[Cites 9, Cited by 0]
Telangana High Court
Purushottam 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.407 OF 2018
AND
CROSS OBJECTIONS NO.10 OF 2019
Dated: 7th APRIL, 2026
BETWEEN :
CCCA No.407 of 2018:
Purushottam S. Mahindrakar
... Appellant/Defendant
AND
Sainath Mahindrakar,
S/o.Late Sakharam Mahindrakar,
Aged 63 years, Occ: Business,
R/o.2nd Floor, Premises B.No.5-4-477 & 5-4-482,
Kattalmandi, Nampally Station Road,
Hyderabad - 500 001.
...Respondent/Plaintiff
CROSS OBJECTIONS No.10 of 2019:
Sainath Mahendrakar
... Appellant/Plaintiff
AND
Mr.Purushottam S.Mahendrakar,
S/o.Late Sri Sakharam Mahendrakar,
Hindu, aged about 73 years, Occ:Business,
R/o. Ground 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 JUDGMENT
CCCA No.407 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.445 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
ground 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.445 of 2009.
Cross Objections No.10 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.445 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 in
OS.No.445 of 2009.
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3. For the sake of convenience, the parties will be herein after
referred to as arrayed in CCCA No.407 of 2018 as appellant-
defendant and respondent-plaintiff.
4. The relief prayed by the respondent-plaintiff in OS.No.445 of
2009 is as under:
a) Plaintiff be declared as owner of the suit schedule
property i.e. Ground 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.20,000/- 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 entire Ground 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
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and delineated in red colour in the plan annexed hereto and bounded as
under :
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.445 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 Ground floor and he was a licensee, was in
permissive possession of the entire Ground floor which is about
1000 square feet. In the prevailing circumstances, the Ground
Floor portion occupied by the appellant-defendant would easily
fetch rent of Rs.20,000/- per month exclusive of electricity and
other amenity charges, municipal property taxes etc. Therefore, the
respondent-plaintiff claims damages and compensation for
wrongful use and occupation and mesne profits @ Rs.20,000/- per
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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 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. Suryakant 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.
6.2. The plaint further states 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 the name of the respondent-plaintiff 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 and he is required to hand over the
possession of the property by the end of 31.05.2009. To that
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effect, they got issued Legal Notice on 24.03.2009. Appellant-
defendant got issued a reply on 26.05.2009 making adverse
allegations.
7.1. Appellant-defendant filed written statement and contended
that his late father Sakharam Mahendrakar purchased open piece
of land admeasuring 44.04 square yards in the year 1948 in the
name of his mother Smt.Radha Bai Mahendrakar which is the
premises bearing No.5-4-482 (shop), Kattalmandi, Hyderabad. His
father has also purchased another property to an extent of 110
square yards from Khairunnisa Begum in the name of his mother
through Sale Deed dated 19.03.1947 and the present Municipal
number is 5-4-477, Kattalmandi, Hyderabad. His mother did not
have any income of her own at any point of time, his father
constituted the joint family property. In all, eight children lived and
brought up in the two houses. As such, the respondent-plaintiff
cannot claim exclusive right in respect of premises bearing No.5-4-
477 and 5-4-482 consisting of Ground, First and Second Floors.
His mother has permitted him to open a Typewriting Institute in
the Ground Floor of the premises on 15.08.1965 and since then he
has been enjoying the same uninterruptedly, his father has also
given consent for carrying on the business in the Ground floor and
also provided financial assistance to a sum of Rs.10,000/-. There
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is no relationship of Licensee or Licensor between the parties at
any point of time. He repaired the property in the year 1965 by
spending an amount of Rs.10,000/-, he also spent Rs.2 Lakhs for
making flooring, electrical wiring etc., as it was in dilapidated
condition. Respondent-plaintiff is not entitled to claim any
damages.
7.2. Appellant-defendant further contended that his mother has
no necessity to execute Gift Settlement Deed dated 26.02.2007 in
favour of respondent-plaintiff. His mother and plaintiff are aware
that the appellant-defendant is carrying on business in the suit
schedule property from 1965 onwards for more than 45 years. As
such, the Settlement Deed is not valid in the eye of law. His mother
Smt.Radha Bai reconciled the situation prevailing at that time and
got executed a cancellation of Gift Deed on 17.10.2007. Thus, the
Gift Settlement Deed dated 26.02.2007 is no more existing. Hence,
the property is reverted back to his mother. His mother Smt.Radha
Bai was aged about 82 years and she was unable to move from the
bed, incapable of understanding things. In those circumstances,
respondent-plaintiff brought into existence the Gift Settlement
Deed dated 26.02.2007 by harassing her with an ulterior motive.
Similarly, document dated 10.03.2008 was also brought into
existence forcibly by taking advantage of the old age of their
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mother. Respondent-plaintiff has no authority to mutate his name
in the Revenue and Municipal records. Appellant-defendant learnt
that his mother never gave consent in issuing notice dated
24.03.2009 and it is only a high-handed act of the respondent-
plaintiff. His mother is not made as a party to the suit and the
same is bad for non-joinder of necessary parties. Appellant-
defendant is the absolute owner of the Ground floor and prayed to
dismiss the suit with exemplary costs of Rs.50,000/-.
8. Respondent-plaintiff has filed rejoinder denying the contents
of the written statement filed by the appellant-defendant. The
learned trial Court has framed the following issues:
1. Whether the plaintiff is entitled for declaration as
prayed for?
2. Whether the plaintiff is entitled to vacant and
physical possession of the suit schedule property?
3. Whether the plaintiff is entitled to mesne profits,
damages compensation for wrongful use and
occupation at Rs.20,000/- per month from the
date of suit till delivery of suit schedule property?
4. Whether the cancellation of gift settlement deed
dated 17.10.2007 is binding on the plaintiff?
5. Whether the defendant is the absolute owner of
the schedule property?
6. To what relief?
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9. Respondent-plaintiff is examined as PW.1 and also examined
PW.2-V.Surender, got marked Exs.A1 to A17. Appellant-defendant
is examined as DW.1 and got marked Exs.B1 and B2.
10. 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 Ground 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,
respondent-plaintiff is at liberty to obtain physical possession
through Court of Law. Rest of the claim is dismissed.
11. Learned counsel for the appellant-defendant contended that
the learned trial Court erred in decreeing the suit in part, has not
looked into Section 126 of the Transfer of Property Act (for short
'T.P.Act'). The learned trial Court admitted that the appellant-
defendant is in possession of the property for more than two
decades, erred in decreeing the suit. The learned trial Court erred
in cancelling Ex.A6-Certified Copy of Deed of Cancellation of
Cancellation of Gift Settlement Deed and also erred that the
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appellant-defendant is not a party nor signatory to Ex.A6 and it is
a collusive transaction between the respondent-plaintiff and his
mother. Appellant-defendant is in continuous possession and
enjoyment of the schedule property for more than 53 years to the
knowledge of the respondent-plaintiff. The learned trial Court has
not looked into when revocation of Cancellation Deed can be made
under section 126 of T.P. Act. The learned trial Court has
miserably failed to look into the principles laid down under Section
122 of the T.P. Act. The learned trial Court ought to have held that
it is a clear case of fraud made by the respondent-plaintiff in
collusion with his mother. No case is made out in the cross
objections filed by the respondent-plaintiff. Counsel to substantiate
his contentions has relied on the decisions in the cases of (1)
Keshav and others Vs. Gian Chand and another 1 (2) S.Manjula Vs.
G.Shoba and Others 2 and prayed to set aside the impugned
judgment and dismiss the Cross Objections.
12.1. 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
2022 (4) ALD 32 (SC)
2022 SCC OnLine Mad 3056
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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
General, Registration & Stamps, Hyderabad and Others 9 and no
interference is called for and prayed to dismiss the Appeal.
Cross objections No.10 of 2019 :
12.2. The learned trial Court erred in not granting mesne profits,
damages, compensation for wrongful use and occupation @
Rs.20,000/- Per month. 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
(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
2017 (4) ALT 213 (DB)
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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 not 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 lawful 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
discretionary 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 proved by the
respondent-plaintiff when application under Order 20 Rule 12 has
to be filed and prayed to allow the cross objections by setting aside
the judgment and decree dated 14.09.2008 insofar as mesne
profits is concerned.
13. Learned counsels on record have filed their written
submissions in support of their contentions.
14. Now the points for consideration are:
1. Whether the judgment and decree passed by the
learned trial Court suffers from any perversity or
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illegality? If so, does it require interference of this
Court (CCCA No.407 of 2018)?
2. Whether the respondent-plaintiff has made out
any case in the cross objections for setting aside
the judgment and decree passed by the learned
trial Court in so far as the mesne profits are
concerned (Cross Objections No.10 of 2019)?
Point Nos.1 and 2:
15.1. Appellant-defendant and respondent-plaintiff are own
brothers. Entire case of the respondent-plaintiff is resting on
Exs.A4 and A9.
15.2. Smt.Radha Bai Mahendrakar died on 27.07.2013.
16.1. 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
(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/-.
16.2. 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
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Old No.1512, New No.594, Circle-B, Kattalmandi, Hyderabad (one
storied).
16.3. 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.
16.4. 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 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".
16.5. 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
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).
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16.6. 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.
16.7. 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.
16.8. 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
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 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 Ground
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floor by the end of 31st May, 2009 and also liable to pay damages
and compensation for wrongful use and occupation @ Rs.20,000/-
per month till the handing over of possession.
16.9. Ex.A10 is the Reply Notice dated 26.05.2009 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 @
Rs.20,000/- per month as alleged in the notice dated 24.03.2009.
16.10. Ex.A12 is the Lease Deed executed by Smt.Radha Bai in
favour of Suryanarayana on 01.07.1963 in respect of one room
with common bath and lavatory attached to building bearing
Municipal No.5-4-482 and the duration of the lease is for 11
months from 01.07.1963.
16.11. Ex.A13 is another Lease Deed executed by Smt. Radha Bai
in favour of A.Purnachandra Rao in respect of one room with
common bath and lavatory attached to Municipal bearing No.5-4-
482 and the duration of the tenancy is for 11 months from
06.05.1963.
16.12. Ex.A14 is the Lease Deed executed by Suryanarayana in
favour of Smt. Radha Bai in respect of House No.5-4-477.
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17. 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 Radha Bai is the original owner of the suit
schedule property, she is not a party to the suit. Appellant-
defendant is residing in the Ground floor of House bearing No.5-4-
482 since 1965. Witness adds that ground floor of house bearing
No.5-4-477 is occupied by the appellant- defendant in the year
1975 and his mother was doing Tailoring work and she purchased
the suit schedule property from the funds of Tailoring and by
selling her marriage gifts given to her by her parents and relatives.
His father was doing Tailoring business since 1935 and he died in
the year 1967, his father has not executed any Will with regard to
the suit schedule property and that the appellant-defendant is
running a Type Institute in the Ground floor of House No.5-4-482
since 1965 and the appellant-defendant is doing business in the
Ground floor of 5-4-477 and 5-4-482, he do not know the reasons
for execution of Gift Deed dated 26.02.2007 in his favour (Ex.A4).
By the date of execution of Ex.A4, appellant-defendant is residing
in the house and that his mother has executed Cancellation of Gift
Deed dated 17.10.2007 (Ex.A5) at the instance of the appellant-
defendant, after coming to know about the fraud played by the
appellant-defendant, his mother has executed Cancellation of
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Cancellation of Gift Settlement Deed on 10.03.2008 (Ex.A6). He is
not an attestor to Ex.A5-Cancellation of Gift Deed dated
17.10.2007. Ex.A6 does not disclose his signature and he knows
the contents thereon. Appellant-defendant is not a party to Exs.A5
and A6 and there is no partition between them, he has not given
any notice to the appellant-defendant with regard to the mutation
of property in his name in the Municipal records under Exs.A7 and
A8. He do not know whether there is any revocation clause in
Ex.A5 and he has not informed the appellant-defendant about the
existence of Exs.A12 to A14. PW.1 denied the suggestion that his
mother Radha Bai has gifted the Ground floor bearing No.5-4-482
and 5-4-477 in the years 1965 and 1975 respectively to the
appellant-defendant and also denied the suggestion that Ground
floor of House No.5-4-463 and 5-4-465 are given to him. Witness
adds that House No.5-4-463 and 5-4-465 belongs to his father and
his mother has not gifted those properties to him. He denied the
suggestion that Ex.A6 is not a valid document and there is no
revocation clause in Ex.A5 and he has no right to file a suit against
the appellant-defendant, has no legal status to claim the suit
property.
18. 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
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cross-examination he stated that he has not gone through the
contents of the Gift Settlement Deed dated 26.02.2007 (Ex.A4)
after its execution and he has no knowledge about the subsequent
developments with regard to suit property. Respondent-plaintiff
has informed him that his mother has executed the Will in the year
1992 in favour of himself and his two brothers and he is the
attestor to Exs.A4 and A6, he was present before Sub-Registrar
Office near Nilopher Hospital, he do not know the understanding
between the respondent-plaintiff, appellant-defendant and their
mother. He denied the suggestion that he is giving false evidence
and he has no knowledge about the execution of Exs.A4 and A6.
19. Ex.B1 is the certified copy of Will Deed dated 26.10.1993
and its English translation is Ex.B2 which is executed by Smt.
Radha Bai in favour of the appellant-defendant, respondent-
plaintiff and other two sons. Smt.Radha Bai has bequeathed a part
of the property of House No.5-4-482 comprising a shop measuring
17.9 ft x 14.6 ft to appellant-defendant.
20. It is to be noted here that there is no reference with regard to
Ex.B1 Will dated 26.10.1993 in the written statement filed by the
appellant-defendant except stating that the appellant-defendant is
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the absolute owner of the Ground floor premises bearing No.5-4-
477 and 5-4-482.
21.1. The evidence of the appellant-defendant is the replica of his
written statement, for the first time, the appellant-defendant has
mentioned about the Will in his chief-examination affidavit in Para
No.5.
21.2. DW.1 stated in his cross-examination that approximately in
the year 1947, his mother has purchased House bearing No.5-4-
477 at Kattalmandi, Hyderabad and he has not seen the original
documents, he do not know in which year the property bearing
No.5-4-482, Kattalmandi was purchased by his mother, all the
original documents are in the possession of his mother. Witness
adds that during the lifetime of his father, the documents were
with him, later they came in possession of his mother. His brother
by name Ramesh has occupied premises bearing No.5-4-463 to
465 at Kattalmandi, Hyderabad which belongs to his father. The
premises bearing Door No.5-4-477 was constructed immediately
after the purchase of the property. Typewriting Institute was
started in Door No.5-4-482 in the year 1965 till the end of March,
1975. In the year, 1975, he started Electrical business in the same
premises and with the permission of his mother, he has removed
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the intervening wall between the two portions in House bearing
No.5-4-477 and 482 and his mother was residing in the second
floor of the above said house. In the year 1972, all the three floors
were constructed in the premises bearing No.5-4-477 and his three
brothers have occupied three different portions of premises bearing
No.5-4-463 to 465.
21.3. DW.1 further stated in his cross-examination that the
respondent-plaintiff has filed suit in OS.No.444 of 2009 against
Suryakanth in respect of First floor forming part of premises No.5-
4-477 and 5-4-482 along with OS No.445 of 2009. There is no
document to show that he has spent an amount of Rs.10,000/- in
the year 1965 and further an amount of Rs.2 Lakhs in respect of
property bearing No.5-4-477 prior to 1975. He know the contents
of Ex.B1 and he was not present at the time of execution of Ex.B1-
Will. He did not mention that his mother has executed Ex.B1-Will
in the written statement and he did not show the copy of the same
to his counsel while drafting the written statement. His brother by
name Ramesh daughter's engagement was performed at Bangalore
in the first week of October, 2007 and his mother attended the said
engagement and he do not know who is in possession of the
original of Cancellation of Gift Deed i.e., Ex.A5. Suryakanth had
purchased stamp paper for preparing Cancellation of Gift Deed i.e.,
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Ex.A5. He was not aware whether Ex.B1 was superseded by the
registered Gift Settlement Deed executed by his mother in favour of
the respondent-plaintiff and he was present at the time of
execution of Ex.A5. He do not know whether his mother has
executed Ex.A6. DW.1 denied the suggestion that respondent-
plaintiff is the owner of the suit property. Elder sister son's
daughter's birthday was celebrated on 27.12.2010. The schedule
property is a commercial property and he do not know whether the
suit property will fetch at least Rs.20,000/- to Rs.25,000/- per
month. He denied the suggestion that he is liable to pay damages
for the occupation.
22. Exs.A1 and A2 stands in the name of Smt.Radha Bai
Mahendrakar. Appellant-defendant defense 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
has paid the consideration and purchased the property in her
name.
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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
Ground floor occupied by him by the end of 31st May, 2009.
24. Appellant-defendant has 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, his mother Smt. Radha Bai has let out
the premises to Suryanarayana under Ex.A12 and to
Purnachandra Rao under Ex.A13. There is no record to show that
the appellant-defendant has incurred an amount of Rs.2 Lakhs in
making alterations in the Ground floor of the suit schedule
property. Even otherwise, appellant-defendant admitted that his
mother had made additions and constructions in the property in
the year 1972.
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 in the first
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week of October, 2007, and also attended the celebrations of the
elder sister son's daughter birthday on 27.12.2010 (Exs.A15 and
A16) and she also attended his sister's son function at Vijayawada
(Ex.A17). Respondent-plaintiff has mutated his name in the
Municipal records under Exs.A7 and A8 on 17.07.2007. 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 Keshav, the Supreme Court observed that "Hardei, an
illiterate and aged woman who during her lifetime in 1989, had
staunchly refuted having executed any gift deed transferring the
property to the plaintiffs therein. The rejection by the Revenue
Authority in 1989 remained unchallenged till Hardei died in 1991
and upheld the judgment passed by the trial court and the First
Appellate Court".
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".
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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
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
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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
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 Gargaboyina 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. The contention of the appellant's counsel is that Smt.Radha
Bai, mother of the parties is not made as a party in OS No.445 of
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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 28.02.2014. 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. As stated supra, Ex.B1 has not
seen the light of the day till the evidence of appellant-defendant is
filed. When there is no pleading with regard to Ex.B1-Will, there is
no point in referring to the contentions raised with the appellant in
respect of the said document.
29. Appellant-defendant has taken a defence in the written
statement in Para No.13 that the suit is barred by limitation.
Ex.A9-Notice is dated 24.03.2009, reply given by the appellant-
defendant under Ex.A10 is dated 26.05.2009, Suit for Declaration
of ownership of ground floor is filed on 08.07.2009 which is within
three years when the right to sue first accrues. Hence the point of
limitation is negative.
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30. Appellant-defendant admitted that he is in possession of the
property bearing Door No.5-4-482 since 1965 and 5-4-477 since
1975, 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.
31. 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 from 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.
32.1. 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.
32.2. 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.
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.
2024 INSC 817
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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.
33.1. 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
W/o.Suryakant. Attestor No.1 is the wife of the appellant-
defendant.
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33.2. 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).
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, further more 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
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.32.1 & 32.2
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.445 of 2009.
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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
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.20,000/- per
month till the property is handed over.
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39. Respondent-plaintiff has claimed mesne profits, damages
and compensation for wrongful use and occupation @ Rs.20,000/-
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
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
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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.407 of 2018 is dismissed and cross objections
No.10 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
