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2011 DIGILAW 4040 (MAD)

Kali Naicker v. Jaganathan

2011-09-20

M.M.SUNDRESH

body2011
Judgment :- 1. By consent the Second Appeal has been taken up for disposal. 2. The Defendants 2 to 4, who have lost before the Courts below are the Appellants herein. At the time of admitting the Second Appeal the following substantial questions of law have been framed: “(1) Whether the Suit for partition without seeking declaration to set aside the instruments Exs.B3 & B10 is maintainable in law? (2) Whether the suit is barred by limitation under Article 59 of the Limitation Act, when the Respondents have not challenged Exs. B3 & B18 within 3 years of their execution ? (3) Whether Ex.A1 can be considered as a valid Gift Deed as per Section 122 of the Transfer of Property Act?” 3. The Suit has been filed by the Plaintiffs, seeking partition and separate possession of 2/3rd share in the suit property based upon Ex.A-1 Settlement Deed executed by their grandfather. The Defendant No.1 is the brother of the Plaintiffs. 4. In the Written Statement filed by the Defendants 2 to 4, who have purchased half share of the suit property by registered Sale Deed under Ex.B1 stated that the Gift Deed executed by the grandfather of the Plaintiffs and 1st Defendant under Ex.A1 has not been given effect to as there is no evidence of acceptance. The donor of the gift, namely the grandfather of the Plaintiffs and 1st Defendant cancelled the Gift Deed within 20 days from the date on which the Gift Deed has been executed in the name of the Plaintiffs and 1st Defendant in which the Second Plaintiff and the 1st Defendant were represented by their mother, as they were minors. In pursuant to the Cancellation Deed, under Ex,B3, another Gift Deed has been executed in favour of the mother of the Plaintiffs. Thereafter, she has mortgaged the property which has been redeemed by the Appellants. The Appellants have also paid the decree amount in the suit filed for recovery against the mother of the Plaintiffs. Therefore, the Appellants contended that they have purchased the property for value as Ex.A1 has not been given effect to. The Courts below making reliance upon Section 126 of the Transfer of Property Act decreed the Suit as prayed for by holding that after execution of Ex.A1, the donor did not have the legal right to cancel the same. Therefore, the Appellants contended that they have purchased the property for value as Ex.A1 has not been given effect to. The Courts below making reliance upon Section 126 of the Transfer of Property Act decreed the Suit as prayed for by holding that after execution of Ex.A1, the donor did not have the legal right to cancel the same. Challenging the said decision rendered by the Courts below, the present Second Appeal has been filed. 5. The learned Counsel for the Appellants submitted that the Courts below have misconstrued the provisions under Section 126 of the Transfer of Property Act, which is not applicable to the case on hand and what is applicable is Section 122 & Section 123 of the Transfer of Property Act. Admittedly, there is no material on record to show that the gift has been accepted by the Plaintiffs and the 1st Defendant. The 2nd Plaintiff and the 1st Defendant were minors, when the Gift Deed was executed and they were represented by their mother. Thereafter, the cancellation was passed by giving cogent reason followed by another Gift Deed in favour of the mother of the Plaintiffs and 1st Defendant. Absolutely, there is no evidence to show the acceptance by her on behalf of the Plaintiffs and the 1st Defendant. It is also to be seen that the Second Plaintiff and 1st Defendant being the minors, the mother is the best person to say whether the gift has been given effect to or not. In such a case, the subsequent Gift Deed executed in favour of the mother of the Plaintiffs and 1st Defendant is enough to prove the fact that the gift has not been given effect to. In view of the findings given by the Courts below regarding possession, the Courts below ought to have dismissed the Suit. The Suit filed claiming possession has no basis. The Plaintiffs while relying upon the Gift Deed, will have to establish that the same has been given effect to by acceptance. 6. The learned Counsel for the Appellants made reliance upon the following the judgments: (1) Anandi Devi v. Mohan Lal, AIR 1932 All. The Suit filed claiming possession has no basis. The Plaintiffs while relying upon the Gift Deed, will have to establish that the same has been given effect to by acceptance. 6. The learned Counsel for the Appellants made reliance upon the following the judgments: (1) Anandi Devi v. Mohan Lal, AIR 1932 All. 444; (2) Papathi Ammal v. Doraiswamy Naicker, 1935 (48) LW 764; (3) Venkatasubbamma, v. Narayanaswami, 1943 (66) LW 841; (4) Naramadaben Maganlal Thakkar v. Pranjivandas Maganlal Thakkar, 1997 (2) SCC 255 ; (5) Jamuna Bai, R v. M.A. Anusuya, 2001 (2) CTC 277 ; (6) Prem Singh v. Birbal, 2006 (5) SCC 353 ; (7) Dilboo v. Dhanraj, 2000 (7) SCC 702 . 7. The learned Counsel foe the Appellants also submitted that the provisions contained under Order 41, Rule 31 of Code of Civil Procedure and Section 65 of the Indian Evidence Act has not followed by the Lower Appellate Court being the final Court on facts end in support of his contention he relied on the decision of the Honorable Apex Court in H. Siddiqui (Dead) by LRs. V. A. Ramalingam, 2011 (4) CTC 343 (SC). 8. Per Contra, the learned Counsel appearing for the Respondents/Plaintiffs submitted that the Courts below have given a concurrent finding, while decreeing the Suit to that effect that Ex.A1 is irrevocable. The said finding rendered by the Courts below based upon the evidence would not warrant interference. The learned Counsel also submitted that the mere fact that the subsequent documents have been executed by their mother cannot be a ground to hold that the Cancellation Deed under Ex.18 and consequential Gift Deed under Ex.B3 are valid. Therefore, the learned Counsel submitted that the Second Appeal will have to be dismissed. 9. The facts involved in the presence case are not in dispute. The suit property of an extent of 9.19 cents originally belonged to the grandfather of the Plaintiffs and the 1st Defendant. Admittedly, the grandfather of the Plaintiffs and the 1st Defendant had obtained loan. Ea.B4 is a Mortgage Deed executed by the grandfather of the Plaintiffs and 1st Defendant, even before the execution of the Gift Deed in their favour under Ex.A1. It is important to see that at the time of execution of Ex.A1, the First Plaintiff alone was a major and the Second Plaintiff and the First Defendant were minors. Ea.B4 is a Mortgage Deed executed by the grandfather of the Plaintiffs and 1st Defendant, even before the execution of the Gift Deed in their favour under Ex.A1. It is important to see that at the time of execution of Ex.A1, the First Plaintiff alone was a major and the Second Plaintiff and the First Defendant were minors. Both the grandfather and the Plaintiffs, 1st Defendant and their mother were living under the same roof. Within 20 days from the date of execution of Ex.A1, a Deed of Cancellation was passed under Ex.B18 by the grandfather of the Plaintiffs and 1st Defendant. Thereafter, under Ex.B3 dated 6.11.1974, another Gift Deed has been executed in favour of the mother of the Plaintiffs and 1st Defendant. There is absolutely no evidence to hold that the Plaintiffs were not aware of the same. A perusal of Exs. B18 & B1 would clearly show that the grandfather of the Plaintiffs and 1st Defendant had obtained loan, as seen in Ex, B4 and a specific reason has been given for cancellation and the consequential execution of Gift Deed in favour of the Plaintiffs mother to the effect that loans will have to be settled. It has been stated that Ex.A1 has been executed in order to escape from the clutches of the creditors. 10. Another important factor to be seen is that after the execution of Ex.B3, a Mortgage Deed has been executed by the mother of the Plaintiffs under Ex.B5. The said mortgage has been redeemed by the Appellants under Ex.B7. The money decree obtained against the Plaintiffs mother was also satisfied by the Appellants. These facts are not in dispute. Even the Lower Appellate Court found that the Appellants are in possession of the half share of the suit property. Therefore, when the mother of the Plaintiffs herself has executed the documents by mortgaging the suit property and being the bonafide purchasers, the Appellants having redeemed the mortgage and discharged the loan payable by her in pursuant to the decree obtained by her, it cannot be said that the possession has not been taken over by her in pursuant to Ex.A3 and from her possession was, taken by the Appellants dated Ex.B1. Therefore, the Lower Appellate Court has committed an error in holding that the Suit is liable to be decreed, not withstanding the possession obtained by the Appellants through the mother of the Plaintiffs and 1st Defendant. 11. It is interesting to note that the Suit has been filed by the Plaintiffs only in the year 1983. Immediately after the execution of Ex.B3 dated 6.11.1974 – Settlement Deed, by the grandfather of the Plaintiffs in favour of the Plaintiffs’ mother, on the same day she has executed a registered mortgage under Ex.B5. The said document executed under Ex.B5 would clinchingly prove that Ex.A1 has not been given effect to and in pursuant to Ex.B3 – mother of the Plaintiffs has taken possession of the suit property. It is further to be noted that the Suit has been filed after 9 years after the execution of Exs.B3 & B5, which have not been challenged at all. Therefore, after allowing their mother to execute a Mortagage Deed in pursuant to Ex.B3 and redemption by the Appellants, the Plaintiffs can not challenge the sale in an indirect way. 12. The Courts below have committed an error in making reliance upon Section 126 of the Transfer of Property Act. Section 126 of Transfer of Property Act deals with cancellation of the Settlement Deed. While relying upon Sections 122 & 123 of the said Act, when a Suit is filed by the Plaintiffs by making reliance upon the Settlement Deed, it is for them to prove that the same has been given effect to by accepting it. Admittedly, in the case on hand there is absolutely no iota of evidence to support the case of Plaintiffs and on the contrary the finding of the Lower Appellate Court is to the effect that the Defendants 2 to 4, who are Appellants herein are in possession and enjoyment of the property which they have purchased under Ex.B1. Merely because a document has been registered, it would not amount to a valid gift until and unless the conditions and parameters stipulated under Sections 122 & 123 of the Transfer of Property Act are complied with. Considering the very same ratio, it has been held in Papathi Ammal v. Doraiswamy Naicker, 1935 (48) LW 764, as follows: “It seems to me apparent that registration cannot convert that which is not a complete transfer into a complete transfer. Considering the very same ratio, it has been held in Papathi Ammal v. Doraiswamy Naicker, 1935 (48) LW 764, as follows: “It seems to me apparent that registration cannot convert that which is not a complete transfer into a complete transfer. No one would even contend that if a Mortgage Deed has been invalidly executed, the mere fact of its registration would give it any validity which it had not got. Similarly, if a gift is complete except for the acceptance of the donee, I do not see how registration can make it anything more than an incomplete gift; and if the gift is incomplete for went of acceptance by the donee, I know of no Principle of Law which would bar the donor from revoking it. Registration is a necessary formality for a gift of immovable property to have full force. But registration will not confer upon any invalid transfer a validity which is lacking in the very substance of the transaction.” “Since it is not an onerous gift, a very alight evidence is sufficient to prove acceptance. The circumstances themselves may speak of acceptance. Normally when a person gifts a property to another and it is not an onerous gift, one may expect the other to accept such gift when once it comes to his knowledge, since normally any person would be willing to promote his own interest. May be in particular cases, there would be peculiar circumstances which may show that the done would not have accepted the gift. But they are rather an exception to the rule. It is only normal to assume that the donee would have accepted the gift. Mere silence may be indicative of acceptance, provided it is shown that the done knew about the gift. For proving acceptance, there need not be any direct evidence. It can be express or implied. It can also be inferred from the facts and surrounding circumstances attending the transaction of gift. An acceptance can also be had before the registration of the document. For proving acceptance, there need not be any direct evidence. It can be express or implied. It can also be inferred from the facts and surrounding circumstances attending the transaction of gift. An acceptance can also be had before the registration of the document. It can be properly registered if it is accepted by the done or on his behalf.” Similarly, in S. Thiagarajan v. Saraswathy Kittu and 6 others, 1999 (3) CTC 217 , it has been held as follows:- “ Transfer of Property Act, 1882, Section 123 – Gift – Valid gift consists of voluntary transfer of immovable property by donor without consideration and acceptance of such transfer by done- Mother executing Settlement Deed in favour of her daughter by registered document attested by two witnesses – Daughter accepting such gift and raising loan by mortgaging part or gifted property – Original Sale Deed in respect of property in possession of daughter – Daughter has accepted and was in constructive possession of gifted property – Gift complete and valid.” Considering the said ratios, this Court in Jamuna Bai, R.v. M.A. Anusuya, 2001 (2) CTC 277 , has held in the following manner: “13. The next question is assuming without admitting it was a Settlement Deed, whether there was any acceptance on that date. The legal provisions regarding the gift is very clear. Section 122 of the Transfer of Property Act reads as follows: “Gift” defined – “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 done.” 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 done dies before acceptance, the gift is void.” Unless there is acceptance there can be no gift. In the judgment relied on by the learned Counsel for the Appellant in R. Kumarasamy Gounder v.V. Ezhumalai Kounder, 1996 (2) CTC 130 , there is a reference to the decision reported in Venkatasubbamma v. Narayanaswami, AIR 1954 Mad. 230. “If there is acceptance of the gift after execution of the deed, even though the registration was postponed to a later date, the gift would become irrevocable. 230. “If there is acceptance of the gift after execution of the deed, even though the registration was postponed to a later date, the gift would become irrevocable. The fact that the deed was executed and registered would not make it irrevocable, if in fact there was no acceptance by the donee, either before registration but after execution or even after registration. What the law requires is acceptance of the gift after its execution though the deed may not be registered. Anterior negotiations or talks about the transfer of property by way of gift would not amount to acceptance of the transfer of the property by way of gift would not amount to acceptance of the transfer of property by gift. Acceptance may be implied but the facts relied on to draw an inference of acceptance must be acts of positive conduct on the part of the donee or persons acting on his behalf and not merely passive acquiescence, such as standing by when the deed was executed or was registered.” This shows that mere standing by when the deed was executed or registered will not be sufficient to prove acceptance. It is true as pointed out by the learned Counsel for the Appellant that it was extremely probable that Arunachalam was standing beside his father Varadaiya Chetty when Ex.A1 was registered. But that alone will not amount to acceptance.” 14. The above said ratios laid down by the various judgments referred to supra would leave no doubt that to establish a valid gift, there has to be acceptance supported by relevant materials. As discussed above, admittedly there is no material to support the contentions of the Plaintiffs that the Gift Deed executed in their favour by their grandfather has been acted upon. It is also to be seen that the subsequent documents executed by their mother would clearly falsify the case of the Plaintiffs. It is not the case of the Plaintiffs that the said documents executed by their mother are sham and nominal. The evidence available also prove the factum of debts incurred by their family. It is also to be seen that the subsequent documents executed by their mother would clearly falsify the case of the Plaintiffs. It is not the case of the Plaintiffs that the said documents executed by their mother are sham and nominal. The evidence available also prove the factum of debts incurred by their family. On the contrary the findings of the Courts below itself is to the effect that the Appellants are in possession and there is no finding to the effect that the subsequent redemption of mortgage on the discharge of the loan by the Appellants as well the consideration paid towards the purchase of the half share of the suit property under Ex.B1 are not true. Therefore, by taking note of the substantial question of law No.3 raised by the Appellant and in view of the discussions made, this Court is of the view that the Appeal deserved to be allowed. 15. Accordingly, the substantial question of law No. 3 raised is answered in favour of the Appellants. However, it is seen that the Appellants have claimed title only in the half share of the suit property. There is no doubt or dispute regarding the title in favour of the Plaintiffs and Defendant No.1, insofar as the remaining half share is concerned. Therefore, there shall be a decree for Partition of the remaining half share of the property between the Plaintiffs and the Defendant No. 1. The Plaintiffs and the Defendant No.1 are entitled to equal share in the remaining share of the property. Since the finding of the Court below itself is to the effect that the Appellants are in possession and enjoyment of the half share, which have been purchased under Ex.A1, insofar as the said share is concerned, the Suit is decreed. 16. In fine, judgments and decrees of the Courts below are hereby set aside and the Second Appeal is allowed insofar as the half share of the suit property purchased by the Appellants. There shall be a decree for partition in respect of the remaining half share is concerned, to be shared equally by the Plaintiffs and Defendant No.1. In the circumstances of the case, there is no order as to the costs.