Bhagwan Das vs D.D.C.

@DELETEUPPERDATA

Anjani Kumar Mishra, J.—Heard Shri B.N. Agarwal, learned Counsel for the petitioner and Shri Kunal Ravi Singh, who appears for the contesting respondents. This writ petition arises out of an objection under section 9A(2) of the U.P. Consolidation of Holdings Act regarding plot No. 338 area 168 acres and 421 area 1.32 acres situated in Jalaun. These plots are plots of khata No. 98.

An objection was filed by Ram Swaroop S/o. Sone Lal on behalf of Chandra Prakash as his guardian claiming that the respondent No. 2 be mutated over the property in question on the basis of a gift deed dated 24.4.1962 said to have been executed by Bhagwan Das (petitioner) and Ram Swaroop (respondent No. 3) in favour of respondent No. 2 Chandra Prakash.

The objection was contested by the petitioner Bhagwan Das on the ground that the gift deed was not acted upon and the donee was never mutated in pursuance thereof.

The Consolidation Officer (CO) vide order dated 26.6.1979, dismissed the objection on the ground that the gift deed was not acted upon.

The respondent No. 2 Chandra Prakash filed an appeal against the order of the CO. The Settlement Officer, Consolidation (SOC) by his order dated 12.6.1980, dismissed the appeal.

In revision, the Deputy Director of Consolidation (DDC) set aside the orders of the two Courts below and allowed the objection vide order dated 9.3.1981, which is impugned in the instant writ petition.

Sri B.N. Agarwal, learned Counsel for the petitioner has submitted that the DDC in his judgment of reversal has failed to consider the reasonings given by the two Courts below. He, therefore, submits that the order impugned is vitiated by such non-consideration. Secondly, he has submitted that the respondent No. 3, namely Ram Swaroop, who filed the objection was not the natural guardian of respondent No. 2 and, therefore, he could not have filed the objection under section 9A(2). Admittedly, the mother of the minor Chandra Prakash was alive on the date the objection was filed. She was admittedly the natural guardian of her minor son but never came forward claiming on the basis of the gift deed in his favour. Lastly, it has been submitted that the SOC recorded a specific finding that the gift deed dated 24.4.1962, was never accepted by the donee or his guardian during his minority and, therefore, the gift deed was not valid in view of section 122 of the Transfer of Property Act and, therefore, the objection has been wrongly allowed.

Shri Kunal Ravi Singh, learned Counsel for the respondent No. 2 in rebuttal submitted that there is no dispute that the gift deed was a registered gift deed and the same was duly executed by the petitioner Bhagwan Das and the respondent No. 2. He further submits that the only grounds for non-acceptance or cancellation or revocation of a registered gift deed are provided under section 126 of the Transfer of Property Act. He submits that the conditions as contained in the said provision are not fulfilled and, therefore, the gift deed has been rightly accepted by the DDC and the said judgment is liable to be affirmed. He has further submitted, referring to the averments made in paragraph 8 of the counter-affidavit, that the Will was duly accepted. This affidavit was filed by the mother of the respondent No. 2 the donee, evidencing acceptance of the gift deed and it is this affidavit which is the basis of the impugned order. Elaborating further he states that although copy of this affidavit, is not on record, yet the same was admittedly filed by his client. The record of the case has been weeded out and it is not possible to bring it on record now. This affidavit is in consonance with the oral testimony of the respondent No. 3 who has stated that the gift deed was accepted. He therefore, submits that the finding of the DDC on the question of acceptance of the gift deed cannot be said to be perverse and the same is liable to be accepted and affirmed.

In rejoinder Shri B.N. Agarwal has submitted that the counter-affidavit was filed on 8.12.1982. Since the main dispute in the case was as regards to the valid acceptance or otherwise of the gift deed by the donee, the alleged affidavit evidencing acceptance of the gift should have been filed with the counter-affidavit. He further submits that the record had not been weeded out on the date the counter-affidavit was filed, namely, 8.12.1982 and, therefore, the respondents cannot claim any benefit on account of the fact that the record has since been weeded out. He has further submitted that different stands have been taken as regards the factum of acceptance of the gift deed and in this connection he has referred to paragraphs 8 to 11 of the counter-affidavit.

Upon consideration of the rival submissions and upon a perusal of the record it clearly emerges that the CO rejected the objection primarily on the ground that notices were issued to the donee as also to his mother but despite notice both failed to appear and on the basis of this fact he recorded a finding that it was not proved on record that the gift deed had been accepted. The CO further recorded that the donee was not in possession over the land which has been gifted to him. Therefore, it was held that the gift deed was only a paper and was not an actual transaction.

The SOC while dismissing the appeal held that the gift deed was a paper transaction which was never acted upon.

The DDC on the contrary has opined that the gift deed could have been accepted by the donee or his guardian during his minority. He has further recorded that an affidavit of the mother of the respondent No. 2 was filed during the pendency of the appeal and has expressed his surprise as to why this affidavit which was available on record, was not even referred to in the appellate order. He has further recorded that both the doners had accepted executing the gift deed in favour of the respondent No. 2 which fact had not being mentioned by the Courts below in their judgments and, therefore, allowed the revision.

It may, therefore, be recorded that from a perusal of the orders of the three Courts below it is clear that the first two Courts recorded categorical findings that the gift deed had not been accepted or at least the acceptance thereof was not proved on the record and, therefore, in view of the provisions of section 122 of the Transfer of Property Act held the gift to invalid. The DDC on the contrary has allowed the revision on the reasoning that an affidavit was filed by the mother of the donee before the Appellate Court and this fact was not mentioned in the appellate order, which fact should necessarily have been mentioned therein. On this observation coupled with the fact that the doners accepted having executed the gift deed, he has allowed the revision and ordered that the name of the donee be recorded over the property in dispute. He has however, failed to record specific finding that the gift deed was in fact accepted by the mother of the donee by means of the affidavit referred to in his judgment. In my considered opinion, the judgment of the DDC can be set aside only if it is proved on record that no acceptance was recorded in the affidavit referred to in the judgment of the DDC. However, this is not the case in the instant writ petition. The DDC was relied upon this affidavit to decide in favour of the respondent. The petitioner therefore should have filed this document if he was setting up a case of misreading of the record, but this was not done. Now this affidavit having been weeded out, the same cannot be filed or perused.

Under the circumstances, this Court has no option but to presume that the DDC rightly decided the case. Also, the respondent No. 3 one of the doners, has stated in his testimony that the gift was accepted and therefore the order impugned cannot be said to be perverse. Even if the affidavit is discarded, there is some evidence to show that the gift was accepted.

In view of the above discussion, there is no option but to affirm the impugned order. Accordingly the writ petition fails and is dismissed.