[Cites 11, Cited by 0]
Telangana High Court
Suryakant S. Mahindrakar vs Sainath Mahindrakar on 7 April, 2026
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
CCCA.NO.439 OF 2018
AND
CROSS OBJECTIONS NO.22 OF 2019
Dated: 07th APRIL, 2026
BETWEEN :
CCCA No.439 of 2018:
Suryakant S.Mahendrakar
... Appellant/Defendant
AND
Sainath Mahendrakar,
S/o.Late Sakharam Mahindrakar,
Aged about 54 years, 2nd Floor of
premises bearing No.5-4-477 & 5-4-482,
Kattalmandi, Nampally Station Road,
Hyderabad - 500 001.
...Respondent/Plaintiff
CROSS OBJECTIONS No.22 of 2019:
Sainath Mahendrakar
... Appellant/Plaintiff
AND
Mr. Suryakant S.Mahendrakar,
S/o.Late Sri Sakharam Mahendrakar,
Hindu, aged about 74 years, Occ:Business,
R/o.First Floor premises bearing M.No.5-4-477 &
5-4-482, situated at Kattalmandi, Nampally Station
Road, Hyderabad - 500 001.
...Respondent/Defendant
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COMMON J U D G M E N T
CCCA No.439 of 2018:
1.1. This Memorandum of Appeal is filed under Section 96 of the
Civil Procedure Code, 1908 (for short 'CPC') assailing the judgment
and decree in OS No.444 of 2009, dated 14.09.2018 passed by the
learned XXV Additional Chief Judge, City Civil Court at Hyderabad
where under respondent-plaintiff was declared as owner of the
First Floor and the appellant-defendant was directed to vacate the
premises.
1.2. Appellant is the defendant and respondent is the plaintiff in
OS No.444 of 2009.
Cross Objections No.22 of 2019.
2.1. This Memorandum of Cross Objections is filed under Order
41 Rule 22 of CPC assailing the judgment and decree passed in OS
No.444 of 2009, dated 14.09.2018 by the learned XXV Additional
Chief Judge, City Civil Court at Hyderabad where under claim for
mesne profits was rejected.
2.2. Appellant is the plaintiff and respondent is the defendant.
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3. For the sake of convenience, the parties will be herein after
referred to as arrayed in CCCA No.439 of 2018 as appellant-
defendant and respondent-plaintiff.
4. The relief prayed by the respondent-plaintiff in OS.No.444 of
2009 is as under:
a) Plaintiff be declared as owner of the suit schedule
property i.e. First Floor forming part and parcel and
covered by Municipal No.5-4-477 and 5-4-482 situated
at Kattalmandi, Nampally Station Road, Hyderabad as
per the schedule of the property given in the plaint
and delineated in red colour in the plan annexed
hereto.
b) Defendant be directed to vacate the suit schedule
property and actual, vacant and physical possession
thereof be delivered to the plaintiff.
c) Defendant be directed to pay mesne profits, damages
and compensation for wrongful use and occupation at
Rs.12,000/- p.m. from the date of the suit till the date
of vacating the premises and delivery of actual, vacant
and physical possession to the plaintiff.
d) Costs of the suit be allowed.
e) Such other relief or reliefs to which the plaintiff may
found entitled be also granted.
5. The suit schedule is as under:
SCHEDULE OF THE PROPERTY
All that First Floor admeasuring 1000 Sq.ft area of construction with
1/3rd land area share in the entire property covered by and forming part
and parcel of the premises bearing No.5-4-477 and 5-4-482 situated at
Nampally Station Road, Kattalmandi, Hyderabad - 500 001 and delineated
in red colour in the plan annexed hereto and bounded as under :
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On the East : Partly by property No.5-4-483
and partly Kattalmandi Road
and partly 5-4-484
On the West : Partly by property No.5-4-476
and partly 5-4-486
On the South : Partly by House No.5-4-484,
5-4-486
On the North : Partly by property No.5-4-481
and partly by lane
6.1. The plaint in OS.No.444 of 2009 states that the mother of
the respondent-plaintiff by name Smt.Radha Bai Mahendrakar was
the absolute owner and possessor of the entire property covered by
Municipal No.5-4-477 & 5-4-482 consisting of Ground, First and
Second Floors situated at Nampally Station Road, leading from
Abids Road, GPO Circle towards Nampally Station. Respondent-
plaintiff and his mother are residing in the Second floor of the
building. Smt.Radha Bai Mahendrakar permitted the appellant-
defendant to use the First floor and he was a licensee, was in
permissive possession of the entire First floor. In the prevailing
circumstances, the First Floor portion occupied by the appellant-
defendant would easily fetch rent of Rs.12,000/- per month
exclusive of electricity and other amenity charges, municipal taxes
etc. Therefore, the respondent-plaintiff claims damages and
compensation for wrongful use and occupation and mesne profits
@ Rs.12,000/- per month from the date of suit till realization.
Smt.Radha Bai Mahendrakar has executed a registered Gift
Settlement Deed dated 26.02.2007 gifting the entire three storied
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building with land in favour of the respondent-plaintiff, the said
fact is also informed to the appellant-defendant. Appellant-
defendant and another brother Mr.Purushotham S.Mahendrakar
had forcibly taken his mother Smt.Radha Bai Mahendrakar to
Registrar's office and got executed a Deed of Cancellation of Gift on
17.10.2007 unilaterally by misrepresenting the facts to his mother.
When Smt.Radha Bai Mahendrakar learnt about the
misrepresentation made to her, she again executed another
document styling it as cancellation of "Cancellation of Gift
Settlement Deed", dated 10.03.2008 and under law, amounts to
revocation of document dated 17.10.2007.
6.2. Respondent-plaintiff further submitted that any document
got executed subsequent to the Gift Settlement Deed dated
26.02.2007 without his consent would not be valid. Gift Settlement
Deed dated 26.02.2007 is attested by two independent witnesses.
Municipal Authorities have mutated his name in the records on
07.07.2007 vide ROC No.846/TC6/C4/GHMC/2007 and he is
paying the Property Taxes. Respondent-plaintiff and his mother
have terminated the license of the appellant-defendant in respect of
First floor and he is required to hand over the possession of the
property by the end of 31.05.2009. To that effect, they got issued a
Legal Notice on 24.03.2009. Appellant-defendant got issued a reply
on 22.05.2009 making adverse allegations.
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7. Appellant-defendant filed his written statement contending
that the respondent-plaintiff by playing fraud on his mother got
executed Gift Settlement Deed in his favour. The mother of the
parties had executed Will and provided copies of the same to all
her children with a view to avoid disputes among them. The
mother of the parties on knowing about the alleged gift settlement
deed dated 26.02.2007 in favour of the respondent-plaintiff
without her consent and knowledge she voluntarily executed Deed
of Cancellation on 17.10.2007 cancelling the Gift Deed executed in
favour of the respondent-plaintiff. The respondent-plaintiff has
again cancelled the Cancellation Deed dated 17.10.2007 by
registering another document captioned as "Cancellation of
Cancellation of Gift Settlement Deed" dated 10.03.2008 and the
mother of the parties is not the owner of the property covered
under the alleged Gift Deed dated 26.02.2007 and it is joint family
property belonging to their father. First Floor of the property is in
possession of the appellant-defendant since 30 years and mere
mutation of name of the respondent-plaintiff in the Revenue
Records will not confer any title. Appellant-defendant is a
coparcener and a member of the joint family and prayed to dismiss
the suit.
8. Respondent-plaintiff has filed rejoinder denying the contents
of the written statement.
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9. The learned trial Court has framed the following issues:
1. Whether the suit schedule property is the property
purchased by the father of the parties in the name of
the mother and therefore, the same is not the absolute
property of her?
2. Whether the mother of the parties permitted defendant
to reside in the first floor and therefore, the possession
of defendant over the first floor is only permissive
possession as licensee?
3. Whether the mother of the parties executed a Gift
Settlement Deed dated 26.02.2007 in favour of plaintiff
voluntarily as claimed by plaintiff?
4. Whether the Gift Deed dated 26.02.2007 was executed
by the mother of the parties under mis-representation
and fraud played by plaintiff as alleged by defendant?
5. Whether the mother of the parties cancelled the Gift
Deed dated 26.02.2007 voluntarily by executing the
Deed of Cancellation dated 17.10.2007 as claimed by
defendant?
6. Whether such deed of cancellation dated 17.10.2007
was executed by the mother of the parties under
duress and mis-representation of the defendant and
others as claimed by plaintiff?
7. Whether the deed of cancellation of gift dated
17.10.2007 is valid and binding on plaintiff?
8. Whether the mother of the parties executed a registered
Will long prior to the Gift Deed dated 26.02.2007?
9. Whether the suit filed by plaintiff without making the
mother as well as other brother and sister is bad for
mis-joinder of parties?
10. Whether the suit filed by plaintiff seeking declaration
only in respect of the suit schedule property without
claiming title over the entire property is bad and not
maintainable?
11. Whether the valuation made by plaintiff for the reliefs
as proper?
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12. Whether the plaintiff did not plead properly about the
cause of action in respect of relief of declaration of title
as contemplated under Order 7?
13. Whether the plaintiff is entitled for declaration of the
first floor referred as suit schedule property to be
absolute owner?
14. Whether the plaintiff is entitled for recovery of
possession of the suit schedule property from
defendant?
15. Whether the plaintiff is entitled for mesne profits from
the defendant as claimed?
16. Whether the defendant has been in possession of the
suit schedule property in his own right and perfected
the same to claim title?
17. To what relief?
10. Respondent-plaintiff is examined as PW.1 and also examined
PW.2 - V.Surender, got marked Exs.A1 to A15. Appellant-
defendant is examined as DW.1 and got marked Exs.B1 to B7.
11. The learned trial Court after analysing the evidence adduced
by the parties has partly decreed the suit in favour of the
respondent-plaintiff and declared him as the owner of the First
Floor forming part and parcel of Municipal No.5-4-477 and 5-4-482
situated at Kattalmandi, Nampally Station Road, Hyderabad and
directed the appellant-defendant to vacate and deliver vacant
possession to the respondent-plaintiff on or before 10.12.2018. If
the appellant-defendant fails to deliver the possession by that date,
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respondent-plaintiff is at liberty to obtain physical possession
through Court of Law. Rest of the claim is dismissed.
12.1. Learned Senior counsel for the appellant-defendant contends
that the learned trial Court failed to appreciate the facts that in a
declaration suit the Court has to examine the source of income to
purchase the property from the vendor. The trial Court ought not
to have held that Ex.A5-Cancellation of Gift Deed is not valid and
binding on the respondent. The Gift Settlement Deed dated
26.02.2007 is vitiated by fraud, misrepresentation, malice and
malafides. The learned trial Court ought to have seen that law
does not provide either under the Registration Act or Transfer of
Property Act or any other law, cancellation of a deed of cancellation
reviving the original deed. The trial Court ought to have seen that
the respondent-plaintiff failed to add all the proper and necessary
parties in the suit. The trial Court ought to have seen that the
mother of the parties is not the absolute owner of the suit schedule
property even though the property was registered in her name as
their father had purchased the said property in the name of their
mother. Mother of the parties had no source of income of her own
and failed to look into the fact that the suit property is the joint
family property.
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12.2. That if at all the mother of the parties has knowledge about
the alleged document dated 26.02.2007 and 10.03.2008, certainly
she would have mentioned about the Will she has executed in
favour of her legal heirs bequeathing the schedule property equally.
There is no mention of the Will in the document dated 26.02.2007
and 10.03.2008 making it suspicious.
12.3. The trial Court failed to appreciate the fact that the
respondent-plaintiff did not file any document to show that the
mother has separate income and purchased the schedule property
through her earnings. Respondent-plaintiff admits the execution
of Will in 1993, without cancellation of the said Will by the mother
of the parties, all subsequent transactions will become null and
void. The trial Court ought to have seen that the respondent-
plaintiff has not challenged the Cancellation Deed dated
17.10.2007 before any appropriate forum and ought not to have
believed Exs.A6 and A7. The trial Court ought to have seen that
the suit for declaration based on non-existent document of transfer
i.e., by a Deed of Cancellation of the Cancellation Deed dated
17.10.2007 is unsustainable in law. The appellant-defendant is in
possession of the entire First Floor for the past 30 years and he
has perfected his title by adverse possession. The trial Court ought
not to have held that Exs.A6 and A7 proves genuineness of
execution of Gift Deed i.e., Ex.A4. Senior counsel to substantiate
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his contention has relied on the decisions in the cases of
(1) B.Masthanamma and others Vs. G.Adinarayana and Others 1
(2) S.Manjula Vs. G.Shoba and Others 2 and prayed to set aside the
impugned judgment and dismiss Cross Objections.
13.1. Learned counsel for the respondent-plaintiff submits that the
learned trial Court has properly appreciated the evidence on record
and passed a reasoned judgment by partly decreeing the suit and
erred in rejecting the mesne profits. Appellant-defendant has not
made out any case in the Appeal to set aside the impugned
judgment, in support of his contention has relied on the decisions
in the cases of (1) Asokan Vs. Lakshmikutty and Others 3 (2) Thota
Ganga Laxmi and Another Vs. Government of Andhra Pradesh and
Others 4 (3) Renikuntla Rajamma (Dead) by LR's Vs.
K.Sarwanamma 5 (4) Kapuganti Jagannadha Gupta Vs. The District
Registrar Srikakulam and Others 6 (5) Garagaboyina Radhakrishna
and Another Vs. District Registrar, Visakhapatnam and Others 7 (6)
Annam Uttarudu (Died) by LR's Vs. Annam Venkateswara Rao 8 (7)
Gaddam Laxmaiah and Others Vs. Commissioner and Inspector
AIR 1966 A.P. 104
2022 SCC OnLine Mad 3056
(2007) 13 SCC 210
(2010) 15 SCC 207
(2014) 9 SCC 445
2012 SCC Online AP 61
2012 SCC OnLine AP 590
2013 SCC OnLine AP 315
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General, Registration & Stamps, Hyderabad and Others 9 and no
interference is called for and prayed to dismiss the Appeal.
Cross objections No.22 of 2019 :
13.2. Learned trial Court erred in not granting mesne profits,
damages, compensation for wrongful use and occupation @
Rs.12,000/- per month.
13.3. The respondent-plaintiff is entitled for damages or
compensation. Under Order 20 Rule 12 where a suit is filed for
recovery of immovable property and for rents or mesne profits, the
Court can pass a decree for possession of the property, rents could
be postponed after passing a decree against the appellant-
defendant. Court can award mesne profits till the date of filing the
suit or postpone the enquiry under Order 20 Rule 12 after passing
the decree. Mesne profits could have been granted after the
institution of the suit as it requires determination. The learned trial
Court committed an error by dismissing the claim towards mesne
profits for unlawful possession of the property. The learned trial
Court failed to consider that the enquiry under Order 20 Rule 12 is
not imperative and it is the discretion of the Court to direct enquiry
after decree is passed. The learned trial Court has committed an
error in dismissing the claim that the mesne profits have not been
2017 (4) ALT 213 (DB)
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proved by the respondent-plaintiff when application under Order
20 Rule 12 has to be filed and prayed to allow the cross objections.
14. Learned counsels on record have filed their written
submissions in support of their contentions.
15. Now the points for consideration are:
1. Whether the judgment and decree passed by the
learned trial Court suffers from any perversity or
illegality? If so, does it require interference of this
Court (CCCA No.439 of 2018)?
2. Whether the respondent-plaintiff has made out
any case in the cross objections for setting a side
the judgment and decree passed by the learned
trial Court in so far as the mesne profits are
concerned (Cross Objections No.22 of 2019)?
Point Nos.1 and 2:
16.1. Appellant-defendant and respondent-plaintiff are own
brothers. Entire case of the respondent-plaintiff is resting on
Exs.A4 and A9.
16.2. Smt. Radha Bai Mahendrakar died on 27.07.2013.
17.1. Ex.A1 is the Sale Deed in favour of Smt.Radha Bai Saheba
W/o. Sakaram Saheb in respect of one shop with two double
storied pucca Muncipal Old No.1517 and the New No.598, Circle
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(B), Block (5) situated at Kattalmandi. The total area is 44.49
square yards having purchased from Md. Fazalullah S/o. Md.
Shareef Late and the total sale consideration is Rs.4,500/-.
17.2. Ex.A2 is the another Sale Deed in favour of Smt.Radha Bai
W/o.Sakharam, the vendor therein is Smt. Khairunnissa Begum
W/o.Late Moulvi Mohammed Baig Saheb, the property is Municipal
Old No.1512, New No.594, Circle-B, Kattalmandi, Hyderabad (one
storey) and the total sale consideration is Rs.10,000/-.
17.3. Ex.A3 is the Estate Duty Certificate got issued by
Government of India, dated 24.11.1972 in the name of Late Sri
S.L.Mahindrakar who died on 12.07.1967.
17.4. Ex.A4 is the certified copy of Gift Settlement Deed dated
26.02.2007 executed by Smt.Radha Bai Mahendrakar in favour of
respondent-plaintiff. The Gift Deed speaks as under:
"3. The Donor/Settlor is the exclusive owner and self
acquired property of the said premises and desires to grant the
said premises to the Donee/Settlee as gift in consideration of
natural love and affection as hereinafter mentioned.
4. The Donee/Settlee has agreed to accept the gift as is
evidenced by his executing these presents".
17.5. Ex.A5 is the certified copy of Cancellation of Gift Deed, dated
17.10.2007 cancelling Ex.A4 dated 26.02.2007. Ex.A5 states that
the donor herein now remain as absolute owner with right title and
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authority and to enjoy the same. The Cancellation Deed further
goes to show that the donor is not in love towards the Donee
therein and as per the elders and well wishers, compelled and
decided to cancel the Gift Settlement Deed dated 26.02.2007 (A4).
17.6. Ex.A6 is the Cancellation of Cancellation of Gift Settlement
Deed dated 10.03.2008 executed by the mother of the respondent-
plaintiff which states that the Donor has realized the mistake when
the contents of the Cancellation of Gift Settlement Deed dated
17.10.2007 was brought to her by the Donee (respondent-plaintiff)
and executed the Cancellation of Cancellation of Gift Settlement
Deed.
17.7. Exs.A7 and A8 dated 07.07.2007 are the Mutation
Proceedings in the name of respondent-plaintiff pertaining to
House No.5-4-477 and 5-4-482.
17.8. Ex.A9 is the Legal Notice dated 24.03.2009 got issued by the
respondent-plaintiff and his mother Smt.Radha Bai to the
appellant-defendant stating that the appellant-defendant and
another brother had forcibly taken Smt.Radha Bai to the
Registrar's Office and got executed Cancellation of Gift Deed on
17.10.2007 which is the result of misrepresentation of facts, when
she realised the trick played by the appellant-defendant and his
another brother, thereby she executed Cancellation of Cancellation
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of Gift Settlement Deed on 10.03.2008 and they are terminating
the license and permissive possession of the appellant-defendant
and to hand over the vacant physical possession of the entire First
Floor by the end of 31st May, 2009 and also liable to pay damages
and compensation for wrongful use and occupation @ Rs.12,000/-
per month till the handing over of possession.
17.9. Ex.A10 is the Reply Notice dated 22.05.2009 got issued by
the appellant-defendant to Ex.A9 -notice dated 24.03.2009 and
denied the contents of the notice in toto and further stated that the
appellant-defendant is not liable to pay any damages or
compensation for the use and occupation as alleged in the notice
dated 24.03.2009.
17.10. Exs.A12 and A13 are the Property Tax Payment Receipts
issued by the Greater Hyderabad Municipal Corporation,
Hyderabad in favour of respondent-plaintiff in respect of suit
schedule property.
18. The evidence of the respondent-plaintiff as PW.1 is the
replica of his plaint averments. In his cross examination he stated
that his mother was doing tailoring work during her lifetime and he
has not filed any document to that effect to show that she has a
separate income. Suit schedule properties stands in the name of
his mother and House bearing No.5-4-463 to 5-4-465 stands in the
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name of his father and that his father is also having three
properties at Fathedarwaja, Hyderabad, no partition has taken
place between them after the death of their father. His mother has
executed Will in the year, 1993 which is subsequently revoked in
the year 1995, which he has stated in his rejoinder. Appellant-
defendant is doing tailoring business since 1967 at Abids and the
said business is established by his father. His father and mother
have filed eviction suits against their tenants. His elder brother by
name Purushotam is not residing in House No.5-4-577 and the
appellant-defendant is residing in 5-4-477 and 482. On
26.02.2007, the age of his mother is 84 years and she was residing
with him. He has filed another suit in OS No.445 of 2009 against
his another brother by name Purushotam Mahendrakar. He got
four sisters and they are alive. His mother has executed a
registered Will on 13.12.1995 and he is in possession of the same,
he did not file the said will in the Court. His mother has executed
Gift Deed in his favour prior to issuing notice dated 24.03.2009
(Ex.A9). His mother is the owner of the schedule property till the
date of execution of Gift Deed in his favour. As on the date of filing
the suit, he resided in the second floor of the schedule property. As
per 1993 Will which states that after the demise of his mother he
will be the owner of second floor premises No.5-4-477 and 5-4-482
and as per the same Will appellant-defendant will be the owner of
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entire first floor property bearing No.5-4-477 and 482. From 1982
to till date (29.01.2018), the entire first floor portion in the
schedule property is in possession of the appellant-defendant.
Ex.A4 bears his signature in annexure IA. It is not mentioned in
Ex.A4 that the appellant-defendant is in possession of first floor of
the schedule property and he is in possession of the second floor of
the suit schedule property. In Ex.B3, his brothers and sisters are
not made as parties pertaining to House bearing No.19-2-404 to
406. Prior to the filing of the suit he has issued notice to the
appellant-defendant on 24.03.2009. Appellant-defendant has got
issued reply notice. In the month of March, 2009, his mother
Radha Bai Mahendrakar was residing with him and she died due
to old age. At the time of issuing Ex.A9 notice his mother was not
the owner of the property, on the advice of the Advocate Ex.A9-
notice was issued. His mother has not filed any declaration suit
basing on Ex.A9 and cancellation deed dated 17.10.2007. He has
not sought for declaration with regard to cancellation deed dated
17.10.2007 (Ex.A5). Appellant-defendant was residing in the first
floor since 20 to 25 years. PW.1 denied the suggestion that his
mother had no source of income and she did not purchase any
property in her name and also denied the suggestion that Ex.A4
stands cancelled under Ex.A5 and that document dated
10.03.2008 (Ex.A6) is not executed by his mother with free will and
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he compelled her to sign the said document taking advantage of
her ill-health.
19. PW.2-V.Surender is the attestor to Ex.A4 and Ex.A6, he
supported the case of the respondent-plaintiff in its entirety. In his
cross-examination he stated that he do not know who purchased
the plaint schedule property and from whom it was purchased, he
did not see Radha Bai doing business. Witness adds that Radha
Bai did tailoring work in her house. The property bearing No.5-4-
477 consists of ground + two floors. On 26.02.2007, mother of the
respondent-plaintiff executed gift settlement deed and it was
registered during afternoon, he cannot say the exact time of its
registration. At the Registration office, the mother of the
respondent-plaintiff signed on the gift deed and he do not know the
age of Radha Bai in the year 2007, he do not know who has drafted
the gift settlement deed. By the time he reached the registration
office, gift settlement deed was prepared. In the month of March,
2008 he went to registration office for cancellation of cancellation
deed, he do not know who has drafted the document. So also he do
not know where cancellation of cancellation deed and gift deed
were typed. Mr.Sandeep Mahendrakar is the son of Sainath
Mahendrakar. Smt.Radhabai has informed him that her elder son
and second son have cheated her, got executed cancellation deed
and because of that she is executing cancellation of cancellation
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deed. He did not ask the respondent-plaintiff and his mother
whether they got issued any legal notice questioning the execution
of cancellation deed and he is appearing as a witness on behalf of
respondent-plaintiff, who is his friend and he signed as witness in
gift deed (Ex.A4) and cancellation of cancellation of gift settlement
deed (Ex.A6).
20.1. Ex.B1 is the admitted signature of Smt.Radha Bai
Mahendrakar on the letter dated 09.11.1993.
20.2. Ex.B2 is the certified copy of Will Deed vide document
No.120 of 1993 dated 26.10.1993 which is executed by Smt. Radha
Bai in favour of the appellant-defendant, respondent-plaintiff and
other two sons. Smt. Radha Bai has bequeathed entire first floor of
H.No.5-4-477 and 5-4-482 to the appellant-defendant under the
said Will.
20.3. Ex.B3 is the certified copy of Agreement of Sale cum General
Power of Attorney dated 19.11.2004 executed by Smt.Radha Bai
Mahendrakar and the respondent-plaintiff in favour of
Mr.Mohammed Nazeer Ahmed.
20.4. Ex.B4 is the certified copy of Sale Deed dated 31.01.2007
executed by Smt.Radha Bai Mahendrakar and the respondent-
plaintiff in favour of Mr.Shaik Ahmed Hussain and Shaik
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Mohammed Hussain in respect of House bearing No.19-2-404 to
406 admeasuring 91 Sq.yards situated at Fateh Darwaza,
Hyderabad.
20.5. Ex.B5 is the Deccan Chronicle local edition News Paper
dated 23.11.2008 in four pages.
20.6. Ex.B6 is the certified copy of FIR in Crime No.416 of 2011
dated 29.12.2011 of Abids Road Police Station for the offence
under Section 324 of IPC. The complainant is Gunjan
Mahindrakar S/o. Suryakanta S.Mahendrakar (appellant -
defendant) and the accused is the respondent-plaintiff.
20.7. Ex.B7 is the Telephone Bill in the name of respondent-
plaintiff issued by Bharat Sanchar Nigam Limited, Hyderabad
Telecom District, dated 06.10.2010 in two pages.
21.1. The evidence of the appellant-defendant is the replica of his
written statement. In his cross-examination he stated that his
father was not having any ancestral property or business, he used
to purchase all the properties in his name from out of his tailoring
business income and he got mentioned in his written statement
about passing of Arbitration award. Three tenants were residing in
premises bearing No.5-4-477 and 5-4-482. One Suryanarayana
was the tenant in the ground floor of the premises bearing No.5-4-
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477. There was a tenant who was running typewriting institute.
In the first floor of the premises bearing No.5-4-477 one Purna
Kumari along with her sisters were residing and his mother has
entered into Lease agreement dated 01.07.1963 in respect of
premises No.5-4-477 with Suryanarayana. He do not remember
whether his mother has entered into lease agreement in the month
of May, 1963 in respect of premises bearing No.5-4-482 with
A.Poornachander Rao. Witness adds that the name of
Poonachander Rao is incorrect and his name is Purna Chandre
Kumari. His mother has negotiated with the tenant Suryanarayana
and got him vacated. After the death of his father, his mother has
withdrawn two cases filed against the two tenants for want of
notices and she again instituted fresh eviction suits against those
tenants. After reconstruction of premises Nos.5-4-477 and 482 his
mother has inducted new tenants into the premises by name
Sahitha Chit Funds in the second floor and the first floor was kept
vacant. In premises No.5-4-477 a typing Institute was established
by the respondent-plaintiff. Second floor was in occupation of the
respondent-plaintiff and his mother and presently he has vacated
and started residing in BHEL, his mother was residing along with
the respondent-plaintiff during her lifetime. After first floor was
constructed in premises No.5-4-477, he along with his family
members shifted to the said premises at the request of his mother.
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Ex.A3 is the certificate given by Assistant Controller of Estate
Duty, Hyderabad and duty was collected over the movables and
immovable properties of his father. He has made new construction
in the premises No.5-4-477 and 482 which was made from ground
floor to second floor, which went on for three years from 1970 to
1973 and his mother has obtained Municipal permission for the
said construction. He do not remember whether the property was
assessed in the name of his mother after the construction. His
mother used to sign in Marathi and she used to take decisions of
her own but used to inform them. He has gone through the
contents of Ex.A2-sale deed, he has not filed any suit for partition
after the death of his mother and now he is contemplating to file
the same. His mother has executed her first Will in the year 1993
which is true and correct. Ex.B2- certified copy of Will filed in the
Court was handed over by his mother to him. He do not remember
whether his mother reserved her right to revoke the Will (Ex.B2).
He is not satisfied with Ex.B2 Will where under he was given a
smaller portion and larger portions were given to his other brothers
and he is disputing the Will executed by his mother. There are two
sale deeds pertaining to the suit property. He has not filed any
document to show that his father has paid the sale consideration
on behalf of his mother while purchasing the property covered
under Exs.A1 and A2. His mother used to attend all functions of
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his sister's children. His mother was unwell for number of years
and the respondent-plaintiff used to carry her for attending
functions of the children of his sisters. He met his mother at
Devangiri, Karnataka State in the function of his third brother
(Ramesh) daughter's marriage, respondent-plaintiff did not attend
the function which took place in the year 2007-2008. He met his
mother prior to 2007 in a temple at Kachiguda. In the year 2008,
his mother attended the marriage function of the daughter of his
second sister at Jogipet. He came to know about the execution of
registered gift settlement deed dated 26.02.2007 (Ex.A4).
21.2. Appellant-defendant further stated in his cross-examination
that he do not remember when he purchased the stamp paper for
cancellation of gift settlement deed - Ex.A5. So also he do not
remember when his mother has asked him to purchase the stamp
paper. Two daughter-in-laws of his mother accompanied her for
preparation of cancellation of gift settlement deed. His wife did not
inform him that his mother is going to execute the cancellation of
gift settlement deed, she informed the same afterwards. There is no
mention in Ex.A5 that the respondent-plaintiff has forcibly and by
playing fraud obtained the gift settlement deed. He came to know
that his mother has executed registered cancellation of cancellation
of gift settlement deed. He is not aware whether respondent-
plaintiff has got mutated his name in the records after the
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execution of gift settlement deed. The notice shown under Ex.A9
bears the signature of his mother. His mother has not issued any
notice under Ex.A9 to him or to his brother Purushotam
Mahendrakar. His son gave a complaint under Ex.B6 and the
criminal case is still pending. Exs.A12 and A13 are property tax
payment receipts pertains to plaint schedule property. His mother
is seen in Ex.A14 -photograph. Ex.A15 are the photographs which
were taken in marriage function and his mother is seen with
sickness. Appellant-defendant denied the suggestion that his
mother has voluntarily executed gift settlement deed in favour of
the respondent-plaintiff and he played fraud on his mother and got
executed Ex.A5 without informing the contents thereon. Appellant-
defendant also denied the suggestion that he has not perfected his
title by adverse possession and he is liable to be evicted.
22. Exs.A1 and A2 stands in the name of Smt.Radha Bai
Mahendrakar. Appellant-defendant defence is that his father Late
Sakaram Mahendrakar has purchased the properties in the name
of his mother as she has no source of income. To substantiate his
contention, he has not adduced any evidence except his oral
statement. Respondent-plaintiff and PW.2 deposed that Smt.Radha
Bai was a Tailor by profession and she purchased Exs.A1 and A2
property from the income of Tailoring and from Stridhan property.
Exs.A1 and A2 speaks for itself i.e., Smt.Radha Bai Mahendrakar
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has paid the consideration and purchased the property in her
name.
23. On close reading of Ex.A4, the Donee (respondent-plaintiff)
has accepted the Gift given by his mother Smt.Radha Bai in
respect of the plaint schedule property and there is no default
clause in Ex.A4. Under Ex.A9 respondent-plaintiff and his mother
has terminated the license of the appellant-defendant and required
him to hand over the vacant physical possession of the entire First
floor occupied by him by the end of 31st May, 2009.
24. Appellant-defendant admitted in his cross-examination that
his mother Smt. Radha Bai used to let out the properties to various
tenants and she also filed eviction cases to evict the tenants from
the property. He also admitted that his mother Smt. Radha Bai has
let out the premises to Suryanarayana and Purnachandra Rao.
25. On the date of Ex.A4, Smt. Radha Bai was aged about 84
years. Appellant-defendant admitted in his cross-examination that
his mother has attended the functions at Bangalore of his third
brother (Ramesh) daughter's marriage which took place in between
2007 and 2008. In the year 2008, his mother has attended the
marriage function of his second sister's daughter at Jogipet, and
his mother is seen in Exs.A14 and A15 photographs. Respondent-
plaintiff has mutated his name in the Municipal records under
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Exs.A7 and A8 on 17.07.2007 and paid property tax under
Exs.A12 and A13. The admissions made by the appellant-
defendant is sufficient to come to a conclusion that Smt. Radha
Bai was keeping good health and she was attending the functions
of the family members.
26.1. In B.Mastanamma, the point fell for consideration before the
A.P. High Court is that "Whether the gift deed under Ex.A1 was
induced by undue influence". High Court observed that "the
Natural conclusion from all the circumstances is that he was
affected by mental distress at the time owning to the treatment
meted out to him by the members of his family. The transaction
under Ex.A1 was on the face of it unconscionable".
26.2. In S.Manjula, the High Court of Madras held that "the
possession was not handed over and the Gift Deed was not acted
upon and the plaintiff therein has cheated his mother and got
created a Gift Deed".
26.3. The decision cited by the appellant's counsel are
distinguishable from the facts of the present case and thus the
ratio of those cases would not apply in the case on hand.
27.1. In Asokan, the Supreme Court held that once a gift is
complete, the same cannot be rescinded. For any reason
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whatsoever, the subsequent conduct of a Donee cannot be a
ground for rescission of a valid gift.
27.2. In Thota Ganga Laxmi, the Supreme Court held that "If the
vendor wants to cancel sale deed subsequently then he has to file a
civil suit for cancellation or else he can ask vendee to sell back that
property, vendor cannot execute a cancellation deed unilaterally
and such unilateral cancellation shall not be registered".
27.3. In Renikuntla Rajamma, the Supreme Court held that
"Section 123 r/w Section 122 of the TP Act provides that 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 lifetime of the donor and while he is still
capable of giving is evident from a plain reading of Section 122. A
conjoint reading of Sections 122 and 123 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.
27.4. In Kapuganti Jagannadha Gupta, the High Court of A.P. held
that once the gift is made in accordance with law and is accepted
by the Donee, it becomes irrevocable, cancellation can be done
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with the consent of the parties else the only remedy available to the
Donor is to file a suit for cancellation of the document. The same
view is taken in Garagaboyina Radhakrishna.
27.5. In Annam Uttarudu, the point fell for consideration before
the High Court of A.P. is that whether the gift deed is valid without
delivering possession of the property to the Donee. The defendant
therein has admitted the execution of gift deed and he is legally
precluded to take the plea that the possession was not delivered to
the plaintiff.
27.6. In Gaddam Laxmaiah, the High Court for the State of
Telangana and A.P. held that cancellation of registered document
cannot be unilateral but it should be bilateral.
28.1. Learned Senior Counsel for the appellant-defendant submits
that Ex.A4-registered gift deed is bereft of any humane
considerations and proceeds as if the respondent-plaintiff is the
only son, during the execution of Ex.A4 onwards, mother of the
parties was not enjoying a stable state of mind and was not acting
with her free will and consent. PW.2 is the attesting witness to
Ex.A4 though he is cross-examined, nothing material is elicited
from him about the vacillating state of mind of the donor.
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28.2. Learned Senior Counsel for the appellant-defendant further
submits that mother of the parties was alive for 3 ½ years
subsequent to the filing of written statement (filed on 31.12.2009)
and was available to be examined out of turn, her non-examination
is fatal to the case of the respondent-plaintiff. Respondent-plaintiff
has filed suit for declaration of ownership of First floor, for eviction
and mesne profits. When once the donor executes a gift deed
which is accepted by the done, donor ceases to have any interest
over the property and her non-examination is not fatal to the case
of the respondent - plaintiff when the gift is proved through PW.2.
28.3. The further contention of the Senior counsel is that
Smt.Radha Bai, mother of the parties is not made as a party in OS
No.444 of 2009 and that the suit is liable to be dismissed for non-
joinder of necessary parties. Smt. Radha Bai has executed Gift
Settlement Deed in favour of respondent-plaintiff under Ex.A4 on
26.02.2007 and the Gift was accepted. Thereafter, the respondent-
plaintiff has become the owner of the suit schedule property.
Smt.Radha Bai expired on 27.07.2013 and the evidence of
respondent-plaintiff is filed on 26.11.2009. As the respondent-
plaintiff has sought for a declaration to declare him as the owner of
the plaint schedule property and for eviction, mesne profits,
Smt. Radha Bai is not a necessary party to the proceedings.
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29. Appellant-defendant admitted that he is in possession of the
First floor in premises bearing Door No.5-4-477 at the permission
of his mother, the said permission is terminated under Ex.A9.
Furthermore, appellant-defendant has not adduced any evidence to
show that Ex.A4-Gift Deed is executed by Smt. Radha Bai on
undue influence.
30. Ex.A3 is the Estate Duty order dated 24.11.1972 of Late Sri
S.L.Mahindrakar which goes to show that late S.L.Mahindrakar
was possessing the property i.e., House No.5-4-463/65, Nampally
Station Road, Hyderabad, House at Laldarwaza, open land at
Muttuguda, part of jewellery, watches, capital in M/s.Friends
Tailors. If really, the contention of the appellant-defendant is
considered that his father has purchased the property in the name
of his mother by name Smt. Radha Bai definitely that would have
been reflected in the Estate Duty. The contention of the appellant-
defendant is negative that the property purchased by Smt. Radha
Bai under Exs.A1 and A2 is by his father.
31.1. In N.P.Saseendran Vs. N.P.Ponnamma and Others 10, the
Supreme Court held at Para 18 that:
i) Once a gift has been acted upon, the same cannot
be unilaterally cancelled, delivery of possession is
only one of the method to prove acceptance and the
2025 INSC 388
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transaction satisfies the requirement of Section
122 of Transfer of Property Act, 1882.
ii) Once the document is declared as "gift", Donor had
no right to cancel the same unilaterally and the
Sub-Registrar had no right to register the
cancellation deed, in absence of any clause or
reservation to cancel. Unilateral cancellation of the
document is void.
31.2. In N.Thajudeen Vs. Tamil Nadu Khadi and Village Industries
Board 11, the Supreme Court observed at Para Nos.12, 13, 14 and
20 which reads as under:
12. No doubt, the gift validly made can be suspended or
revoked under certain contingencies but ordinarily it cannot
be revoked, more particularly when no such right is reserved
under the gift deed. In this connection, a reference may be
made to the provisions of Section 126 of the Transfer of
Property Act, 1882 which provides that a gift cannot be
revoked except for certain contingencies enumerated therein.
13. It is important to reproduce Section 126 of the Act, which
reads as follows:
"126. When gift may be suspended or revoked.-
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.
2024 INSC 817
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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."
14. Section 126 of the Act is drafted in a peculiar way in the
sense that it contains the exceptions to the substantive law
first and then the substantive law. The substantive law as is
carved out from the simple reading of the aforesaid provision is
that a gift cannot be revoked except in the cases mentioned
earlier. The said exceptions are three in number; the first part
provides that the donor and donee may agree for the
suspension or revocation of the gift deed on the happening of
any specified event which does not depend on the will of the
donor. Secondly, a gift which is revocable wholly or in part
with the agreement of the parties, at the mere will of the donor
is void wholly or in part as the case may be. Thirdly, a gift may
be revoked if it were in the nature of a contract which could be
rescinded.
20. Once it is held that the gift deed was validly executed
resulting in the absolute transfer of title in favour of the
plaintiff-respondent, the same is not liable to be revoked, and
as such the revocation deed is meaningless.
32.1. Ex.A5-Cancellation of gift deed dated 17.10.2007, which
shows that the Stamp Paper is purchased by Suryakant S.
Mahindrakar for Radha Bai and it is attested by Meena
Mahendrakar W/o. P.S. Mahendrakar and Kanti Mahendrakar
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W/o.Suryakant. Attestor No.2 is the wife of the appellant-
defendant.
32.2. Ex.A6-Stamp Paper is purchased by Radha Bai Mahendrakar
which is attested by V.B.Surender (PW.2) and S.Sandeep
Mahendrakar S/o. Sainath Mahendrakar (Son of respondent-
plaintiff).
33. Ex.B2 is the registered Will dated 26.10.1993 executed by
Smt. Radha Bai bequeathing suit schedule property to her sons. A
Will comes into effect after the death of the person who made it.
The testator remains the owner of the property during her life time
and has right to sell, gift or transfer. The learned trial Court has
framed as many as 17 issues and answered them in detail by
giving cogent reasons.
34. Smt. Radha Bai has divested her rights, title and interest
over the suit schedule property in favour of the respondent-plaintiff
under Ex.A4; the property cease to be the property of Smt. Radha
Bai and the Gift is completed. Furthermore, there is no revocation
clause in the gift deed (Ex.A4) and the same cannot be revoked at
the mere will of the donor. Exs.A5 and A6 are void documents.
35. Appellant-defendant case is that he is in permissive
possession of the property. The permissive possession can never be
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considered as adverse possession unless and until he proves
ouster and asserts hostile title. Persons who are in permissive
possession cannot claim ownership.
36.1. In view of the reasons above and the law laid down by the
Supreme Court in the above said decisions in Para Nos.31.1 & 31.2
and also the decisions cited by respondent's counsel in Para
Nos.27.1 - 27.4 and 27.6, appellant-defendant has not made out
any case to interfere with the judgment and decree passed by the
learned trial Court in OS No.444 of 2009.
36.2. Annam Uttarudu case is not applicable as the facts are
distinguishable.
36.3. The learned trial Court has appreciated the facts of the case
in right perspective and declared the respondent-plaintiff as owner
of the suit schedule property. There are no merits in the Appeal
and the same is liable to be dismissed and is accordingly
dismissed.
37. Insofar as mesne profits is concerned, the learned trial Court
observed that parties to the suit are brothers, for several decades
they lived in the same building in different Floors. Appellant-
defendant is not a trespasser and found no equities to grant mesne
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profits. Respondent-plaintiff did not examine any other witness to
prove the same.
38. It is the case of the respondent-plaintiff under Ex.A9-Legal
Notice that they are terminating the license of permissive
possession and required the appellant-defendant to vacate the
same by the end of 31st May, 2009. In the event of failure to do so,
will initiate legal proceedings and also liable to pay damages and
compensation for wrongful use and occupation @ Rs.12,000/- per
month till the property is handed over.
39. Respondent-plaintiff has claimed mesne profits, damages
and compensation for wrongful use and occupation @ Rs.12,000/-
per month from the date of suit till the date of vacating the
premises and delivery of actual and vacant physical possession.
Order 20 Rule 12 of CPC deals with "Decree for Possession and
Mesne profits". Rule 12 (1)(ba) reads as "for the mesne profits or
directing an inquiry as to such mesne profits". Rule 12(1)(c) reads
as "Directing an inquiry as to rent or mesne profits from the
institution of the suit until (i) the delivery of possession to the
decree-holder (ii) The relinquishment of possession by the
judgment-debtor with notice to the Decree holder through the
Court, or (iii) The expiration of three years from the date of the
decree, whichever event first occurs". The learned trial Court has
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lost sight of Order 20 Rule 12 (1)(ba) and (c) but instead thereof
has rejected the claim of the respondent-plaintiff in respect of the
mesne profits.
40. When the respondent-plaintiff suit is decreed and he was
declared as owner of the suit schedule property, the appellant-
defendant was directed to vacate the same. The learned trial Court
ought to have ordered for an inquiry as to the mesne profits from
the date of institution of the suit until the delivery of possession to
the respondent-plaintiff. Respondent-plaintiff has made out a case
in the cross objections and the observation of the learned trial
Court is set aside in respect of issue No.3 in view of the reasons
above. The judgment and decree passed by the learned trial Court
on issue No.3 is set aside and that the respondent-plaintiff is
entitled for mesne profits in view of Order 20 Rule 12 wherein an
inquiry has to be conducted.
41. CCCA.No.439 of 2018 is dismissed and cross objections
No.22 of 2019 is allowed as indicated in the judgment without
costs.
Interim orders if any stands vacated, miscellaneous
petition/petitions stands closed.
______________________________
B.R.MADHUSUDHAN RAO, J
7th APRIL, 2026.
PLV
