Andhra Pradesh High Court - Amravati

Gadiraju.Bhaskara Raju vs Gottumukkala.Venkata Lakshmi on 13 April, 2022

      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

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

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?

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

(2014) 9 SCC 445

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

2013 (5) ALD 711

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

AIR 2009 SC 1481

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."

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