Natthuji Jairam Wankhede v. Santoshrao Natthu Wankhede
2018-07-26
A.S.CHANDURKAR
body2018
DigiLaw.ai
JUDGMENT A.S. Chandurkar, J. - The appellant is the legal heir of the original defendant who is aggrieved by the decree for possession passed in the suit that was filed by the respondent herein. The trial Court dismissed the suit but the appellate Court reversed that decree and held in favour of the plaintiff. 2. Facts in brief are that it is the case of the respondentplaintiff that the defendant was his uncle and he had settled at Mouza Sarandi. The defendant did not have any issue and therefore the plaintiff was taken in adoption in the year 1955-56. The plaintiff started residing with the defendant as a member of his family. Out of love and affection the defendant on 27/02/1958 executed a GiftDeed in favour of the plaintiff and by virtue of that GiftDeed, land from Survey No.59 was gifted to the plaintiff. The plaintiff accordingly cultivated the said land. In the year 1964 the defendant entered into second marriage and thereafter disputes arose between the plaintiff and the second wife of the defendant. The plaintiff therefore left said village and started residing at Nagpur. Subsequently the plaintiff intended to cultivate the land that was gifted to him and therefore sought possession of the same. He issued notice on 07/03/1975 and thereafter filed suit for possession of the suit property based on said GiftDeed on 02/04/1975. He also sought accounts from defendant for the years 1972-73. 3. In the written statement at Exhibit14 the defendant pleaded that he was distantly related to the plaintiff. The plaintiff intended to get married but as he had no independent means of subsistence, nobody was offering their daughter to him for getting married. The defendant therefore on 27/02/1958 executed a GiftDeed in favour of the plaintiff and thereafter the marriage of the plaintiff was solemnized. It is further pleaded that after his marriage the plaintiff started quarreling with the defendant and his wife. The defendant therefore asked the plaintiff to leave his house. The plaintiff thus executed an agreement on 24/02/1960 agreeing not to disturb the defendant''s possession till his death and further also acknowledged the defendant''s ownership. It was thus pleaded that the Gift was conditional in nature and subject to the plaintiff taking care of the defendant. As the plaintiff did not take care of the defendant, the GiftDeed was revoked and the plaintiff had no legal right to the property.
It was thus pleaded that the Gift was conditional in nature and subject to the plaintiff taking care of the defendant. As the plaintiff did not take care of the defendant, the GiftDeed was revoked and the plaintiff had no legal right to the property. 4. The parties led evidence before the trial Court which held that the plaintiff had not proved that he was the owner of the suit property. It was held that the defendant had proved that the GiftDeed was not intended to be acted upon and the defendant''s ownership was acknowledged in view of agreement dated 24/02/1960. The trial Court therefore dismissed the suit. The appellate Court after reconsidering the evidence on record held that the plaintiff acquired title to the suit property under the said GiftDeed and therefore he was entitled for possession. The suit was accordingly decreed and the defendant was directed to hand over possession of the suit property to the plaintiff. Being aggrieved the legal heir of the defendant has filed the present second appeal. 5. The following substantial questions were framed while admitting the second appeal : (1) Whether the suit was barred by limitation ? (2) Whether the Gift was conditional Gift and was void on account of nonfulfilment of condition ? 6. Shri R. L. Ghonge, learned counsel for the appellant submitted that the GiftDeed at Exhibit33 was conditional in nature and it was subject to the plaintiff taking care of the defendant during his old age. As per notice at Exhibit36 issued by the defendant the plaintiff was informed that he was not taking good care of the defendant and therefore no rights accrued to the plaintiff on the basis of the GiftDeed. After that notice was issued, the plaintiff in presence of Panchas agreed to take care of the defendant and acknowledged that fact. Thereafter agreement at Exhibit37 dated 24/02/1960 was executed by the plaintiff in which he agreed that he would take care of the defendant and if same was not done, he would get no rights in the suit property. It was thus submitted that in the light of provisions of Section 126 of the Transfer of Property Act, 1882 (for short, the said Act), a conditional GiftDeed was revocable and same was accordingly revoked by the defendant.
It was thus submitted that in the light of provisions of Section 126 of the Transfer of Property Act, 1882 (for short, the said Act), a conditional GiftDeed was revocable and same was accordingly revoked by the defendant. It was further submitted that the defendant continued in possession of the suit property as was clear from the revenue records. This indicated that the defendant did not intend to act upon the GiftDeed and same was rightly revoked during the defendant''s life time. The trial Court rightly dismissed the suit but the appellate Court erroneously held that the subsequent agreement at Exhibit37 would not divest the plaintiff of his title. In that regard the learned counsel placed reliance on the decisions in Philip John Plasket Thomas vs. Commissioner of Incometax, Calcutta , (1964) AIR SC 587, Jagat Singh Chilwal and anr. vs. Dungar Singh , (1951) AIR Allahabad 599 and Mt. Purnia Kurmi vs. Manindra Nath Mahant,1968 AIR(A&N) 50. It was then submitted that the suit for possession as filed on 02/04/1975 was barred by limitation inasmuch as it was filed beyond the period of twelve years after 1960 when the plaintiff left the house of the defendant. This was clear from the material on record and also as per the averments made in the plaint. This point was raised before the appellate Court but only on the ground that the document at Exhibit37 was not registered, it was held that the suit was within limitation. It was thus submitted that the suit as filed by the plaintiff was liable to be dismissed. 7. There has been no appearance on behalf of the respondent despite grant of sufficient opportunity. None appeared on behalf of the respondent on 13/07/2018, 16/07/2018, 19/07/2018 as well as on 23/07/2018. With the assistance of learned counsel for the appellant I have perused the records of the case and I have given due consideration to his submissions. It is not in dispute that initially on 27/02/1958 the defendant executed GiftDeed at Exhibit33 in favour of the plaintiff. In that GiftDeed it was stated by the defendant that he was getting old and had no issue. The plaintiff was his nephew and the defendant had a hope that in his old age the plaintiff would take care of him. He thus intended to gift the land to the plaintiff.
In that GiftDeed it was stated by the defendant that he was getting old and had no issue. The plaintiff was his nephew and the defendant had a hope that in his old age the plaintiff would take care of him. He thus intended to gift the land to the plaintiff. It was further stated that the land that was gifted would not be permitted to be transferred by the plaintiff. According to the defendant, the plaintiff after getting married started quarreling with him and therefore notice at Exhibit36 dated 07/04/1959 came to be issued. In that notice the defendant called upon the plaintiff to leave his house along with his family and not claim any right in the defendant''s property as the plaintiff was not taking care of the defendant. Similarly, it was stated that the GiftDeed executed on 27/02/1958 was void. In his deposition the defendant No.1 stated that the matter was taken before the Panchas in which the plaintiff assured that he would behave in a good manner. Therefore an endorsement was made on 14/04/1959 on the said notice withdrawing the same on the undertaking that the plaintiff would behave in a good manner. Subsequently, as the behaviour of the plaintiff did not improve the defendant asked the plaintiff to leave his house. At that point of time an agreement dated 24/02/1960 came to be executed by the plaintiff which is placed at Exhibit37. As per this agreement the plaintiff again undertook to take good care of the defendant and his wife and that if he did not behave properly he would not claim any right in the suit properly. Thereafter the plaintiff again left the house of the defendant on 24/09/1960 and after a couple of years he shifted to Nagpur. In his crossexamination this version of the defendant has not been seriously challenged. In so far as evidence of the plaintiff at Exhibit32 is concerned, he has stated that the agreement at Exhibit37 was executed by him under pressure. In his crossexamination however he stated that after executing that document, he neither issued any notice to the defendant nor did he lodge any report in that regard. The defendant issued a notice on 07/03/1975 at Exhibit38 seeking possession of the suit property. The document at Exhibit41 is the extract of the suit property indicting the possession of the defendant in the year 1971-72.
The defendant issued a notice on 07/03/1975 at Exhibit38 seeking possession of the suit property. The document at Exhibit41 is the extract of the suit property indicting the possession of the defendant in the year 1971-72. Similarly, Exhibit42 also records the name of the defendant as its owner. This is the material evidence on record. 8. As per provisions of Section 126 of the said Act a conditional GiftDeed can be executed and the manner in which it can be revoked has been laid down. Under Section 31 of the said Act it is open to add a condition while creating any interest while transferring property to another. Illustration (a) given to Section 31 of the said Act indicates that a condition subsequent to the transfer can be imposed and on breach of such condition, the transferee would lose interest in the property transferred. The question whether a gift could be made subject to condition, either precedent or subsequent was considered by the Honourable Supreme Court in Philip John Plasket Thomas . It was observed in paragraph 12 that a gift could be made subject to condition, either precedent or subsequent. It was further observed that a condition precedent is one, which is to be performed before the gift takes effect while a condition subsequent is to be performed after the gift had taken effect. If the condition was unfulfilled the same would put an end to the gift. In Mt. Purnia , a somewhat similar situation arose before the Hight Court of Assam and Nagaland. The facts of that case indicate that the plaintiff therein had no issue and he executed a GiftDeed in favour of the defendant. However, another document was executed on the same day by the defendant agreeing that he would maintain the plaintiff till her death and if he refused to do so, he would not be entitled to the gifted property. As the defendant therein did not abide by the terms of the agreement, the plaintiffdonor filed suit for revocation of the GiftDeed. In that background after considering provisions of Sections 31 and 126 of the said Act, it was held that both the documents formed part of a single transaction which indicated that though the GiftDeed was executed, the interest created by virtue of that transfer would cease to exist if the donee refused to maintain the donor.
In that background after considering provisions of Sections 31 and 126 of the said Act, it was held that both the documents formed part of a single transaction which indicated that though the GiftDeed was executed, the interest created by virtue of that transfer would cease to exist if the donee refused to maintain the donor. It was further held that the subsequent agreement did not require any registration as it neither created any interest nor extinguished any rights therein. In Jagatsing Chilwal after execution of a GiftDeed, an unregistered agreement was executed by the donee agreeing to maintain the donor till his death and on failure it was open for the donor to revoke the GiftDeed. It was held that the document which was unregistered and containing the agreement between the parties as regards the condition upon which the Gift was revocable did not require registration. It was held that the Gift could be revoked in those circumstances. 9. The trial Court after considering the aforesaid aspects rightly held that the GiftDeed was not intended to be acted upon and that in view of the subsequent agreement dated 24/02/1960 the ownership of the defendant was admitted by the plaintiff. The appellate Court however has held that the GiftDeed at Exhibit33 was voluntarily executed by the defendant and the gift was accepted by the plaintiff. As the document at Exhibit37 was unregistered it would not take away the ownership rights of the plaintiff. On that basis it was held that the plaintiff had acquired valid title as per the GiftDeed at Exhibit33. The appellate Court however has not considered the effect of provisions of Section 31 of the said Act read with provisions of Section 126 thereof while upholding the title of the plaintiff. In the light of aforesaid legal position referred to herein above the gift was conditional in nature and on breach of that condition it stood revoked and the title did not pass on to the plaintiff. As the title of the plaintiff was not perfected, the document at Exhibit 37 did not require registration. That document neither created nor extinguished the title of the plaintiff in the light of conditions in the gift at Exhibit33 and the notice at Exhibit36. The finding of the appellate Court in that regard is thus liable to be set aside.
As the title of the plaintiff was not perfected, the document at Exhibit 37 did not require registration. That document neither created nor extinguished the title of the plaintiff in the light of conditions in the gift at Exhibit33 and the notice at Exhibit36. The finding of the appellate Court in that regard is thus liable to be set aside. Substantial question of law No.2 is answered by holding that the gift at Exhibit33 was conditional in nature and it became void due to unfulfillment of the conditions stated therein. 10. As regards the aspect of the suit being filed beyond the period of limitation, the trial Court did not frame any issue in that regard. The appellate Court while deciding point No.5 held that the notice at Exhibit36 that was initially given by the defendant was subsequently withdrawn and therefore the same could not be treated as proof of title of the plaintiff being denied. It has further held that the clear denial of title of the plaintiff and assertion of the defendant''s title was only by virtue of notice dated 23/03/1975 at Exhibit40. It is on that basis that the appellate Court has held that the suit was filed within limitation. It is found that aforesaid finding has been arrived at after considering the contents of Exhibit36. It is not in dispute that said notice was withdrawn in view of the undertaking by the plaintiff that he would take care of the defendant and his wife. The appellate Court was thus correct in holding that the unequivocal denial of the plaintiff''s title was only on 23/03/1975 while issuing notice at Exhibit40. The suit was therefore filed within limitation as per Article 65 of the Limitation Act, 1963. Substantial question of law No.1 is answered by holding that the suit was filed within limitation. 11. In the light of aforesaid adjudication the following order is passed: (1) The judgment in R.C.A. No.258/1982 dated 24/07/2001 is set aside. (2) The Judgment of trial Court in R.C.S. No.44/1975 dated 30/11/1981 is restored. (3) The Second Appeal is allowed with no order as to costs.