THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
SECOND APPEAL No.321 of 2021
JUDGMENT:
Assailing the judgment and decree dated 27.03.2019 in A.S.No.82 of 2016 on the file of the Principal District Judge, West Godavari at Eluru, confirming the judgment and decree dated 18.07.2016 in O.S.No.98 of 2011 on the file of Senior Civil Judge, Tadepalligudem.
2. For the sake of convenience, the parties shall be referred to as they were arrayed in the plaint.
3. Plaintiff filed suit for declaration of title and recovery of possession of plaint schedule property and for recovery of Rs.1,59,500/- with interest @24% per annum.
4. The averments, in brief, in the plaint are that defendant is father of the plaintiff; that at the time of marriage, defendant executed a registered gift settlement deed dated 29.04.1987 in favour of the plaintiff settling the schedule property towards Pasupukunkuma; that since the plaintiff is residing away from the schedule property, out of trust she executed a General Power of Attorney (GPA) in favour of defendant to manage the schedule property; that defendant supervised the property as an agent for some time and also used to account for yield and later fish tank was dug in the entire schedule property; that the defendant misappropriated the amounts and is liable to pay an amount of Rs.1,59,500/-; that defendant with his associates 2 started acting contrary to the interests of plaintiff and hence, the plaintiff cancelled the GPA on 13.04.2020 and demanded the defendant to deliver possession of the property and later suit was filed for the reliefs stated supra.
5. Defendant filed written statement and admitted about execution of registered gift settlement deed dated 29.04.1987, however pleaded that it was never acted upon and it was only a nominal document; that though the defendant executed gift settlement deed, since the plaintiff's in-laws demanded money instead of landed property, he paid Rs.1,00,000/- to the plaintiff and her husband; out of that Rs.1,00,000/- plaintiff's husband purchased Ac.4.50 cents in R.S.No.437/5 of Satyavolu village; that due to escalation of prices of lands, plaintiff with an evil intention filed the suit and prayed the Court to dismiss the suit.
6. During the course of trial, the plaintiff examined herself as P.W.1 and examined P.Ws.2 to 4. Exs.A-1 to A-6 were marked. On behalf of defendant, the defendant examined himself as D.W.1 and examined D.Ws.2 & 3. Exs.B-1 to B-9 were marked.
7. The trial Court on consideration of oral and documentary evidence and legal aspects, decreed the suit with costs declaring the title of the plaintiff and further held that the plaintiff is entitled for recovery of possession. However, the claim of Rs.1,59,500/- was dismissed. Aggrieved by the said judgment and decree, the defendant filed A.S.No.82 of 2016. The Lower Appellate Court being final factfinding Court, on a consideration 3 of oral and documentary evidence and legal aspects dismissed the appeal vide judgment dated 27.03.2019. Assailing the same, the present second appeal is filed.
8. Heard Sri N.A.Ramachandra Murthy, learned counsel for the appellant.
9. Learned counsel for the appellant would contend that though Ex.A-1 was executed by the appellant, possession was not delivered and it is only a nominal document and it was never acted upon. He would further contend that the Courts below did not appreciate the fact that appellant gave cash of Rs.1,00,000/- and with that amount, respondent purchased Ac.4.50 cents and this fact was not properly considered by the Courts below, he thus, prayed the Court to set aside the judgments and decrees of Courts below.
10. In the light of the pleadings and contentions, the following substantial questions of law arise for consideration:
(1) Whether the delivery of property is sine qua non for a valid gift settlement deed under Sections 122 and 123 of the Transfer of Property Act, 1882?
(2) Whether the appellant proved that Ex.A-1 is a nominal document?
(3) Whether the Courts below failed to appreciate the evidence of P.Ws.2 and 3 properly?4
11. The undisputed facts are that the plaintiff is the daughter of defendant. Defendant purchased the property and executed Ex.A-1/Ex.B-1 registered gift settlement deed dated 29.04.1987. Plaintiff executed GPA under Ex.A-2 in favour of defendant and later cancelled the same under Ex.A-3.
12. The suit is filed for declaration of title and recovery of possession on the strength of Ex.A-1/Ex.B-1. It is settled principal of law that in a suit for declaration of title and for recovery of possession, the plaintiff has to succeed on the strength of his/her own case and cannot depend upon the laches or weakness in the case of defendant.
13. Plaintiff examined herself as P.W.1 and examined P.Ws.2 to
4. P.Ws.2 and 3 are attestors of Ex.A-1 and P.W.4 is an independent witness. She also relied upon Exs.A-1 to A-6. Defendant having admitted execution raised twin contentions i.e. non delivery of property pursuant to execution of Ex A-1 and Ex A-1 nominal document.
14. The Hon'ble Apex Court in Renikuntla Rajamma Vs. K.Sarwanamma1, held that "transfer of possession" of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift under the provisions of the TP Act. It was further observed that the recitals in the gift deed also prove transfer of absolute title in the gifted property from the donor to the donee. What is retained is only the right to use 1 (2014) 9 SCC 445 5 the property during the lifetime of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor.
15. In Nakka Parthasarathy Vs. Nakka Krishnaveni and Ors2, the composite High Court of Andhra Pradesh held that 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.
16. The evidence of P.Ws.1 to 4 and Exs.A-1 to A-6 clearly established that the plaintiff accepted the gift deed and in fact it was acted upon. The defendant acted as an agent, since the plaintiff is away from the schedule land by virtue of her marriage. Though Ex.A-2 GPA was executed, it was cancelled under Ex.A-3. Courts below considered the evidence of P.W.2 and P.W.3 in a proper perspective.
17. It is pertinent to note that defendant pleaded the Ex.A-1 was not acted upon and he also pleaded adverse possession. By pleading adverse possession, defendant admitted the title of plaintiff to the schedule property. Having pleaded that Ex.A-1/ Ex.B-1 is a nominal document, defendant could not place any cogent evidence to that effect and the defendant also failed to adduce any evidence with regard to giving Rs.1,00,000/- to the plaintiff. D.W.1 in his evidence admitted the execution of gift 2 2013 (5) ALD 711 6 deed in favour of plaintiff; delivered possession of property and cultivation of land by the plaintiff for 3 years. Thus, the findings recorded by Courts below are not perverse and they are based on evidence available on record.
18. Whether this Court can interfere with concurrent findings of the facts recorded by Courts below under Section 100 of CPC?
19. The Hon'ble Apex Court in Hero Vinoth Vs. Seshammal3, held thus:
"19. 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, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.
It was furthermore held:
23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of 3 AIR 2009 SC 1481 7 the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis. (See Santosh Hazari v.
Purushottam Tiwari MANU/SC/0091/2001).
24. The principles relating to Section 100 CPC, relevant for this case, may be summerized thus:-
(i) ...
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law."
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20. The findings of fact recorded by the trial Court as confirmed by the lower appellate Court are based on both oral and documentary evidence. There is no perversity in the findings recorded by the Courts below. In fact, the Courts below considered the evidence of witnesses in proper perspective. Thus, there are no grounds to interfere with the findings of the fact recorded by the Courts below under Section 100 of CPC. Hence, the appeal is liable to be dismissed, however, without costs.
21. Accordingly, the second appeal is dismissed at the admission stage. However, no order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 13th April, 2022 PVD 9 THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI SECOND APPEAL No.321 of 2021 13th April, 2022 PVD