Parvati and Another vs Mrutyunj Ayya Gurupadayya and Another

This appeal by defendants 1 and 2 is directed against the judgment and decree dt. 10.7.1974 passed by the Civil Judge, Bagalkot, in RA. No. 485 of 1967, on his file, dismissing the appeal of the defendants on confirming the judgment and decree dt. 31.7.1967 parsed by the Munsiff, Hungund, in CS No. 82 of 1965, on his file, decreeing the suit of the plaintiff as prayed for.

It is the case of the plaintiff that the suit properties were formerly of the ownership of his uncle Andanayya Veerayya Math and that he was enjoying the suit properties, they being in his possession. He effected a gift deed in his favour under the original of Ex.124 on 17.6.1963, Since the defendant''s are disputing his title, he instituted the suit for declaration of his title, his legal status acquired under the gift deed as owner.

The suit was resisted by defendants 1 and 2 and defendant-3 remained absent and was placed ex-parte. According to the contending defendats 1 and 2, the gift was theresult of fraud and undue influence. It was illegal because one of the properties was a fragment. They further contended that the gift deed was executed under suspicious circumstances, because nothing was provided for the wife viz., defendant-1 in the suit., and all the properties were gifted away in favour of the plaintiff.

The trial Court raised the following issues as arising from the pleadings:

(1) Does the plaintiff prove the due execution of the gift deed dated 17.6.1963 by Andanayya?

(2) Do defendants prove that the plaintiff practised fraud, as alleged in para-6 of their written statement, and got the gift deed?

(3) Does the plaintiff prove that the sale deed executed by Andanyya in favour of the father of defendant-2 in 1933 in respect of Survey No. 1/1 of Mugur, is hollow and not acted upon?

(4) Does the plaintiff, in the alternative, prove that Andanayya had become the owner of Mugur land by adverse possession?

(5) Is the gift deed in respect of Revision Survey No. 14/2A of Budihal village invalid in view of the provisions of the Bombay Prevention of Fragmentation & Consolidation of Holdings Act?

(6) Even if Issue No. 1 is answered inthe affirmative, are not the suit properties subject to the rights of maintenance of defendant 1?

(7) What decree?

Appreciating the evidence on record, the trial Court held under Issue No. 1 in the affirmative, under Issue No. 2 in the negative, under Issue No. 3 in the affirmative, under Issue No. 4 in the affirmative, under Issue No. 5 in the negative and under Issue No. 6 in the affirmative, and in that view, the trial Court decreed the suit of the plaintiff as prayed for. Aggrieved by the said judgment and decree, defendants 1 and 2 went up in appeal before the Civil Judge. Bagalkot, in RA No. 485 of 1967, on his file, and the learned Civil Judge put all the issues into points before him for consideration and, by his judgment dated 10.7.1974, answered all the material issues in favour of the plaintiff and, in that view, he dismissed the appeal of defendants 1 and 2 on confirming the judgment and decree of the trial Court. Aggrieved by the same, defendants 1 and 2 have come up with the above second appeal before this Court.

The learned Advocate appearing for the appellants strenuously contended before me that the Courts below were wrong in interpreting the original of Ex. 124 as a gift deed, as in substance and in reality, it was only a will. He further submitted that Ex. 124 could not be admitted into evidence as the conditions mentioned in S. 65 of the Indian Evidence Act were not satisfied. According to him, one of the properties was already sold and the same was not available for gift and that as per the public notice (Ex. 109), the plaintiff was no longer entitled for possession of the suit properties. He had no title vested in them.

As against that, the learned Advocate appearing for the contending respondent/plaintiff argued supporting the judgment and decree of the trial Court, confirmed by the first appellate Court.

The points, therefore, that arise for my consideration in this appeal are:

(1) Whether the Courts below were justified in holding that the original of Ex. 124 was in substance and in reality a gift deed?

(2) Whether there is substance in the submission made before me that the public notice (Ex. 109) could revoke the gift?

(3) Whether there is substance in the submission that the Courts below were not justified in admitting into evidence Ex. 124 a certified copy of the gift deed?

''Gift'' is defined under S. 122 of the Transfer of Property Act, It states:

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

Such acceptance must, be male during the life time of the donor and while he is still capable of giving."

In the instant case, Ex. 124 makes it amply clear that the right, title and interest in the suit properties are vested in the donee and thereafter he became the absolute owner. What is postponed is the delivery of possession.

Under the Transfer of Property Act, it is not necessary that possession of the property must be delivered forthwith as under the Mohammadan Law.

This Court, by a Division Bench, in the case, Revappa v. Madhava Rao, AIR 1960 Mys. 97, has ruled that S. 123 of the Transfer of Property Act is applicable to gifts of immoveable property made by persons governed by the Hindu Law; that the emphasis so far as the transfer of immoveable property under S. 123 is on the execution of an instrument properly executed and not so much on the actual delivery of the property and that thus, delivery of possession of the property gifted is not an essential ingredient; for validating the gift under the law.

That being so, I am satisfied that the Courts below were justified in holding concurrently that the original of Ex. 124 is a gift and not a will as contended by the learned Advocate appearing for the appellant.

Both the Courts below have held on appreciating the evidence on record, that the original of Ex. 124 is lost and, hence, they have allowed the certified copy of it to be admitted into evidence. It is mainly a finding on a question of fact. Since the finding is concurrent, it binds this Court.

The learned Advocate appearing for the appellants argued, on the assumption that the original of Ex. 124 is a will, that there is revocation of it under the public notice (Ex. 109). But, in view of the fact that I have agreed with the finding of the courts below concurrently given that the original of Exhibit 124 is a gift, it is obvious that, the public notice could not revoke it.

In the result, therefore, I find that this appeal is devoid of substance and is liable to be dismissed and I dismiss the same.

In the peculiar facts of this case, I make no order as to costs of this appeal.