Whether the Courts below were justified in considering the Ex.A1/Ex.B-2 deed dated 19-03-2005 executed by S. Narapa Reddy as an irrevocable gift settlement deed in favour of the respondent Nos.1 and 2/plaintiffs though the recitals in the said deed provided for retaining of life interest in the property in S. Narapa Reddy himself and after his demise to his wife? 2. Whether the Courts below were justified in holding that the revocation deeds executed by S. Narapa Reddy were void and not binding upon the respondent Nos.1 & 2 even in the absence of any prayer sought for by the respondent Nos.1 & 2 in this regard? 3. Whether both the Courts were justified granting the reliefs sought by the respondent Nos.1 & 2 in the absence of any prayer in suit against the revocation deeds executed by the father of the respondent Nos.1 & 2 and also the substantial registered sale deed dated 04-04-2012 in favour of the appellant Nos.2 & 3? 4. Whether the trial Court was justified in holding that the appellant Nos.2 & 3 are not bonafide purchasers for valuable consideration merely because the counsel for the appellant No.1 had received notice about the filing of the suit on 02-04-2012 and the sale deeds in favour of the appellant Nos.2 & 3 were executed on 04-04-2012?

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        

S.A No.1054 of 2016

02-01-2017

Smt. Syamala Raja Kumari and others. .Appellants.

Alla Seetharavamma and another. .... Respondents.

Counsel for the petitioner :  Kowturu Pavan Kumar.                    
       
Counsel  for the Respondent: Sreenivasa Rao Velivela                  
               

<Gist :

>Head Note:

? Cases referred:

1.AIR 2014 SC 2906
2.2013 (5) ALD 711

THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        

SECOND APPEAL No.1054 of 2016    

Date:02.01.2017


THE HONBLE SRI JUSTICE SURESH KUMAR KAIT        

SECOND APPEAL No.1054 of 2016    

JUDGMENT:  
        Vide the present second appeal, the appellants have assailed
the Judgment & Decree dated 19-10-2016 passed in
A.S.No.75/2016  on the file of I Additional District Judge, Guntur
whereby confirmed the Judgment & Decree dated 12-11-2015  
passed in O.S.No.50/2012 on the file of the Senior Civil Judge,
Mangalagiri, Guntur District.

2.      The appellants have filed the present second appeal on the
substantial questions of law as under:-
       1.      Whether the Courts below were justified in
considering the Ex.A1/Ex.B-2 deed dated 19-03-2005 executed by  
S. Narapa Reddy as an irrevocable gift settlement deed in favour of
the respondent Nos.1 and 2/plaintiffs though the recitals in the
said deed provided for retaining of life interest in the property in
S. Narapa Reddy himself and after his demise to his wife?

       2.       Whether the Courts below were justified in holding
that the revocation deeds executed by S. Narapa Reddy were void
and not binding upon the respondent Nos.1 & 2 even in the
absence of any prayer sought for by the respondent Nos.1 & 2 in
this regard?

       3.       Whether both the Courts were justified granting the
reliefs sought by the respondent Nos.1 & 2 in the absence of any
prayer in suit against the revocation deeds executed by the father
of the respondent Nos.1 & 2 and also the substantial registered
sale deed dated 04-04-2012 in favour of the appellant Nos.2 & 3?

       4.       Whether the trial Court was justified in holding that
the appellant Nos.2 & 3 are not bonafide purchasers for valuable
consideration merely because the counsel for the appellant No.1
had received notice about the filing of the suit on 02-04-2012 and
the sale deeds in favour of the appellant Nos.2 & 3 were executed
on 04-04-2012? 

3.      Learned counsel for the appellants submits that the
document-Ex.A1 executed is a Will, not a gift deed and the Will can
be conditional and revocable, if revoked in the same manner as
executed earlier.  Admittedly, Ex.A1 is a registered document,
which can be revoked subsequently by another registered
document, but the issue before the Court below was that whether
the document-Ex.A1 was a Will or a gift deed.

4.      Learned counsel for the appellants submits that the said
document was a Will and in Will, some conditions can be affixed
while exhibiting such document, whereas in case of gift, the said
document is absolute and there cannot be any condition.  In case
of gift, whether it is gifted in favour of some one out of love and
affection or not gifted any of the property over a right therein.

5.      On a perusal of the impugned order, the Court below has
discussed that when the gift may be suspended or revoked.
For the said purpose, Section 126 of Transfer of Property Act is
relevant, which is reproduced as under:-
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.
       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.


6.      It is not in dispute that the gift is to be executed only out of
love and affection.  As per Ex.B2-gift settlement deed executed by
donar, the donar executed the said gift deed out of love and
affection towards the plaintiffs.  Ex.B2 is a valid gift deed and it is
a registered one.  It is executed by owner and attested by two
attesters.  In fact, the execution of gift deed is not in dispute.

7.      The donar in Exs.B3 & B4 revocation deed clearly admitted
about the execution of Ex.B2-gift settlement deed.  Even Ex.B5-
registered sale deed also, the donar mentioned execution of Ex.B2-
gift settlement deed in favour of the plaintiffs.

8.      To substantiate as recorded above, it is necessary to note
down that the original gift settlement deed dated 19-03-2005
executed by Narapa Reddy in favour of the plaintiffs and his wife
Annapurnamma was marked as Ex.B2.  The said document-Ex.B2    
recited in the said deed that the plaintiffs are the daughters, the
donar wanted to gift the schedule property in their favour out of
love and affection.  Under the said document, life interest right was
retained by the donar-Narapa Reddy. As mentioned in the said
document that after the death of donar, his wife shall enjoy the
property without any right of alienation till her death and
thereafter, the donees-plaintiffs can enjoy the property with
absolute rights.  However, there are no conditions imposed by the
donar for gifting the said property in favour of the plaintiffs.
The said document makes it clear that it is not at all a Will and it
is only a gift deed and what was retained by the donar is right to
enjoy the property till his death and similarly, his wife also was
enjoyed the property till her death.  The wife of the donor
predeceased him.  But on 13-02-2008, the donor-Narapa Reddy
executed Ex.B3-revocation deed.  In the said revocation deed, the
donor admitted that he executed a gift settlement deed in favour of
the plaintiffs out of love and affection.  But the reasons mentioned
by the donor for revocation of the gift deed are that the plaintiffs
are not taken care of him and his wife and they are not visiting his
house and they lost his confidence and so, he revoked the gift
settlement deed executed in the year 2005.  Again on 07-02-2012,
the donar executed another revocation deed vide Ex.B4, wherein
he mentioned that the plaintiffs obtained the gift settlement deed
by misrepresenting him.  But the said fact is not mentioned in the
earlier revocation deed dated 13-02-2008.  So for the first time in
Ex.B4-revocation deed, the donor has mentioned that the donees
obtained the gift settlement deed by misrepresenting him and by
inducing him.  Thereafter, on 15-02-2012, the donor executed
Ex.B5-sale deed in favour of the first defendant in respect of the
schedule property.  In the said sale deed also, the donor clearly
admitted the fact that he executed gift settlement deed in favour of
the plaintiffs on 19-03-2005 and thereafter, his wife
Annapurnamma died on 13-07-2008.  

9.      It is important to note that in the said sale deed, the donor
has not mentioned that the plaintiffs obtained gift settlement deed
by misrepresenting him and by inducing him.  However, it was
mentioned that as he was in need of money for his maintenance,
medical expenses and for discharging debts, he cancelled the gift
settlement deed by execution of revocation deed i.e., Ex.B4.

10.     To substantiate the above opinion, the Court below observed
that once a valid gift has given by the donor and was accepted by
donees, the same cannot be revoked for any reason.  As per the
provisions of Section 126 of the Transfer of Property Act, if the gift
is a conditional one, and the donee has not fulfilled the condition,
then the donor may get some right to revoke the gift.  In the case in
hand, the donor-Narapa Reddy has gifted the schedule property to
the plaintiffs with absolute rights, but he retained his right to
enjoy the property till his death.  Simply because, the donor has
retained the right to enjoy the property, it cannot be said that the
absolute gift of schedule property was made in fvour of the
plaintiffs.

11.     In the present situation, a case of Renikunta Rajamma
(died) by L.Rs vs. K. Sarwanamma  is relevant whereby held that
the recitals in the gift deed also prove transfer of absolute title in
the gifted property from the donor to the donee. What is retained is
only the right to use the property during the life time of the donor,
which does not in any way affect the transfer of ownership in favour
of the donee by the donor.

12.     In case of Nakka Parthasarathy vs. Nakka Krishnaveni
and others , wherein held that when once the gift deed is
voluntarily made without there being any coercion or undue
influence, the acceptance of the gift by the donee would be complete
even though the deed of gift is not delivered to the donee and the gift
property continues to be in the donors possession.

13.     In the present case, as per the terms of Ex.B2-gift settlement
deed, after the death of donor-Narapa Reddy, the plaintiffs would
get absolute rights in respect of the schedule property.
By executing the said gift settlement deed, the donor has divested
his right in the schedule property so he cannot unilaterally execute
any revocation deed for revoking the gift settlement deed executed
by him in favour of the plaintiffs. So the revocation deeds executed
by the donor vide Exs.B3 & B4 are not binding on the plaintiffs as
said deeds are not valid. So once the donor had no right to revoke
the gift settlement deed validly executed by him in favour of the
plaintiffs, he cannot alienate the schedule property in favour of the
first defendant by executing Ex.B5-sale deed.

14.     It is pertinent to mention here that within two months from
the date of obtaining Ex.B5-sale deed, the first defendant in turn
alienated the schedule property in favour of defendants 4 & 5.
The sale transaction entered by the first defendant in favour of
defendants 4 & 5 is subsequent to the filing of the suit.

15.     As stated by the counsel for the respondents that the
property in question has only been got vacated vide order passed
in E.P.No.1/2016 by the Senior Civil Judge, Mangalagiri.
Consequently, the respondents 1 & 2 are in possession. Even
otherwise, the questions of law framed by the appellants has no
legal issue therein and find no perversity or illegality in the orders
passed by the two Courts below.  Therefore, I find no grounds to
interfere with the decisions taken by them.

16.     Accordingly, finding no merits, this Second Appeal is
dismissed and as a sequel, miscellaneous petitions, if any, pending
in this second appeal, shall sand dismissed.  No costs.
_________________________________    
JUSTICE SURESH KUMAR KAIT      
Date:02-01-2017