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2015 DIGILAW 241 (BOM)

Dattaram Vithal Porob v. Sitaram Vithal Porob

2015-01-23

F.M.REIS

body2015
JUDGMENT : F.M. Reis, J. 1. Heard Shri J.P. Mulgaonkar, learned Counsel appearing for the Appellants and Shri Sudin Usgaonkar, learned Counsel appearing for the Respondent Nos. 3(a) to (d) and 4. The above Appeal came to be admitted by an Order dated 08.03.2007 on the following substantial question of law: (a) Whether the First Appellate Court misconstrued the gift deed dated 1/5/1943 to hold that what was gifted by Anant Porob and his wife Sundarabai to Vitola Porob and his wife Laximibai was the half share in the properties which were the subject of the gift, when, on a proper reading and a true construction of the said deed it is clear that the entire share of the donors in the properties which were the subject of the gift had been gifted out of the disposable share of the said donors ? (b) Whether the learned First Appellate Judge, on a misconstruction of the gift deed dated 1/5/1943 held that the heirs and successors in interest of Anant Porob and his wife (Defendant Nos. 5 to 30) had succeeded to one half of the share held by the said Anant Porob and his wife and therefore were entitled to gift the said half to the Defendant No. 1 contrary to the intention of the donors that can be gathered on a true construction of the said gift deed that they were gifting their entire disposable share and towards that disposable share the properties mentioned in the said gift deed and, as such no share in the said properties had devolved on Defendants Nos. 5 to 30 that they could gift to the Defendant No. 1 ? (c) Whether the First Appellate Judge having come to the conclusion that the gift made by the gift deed dated 4/8/1986 was invalid in part and the valid part of the gift could not be separated from the invalid part, ought not necessarily to have held that the gift thereby made was entirely invalid and not upheld the decree of the Trial Court declaring the said gift deed as null and void? (d) Whether the learned First Appellate Judge failed to appreciate that the question whether the gift made by Anant Porob and his wife to Vithal Porob and his wife was in excess of their disposable share could only have been raised by the Defendants Nos. (d) Whether the learned First Appellate Judge failed to appreciate that the question whether the gift made by Anant Porob and his wife to Vithal Porob and his wife was in excess of their disposable share could only have been raised by the Defendants Nos. 5 to 30 and that too, in the inventory proceedings of Anant Porob and his wife and that the said question could not be raised and decided in the inventory of Vitola Porob and his wife ? 2. During the course of the hearing of the above Appeal, learned Counsel appearing for the respective parties have pointed out that in case the main substantial question of law No. (a) is examined by this Court, it would automatically answer the remaining substantial questions of law. 3. Shri Mulgaonkar, learned Counsel appearing for the Appellants, has pointed out that the Lower Appellate Court has misconstrued the Deed of Gift dated 01.05.1943 executed in favour of the Appellants by now deceased Anant Porob and his wife Sundarabai in favour of the father/father in law of the Appellants Vithola Porob and his wife Laxmibai. Learned Counsel further pointed out that on a plain reading of the said Deed of Gift, it clearly provides half share of each of the donors in four specific properties were gifted on account of the disposable shares of the donors. Learned Counsel further pointed out that as the donors are married under the communion of assets, each had half share in the two properties identified by letters 'C' and 'D' at para 1 of the plaint and an undivided share in the properties mentioned at Para 1(a) and 1(b) and para 2 of the plaint. Learned Counsel further pointed out that the learned Judge has misconstrued the Deed of Gift to hold that what was gifted was half share of both the donors in each of the properties referred to in the Deed of Gift at exhibit Pw. 1/A. Learned Counsel has thereafter taken me through the said exhibit Pw. 1/A and pointed out that the construction by the learned Appellate Court is totally misplaced as the learned Judge has incorporated words to the said Gift to the effect that what was gifted was half share of the donors in the properties. 1/A. Learned Counsel has thereafter taken me through the said exhibit Pw. 1/A and pointed out that the construction by the learned Appellate Court is totally misplaced as the learned Judge has incorporated words to the said Gift to the effect that what was gifted was half share of the donors in the properties. Learned Counsel as such submits that all the children of the original donors were not entitled to execute the Deed of Gift in respect of the Deed dated 04.08.1986 which is at exhibit Pw. 1/B. The learned Counsel also submits that as the said properties were gifted on account of the disposable quota, the exercise of getting the properties allotted or assessing the disposable quota, would have to be carried out in Inventory Proceedings upon the death of the donors. The learned Counsel further points out that the reference to the said four properties in the subsequent Deed of Gift at exhibit Pw. 1/B, have no legal effect and a nullity and, as such, the impugned Judgment of the Lower Appellate Court deserves to be accordingly modified. 4. On the other hand, Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents, has supported the impugned Judgment of the Lower Appellate Court. The learned Counsel has pointed that both the Courts below have concurrently interpreted the document of the Deed of Gift at exhibit Pw. 1/B to hold that half share of the donors in each of the properties mentioned in the Gift was in fact gifted on account of the disposable quota. Learned Counsel further pointed out that the interpretation given by the Courts below cannot be interfered with as, according to him, on perusal of the Deed of Gift at exhibit Pw. 1/A what has been gifted is in fact the half share of the donors in the properties mentioned therein. Learned Counsel further pointed out that as such, as far as the remaining half of the donors are concerned, in view of the Deed of Gift at exhibit Pw. 1/B, such share therein has devolved upon the Respondent No. 1. The learned Counsel has thereafter taken me through the Judgment of the Lower Appellate Court to contend that the substantial question of law framed by this Court is to be answered in favour of the Respondents. 5. 1/B, such share therein has devolved upon the Respondent No. 1. The learned Counsel has thereafter taken me through the Judgment of the Lower Appellate Court to contend that the substantial question of law framed by this Court is to be answered in favour of the Respondents. 5. I have duly considered the submissions of the learned Counsel and with their assistance, I have also gone through the relevant records. The substantial question of law is essential to examine the construction of the Deed of Gift at exhibit Pw. 1/A. On going through the said Deed of Gift at exhibit Pw. 1/A, the accepted translation of the said original document which is in Portuguese Language, inter alia, states thus: "....that by the present deed they gift to the parties of the second and third parts, by this deed inter vivos, gratuitously and freely one part and on payment of the onus and/or charges the other part, that is their full disposable share, namely the right to half which belongs to each of the parts i.e. donors of all the properties of their household and on account of the said share they allot to the said donees, the parties of the second part, their cousins, the said Vitola Porobo and wife, their following properties....." 6. On going though the contents therein, it unambiguously suggests that what has been gifted by the donors is their full disposable share namely the right to half which belongs to each of the parties i.e. the donors of all the properties of their household and, on account of the said share, they allotted to the said donees the parties of the part, their cousins the said Vithola Porob and his wife, the following properties. In such circumstances, the half which belongs to each of the parties i.e. the donors with regard to the said four properties have been gifted to the donees on account of the disposable quota. The disposable quota consists of half share in all the properties of the estate. In the present case, the fact that the donors were also holding some more properties has not been disputed by Shri Usgaonkar, learned Counsel appearing for the Respondents. In such circumstances, the question of contending that the disposable quota would consist of half of each of the properties belonging to the donor, cannot be accepted. In the present case, the fact that the donors were also holding some more properties has not been disputed by Shri Usgaonkar, learned Counsel appearing for the Respondents. In such circumstances, the question of contending that the disposable quota would consist of half of each of the properties belonging to the donor, cannot be accepted. The disposable quota consists of half in the totality of the properties belonging to the estate leaver. 7. In such circumstances, taking note of the contents of the said document it clearly states that half share of each of the donors in the properties mentioned therein have been gifted on account of the disposable quota. The interpretation given by the Lower Appellate Court to mean that it would restrict to only half share of each of the properties belonging to the donors cannot be accepted. In such circumstances, Shri Mulgaonkar, learned Counsel appearing for the Appellants, is justified to contend that the Lower Appellate Court has misconstrued the document to come to the conclusion that what has been gifted in each of the property is half share of both the donors in each of the property. As already pointed out herein above, each of the donors had half share in the property belonging to the couple and, as such, both of them have donated half of each of their shares in favour of the donors which include the Appellants herein. As such, the Lower Appellate Court has misconstrued the Deed of Gift at exhibit Pw. 1/A to erroneously come to the conclusion that the Gift Deed is to be restricted to only half of the rights of both the donors in the properties referred to in the Deed of Gift. 8. On perusal of the plaint, the dispute between the parties essentially arose on the ground that the properties could not have been enlisted in the Inventory Proceedings. No doubt, whether the properties which have been gifted come within the disposable quota or not is a matter which has to be examined only in the Inventory Proceedings of late Anant Porob and his wife Sundarabai. In case, the gift exceeds the disposable quota, the consequences in terms of the provisions of law would have to be followed by the Inventory Proceedings. In case, the gift exceeds the disposable quota, the consequences in terms of the provisions of law would have to be followed by the Inventory Proceedings. But, however, as the properties including the shares of the donors were already gifted to the donees in terms of the document at exhibit Pw. 1/A, the children of the donors were as such not entitled to gift the same properties in favour of the Respondent No. 3 herein. To the extent of the reference of the properties mentioned in the Deed of Gift at exhibit Pw. 1/A the subsequent Deed of Gift executed on 04.08.1986, is null and void. The substantial question of laws are answered accordingly. In view of the above, I pass the following: ORDER (i) The Appeal is partly allowed. (ii) The impugned Judgment passed by the Lower Appellate Court dated 02.03.2006 is quashed and set aside. The Decree passed by the learned Trial Judge dated 27.03.2000 stands confirmed in the light of the observations made and reasons stated herein above. (iii) Needless to say, Deed of Gift at exhibit Pw. 1/A would be subject to the observations made herein above. (iv) Appeal stands disposed of accordingly with no orders to costs. Appeal Partly Allowed.