Guntur (For Short "The Trial ... vs Periammal1
2023 Latest Caselaw 3731 AP

       THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                    APPEAL SUIT No.577 OF 2010

JUDGMENT:

1. Aggrieved by the Decree and Judgment dated 13.11.2009 in O.S.

No.342 of 2002 passed by the learned IV Additional Senior Civil Judge,

Guntur (for short "the trial Court"), the appellants/defendants preferred

this appeal questioning the correctness of the Decree and Judgment

passed by the Trial Court.

2. For the sake of convenience, the parties will hereinafter be referred to

as arrayed in the Original Suit.

3. The plaintiff filed a suit for cancellation of revocation of settlement

deed dated 31.05.2002 executed by 1st defendant regarding suit schedule

property and for consequential permanent injunction restraining the

defendants from interfering with the peaceful possession and enjoyment of

the plaintiff over the suit schedule property and for costs.

4. The brief averments of the plaintiff are that the 1st defendant is the

mother of the plaintiff and defendants 2 and 3. The 1st defendant

purchased the suit schedule property from one Samrajyam Sharma under

a registered Sale Deed dated 17.05.1978. She has been in peaceful

possession and enjoyment of the same with absolute right. Due to love and

affection for the plaintiff, the 1st defendant gifted the same to him by

executing a registered Gift Deed dated 15.03.2002. Since then, he has been

in peaceful possession and enjoyment of the property with absolute rights.

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His name was also mutated in the Municipal records. While the matters

stood thus, the 1st defendant proclaimed that she revoked the gift deed and

would take delivery of possession of the schedule property. The plaintiff

came to know that the 1st defendant was influenced by her daughters

(defendants 2 and 3); the 1st defendant executed a revocation of the

settlement deed dated 31.05.2002 without any notice or intimation to the

plaintiff by cancelling the Gift Deed dated 15.03.2002. Hence, the plaintiff

was constrained to file the suit against defendants 1 to 3.

5. During the pendency of the suit, the 1st defendant died, and

defendants 2 and 3 were brought on record as L.R.s of the deceased/1st

defendant. The 1st defendant filed her written statement when she was

alive. The plaintiff got a job on compassionate grounds in Commercial Tax

Department after the death of the husband of 1st defendant. The second

son of the 1st defendant died due to ill health, and his wife and son are

residing with the 1st defendant. Taking advantage of the innocence of 1st

defendant, the plaintiff obtained a gift deed and got mutated in his name in

the Municipal records. The 1st defendant learned that the plaintiff played

fraud; in turn, she executed a revocation of the settlement deed on

31.05.2002. The plaintiff is making hectic efforts to dispossess her from

the said property. The 1st defendant got right, title, interest and possession

over the schedule property, and she sought dismissal of the suit.

6. The 3rd defendant filed her written statement, denying the plaint

averments. The 2nd defendant filed a Memo adopting the written statement

filed by the 3rd defendant. The 3rd defendant further stated that the plaintiff

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managed to obtain a settlement deed by playing fraud on the deceased/1st

defendant, who is the mother of the plaintiff; realizing the same, the 1st

defendant revoked the settlement deed executed by her.

7. Based on the above pleadings, the Trial Court framed the following

issues, which are as under:-

1) Whether the settlement deed dated 31.05.2002 is liable to be cancelled and consequential injunction as prayed for?

2) Whether the plaintiff is entitled to a decree as prayed for?

3) To what relief?

8. Subsequently, on 03.01.2009, the trial Court framed the following

Additional Issues.

1) Whether D.1 cannot unilaterally cancel the settlement deed in favour of the plaintiff by executing a revocation of the settlement deed dated 31.05.2002?

2) Whether the plaintiff has committed fraud in obtaining a settlement deed dated 15.03.2002 by D.1?

9. On behalf of the plaintiff, P.Ws.1 to 3 were examined and marked

Exs.A1 to A12, and on behalf of the defendants, D.Ws.1 to 4 were

examined, and no documents were marked on their behalf.

10. After considering the evidence on record, the trial Court decreed the

suit with costs in favour of the plaintiff and against the defendants by

cancelling the revocation deed dated 31.05.2002 executed by D.1 and the

defendants were restrained from interfering with the possession and

enjoyment of plaintiff over the suit schedule property by means of a

permanent injunction.

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11. Heard the arguments of the learned counsel for both parties.

12. Sri P. Prabhakar Rao, learned counsel for the appellants/defendants,

contends that the trial Court ought to have given weight to the testimony of

D.W.1 to D.W.4 and disbelieved the evidence of P.Ws.1 to 3. The trial Court

ought to have seen the circumstances that necessitated the execution of

the Ex.A9 revocation deed. He further contends that 1st defendant was in

possession of the schedule property and, consequently, the respondent is

not entitled to an injunction. The trial Court ought to have seen that the

Ex.A2 document was a product of fraudulent action by the respondent

aimed at deceiving the 1st defendant, and the fraud taints the entire

transaction.

13. Per contra, Sri Nimmagadda Satyanarayana, learned counsel

appearing for the respondent/plaintiff, would contend that the trial Court

correctly appreciated the facts of the case and reached a correct

conclusion. The reasons given by the trial Court do not require any

modifications.

14. Having regard to the pleadings in the suit, the findings recorded by

the Trial Court and in the light of the rival contentions and submissions

made on either side before this Court, the point would arise for

determination are:

1) Is the trial court justified in holding that D.1 cannot unilaterally cancel the Ex.A2-Registered Settlement Deed executed in favour of the plaintiff by D.1?

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2) Whether the defendants fail to establish that the plaintiff had committed fraud in obtaining a settlement deed dated 15.03.2002?

Point Nos.1 & 2:

15. The evidence on record shows that the following facts are either

admitted or undisputed. The 1st defendant is the mother of the plaintiff,

and defendants 2 and 3. The 1st defendant is the absolute owner of the suit

schedule property through a purchase from Samrajyam Sharma under

Ex.A1 dated 17.05.1978. On 15.03.2002, the 1st defendant executed

Ex.A2-Registered Settlement Deed in favour of the plaintiff. The 1st

defendant later executed the original Ex.A9-Revocation of Settlement Deed

dated 31.05.2002, thereby revoking the earlier settlement deed, Ex.A2, that

was in favour of the plaintiff.

16. During the trial, the plaintiff ( PW.1) and defendants 3 and 2 ( D.W.1

and D.W.2) were examined. The 1st defendant died during the pendency of

the suit, and D.2 and D.3 were brought on record as Legal Representatives

of the deceased 1st defendant. In her written statement, the 1st defendant

contended that the plaintiff took advantage of her innocence to obtain a

document styled a Gift Deed. Utilizing this deed, the plaintiff seems to have

changed the property ownership in the Municipal records and started

paying taxes in his name. Upon knowing this fraudulent act committed by

the plaintiff, the 1st defendant revoked the settlement deed. The plaintiff

claimed that he got possession of the scheduled property immediately after

the execution of Ex.A2, which is admitted by D.W.2, who testified that the

plaintiff has been in possession and enjoyment of the scheduled property

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since the execution of Ex.A2. D.W.4 (K. Jayamma) and D.W.1 (K.

Vijayalakshmi) also testified that the plaintiff is now in possession of the

scheduled property.

17. Besides the admissions mentioned above and evidence, the plaintiff

has submitted Ex.A8-Mutation proceedings dated 30.03.2002, which

indicates that his name is mutated in revenue records on his application

for mutation. Further, the plaintiff relied on Exs.A10 to A12, which

consists of Demand Notices and Tax Receipts, along with Ex.A3 to Ex.A6,

which include Property Tax receipts. These documents support the

plaintiff's claim that he has come into possession of the scheduled property

through Ex.A2.

18. The plaintiff has relied on Ex.A1-Registered Sale Deed as evidence

that it was delivered to him following the execution of Ex.A2-Gift Deed.

Based on the evidence on record, the trial Court found that the plaintiff

had exercised his right over the property by mutating his name in

Municipal Records and paying property taxes. It is not the case of 1st

defendant that the Municipal Corporation issued demand notices in her

name, and she paid the taxes. The defendants have not raised the dispute

regarding the genuineness or authenticity of the mentioned documents

relating to the Municipal Corporation. The oral testimony of DWs.2 and 4

support the plaintiff's claim of being in possession and enjoyment of the

property.

19. During the cross-examination, it is suggested to P.W.1 that he

acquired Ex.A2 by misrepresenting his mother with the false promise of

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taking care of her and through fraudulent means. It is also suggested that

the 1st defendant intended to give the property to the plaintiff and her

widowed sister, but the plaintiff obtained Ex.A2 in his name only.

According to D.W.1, she became aware of Ex.A2 transaction immediately

after its execution. Subsequently, her mother informed her that she would

give rights over the property to the plaintiff after her death. Upon analyzing

the evidence, it becomes evident that the 1st defendant had no intention of

gifting the suit property to her widowed sister and the plaintiff. Instead, the

1st defendant intended to bestow the property solely to the plaintiff during

her lifetime or upon her demise.

20. The plaintiff examined P.W.2 (S.Sri Ranganayakulu) and P.W.3

(K.S.K.Dada Buda). Their evidence shows that they went to the sub

registrar's office, 1st defendant gave instructions to the scribe, and after

completion of the scribing the document, the contents of it were read over

to 1st defendant, who signed on it, and PWs.2 and 3 attested the document.

It was then registered before the Sub-Registrar. Ex.A2, in conjunction with

P.W.3's evidence, shows that he acted as an identifying witness during the

process. P.Ws.2 and 3 also testified that 1st defendant delivered Ex.A1

document to the plaintiff before leaving the Registrar's office. Notably, the

written statement does not explain how Ex.A1 came into the plaintiff's

possession. This lack of explanation raises questions about why the 1st

defendant would deliver Ex.A.1 to the plaintiff if she did not intend to settle

the property with him. The execution of the Ex.A2-Gift Deed, and its

attestation by two witnesses, is undisputed. The execution of the

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Registered Gift Deed, acceptance of the Gift and subsequent delivery of the

property complete the gift transaction. Following this, the 1st defendant is

divested of her title to the property, and the plaintiff becomes the absolute

owner.

21. It is a matter of record that 1st defendant executed a Deed of Gift or

Settlement Deed in favour of the plaintiff; the document was registered as

required under Law. There is a clear recital to the effect that the possession

of the property is delivered in favour of the plaintiff. Section 90 of the

Evidence Act prohibits any oral plea contrary to the recitals in a written

document. The acceptance of the Gift Deed is established through the

mutation of entries in the Municipal records in favour of the plaintiff.

22. Section 126 of the Transfer of Property Act 1882 gives the instances

when a gift can be revoked or suspended. It reads as under:

"The Donor and Donee may agree that on the happening of any specified event which does not depend on the will of the Donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the Donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this Section shall be deemed to affect the rights of transferees for consideration without notice."

On a bare perusal of the above Section, one can say that there

should be an agreement between the Donor and Donee that on the

happening of the particular event, which does not depend upon the will of

the Donor, the Gift shall be suspended or revoked. Otherwise, the Gift

cannot be revoked.

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23. In this regard, a reference could be placed on the judgment reported

in Palaniswamy Gounder vs Periammal1, which is as under:

21. The first question is whether Ex.A11, the settlement deed executed in favour of Chinnammal for her lifetime and then to the male heirs of the first defendant, has been validly cancelled or not. While submitting that Ex.A11 has not been given effect, it is pointed out by the counsel for the plaintiff that Appachi Gounder, the father cancelled Ex.A11 through Ex.A12 with the consent of Chinnammal, the beneficiary. As such, the settlement deed has to be construed as validly rescinded.

22. It is a settled position of Law as laid down in Menakshiammal v. Ramasamy Mudaliar (1998 (3) M.L.J. 390), Sarojini Ammal v. Krishnaveni Ammal Alias Baby Ammal (1990 (1) L.W. 599), Jayalakshmi v. Karliaperumal (1995) 98 L.W. 167) and Balasubramania P attar v. Kandasamy Pathat (1999 II M.L.J. 367) that once a gift is accepted and in the absence of power of revocation, the settlement cannot be revoked as provided under Section 126 of the Transfer of Property Act.

23. Once the settlement deed is accepted by the settlers, the settlement is complete. In the absence of the power of revocation reserved for the settler, the gift deed cannot be revoked."

24. As per Ex.A9, it is alleged that the plaintiff did not keep up his

promise to maintain 1st defendant, and he is trying to send her out of the

house. There is nothing in Ex.A2 to hold that the plaintiff agreed to look

after the welfare of 1st defendant during her lifetime.

25. In this regard, it would be profitable to refer the case of

Gangabai Vs. Chhabubai2, wherein the Hon'ble Apex Court

held that:

1 2003 S.C.C. OnLine Mad 157 2 A.I.R. 1982 SC 20

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"Section 91 of the Indian Evidence Act deals with the terms of contracts or of grants or of any other disposition of the property, which are in fact reduced to the form of a document, though not required by Law to be so reduced, and those which are required by Law to be reduced in the form of documents. It mandates that no evidence shall be given in proof of the terms of any contract, grant or other disposition of property or of such matter, except the document itself, or the secondary evidence of its contents, as is admissible under the provisions of the said Act. Section 91 is thus based on the best evidence principle and it excludes extrinsic evidence of the terms."

26. Section 92 of the Indian Evidence Act mandates that no

evidence of any oral agreement or statement shall be admitted

between the parties to any such instrument or their representatives

in interest to contradict, vary, add to or subtract from its terms.

Thus, the parties to any such instruments or their representatives

in interest are prevented from leading parol evidence of any oral

agreement or statement to contradict, vary, add to or subtract

from the terms of the contract, which are required by Law to be

reduced to a form of a document. There are, however,

certain exceptions contained in proviso (1) to (6) to the aforesaid

principle under Section 92 of the said Act. The present case is

concerned only with provisos (1) and (4) therein; hence the same

is considered.

27. In terms of proviso (1) Section 92 of the said Act, any fact

may be proved which would invalidate any document or which

would entitle any person to any decree or order relating thereto;

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such a fraud, intimidation, illegality, want of due execution, want

of capacity in any contracting party, want or failure of

consideration, or mistake in fact or Law. Thus a plea to invalidate

any document proved in accordance with Section 91 is available

where a case is made out of fraud, intimidation, illegality, want of

due execution, want of capacity in any contracting party, want or

failure of consideration, or mistake in fact or Law.

28. Proviso (4) to Section 92 of the said Act provides that where

a contract or disposition not required by Law to be reduced in

writing has been arrived at orally. The existence of any distinct

subsequent oral agreement, modifying or rescinding the said

contract or disposition can be substantiated by parol evidence,

and such evidence is admissible. There is, however, proviso to

this proviso contained in the second part of proviso (4) itself,

which does not permit leading of parol evidence for proving a

subsequent oral agreement modifying or rescinding the registered

instrument. It means that if the initial document is registered,

the modification or substitution of its terms can only be done

by another registered document.

29. This Court views that the bar created under Sections 91

and 92 of the Indian Evidence Act would operate as the

contentions raised by the 1 st defendant did not come within the

purview of the exceptions specified therein.

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30. As seen from Ex.A2, there was no express provision in the

deed for cancellation or suspension of the Gift. Section 126 of the

Transfer of Property Act did not apply to the case because there was

no agreement between the parties that the Gift should be either

suspended or revoked on the Donee's failure to maintain the Donor.

When no specific condition for revocation has been made in the

deed, the Gift cannot be revoked. The Gift under reference was not

conditional and could not be revoked. But on the other hand, the

Donor could ask for maintenance from the plaintiff. Once a gift is

complete, the same cannot be rescinded. For any reason

whatsoever, the subsequent conduct of Donee cannot be a ground

for the recession of valid Gift.

31. The question as to whether a document which is validly

executed can be cancelled at a subsequent point i n time is

considered in a decision of Fazal Ullah Khan Vs. The State

of A.P. and Ors,3 this Court held by referring to a decision of the

Full Bench of this that in Yanala Maheswari Vs. Ananthula

Sayamma4, the Full Bench took the view that the remedy for an

aggrieved party is only to file a suit, and the Registering Authority

cannot be said to have committed any illegality by registering a

deed of cancellation without the participation of both parties. That

view, however, was found fault with the Hon'ble Supreme Court in

Civil Appeal No.317 of 2007; their Lordships took the view that

3 Manu/A.P./0195/2012 4 MANU/AP/0686/2006 : 2006 (6) ALT 523 (F.B)

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once the title in respect of the property is transferred through a

transaction, the same cannot be cancelled without the participation

of both the parties. Reference was made to Rule 26 (1) (k) (i) of the

Rules framed.

32. In the context of the Law extracted above, this Court views

that the plaintiff is not supposed to cancel the gift deed

unilaterally. A perusal of Rule 26 (1) (k) (i) shows that it covers

not only the sale deeds but also the deeds of the Gift also.

33. After carefully considering the entire material on record, the trial

Court concluded that there was no fraud or misrepresentation in obtaining

Ex.A2. The testimonies of P.Ws.1 and 2 indicate that the plaintiff's father

passed away when D.W.1 was eight years old. The plaintiff was then given

the job of his father on compassionate grounds. The defendants admitted

that the plaintiff looked after their family until his marriage. The material

on record suggests the possibility of giving the property to the plaintiff to

bring the family to a stage. Notably, the 1st defendant did not file a suit

against the plaintiff seeking the cancellation of Ex.A2 on the grounds of

fraud or misrepresentation as provided under Section 31 of the Specific

Relief Act, 1963. Additionally, the evidence, particularly the admissions of

D.W2 and D.W.4, shows the plaintiff's possession of the scheduled

property as of the date of the suit. However, the defendants claimed that

the 1st defendant was in possession and enjoyment of the property at the

time of filing the suit. The 1st defendant has taken an incorrect plea

regarding her possession of the scheduled property as of the date of filing

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the suit.

34. On scrutiny of the entire record and proper consideration of the

arguments advanced by the counsel for the parties, this Court is inclined to

hold that the findings and observations of the trial court are based on the

evidence on record and well-settled principles. Given the discussion and

considering the legal aspects involved in the case, the view taken by the trial

court does not call for any interference; this Court is of the considered

opinion that the appeal is devoid of merit.

35. In the result, the appeal is dismissed, without costs, by confirming

the Decree and Judgment dated 13.11.2009 in O.S. No.342 of 2002 passed

by the learned IV Additional Senior Civil Judge, Guntur.

Consequently, miscellaneous petitions pending, if any, shall also

stand closed.

__________________________________ JUSTICE T.MALLIKARJUNA RAO Dt.27.07.2023

MS

T.M.R.,J A.S. No.577 of 2010

THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO

APPEAL SUIT NO.577 OF 2010

DATE: 27.07.2023

MS