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2016 DIGILAW 702 (HP)

Bohra Ram v. Khazana Ram

2016-05-06

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. 1. The present appeal has been filed by the appellants against judgment and decree passed by learned Additional District Judge, Ghumarwin, dated 16.03.2006 in Civil Appeal No. 269/13 of 2004/2001 titled Bohra Ram Vs. Khazana Ram and judgment and decree passed by learned Sub Judge First Class on 05.07.2001 in Civil Suit No. 54/1 of 1999/90 titled Khajana Ram, vide which learned lower Court decreed the suit filed by the plaintiff/respondent, which judgment was affirmed in appeal by the learned Appellate Court. 2. The appeal was admitted by this Court on 01.11.2006 on the following substantial question of law:- “Have the two courts below committed illegality in passing a decree of permanent prohibitory injunction in favour of the respondents/plaintiffs, when the latter (respondents/plaintiffs) had made an admission in the affidavit Ex.DW3/A that the possession of the suit land was with appellant Bohra Ram?” 3. In brief, the facts of the case are that Khazana Ram filed a suit for declaration that he was owner in possession of suit land situated in village Kothi, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur and further prayed for a decree of permanent injunction restraining the defendant from interfering over the suit land permanently in any manner. This suit was filed by Khazana Ram against Bhangi Ram, his father. The case set up by the plaintiff was that he was owner in possession of the suit property, which was bequeathed by him vide gift deed dated 09.06.1988 executed by the defendant in his favour. Halqua Patwari had given the copies of jamabandi, in which the share of defendant was reflected as 58137/20160 of defendant over Khewat No. 156, whereas, it should have been 7957/20160 and land ought to have been 2-19 Bighas instead of 3-1 Bighas. It was further stated that it was a clerical mistake of Patwari and gift deed was registered by the Sub Registrar, Ghumarwin, and after that the plaintiff had submitted the same for mutation but the Assistant Collector 2nd Grade, Ghumarwin, rejected the mutation on 22.09.1988, which order was wrong and against law and procedure. It was further mentioned that the plaintiff is entitled for decree of land measuring 4-8 Bighas over the share of defendant in Khewat No. 156 and 157 situated in village Kothi, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur. It was further mentioned that the plaintiff is entitled for decree of land measuring 4-8 Bighas over the share of defendant in Khewat No. 156 and 157 situated in village Kothi, Pargna Tiun, Tehsil Ghumarwin, District Bilaspur. It was further stated that the plaintiff is entitled for decree of permanent injunction against the defendant that he should not interfere over the suit land in any manner permanently. The plaint is dated 28.12.1989. 4. Written statement was filed to the said suit by defendant Bhangi on 16.11.1990, in which he admitted the claim of the plaintiff. On the basis of this, a compromise decree was passed in favour of the plaintiff dated 03.12.1990. 5. However, this compromise decree was challenged by the present appellants, who are also sons of Bhangi (defendant) and brother of Khazana Ram (plaintiff). The case was accordingly, remanded by the learned District Judge, Bilaspur, by setting aside the original decree and the present appellants thereafter filed an application before the learned lower Court under Order 1 Rule 10 C.P.C. for being impleaded as defendants in the suit, which application was allowed on 27.11.2000. The case was thereafter contested on merit by the parties and the learned lower Court vide its judgment dated 05.07.2001 decreed the suit of the plaintiff in the following terms:- “It is ordered that the suit of the plaintiff is hereby decreed to the effect that plaintiff is hereby declared owner in possession the suit land 7957/20160 share in the land measuring 7.9 bighas, khasra kitta-4 khewat No. 156/209, and 7401/17280, share in the total land measuring 3.9 bighas comprising khasra No. 636 Khewat No. 157/201, situated in village Kothi Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. and defendants are hereby restrained from causing any interference in the possession of plaintiff in the suit land or in any other manner whatsoever by way of permanent prohibitory injunction. Parties shall bear their own costs.” 6. The said judgment and decree passed by the learned lower Court was challenged by the present appellants by way of appeal, which was dismissed by the learned Appellate Court vide decision dated 16.03.2006.Thereafter, the appellants have filed present appeal, which stands admitted on the substantial question of law already mentioned above. 7. I have heard Mr. K.D. Sood, learned Senior Advocate alongwith Mr. Rajnish K. Lal, Advocate, for the appellants and Mr. Ankush Dass Sood, learned Senior Advocate with Mr. 7. I have heard Mr. K.D. Sood, learned Senior Advocate alongwith Mr. Rajnish K. Lal, Advocate, for the appellants and Mr. Ankush Dass Sood, learned Senior Advocate with Mr. Ramakant Sharma, Advocate, for respondent No. 1. 8. The main contention urged by leaned Senior Counsel for the appellants was that the judgments and decrees passed both the learned Courts below were not sustainable in the eyes of law as both the learned Courts below have failed to appreciate that there was no valid gift deed executed by defendant’s father in favour of the plaintiff. It was further argued by the learned counsel appearing for the appellants that in fact both the learned Courts below have further failed to appreciate that the suit for injunction filed by the plaintiff without any subsequent relief of possession was otherwise not maintainable because the suit land was in possession of the appellants. It was submitted by Mr. Sood that the suit property could not have been gifted by Bhangi Ram because it stood established on record that the suit land was partitioned in the year 1984 by Bhangi Ram amongst his three sons i.e. appellants and respondent /plaintiff, in equal shares who were coming in possession of the same. This private partition which was effected in the year 1984 was acted upon and though there was no instrument of partition executed but the same was even accepted by the respondent/ plaintiff, as shall be evident from affidavit Ext.DW3/B, which has been overlooked by both the learned Courts below. As per the appellant, the respondent/plaintiff had accepted that the gift deed dated had not been acted upon and mutation had not been attested in favour of the respondent/plaintiff and in this background, it was contended on behalf of the appellants that the findings of both the learned Courts below were based on misconstruction of the pleadings especially affidavit Ext.DW3/A. It was further argued by the learned counsel for the appellants that the gift deed executed in favour of the plaintiff was result of fraud and misrepresentation. As per the appellants, their father executed two more gift deeds subsequently in their favour and these gift deeds were executed because the earlier gift deed was never in fact acted upon. It has further been contended by Mr. Sood that execution of Ext. As per the appellants, their father executed two more gift deeds subsequently in their favour and these gift deeds were executed because the earlier gift deed was never in fact acted upon. It has further been contended by Mr. Sood that execution of Ext. DW3/A was duly proved by the scribe and the marginal witnesses, which stood proved from the record that on the day when the said affidavit was prepared, the respondent/plaintiff was present in the Court of learned Magistrate. As per Mr. Sood, the reason as to why the respondent/plaintiff was present in the Court of learned Magistrate was for the purpose of execution of the said affidavit because the respondent/plaintiff was also aware that the gift deed executed in his favour was not a valid gift and had not yet been acted upon. 9. The learned counsel for the appellants has placed reliance upon the decisions in Ram Saran and another Vs. Smt. Ganga Devi, AIR 1972 Supreme Court 2685, Thimmaiah Vs. Shabira and others, (2008) 4 Supreme Court Cases 182, Kumud Ranjan Banerjee Vs. Manabendra Banerjee, 1974 AIR (CAL) 342, Vinay Krishna Vs. Keshav Chandra and another, AIR 1993 Supreme Court 957 and Man Singh and ors. through Sh. D.K. Mahajan Advocate Vs. Lehnu and ors. through Sh. K.C. Nayar Advocate, S.L.J. Himachal Pradesh 1979-150, on the basis of which he has argued that the suit for declaration was not maintainable as the plaintiff was not in possession of the property and further, the gift was not complete because the possession of the property had not been delivered to the donee. 10. On the other hand, Mr. Dass, learned Senior Counsel for respondent No. 1 has contended that there is no merit in the present appeal. It has been urged by Mr. Dass that Ext. DW3/A was not executed by the plaintiff. This was a forged document produced by the appellants and keeping in view this aspect of the matter that execution of this document was never proved, no adverse inference can be drawn on the basis of this document against the respondent /plaintiff. He has further argued that the best person to state as to whether the gift deed was a valid instrument or not was the donor. As per Mr. He has further argued that the best person to state as to whether the gift deed was a valid instrument or not was the donor. As per Mr. Dass, the donor in his written statement had categorically admitted the case of the respondent/plaintiff and nothing further remained to be proved by the respondent/plaintiff. In this background, he argued that both the learned Courts below had rightly decreed the suit of the respondent/plaintiff because the respondent/plaintiff was owner in possession of the suit land, which property had been bequeathed to him by way of valid gift deed. Mr. Dass also contended that the appellants had not been able to prove that the donor suffered from any legal infirmity from executing the gift deed in favour of the respondent/plaintiff. 11. The contention of the learned counsel for the appellants basically is that the gift deed executed by defendant No. 1 in favour of the plaintiff was never complete in law as the possession of the property alleged to have been bequeathed by way of the Gift was actually never handed over to the donee by the donor. This as per the appellants was evident from the contents of Ext. DW3/A as well as the fact that the Assistant Collector 2nd Grade had rejected the mutation of the suit land in favour of the plaintiff on this account. Therefore, according to the appellants, the factum of possession of the property actually having been delivered to the plaintiff was sine-qua-non for demonstrating that the gift deed by defendant No.1 had actually come into effect. 12. On the other hand, learned counsel for the respondent/plaintiff contends that once the gift deed has been executed and registered and he had accepted the gift deed, nothing more remains to be done. 13. In order to appreciate the contentions of the learned counsel for the parties in view of the substantial question of law, it is necessary to go through the contents of the gift deed i.e. Ext. PW1/A. A perusal of the contents of the gift deed will demonstrate that the same was executed on 09.06.1988 and vide this instrument, donor Bhangi Ram has bequeathed the property mentioned in the same in favour of donee Khazana Ram. This gift deed has been duly registered on the same date with Sub Registrar, Ghumarwin. PW1/A. A perusal of the contents of the gift deed will demonstrate that the same was executed on 09.06.1988 and vide this instrument, donor Bhangi Ram has bequeathed the property mentioned in the same in favour of donee Khazana Ram. This gift deed has been duly registered on the same date with Sub Registrar, Ghumarwin. The gift deed has been witnessed by two marginal witnesses and the same was accepted by Khazana Ram, who had appended his signatures on the same as a token of acceptance of the same. The position which emerges from the above narrated facts is that (a) Bhangi Ram executed gift deed in favour of Khazana Ram, the same was signed by two marginal witnesses. It was duly registered with the Sub Registrar, Ghumarwin and the gift deed was executed by the donee i.e. Khazana Ram. Further as per the contents of the gift deed, the possession of the immoveable gifted property stood delivered to the donee. 14. The transfer of property by way of Gift is contemplated under the provisions of the Transfer of Property Act, 1882. Section122 of the said Act defines “gift” as a transfer of certain existing movable or immovable property made voluntarily and without consideration by donor to the donee and accepted by or on behalf of the donee. Section 123 of the Transfer of Property Act regulates the mode of making a gift and it provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor or attested by at least two witnesses. With regard to movable property, transfer either by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses or by delivery of the said property is valid under the provisions of Section 123, which Section reads as under:- “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.” 15. 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.” 15. Therefore, a careful reading of Section 123 of the Transfer of Property Act makes it amply clear that the gift of immovable property can be made by a registered instrument which is signed by or on behalf of the donor and attested by at least two witnesses. Further, when the provisions of Section 123 are read with Section 122 of the Transfer of the Property Act, the same makes it amply clear that gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. Thus, a conjoint reading of Sections 122 and 123 of the act makes it abundantly clear that “transfer of possession” of property covered by the registered instrument of gift duly signed by the donor and attested as required in law is not a sine-quanon for making of a valid gift under the provisions of the Transfer of Property Act. 16. This is the law declared by the Hon’ble Supreme Court of India in Renikuntla Rajamma (dead) by Legal Representatives Vs. K. Sarwanamma, (2014) 9 Supreme Court Cases 445, relevant Paras of which are quoted herein-below:- “9. Chapter VII of the Transfer of Property Act, 1882 deals with gifts generally and, inter alia, provides for the mode of making gifts. Section 122 of the Act defines ‘gift’ as a 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. In order to constitute a valid gift, acceptance must, according to this provision, be made during the life time of the donor and while he is still capable of giving. It stipulates that a gift is void if the donee dies before acceptance. 10. Section 123 regulates mode of making a gift and, inter-alia, provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. It stipulates that a gift is void if the donee dies before acceptance. 10. Section 123 regulates mode of making a gift and, inter-alia, provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In the case of movable property, transfer either by a registered instrument signed as aforesaid or by delivery is valid under Section 123. Section 123 may at this stage be gainfully extracted: “123. Transfer how effected – For the making of 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.” 11. Sections 124 to 129 which are the remaining provisions that comprise Chapter VII deal with matters like gift of existing and future property, gift made to several persons of whom one does not accept, suspension and revocation of a gift, and onerous gifts including effect of non-acceptance by the donee of any obligation arising thereunder. These provisions do not concern us for the present. All that is important for the disposal of the case at hand is a careful reading of Section 123 (supra) which leaves no manner of doubt that a gift of immovable property can be made by a registered instrument singed by or on behalf of the donor and attested by at least two witnesses. When read with Section 122 of the Act, a gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. That such acceptance must be given during the life time of the donor and while he is still capable of giving is evident from a plain reading of Section 122 of the Act. That such acceptance must be given during the life time of the donor and while he is still capable of giving is evident from a plain reading of Section 122 of the Act. A conjoint reading of Sections 122 and 123 of the Act makes it abundantly clear that “transfer of possession” of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift under the provisions of Transfer of Property Act, 1882.” 12. Judicial pronouncements as to the true and correct interpretation of Section 123 of the T.P. Act have for a fairly long period held that Section 123 of the Act supersedes the rule of Hindu Law if there was any making delivery of possession an essential condition for the completion of a valid gift. 17. In this background, the contentions raised by the learned counsel for the appellants that the gift deed was incomplete in view of the fact that the possession of the property was not handed over to the donee and both the learned Courts below had failed to appreciate this very important aspect of the matter in view of the admission made in affidavit Ext. DW3/A looses its significance. In my considered view, the gift deed executed by defendant No. 1 in favour of the plaintiff was a valid gift deed for all intents and purposes. There was clear recital in the same that the possession of the property subject matter of the same was also handed over to the plaintiff. Be that as it may, as has already been held by me above, transfer of possession is not a sinequa-non for the making of valid gift under the provisions of the Transfer of Property Act, 1882. Therefore, as there was a valid gift existing in favour of the plaintiff, affidavit allegedly executed by the plaintiff Ext. Ext.DW3/A was of no significance and the suit was rightly decreed in favour of the plaintiff by the learned lower Court and the said judgment was correctly upheld by the learned Appellate Court. 18. Therefore, in view of the above discussion, I do not find any merit in the present appeal and the same is dismissed. No order as to costs. Interim order, if any, also stands vacated.