HONOURABLE SMT. JUSTICE P.SREE SUDHA
APPEAL SUIT No.1005 of 2010
JUDGMENT:
This appeal is filed by defendant No.2 aggrieved by the judgment and decree, dated 30.10.2010, passed in O.S.No.235 of 2003 on the file of the VI-Additional Senior Civil Judge (FTC), Medchal, Ranga Reddy District.
Appellant herein is defendant No.2; respondent No.1 herein is plaintiff and respondent No. 2 herein is defendant No.1 in the suit. The parties will be referred to as arrayed before the trial Court.
The backdrop of the case leading to filing of this appeal is as under:
The plaintiff filed the suit for declaration of gift deed dated 02.01.1999 executed by the 1st defendant in favour of the 2nd defendant is nonest in law and also sought for a direction to defendants 1 and 2 to deliver vacant possession of the suit schedule property to the plaintiff.
PSSJ A.S.No.1005 of 2010 2 Brief averments of the plaint are as under: The plaintiff is the absolute owner and possessor of agricultural land admeasuring Ac.3.00 in Sy.No.307 (Part) situated at Gajula Ramaram village, Qutbullapur Mandal, Ranga Reddy District. As the plaintiff was away from the village and not able to look after the suit schedule property, he executed a registered power of attorney in favour of the 1st defendant vide document No.1318/91 dated 24.07.1991 authorising him to sell, lease, transfer by way of exchange or mortgage whole or any part of the said property and to receive consideration thereof on behalf of the plaintiff. After execution of the said power of attorney, the 1st defendant was looking after the suit schedule property and the plaintiff has been enjoying the usufruct earned on the said property till October 1998 and thereafter the 1st defendant did not account for the income earned from the property in spite of repeated requests. After waiting for more than two years, the plaintiff had issued a notice dated PSSJ A.S.No.1005 of 2010 3 22.08.2001 to the 1st defendant informing him about cancellation of said power of attorney and that the 1st defendant received the same, but failed to give any reply. Subsequently, the plaintiff proceeded to cancel the power of attorney by execution of a registered cancellation deed on 22.12.2001 and in the meanwhile, the plaintiff had got publication issued in local newspaper informing the public about issuance of notice of cancellation upon the 1st defendant. In response to the said publication, the 1st defendant sent a reply dated 13.11.2001 claiming that the property has been settled long back and transferred in favour of third party's name and as such cancellation of power of attorney is of no consequence. It is further stated that the 1st defendant has in fact transferred the property in favour of the 2nd defendant by executing a registered deed of gift on 02.01.1999. After realizing that the 1st defendant played fraud, the plaintiff also filed a private complaint against him before the Additional Judicial Magistrate of PSSJ A.S.No.1005 of 2010 4 Frist Class, Rangareddy District, for the offences punishable under Sections 406, 407 and 420 of I.P.C. and it is pending adjudication. It is further stated that the transfer in pursuance of registered deed of gift dated 02.01.1999 executed in favour of the 2nd defendant by the 1st defendant is invalid and nonest in law as the 1st defendant did not have any authority to execute the same and as such the 2nd defendant is precluded from claiming any rights in pursuance of the said gift deed.
In the written statement filed by defendant No.1, it is contended that the 2nd defendant was shown as being represented by its President late K.Shankar Yadav, who died on 08.09.1999, and as such the suit against the 2nd defendant as being represented by a dead person is nonest and unsustainable. The suit property absolutely belongs to late K.Shankar Yadav under whom the plaintiff was working as a servant. Late Shankar Yadav had acquired an extent of Ac.2.00 of land forming part of Sy.No.307 to which PSSJ A.S.No.1005 of 2010 5 the sub division No.307/e was assigned by the revenue authorities and it was nominally put in the name of Smt.Venkatamma wife of late Muthyalu. Similarly, late K.Shankar Yadav had acquired another extent of land admeasuring Ac.2.00 forming part of Sy.No.307 and nominally put in the name of Vasudev Goud. Thereafter, late K.Shankar Yadav got executed irrevocable registered G.P.As. by plaintiff, Venkatamma and Vasudev Goud, in respect of the said properties in favour of the 1st defendant in whom he had full trust and confidence. In fact, the suit schedule property was acquired by late K.Shankar Yadav during his life time in the name of plaintiff and immediately got executed irrevocable GPA by the plaintiff in favour of defendant No.1. In respect of all these three properties, late K.Shankar Yadav got registered irrevocable GPAs in favour of defendant No.1 with instructions that all these aforesaid properties should be gifted in favour of the 2nd defendant trust for the purpose of construction of educational PSSJ A.S.No.1005 of 2010 6 institutions for the public benefit. As per the instructions of late K.Shankar Yadav, three registered gift deeds were executed in favour of the 2nd defendant in respect of the lands held by plaintiff, Venkatamma and Vasudev Goud through the 1st defendant as a GPA holder. Thus, the 2nd defendant by virtue of registered gift deed dated 02.01.1999 has become the absolute and exclusive owner and possessor of total extent of Ac.7.00 and the said land also got mutated in the name of the 2nd defendant in the revenue records. Thus, the suit property was kept nominally in the name of plaintiff who was immediately required to execute registered irrevocable GPA in favour of the 1st defendant as was done in the case of said Venkatamma and Vasudev Goud. The 2nd defendant has been in continuous possession and enjoyment of the same in its own right as absolute owner by paying land revenue. The plaintiff was never in the custody of any title deeds or records relating to the suit property nor was he ever in possession of the suit property PSSJ A.S.No.1005 of 2010 7 or any part thereof. In fact, the plaintiff did not pay any consideration for the suit lands to any one at any point of time. It is only taking advantage of death of K.Shankar Yadav, the plaintiff has entertained an evil idea to lay a false claim to the suit property. The question of the 1st defendant rendering accounts to the plaintiff for the income earned from the suit property does not arise. Since no income was earned, the plaintiff had nothing to do with the suit property. It is further contended that the suit property was already transferred by way of a valid gift deed by the 1st defendant in favour of the 2nd defendant, no useful purpose could be served by cancelling the GPA by the plaintiff. The gift deed is perfectly legal, valid and binding on the plaintiff and there is no clog on the alleged ownership of the plaintiff in respect of the suit schedule property since he has no title over the same. Hence, it is requested to dismiss the suit with exemplary costs.
PSSJ A.S.No.1005 of 2010 8 Defendant No.2 also filed a written statement on similar lines with that of written statement of defendant No.1, in which it is contended that the plaintiff executed a registered irrevocable GPA in favour of the 1st defendant on 24.07.1991 giving authorisation to the 1st defendant to do all transactions and as such the 1st defendant executed a registered gift deed on 02.01.1999 in favour of the 2nd defendant. The plaintiff gave notice to the 1st defendant on 22.08.2001 informing that the said GPA stands cancelled. It is further stated that after lapse of 2 years 7 months, the plaintiff issued the notice of cancellation of GPA to the 1st defendant and that the gift deed executed in favour of the 2nd defendant trust is a valid gift and the plaintiff has no right to claim the said property. Once the property was executed in favour of the 2nd defendant trust, it cannot be transferred deviating the Trust Deed. It is further stated that the plaintiff never paid tax to the concerned department and that the 2nd defendant had paid all the taxes in the name of PSSJ A.S.No.1005 of 2010 9 the said trust and, therefore, requested the Court to dismiss the suit with exemplary costs.
During trial, the plaintiff examined himself as P.W.1 and got marked Exs.A-1 to A-9. On behalf of the defendants, D.Ws.1 and 2 were examined and got marked Ex.B1 to B19.
The trial Court, after considering the entire evidence, both oral and documentary, and the respective contentions of the learned Counsel appearing on either side, decreed the suit against defendant No.2 by declaring that the gift deed bearing document No.42/99 dated 02.01.1999 executed by defendant No.1 in favour of defendant No.2 is nonest in law and defendant No.2 is directed to deliver the vacant possession of the suit schedule property to the plaintiff within two months from the date of decree, failing which the plaintiff is at liberty to recover possession of the suit land from defendant No.2 by following due process of law. Suit against defendant No.1 was dismissed as abated.
PSSJ A.S.No.1005 of 2010 10 Aggrieved by the aforesaid judgment and decree of the trial Court, the present appeal has been preferred by defendant No.2, inter alia, contending that the 2nd defendant is a registered Educational Trust, which is a public Trust, within the meaning of Section 2 of Act 30/87 and as such the suit is not maintainable against it. If any relief is to be claimed against the 2nd defendant, the same can be claimed under the provisions of Act 30/87, but not before the Civil Court and thus the judgment and decree is void. It is contended that the 1st defendant died during the pendency of the suit and that no legal representatives were brought on record and, therefore, the suit itself is abated as no declaration can be granted against a dead person. It is further contended that the plaintiff executed a registered irrevocable GPA in favour of the 1st defendant permitting him to transfer the land in favour of third parties and accordingly the 1st defendant executed a registered gift deed dated 02.01.1999 transferring the suit schedule property in PSSJ A.S.No.1005 of 2010 11 favour of the 2nd defendant in exercise of powers of the said GPA, however, the suit was filed much later in the year 2003 seeking declaration that the gift deed is void and as such the suit is barred by limitation. The 1st defendant has not led any oral or documentary evidence in support of the claim and, therefore, requested the Court to allow the appeal by setting aside the judgment and decree of the trial Court.
Heard the learned Counsel appearing on either side and perused the entire material available on record.
The plaintiff, who was examined as P.W1, filed his chief-examination affidavit reiterating the contents of the plaint. In his cross-examination, he stated that he is a Post Graduate in Engineering and was running a Chemical factory at Jeedimetla during the period 1980-1990 and he was effected with paralysis in the year 1991 and was suffered for 1 ½ year. He purchased the suit schedule land PSSJ A.S.No.1005 of 2010 12 from one Reddy, but he does not remember his complete name. His vendor sold the suit land by executing a registered sale deed in his favour and he filed the certified copy of the registered sale deed as the original sale deed is in the custody of the GPA holder. He further stated that he has not filed any document to prove that the suit schedule land was purchased by him. He had a letter issued by the Revenue Divisional Officer to substantiate the fact that he has purchased the suit schedule land, but he did not file the said letter. Though he stated that he has purchased the suit schedule land by paying the net cash in three instalments, he did not file the receipts to substantiate the same. He further stated that he has paid the sale consideration through one Shankar Yadav. He has purchased the land admeasuring Ac.3.00 in Sy.No.307 and it was situated within the limits of Bachupalli village and Gajula Ramaram of Qutbullapur Mandal, but he does not remember its boundaries. The land was a grazing land and there were PSSJ A.S.No.1005 of 2010 13 boulders and bushes in the said land. The said survey number consists of Ac.70.00 of land and 16 to 20 persons purchased the said land at the instance of said Shankar Yadav with a view to develop the land collectively. He further stated that he has executed the GPA in favour of one Mallesh (Defendant No.1) at the instance of said Shankar Yadav with a direction to develop the land. P.W.1 further admitted that he did not pay the requisite land revenue in respect of the suit schedule land as the GPA holder assured that he would pay the same. He admitted that the patta of the suit land is in his name, but the sale deed in respect of the suit schedule land is not in his name. The Revenue Divisional Officer had issued the patta in his name on the basis of the application filed by him. He further admitted that he had given a press note in the daily newspaper cancelling the GPA, to which the 1st defendant gave a reply.
PSSJ A.S.No.1005 of 2010 14 One B.Shyamsunder, one of the Founder Trustees of the 2nd defendant Trust, was examined as D.W.1, and he stated in the cross-examination that he had filed documents to show that one Shankar Yadav acquired the suit schedule property, however the name of said Shankar Yadav was not appearing on Ex.B10-Occupancy Rights Certificate issued by the Revenue Divisional Officer in favour of the plaintiff. He admitted in his cross-examination that the said Shankar Yadav has not acquired any title over the suit schedule property as per Ex.B10. He further admitted that except Ex.B10, no other document was filed by him to show the title of the said Shankar Yadav. He further admitted that he did not file any document to show that Ex.B5-GPA was executed on the instructions of Shankar Yadav, but there were oral instructions to the plaintiff as he was an employee of the said Shankar Yadav. D.W.1 stated that the Trust was created and registered in the year 1997. He admitted that as per Ex.B5, the plaintiff is the owner and possessor of the suit PSSJ A.S.No.1005 of 2010 15 schedule property and that as per clause No.1 of Ex.B5, the 1st defendant was authorized to sell, lease, transfer by way of exchange and mortgage the suit schedule property. D.W.1 in his further cross-examination admitted that there is no recital in Ex.B5 empowering the 1st defendant to gift the property mentioned in it and that clause (1) of Ex.B5 states that he shall only sell and lease the property.
D.W.2, who is one of the Founder Trustees of defendant No.2-Trust, stated that the real owner of the suit schedule property was late K.Shankar Yadav, who is the founder trustee of the said Trust, and he died on 08.09.1999. He further stated that at the time of execution of the gift deed, irrevocable GPA in favour of the 1st defendant is in existence and the gift deed dated 02.01.1999 is a valid gift and that the plaintiff has no right, title or interest over the suit schedule property. He stated that in the case of Trust property, the Benami transactions (Prohibition) Act, 1988 PSSJ A.S.No.1005 of 2010 16 does not apply. In the cross-examination, he stated that the Trust Deed was registered on 01.07.1997 and that the plaintiff is not a member of the Trust. He further stated that he is aware of only Ex.B7 transaction.
The Point that arises for consideration is whether the judgment of the trial Court is on proper appreciation of facts or not?
During the pendency of the suit, defendant No.1 was expired and his legal heirs were not brought on record and hence the suit against defendant No.1 was treated as abated.
Though the plaintiff, who was examined as P.W.1, stated in his cross-examination that he purchased the suit schedule property in the year 1991, he has not filed any sale deed relating to the said land and not even filed any receipt regarding his payment in three instalments and that he has not paid tax at any point of time. However, he stated that the patta of the suit land is in his name. D.W.1, who was PSSJ A.S.No.1005 of 2010 17 one of the founder trustees of the 2nd defendant Trust, stated that originally the suit land was acquired by one K.Shankar Yadav in the name of the plaintiff, so also he acquired some more lands and nominally put in the names of Venkatamma and Vasudev Goud and instructed all of them to execute irrevocable G.P.As in favour of the 1st defendant and accordingly they executed Exs.B3 to B5/irrevocable GPAs in favour of the 1st defendant and thereafter they executed Exs.B7 to B9-Gift Deeds to an extent of Ac.7.00 of land in favour of the 2nd defendant Trust through the 1st defendant as a GPA holder. He further stated that as the plaintiff was an employee of said K.Shankar Yadav, he raised his voice only after the death of said K.Shankar Yadav and as such he is not entitled for cancellation of gift deed and for recovery of possession of the suit schedule property. However, he admitted in his cross-examination that as per Ex.B5, the plaintiff is the owner and possessor of the suit schedule property.
PSSJ A.S.No.1005 of 2010 18 Learned Counsel for the 1st respondent/plaintiff mainly contended that even a perusal of Ex.A1 and Ex.B5/irrevocable G.P.A, dated 24.07.1991. shows that the plaintiff authorized D.Mallesh (1st defendant) only to sell, lease, transfer by way of exchange or mortgage whole or any part of the suit property and to receive the consideration thereof on behalf of the plaintiff. The plaintiff never authorized the 1st defendant to gift the property. However, the 1st defendant transferred the property in favour of the 2nd respondent by executing a Gift Deed dated 02.01.1999 under Ex.A8 and as such Ex.A8/Gift Deed is invalid and nonest in law as the 1st defendant did not have any authority to execute the same. On the other hand, the learned Counsel for the appellant/2nd defendant contended that as per clause (2) and (10) of Ex.B5/irrevocable GPA, the 1st defendant was authorized to execute any other deeds, which includes Gift deeds and for gifting the property there should be donor and donee and it should be out of love and PSSJ A.S.No.1005 of 2010 19 affection, but not for consideration. The 1st defendant stated that he gifted the property in favour of the 2nd defendant at the instance of the said K.Shankar Yadav as per the irrevocable GPA. Admittedly, there is no consideration.
From a perusal of Ex.A1 and Ex.B5-G.P.A, it is clear that the 1st defendant was not authorized to gift the property in favour of the 2nd defendant. Even as per clause (12) of the GPA, the plaintiff has to ratify the act of the 1st defendant. But, in this case, the plaintiff disputed the gift deed and he never ratified or confirmed the act of the 1st defendant and as such the gift deed executed by the 1st defendant in favour of the 2nd respondent is not valid. Merely because the nomenclature was shown as irrevocable GPA, it cannot be said that it can never be revoked as the 1st defendant acted against the interest of the plaintiff and not in accordance with the terms and conditions of the GPA. The plaintiff is always at liberty to revoke the same and as PSSJ A.S.No.1005 of 2010 20 such he cancelled the Power of Attorney by executing Ex.A5-registered cancellation deed and also got issued publication in local newspaper under Ex.A6. Thus, the gift deed dated 02.01.1999 executed by the 1st defendant, as a GPA holder, in favour of the 2nd defendant is nonest in law. Merely because Venkatamma and Vasudev Goud also executed irrevocable GPAs in favour of the 1st defendant and in turn the 1st defendant executed gift deed in favour of the 2nd defendant, it cannot be said that the 1st defendant was also authorized to gift the property of the property in favour of the 2nd defendant against the terms and conditions of the GPA. The Trust Deed under Ex.B6 was executed on 01.07.1997. Though Ex.B5-GPA was executed on 24.07.1991, Ex.A8-Gift Deed was executed on 02.01.1999 after the death of K.Shankar Yadav on 08.09.1999. The said K.Shankar Yadav and the 1st defendant were also members of the 2nd defendant Trust. The said K.Shankar Yadav was a Founder trustee and was acting as a managing trustee of the 2nd PSSJ A.S.No.1005 of 2010 21 defendant Trust. Exs.B14 and B15- Pattadar Passbooks and title deeds filed before the Court would reveal that the plaintiff was shown as owner of Ac.3.00 of land in Sy.No.307/e/19 of Gajula Ramaram village, Qutubullapur Mandal, Rangareddy District.
The main contention of the 1st defendant is that the suit land as well as the other lands were acquired by the said K.Shankar Yadav and nominally put the said lands in the names of plaintiff, Venkatamma and Vasudev Goud respectively, but after invoking of provisions of Benami Transactions (Prohibition) Act, 1988, the said purchase of the property in the name of the plaintiff and others is not valid. There is no evidence to show that the property was purchased by the said Shankar Yadav in the name of the plaintiff and no sale deed is filed and it was brought in evidence that on the oral instructions of the said K.Shankar Yadav, irrevocable G.P.As were executed in favour of the 1st PSSJ A.S.No.1005 of 2010 22 defendant. Thus, there is no evidence at all to show that the suit property belongs to the said K.Shankar Yadav, but not to the plaintiff.
The learned Counsel for the appellant/D2 contended that the gift deed was executed on 02.01.1999, but the suit was filed much later in the year 2003 and as such the suit is barred by limitation. According to the plaintiff, who was examined as P.W.1, he issued a notice dated 22.08.2001 under Ex.A2 to the 1st defendant informing him about the cancellation of the GPA and that he came to know about the transfer of suit schedule property in favour of the 2nd defendant by the 1st defendant through Ex.A7-reply notice dated 13.11.2001. He further stated that he obtained the certified copy of the gift deed on 29.11.2002. Therefore, the suit was filed within the period of limitation from the date of knowledge of the plaintiff with regard to execution of the gift deed in favour of the 2nd defendant. The 2nd defendant PSSJ A.S.No.1005 of 2010 23 further contended that the suit filed against the 2nd defendant Trust represented by K.Shankar Yadav, who died on 08.09.1999, is not maintainable as he was no more on the date of filing of the suit and thus the suit is liable to be dismissed against the 2nd defendant. Admittedly, D.W.1 was impleaded in the place of K.Shankar Yadav by way of amendment and thus the contention of the learned Counsel for the appellant/defendant No.2 cannot be accepted.
The learned Counsel for the appellant/defendant No.2 further submitted that the civil suit is not maintainable against the 2nd respondent-Trust as it is a public Trust. But, the issue of jurisdiction is to be raised by the 2nd defendant at the earliest point of time before the Civil Court, but he kept quite. Therefore, now at the appellate stage, he cannot raise the said objection and it is not tenable.
In view of the foregoing reasons, I find that the trial Court, after evaluating the entire evidence both oral and PSSJ A.S.No.1005 of 2010 24 documentary, rightly decreed the suit in favour of the plaintiff and against the 2nd defendant by declaring that the gift deed dated 02.01.1999 executed by the 1st defendant in favour of the 2nd defendant is nonest in law and also directed the 2nd defendant to deliver vacant possession of the suit schedule property to the plaintiff within a period of two months from the date of decree. That apart, the suit against the 1st defendant was dismissed as abated. Therefore, this Court finds that there is no infirmity or illegality in the judgment of the trail Court and it needs no interference.
Accordingly, the Appeal Suit is dismissed, confirming the impugned judgment and decree, dated 30.10.2010, passed by the trial Court in O.S.No.235 of 2003. There shall be no order as to costs.
Pending miscellaneous petitions shall stand closed.
_______________________ JUSTICE P.SREE SUDHA 13.04.2023 Gsn.