Parvatiben Ishwarbhai vs Kashiben Chaturbhai Patel
2022 Latest Caselaw 8654 Guj

     C/SA/101/1994                                  JUDGMENT DATED: 30/09/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/SECOND APPEAL NO. 101 of 1994


FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
==========================================================
1    Whether Reporters of Local Papers may be allowed                      No
     to see the judgment ?

2    To be referred to the Reporter or not ?                              Yes

3    Whether their Lordships wish to see the fair copy                     No
     of the judgment ?

4    Whether this case involves a substantial question                     No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

==========================================================
                           PARVATIBEN ISHWARBHAI
                                   Versus
                     KASHIBEN CHATURBHAI PATEL & 8 other(s)
==========================================================
Appearance:
MR HR PRAJAPATI(674) for the Appellant(s) No. 1.1,1.2,1.3,1.4,1.5
DECEASED LITIGANT for the Respondent(s) No. 8
MR BS PATEL(602) for the Respondent(s) No. 1,3
MR CHIRAG B PATEL(3679) for the Respondent(s) No.
2,4,5,6,7,8.1,8.2,8.3,9
MRS RANJAN B PATEL(646) for the Respondent(s) No. 1,2,3,4,5,6,7,9
==========================================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                                Date : 30/09/2022

                                ORAL JUDGMENT

1. The present Second Appeal under Section 100 of the

Code of Civil Procedure is preferred by the original

defendant against the judgment and decree dated

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28.12.1993 passed by the Assistant Judge, Bharuch

in Regular Civil Appeal No.95 of 1988 reversing the

judgment and decree passed by the learned Civil

Judge, Junior Division at Bharuch in Regular Civil

Suit No.374 of 1984 dismissing the suit of the

plaintiff. It is contended that the Appellate Court has

erred in reversing the judgment and decree of the

Trial Court which has dismissed the suit of the

plaintiff. It is contended that the Appellate Court has

erred in holding that the predecessor of the original

plaintiff had no right, title or interest, to execute the

gift deed of his share in favour of the original

plaintiff. It is contended that it ought to have been

held that the plaintiff is the owner of the one half of

the suit property and he is entitled to get his share

by metes and bounds of the suit properties. It is also

contended that the Appellate Court ought to have

held that the original defendants have failed to prove

that the suit property has come to them by process

of oral partition. It is also contended that the

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Appellate Court has not properly considered the oral

evidence as well as not interpreted the gift deed at

exhibit 55. It is also contended that the Appellate

Court has failed to hold that the executor of the gift

deed Mr.Mohanlal was having right title or interest

to gift the suit property in the year 1979. It is also

contended that the Appellate Court has erroneously

held that the properties were partitioned prior to the

year 1975 between the predecessors of both the

sides and that what ever portion remains

unpartitioned was finally partitioned by family

arrangements as per exhibit 52 and as such the gift

deed by Mr.Mohanlal has no right to execute the

same.

2. It appears from the record that one Ms.Parvatiben

has filed a Civil Suit No.374 of 1984 before the Court

of Civil Judge at Bharuch contending that the

property in question was jointly belonging to her

father-in-law Mr.Mohanlal and their defendant

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Mr.Chaturbhai Amardas Patel. It is also alleged that

all are Hindu and therefore Hindu Succession

Act,1956 applies. It is contended that Mr.Mohanlal

and the defendant Mr.Chaturbhai had one half share

in the suit property. It is contended by the plaintiff

that on 14.05.1979, by a registered gift deed,

Mr.Mohanlal has given it to her and she is in

possession. It is contended that she is having equal

half share and enjoying it with the defendant. It is

contended that on the said, she has informed the

defendant for actual partition of the property. The

defendant denied to do so. On this basis, the plaintiff

has filed the suit for actual partition of the said

property and for possession of her share.

3. The defendant has resisted the suit. It appears that

during the pendency of the proceedings, the

defendant has died and therefore their heirs came to

be joined in the suit. The defendant side have filed a

written statement, at exhibit 20 wherein they have

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denied the correctness of the plaintiffs averments.

According to the defendants, the property nos.214

and 185 were mutually divided among them by oral

partition on 08.12.1975 and out of property no.185,

the plaintiff's father-in-law were given 102/33 feet

while the defendant's father was given 88/33 feet

and as the defendant's father was given less land

area from the property no.185 and with a view to

divide the equal share, property no.214 was given to

the defendant's father by mutual partition of both

these properties, the remaining property was

divided among the brothers on 08.12.1975 in

presence and by beneficiary of one Mr.Veribhai

Prabhudas and Mr.Chaturbhai and writing was also

made to that effect and after that no property was

left undivided among the brothers. According to the

defendants, the property nos.185 and 214 were

mutually divided on 08.12.1975. It is also the stand

of the defendants that merely because the suit

property runs in the joint name in records, the

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plaintiff had compelled her father-in-law to execute a

gift deed in her favour to harass the defendants. The

defendant has also stated that the plaintiff has also

served him notice and it was replied and thereafter,

the defendant has made constructions of residences

on the disputed property and at that time, the

plaintiff has not raised any objections. It is the stand

of the defendants that the suit is barred by law of

limitations and as the property no.214 was given to

the defendant by mutual partition, the donor has no

right to give a very property to the plaintiff in gift

and therefore the defendants have requested to

dismiss the suit with cost.

4. On the basis of the pleadings, the Trial Court has

framed following issues at exhibit 21:-

(i) Whether the plaintiff proves that he is the owner

of the half share of the suit property?

(ii) Whether the plaintiff is entitled to get his share

by metes and bounds?

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(iii) Whether the defendants prove that they are the

owners of the suit property as it has come to them in

the oral partition?

(iv) Whether the plaintiff proves that the ownership

of the suit property in view of the gift deed dated

14.05.1979?

(v) What order?

5. On the basis of the evidence on records and the

submissions made on behalf of both the sides,

affidavits, the Trial Court has answered the issue

nos.1, 2 and 4 in affirmative and no.3 in negative

and has ultimately decreed the suit of the plaintiff

and directed the defendants to put the plaintiff in

possession of one half share of the suit property i.e.

gabhan no.214. He has also directed the Collector,

Bharuch to divide the property in question by metes

and bounds in the equal share as decreed.

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6. Being aggrieved and dissatisfied with the judgment

of the Trial Court, the original defendants have

preferred Regular Civil Appeal No.95 of 1988 before

the District Court, Bharuch. The said appeal came to

be heard by the learned Assistant Judge, Bharuch

who by its impugned judgment and decree dated

28.12.1993 allowed the appeal and set aside the

judgment and decree passed by the learned Civil

Judge, Junior Division, Bharuch in Regular Civil Suit

No.374 of 1984 and the suit of the plaintiff ordered

to be dismissed. It appears from the impugned

judgment of the Appellate Court that while deciding

the appeal, the Appellate Court has framed the

following points of determination in para 3, thereof:-

(i) Whether the appellant proves that the judgment

of the Trial Court is illegal, arbitrary one and not at

law? Whether it requires any modification?

(ii) Whether the appellant proves that the

respondents have no right title or interest in the suit

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property?

(iii) Whether the appellant proves that the

predecessors of respondent i.e. Mr.Mohanbhai was

having no right title or interest to execute the gift

deed of his share in favour of the respondent?

(iv) Whether the appellant proves that the defendant

was not competent to file the suit?

(v) What order and decree?

7. The Appellate Court has decided the aforesaid point

no.1, 2 and 3 in affirmative and point no.4 in

negative and has ultimately passed the order of

dismissing the suit and alienate the appeal.

8. Being aggrieved with the aforesaid judgment and

decree of the First Appellate Court, the original

plaintiff has preferred the present Second Appeal.

9. The present Second Appeal has been admitted to

decide the following substantial questions of law:-

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"Whether in the facts and in the circumstances of

the case, lower Appellate Court erred in construing

and interpreting the gift deed at exhibit 55 as well

as the deed of partition at exhibit 62?"

10. For the brevity and convenience, the parties are

referred to herein as plaintiff and defendant as per

their status before the Trial Court.

11. Heard learned advocate Mr.H.R.Prajapati for

the appellant-plaintiff and learned advocate

Mr.C.B.Patel for the respondent-defendant at length.

Perused the judgment of both the Courts below as

well as material placed on record and the decisions

cited at bar.

12. Learned advocate Mr.H.R.Prajapati for the

plaintiff has submitted that the plaintiff has filed the

suit for partition for the two plots. He has submitted

that the plaintiff is daughter-in-law of the donor. He

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has stated that the land is known as gabhan and

there were two gabhans. According to him, there

was a joint possession of both the parties to both the

gabhan nos.185 and 214. He has submitted that as

per the exhibit 55 registered gift deed, the deceased

has given half portion of the gabhan land which was

of his share in the joint property to the plaintiff by

gift deed. He has submitted that the defence of the

defendant is regarding oral partition in the year

1975 and there was a writing to that effect wherein

there is no mention of gabhan no.214. He has also

submitted that according to the defendant as land of

said gabhan no.214 was already partitioned orally

between two brothers, same was not mentioned in

the writing executed for partition of the property. It

is submitted that this is not believable. According to

him, the story put up by the defendant regarding

excess land given to the plaintiff's father-in-law, for

other land is concocted one and the story of prior

oral partition is also not believable. According to

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him, the learned Trial Court has rightly not believed

the oral partition and has rightly passed the decree

in favour of the plaintiff-appellant. Learned advocate

has vehemently submitted that the First Appellate

Court has completely loss sight of this fact that there

is no evidence of any oral partition between the two

brothers regarding the disputed property. He has

also submitted that as per Section 122 of the

Transfer of Property Act, 1882, the deceased has

validly gifted the land in question in favour of the

plaintiff which is registered one. He has submitted

that even in case of gift deed, there is no need of

actual possession of immovable property given to

the donee. It is his submission that since it is

registered gift deed, there is no need of any actual

possession of property to be handed over to the

donee by the donor at the time of execution of gift

deed. He has submitted that the Appellate Court has

clearly misread the evidence on record and has

committed error of facts and law in reversing the

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decree passed in favour of the plaintiff and

dismissing the suit of the plaintiff. He has prayed to

allow the present appeal and set aside the impugned

order of the First Appellate Court and to restore the

decree of the Trial Court in favour of the plaintiff. He

has relied upon the decision of the Apex Court in

case of Renikuntla Rajamma (D) By Lrs. V/s K.

Sarwanamma reported in 2014 (9) SCC 445 for

his proposition regarding the gift deed, especially in

para nos. 6, 7, 8, 9, 10,11, 13 and 15 as under:-

"6. When the special leave petition came up

for preliminary hearing before a Division

bench of this Court, the only question which

was urged on behalf of the appellant was

whether retention of possession of the gifted

property for enjoyment by the donor during

her life time and the right to receive the

rents of the property in any way affected the

validity of the gift. That a gift deed was

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indeed executed by the donor in favour of

the donee and that the donee had accepted

the gift was not challenged and the finding

to that effect has not been assailed even

before us. So also the challenge to the gift on

the ground of fraud, misrepresentation and

undue influence, having been repelled by the

Courts below, the gift stands proved in all

material respects. All that was contended on

behalf of the appellant was that since the

donor had retained to herself the right to use

the property and to receive rents during her

life time, such a reservation or retention

rendered the gift invalid. A conditional gift

was not envisaged by the provisions of the

Transfer of Property Act, argued the learned

counsel of the appellant. Inasmuch as the

gift deed failed to transfer, title, possession

and the right to deal with the property in

absolute terms in favour of the donee the

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same was no gift in the eyes of law,

contended learned counsel for the appellant.

Reliance in support of that submission was

placed by the learned counsel upon the

decision of this Court in Naramadaben

Maganlal Thakker v. Pranjivandas Maganlal

Thakker and Ors. (1997) 2 SCC 255.

7. On behalf of the respondents it was per contra argued that the validity of the gift having been upheld by the Courts below, the only question that remains to be examined was whether a gift which reserved a life interest for the donor could be said to be invalid. That question was, according to the learned counsel, squarely answered in favour of the respondents by the decisions of this Court in K. Balakrishnan v. K. Kamalam & Ors. (2004) 1 SCC 581.

8. Reliance was also placed by the learned counsel upon Bhagwan Prasad & Anr. v. Harisingh AIR 1925 Nagpur 199, Revappa v.

Madhava Rao AIR 1960 Mysore 97 and Tirath Singh v. Manmohan AIR 1981 Punj. &

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Haryana 174 in support of the submission that transfer of possession was a condition under the Hindu Law for a valid gift which Rule of Hindu Law stood superseded by Section 123 of The Transfer of Property Act.

9. Chapter VII of the Transfer of Property Act, 1882 deals with gifts generally and, inter alia, provides for the mode of making gifts. Section 122 of the Act defines 'gift' as a transfer of certain existing movable or immovable 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. In order to constitute a valid gift, acceptance must, according to this provision, be made during the life time of the donor and while he is still capable of giving. It stipulates that a gift is void if the donee dies before acceptance.

10. Section 123 regulates mode of making a gift and, inter alia, provides that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two

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witnesses. In the case of movable property, transfer either by a registered instrument signed as aforesaid or by delivery is valid under Section 123. Section 123 may at this stage be gainfully extracted:

"123. Transfer how effected - For the making of a gift of immoveable 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 moveable 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."

11. Sections 124 to 129 which are the remaining provisions that comprise Chapter VII deal with matters like gift of existing and future property, gift made to several persons of whom one does not accept, suspension and revocation of a gift, and onerous gifts

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including effect of non-acceptance by the donee of any obligation arising thereunder. These provisions do not concern us for the present. All that is important for the disposal of the case at hand is a careful reading of Section 123 (supra) which leaves no manner of doubt that a gift of immovable property can be made by a registered instrument singed by or on behalf of the donor and attested by at least two witnesses. When read with Section 122 of the Act, a gift made by a registered instrument duly signed by or on behalf of the donor and attested by at least two witnesses is valid, if the same is accepted by or on behalf of the donee. That such acceptance must be given during the life time of the donor and while he is still capable of giving is evident from a plain reading of Section 122 of the Act. A conjoint reading of Sections 122 and 123 of the Act makes it abundantly clear 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 Transfer of Property Act, 1882. Judicial pronouncements as to the

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true and correct interpretation of Section 123 of the T.P. Act have for a fairly long period held that Section 123 of the Act supersedes the rule of Hindu Law if there was any making delivery of possession an essential condition for the completion of a valid gift. A full bench comprising five Hon'ble Judges of the High Court of Allahabad has in Lallu Singh v. Gur Narain and Ors. AIR 1922 All. 467 referred to several such decisions in which the provisions of Section 123 have been interpreted to be overruling the Hindu Law requirement of delivery of possession as a condition for making of a valid gift. This is evident from the following passage from the above decision where the High Court repelled in no uncertain terms the contention that Section 123 of the T.P. Act merely added one more requirement of law namely attestation and registration of a gift deed to what was already enjoined by the Hindu Law and that Section 123 did not mean that where there was a registered instrument duly signed and attested, other requirements of Hindu Law stood dispensed with:

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"7. Dr. Katju, on behalf of the appellant, has strongly contended that by Section 123 it was merely intended to add one more requirement of law, namely, that of attestation and registration, to those enjoined by the Hindu Law, and that the Section did not mean that where there was a registered document duly signed and attested, all the other requirements of Hindu Law were dispensed with. Section 123 has, however, been interpreted by all the High Courts continuously for a vary long period in the way first indicated, and there is now a uniform consensus of opinion that the effect of Section 123 is to supersede the rule of Hindu Law, if there was any, for making the delivery of possession absolutely essential for the completion of the gift. We may only refer to a few cases for the sake of reference, Dharmodas v. Nistarini Dasi (1887) 14 Cal. 446, Ballbhadra v. Bhowani (1907) 34 Cal. 853, Alabi Koya v. Mussa Koya (1901) 24 Mad. 513, Mudhav Rao Moreshvar v. Kashi Bai (1909) 34 Bom. 287, Manbhari v. Naunidh (1881) 4 All. 40, Balmakund v. Bhagwandas (1894) 16 All.

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185, and Phulchand v. Lakkhu (1903) 25 All.

358. Where the terms of a Statute or Ordinance are clear, then even a long and uniform course of judicial interpretation of it may be overruled, if it is contrary to the clear meaning of the enactment but where such is not the case, then it is our duty to accept the interpretation so often and so long put upon the Statute by the Courts, and not to disturb those decisions, vide the remarks of their Lordships decisions, of the Privy Council in the case of Tricomdas Cooverji Bhoja v. Sri Sri Gopinath Thakur AIR 1916 P.C. 182. We are, therefore, clearly of opinion that it must now be accepted that the provisions of Section 123 do away with the necessity for the delivery of possession, even if it was required by the strict Hindu Law."

13. A plain reading of the above made it manifest that the "rules of Hindu law" and "Buddhist Law" were to remain unaffected by Chapter VII except to the extent such rules were in conflict with Section 123 of the Transfer of Property Act. This clearly implied

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that Section 123 had an overriding effect on the rules of Hindu Law pertaining to gift including the rule that required possession of the property gifted to be given to the donee. The decisions of the High Courts referred to in the passage extracted above have consistently taken the view that Section 123 supersedes the rules of Hindu law which may have required delivery of possession as an essential condition for the completion of a gift. The correctness of that statement of law cannot be questioned. The language employed in Section 129 before its amendment was clear enough to give Section 123 an overriding effect vis-a-vis rules of Hindu Law. Section 129 was amended by Act No. 20 of 1929 whereby the words "or, save as provided by Section 123, any rule of Hindu or Buddhist Law" have been deleted. Section 129 of the T.P. Act today reads as under:

"129. Saving of donations mortis causa and Muhammadan Law - Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law."

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15. The matter can be viewed from yet

another angle. Section 123 of the T.P. Act is

in two parts. The first part deals with gifts of

immovable property while the second part

deals with gifts of movable property. Insofar

as the gifts of immovable property are

concerned, Section 123 makes transfer by a

registered instrument mandatory. This is

evident from the use of word "transfer must

be effected" used by Parliament in so far as

immovable property is concerned. In

contradiction to that requirement the second

part of Section 123 dealing with gifts of

movable property, simply requires that gift of

movable property may be effected either by a

registered instrument signed as aforesaid or

"by delivery". The difference in the two

provisions lies in the fact that in so far as the

transfer of movable property by way of gift is

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concerned the same can be effected by a

registered instrument or by delivery. Such

transfer in the case of immovable property

no doubt requires a registered instrument

but the provision does not make delivery of

possession of the immovable property gifted

as an additional requirement for the gift to

be valid and effective. If the intention of the

legislature was to make delivery of

possession of the property gifted also as a

condition precedent for a valid gift, the

provision could and indeed would have

specifically said so. Absence of any such

requirement can only lead us to the

conclusion that delivery of possession is not

an essential prerequisite for the making of a

valid gift in the case of immovable property."

13. Per contra, learned advocate Mr.Patel for the

respondent-defendant has supported the impugned

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judgment of the Appellate Court and has submitted

that the partition deed at exhibit 62 dated

08.12.1975, has not been challenged by the plaintiff

in any manner. He has submitted that the family

arrangement was already made in the year 1975 i.e.

prior to the alleged gift deed. He has also submitted

that the notice issued by the plaintiff has already

been replied by the defendant in the year 1979. He

has also submitted that even in the year 1981, the

panchayat has permitted construction over the land

to the defendant and it was never objected by the

plaintiff. He has also stated that even in the year

1981, there was a construction made of three storey

building and this was erected with the permission of

panchayat. He has also submitted that thereafter

suit came to be filed in the year 1984 without

challenging the family arrangement made in the

year 1975. He has submitted that since there was

already family arrangement made in the year 1975,

now the plaintiff cannot claim any one half share in

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the property. He has submitted that the plaintiff is

relying upon the gift deed of 1979 whereas the

entire land was in possession of the defendants and

on that basis, he has got the necessary permission of

construction in the year 1981 and the construction

was made therein by the defendants. He has also

submitted that father-in-law of the plaintiff was

never in possession of the land no.214 after the oral

partition in the year 1975. He has submitted that the

earlier decision relied upon by the learned advocate

Mr.Prajapati of (2014) 9 SCC 445 has been recently

considered by the Hon'ble Apex Court in the

decision reported in (2021) 3 SCC 459 and earlier

decision has not been endorsed by the Apex Court in

the recent decisions. Learned advocate Mr.Prajapati

has also relied upon the decision reported in (2020)

9 SCC 706. He has prayed to dismiss the appeal and

has submitted that the judgment of the Trial Court

was perverse one and therefore the First Appellate

Court has rightly passed the impugned order

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allowing the appeal of the defendant respondent and

dismissed the suit of the plaintiff.

14. In rejoinder, Mr.Prajapati has submitted that

the as there was joint possession of both, there is no

need of seeking any possession at the relevant point

of time. He has prayed to allow the present appeal.

(i) The Apex Court in case of Ravinder Kaur

Grewal And Others Vs. Manjit Kaur and Others

reported in (2020) 9 SCC 706 in para 25, 26, 28

and 30 held as under:-

"25. Be that as it may, the High Court has

clearly misapplied the dictum in the relied upon

decisions. The settled legal position is that

when by virtue of a family settlement or

arrangement, members of a family descending

from a common ancestor or a near relation

seek to sink their differences and disputes,

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settle and resolve their conflicting claims or

disputed titles once and for all in order to buy

peace of mind and bring about complete

harmony and goodwill in the family, such

arrangement ought to be governed by a special

equity peculiar to them and would be enforced

if honestly made. The object of such

arrangement is to protect the family from long

drawn litigation or perpetual strives which mar

the unity and solidarity of the family and create

hatred and bad blood between the various

members of the family, as observed in Kale

(supra). In the said reported decision, a three-

judge Bench of this Court had observed thus:-

"9. ..... A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice.

That is why the term "family" has to be

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understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. ....."

26. In para 10 of the said decision, the Court has delineated the contours of essentials of a family settlement as follows:- "10. In other words to put the binding effect and the

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essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: "(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary; (4) It is wellsettled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2)of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in

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favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."

28. While rejecting the argument regarding inapplicability of principle of estoppel, the Court observed as follows: -

"38. ... Assuming, however, that the said document was compulsorily registrable the courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it."

And in paragraph 42, the Court observed as follows:-

42. ..... In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete

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estoppel against Respondents Nos. 4 and 5. Respondent No. 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases."

30. A priori, we have no hesitation in affirming

the conclusion reached by the first appellate

Court that the document Exhibit P6 was

nothing but a memorandum of a family

settlement. The established facts and

circumstances clearly establish that a family

settlement was arrived at in 1970 and also

acted upon by the concerned parties. That

finding of fact recorded by the first appellate

Court being unexceptionable, it must follow

that the document Exhibit P6 was merely a

memorandum of a family settlement so arrived

at. Resultantly, it was not required to be

registered and in any case, keeping in mind the

settled legal position, the contesting

defendants were estopped from resiling from

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the stated arrangement in the subject

memorandum, which had recorded the

settlement terms arrived at in the past and

even acted upon relating to all the existing or

future disputes qua the subject property

amongst the (signatories) family members

despite absence of antecedent title to the

concerned property."

(ii) The Apex Court in case of Daulat Singh (Dead)

through Legal Representatives Vs. State of

Rajasthan And Others reported in (2021) 3 SCC

459, in para 24, 25, 26 AND 30 has held as under:-

"24. At the outset, it ought to be noted that

Section 122 of the Transfer of Property Act,

1882 neither defines acceptance, nor does it

prescribe any particular mode for accepting the

gift. The word "acceptance" is defined as "is

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the receipt of a thing offered by another with

an intention to retain it, as acceptance of a

gift." (See Ramanatha P. Aiyar: The Law

Lexicon, 2nd Edn., page 19).

25. The aforesaid fact can be ascertained from the surrounding circumstances such as taking into possession the property by the donee or by being in the possession of the gift deed itself. The only requirement stipulated here is that, the acceptance of the gift must be effectuated within the lifetime of the donor itself.

26. Hence, being an act of receiving willingly, acceptance can be inferred by the implied conduct of the donee. The aforesaid position has been reiterated by this Court in the case of Asokan v. Lakshmikutty, (2007) 13 SCC 210

14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must,

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however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance.

30. Therefore, the abovementioned

circumstances clearly indicate that there was

an acceptance of the gift by the donee during

the lifetime of the donor. Not only the gift deed

in itself contained recitals about transfer of

possession, but also the mutation records and

the statements of the both the donor and donee

indicate that, there has been an acceptance of

the gift by conduct."

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15. Having considered the submissions made on

behalf of both the sides coupled with the material

placed on record and the decisions cited at bar. It is

found that there is no dispute of relationship

between the parties. There is also no dispute

regarding the factum of two properties being 185

and 214 of gabhan land. The dispute is revolving

upon the facts as to whether there was prior oral

partition between the parties in respect of the

properties between the father-in-law of the plaintiffs

and defendants. If the factum of prior partition

between the parties are proved then there would be

no question of gift of property by the father-in-law to

the plaintiff subsequently.

16. In this regard, on perusal of the evidence on

record it transpires that the plaintiff herself has not

come into the witness box, in her behalf one

Harmanbhai Chaturbhai and Chandubhai Asavbhai

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have been examined. On perusal of the evidence of

Ishwar Mohan at exhibit 53 reveals that he has

admitted that his wife-plaintiff is mentally sick and

suffering from hysteria since last 10 years.

According to this witness, his wife was admitted in

the mental hospital at Baroda as well as Surat also.

However, he has stated that at the time of filing of

the suit she was not lunatic on the date of filing of

the suit. However, whether the plaintiff was lunatic

or not is not a question to be decided in the present

appeal as the question posed for determination in

this appeal is regarding the consideration and

interpreted the gift deed at exhibit 55 as well as

deed of partition at exhibit 62.

17. In this regard, it reveals from the record that

the case of the plaintiff is that her father-in-law

Mohanbhai and predecessor of Chaturbhai were

having equal share in the property known as gabhan

no.214 admeasuring 748 squareyards situated at

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village Vagra. Against this, the stand of the

defendant is that gabhan no.214 came to the share

of the deceased defendant after partition. In this

regard, on perusal of the evidence of Harman

Chaturbhai at exhibit 67, reveals that the original

owner of the suit gabhan was Amidas Kalidas who

was having two sons Monahbhai and Chaturbhai

admittedly, Mohanbhai was father-in-law of the

plaintiff while Chaturbhai was the predecessor of the

defendants. Witness has also stated that

subsequently partition was to be placed between the

two brothers Mohan and Chaturbhai in the year

1975 to substantiate this stand, the partition deed

has been produced at exhibit 62. It is on the plain

paper. It appears that it is a family arrangement.

This document shows that there were some clauses

subsequent to the partition and further

arrangements were made pertaining to

unpartitioned properties. This family arrangement

took place on 08.12.1975, the same has been singed

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by the deceased Chaturbhai as well as the plaintiff

along with the attesting witness. Even the evidence

of Ishwar Mohanbhai at exhibit 53 reveals that the

said gabhan was partitioned between 1975 and

therefore it was not referred to in exhibit 62.

18. It also appears from the record that the plaintiff

has heavily relied upon the gift deed at exhibit 55,

which is made by the father-in-law of the plaintiff in

favour of the plaintiff. This gift deed is dated

14.05.1979. Now, it appears from exhibit 73 that the

gram panchayat allowed the deceased Chaturbhai to

construct the house in his own property on

06.01.1981 and exhibit 75 is a certificate to that

effect and it is in the name of Kashiben Chaturbhai

and others. It also reveals from the exhibit 72 that

Mr.Chaturbhai sought permission to construct a new

house on 04.12.1980.

19. On perusal of the exhibit 62, it clearly reveals

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that it was a family arrangement only for the

properties which remained unpartitioned between

the parties. Under these circumstances, there might

be earlier oral partition between the parties before

the date of this document i.e. 08.12.1975. As

observed hereinabove, even the plaintiff witness at

exhibit 53 has admitted in his cross-examination that

the suit gabhan was partitioned prior to the year

1975. Thus, when the alleged gift deed at exhibit 5,

which was executed on 14.05.1979, there was no

any proprietory right pertaining to the suit gabhan

in favour of the father-in-law of the plaintiff. Under

these circumstances, on conjoint reading of both the

documents coupled with the admission on the part of

the plaintiff witness, it clearly transpires that when

the alleged gift deed came to be executed by the

father-in-law, exhibit 55 dated 14.05.1979, in favour

of the plaintiff, in reality he had no any right title

over the suit gabhan land as prior to that there was

a partition of the property.

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20. It is the stand of the plaintiff that by the virtue

of gift deed, she was in possession of the suit gabhan

and has one half share thereof. Even, if the legal

aspects that there is no need of handing over of the

property where the registered gift deed is executed

in favour of the donee is accepted, the facts and

circumstances of this Case, clearly reveals that even

on the date of execution of such gift deed, deceased

Mohanbhai was not having any right title or even

possession of the suit gabhan land. Had really, the

plaintiff was in possession of the suit gabhan on the

basis of the gift deed as alleged by her, when the

panchayat granted permission of construction of

house in favour of deceased Chaturbhai, she would

have definitely objected to, and have taken recourse

thereof. However, no such sought of thing has

happened in the matter. It appears from the records

that the defendant is in possession of the land in

question and has also constructed a house over it.

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21. On perusal of the entire material placed on

record and the impugned judgment of the Appellate

Court, it clearly transpires that the Appellate Court

has not committed any error of facts and law in

interpreting the documents of gift deed at exhibit 55

as well as family arrangement deed at exhibit 62.

The Appearance Court has properly considered the

entire facts and circumstances of the case and has

properly passed the impugned judgment and decree

and has rightly dismissed the suit of the plaintiff as

the donor i.e. father-in-law of the plaintiff had no

right title or interest in the property at the time of

executing gift deed in favour of the plaintiff.

22. Therefore, in view of the above discussions, my

answer to the substantial question posed in para 9

above is in negative.

23. In view of the above discussions, I pass the

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following final order in the interest of justice.

ORDER

(i) The present Second Appeal stands dismissed.

(ii) Parties are directed to bear respective cost of

this appeal.

(iii) Decree to be drawn accordingly in this

appeal.

(iv) Along with the copy of this judgment and

decree, Records and Proceedings be sent back to

the Trial Court.

(DR. A. P. THAKER, J) URIL RANA