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2014 DIGILAW 1604 (MP)

Gopal Prasad v. Ashok Kumar

2014-12-05

SANJAY YADAV

body2014
ORDER 1. Heard on admission. 2. Whether dedication of immovable property comprising of a residential house by the owner without divesting his legal heirs of their right of inheritance thereover would disable such owner from bequeathing the said property to his progenies, is the precise question raised by the defendant vide this second appeal, which is directed against judgment and decree dated 9.12.2005 passed in Civil Appeal No.19-A/2005 by First Additional District Judge, Narsinghpur; affirming the judgment and decree dated 16.3.2005 passed by First Civil Judge Class II Narsinghpur in Civil Suit No.16-A/2004. 3. Jhaulal, son of Nanhelal Tamrakar, was the owner of a kachcha house situated at Mouja Hardaul Ward, Chhota Chhindwara (Gotegaon) N.B.175 P.H. No.16 Tahsil Gotegaon District Narsinghpur. That, while executing a Will on 22.5.2001, Jhaulal bequeathed his property in favour of plaintiff Ashok Kumar. That, Jhaulal was unmarried and the beneficiary is his nephew. Jhaulal expired on 25.5.2001 and when the plaintiff moved the municipal authorities for mutation of his name over the suit house, the same was objected at by the defendant on the basis of a gift deed dated 27.12.1993 stating that the suit house was already donated for the purpose of raising a Dharamshala for Tamrakar community. The objection led the plaintiff file a suit for declaration of ownership over the said property and for permanent injunction. 4. Defendant denied the claim contending inter alia that vide gift-deed dated 27.12.1993 (Ex.D/2), said Jhaulal had endowed the property for charitable purpose and thus, divested his legal heirs of any right thereover. The trial Court as well as the appellate Court having found that the said gift deed being not a registered document as would have conferred any title on the defendant, decreed the suit holding that there is no accrual of right in favour of the defendant on the basis of gift deed dated 27.12.1993. 5. The trial Court found that the plaintiff having discharged his onus of proving the Will, decreed the suit. These findings are affirmed by the appellate Court. 6. Though it is contended on behalf of the appellant that there being creation of endowment in the year 1993 and since the same was for charitable purpose, it was not incumbent upon the defendant to have got the gift deed registered. 7. There is no trace of evidence on record to substantiate the contention that the endowment was created. 6. Though it is contended on behalf of the appellant that there being creation of endowment in the year 1993 and since the same was for charitable purpose, it was not incumbent upon the defendant to have got the gift deed registered. 7. There is no trace of evidence on record to substantiate the contention that the endowment was created. The instrument, which is on a stamp of Rs.50/-, only discloses the intention of the owner i.e. Jhaulal with a specific condition stipulated therein that the property shall not be transferred to anyone including present President of Tamrakar community, but it is his progeny (i.e. donor’s children) who would head the trust when such trust is created. Therefore, the essential ingredient which completes the transfer as a Gift, under section 122 of the Transfer of Property Act, 1882 i.e. the transfer and the acceptance, having not been fulfilled, the defendant failed to establish that the gift deed was for a charitable purpose. 8. A ‘Gift’, as defined under section 122 of 1882 Act, is the transfer 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 provision further stipulates that such acceptance must be made during the lifetime of the donor and while he is still capable of giving. 9. In the case at hand, the defendant having failed to establish that the transfer was effected which could be only in the manner as provided under section 123 of 1882 Act, which stipulates - “123. Transfer how effected - For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.” 10. Both the Courts below, in the considered opinion of this Court, did not faulter in holding non-accrual of right in favour of defendant on the basis of said gift deed dated 27.12.1993. 11. Such delivery may be made in the same way as goods sold may be delivered.” 10. Both the Courts below, in the considered opinion of this Court, did not faulter in holding non-accrual of right in favour of defendant on the basis of said gift deed dated 27.12.1993. 11. Even otherwise, unless the gift deed is acted upon and the possession given in furtherance thereto, a donor is not divested of his right over the property and bequeathment thereof in favour of plaintiff would tantamount to revocation of gift, if any. 12. Having thus considered, this Court does not find any substance in the grounds as raised in this appeal. 13. Since no substantial question of law arises for consideration, the appeal fails and is dismissed in limine. No costs. Pranay Sharma for appellant.