JUDGMENT : These appeals are filed challenging the judgment and decree dated 13.12.2016 passed in R.A.No.13/2016 and R.A.No.14/2016, respectively on the file of the Senior Civil Judge and JMFC., Holalkere. 2. The factual matrix of the case of the plaintiffs before the Trial Court in O.S.No.67/2010 is that the suit was filed for the relief of declaration and permanent injunction. The plaintiffs have contended that they are the owners and in possession of suit schedule properties. Earlier suit schedule properties were belongs to their grandfather G. Siddappa, grandfather of plaintiffs has executed a registered will deed on 20.02.1982 in favour of plaintiffs and bequeathed suit schedule properties to the plaintiffs. It is contended that the grandfather of plaintiffs died on 19.06.1988. After the death of plaintiffs’ grandfather, plaintiffs have come in possession of suit schedule properties as owners and they are paying land revenue to the Government. It is contended that the khatha of suit schedule properties are still standing in the name of the defendant. The defendant has no manner of right, title and interest or possession over the suit schedule properties. On 13.06.1977 plaintiffs’ grandfather G. Siddappa had executed a registered gift deed in favour of defendant on a condition that the defendant should construct a hostel building in suit schedule item No.2 property and it should be named in the name of “Chiganarappa and G. Siddappa”. The defendant should make use of usufructs of suit schedule item No.1 property for running the hostel. It is stated that though plaintiffs’ grandfather executed gift deed in respect of suit schedule properties in favour of defendant, but he never parted with the possession of suit schedule properties at any time. Since defendant has not fulfilled conditions stated in the gift deed, plaintiffs’ grandfather was forced to cancel the registered gift deed dated 13.06.1977 and 20.02.1982 under a registered gift cancellation deed. Later defendant got changed the khatha in his name with the support of politicians and revenue officials under MR No.10/1981-82. The Tahasildar, Holalkere has issued an endorsement on 12.12.2008 stating that the records in respect of MR No.10/1981-82 are not available in his office. The defendant is trying to oust the plaintiff from suit schedule properties with the support of Chikkajajur Police. Hence, they are constrained to file the present suit for the relief of declaration and consequential permanent injunction. 3. The defendant is trying to oust the plaintiff from suit schedule properties with the support of Chikkajajur Police. Hence, they are constrained to file the present suit for the relief of declaration and consequential permanent injunction. 3. In pursuance of the suit summons, the defendant appeared and filed the written statement denying all the allegations and averments made in the plaint. It is admitted that Siddappa has executed registered gift deed in favour of defendant on 13.06.1977. The defendant denied the contention of the plaintiffs that the grandfather was not parted with the possession of suit schedule properties after execution of gift deed and denied the execution of conditional gift deed, cancellation of gift deed and the Will executed in favour of the plaintiffs. It is also denied the allegation that MR came into existence colluding with politicians and revenue officials. The defendant has contended that the said G. Siddappa was the absolute owner and the suit schedule properties are the self-acquired properties of G. Siddappa and he was devotee of Shri. Bruhanmatt and he appealed before Swamiji of Sri. Tharalabalu Bruhanmatt, Sirigere to give the suit schedule properties in gift to the Tharalabalu Education Society (R.), Sirigere, and accordingly G. Siddappa has executed gift deed and delivered the possession of suit schedule properties. There was a mistake with regard to sub phode number which was mentioned survey number as 62/4 instead of 62/2 and also executed a rectification deed on 26.07.1980. On the strength of registered gift deed and registered rectification deed the MR No.10/1981-82 is mutated in the name of the defendant. The defendant is in possession and enjoyment of the suit schedule properties. It is also contended that one Jayaprakash S/o G. Siddappa, who is the father of plaintiffs had filed O.S.No.1283/1990 on the file of this Court and after contest, the said suit was dismissed on 19.10.2001, and R.A.No.3/2002 preferred by plaintiffs’ father is also dismissed on 14.06.2007. The said orders attained finality since they have not filed any appeal. The suit is also hit by law of principles of res judicata and therefore the suit of the plaintiffs is not maintainable. 4. The Trial Court based on the pleadings of the plaintiffs and the defendant framed the issues. The said orders attained finality since they have not filed any appeal. The suit is also hit by law of principles of res judicata and therefore the suit of the plaintiffs is not maintainable. 4. The Trial Court based on the pleadings of the plaintiffs and the defendant framed the issues. In order to prove the case, the plaintiffs got examined the first plaintiff as P.W.1 and also examined two witnesses as PWs.2 and 3 and got marked the documents as Exs.P1 to P13. On the other hand, the defendant got examined his Administrative Officer Sri S.B. Ranganatha as D.W.1 and got marked the documents as Exs.D1 to D58. 5. The Trial Court after considering both oral and documentary evidence available on record answered all the issues as negative and dismissed the suit. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed before the First Appellate Court in R.A.No.13/2016. 6. The grounds urged in the appeal is that the Trial Court has committed an error in appreciating both oral and documentary evidence placed on record and plaintiffs have acquired the property through the registered Will dated 20.02.1982 and failed to consider the same and also failed to consider that the gift deed earlier executed was cancelled. The Trial Court is erred in not considering the respondent – Society has not fulfilled the desire or condition of the Will. In spite of it, the Trial Court erroneously dismissed the suit. The Trial Court grossly erred in appellants have not examined the attested witness of the Will and not considered both oral and documentary evidence of P.W.1 and other two witnesses who have been examined. Hence, the judgment of the Trial Court is perverse and capricious; the same is liable to be set aside. 7. The Trial Court grossly erred in appellants have not examined the attested witness of the Will and not considered both oral and documentary evidence of P.W.1 and other two witnesses who have been examined. Hence, the judgment of the Trial Court is perverse and capricious; the same is liable to be set aside. 7. Based on the grounds urged by the appellants before the First Appellate Court, the First Appellate Court formulated the points that whether the plaintiffs have prove that defendant No.1 has violated the conditions put in Ex.P1 of gift deed dated 13.06.1977, for that reason testator of the Gift Deed viz., G. Siddappa had cancelled the said Gift Deed, whether the plaintiffs prove that they acquired the title and possession of the properties through alleged registered Will dated 20.02.1982 executed by their grandfather viz., deceased G. Siddappa and whether the plaintiffs prove that they are in possession and enjoyment of the suit schedule properties and the judgment and decree of the Trial Court is contrary to the evidence. The First Appellate Court on re-appreciation of both oral and documentary evidence and also considering the Sections 122 to 129 of the Transfer of Property Act, 1882, came to the conclusion that the Trial Court has not committed any error and dismissed the appeal. Hence, the present R.S.A.No.299/2017 is filed before this Court. 8. The main contention of the learned counsel appearing for the appellants in this appeal is that the Trial Court grossly erred in recording the finding that the gift deed dated 13.06.1977 is an absolute one not with any conditions without noticing inbuilt intention of the donor while passing the impugned order. The recital in Ex.P1 clearly goes to show the intention of the donor that the defendant has to construct the hostel for the students and he has to make use of the crops grown in the lands for the purpose of feeding the students in the hostel. When the gift is a conditional one it goes without saying that donor has retained his right in the event of not fulfilling of his intention by the donee. When the gift is a conditional one it goes without saying that donor has retained his right in the event of not fulfilling of his intention by the donee. The Trial Court grossly erred in recording the finding that the said intention is not a compulsory one and it is only a desire and when the intention of the donor not at all fulfilled ought to have granted the relief of declaration and injunction in favour of the appellants. The learned counsel also would vehemently contend that this Court has to frame the substantial questions of law that whether both the Courts are right in law in not considering the intention of G. Siddappa while considering Ex.P1, both the Courts are right in law in holding that G. Siddappa had not executed the registered cancellation of Gift Deed though the same is evidenced by the registered cancellation deed which is produced as Ex.P2. 9. The factual matrix of the case of the plaintiffs before the Trial Court in O.S.No.69/2010 is that while seeking the relief of declaration and permanent injunction reiterated the similar facts as pleaded in O.S.No.67/2010. The defendant is common in both the suits and filed the similar defense in both the suits. 10. The Trial Court based on the pleadings of the plaintiffs and the defendant framed the issues. In order to prove the case, the plaintiffs got examined the first plaintiff as P.W.1 and also examined two witnesses as PWs.2 and 3 and got marked the documents as Exs.P1 to P11. On the other hand, the defendant got examined his Administrative Officer Sri S.B. Ranganatha as D.W.1 and got marked the documents as Exs.D1 to D22. 11. The Trial Court after considering both oral and documentary evidence placed on record answered all the issues as negative and dismissed the suit filed by the plaintiffs. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed before the First Appellate Court in R.A.No.14/2016, wherein also, the similar grounds are urged as urged in R.A.No.13/2016. Based on the grounds urged by the appellants, the First Appellate Court has formulated the same points as formulated in R.A.No.13/2016 and dismissed the appeal. Hence, the present R.S.A.No.300/2017 is filed before this Court. 12. The learned counsel appearing for the appellants has reiterated the similar grounds as urged in R.S.A.No.299/2017 in this appeal also. Based on the grounds urged by the appellants, the First Appellate Court has formulated the same points as formulated in R.A.No.13/2016 and dismissed the appeal. Hence, the present R.S.A.No.300/2017 is filed before this Court. 12. The learned counsel appearing for the appellants has reiterated the similar grounds as urged in R.S.A.No.299/2017 in this appeal also. The recital in Ex.D17 clearly goes to show the intention of the donor that the defendant has to construct the hostel for the students and he has to make use of the crops grown in the lands for the purpose of feeding the students in the hostel. The grounds urged in this appeal are also similar to that of other connected appeal viz., R.S.A.No.299/2017 and also raised the same substantial questions of law. 13. This Court while admitting the appeal framed the similar substantial questions of law in both the second appeals, which are as follows:- (i) Whether the Courts below erred in holding that the registered cancellation of the Gift Deed was not valid in the eye of law? (ii) Whether the Courts below erred in law in not considering the facts and circumstances of the case which would establish that the Gift Deed was not acted upon? 14. The learned counsel appearing for the appellants in his arguments he vehemently contends that the Gift Deed was executed on 13.06.1977 and the same was cancelled on 20.02.1982. The learned counsel also would vehemently contend that immediately after cancellation of the said Gift Deed executed the Will in respect of the very same property. The cancellation is for the reason that in the Gift Deed condition was put to him to construct a hostel and he has to make use of the crops grown in the lands for the purpose of feeding the students in the hostel. The donee did not comply the condition. Hence, the Gift Deed was cancelled and executed the Will in favour of his legal heirs. The learned counsel would submit that the application was given for change of khatha, the same was pending. The executant of the Will passed away on 19.06.1988. In the written statement they have not taken the defense that the hostel is constructed. The learned counsel brought to the notice of this Court the relevant paragraph Nos.10 and 11 of the written statement. The executant of the Will passed away on 19.06.1988. In the written statement they have not taken the defense that the hostel is constructed. The learned counsel brought to the notice of this Court the relevant paragraph Nos.10 and 11 of the written statement. The learned counsel submits that in the cross-examination of D.W.1, he categorically admitted the purpose of gift and also admitted that he had not constructed the hostel. This Court has to ascertain whether it was an intention or desire and the same has to be gathered looking into both oral and documentary evidence. The learned counsel would submit that the approach of both the Courts is not correct. The learned counsel appearing for the appellants also brought to the notice of this Court the reasoning given by the Trial Court and the First Appellate Court, particularly, in paragraph No.28 of the Trial Court judgment, the learned counsel brought to the notice of this Court that the reason mentioned in the Will is very clear that in terms of the condition of the Gift Deed, the beneficiary on the gift has not acted upon. Even though the Gift Deed was executed, no entries were found in the revenue records from the year 1977 to 1982. Hence, it is clear that though the Gift Deed was executed he did not get it changed the khatha in favour of the beneficiary of the gift. The learned counsel would submit that the purpose for which the gift was executed was not fulfilled. 15. The learned counsel appearing for the appellants in support of his arguments, he relied upon the judgment of the Apex Court in the case of State of U.P. v. Bansi Dhar and others reported in AIR 1974 SC 1084 , wherein, the Apex Court discussed when the conditional donation to Government to construct a women’s hospital and failure of the said condition, applicability of provisions of Section 83. The cypress doctrine applies if the nature of the charitable object is general and not specific. On account of non fulfillment of condition, the executant of the gift cancelled the same and executed the Will in favour of his legal heirs. 16. The cypress doctrine applies if the nature of the charitable object is general and not specific. On account of non fulfillment of condition, the executant of the gift cancelled the same and executed the Will in favour of his legal heirs. 16. The learned counsel also relied upon the judgment of the Apex Court in the case of Thakur Raghunath Ji Maharaj and another v. Ramesh Chandra reported in AIR 2001 SC 2340 , and brought to the notice of this Court the principles laid down in the judgment that on breach of condition donor could claim back the property and the same was proper in view of larger public interest. If the college is not built within six months, the gift deed will be deemed to have come to an end and that the plaintiff shall be considered to be the owner of the land; the possession will be of the plaintiff till the degree college is not built; in case the college building is not constructed within the said period. Hence, the plaintiff would be entitled to the property. 17. Per contra, the learned counsel appearing for the respondent in his arguments he vehemently contends that the suit is filed for declaration and permanent injunction. The claim is made by the plaintiffs based on the registered Will. The learned counsel would submit that the property belongs to grandfather of the plaintiffs G. Siddappa is not in dispute. The learned counsel also would submit that no dispute with regard to the execution of the gift deed on 13.06.1997. The said gift deed was cancelled on 20.02.1982. The said cancellation is unilateral cancellation. It is the claim of the plaintiffs that on the very same day the property was bequeathed in favour of the plaintiffs. The learned counsel would vehemently contend that Section 11 of the Transfer of Property Act is very clear that no condition can be imposed and also there was no condition in the gift deed that if the Hostel is not constructed can cancel the gift deed unilaterally. Both the Courts relied upon both oral and documentary evidence available on record. The gift deed is acted upon and the same is also valid one. Both the Courts relied upon both oral and documentary evidence available on record. The gift deed is acted upon and the same is also valid one. The learned counsel also would vehemently contend that when the gift deed contains a mistake in mentioning the survey number even the rectification deed was also executed in the year 1980 after lapse of three years. The learned counsel also would submit that prior to filing of these two suits, other two earlier suits were also filed and they have been decided and similar questions were raised for questioning the cancellation of gift deed. In that case, the Court held in favour of defendant. The learned counsel also would submit that the witnesses were not examined in order to prove the Will. The learned counsel also would submit that Ex.D11, clearly discloses that the principles of res judicata applies and the other document – Ex.D13 is in favour of defendant. The similar issues were already decided in the earlier two suits. 18. The First Appellate Court also had given the finding in favour of the defendant as a gift deed. Ex.D15 is in respect of O.S.No.154/1990, wherein, discussed the same in detail. Hence, the principle of res judicata applies. The learned counsel also would submit that Section 11 of the Transfer of Property Act applies and the same has been discussed in paragraph No.28 of the First Appellate Court judgment and also in paragraph No.19, the Trial Court has discussed the same in detail. The Court has to take note of the recitals and the condition is not shall and no period is stated in the gift deed and only reference is made that may be constructed and make use of the same to the students. In terms of Section 11, the gift deed is absolute and the same has been rightly considered by both the Courts. 19. The learned counsel also would submit that in the earlier suits, similar issues were raised. Hence, the res judicata applies. The learned counsel also would submit that the deposition of P.W.1, brought to the notice of this Court particularly relying upon page No.30 and discussed with regard to the answers elicited from the mouth of PWs.2 and 3. 19. The learned counsel also would submit that in the earlier suits, similar issues were raised. Hence, the res judicata applies. The learned counsel also would submit that the deposition of P.W.1, brought to the notice of this Court particularly relying upon page No.30 and discussed with regard to the answers elicited from the mouth of PWs.2 and 3. P.W.2 was not present at the time of execution of the Will and P.W.3 was also not present at the time of execution of the Will and only he says that his father was present. In the earlier suit finding was given that the gift deed is legal and the cancellation of gift deed is illegal. Both the Courts have given the concurrent finding and no merit in the second appeals. 20. The learned counsel appearing for the respondent in support of his arguments, he relied upon the unreported judgment of this Court in W.A.No.4121 of 2017 in W.P.No.18196 of 2014 (LA-BDA), D.D. on 24.05.2022, wherein, observed that it is trite law that principles of constructive res judicata and res judicata apply even to writ proceeding. The original petitioner who claims title in respect of property in question through his father is bound by the decision of previous writ petition and cannot be permitted to agitate the validity of the impugned notifications dated 21.03.1977 and 14.05.1980 again on the principle of res judicata. Thus, the challenge to the aforesaid notification is barred by principles of res judicata. 21. The learned counsel also relied upon the judgment of this Court in the case of Govindamma v. Secretary, Municipal First Grade College, Chintamani, reported in ILR 1986 KAR 1175, and brought to the notice of this Court the relevant paragraph No.12, wherein, it is observed that such a transfer of property can take place either by means of sale, gift, will, lease etc. Transfer of property is always made to convey property to some one or in other words to create an interest in the property in favour of such a person. If the interest so created is absolute but in terms of the transfer there is a direction that such interest shall be applied or enjoyed by the transferee in a particular manner. The learned counsel would submit that the provisions of Section 11 of the Transfer of Property Act squarely apply. 22. If the interest so created is absolute but in terms of the transfer there is a direction that such interest shall be applied or enjoyed by the transferee in a particular manner. The learned counsel would submit that the provisions of Section 11 of the Transfer of Property Act squarely apply. 22. The learned counsel also relied upon the judgment of the Kerala High Court in the case of Bhavani Amma Kanakadevi & Others v. C.S.I., Dekshina Kerala Maha Idavaka, Chintamani reported in 2007 SCC OnLine KER 97, and brought to the notice of this Court the relevant paragraph Nos.10 and 11, wherein, it is observed that Section 11 of the Transfer of Property Act embodies principles of universal application that when the main object of transferor is to make an absolute transfer, an inconsistent provision therein cannot be given effect to and Section 11 is also extracted in the said judgment. 23. The learned counsel also relied upon the judgment of the Delhi High Court in the case of Sehdev Singh Verma v. J.P.S. Verma & another reported in 2015 SCC OnLine Del 11654, and brought to the notice of this Court the relevant paragraph Nos.39, 40 (14, 21) and 41, wherein, it is observed that the well settled legal position, based on authorities, is that a gift, subject to the condition that the donee should maintain the donor, cannot be revoked under Section 126 of the Transfer of Property Act for failure of the donee to maintain the donor, firstly for the reason that there is no agreement between the parties that the gift could be either suspended or revoked; and secondly, this should not depend on the will of the donor; again, the failure of the donee to maintain the donor as undertaken by her in the document is not a contingency which should defeat the gift; all that could be said is that the default of the donee in that behalf amounts to want of consideration; a direction in a gift deed that the donee should maintain the donor till his death will not make the gift a conditional one. It is also held that the position regarding revocation of gift upon breach of condition of gift is this: ‘there must be a defeasance or default clause in order to make the gift revocable; if there was a condition that on failure to perform any of the conditions the gift will be void, then certainly the gift could have been revoked; but the gift could not be revoked where the document does not make any provision to that effect.’ 24. The learned counsel also relied upon the judgment of this Court in the case of Patel Thippeswamy v. Smt. Gangamma and others reported in 2002 (3) KLJ 512, and brought to the notice of this Court the relevant paragraph No.9, wherein, it is observed that placing reliance upon Section 126 of the Transfer of Property Act that a registered gift deed cannot be unilaterally cancelled, placing reliance upon the decision in Narayanamma v. Papanna, wherein, it was held that cancellation of gift deed by third defendant by another registered deed was not legal and valid as per the aforesaid decision, the remedy was to file a suit seeking cancellation of the gift deed. 25. The learned counsel also relied upon the judgment of the Andhra Pradesh High Court in the case of Kolli Rajesh Chowdary v. State of A.P. and others reported in 2019 SCC OnLine AP 18, and brought to the notice of this Court the relevant paragraph No.5, wherein, an observation is made that the Supreme Court in Thota Ganga Lakshmi v. Government of Andhra Pradesh, wherein, opined that there cannot be any unilateral cancellation of a sale deed and that a party, who wants to cancel a sale deed executed, has to necessarily file a suit for its cancellation or seek reconveyance from the vendee, and that executing a cancellation deed, or getting it registered, is unheard in law. 26. The learned counsel also relied upon the judgment of the Andhra Pradesh High Court in the case of Kanala Veera Reddy v. Kanala Subba Reddy reported in 2022 SCC OnLine AP 2374, and brought to the notice of this Court the relevant paragraph Nos.60 and 61, wherein, an observation is made that it is settled legal position that when a valid transfer is brought into existence in accordance with law, it cannot be set at naught at the instance of one of the parties to it. If any document is required to be cancelled, the only remedy is by way of a civil suit for cancellation under Section 31 of the Specific relief Act. No cancellation deed can be unilaterally executed or registered. The person intending to cancel the gift deed/settlement deed has to invoke the jurisdiction of the competent Civil Court for cancellation of the said deed. 27. The learned counsel also relied upon the judgment of the Andhra Pradesh High Court in the case of Nakka Parthasarathy v. Nakka Krishnaveni and others reported in 2013 SCC OnLine AP 688, and brought to the notice of this Court the relevant paragraph Nos.15 and 19, wherein, relied upon the judgment of the Orissa High Court in the case of Bancha Bhol v. Sana Bewa reported in AIR 1973 Orissa 18, held that, while mere possession by or on behalf of the donee may amount to acceptance of gift, where the subject-matter of the gift was enjoyed jointly by the donor and the donee, mere possession cannot be treated as evidence of acceptance. When once the gift is voluntarily made without there being any coercion or undue influence the acceptance of the gift by the donee would be complete even though the deed of gift is not delivered to the donee and the gift property continues to be in the donor’s possession. 28. The learned counsel also relied upon the judgment of the Apex Court with regard to rule of constructive res judicata in the case of Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant ram Niwas and another reported in (2008) 11 SCC 753 , wherein, the Apex Court in paragraph No.24 held that Section 11 of the Code not only recognizes the general principle of res judicata, it bars the jurisdiction of the court in terms of Section 12 thereof. Explanation IV of Section 11 of the Code extends the principle of res judicata stating that the reliefs which could have been or ought to have been prayed for even if it was not prayed for would operate as res judicata. The Apex Court also discussed the plain reading of Section 11 shows that constitutes a matter as res judicata. 29. The learned counsel also relied upon the judgment of the Apex Court in the case of Annaimuthu Thevar (Dead) by LRs. The Apex Court also discussed the plain reading of Section 11 shows that constitutes a matter as res judicata. 29. The learned counsel also relied upon the judgment of the Apex Court in the case of Annaimuthu Thevar (Dead) by LRs. v. Alagammal and others reported in (2005) 6 SCC 202 , and brought to the notice of this Court the relevant paragraph Nos.25, 26, 30 and 31 of the judgment. The Apex Court in paragraph No.26 held that the former suit was jointly filed by Muthuswami as owner and mortgagor with the mortgagee. The subsequent suit is filed by the appellant who is purchaser from Muthuswami. The present appellant is, therefore, litigating under the same title which Muthuswami had in the suit house. Whether the issue of ownership and title in the suit house was directly and substantially in issue in the former suit or not. In the subsequent suit undoubtedly the foundation of claim is title acquired by the present appellant under registered sale deed. The learned counsel also brought to the notice of this Court paragraph Nos.29, 30 and 33 of the Judgment and contends that the doctrine of constructive res judicata applies. Hence, prays this Court to dismiss the second appeal. 30. Having heard the respective learned counsel and also considering the grounds urged in both the second appeals, the substantial questions of law framed by this Court in both the appeals are similar. This Court has to take note of the principles laid down in the judgments referred by the learned counsel for the appellants and the learned counsel for the respondent. These appeals arise against the concurrent finding of both the Trial Court and the First Appellate Court. The substantial questions of law framed by this Court is whether the Courts below erred in holding that the registered cancellation of the gift deed was not valid in the eye of law and whether the Courts below erred in law in not considering the facts and circumstances of the case which would establish that the gift deed was not acted upon. Keeping in view these two substantial questions of law, this Court has to re-analyze the material available on record and also point out the undisputed facts. 31. Keeping in view these two substantial questions of law, this Court has to re-analyze the material available on record and also point out the undisputed facts. 31. There is no dispute with regard to the property belongs to the executor Siddappa and also no dispute that he had executed the gift deed in the year 1977 and also no dispute that there was an error in mentioning the survey number. The same was rectified in the year 1980 by executing the rectification deed. Both the parties also not dispute the same. The appellants claim right based on the Will as well as the cancellation of the gift deed. The Trial Court and the First Appellate Court comes to the conclusion that the very cancellation of the gift deed was not valid in the eye of law. In order to consider whether it is valid or not, the Court has to see the recitals of the gift deed, which is marked as Ex.P.1 and also Ex.D.19. On perusal of the gift deed, no doubt it is mentioned that the donee has to construct the hostel for the benefit of high school students and make use of the said corpus for the benefit of the students. But no time stipulation is made in the gift deed that the building has to be constructed in the stipulated period and also no doubt there is a mention in the gift deed that his desire is to mention the name of the executor to the building. Admittedly, the gift deed was executed in the year 1977 and there was an error in mentioning the survey number and the same was rectified in the year 1980 and thereafter the revenue documents are changed in favour of the donee in the year 1982. 32. The learned counsel for the appellants would contend that the said gift deed was cancelled in view of the non-compliance of the condition mentioned in the gift deed. I have already pointed out that in the gift deed, no time stipulation is made to construct the building. It is important to note that on perusal of the gift deed, no where any right is reserved to revoke the gift. I have already pointed out that in the gift deed, no time stipulation is made to construct the building. It is important to note that on perusal of the gift deed, no where any right is reserved to revoke the gift. This Court would like to rely upon the judgment of the Madras High Court in the case of MURIKIPUDI ANKAMMA v. TUMMALACHERUVU NARASAYYA AND OTHERS reported in AIR 1947 Madras 127, wherein it is held that under Section 126 of the Transfer of Property Act, without reservation of power to revoke, gift cannot be revoked. It is also held that in the absence of any express reservation of a power of revocation in the gift deed a donor does not continue to have the right to revoke a gift. It is also held that under Section 123 of the Transfer of Property Act, gift complete - possession of gift - deed by donor when does not lead to adverse conclusion against donee. Under section 41 of the Transfer of Property Act, gift of immovable property complete. Power of revocation not reserved. Possession of donor is not that of ostensible owner. Having taken note of the principles laid down in the said judgment, it is clear that unless right is reserved for revoking of the gift, the gift cannot be revoked. 33. The learned counsel for the respondent contends that Section 11 of the Transfer of Property Act applies and no condition can be imposed and it is an absolute gift. 34. On the other hand, the learned counsel for the appellants referring the judgment of the Apex Court in the case of Bansi Dhar (supra) contends that failure of condition gives right to revoke the gift. The learned counsel also relied upon the judgment of the Apex Court in the case of Thakur Raghunath Ji Maharaj (supra), wherein it is held that on breach of condition donor could claim back property. Concession given to donee to construct college within one year. The Apex Court held that the same was proper in view of larger public interest. 35. Concession given to donee to construct college within one year. The Apex Court held that the same was proper in view of larger public interest. 35. In the case on hand, no such time stipulation is mentioned in the gift deed to construct the hostel building and it was a gift without any condition and only condition was to put up the hostel and mentioning the name is only desire and also it is the desire of the executor of the gift deed to construct the hostel. I have already pointed out that in the gift deed no time is stipulated to construct the building within any specified period and mentioning his name is also only his desire and not compulsory. 36. The learned counsel for the respondent relied upon the judgment of this Court passed in W.A.No.4121/2017 in W.P.No.18196/2014 disposed of on 24.05.2022, with regard to the main object of the transferer is to make an absolute transfer, an inconsistent provision therein cannot be given effect to as per Section 11 of the Transfer of Property Act. The learned counsel also relied upon the judgment of the Kerala High Court in the case of Bhavani Amma Kanakadevi (supra) and the judgment of the Delhi High Court in the case of Sehdev Singh Verma (supra). 37. The other contention of the learned counsel for the appellants is that the Courts below erred in holding that registered cancellation of gift deed was not valid in the eye of law. Both the Courts have applied their mind and taken note of the recitals of the document of gift deed, but the question is whether unilaterally the executant can cancel the said gift deed. I have already pointed out that unless the right is reserved to revoke the gift, no right accrues upon the executant to revoke the gift. Both the Courts have applied their mind and taken note of the recitals of the document of gift deed, but the question is whether unilaterally the executant can cancel the said gift deed. I have already pointed out that unless the right is reserved to revoke the gift, no right accrues upon the executant to revoke the gift. It is important to note that when the donor has gifted and the donee has accepted the same for the purpose of construction of the hostel for the benefit of students, even though the rectification deed was executed in the year 1980 itself, within a span of two years canceling of the gift deed on the ground that hostel was not constructed cannot be a reason for cancellation of the gift deed when there is no time stipulation and also the executant cannot unilaterally cancel the gift deed, but only by way of suit he can seek for the cancellation of the gift and no such suit is filed. This Court in its judgment in the case of Patel Thippeswamy (supra) held that under Section 126 of the Transfer of Property Act, a registered gift cannot be unilaterally cancelled and remedy is only to file a suit for cancellation of the gift deed. 38. The Andhra Pradesh High Court in the judgment in the case of Kolli Rajesh Chowdary (supra) referring the judgment of the Supreme Court in paragraph No.5 held that there cannot be any unilateral cancellation of a sale deed and that a party, who wants to cancel the sale deed executed, has to necessarily file a suit for its cancellation or seek for reconveyance from the vendee, and that executing a cancellation deed, or getting it registered, is unheard of in law. In the case on hand also, the executant cancelled the gift deed by registering the cancellation of the gift deed and the same is not permissible under law. 39. The Andhra Pradesh High Court in the judgment in the case of Kanala Veera Reddy (supra), in paragraph Nos.60 and 61 held that a person intending to cancel the gift deed has to invoke the jurisdiction of the competent civil Court for cancellation of the said gift deed and unilaterally cannot cancel the gift deed. I have already pointed out that no right is reserved to revoke the gift. I have already pointed out that no right is reserved to revoke the gift. It is important to note that the appellants/plaintiffs claim relief of declaration to declare them as owners based on the Will and first of all the very cancellation of the gift deed is not in the eye of law. The gift was executed in the year 1977 and when this Court comes to the conclusion that the very cancellation of the gift deed is not valid, the question of executing the Will in favour of the plaintiffs also does not convey any right in favour of the plaintiffs. 40. It is important to note that the plaintiffs also examined two witnesses in support of their case to prove the Will and examined P.W.2, who is not an attestor to the Will and mainly relies upon the evidence of P.W.3 and P.W.3 is also not an attestor, but he deposes that the Will was executed in the presence of his father, but he did not identify the signature of his father and apart from that, when he was not an attestor, Section 69 of the Evidence Act press into service. The person who is having acquaintance with the signature of the attesting witness can come and depose before the Court. Merely because he comes and deposes that he was not present, but his father was present at the time of execution of the Will, not suffice to comes to the conclusion that he was having acquaintance with the signature of his father and unless he identifies the signature and produce any material before the Court that his father used to sign in similar type of signature and no such material is found in the evidence and hence both the Courts comes to the conclusion that the Will has not been proved in terms of Section 63 of the Indian Succession Act and also under Section 68 of the Indian Evidence Act. 41. I have already pointed out that the Will was not proved in consonance with Section 63 of the Indian Succession Act and Sections 68 and 69 of the Indian Evidence Act and the same has been discussed in detail by both the Courts. 41. I have already pointed out that the Will was not proved in consonance with Section 63 of the Indian Succession Act and Sections 68 and 69 of the Indian Evidence Act and the same has been discussed in detail by both the Courts. The First Appellate Court also taken note of the fact that earlier two suits were filed by the brother of plaintiff No.2 and Senior uncle of plaintiff No.1 i.e., Jayaprakash in O.S.No.1283/1990 before the Civil Judge ((Jr.Dn.), Holalkere against his father Siddappa and the defendant of the present appeal. He had filed a suit seeking the relief to declare that he is the owner of the suit schedule property and declare that the alleged gift deed and the rectification deed executed by his father Siddappa in favour of defendant No.2 are not binding on him and they are null and void. He also sought for the relief of permanent injunction against the defendants not to cause interference in his peaceful possession and enjoyment of the suit schedule property and the said suit came to be dismissed and also an appeal in R.A.No.3/2002 filed against the said suit also came to be dismissed. The certified copies of the judgments Exs.D19 and 20 are produced before the Court and also filed one more suit in O.S.No.154/1990 by younger brother of plaintiff No.2 seeking the relief that entries made in respect of suit schedule property i.e., mutation proceedings is against the law since he has got changed the khatha of the property in his name vide M.R.No.10/1981-82 and the allegation that colluding with the revenue officials got changed the khatha and the said suit was also dismissed wherein also sought for the relief of permanent injunction not to dispossess and disturb his peaceful possession and enjoyment of the suit schedule property. The copy of the judgment and decree are produced as per Exs.P.21 and 22 and against the dismissal order, an appeal was filed in R.A.No.4/2002 and the said appeal was also dismissed. 42. These judgments and decree passed by the Trial Court in both the suits have attained finality and the same was not questioned before the High Court and the present suit is filed and the same is also discussed by the Appellate Court in paragraph Nos.22 to 26 of its judgment. 42. These judgments and decree passed by the Trial Court in both the suits have attained finality and the same was not questioned before the High Court and the present suit is filed and the same is also discussed by the Appellate Court in paragraph Nos.22 to 26 of its judgment. It is important to note that the Appellate Court also taken note of the provision under Section 122 of the Transfer of Property Act and also taken note of the recitals of Ex.D.17 and the gift deed wherein absolute right is given to the donee to make use of that property for their desire. Either himself or his legal representatives are having any right in respect of the gifted property. The said averment discloses that the executant Siddappa permitted the defendant to use and enjoy the suit schedule property as per his will and wish. It is important to note that the rectification deed was also executed when they found mistake and hence it is clear that though the gift deed was executed in the year 1977 and rectification deed was executed in the year 1980 and within a span of two years canceling the said gift deed is also suspicious in executing the cancellation of the gift deed. When the rectification deed was executed in the year 1980, it is clear that the donee has accepted the gift and donor also rectified the mistake in mentioning the survey number i.e., in the year 1980 and these materials are taken note of by the Trial Court and the First Appellate Court. 43. Having considered both oral and documentary evidence placed on record as well as the question of fact and question of law and apart from that, the evidence of the parties, no doubt P.W.1 in the cross-examination has admitted that the defendant is running primary and high school and the said village Chikkajajuru is a big village and the education quality was not improved and hence his grandfather was having an intention to provide good education. Though he admits the same, but he says that he was very young and he was not having any such information and also categorically admits that the said property is the self-acquired property of his grandfather. He also denies the very execution of the rectification deed. But the fact that the same is a registered document is not in dispute. Though he admits the same, but he says that he was very young and he was not having any such information and also categorically admits that the said property is the self-acquired property of his grandfather. He also denies the very execution of the rectification deed. But the fact that the same is a registered document is not in dispute. In the cross-examination he admits that in his chief evidence affidavit he has mentioned that the gift deed was executed in the year 1977, but possession was not delivered. He categorically admits that he did not read the contents of the gift deed executed by his grandfather and he does not know when the grandfather and for what reason he had cancelled the gift deed and this admission takes away the case of the plaintiffs. I have already pointed out that though P.W.2 has been examined, he was not present at the time of the execution of the Will. He speaks with regard to the possession of the plaintiffs, but he categorically admits that he is having good relationship with him and the plaintiffs. 44. P.W.3 claims that his father had signed the Will and also the cancellation of gift deed, but he has not identified the signature of his father. He was subjected to cross-examination and he categorically admits that the Will was executed in favour of the defendant in the year 1977 and admits that he was not present at the time of execution of the gift deed and while writing the Will also he was not present, but he voluntarily says that his father was present. He disclosed the same on the very same day to the children and grandchildren of Siddappa, but P.W.1 claims that he came to know only after filing of the suit. Having taken note of the evidence, the Trial Court and the First Appellate Court not accepted the evidence of P.W.2 and P.W.3 with regard to proving of the Will and rightly comes to the conclusion that Section 69 of the Indian Evidence Act has not been complied. Both the Courts have given anxious consideration to the material available on record i.e., both oral and documentary evidence placed on record and taken note of the recitals of the documents of gift deed, cancellation of gift deed and also the Will which has been relied upon by the defendants. Both the Courts have given anxious consideration to the material available on record i.e., both oral and documentary evidence placed on record and taken note of the recitals of the documents of gift deed, cancellation of gift deed and also the Will which has been relied upon by the defendants. Having taken note the said documents, the Trial Court while appreciating both oral and documentary evidence placed on record in detail discussed in paragraph Nos.21 to 25 both in respect of attestation as well as the very intention of the executant while executing the gift deed and the stipulation made in the gift deed and rightly comes to the conclusion that no time stipulation is mentioned for construction of the hostel building. The Trial Court also taken note of the rectification deed was executed in the year 1980 and also taken note of the executant i.e., donor has lost his right, title and interest over the suit schedule property in view of the execution of the gift deed and he has no locus standi to execute one more cancellation of gift deed and donor cannot execute unilateral deed of cancellation. 45. The principles laid down in the judgments referred supra by the learned counsel for the respondent are applicable to the facts of the case on hand in respect of unilateral cancellation of gift deed. The First Appellate Court in detail discussed the material on record, particularly in paragraph Nos.16 to 30 taken note of both oral and documentary evidence placed on record as well as the provisions of Section 122 and 126 of the Transfer of Property Act and relied upon the recitals made in the relevant document of gift deed, cancellation of gift deed and also Will and while considering other points for consideration also discussed in detail and not committed any error. Both the Courts have given anxious consideration to both oral and documentary evidence placed on record and rightly come to the conclusion that the very cancellation of gift deed was not valid in the eye of law and both the Courts have taken note of the facts and circumstances of the case. The very contention that the gift deed was not acted upon cannot be accepted in view of the discussions made above. The very contention that the gift deed was not acted upon cannot be accepted in view of the discussions made above. I have already pointed out that rectification deed was made in the year 1980 and there was no time stipulation to construct the hostel building and also it was the desire of the donor to make use of the immovable property for the construction of the hostel and also no right is reserved to revoke the said gift deed. It is rightly contended by the learned counsel for the respondent that the plaintiffs ought to have filed a suit for cancellation of gift deed and the same is not done and unilaterally cancelled the gift deed. No right was reserved to cancel the gift deed unilaterally. Even on the ground of perversity also not found any material. Under the circumstances, I do not find any merit in the appeal. Hence, I answer both the substantial questions of law as negative considering both oral and documentary evidence placed on record and I do not find any substantial question of law to reverse the finding of both the Courts. 46. In view of the discussions made above, I pass the following: ORDER Both the appeals are dismissed.