Swamy Vivekananda Swamy ... vs S.G. Rayappa Raju
2023 Latest Caselaw 1636 Tel

       HONOURABLE SMT. JUSTICE P.SREE SUDHA

                APPEAL SUIT No.1005 of 2010

JUDGMENT:

This appeal is filed by defendant No.2 aggrieved by

the judgment and decree, dated 30.10.2010, passed in

O.S.No.235 of 2003 on the file of the VI-Additional Senior

Civil Judge (FTC), Medchal, Ranga Reddy District.

Appellant herein is defendant No.2; respondent No.1

herein is plaintiff and respondent No. 2 herein is defendant

No.1 in the suit. The parties will be referred to as arrayed

before the trial Court.

The backdrop of the case leading to filing of this

appeal is as under:

The plaintiff filed the suit for declaration of gift deed

dated 02.01.1999 executed by the 1st defendant in favour of

the 2nd defendant is nonest in law and also sought for a

direction to defendants 1 and 2 to deliver vacant possession

of the suit schedule property to the plaintiff.

PSSJ A.S.No.1005 of 2010

Brief averments of the plaint are as under:

The plaintiff is the absolute owner and possessor of

agricultural land admeasuring Ac.3.00 in Sy.No.307 (Part)

situated at Gajula Ramaram village, Qutbullapur Mandal,

Ranga Reddy District. As the plaintiff was away from the

village and not able to look after the suit schedule property,

he executed a registered power of attorney in favour of the

1st defendant vide document No.1318/91 dated 24.07.1991

authorising him to sell, lease, transfer by way of exchange

or mortgage whole or any part of the said property and to

receive consideration thereof on behalf of the plaintiff.

After execution of the said power of attorney, the 1st

defendant was looking after the suit schedule property and

the plaintiff has been enjoying the usufruct earned on the

said property till October 1998 and thereafter the 1st

defendant did not account for the income earned from the

property in spite of repeated requests. After waiting for

more than two years, the plaintiff had issued a notice dated PSSJ A.S.No.1005 of 2010

22.08.2001 to the 1st defendant informing him about

cancellation of said power of attorney and that the 1st

defendant received the same, but failed to give any reply.

Subsequently, the plaintiff proceeded to cancel the power of

attorney by execution of a registered cancellation deed on

22.12.2001 and in the meanwhile, the plaintiff had got

publication issued in local newspaper informing the public

about issuance of notice of cancellation upon the 1st

defendant. In response to the said publication, the 1st

defendant sent a reply dated 13.11.2001 claiming that the

property has been settled long back and transferred in

favour of third party's name and as such cancellation of

power of attorney is of no consequence. It is further stated

that the 1st defendant has in fact transferred the property in

favour of the 2nd defendant by executing a registered deed

of gift on 02.01.1999. After realizing that the 1st defendant

played fraud, the plaintiff also filed a private complaint

against him before the Additional Judicial Magistrate of PSSJ A.S.No.1005 of 2010

Frist Class, Rangareddy District, for the offences punishable

under Sections 406, 407 and 420 of I.P.C. and it is pending

adjudication. It is further stated that the transfer in

pursuance of registered deed of gift dated 02.01.1999

executed in favour of the 2nd defendant by the 1st defendant

is invalid and nonest in law as the 1st defendant did not

have any authority to execute the same and as such the 2nd

defendant is precluded from claiming any rights in

pursuance of the said gift deed.

In the written statement filed by defendant No.1, it is

contended that the 2nd defendant was shown as being

represented by its President late K.Shankar Yadav, who

died on 08.09.1999, and as such the suit against the 2nd

defendant as being represented by a dead person is nonest

and unsustainable. The suit property absolutely belongs to

late K.Shankar Yadav under whom the plaintiff was

working as a servant. Late Shankar Yadav had acquired an

extent of Ac.2.00 of land forming part of Sy.No.307 to which PSSJ A.S.No.1005 of 2010

the sub division No.307/e was assigned by the revenue

authorities and it was nominally put in the name of

Smt.Venkatamma wife of late Muthyalu. Similarly, late

K.Shankar Yadav had acquired another extent of land

admeasuring Ac.2.00 forming part of Sy.No.307 and

nominally put in the name of Vasudev Goud. Thereafter,

late K.Shankar Yadav got executed irrevocable registered

G.P.As. by plaintiff, Venkatamma and Vasudev Goud, in

respect of the said properties in favour of the 1st defendant

in whom he had full trust and confidence. In fact, the suit

schedule property was acquired by late K.Shankar Yadav

during his life time in the name of plaintiff and immediately

got executed irrevocable GPA by the plaintiff in favour of

defendant No.1. In respect of all these three properties, late

K.Shankar Yadav got registered irrevocable GPAs in favour

of defendant No.1 with instructions that all these aforesaid

properties should be gifted in favour of the 2nd defendant

trust for the purpose of construction of educational PSSJ A.S.No.1005 of 2010

institutions for the public benefit. As per the instructions of

late K.Shankar Yadav, three registered gift deeds were

executed in favour of the 2nd defendant in respect of the

lands held by plaintiff, Venkatamma and Vasudev Goud

through the 1st defendant as a GPA holder. Thus, the 2nd

defendant by virtue of registered gift deed dated 02.01.1999

has become the absolute and exclusive owner and possessor

of total extent of Ac.7.00 and the said land also got mutated

in the name of the 2nd defendant in the revenue records.

Thus, the suit property was kept nominally in the name of

plaintiff who was immediately required to execute

registered irrevocable GPA in favour of the 1st defendant as

was done in the case of said Venkatamma and Vasudev

Goud. The 2nd defendant has been in continuous possession

and enjoyment of the same in its own right as absolute

owner by paying land revenue. The plaintiff was never in

the custody of any title deeds or records relating to the suit

property nor was he ever in possession of the suit property PSSJ A.S.No.1005 of 2010

or any part thereof. In fact, the plaintiff did not pay any

consideration for the suit lands to any one at any point of

time. It is only taking advantage of death of K.Shankar

Yadav, the plaintiff has entertained an evil idea to lay a false

claim to the suit property. The question of the 1st defendant

rendering accounts to the plaintiff for the income earned

from the suit property does not arise. Since no income was

earned, the plaintiff had nothing to do with the suit

property. It is further contended that the suit property was

already transferred by way of a valid gift deed by the 1st

defendant in favour of the 2nd defendant, no useful purpose

could be served by cancelling the GPA by the plaintiff. The

gift deed is perfectly legal, valid and binding on the plaintiff

and there is no clog on the alleged ownership of the plaintiff

in respect of the suit schedule property since he has no title

over the same. Hence, it is requested to dismiss the suit

with exemplary costs.

PSSJ A.S.No.1005 of 2010

Defendant No.2 also filed a written statement on

similar lines with that of written statement of defendant

No.1, in which it is contended that the plaintiff executed a

registered irrevocable GPA in favour of the 1st defendant on

24.07.1991 giving authorisation to the 1st defendant to do all

transactions and as such the 1st defendant executed a

registered gift deed on 02.01.1999 in favour of the 2nd

defendant. The plaintiff gave notice to the 1st defendant on

22.08.2001 informing that the said GPA stands cancelled. It

is further stated that after lapse of 2 years 7 months, the

plaintiff issued the notice of cancellation of GPA to the 1st

defendant and that the gift deed executed in favour of the

2nd defendant trust is a valid gift and the plaintiff has no

right to claim the said property. Once the property was

executed in favour of the 2nd defendant trust, it cannot be

transferred deviating the Trust Deed. It is further stated that

the plaintiff never paid tax to the concerned department and

that the 2nd defendant had paid all the taxes in the name of PSSJ A.S.No.1005 of 2010

the said trust and, therefore, requested the Court to dismiss

the suit with exemplary costs.

During trial, the plaintiff examined himself as P.W.1

and got marked Exs.A-1 to A-9. On behalf of the

defendants, D.Ws.1 and 2 were examined and got marked

Ex.B1 to B19.

The trial Court, after considering the entire evidence,

both oral and documentary, and the respective contentions

of the learned Counsel appearing on either side, decreed the

suit against defendant No.2 by declaring that the gift deed

bearing document No.42/99 dated 02.01.1999 executed by

defendant No.1 in favour of defendant No.2 is nonest in law

and defendant No.2 is directed to deliver the vacant

possession of the suit schedule property to the plaintiff

within two months from the date of decree, failing which

the plaintiff is at liberty to recover possession of the suit

land from defendant No.2 by following due process of law.

Suit against defendant No.1 was dismissed as abated.

PSSJ A.S.No.1005 of 2010

Aggrieved by the aforesaid judgment and decree of

the trial Court, the present appeal has been preferred by

defendant No.2, inter alia, contending that the 2nd defendant

is a registered Educational Trust, which is a public Trust,

within the meaning of Section 2 of Act 30/87 and as such

the suit is not maintainable against it. If any relief is to be

claimed against the 2nd defendant, the same can be claimed

under the provisions of Act 30/87, but not before the Civil

Court and thus the judgment and decree is void. It is

contended that the 1st defendant died during the pendency

of the suit and that no legal representatives were brought on

record and, therefore, the suit itself is abated as no

declaration can be granted against a dead person. It is

further contended that the plaintiff executed a registered

irrevocable GPA in favour of the 1st defendant permitting

him to transfer the land in favour of third parties and

accordingly the 1st defendant executed a registered gift deed

dated 02.01.1999 transferring the suit schedule property in PSSJ A.S.No.1005 of 2010

favour of the 2nd defendant in exercise of powers of the said

GPA, however, the suit was filed much later in the year

2003 seeking declaration that the gift deed is void and as

such the suit is barred by limitation. The 1st defendant has

not led any oral or documentary evidence in support of the

claim and, therefore, requested the Court to allow the

appeal by setting aside the judgment and decree of the trial

Court.

Heard the learned Counsel appearing on either side

and perused the entire material available on record.

The plaintiff, who was examined as P.W1, filed his

chief-examination affidavit reiterating the contents of the

plaint. In his cross-examination, he stated that he is a Post

Graduate in Engineering and was running a Chemical

factory at Jeedimetla during the period 1980-1990 and he

was effected with paralysis in the year 1991 and was

suffered for 1 ½ year. He purchased the suit schedule land PSSJ A.S.No.1005 of 2010

from one Reddy, but he does not remember his complete

name. His vendor sold the suit land by executing a

registered sale deed in his favour and he filed the certified

copy of the registered sale deed as the original sale deed is

in the custody of the GPA holder. He further stated that he

has not filed any document to prove that the suit schedule

land was purchased by him. He had a letter issued by the

Revenue Divisional Officer to substantiate the fact that he

has purchased the suit schedule land, but he did not file the

said letter. Though he stated that he has purchased the suit

schedule land by paying the net cash in three instalments,

he did not file the receipts to substantiate the same. He

further stated that he has paid the sale consideration

through one Shankar Yadav. He has purchased the land

admeasuring Ac.3.00 in Sy.No.307 and it was situated

within the limits of Bachupalli village and Gajula Ramaram

of Qutbullapur Mandal, but he does not remember its

boundaries. The land was a grazing land and there were PSSJ A.S.No.1005 of 2010

boulders and bushes in the said land. The said survey

number consists of Ac.70.00 of land and 16 to 20 persons

purchased the said land at the instance of said Shankar

Yadav with a view to develop the land collectively. He

further stated that he has executed the GPA in favour of one

Mallesh (Defendant No.1) at the instance of said Shankar

Yadav with a direction to develop the land. P.W.1 further

admitted that he did not pay the requisite land revenue in

respect of the suit schedule land as the GPA holder assured

that he would pay the same. He admitted that the patta of

the suit land is in his name, but the sale deed in respect of

the suit schedule land is not in his name. The Revenue

Divisional Officer had issued the patta in his name on the

basis of the application filed by him. He further admitted

that he had given a press note in the daily newspaper

cancelling the GPA, to which the 1st defendant gave a reply.

PSSJ A.S.No.1005 of 2010

One B.Shyamsunder, one of the Founder Trustees of

the 2nd defendant Trust, was examined as D.W.1, and he

stated in the cross-examination that he had filed documents

to show that one Shankar Yadav acquired the suit schedule

property, however the name of said Shankar Yadav was not

appearing on Ex.B10-Occupancy Rights Certificate issued

by the Revenue Divisional Officer in favour of the plaintiff.

He admitted in his cross-examination that the said Shankar

Yadav has not acquired any title over the suit schedule

property as per Ex.B10. He further admitted that except

Ex.B10, no other document was filed by him to show the

title of the said Shankar Yadav. He further admitted that he

did not file any document to show that Ex.B5-GPA was

executed on the instructions of Shankar Yadav, but there

were oral instructions to the plaintiff as he was an employee

of the said Shankar Yadav. D.W.1 stated that the Trust was

created and registered in the year 1997. He admitted that as

per Ex.B5, the plaintiff is the owner and possessor of the suit PSSJ A.S.No.1005 of 2010

schedule property and that as per clause No.1 of Ex.B5, the

1st defendant was authorized to sell, lease, transfer by way

of exchange and mortgage the suit schedule property.

D.W.1 in his further cross-examination admitted that there

is no recital in Ex.B5 empowering the 1st defendant to gift

the property mentioned in it and that clause (1) of Ex.B5

states that he shall only sell and lease the property.

D.W.2, who is one of the Founder Trustees of

defendant No.2-Trust, stated that the real owner of the suit

schedule property was late K.Shankar Yadav, who is the

founder trustee of the said Trust, and he died on 08.09.1999.

He further stated that at the time of execution of the gift

deed, irrevocable GPA in favour of the 1st defendant is in

existence and the gift deed dated 02.01.1999 is a valid gift

and that the plaintiff has no right, title or interest over the

suit schedule property. He stated that in the case of Trust

property, the Benami transactions (Prohibition) Act, 1988 PSSJ A.S.No.1005 of 2010

does not apply. In the cross-examination, he stated that the

Trust Deed was registered on 01.07.1997 and that the

plaintiff is not a member of the Trust. He further stated that

he is aware of only Ex.B7 transaction.

The Point that arises for consideration is whether the

judgment of the trial Court is on proper appreciation of

facts or not?

During the pendency of the suit, defendant No.1 was

expired and his legal heirs were not brought on record and

hence the suit against defendant No.1 was treated as abated.

Though the plaintiff, who was examined as P.W.1,

stated in his cross-examination that he purchased the suit

schedule property in the year 1991, he has not filed any sale

deed relating to the said land and not even filed any receipt

regarding his payment in three instalments and that he has

not paid tax at any point of time. However, he stated that

the patta of the suit land is in his name. D.W.1, who was PSSJ A.S.No.1005 of 2010

one of the founder trustees of the 2nd defendant Trust, stated

that originally the suit land was acquired by one K.Shankar

Yadav in the name of the plaintiff, so also he acquired some

more lands and nominally put in the names of Venkatamma

and Vasudev Goud and instructed all of them to execute

irrevocable G.P.As in favour of the 1st defendant and

accordingly they executed Exs.B3 to B5/irrevocable GPAs in

favour of the 1st defendant and thereafter they executed

Exs.B7 to B9-Gift Deeds to an extent of Ac.7.00 of land in

favour of the 2nd defendant Trust through the 1st defendant

as a GPA holder. He further stated that as the plaintiff was

an employee of said K.Shankar Yadav, he raised his voice

only after the death of said K.Shankar Yadav and as such he

is not entitled for cancellation of gift deed and for recovery

of possession of the suit schedule property. However, he

admitted in his cross-examination that as per Ex.B5, the

plaintiff is the owner and possessor of the suit schedule

property.

PSSJ A.S.No.1005 of 2010

Learned Counsel for the 1st respondent/plaintiff

mainly contended that even a perusal of Ex.A1 and

Ex.B5/irrevocable G.P.A, dated 24.07.1991. shows that the

plaintiff authorized D.Mallesh (1st defendant) only to sell,

lease, transfer by way of exchange or mortgage whole or

any part of the suit property and to receive the

consideration thereof on behalf of the plaintiff. The plaintiff

never authorized the 1st defendant to gift the property.

However, the 1st defendant transferred the property in

favour of the 2nd respondent by executing a Gift Deed dated

02.01.1999 under Ex.A8 and as such Ex.A8/Gift Deed is

invalid and nonest in law as the 1st defendant did not have

any authority to execute the same. On the other hand, the

learned Counsel for the appellant/2nd defendant contended

that as per clause (2) and (10) of Ex.B5/irrevocable GPA, the

1st defendant was authorized to execute any other deeds,

which includes Gift deeds and for gifting the property there

should be donor and donee and it should be out of love and PSSJ A.S.No.1005 of 2010

affection, but not for consideration. The 1st defendant stated

that he gifted the property in favour of the 2nd defendant at

the instance of the said K.Shankar Yadav as per the

irrevocable GPA. Admittedly, there is no consideration.

From a perusal of Ex.A1 and Ex.B5-G.P.A, it is clear

that the 1st defendant was not authorized to gift the

property in favour of the 2nd defendant. Even as per clause

(12) of the GPA, the plaintiff has to ratify the act of the 1st

defendant. But, in this case, the plaintiff disputed the gift

deed and he never ratified or confirmed the act of the 1st

defendant and as such the gift deed executed by the 1st

defendant in favour of the 2nd respondent is not valid.

Merely because the nomenclature was shown as irrevocable

GPA, it cannot be said that it can never be revoked as the 1st

defendant acted against the interest of the plaintiff and not

in accordance with the terms and conditions of the GPA.

The plaintiff is always at liberty to revoke the same and as PSSJ A.S.No.1005 of 2010

such he cancelled the Power of Attorney by executing

Ex.A5-registered cancellation deed and also got issued

publication in local newspaper under Ex.A6. Thus, the gift

deed dated 02.01.1999 executed by the 1st defendant, as a

GPA holder, in favour of the 2nd defendant is nonest in law.

Merely because Venkatamma and Vasudev Goud also

executed irrevocable GPAs in favour of the 1st defendant

and in turn the 1st defendant executed gift deed in favour of

the 2nd defendant, it cannot be said that the 1st defendant

was also authorized to gift the property of the property in

favour of the 2nd defendant against the terms and conditions

of the GPA. The Trust Deed under Ex.B6 was executed on

01.07.1997. Though Ex.B5-GPA was executed on 24.07.1991,

Ex.A8-Gift Deed was executed on 02.01.1999 after the death

of K.Shankar Yadav on 08.09.1999. The said K.Shankar

Yadav and the 1st defendant were also members of the 2nd

defendant Trust. The said K.Shankar Yadav was a Founder

trustee and was acting as a managing trustee of the 2nd PSSJ A.S.No.1005 of 2010

defendant Trust. Exs.B14 and B15- Pattadar Passbooks and

title deeds filed before the Court would reveal that the

plaintiff was shown as owner of Ac.3.00 of land in

Sy.No.307/e/19 of Gajula Ramaram village, Qutubullapur

Mandal, Rangareddy District.

The main contention of the 1st defendant is that the

suit land as well as the other lands were acquired by the

said K.Shankar Yadav and nominally put the said lands in

the names of plaintiff, Venkatamma and Vasudev Goud

respectively, but after invoking of provisions of Benami

Transactions (Prohibition) Act, 1988, the said purchase of

the property in the name of the plaintiff and others is not

valid. There is no evidence to show that the property was

purchased by the said Shankar Yadav in the name of the

plaintiff and no sale deed is filed and it was brought in

evidence that on the oral instructions of the said K.Shankar

Yadav, irrevocable G.P.As were executed in favour of the 1st PSSJ A.S.No.1005 of 2010

defendant. Thus, there is no evidence at all to show that the

suit property belongs to the said K.Shankar Yadav, but not

to the plaintiff.

The learned Counsel for the appellant/D2 contended

that the gift deed was executed on 02.01.1999, but the suit

was filed much later in the year 2003 and as such the suit is

barred by limitation. According to the plaintiff, who was

examined as P.W.1, he issued a notice dated 22.08.2001

under Ex.A2 to the 1st defendant informing him about the

cancellation of the GPA and that he came to know about the

transfer of suit schedule property in favour of the 2nd

defendant by the 1st defendant through Ex.A7-reply notice

dated 13.11.2001. He further stated that he obtained the

certified copy of the gift deed on 29.11.2002. Therefore, the

suit was filed within the period of limitation from the date

of knowledge of the plaintiff with regard to execution of the

gift deed in favour of the 2nd defendant. The 2nd defendant PSSJ A.S.No.1005 of 2010

further contended that the suit filed against the 2nd

defendant Trust represented by K.Shankar Yadav, who died

on 08.09.1999, is not maintainable as he was no more on the

date of filing of the suit and thus the suit is liable to be

dismissed against the 2nd defendant. Admittedly, D.W.1

was impleaded in the place of K.Shankar Yadav by way of

amendment and thus the contention of the learned Counsel

for the appellant/defendant No.2 cannot be accepted.

The learned Counsel for the appellant/defendant

No.2 further submitted that the civil suit is not maintainable

against the 2nd respondent-Trust as it is a public Trust. But,

the issue of jurisdiction is to be raised by the 2nd defendant

at the earliest point of time before the Civil Court, but he

kept quite. Therefore, now at the appellate stage, he cannot

raise the said objection and it is not tenable.

In view of the foregoing reasons, I find that the trial

Court, after evaluating the entire evidence both oral and PSSJ A.S.No.1005 of 2010

documentary, rightly decreed the suit in favour of the plaintiff

and against the 2nd defendant by declaring that the gift deed

dated 02.01.1999 executed by the 1st defendant in favour of the

2nd defendant is nonest in law and also directed the 2nd

defendant to deliver vacant possession of the suit schedule

property to the plaintiff within a period of two months from the

date of decree. That apart, the suit against the 1st defendant was

dismissed as abated. Therefore, this Court finds that there is no

infirmity or illegality in the judgment of the trail Court and it

needs no interference.

Accordingly, the Appeal Suit is dismissed, confirming the

impugned judgment and decree, dated 30.10.2010, passed by the

trial Court in O.S.No.235 of 2003. There shall be no order as to

costs.

Pending miscellaneous petitions shall stand closed.

_______________________ JUSTICE P.SREE SUDHA 13.04.2023 Gsn.