Andhra Pradesh High Court - Amravati

Chelluboyina. Nagaraju vs Molleti Ramudu Alias ... on 13 April, 2022

      THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

               SECOND APPEAL No.216 of 2020

JUDGMENT:

The above second appeal is filed by the defendant against

the judgment and decree dated 27.02.2020 in A.S.No.41 of 2019

on the file of Senior Civil Judge, Razole, confirming the

judgment and decree dated 31.08.2018 in O.S.No.71 of 2013 on

the file of Junior Civil Judge, Razole.

2. For the sake of convenience and brevity, the parties herein

are referred to as they are arrayed in the O.S.No.71 of 2013.

3. The plaintiffs, sisters, filed suit O.S.No.71 of 2013 to

declare their title and for recovery of possession etc. In the

plaint, it was contended interalia that the plaint schedule

property originally belonged to Chelliboina Somalamma, mother

of plaintiffs; that Somalamma executed a registered gift

settlement deed dated 10.09.2003 reserving life interest and

vested remainder to the plaintiffs; that Somalamma died on

28.12.2012 and hence the schedule property devolved upon the

plaintiffs being vested remainder holders; that during the life

time of Somalamma, she allowed the defendant to cultivate

plaint schedule property; that after death of Somalamma, the

plaintiffs demanded the defendant to deliver the plaint schedule

property and at that point of time, defendant pleaded that he

purchased the schedule property from Somalamma; that

defendant might have obtained the document by

misrepresentation and taking advantage of innocence of

Somalamma and the said document does not bind the plaintiffs;

that all the efforts made by the plaintiffs to take delivery went

futile; that the plaintiffs got issued a legal notice dated

22.02.2013, however defendant refused to receive the same and

hence, filed the suit.

4. Defendant filed written statement and contended interalia

that he is the bonafide purchaser of plaint schedule property

under a registered sale deed dated 26.03.2011; that by virtue of

sale deed, he came into possession of the property; that

plaintiffs being cousins of defendant are aware of the sale deed;

that plaintiffs obtained document dated 10.09.2003 by playing

undue influence with a promise to maintain their mother till her

last breath; that since the plaintiffs failed to keep up the

promise, deceased Somalamma revoked the gift deed through a

registered revocation deed dated 08.02.2011 and eventually

prayed the Court to dismissed the suit.

5. During the trial, 1st plaintiff examined herself as P.W.1

and got examined P.Ws.2 and 3. Exs.A-1 to A-4 were marked.

On behalf of defendant, defendant examined himself as D.W.1,

got examined D.W.2 and Exs.B-1 & B-2 were marked.

6. Trial Court by judgment and decree dated 31.08.2018

decreed the suit with costs and declared the title of the plaintiffs

and directed the defendant to deliver vacant possession of

property within three months, failing which the plaintiffs are

also granted liberty to get the property delivered through

process of Court.

7. Aggrieved by the said judgment and decree,

appellant/defendant filed A.S.No.41 of 2019. First Appellate

Court being final factfinding Court vide judgment dated

27.02.2020, dismissed the appeal confirming the judgment and

decree of the trial Court. Aggrieved by the said judgment and

decree, the present second appeal is filed.

8. Heard Sri Tata Singaiah Goud, learned counsel for

appellant.

9. Learned counsel for the appellant would contend that the

registered gift settlement deed dated 10.09.2003 was revoked by

the executant by revocation deed dated 10.02.2011 and hence,

the plaintiffs cannot maintain the suit for declaration. He would

further contend that the registered gift settlement deed dated

10.09.2003 is a conditional gift and since the respondents/

plaintiffs failed to comply with the condition, the deceased

Somalamma revoked the gift by revocation deed dated

10.02.2011 and the same was registered vide document No.351

of 2011. He would also contend that the appellant/ defendant

is a bonafide purchaser of the property and hence, the suit filed

by the plaintiffs is liable to be dismissed. It is further contended

that delivery of property is sine qua non for valid gift deed under

Section 123 of the Transfer of Property Act, 1882 (for short "TP

Act"). Thus, it was prayed the Court to set allow the second

appeal by setting aside the judgements of Courts below.

10. The following are substantial questions of law arise for

consideration in the second appeal:

1) Whether delivery of property is sine qua non under Sec 123 of T.P. Act for a valid gift deed?

2) Whether a registered gift deed can be revoked/ cancelled without the consent of donee? If so, such unilateral cancellation deed binds the donee?

3) Whether Ex.A-1 Gift Deed is a conditional Gift Deed and non-consideration of Ex.A-1 vitiated the Judgements of the Courts below?

4) Whether the defendant is a bonafide purchaser?

11. Undisputed facts are that Smt.Somalamma executed a

registered gift deed in favour of plaintiffs on 10.09.2003

reserving life interest to herself and vested reminder to the

donee under Ex.A-1. The gift deed was revoked by way of Ex.B-2

registered revocation deed dated 08.02.2011. Later, defendant

purchased the property under Ex.B-1 registered sale deed dated

26.03.2011.

12. Learned counsel for the appellant contended that delivery

of property is sine qua non for valid gift deed under Sec 123 of

TP Act. Since the property is not delivered, though the

nomenclature document Ex.A-1 is described as gift deed, it is

not a gift deed and hence unilateral cancellation of same is

valid.

13. Section 122 of the Transfer of Property Act, 1882 reads

thus:

122. "Gift" defined.--"Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made.--Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.

Section 123 of the Transfer of Property Act, 1882 reads

thus:

123. Transfer how effected.-- For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.

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. In view of ratio laid down in Rajamma's case and Nakka

Parthasarathy's case, the contention of the learned counsel for

the appellant that delivery of property is not sine qua non for a

valid gift deed is without merit and falls to ground. Under

Ex.A-1, life interest was retained by donor and vested remainder

to the donees. Pleadings and evidence on record manifest that

donor voluntarily executed the gift deed without undue

influence or coercion and the same was accepted by plaintiffs.

17. According to learned counsel for the appellant, gift under

Ex.A-1 is conditional one and since the respondents/ plaintiffs

failed to comply with the said condition, it was revoked by the

executant. A perusal of gift settlement deed dated 10.09.2003

does not indicate any such condition imposed by the donor.

The recitals in the document are to the effect that respondents

are the daughters of executants and out of love and affection,

2013 (5) ALD 711

since the executant promised earlier to deliver some property in

their favour, she executed the document out of free will and

volition. Thus, the contention of learned counsel for appellant

that Ex.A-1 is a conditional gift is not true and correct and

hence the same was rejected.

18. Ex.B-2, Revocation deed dated 08.02.2011 was executed

nearly after 7½ years after execution of Ex.A-1 registered Gift

settlement deed. A perusal of recitals in revocation/cancellation

deed shows that it was cancelled unilaterally without notice to

donees. Immediately after cancellation i.e. 1½ months after

cancellation deed, sale deed was executed in favour of

appellant/defendant. According to the appellant, appellant and

respondents are cousins and the appellant is aware of the

execution of registered gift settlement deed in favour of

respondents. A careful perusal of the material on record shows

that appellant/defendant is aware of execution of gift deed in

favour of plaintiffs.

19. Cancellation of gift deed unilaterally by donor is contrary

to the Rules under the Registration Act. Thus, cancellation does

not affect the right of the respondents/plaintiffs.

20. In Kolli Rajesh Chowdary Vs. State of Andhra Pradesh3,

while dealing with the aspect whether registration of deed of

cancellation unilaterally is violative of principles of natural

justice and also contrary to the Rule 26(i)(k)(i), Hon'ble Court

held that deed of cancellation/deed of revocation is declared as

2019(3)ALD229

null and void and it is of no effect. There cannot be a unilateral

cancellation of registered document and that a cancellation deed

cancelling a registered document can be registered only after the

same is cancelled by a competent Civil Court, after notice to the

parties concerned, and that in the absence of any declaration by

a competent Court or notice to parties, the execution of deed of

cancellation as well as its registration are wholly void and

nonest.

21. In view of ratio laid down in the above decision, revocation

deed executed by late Somalamma after 7½ years of execution of

gift settlement deed is not valid in the eye of law. As a

consequence, the appellant will not get better title under Ex.B-1

sale deed. The latin maxim nemo dat quad non habit squarely

apply to the facts of the case, means No person can convey

better title than what he has. Vendor of the appellant upon

execution of Ex A-1 lost title to the property, except enjoyment

during her lifetime. Cancellation of document is not valid and it

being non-est, it will not inure to the benefit of appellant/

defendant.

22. Whether the plaintiffs are entitled for declaration of title

over the plaint schedule property?

23. To prove Ex.A-1 registered gift settlement deed, the 1st

plaintiff examined herself as P.W.1 and got examined the

attestors of Ex.A-1 as P.Ws.2 and 3. The attestors P.Ws.2 and 3

categorically deposed that they were present at the time of

execution of Ex.A-1 gift deed and after completion of execution

of Ex.A-1, both of them signed on it. Since the execution of

Ex.A-1 is duly proved, this Court is of the opinion that Ex.A-1

being gift/settlement deed reserving life interest with the mother

and vested remainder to daughter, after the death of mother, the

respondents/plaintiffs are being vested remind holder became

owners of the property. Since the appellant/defendant disputed

the title of the plaintiffs, they were constrained to file the suit for

declaration and proved due execution of Ex.A-1. The evidence

on record is unimpeachable and hence plaintiffs prove their title

to the property and hence they are entitled for declaration.

Thus, this Court holds that plaintiffs are owners of plaint

schedule property.

24. It is also pertinent to mention here that appellant/

defendant pleaded that respondents/plaintiffs obtained Ex.A-1

by playing undue influence with their mother with a promise to

maintain her till her last breath. In fact, a perusal of Ex.A-1, no

recital was incorporated in Ex.A-1 that the respondents/

plaintiffs have to take care of their mother. In fact, the recitals

are to the effect that out of love and affection, the document was

executed. Apart from that Somalamma also blessed with three

sons and they are solvent persons. According to D.W.1, none of

the sons of Somalamma come forward to purchase the property

after execution of deed of revocation. He further deposed that

he did not enquire about the encumbrances over the property at

the time of purchase. Any prudent purchaser normally enquires

before purchase of the property. He further deposed that he

knew about execution of Ex.A-1 by his vendor in favour of the

plaintiffs. However, he deposed that his vendor informed two

months prior to bargain about the cancellation of gift deed

executed in favour of plaintiffs. The deposition of appellant

makes the thing more than discernable that the appellant is

aware of execution of gift deed in favour respondents herein.

Thus, in the opinion of this Court the appellant/defendant

cannot be termed as bonafide purchaser.

25. It is the case of plaintiffs/respondents that Somalamma

continued to be in possession of property during her lifetime

and after death of Somalamma, the appellant/defendant came

into possession of the property. The appellant/defendant

contended that he came into possession of the property after

execution of Ex.B-1 sale deed. Since the title of

respondents/plaintiffs is declared, the appellant/defendant is

not entitled to continue in possession of the property.

Possession of appellant over the schedule property is not legal.

Since this Court came to conclusion that respondent/plaintiffs

are owners of the schedule property, they are entitled to recover

the property from appellant/defendant.

26. Whether this Court can interfere with concurrent findings

of the facts recorded by Courts below under Section 100 of CPC.

27. Dealing with the scope of Section 100 of CPC, the Hon'ble

Apex Court in Kulwant Kaur and Ors vs. Gurdial Singh Mann

(Dead) By Lrs. and Ors.4 held as follows:

"Section 100 of CPC introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to say that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity."

28. The Hon'ble Apex Court in Yadavarao Dajiba Shrawane

Vs. Nanilal Harakchand Shah (Dead) and Ors.5 held thus:

"From the discussions in the judgment it is clear that the High Court has based its findings on the documentary evidence placed on record and statements made by some witnesses which can be construed as admissions or conclusions. The position is well settled that when the judgment of the final Court of fact is based on mis-

interpretation of documentary evidence or on consideration of inadmissible evidence or ignoring

4 (2001) 4 SCC 262

2002 (6) SCC 404

material evidence the High Court in second appeal is entitled to interfere with the judgment. The position is also well settled that admission of parties or their witnesses are relevant pieces of evidence and should be given due weightage by Courts. A finding of fact ignoring such admissions or concessions is vitiated in law and can be interfered with by the High Court in second appeal. Since the parties have been in litigating terms for several decades the records are voluminous. The High Court as it appears from the judgment has discussed the documentary evidence threadbare in the light of law relating to their admissibility and relevance."

29. In Leela Soni vs. Rajesh Goyal6, the Hon'ble Apex Court

held thus:

"21. It will be apt to refer to Section 103 of C.P.C. which enables the High Court to determine the issues of fact:

"103. Power of High Court to determine issue of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(a) which has not been determined by the Lower Appellate Court or both by the Court of first instance and the Lower Appellate Court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."

22. The section, noted above, authorizes the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record is sufficient, in any of the following two situations : (1) when that issue has not been determined both by the trial court as well as the Lower Appellate Court or by the Lower Appellate Court; or (2) when both the trial court as well as the Appellate Court or the Lower

2001 (7) SCC 494

Appellate Court has wrongly determined any issue on a substantial question of law which can properly be the subject matter of second appeal under Section 100 of C.P.C."

30. The Hon'ble Apex Court in Ishwar Dass Jain (Dead) Thr.

Lrs Vs. Sohan Lal (Dead) By Lrs7, held thus:

"It is essential for the High Court to formulate a substantial question of law under section 100 CPC, after the 1976 amendment and it is not permissible to reverse the judgment of the first appellate Court without doing so."

31. The Hon'ble Apex Court in Hero Vinoth Vs. Seshammal8,

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

2000 (1) SCC 434

AIR 2009 SC 1481

of the case, if answered either way, insofar as the rights of 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."

32. In the light of the law laid down by the Hon'ble Apex Court

on the scope of interference by the High Court in second appeal,

this Court while exercising jurisdiction under Section 100 of

CPC has to confine to the substantial question of law involved in

the appeal. This Court cannot re-appreciate the evidence and

interfere with the concurrent findings of the Court below where

the Courts below have exercised the discretion judicially.

Further the existence of substantial question of law is the sine

qua non for the exercise of jurisdiction. This Court cannot

substantiate its own opinion unless the findings of the Court are

manifestly perverse and contrary to the evidence on record.

33. The findings of the fact recorded by the Courts below are