Gurdial Singh vs Chhaja Singh

J.V. Gupta, J.

This is plaintiff''s second appeal whose suit for possession of the agricultural land was decreed by the trial Court but dismissed in appeal.

Smt. Ako and Bhanga Singh were sister and brother, Smt. Ako had a son Sampuran Singh who was married to Ladh Kaur. Sampuran Singh had a son Gurdial Singh and a daughter Kirpal Kaur. Sampuran Singh is said to have died somewhere in the year 1947. Bhanga Singh had three sons Sadhu Singh, Bakhtawar Singh and Chanchal Singh and a widow Ram Devi. On the death of Bhanga Singh, Ram Devi remarried one Didar Singh. Out of this wedlock Chhanija Singh, defendant, was born. On the death of Sampuran Singh, Sadhu Singh son of Bhanga Singh brought Gurdial Singh and Kirpal Kaur with their mother Ladh Kaur to his village as they were minors at that time. On 11th of December, 1954, Sadhu Singh made an oral gift of 3 bighas of land in favour of Gurdial Singh, plaintiff. Mutation was sanctioned of this transaction of 20th of January, 1955, vide Exhibit P. 2 Later on, Sadhu Singh executed a gift deed of his 1/3rd share in 51 kanals 2 mares of land in favour of Gurdial Singh, plaintiff, vide gift deed Exhibit P1 dated 5th of June, 1967. This gift deed was produced before the revenue officer on 11th of November, 1976, by Guyrdial Singh. Even Sadhu Singh appeared before the revenue officer and admitted the execution of the gift deed on 20th of November, 1967, as recorded in Exhibit P. 3. Again on 14th of December, 1967, Bakhtawar Singh, real brother of Sadhu Singh, donor, also appeared and admitted the gift deed. In spite of all this the mutation was rejected by the revenue officer on 8th of January, 1969. Sadhu Singh, the donor, died in the year 1969. On his death his mother Ram Devi got the mutation sanctioned in her favour on 16th of November, 1970. Later on she executed a gift deed in favour of her son Chhajja Singh from the loins of Didar Singh on 20th of November, 1970. Mutation was also sanctioned in favour of the donee on 19th of December, 1970. Since plaintiff Gurdial Singh was in military service and thus being not in the village Chhajja Singh got possession of the suit land Gurdial Singh. plaintiff, filed the present suit for possession on 9th of April, 1973, on the basis of the gift deed Exhibit P1 dated 5th of June, 1967, executed in his favour by Sadhu Singh.

In the written statement the defendant denied the claim of the plaintiff and pleaded that the plaintiff and his mother had no concern with deceased Sadhu Singh whereas Ram Devi being the mother of Sadhu Singh rightly entered into possession of the property in dispute. He also pleaded that he used to serve his mother Ram Devi who out of love and affection and got a gift deed of the land in dispute executed in his favour.

The trial Court found that Sadhu Singh executed a valid gift deed in favour of the plaintiff regarding the suit land and the suit was within limitation. In view of that finding the plaintiff''s suit was decreed.

In appeal filed by defendant Chhaja Singh, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that "from the aforesaid evidence on record I am convinced that the donee did not accept the gift and further I am also convinced that delivery of possession to the donee did not take place in consequence of the said gift deed." Earlier it was found by the learned Additional District Judge that "from the testimony of the said witnesses the execution of the gift deed by Sadhu Singh in favour of the plaintiff stands proved."

During the pendency of this appeal Gurdial Singh, plaintiff, died and Smt. Kirpal Kaur being the sister was brought on the record as his legal representative vide order dated 27th of May, 1988.

Learned counsel for the appellant contended that the acceptance of the gift deed by the donee is amply proved on the record from the interim orders passed by the revenue officer dated 20th of November, 1967, and 14th of December, 1967, contained in Exhibit P3 and, therefore, the finding of the learned lower Appellate Court in this behalf was wholly wrong, illegal and against the evidence on record whereas trial Court rightly came to the concluding that Sadhu Singh executed a valid gift deed in favour of plaintiff Gurdial Singh. According to the learned counsel acceptance could be implied or express and delivery of possession as such was not necessary. In support of his contention he referred to Pishori Lal v. Smt. Maya Devi and another, 1973 P.L.J. 323, Sarba Mohan Benerjee v. Manmohan Benerjee and others, AIR 1933 Calcutta 488 and Tirath v. Manmohan Singh and others, AIR 1981 Punjab and Haryana 174. On the other hand, the learned counsel for the defendantrespondent submitted that the plaintiff has failed to prove on the record that the possession of the suit land was delivered to the plaintiff as alleged in the plaint. According to the learned counsel there was no delivery of possession and the gift deed Exhibit P. 1 was only a paper transaction. In the absence of any acceptance by the donee, there was no valid gift in favour of the plaintiff. In support of this contention, he referred to State of Punjab and others v. Sant Singh, 1976 PLR 87. He further submitted that Sadhu Singh shown in possession of specific Khasra numbers in the jamabandi for the year 196061 Exhibit P. 5 and, therefore, the land was capable of delivery of possession. Moreover, argued the learned counsel, the plaintiff has failed to prove that he was present at the time of execution of the gift deed. He also submitted that there was no presumption as to the identity of the person appearing before the revenue officer as recorded in Exhibit P. 3 and, therefore, the same could not be relied upon. In this behalf he referred to Smt. Punjabi and another v. Hazura Singh and others, 1984 PLJ 14 : 1986 R.R.R. 477.

After hearing the learned counsel for the parties and going through the relevant evidence on the record, I find force in the contention raised on behalf of the plaintiff appellant.

Section 122 of the Transfer of Property Act defines gift as under :

"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by the person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be madeSuch acceptance must be made during the lifetime of the donor and while he is still capable of giving.

If the donee dies before acceptance, the gift is void."

Section 123 further provides as under :

For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered."

Thus the only question to be determined in this appeal is whether the donee accepted the gift during the lifetime of the donor or not. It was held by this court in Pishori Lal''s case (supra) that where it was contended that the gift alleged to have been made by the husband in favour of his wife was not legal because the wife as her own witness stated that the gift in her favour was made by the fatherinlaw and not by her husband, the wife being not aware of the gift never accepted it. It was ruled that under section 122 of the Transfer of Property Act, acceptance of the gift during the lifetime of the donor is necessary to make the gift valid and effective. The fact that the wife was in possession of the gift deed and produced it in court in support of her title proves that she had accepted the gift and was aware of it. Similarly in the present case, the donee was in possession of the giftdeed throughout and the donor. Sadhu Singh, himself appeared before the revenue officer on 20th of November, 1967, and admitted its execution and the transfer thereunder. There is nothing on the record to show that the donee did not accept the gift deed during the life time of the donor. The approach of the learned Appellate Court in this behalf was wholly working and illegal whereas the trial Court rightly came to the conclusion that "so these proceedings of the mutation do show that the gift deed by Sadhu Singh in favour of the plaintiff was genuine and it had been accepted by the plaintiff. There is no evidence worth consideration from side of the defendant to rebut the evidence of the plaintiff on this issue." Surprisingly enough the learned lower Appellate Court has not even referred to these mutation proceedings Exhibit P. 3 while reversing the finding of the trial Court in this respect. It was observed in the Full Bench judgment of this Court reported in The State of Punjab v. Pohu and another, 1985 PLJ 583 : 1986 R.R.R. 228, that "there can be no dispute with the proposition that the entries made in the revenue register by the Patwari in the discharge of his public duties or the orders passed thereon by the revenue officer would be relevant piece of evidence under Section 35 if they contain any fact in issue or a relevant fact". Thus in the presence of the said orders in Exhibit P. 3, it could not be held that the gift was not accepted by the donee during the lifetime of the donor.

The learned counsel of the defendantrespondent argued that delivery of possession was necessary for acceptance of the gift and cited Sant Singh''s case (supra). That was a case under the Hindu Law and has no applicability to the facts of the present case. Delivery of possession will be one piece of evidence of acceptance and even if the possession as such may not have been delivered, even then acceptance could be there by the donee as is the present case.

As observed earlier in the present case the donor himself appeared before the revenue officer and accepted the gift deed and the delivery of possession on 20th of November, 1967, Exhibit P. 3. In these circumstances, there was valid gift in favour of plaintiff Gurdial Singh made by Sadhu Singh and once the said gift deed was made, then there was nothing for Ram Devi to succeed to the suit land on the death of her son Sadhu Singh as he had already deprived himself of the ownership by executing the gift deed in favour of Gurdial Singh.

Thus as a result of the above discussion, this appeal succeeds, the judgment and decree of the lower Appellate Court are set aside and that of the trial Court decreeing the plaintiffs suit are restored with cost.