sa269.01
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Second Appeal No. 269 of 2001
Vasant Bisan Dhore [dead],
through his legal heirs :
i] Dinesh Vasant Dhore,
resident of Ekalvihir,
Post Linga, Tq. Warud,
Distt. Amravati.
ii] Sau. Indira Deepak Lokhande,
aged about 28 years,
occupation - Household,
resident of Parsoda,
Post - Khadi,
Tq. Ashti, Distt. Wardha.
iii] Sau. Pushpa wife of Mahadeorao
Amble,
aged about 26 years,
occupation - Household,
resident of at Post & Tq. Katol
[Panchavati Colony],
Distt. Nagpur.
iv] Sau. Pramila wife of Ramesh Patil,
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aged about 22 years,
occupation - Household,
resident of at Post Saoner,
Distt. Nagpur. ..... Appellant
Org. Plff.
Versus
1. Ravindra son of Shankarrao Patil,
aged about 40 years,
occupation - cultivator,
resident of at & Post - Pusla,
Tq. Warud, Distt. Amravati.
2. Sumitra wife of Dnyaneshwar
Bansodkar,
aged about 45 years,
occupation - cultivator,
resident of at Post - Jarud,
Tq. Warud, Distt. Amravati.
3. Shanta wife of Prakash Mankar,
aged about 38 years,
occupation - Cultivator,
resident of Ekalvihir,
Post - Linga,
Tq. Warud, Distt. Amravati.
4. Dilip Vasant Dhore,
aged about 48 years,
occupation - cultivator,
5. Sushila Vasant Dhore,
aged about 40 years,
occupation - cultivator,
6. Sonabai widow of Bisan Dhore,
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....Deleted as per order
dated 8-8-2017.
nos. 4,5 and 6 residents of
Ekalvihir, Post - Linga,
Tq. Warud, Distt. Amravati. ..... Respondents.
*****
Mrs. U. A. Patil, Adv., for the Appellant.
Ms. V. Thakre, Adv., for respondent no.1.
Ms. B. P. Maldhure, Adv., for respondent nos. 4 and 5.
*****
CORAM : A.S. CHANDURKAR, J.
Date : 19th December, 2017 ORAL JUDGMENT:
01. This appeal under Section 100 of the Code of Civil Procedure, 1908 was admitted after framing the following substantial questions of law:-
"[1] Whether the Courts below failed to appreciate the evidence in its proper perspective when there was no evidence led by defendant no.1 Ravindra on the point of acceptance of gift?
[2] What does the Will alleged to have been executed by deceased Bisan indicate and whether the case needs to be remanded to the Trial Court for the purpose of recording the ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:19:44 ::: sa269.01 4 evidence on that point?"
02. Facts, in brief, are that one Bisan Dhore who was already married contracted second marriage with one Sonabai. From the earlier marriage, the plaintiff - Vasant was born. Defendant No.2-D is the wife of the plaintiff, while Defendant No. 2-C is their son, Dilip. It is the case of the plaintiff that his father - Bisan executed two Gift-Deeds dated 6th June, 1988 in favour of the defendant no.1 - Ravindra Patil. These Gift-Deeds were in respect of land bearing Survey Nos. 46/1-B and 51/2. According to the plaintiff, these Gift-Deeds were executed with regard to properties that were not owned by the father - Bisan, defendant no.2. The plaintiff filed suit on 5th August, 1988 seeking a declaration that both the Gift-Deeds were null and void and prayed that perpetual injunction be issued for protecting the possession of the parties.
03. The defendant nos. 1 and 2 filed their Written Statement and justified the execution of the Gift-Deeds. According to the defendants, the plaintiff did not take good care of his parents and there was a threat to their lives at the instance of the plaintiff. As defendant no.1 took care of defendant no.2, the Gift-Deeds were executed voluntarily.
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04. After the parties led evidence, the trial Court recorded a finding that the defendant no.2 had legal right to execute the said Gift- Deeds. It, therefore, dismissed the suit. The first appellate Court on re-considering the evidence on record held that the plaintiff was entitled for a declaration as regards avoidance only of the Gift-Deed dated 6th June, 1988 with regard to Survey No. 51/2. That Gift-Deed at Exh.40 was declared as not binding on the plaintiff and the suit was partly decreed. Being aggrieved, the plaintiff has filed the present Second Appeal.
05. Smt. U. A. Patil, learned counsel for the appellant-plaintiff, submitted that the trial Court ought to have decreed the suit even with regard to other Gift-Deed at Exh.39 in relation to Survey No. 46/1-B. In that regard, it was submitted that there was no acceptance of the gift by defendant no.1 and, in fact, it was the donor - defendant no.2 who continued in possession of the suit property even after execution of the Gift-Deed. On the contrary, the defendant no.2 had on 23rd April, 1991 executed a Will in respect of the same property in favour of defendant nos. 4 and 5. This indicated that the Gift-Deed with regard to Survey No. 46/1-B was never acted upon and the defendant no.2 continued as owner of the same. Reference was made to the order ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:19:44 ::: sa269.01 6 dated 14th February, 2003 passed on Civil Application No. 3764 of 2001 by which the defendant no.1 was restrained from disturbing the possession of the legal heirs of the original plaintiff and respondent nos. 4 and 5. It was, thus, submitted that a declaration deserves to be granted even with regard to the Gift-Deed at Exh.39. Moreover, on account of execution of Will by defendant no.2, the matter needs to be remanded to the trial Court for recording evidence in that regard.
06. Smt. V. Thakre, learned counsel for the defendant no.1, supported the impugned judgment. According to her, the Gift-Deed [Exh.39] in favour of defendant no.1 was a valid document. It was not necessary to obtain physical possession of the land in question which was gifted to defendant no.1. The legal position in this regard was settled in view of the decisions of the Honorable Supreme Court in Renikuntla Rajamma (dead) by L.Rs. Vs. K. Sarwanamma [(2014) 9 SCC 445] and Asokan Vs. Lakshmikutty & others [ (2007) 13 SCC 210]. She also referred to the recitals of Exh.39 which indicated that it was the defendant no.1 who was put in possession while executing the Gift-Deed. As regards execution of the Will dated 23rd April, 1991, it was submitted that the Gift-Deed having been executed earlier on 6th June, 1988, there was no legal right with the defendant no.1 to execute the Will-Deed as he was already divested of ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:19:44 ::: sa269.01 7 his title. Hence, there was no need to remand the proceedings to the trial Court.
Smt. B. P. Maldhure, learned counsel appearing for defendant nos. 4 and 5, supported the submissions made on behalf of the plaintiff. It was submitted that the Gift-Deed at Exh.39 was invalid as possession of the property in question was not accepted by defendant no.1. The defendant no.1 was residing at Pusla which was about eight kilometers away from the place where the suit property was situated. She further submitted that by virtue of Will dated 23rd April, 1991, the defendant nos. 4 and 5 had got title to the suit property.
07. I have heard the learned counsel for the parties at length and I have perused the records of the case.
08. The finding as regards invalidity of Gift-Deed dated 6th June, 1988 at Exh.40 with regard to Survey No. 51/2 is not under challenge by the defendant nos. 1 and 2. The finding in that regard has attained finality. In so far as the other Gift-Deed at Exh.39 is concerned, the same refers to possession of the field in question being handed over to the defendant no.1. As regards the requirement of acceptance of gift under Section 122 of the Transfer of Property Act, ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:19:44 ::: sa269.01 8 1882 is concerned, the issue stands concluded in view of the judgment in Renikuntla Rajamma [supra]. It has been held in clear terms that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. Absence of any such requirement can only lead to the conclusion that delivery of possession is not an essential prerequisite for making of a valid gift in the case of immovable property. In Asokan [supra], it was observed that it was not necessary to prove any overt act in respect of acceptance of the gift as express acceptance was not necessary for completing the transaction of gift.
09. From the aforesaid, it is clear that there is no legal requirement that the property in question that is sought to be gifted should be accepted by the donee by taking its actual possession.. It is also to be noted that the defendant no.2 along with defendant no.1 had filed his Written Statement at Exh.21 in which he admitted that he had executed the Gift-Deed at Exh.39 in favour of the defendant no.1. Considering aforesaid legal position and the fact that the Gift-Deed was a registered document, no fault can be found with the judgment of the appellate Court in so far as it refuses to declare Gift-Deed at Exh.39 to be null and void, especially in the light of the clear stand taken by the defendant no.2. The substantial question of law at Sr. ::: Uploaded on - 02/01/2018 ::: Downloaded on - 02/01/2018 23:19:44 ::: sa269.01 9 No.1 is answered by holding that in view of the law laid down in Renikuntala Rajamma [supra], it was not necessary for the defendant no.1 to lead evidence on the point of acceptance of the gift.
10. In so far as the execution of Will dated 23rd April, 1991 by defendant no.2 is concerned, once it is found that the Gift-Deed at Exh.39 was legal and valid, the title of defendant no.2 in regard to that property would be extinguished and title would be created in favour of the defendant no.1. Execution of Will after 6th June, 1988, therefore, would be of no legal consequence in so far as defendant no.2 is concerned. Hence, for that purpose, it is not necessary to remand the proceedings to the trial Court for recording any evidence in that regard. Substantial question of law no.2 is answered accordingly.
11. In view of aforesaid, I do not find any reason to interfere with the judgment of the first appellate Court. The Second Appeal, therefore, stands dismissed with no order as to costs.
Judge
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