Bombay High Court
Dinesh S/O Vasant Dhore vs Ravindra S/O Shankarrao Patil & 5 ... on 19 December, 2017
Bench: A.S. Chandurkar
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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
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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
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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
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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,
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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.
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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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