer is made in this regard, the Court below has rightly relied on the deed of settlement in which there is no error. ( 5. ) TO appreciate the contention of the parties, factual position of the present case may be seen. The appellant filed suit against his father and other brothers on the ground that they were members of the Joint Hindu family. Defendant No. 3 who is sister of plaintiff is married and she is residing with her husband at Village Barhi. Other parties are residing at Mouja Jhansi, Tehsil sihora, District Jabalpur. That the Joint Hindu Family was possessing certain lands at Mouja Atariya, Mouja Jhansi and Mouja Bhadaud. At Jhansi there was house also. On 31-5-1968 defendant No. 1 Gaya Prasad with the help of Panchas partitioned the property of Joint Hindu Family and thereafter all the members got the property and remained in separate possession. Tantoobai had not taken any share in the property. The property shown in Schedule sa was kept for the marriage of plaintiffs daughter and was not partitioned. The plaintiff filed an application in the Revenue Courts for entering his name as per the partition. The aforesaid application was opposed by the father of plaintiff and name of plaintiff could not be entered. Thereafter the suit was filed. During the pendency of the suit defendant No. 1 Gaya Prasad died and the plaintiff also claimed his l/4th share in his property on the ground that to deprive the plaintiff, father of plaintiff Gaya Prasad gave his share to Krishna Kumar respondent by tamliknama. This is not in accordance with law and it is prayed that a fresh partition be effected of the properties. ( 6. ) THE defendants contested the suit. This is not in accordance with law and it is prayed that a fresh partition be effected of the properties. ( 6. ) THE defendants contested the suit. The Trial Court framed the issues and after recording evidence found that the plaintiff is entitled for a partial decree, but dismissed the suit so far as it relates to properties which were given by Gaya Prasad to Krishna Kumar, by Tamliknama. This part of decree was challenged by the appellant before the Appellate Court, but the appeal was dismissed against which the present appeal has been filed. ( 7. ) TO appreciate the contention of appellant that whether tamliknama may be treated as gift deed and provisions of Sections 122 and 123 of the Act are applicable or not. "gift" has been defined in Sections 122 and 123 of the Act which reads thus:- "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. Acceptance when to be made- Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. " "deed of settlement" has been defined in Section 2 sub-section (24) of Indian Stamp Act, 1899, which reads thus :-"settlement" means any non-testamentary disposition, in writing, of movable or immovable property made- (a) in consideration of marriage, (b) for the purpose of distributing property of the settler amount his family or those for whom he desire to provide, or for the purpose of providing for some person dependent on him, or (c) for any religious or charitable purpose; and includes an agreement in writing to make such a disposition and, where, any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition. " Section 122 provides certain ingredients of gift which provides transfer of some existing movable or immovable property made voluntarily and without consideration, by one person to another and accepted by or on behalf of donee. " Section 122 provides certain ingredients of gift which provides transfer of some existing movable or immovable property made voluntarily and without consideration, by one person to another and accepted by or on behalf of donee. The aforesaid provisions further provides that such acceptance if not made immediately then it must be made during the lifetime of the donor, who should be in a position to give the property at the time of accepting of gift and if donee dies before acceptance, the gift is void. The question whether a document is a gift or not depends upon the language used in the document and from the perusal of entire document if it is gift then the provisions of Sections 122 and 123 shall apply. ( 8. ) SO far as the settlement is concerned, it is non- testamentary disposition in writing of movable property which may be made by the settler among his family or those for whom he desires to provide. Both the gift deed and deed of settlement requires registration under the Registration Act. Tamliknama has been filed as Exh. D-1. The language of the aforesaid document may be referred which reads as under:-NP (1)_161_mpht5_2007. jpg np (2)_161_mpht5_2007. jpg np (3)_161_mpht5_2007. jpg the aforesaid Tamliknama specifically says that Gaya Prasad was having four sons and he had already given his property to all his sons. He was having affection and love with Krishna Kumar because he was residing with Krishna kumar, who was serving him and was also following all his orders, while the other sons were neither serving, nor were taking care of him. In 2nd para of the aforesaid document, it is stated that Krishna Kumar was fully dependent on gaya Prasad and he was worried about his future and also for his earning so he settled the aforesaid land without any consideration in his favour and also gave possession of the property mentioned in the deed. The word "settled" has not been used in the document, and word "tamliknama" has been used in the document. The Apex Court in Ram Gopal (supra) has considered Tamliknama, wherein the Apex Court held thus:- "in the present case the instrument of grant has been described as a "tamliknama" which means a document by which maliki or ownership rights are transferred and the document expressly says that the grantee has been made a maliki or owner. The Apex Court in Ram Gopal (supra) has considered Tamliknama, wherein the Apex Court held thus:- "in the present case the instrument of grant has been described as a "tamliknama" which means a document by which maliki or ownership rights are transferred and the document expressly says that the grantee has been made a maliki or owner. There are no express words making the gift heritable and transferable; nor on the other hand is there any statement that the transferee would enjoy the properties only during her lifetime and that they would revert to the grantor after her death. It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her. The reasoning adopted by Mitter, J. of the Calcutta H. C. in ML Kollani Koer Vs. Luchmee Parsad, 24 W. R. 395, which was approved of and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable. It was held by the P. C. as early as in the case of Tagore Vs. Tagare, I. A. Sup. Vol. 47 at p. 65: [9 Beng, L. R. 377 (P. C.)] that if an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu law, an estate of inheritance. This is the general principle of law which is recognised and embodied in Section 8, T. P. Act and unless it is shown that under Hindu law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a widows estate, there is no justification for departing from this principle. There is certainly no such provision in Hindu Law and no text could be supplied in support of the same. The position, therefore, is that to convey an absolute estate to a hindu female, no express power of alienation need be given; it is enough if words are used of such amplitude as would convey full rights of ownership. There is certainly no such provision in Hindu Law and no text could be supplied in support of the same. The position, therefore, is that to convey an absolute estate to a hindu female, no express power of alienation need be given; it is enough if words are used of such amplitude as would convey full rights of ownership. " In the aforesaid judgment the Apex Court has categorically held that by tamliknama ownership rights are transferred and grantee became the owner of the property. The Apex Court has not decided Tamliknama as the gift deed, but found it is a document by which ownership rights are transferred in favour of grantee. ( 9. ) A learned Judge of this Court in Shyam Narain Vishwakarma (supra), considering the deed of settlement held thus :- "arguments of both the sides heard. It is contended on behalf of the petitioner that the document is "gift" covered by Article 33 or "release" within the meaning of Article 55 of the Stamp Act. The argument is not acceptable. This is a registered document by which father has made disposition of his property "for the purpose of providing for his son". It is settlement within the meaning of Section 2 (24) (b) of the Stamp Act. There can be settlement in favour of a single person. The Stamp duty has been paid as per Article 2 (58)of the Act. It cannot be "gift" as per Article 33 as the instrument would be covered therein if it is not a settlement. It is not "release" within the meaning of Article 55 as the father has not "renounced claim upon another person". He has made settlement of his property upon his dependent. The instrument is squarely covered by Article 58 and therefore no other article would apply. The decision in 1952 NLJ 440, cited on behalf of the petitioner is of the board of Revenue and has no application in the present case. " ( 10. ) NOW in the light of aforesaid judgment there is no iota of doubt that the document Exh. D-1 is "deed of settlement" and provision of Sections 122 and 123 of the Act does not apply in the matter. " ( 10. ) NOW in the light of aforesaid judgment there is no iota of doubt that the document Exh. D-1 is "deed of settlement" and provision of Sections 122 and 123 of the Act does not apply in the matter. By the aforesaid document father of plaintiff and defendant No. 4 had transferred the property shown in the tamliknama in favour of Krishna Kumar and on the strength of aforesaid document he became owner of the aforesaid property. The wordings used in the document does not say that the aforesaid property was gifted by Gaya Prasad to krishna Kumar or the aforesaid gift was accepted by Krishna Kumar. When the property was not gifted or no intention of gift can be gathered from the document, then the document cannot be treated as gift nor there is any question to accept the gift as required in Section 122 of the Act. In these circumstances, the Court below has rightly considered document Exh. D-1, the Tamliknama as "deed of settlement" in which there is no error. ( 11. ) APART from this, the plaintiff has not challenged the aforesaid document in the plaint. No relief was sought in this regard and without seeking any relief in respect of the deed of settlement, the aforesaid document could not have been set aside or could have been declared invalid. So far as the rights of plaintiff are concerned, in absence of any relief against the deed of settlement the Court below has rightly dismissed the suit of appellant. ( 12. ) IN view of aforesaid, the Court below has rightly dismissed the suit of appellant in part, in which no error is found. The aforesaid judgment and decree are, in accordance with law and needs no interference by this Court. This appeal is without merit and is dismissed with no order as to costs. Second Appeal dismissed.