Gift - Possession = Though it is in respect of a gift made by a Muslim, that delivery of possession is treated as an independent requirement, the same becomes relevant as regards gifts governed by Section 123 of the TP Act also in the context of ascertaining the consent of the party to the transaction. A transfer through gift becomes complete, only when it is made by the donar and accepted by the donee. If what is gifted is an item of immovable property, acceptance can be discerned from the act of delivery of possession. In case, the property is in possession of a tenant, the delivery can be affected through attornment of tenancy. If the donar and donee reside in the gifted premises, no independent act of delivery possession becomes necessary. Where, however, the property is in possession of a different individual and no specific acts of bringing the possession under the control of donee are taken, the effectiveness of acceptance of the gift suffers a dent.


THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY        

SECOND APPEAL No.1238 of 2010    

05-01-2012.

Between:

Duddumpudi Venkatarayudu  

Duddumpudi Rajagopal alias Tatabbai and another

Counsel for the Appellant: Mr. T.S. Venkata Ramana

Counsel for the Respondents:Mr. M.V.S. Suresh Kumar  


?Cases referred                 :       AIR (15) 1928 P.C. 38      
                                                AIR (37) 1950 MADRAS 239  
                                                AIR (36) MADRAS 775  
                                                AIR (11) 1924 MADRAS 810  
FB
                                                AIR 1954 PATNA 556  

ORDER:
       
         The sole defendant in O.S.No.108 of 2002 is the appellant in this
second appeal.  For the sake of convenience, the parties are referred to, as
arrayed in the suit.

        2.  The 2nd plaintiff is the mother of the 1st plaintiff and the
defendant.  The suit was filed for the relief of declaration of title in respect
of the suit schedule property and for recovery of possession by evicting the
defendant therefrom.  Alternatively, it was pleaded that if any construction in
the schedule property is found to have been removed, then, a sum of Rs.50,000/-
be awarded towards value of the removed construction in addition to the recovery
of possession. Prohibitory injunction to restrain the defendant from making any
construction thereon or from interfering in any manner over the plaint schedule
property after possession thereof is delivered to the 1st plaintiff and
mandatory injunction directing him to remove new constructions if any made; were
also claimed.

3.  It was pleaded that the suit schedule property was purchased by the 2nd
plaintiff through a sale deed, dated 16-11-1981 (marked as Ex.A1) and that with
her permission, her elder son, the defendant, was living therein.  The 2nd
plaintiff is stated to have executed through her GPA, a gift deed on 06-03-2000
(marked as Ex.A-2) in respect of the suit schedule property, in favour of the
1st plaintiff and that through another document, dated 18-03-1998, she gifted
the vacant site of 121 sq.yds., to the defendant.  During the lifetime of their
father, the 1st plaintiff and the defendants are said to have partitioned all
the joint family properties, except the family house and a site and that they
were said to have been partitioned under a partition deed.
       
4.  It was pleaded that the 2nd plaintiff, who was residing with the 1st
plaintiff, an employee of the Central Government, went to Samalkot in the recent
past, when the 1st plaintiff proceeded to Newzealand.  It was alleged that when
the defendant was proclaiming rights of ownership over the suit schedule
property, the wife of the 1st plaintiff found from the Registrar's office that a
deed of revocation was executed by the 2nd plaintiff on 21-08-2000 (marked as
Ex.A-3) cancelling the gift executed in favour of the
1st plaintiff on 06-03-2000, and that another gift deed, dated
13-10-2000 (marked as Ex.A-4) was executed in favour of the defendant in respect
of the same property.  Alleging that the defendant played fraud upon the 2nd
plaintiff in procuring the documents Exs.A-3 and A-4, the plaintiff filed the
suit for the reliefs mentioned above.

5.  The defendant filed a written statement denying the allegations.  He stated
that the 2nd plaintiff never executed any gift deed in favour of the 1st
plaintiff.  He alleged that the 1st plaintiff got the GPA in favour of one of
his employees from the 2nd plaintiff and Ex.A-2 was brought into existence
through the said G.P.A.  He pleaded that the 2nd plaintiff realised the fraud
played upon her and on her own accord and free will executed a deed of
cancellation (Ex.A-3) and a gift deed (Ex.A-4), in his favour.  He further
stated that the 1st plaintiff was never in possession of the property.  He
further pleaded that the 2nd plaintiff did not instruct any one to file a suit
on her behalf and her signatures were forged at various documents, including the
plaint.  He raised an objection as to the maintainability of the suit.

6.  The plaintiff filed a rejoinder, explaining certain facts stated in the
written statement.

7.  The trial Court decreed the suit through judgment, dated 07-02-1956.  The
defendant filed A.S.No.1 of 2006 in the court of the VII Additional District
Munsif, Kakinada.  The appeal was dismissed on 26-07-2000.  Hence, this second
appeal.

8.  Sri T.S.Venkata Ramana, learned counsel for the defendant submits that
alleged gift deed (Ex.A-2) in favour of the 1st plaintiff was not proved as
required under law, particularly when the 2nd plaintiff (PW-1) the executant
thereof, stated that she did not sign upon it.  He contends that the very
registration of Ex.A-2 is shrouded in mystery since PW-1 disputed her signatures
thereon and the document has said to be presented for registration by a power of
attorney.  He further submits that Ex.A-3 the revocation deed and Ex.A-4 gift
deed in favour of the defendant were not challenged in the suit and in that view
of the matter, there was no basis for granting relief to the plaintiffs.  It is
urged that at no point of time, the 1st plaintiff was in possession of the
property and assuming that Ex.A-2 was proved, there was no delivery of the
possession of the property.  Learned counsel submits that the judgment rendered
by the trial Court and the lower appellate Court are contrary to the settled
principles of law.

9.  Sri M.V.S. Suresh Kumar, learned counsel for the
plaintiffs submits that the very fact that the 2nd plaintiff is said to have
executed Exs.A-3 and A-4 are sufficient to hold that Ex.A2 is proved.  He
submits that the possession of the defendant over the schedule property was
permissive and that he does not derive any right in respect thereof.  Learned
counsel submits that the minor discrepancies in the deposition of PW-1 are
referable to her old age and ill health and that the lower appellate Court has
taken the correct view of the matter and, granted appropriate relief.
       
10.  The pleadings before the trial Court comprised of plaint, written statement
and rejoinder.

11.  The following issues were framed by the trial Court:
1. Whether the 2nd plaintiff executed gift deed in favour of the 1st plaintiff?

2. Whether the 2nd plaintiff executed revocation deed, dated 21.08.2000?

3. Whether the plaintiffs are entitled to the declaration prayed for?

4. Whether the plaintiffs are entitled to possession?
5. Whether the plaintiffs are entitled to the alternative relief of recovery of
possession and recovery of Rs.50,000/-?
12.  On behalf of the plaintiff, PWs-1 to 7 were examined and Exs.A-1 to A-9
were filed.  On behalf of the defendant, DWs.1 to 4 were examined.  The trial
Court appointed a commissioner and the reports were taken on record as Exs.C-1
and C-2.  Exs.X-1 to X-4 were also taken on record and on the suit being
decreed, the defendant filed A.S.No.41 of 2006.

13.  The following points were framed for consideration by the lower appellate
Court:
1. Whether the 2nd plaintiff executed Ex.A-2 gift deed, dated 06-03-2000
bequeathing the suit schedule property to the 1st plaintiff, as such, it is
valid and binding on the defendant?

2. Whether the 2nd plaintiff cancelled the gift deed, Ex.A-2, dated 06-03-2000
by executing Ex.X-1 (Equivalent to Ex.A-3) and executed Ex.X-2 (Equivalent to
Ex.A-4) deed, dated 13-10-2000 in favour of defendant?

3. If the 2nd plaintiff cancelled Ex.A-2, dated
06-03-2000 by executing Exs.X-1 and X-2 whether the act of 2nd plaintiff is
valid under the eye of law?

4. Whether the 1st plaintiff is entitled for declaration of title over the suit
schedule property with consequential recovery of possession by ejecting the
defendant with damages of RS.50,000/-?

5. Whether the 1st plaintiff is entitled for permanent injunction, prohibitory
injunction and mandatory injunction as prayed for?

6. Whether the trial court erroneously appreciated the evidence on record and
decreed the suit of the plaintiff, as such the judgment and decree of the trial
court warranted any interference of this court or not?

The appeal was dismissed.

14.  The second appeal was admitted on finding that the following substantial
questions of law arise for consideration:
1) The lower court and appellate court failed to see that PW.1 admitted in her
evidence that she did not sign on the plaint and she denied signature on the
chief affidavit Ex.A-2 and the plaint?

2) The lower court and the appellate court failed to see that when PW.1 denied
her signature on Ex.a2 it cannot be said that Ex.A-2 gift deed was executed by
the 1st plaintiff with her free will and consent?

3) The lower court and appellate court failed to see that Ex.A-2 gift deed was
not registered by the 1st plaintiff and it was alleged to have been registered
by the power of attorney holder?

15.  Now it needs to be seen as to whether the defendants satisfied this Court
as to the existence of such questions and if so, how the said questions are to
be answered.

16.  The facts in brief, as reflected in the pleadings have already been
mentioned.  The dispute is, mostly between the two sons of the 2nd plaintiff
i.e., 1st plaintiff and defendant.  Both of them are laying claim to the
property held by their mother PW-1, and two separate deeds of gifts i.e. Ex.A-2
and Ex.A-4, respectively.

17.  The defendant raised a plea that PW-1, their mother, did not instruct any
one to file a suit, on her behalf.  If, in fact, she did not instruct anyone to
file the suit, a serious defect would creep into the proceedings.  It is only
the 2nd plaintiff that could have asserted that Exs.A-3 and A-4 were not
executed by her.  In case, she has executed the said documents and did not
disown them, the
1st plaintiff can claim against the relief against the defendant, if necessary,
by impleading their mother as one of the defendants.

18.  The 2nd plaintiff deposed as it PW-1.  In her cross-examination, it was
elicited through her that she did not sign the plaint or the affidavit filed in
lieu of chief-examination.  Her statement reads:
"the signature on plaint is not mine.  The signature on chief affidavit is not
mine. I have not filed any evidence with reference to the document executed in
the name of defendant."

19.  Once PW-1 stated that she did not sign the plaint or affidavit in lieu of
chief-examination, the very foundation for the suit becomes shaky.  It is true
that the evidence of PW-1 was not consistent and in several places, she made
contradictory statements.   However, that was also the case vis--vis Ex.A-2 a
gift deed in favour of the 1st plaintiff.  To be precise, she deposed:

"I do not know what is the document executed by me in favour of the 1st
plaintiff for the said land.  I do not know the contents of the documents.  I
signed the documents at the instance of the
1st plaintiff without knowing the contents. ...... .........
I executed that document when I was in hospital bed."

Similar statements were made as regards her terms with the defendant.

20.  When such is the condition or version of PW-1 i.e. the
2nd plaintiff, it is difficult to imagine that she gave specific instructions to
any counsel to file a suit on her behalf.  Further, it is not as if the parties
are helpless, if PW-1 was not in a position to take independent decisions.
Appointment of a next friend, as provided for under Order - XXXII CPC could have
been resorted to. Once, the 2nd plaintiff stated that she did not sign the
plaint and the affidavit in lieu of chief-examination, the trial Court ought not
to have treated the suit as properly instituted.  Even if a doubt in this regard
did not arise when the suit was numbered, at least when such facts came to light
at a later stage, there was no basis or justification for the Court to proceed
with the suit.  The plaint insofar as it related tEo the 2nd plaintiff ought to
have been returned, for presentation in accordance with law.  Therefore, the
first substantial question of law is found to be existing in this case, and it
is answered in favour of the defendant.

21.  Though Plaintiffs 1 and 2 sought the relief of declaration of title vis--
vis the suit schedule property, in fact the relief is claimed by the 1st
plaintiff alone.  The reason is that throughout the plaint, the emphasis is on
the validity and legality of Ex.A-2 the gift deed in favour of the 1st plaintiff
and invalidity of Exs.A-3 and A-4.  If Ex.A-2 is validly executed and if it is
continues to be valid, there is no question of the 2nd plaintiff holding any
right or title over the property.  In that view of the matter, the further
question as to whether there was a revocation thereof through Ex.A-3 and whether
the subsequent gift through Ex.A-4 in favour of the defendant is valid?, would
arise.  The defendant raised a specific plea that Ex.A-2 was not signed by PW-1
at all.  In the ordinary course of things, if a deed of cancellation is
executed, cancelling the deed of gift, the necessity to verify the proof of the
gift deed may not arise.  The reason is that an act of cancellation presupposed
the existence of what is sought to be cancelled.  Where, however, there is any
amount of uncertainty and a plea is raised to the effect that the gift deed was
not executed at all and cancellation was resorted to as a precautionary measure,
the necessity to prove the gift deed, independently, would subsist.

22.  Further, Section 68 of the Evidence Act mandates that if a document, which
is required by law, to be attested, cannot be used as evidence until one
attesting witness, at least, has been called, for the purpose of proving its
execution. Alternative methods are also indicated.  If the deed is registered,
the necessity to examine the attestors may not arise unless, the executant of
the document denies his signatures on it.  In the instant case, Ex.A-2 is a gift
deed and it is required to be attested under Section 123 of the Transfer of
Property Act (for short 'TP Act').  In the plaint, it was mentioned that though
the document was signed by PW-1, it was presented for registration by her GPA
(PW-6).

23.  The necessity for the plaintiff, to prove a document would arise when the
defendant denies the execution thereof.  An extraordinary situation is noticed
in this case.  PW-1 stated that she did not know the contents of Ex.A-2 and that
she was unwell when it was executed and that she did not sign that document at
all.  Though this was elicited in her cross-examination, no damage control was
done, either by making suggestions in any re-examination or by adducing any
other evidence.  Some of the statements made by her in the cross-examination
vis--vis Ex.A-2 have already been extracted in the previous paragraphs.  She
said that she does not know the contents of the document.  In addition to that,
she said:
"I cannot give particulars of the document.  By that time, I am unwell.  I was
in hospital by that time. I was on saline for three months and intake of food
was not good."

At another place, she stated:
"I do not know who drafted and typed Ex.A-2.  I was seriously ill by the date of
Ex.A-2 and it was being plan to take me to USA for treatment.  My condition was
not good by the date of Ex.A-2."

        24.  Proof of the execution of any document, which is relied upon by a
party to a suit, is one of the most important steps in the proceedings.    The
Evidence Act stipulated the method of proving a document either through primary
or secondary evidence.   What is required to be proved, is the execution of
document than its existence.   The word "execution" is not defined in any
enactment.  More often than not, the proof of signature on a document, is taken,
or treated, as proof of execution thereof.

        25.  A close scrutiny of the process, known as "execution of a document"
brings about several legal aspects or principles to light.  This area is mostly
covered by the Registration Act.  Sections 34 and 35 prescribe the manner in
which the Registrar is required to admit a document to registration.  Sections
77 thereof provides the remedy of filing of a suit, in the event of the
registration being refused.

        26.  There is a general perception that, once a document is presented
before a Registrar, and the executant thereof, admits his signature, or thumb
impression thereon, the Registrar has no option, but to register the document.
In other words, even if the executant pleads ignorance of the contents, or urges
that his signature was taken on a blank paper and that legal obligations, which
he did not subscribe to, were incorporated therein, the Registrar cannot refuse
registration.  The Privy Council and the High Courts of Madras and Patna made
valuable contribution in this area of law.

27.  In Puranchand Nahatta v. Monmothonath Mukherji1, Their Lordships of the
Privy Council held that the expression "person executing" is not identical with
the expression "person signing".  It was observed, that the words, 'person
executing',

"... mean something more, namely, the person, who by a valid execution enters
into obligation under the instrument."

28.  According to this, "execution" would mean the admission on the part of the
executant, that he subjected himself, to an obligation under the instrument.
This principle was followed by a Division Bench of the Madras High Court in
Sayyaparaju Surayya v. Koduri Kondamma2.  That case arose under Section 77 of
the Registration Act.  The Sub-Registrar refused to register a document, when
the signatory thereof denied the execution.  It was alleged that his signatures
were taken on  blank papers and that the document was brought into existence.
The Division Bench discussed the purport of Sections 35 and 77 of the Act with
reference to the decided cases and held :

        "The admission required, therefore, is admission of the execution of the
document. It may be a sale-deed, it may be a mortgage deed. It is not enough for
the person, who is the ostensible executant, to admit his signature on a paper
on which, may be, the document is ultimately engrossed. The identity of the
papers on which the signature occurs is not sufficient. If a man says that he
signed a blank paper on the representation that it was required for presenting a
petition, as in the present case, or if a man signs a completed document on the
representation that his signature or thumb impression is required as an
attesting witness, that admission of the signature or thumb impression in those
circumstances cannot be construed to be an admission of the execution of the
document."
29.  The judgment in Bapanayya v. Bangararaju3, rendered by a learned single
Judge, which held otherwise, was over-ruled.  Reliance was placed upon a
judgment rendered by a Full Bench of Madras High Court in Guruvayya v.
Venkataratnam4  The facts of the case before the Full Bench were: two documents,
have been procured from a person, in respect of two items of property, and later
on, the purchasers erased the contents of the documents, keeping the signature
in tact.  Documents, in respect of a larger extent of property were brought into
existence.  When the documents were presented for registration, the executant
admitted his signature, but denied the contents.  Manipulation of the contents,
was complained of.  It was urged on behalf of the purchaser that the Registrar
has no option, but to register the document, once the signature on the documents
was admitted by the executant.  On refusal of registration, suit was filed under
Section 77 of the Registration Act and the matter landed before the Full Bench.
The view taken by the Registrar, that the document cannot be registered if the
executant disputes the contents was upheld.  The gist of the judgment of the
Full Bench was summarized as under:

        "The mere fact that the signature on the document was admitted is not
treated as execution of the document so as to make it the imperative duty of the
Registrar to register the document. The admission of signature therein cannot be
taken to be conclusive and as constituting admission, of execution of the
document."

        30.  In Rajendra Singh v. Ramganit Singh5, the Patna High Court observed
that execution consists in signing a document written out, read over and
understood; and does not consist in merely signing a name upon a blank sheet of
paper.

        31.  It therefore emerges that the person can be said to have executed the
document, only when he knows the contents thereof and subscribes his signature,
or puts his thumb impression.  Once that is done, the question as to whether the
obligations created under the document are lawful or not would be outside the
scope of the power of a Registrar, or for that matter, of a Court.  That
exercise can be undertaken, if only the transaction covered by the document is
challenged.

        32.  In the instant case, PW.1 stated in unequivocal terms that she was
not aware of the contents of Ex.A.2.  Though her signature upon it was not
disputed, she cannot be said to have executed the document, once she was
ignorant about the contents.  Putting the signature on a document is not an
empty formality.  That act must connote the consent of the signatory, to abide
by the obligations, which arise under the document, or at least, the knowledge
thereof.

33.  Free will and being in a position to take an independent decision of sine
qua non for an individual to bring into existence a valid contract.  Since the
transaction of a gift is the one not suggested by any consideration, the
satisfaction of these two aspects is required to be much more.  When the party
was not in a position to take any decision, and was in a serious distress, any
commitment procured from such person is prone to be treated as tainted with
undue influence, or coercion.  If the witness, after recovering from the
distress, states that she did not know the contents of document when she signed
it, a valid gift cannot be said to have been made even if the other requirements
of law are satisfied.  Therefore, the second substantial question of law is
answered in favour of the defendant.

34.  A serious dispute arises as to whether a valid registration of Ex.A-2 has
taken place at all.  The reason is that the document was presented for
registration by a power of attorney.  Detailed procedure in prescribed under the
Registration Act and the Rules made thereunder, in this regard.  It is not clear
that the procedure was followed.  Another aspect of the matter is about delivery
of possession.

35.  Though it is in respect of a gift made by a Muslim, that delivery of
possession is treated as an independent requirement, the same becomes relevant
as regards gifts governed by Section 123 of the TP Act also in the context of
ascertaining the consent of the party to the transaction.  A transfer through
gift becomes complete, only when it is made by the donar and accepted by the
donee.  If what is gifted is an item of immovable property, acceptance can be
discerned from the act of delivery of possession.  In case, the property is in
possession of a tenant, the delivery can be affected through attornment of
tenancy.  If the donar and donee reside in the gifted premises, no independent
act of delivery possession becomes necessary.  Where, however, the property is
in possession of a different individual and no specific acts of bringing the
possession under the control of donee are taken, the effectiveness of acceptance
of the gift suffers a dent.

36.  The suit schedule property, in the instant case, was in the possession of
the defendant even before the gift was made.  That was accepted by PW-1 and
nothing contrary was indicated.  After Ex.A-1 also, the defendant continued to
be in possession. Though it was stated in the plaint that the defendant remained
in possession of the property with the consent of the 1st plaintiff, who deposed
as PW-2, he did not state the manner in which such consent was given.  For all
practical purposes, Ex.A-2 did not bring about any qualitative change of the
possession of the defendant over the suit schedule property.  Therefore, from
this point of view also, there was no valid gift in favour of the 1st plaintiff.

37.  For the foregoing reasons, the Second Appeal is allowed.  The judgments
rendered by both the Courts below are set aside.  There shall be no order as to
costs.

____________________  
L. NARASIMHA REDDY, J    
January 05, 2012.

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