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2025 DIGILAW 547 (AP)

Avuthu Rangamma Died Per Lr v. Avuthu Rama Subba Reddy

2025-03-28

VENUTHURUMALLI GOPALA KRISHNA RAO

body2025
JUDGMENT : This second appeal is filed aggrieved against the Judgment and decree dated 28-9-2011 in A.S.No.182 of 2007 on the file of the VIII Additional District and Sessions Judge (Fast Track Court), Vijayawada, Krishna District, confirming the Judgment and decree dated 21-6-2007 in O.S.No.261 of 2004 on the file of the Rent Controller cum IV Additional Junior Civil Judge, Vijayawada. 2. The 1 st appellant herein is the sole defendant and the respondent is the plaintiff in O.S.No.261 of 2004 on the file of the IV Additional Junior Civil Judge, Vijayawada. 3. The plaintiff initiated action in O.S.No.261 of 2004 on the file of IV Additional Junior Civil Judge, Vijayawada, with a prayer to cancel the revocation deed dated 16-8-2003 purported to have been executed by the defendant, unilaterally revoking gift of the plaint schedule property to the plaintiff made under the registered gift deed dated 07-6-1973, declaring that the said revocation deed as illegal, ab initio, null and void, inoperative and unenforceable and also to grant permanent injunction in favour of the plaintiff by restraining the defendant from ever interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property or high handedly encroach upon the property to whatsoever manner and for costs. 4. The learned IV Additional Junior Civil Judge, Vijayawada, decreed the suit with costs. Felt aggrieved of the same, the unsuccessful defendant in the above said suit filed the aforesaid appeal before the first appellate Court. The learned VIII Additional District Judge (FTC), Vijayawada, dismissed the first appeal by confirming the judgment and decree passed by the trial Court. Aggrieved thereby, the unsuccessful defendant/appellant approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the second appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.261 of 2004, is as follows: (a) It is pleaded that the plaintiff is the absolute owner and possessor of 174.6 square yards of house site in Seetharampuram of Vijayawada. The plaintiff said to be acquired the property under an unconditional gift made by his mother Avuthu Rangamma, who is the defendant herein, under the registered Dakhalu Dastaveju dated 07-6-1973. The plaintiff said to be acquired the property under an unconditional gift made by his mother Avuthu Rangamma, who is the defendant herein, under the registered Dakhalu Dastaveju dated 07-6-1973. Further, the plaintiff accepted the gift under the said registered document, the schedule property wherein there was a thatched house by then was delivered to the plaintiff and ever since then, the plaintiff is in possession and enjoyment of the property as absolute owner. The thatched shed that was originally existing at the time of the gift, met with fire accident and the land was lying vacant. About two years back, the plaintiff erected a temporary shed in the portion of the site to keep his car and scooter. The shed constructed as garage with open front space. The said shed thus constructed was assessed to Municipal property tax and paying property tax as owner and possessor of the schedule property. (b) It is further pleaded that the plaintiff is working as a lecturer and residing in the house opposite to the schedule property due to differences between the plaintiff and the defendant and his brother and sister. The plaintiff filed a suit for partition on the file of Senior Civil Judge’s Court, Gudivada. In view of the differences, the defendant and her son Avuthu Kotireddy and her daughter Vuyyuru Krishna Kumari aligned together with evil idea of grabbing the property of the plaintiff, furtherance of conspiracy and created and fabricated documents, of which the plaintiff came to know that one such document is created, pressed into service is a purported revocation deed dated 16-8-2003 registered as Document No.2941/2003 in the office of Sub Registrar, Patamata, Vijayawada. The said document purported to have been signed and executed and registered by the defendant on 16-8-2003. (c) It is further pleaded that the gift of schedule property to the plaintiff by the defendant under the registered document dated 07-6-1973 is unconditional, absolute gift and possession of the property was delivered to the plaintiff and the plaintiff accepted the gift and the gift was acted upon and as such, the plaintiff is the absolute owner in possession and enjoyment of the property for more than 30 years as such gift cannot be revoked. The gift made to the plaintiff under the registered deed dated 07-6-1973 is not revocable and the revocation deed dated 16-8-2003 is illegal. 7. The gift made to the plaintiff under the registered deed dated 07-6-1973 is not revocable and the revocation deed dated 16-8-2003 is illegal. 7. The defendant filed written statement denying the contents of plaint averments and further contended as follows: It is contended that the plaintiff suppressed the true facts and got filed the present suit with false and untenable allegations. The plaint schedule property is neither in possession nor enjoyment of the plaintiff. It is further contended that with an intention to get suitable marriage alliance to the plaintiff, gift deed was executed in favour of the plaintiff as a nominal one and never intended to take the property by the plaintiff himself. Further, the said deed was not acted upon and no possession was delivered to the plaintiff. Hence, it is prayed to dismiss the suit. 8. On the basis of above pleadings, the learned IV Addl. Junior Civil Judge, Vijayawada, framed the following issues for trial: (1) Whether the plaintiff has been in possession and enjoyment of the suit schedule property as pleaded by him ? (2) Whether the plaintiff is entitled for permanent injunction as prayed for ? (3) Whether the plaintiff is entitled to ask for declaration that the said revocation deed dated 16-8-2003 is illegal, null and void and unenforceable as prayed for ? and (4) To what relief ? 9. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 was examined and Exs.A-1 to A-20 were marked. On behalf of the defendant, D.Ws.1 and 2 were examined and Exs.B-1 to B-45 were marked. 10. The learned IV Addl. Junior Civil Judge, Vijayawada, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendant filed the appeal suit in A.S.No.182 of 2007 before the learned VIII Addl. District and Sessions Judge (FTC), Vijayawada, wherein, the following points came up for consideration: (1) Whether the plaintiff is entitled to ask for declaration that the said revocation deed dated 16-8-2003 is illegal, null and void and unenforceable as prayed for ? (2) Whether the plaintiff is entitled for permanent injunction as prayed for ? (3) Whether the decree and judgment dated 21-6-2007 passed by the trial Court in O.S.No.261 of 2004 warrant any interference in this appeal ? (2) Whether the plaintiff is entitled for permanent injunction as prayed for ? (3) Whether the decree and judgment dated 21-6-2007 passed by the trial Court in O.S.No.261 of 2004 warrant any interference in this appeal ? and (4) To what relief ? 11. The learned VIII Addl. District and Sessions Judge (FTC), Vijayawada, i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the defendant/appellant and in favour of the plaintiff/respondent and dismissed the first appeal filed by the defendant. Felt aggrieved of the same, the unsuccessful defendant in O.S.No.261 of 2004 filed the present second appeal before this Court. 12. After institution of the second appeal by the defendant in the suit, this Court ordered notice to the respondent before admission and the said notice is served on the respondent/plaintiff. Heard Ms. Sirisha Rani Vallabhaneni, learned counsel on behalf of Sri Sunkara Rajendra Prasad, learned counsel for the appellant/defendant and Sri P.A. Seshu, learned counsel for the respondent/plaintiff. 13. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. It is regulated in accordance with law. A second appeal preferred under Section 100 of the Code of Civil Procedure could be admitted only when the appellant satisfies this Court that substantial question of law between the parties arise in this case. A proper test for determining whether a question of law raised in the case is substantial would be or whether it directly and substantially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by the superior Courts or is not free from difficulty or cause for discussion of alternative views. In the case of Boodireddy Chandraiah v. Arigela Laxmi, (2007) 8 SCC 155 , the Apex Court held that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact viz., the first appellate Court. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. In a case where from a given set of circumstances two inferences of facts are possible, one drawn by the lower appellate Court will not be interfered by the High Court in a second appeal. Adopting any other approach is not permissible. Where, the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, documentary evidence and contents of the documents cannot be held to be raising a substantial question of law. 14. The defendant having chosen to invoke the jurisdiction of this Court under Section 100 of Civil Procedure Code, it is for her to meet the above principles and satisfy the Court whether there exist any substantial question of law. 15. This second appeal is filed against the concurrent findings arrived by both the Courts below, therefore, the grounds urged in the second appeal are to be scrutinized to find out whether the appellant has shown any substantial question of law. The contention of the appellant is that the judgment and decree of the trial Court as well as the first appellate Court are contrary to law and that the second appeal may be allowed by setting aside the judgment and decree passed by both the Courts below i.e. the trial Court and the first appellate Court. 16. The undisputed facts of both the parties are that the defendant executed a registered unconditional settlement deed dated 07-6-1973. It is also admitted by the defendant in her evidence in cross-examination itself about the execution of registered gift settlement deed dated 07-6-1973. The recitals in the document clearly go to show that out of love and affection, the said document was executed in favour of the plaintiff and the property was delivered to the plaintiff by the defendant on the date of registered gift settlement deed by fixing boundaries on the date of execution of registered gift settlement deed. 17. The contention of defendant is that the plaint schedule property is never in possession and enjoyment of the plaintiff. She further pleaded that with an intention to get suitable marriage alliance to the plaintiff, gift deed was executed in favour of the plaintiff as a nominal one and she never intended to give property to the plaintiff. 17. The contention of defendant is that the plaint schedule property is never in possession and enjoyment of the plaintiff. She further pleaded that with an intention to get suitable marriage alliance to the plaintiff, gift deed was executed in favour of the plaintiff as a nominal one and she never intended to give property to the plaintiff. She further pleaded that she executed a registered revocation deed dated 16-8-2003 by cancelling the earlier registered gift settlement deed dated 07-6-1973. 18. The plaintiff sought the relief of cancellation of revocation deed dated 16-8-2003 and to declare that the said registered revocation deed dated 16-8-2003 is null and void and the same is liable to be cancelled and the same is inoperative. On considering the entire material on record, the learned trial Judge came to the conclusion that the registered revocation deed said to have been executed by the defendant in favour of the plaintiff after 30 years from the date of execution of gift settlement deed is null and void and the said cancellation deed is a unilateral cancellation. On re-appreciation of the entire evidence on record, the learned first appellate Judge also came to the same conclusion that the registered revocation deed is null and void and the said cancellation is unilateral cancellation and the plaintiff is in possession and enjoyment of the plaint schedule property. It is not in dispute that the plaintiff is none other than the son of the defendant. 19. The defendant relied on the registered revocation deed dated 16-8-2003. It is pertinent to mention that the gift settlement deed is said to have been executed on 07-6-1973. The registered revocation deed was executed by the defendant herself on 16-8-2003 i.e., thirty years subsequent to the execution of gift settlement deed. 20. 19. The defendant relied on the registered revocation deed dated 16-8-2003. It is pertinent to mention that the gift settlement deed is said to have been executed on 07-6-1973. The registered revocation deed was executed by the defendant herself on 16-8-2003 i.e., thirty years subsequent to the execution of gift settlement deed. 20. The Apex Court in the case of Thota Ganga Laxmi v. Government of Andhra Pradesh, 2012 (1) ALD 90 (SC) held as follows: “In this connection, we may also refer to Rule 26(i)(k) relating to Andhra Pradesh under Section 69 of the Registration Act, which states: “The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing natural consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale: Provided that the registering officer shall dispense with the execution of cancellation deed by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not registerable by any provision of law.” A reading of the above rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after notice to the concerned parties. In this case, neither is there any declaration by a competent court nor was there any notice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions.” The ratio laid down in the above decision of the Apex Court is squarely applicable to the facts of the present case. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions.” The ratio laid down in the above decision of the Apex Court is squarely applicable to the facts of the present case. Therefore, the law is very clear that when the donor executed a gift settlement deed duly registered before Sub-Register, the same is accepted by the donee, if the donor wants to cancel the said gift settlement deed, he has to approach the Civil Court for cancellation questioning the registered gift settlement deed but not by way of execution of cancellation deed before the Sub-Registrar. In the case on hand, no notice was issued to the plaintiff i.e., donee before execution of cancellation deed before the Sub Registrar and the donor unilaterally cancelled the above gift settlement deed after a lapse of 30 years from the date of registered gift settlement deed. Therefore, the original of Ex.A-2 cancellation deed is void and non est. 21. By referring the above case, the Full Bench of the Apex Court in the case of Veena Singh (deceased) through L.Rs v. District Registrar, (2022)7 SCC 1 held as follows: “A document, once it is registered, can be cancelled or set aside only by a civil court of competent jurisdiction. Upon the registration of the sale deed on 16 th April, 2012, the registration authorities are rendered infructuous and would have no power to cancel registration even on the ground of fraud or other irregularities;” The Apex Court further held as follows: “…. this Court also observed that the role of the Sub-Registrar stood discharged once the document had been registered, since there is no express provision in the Registration Act which empowers him to recall the registration. This Court held: "34. The role of the Sub-Registrar (Registration) stands discharged, once the document is registered (see Raja Mohammad Amir Ahmad Khan [State of UP. v. Raja Mohammad Amir Ahmad Khan, AIR 1961 SC 787 ])...There is no express provision in the 1908 Act which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. v. Raja Mohammad Amir Ahmad Khan, AIR 1961 SC 787 ])...There is no express provision in the 1908 Act which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. In absence of any express provision in that behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of Registration Offices and make rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered." This Court observed that Section 35 of the Registration Act does not confer a quasi-judicial power on the registering officer, who is not expected to evaluate title or irregularity in the document. As such, the validity of the registered deed of extinguishment could be placed in issue only before a court of competent jurisdiction. On the above facts, this Court upheld the dismissal of the writ petition by the High Court, with an opportunity being granted to the appellant to pursue a remedy in accordance with law. Therefore, the decision in Satya Pal Anand (supra) has held that once a deed of extinguishment had been registered by the registering officer, the registering officer had no power to recall it nor was it amenable to the supervisory control of the Inspector General of Registration under Section 69 of the Registration Act.” The ratio laid down in the aforesaid decisions squarely applicable to the present facts of the case. The law is very clear that Sub-Registrar has no authority to entertain the cancellation deed for cancelling the registered gift settlement deed. Therefore, the registered cancellation deed said to have been executed by the donor to cancel the earlier registered gift settlement deed Ex.A-1 is null and void and registration authority has no power to cancel the earlier registered gift settlement deed. 22. Therefore, the registered cancellation deed said to have been executed by the donor to cancel the earlier registered gift settlement deed Ex.A-1 is null and void and registration authority has no power to cancel the earlier registered gift settlement deed. 22. In the case on hand, the material on record amply proves that the plaintiff is none other than son of the defendant Avuthu Rangamma and out of love and affection towards the plaintiff, the defendant executed a registered gift settlement deed on 07-6-1973 in favour of the plaintiff by giving absolute rights to the plaintiff and possession was also delivered to the plaintiff on the date of gift deed. In the case on hand, Ex.A-1 gift settlement deed is duly accepted by the donee. Furthermore, the execution of Ex.A-1 gift settlement deed is not at all disputed by the donor. In the cancellation deed Ex.A-2 itself, the donor admitted about the execution of gift settlement deed. The material on record amply reveals that the donor, after 30 years of execution of registered gift settlement deed, unilaterally cancelled the registered gift deed before the Sub-Registrar without giving notice to the donee i.e., plaintiff, therefore, the said cancellation is non est. 23. It is also well settled that the gift once completed cannot be cancelled/revoked, subject to Section 126 of the Transfer of Property Act, which provides for the circumstances under which it can be cancelled. The law is well settled that registered gift deed cannot be revoked unilaterally at the will of the donor. In the case on hand, admittedly no notice was issued to the donee by the donor before execution of the said cancellation deed, that too after 30 years of execution of registered gift settlement deed, the donor executed a cancellation deed before the Sub-Registrar. The donor has not approached the competent Civil Court to challenge the said gift settlement deed. The Sub-Registrar entertained the said document without any authority and cancelled the said gift settlement deed. Therefore, both the cancellation deed as well as the registration thereof was wholly void and non est and meaningless transactions. The donor has not approached the competent Civil Court to challenge the said gift settlement deed. The Sub-Registrar entertained the said document without any authority and cancelled the said gift settlement deed. Therefore, both the cancellation deed as well as the registration thereof was wholly void and non est and meaningless transactions. The transfer of possession of immovable property under a registered gift deed is not sine qua non for making a valid gift, even prior to Rule 26(i)(k) of the A.P. Registration Rules, 1960, the registered gift deed could not be revoked or cancelled contrary to Section 126 of the Transfer of Property Act. Instead of approaching the Civil Court, the donor simply approached the Sub-Registrar that too after 30 years of execution of gift settlement deed for cancellation of registered gift settlement deed without giving any notice to the donee i.e., the plaintiff, therefore, the said cancellation deed is nothing but a void and non est and meaningless transaction. 24. For the aforesaid reasons, I am of the considered view that the alleged registered cancellation deed said to have been executed by Avuthu Rangamma is a void document and it is not valid and it is liable to be cancelled. By considering the oral and documentary evidence on record, the learned trial Judge rightly came to the conclusion that the said original of Ex.A-2 registered cancellation deed is null and void and the plaintiff is in possession and enjoyment of the plaint schedule property. On re-appreciation of the entire oral and documentary evidence on record, the learned first appellate Judge also came to the same conclusion that the registered revocation deed is null and void and the plaintiff is in possession and enjoyment of the plaint schedule property. Therefore, I do not find any illegality in the concurrent findings arrived by both the Courts below. 25. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the plaintiff and against the defendant do not brook interference and that both the Courts below are justified in decreeing the suit of the plaintiff. 25. Having regard to the reasons assigned, this Court is satisfied that the concurrent findings of fact recorded by both the Courts below on all the issues/points in favour of the plaintiff and against the defendant do not brook interference and that both the Courts below are justified in decreeing the suit of the plaintiff. The findings of fact recorded by both the Courts below were based on proper appreciation of evidence and the material on record and there was neither illegality nor irregularity in those findings and therefore, the findings do not require to be upset. Further, the existence of a substantial question of law is a sine qua non for the exercise of jurisdiction by this Court as per Section 100 of the Code of Civil Procedure. The questions raised, strictly speaking, are not even pure questions of law, let alone substantial questions of law. 26. Viewed thus, this Court finds that none of the questions raised are substantial questions and there is no subsistence in the questions raised and that therefore, the second appeal is devoid of merits and is liable for dismissal at the stage of admission. The law is well settled that a second appeal shall not be admitted if no substantial question of law arises for consideration and when no substantial question of law is involved. The view of this Court is reinforced by the ratio laid down by the Apex Court in the case of Gurdev Kaur v. Kaki, [ AIR 2006 SC 1975 ]. In the case on hand, as stated supra, this Court finds after careful examination of the pleadings, evidence and contentions that no substantial question of law is involved, this second appeal is liable for dismissal at the stage of admission, in view of narrow compass of Section 100 of Civil Procedure Code. 27. In the result, the second appeal is dismissed at the stage of admission, confirming the judgments and decrees of both the Courts below. Pending applications, if any, shall stand closed. There shall be no order as to costs.