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2014 DIGILAW 229 (KER)

Kumari v. Jaya

2014-03-11

P.BHAVADASAN

body2014
JUDGMENT : 1. The defendant in O.S. No. 25 of 2001 before the Munsiff’s Court, Kolencherry, who suffered a decree for declaration of title with respect to the plaint schedule property and also for fixation of the boundary, which was confirmed in appeal, is the appellant before this Court. 2. The first plaintiff and the defendant are sisters. Their father executed Ext.B1 document in favour of the first plaintiff covering 27 cents of property which was a portion of the property owned and possessed by him. On the same day, he executed Ext.B3 document in favour of the defendant. As per the records, on 04.04.1994, by Ext.B2 document dated 04.04.1994, he cancelled the deed of assignment i.e., Ext.B1 document. On the same day, property covered by Ext.B1 which was cancelled by Ext.B2 document was conveyed to the defendant as per Ext.B4 document. 3. These facts have almost admitted. The controversy in this case is regarding the nature of Ext.B1 document and its consequences. According to the plaintiff, Ext.B1 is a sale deed and after having parted with the title in the property and all attending rights over the property, it was incompetent for their father to execute a cancellation deed and thereafter, a deed in favour of the defendant which according to the plaintiff, have no legal value. It is therefore contended that the property belongs to the first plaintiff and since the defendant has setting up right over the property, the suit has been laid. 4. The defendant resisted the suit. Her contention was that with the execution of Ext.B2 cancellation deed, whatever rights which the first plaintiff acquired as per Ext.B1 no longer exists. It is also contended that Ext.B1 could not be treated as sale deed and as no consideration has passed, it is only a deed of gift. If that be so, according to the defendant, there is want of evidence to show delivery and acceptance which are the essential ingredients of a gift and it follows that the gift had not been accepted. If the gift had not been accepted, the cancellation by Ext.B2 document is perfectly valid and the document in her favour, on the same day as per Ext.B4, is also a valid document. If the gift had not been accepted, the cancellation by Ext.B2 document is perfectly valid and the document in her favour, on the same day as per Ext.B4, is also a valid document. It is also pointed out that at no point of time after the execution of Ext.B3 sale deed on 12.10.1992, the first plaintiff had exercised any acts of possession over the suit property and it was the defendant who has been cultivating the property ever since the document in her favour. She also pointed out that she has paid tax in respect of the property and that shows that she has been in absolute possession and enjoyment of the property. She disputes any manner of right of the plaintiff with regard to the plaint schedule property and prayed for a dismissal of the suit. 5. The trial court raised issues for consideration based on which parties went for trial. The evidence consists of the testimony of PWs 1 to 3 and had Exts. A1 to A10 marked from the side of the plaintiffs. The defendants had DWs 1 and 2 examined and had Exts. B1 to B7 marked. C1 to C2(a) were marked as Commissioners report and plan. 6. The trial court on an appreciation of the evidence in the case was persuaded to take a view that Ext.B1 is a sale deed and if that be so, the subsequent cancellation deed and the assignment in favour of the defendant as per Ext.B4 can have no legal effect. Holding so, the suit was decreed. 7. In appeal, the lower appellate court was not impressed by the claim that Ext.B1 is the document of sale, but chose to treat it as a document of gift and then went on to hold that the gift has been accepted and therefore, the cancellation cannot have any legal value. Thus upheld the transaction in favour of the plaintiff. Though for different reasons, the lower appellate court confirmed the judgment and decree of the trial court. 8. Thus upheld the transaction in favour of the plaintiff. Though for different reasons, the lower appellate court confirmed the judgment and decree of the trial court. 8. The following substantial questions of law have been formulated in this second appeal for consideration: “(i) Whether, in the light of the contention in the plaint that Ext.A2 is the sale deed having been found to be false by the lower appellate court, was the court justified in proceeding to invalidate the subsequent cancellation deed without considering whether there was any acceptance of the gift deed and without raising an issue on the same? (ii) Whether the finding of the lower appellate court that since Ext.A2 gift deed purports to transfer absolute title, the donee had no right to execute a cancellation deed or to execute Ext.B2 sale deed in favour of the defendants is sustainable in law? (iii) Whether, in a case where acceptance of the gift is specifically disputed, merely from a statement in the deed that possession is handed over to the donee, acceptance of the gift can be inferred without there being any pleadings or evidence to that effect? (iv) Whether in the light of the total absence of dispute that Ext.B4 is a sale deed, the father could have executed a subsequent sale deed in favour of the first plaintiff Ext.A3, without having Ext.B4 set aside in any manner known to law? (v) Whether the lower appellate court did not commit gross error in proceeding on surmises and assumptions, and the appreciation of the pleadings and the evidence of the lower appellate court is not the perverse, such that no reasonable judicial Tribunal would have arrived at such a conclusion in the case? (vi) Whether the lower appellate court did not commit gross error in appreciating the title documents and the tax receipts produced by the parties to assume that proper mutation had been effected to the name of the plaintiff and it proved her possession of the property? (vii) Whether the mutation effected in the name of the plaintiff was not invalid in view of patent non compliance with the mandatory provisions of the Transfer of Registry Rules?” 9. Sri. (vii) Whether the mutation effected in the name of the plaintiff was not invalid in view of patent non compliance with the mandatory provisions of the Transfer of Registry Rules?” 9. Sri. Dinesh R. Shenoy, the learned counsel appearing for the appellant pointed out that there is no consensus between the courts below regarding the actual nature of the document and on a perusal of the document, it could not be said that it is a sale deed. The learned counsel pointed out that on a reading of Ext.B1 document, it can be seen that no sale consideration has passed between the vendor and the vendee. If that be so, the essential ingredients to constitute a sale is absent in the case on hand. The finding of the trial court that it is a sale deed and therefore, Exts.B2 and B4 can have no effect cannot stand scrutiny. Alternatively, the learned counsel contended that the finding of the lower appellate court that Ext.B1 is a gift deed is without basis. Dilating on the point, learned counsel pointed out that, that finding is without any foundation in the pleadings and if one is to assume that it is a gift deed, then the question arises whether there has been delivery and acceptance. Referring to the oral evidence in the case, the learned counsel pointed out that it is admitted by PW1, the first plaintiff that from 1992 till 2001, she had not exercised any acts of possession over the property which would belie the findings that the gift deed has been accepted. On the other hand, according to the learned counsel, there is clinching evidence to show that the property has been enjoyed and possessed by the defendant and she has started cultivation in that suit property. For the proposition that going by the recitals in Ext.B1, the said document cannot be treated as a sale deed, the learned counsel relied on the decision reported in State of Kerala v. Thomas ( 1986 KLT 861 ), Commissioner of Income Tax, Andhra Pradesh v. M/s. Motors and General Stores (P) Ltd. ( AIR 1968 SC 200 ), Mathew v. Lakshmanan ( 1990 (2) KLT 446 ), Thomman v. Taluk Land Board, Mukundapuram ( 1976 KLT 840 ). The learned counsel appearing for the appellant also pointed out that in fact the suit initially was one for prohibitory injunction simplicitor alone and at the first instance, it was decreed. In appeal, the appellate court held that the properties have not been identified and therefore allowed the appeal and sent back the matter for identification of the property. Thereafter, the trial court allowed the amendment application incorporating prayer for declaration of title and possession and other reliefs. This, according to the learned counsel, is beyond the scope of the remand order as remand order was confined to the question of identity of properties alone. The trial court has gone far beyond the scope of the remand order and therefore on that ground also, the judgment and decree cannot be sustained. 10. Meeting the above contentions, the learned counsel appearing for the respondents pointed out that it is incorrect to say that Ext.B1 is not a document of sale. Going by the definition of sale, it is only taken in the price paid or promised to be paid. In Ext.B1, there is a clear recital that the sale consideration has been quantified as Rs.4,800/- and for reasons best known to the vendor, he chose to waive the receipt of the same. The mere fact that the receipt of the consideration has been waived does not make that the document is not unsupported by consideration. It is one thing to say that there is total lack of consideration and it is another thing to say that there is waiver to receive the consideration. The learned counsel went on to point out that the consideration is specifically mentioned in the document and so also the delivery of the property. It is in fact, a sale deed. If that be so, the finding of the trial court was justified. 11. Alternatively, it was contended that even if, it is viewed as a gift deed, in the light of the evidence furnished by PWs 1, 3 and DW2, it is clear that there is evidence of actual physical possession taken by the first plaintiff and that is sufficient to show that the gift has been accepted. If that be so, viewed from any angle, be it be a sale deed or be it be a gift deed, the cancellation deed, Ext. If that be so, viewed from any angle, be it be a sale deed or be it be a gift deed, the cancellation deed, Ext. B2 and the subsequent deed Ext.B4 in the name of the defendant, can have no legal status. According to the learned counsel, both the courts below have found that the plaintiff has title and possession over the suit property. Be as it may, the trial court held the document to be a sale deed while the appellate court held it to be a gift deed, the fact remains that the finding is in favour of the plaintiff and there is concurrent finding regarding the right of the plaintiff over the suit property. It is not shown that the findings so entered into by the courts below are either perverse or not warranted by the evidence on record. If that be so, interference under Section 100 of C.P.C. is unwarranted. According to the learned counsel, no substantial question of law arises for consideration in this second appeal. 12. The main controversy in this case appears to be the nature of the document namely Ext.B1. There is no dispute regarding the fact that the said document was executed by the father of the first plaintiff and the defendant on 12.10.1992 with reference to 27 cents of land. There is also no dispute that on 04.04.1994, by Ext.B2 document, the assignment of Ext.B1 was cancelled. On the same day, as seen from the evidence, Ext.B4 was executed, whereby, the property covered by Ext.B1 was transferred in favour of the defendant. The trial court held Ext.B1 to be a sale deed, while the lower appellate court held it to be a gift deed. 13. Before going into that aspect, the contention with reference to the remand order needs to be dealt with. It is true that the suit was initially one for injunction simplicitor. It was decreed in favour of the plaintiff. The matter was carried in appeal. The lower appellate court thought that there was some controversy regarding the identification of the properties and therefore remanded the matter to the trial court for identification of the property. It is also true that the subsequently amendment to the plaint was prayed for and additional relief was sought to be incorporated. After considering the amendment application and objection filed by the respondents thereto, the application was dismissed. It is also true that the subsequently amendment to the plaint was prayed for and additional relief was sought to be incorporated. After considering the amendment application and objection filed by the respondents thereto, the application was dismissed. The plaintiffs brought up the matter before this Court by way of Writ Petition (Civil) No. 9564 of 2009. This Court held as follows: “I do find some force in the submission made by the learned counsel for the respondent, that the amendment was applied only after 1= years after the remand and it shows lack of due diligence on the part of the plaintiffs. Whatever that be, on the facts and circumstances presented, I find, to avoid multiplicity of proceedings, the proposed amendment is essential to resolve the controversies arising between the parties. The reasons stated by the learned counsel for disallowing the amendment are not correct. The learned counsel for the respondent urged that if at all the amendment is allowed it has to be given effect to only from the date of carrying the amendment in plaint. I find no justifiable reason to restrict the amendment as canvassed, and the normal rule that the amendment relate back to the date of suit has to follow in the present case. So much so, I hold that the amendment application filed by the petitioner has to be allowed but only on terms compensating the injury likely to be suffered by the respondent/defendant by the belated application filed for seeking such relief. Ext.P7 order shall stand set aside and the amendment application allowed subject to the condition that the petitioner pay a sum of Rs.1,500/- as cost to the respondent/defendant. Cost so ordered shall be given to the counsel appearing for the respondent within three weeks and a memo filed on or before 12.10.2009. In default of payment of cost as directed, the writ petition shall stand dismissed without any further orders.” 14. In the light of the order in W.P.(C) No.9564 of 2009, it is not open now to the defendant to contend that the trial court travelled beyond the scope of the remand order and therefore it is vitiated. Though it may be correct to say that the remand order was confined to identify the property, subsequent events resulting in the O.P. and the above mentioned order permitted the plaintiff to carry out the amendment as required by them. Though it may be correct to say that the remand order was confined to identify the property, subsequent events resulting in the O.P. and the above mentioned order permitted the plaintiff to carry out the amendment as required by them. Therefore, that gives a quietus to the issue regarding remand. 15. Coming to the question regarding the nature of the document namely Ext.B1 which should clinch the issue in this case, it is nomenclatured as a sale deed. It is seen from the documents that sale consideration is quantified at Rs.4,800/-. However, the same document recites that the vendor waived receipt of consideration. The question is whether the waiver of consideration can disqualify the document from being a sale deed. 16. Section 54 of the Transfer of Property Act, 1882 reads as follows: “54. “Sale” defined.- “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of reversion or other intangible thing, can be made only by a registered instrument. 17. It is by now well settled that the consideration has to be in terms of money. If it is found there is no passing of consideration or there is total lack of consideration, then as pointed out by the learned counsel for the appellant, the document could be treated only as a gift. If it is to be treated as gift, there may be some basis for the contention that since there is no foundation in pleadings and claims regarding the acceptance and delivery as in terms of the gift deed, the finding of the lower appellate court may be open to doubt. 18. A reading of the plaint clearly shows that at no point of time, plaintiff had a case that Ext.B1 document was a gift deed. This crucial aspect seems to have been overlooked by the lower appellate court. 19. Coming to the question whether Ext.B1 is a sale deed, true, the decisions relied on by the learned counsel for the appellant which show that the mere fact that consideration is seen made mention of in the document by itself is not the criterion and the real issue is whether the consideration has actually passed from the vendor to the vendee. If under the guise of a sale deed, it is a gratuitous transfer, then it can be treated only as gift. The decisions relied on say so. There can be no doubt that the recitals in the document are not conclusive regarding the nature of the transaction and Sections 91 and 92 are no bar. 20. If the document is to be treated as a gift deed, then necessarily, the question of delivery and acceptance will also have to be considered. If on the other hand, as held by the trial court, if Ext. B1 is to be treated as sale deed, then nothing more survives for consideration and the finding of the trial court is only to be upheld. 21. Whatever may be the issue raised, the fact remains that Ext.B1 is styled as a sale deed. Consideration is shown as Rs.4,800/-. So it could not be said that no consideration was intended as per the document. It also says that vendor has waived receiving statement of sale consideration. However, there is nothing to show that there were any other consideration for assigning the property except for the price made mention of in the document. This Court is therefore unable to accept that Ext.B1 document was executed without any consideration. 22. For a sale to take effect, it will not necessary that the price is actually paid. It may be sufficient enough if the price is promised to be paid. The mere fact that vendor does not receive sale consideration at the time of executing sale deed does not lead to the inference that indeed lacks consideration. 23. There is no contention taken that the sale price is quite inadequate. It is also interesting to note the sale deed even date, executed in favour of the defendant also contains the same recital regarding consideration shown in the deed and the defendant has no case that it is a gift deed. 24. The learned counsel for the respondents relied on the decision reported in Appu v. Bhaskaran (2001) KHC 777), it was held that passing of consideration is not a must for a sale and that could be seen from the definition referred to above. 25. However, there is one qualification. If it is intended that the title and other rights enjoyed by the vendor is to pass only on receipt of consideration, the issue may be different. 25. However, there is one qualification. If it is intended that the title and other rights enjoyed by the vendor is to pass only on receipt of consideration, the issue may be different. That should be evident from the document of assignment itself. If a document of assignment is clear and categoric and makes mention of the fact that property has been delivered and the bundle of rights enjoyed by the assignor stands transferred to the assignee, then there can be no doubt that the sale has taken effect. 26. Much was said about the mutation effected by the defendant in pursuance to Ext.B4 and also regarding the payment of property tax. The defendant seems to have effected mutation and paid tax also. The plaintiff had the mutation changed in her name and later she had paid tax. Mutation and payment of tax by themselves are insufficient to confer title. The defendant has a complaint that the mutation effected in the name of plaintiff was without notice her. But that may not be of much significance. 27. The only attack against Ext.B1 is regarding the receipt of consideration. As already stated, it could not be said that the document is without consideration at all. The mere fact that the consideration has been waived, does not lead to the conclusion that the document was a gift. 28. The lower appellate court may not be justified in coming to the conclusion that the document is a gift deed. First of all, as rightly pointed out by the learned counsel for the appellant, the first plaintiff herself did not have a case that it is a gift deed. All through she continued to claim that it was a sale deed. 29. As regards actual possession, the defendant relies on a stray sentence in the cross examination of PW1 to the effect that from 1992 till 2001, she had not gone tot he property. 30. But the evidence of PW1 has to be read as a whole and other evidence adduced by the plaintiff has also to be considered. She says about pineapple cultivation in the property. Further the evidence of DW2 also goes in her favour. Except for the self interested testimony of DW1 in this regard, there is nothing to show that she exercised any act of possession over the property. 31. She says about pineapple cultivation in the property. Further the evidence of DW2 also goes in her favour. Except for the self interested testimony of DW1 in this regard, there is nothing to show that she exercised any act of possession over the property. 31. On an evaluation of the materials and on a reading of Ext.B1, it could not be said that the document is without consideration. The mere fact that the vendor chose not to receive the consideration is not a ground to hold that the document is devoid of consideration and does not fall within the category of sale deed. The trial court seems to be well justified in its findings that Ext.B1 being a sale deed, whereby, the bundle of rights have been transferred to the first plaintiff, Exts. B2 and B4 are of no use. 32. It must be noticed that the lower appellate court also chose to confirm the decree of the trial court though for different reason. Whatever that be, both the courts below were of the opinion that the title has passed to the first plaintiff and that the defendant did not acquire any rights by virtue of Exts.B2 and B4 documents. 33. Those findings seem to be fully justified going by the evidence on records and it could not be said that the findings are either perverse or not warranted by the evidence on record. Therefore, it follows that this appeal is without merits and is accordingly dismissed. I do so. There will be no order as to costs.