Salig Ram and Others vs Banarsi Dass and Others

Kamlesh Sharma, J.—This appeal is directed against the decree and judgment dated 23.10.1982 passed by the District Judge, Hamirpur and Una Districts at Hamirpur whereby the decree and judgment dated 17.9.1979 of Sub Judge 1st Class, Hamirpur, was affirmed. The Sub Judge 1st Class, Hamirpur, had dismissed the suit of the original Plaintiff Labha who has died during the pendency of the present appeal and whose legal representatives Salig Ram and others have been brought on record.

The dispute between the parties is in respect of land as described in the plaint which was owned and possessed by Labha. He had gifted it in favour of the Respondents-defendants Banarsi Dass and Birj Lal by way of gift, Ex.D-1, on 12.2.1969 on the basis of which mutation was also attested in their favour on 15.11.1969. Later on, Labha filed civil suit out of which the present appeal has arisen, challenging the gift deed on the ground, inter alia, that it was got executed from him by practising fraud, misrepresentation retire and undue influence. He also alleged that Respondents-defendants Nos. 1 and 2 had never rendered services to him or to his wives. He also challenged the sale of some part of the land in dispute made in favour of Respondents Nos. 3 to 10 by Respondents Nos. 1 and 2. He claimed that in the alternative the gift deed was conditional in lieu of services and liable to be revoked as the Respondent-defendants Nos. 1 and 2 had failed to render services to him and his wives. Respondents-defendants Nos. 1 and 2 and out of the remaining Respondents-defendants, only Respondents-defendants Nos. 5 and 6 contested the suit and filed separate written statements, the stand of Respondents-defendants No. 1 and 2 was that since Labha and his wives were not able to look after themselves and their land due to old age, they had been rendering service to them and being pleased with their services Labha had executed and got registered the gift deed in question in their favour of his own sweet will. The other contentions were also denied that the gift deed was conditional and could be revoked, as alleged by Labha. The Respondents-defendants Nos. 5 and 6 took the defence of bona fide purchasers. According to them, Labha had never objected to the sale made in their favour.

The trial Court dismissed the suit, rejected the case of Labha and held that he had miserably failed to prove fraud, misrepresentation and undue influence in the execution of the gift deed. According to the trial Court, the gift deed was not conditional and it could not be revoked even if future services were not rendered by Respondents-defendants Nos. 1 and 2 though on the evidence on record it held that Respondents Nos. 1 and 2 and the members of their family had been rendering services to Labha and his wives. The defence of other contesting Respondents-defendant was also allowed and they were held as bona fide purchasers. These findings have been confirmed by the District Judge. Hence the present Regular Second Appeal u/s 100 (Old) Code of Civil Procedure.

This Court has heard the learned Counsel for the parties and gone through the record. Sh. M.L. Sharma, learned Counsel appearing for the Appellants-Plaintiffs has urged that both the Courts below have misread and misinterpreted the oral as well as the documentary evidence on record, especially the gift deed Ex.D-1, to hold it a genuine document. According to him, there are a number of suspicious circumstances on record which create a serious doubt that gift deed Ex.D-1 was executed voluntarily. These are that Labha and Respondents Nos. 1 and 2 were strangers being residents of different villages; there was no occasion for Respondents Nos. 1 and 2 to serve Labha; they had come into contact of each other only a few days before the execution of the gift deed; Respondents No. 1 and 2 had sold the best portion of the land in dispute immediately after the gift deed in their favour etc. etc.

The Court does not find any substance in this submission. The suspicious circumstances pointed out by Shri Sharma are not established on record. Both the Courts below have concurrently found the gift deed as genuine document, the execution and registration of which has been duly proved by Govardhan (DW-1) scribe of the gift deed. Sarvu (DW-2)Chaukidar and Paras Ram(DW-3); Lamberdar, who are attesting witnesses of the gift deed. In fact, Labha who appeared as P.W.8 has himself admitted in cross-examination that he had purchased stamps and document Ex.D-1 was written by Goverdhan (D. W. 1) witnessed by Sarvu and Paras Ram, he had appeared before the Tehsildar (Sub Registrar) and put his thumb impression before him on it. His only case was that he had agreed to execute a will in favour of Respondents-defendants Nos. 1 and 2 but by fraud and misrepresentation they got a gift deed executed and registered from him. This plea of Labha was rejected in the fact and circumstances proved on record, most important of which was that at the time of attestation of mutation on 15.11.1969 even after more than nine months from the execution and attestation of gift deed, Labha had admitted in response to the objection raised by Lehnu (PW-9) and Marru that the Respondents-defendants had been serving him and his wives. This finds mention in the recital of the mutation order, Ex.D-4. He had also admitted the transfer of possession of the land in dispute in favour of Respondents-defendants Nos. 1 and 2 by virtue of the gift deed which belies his stand in toto. The endorsement of Sub Registrar in respect of registration of the gift deed Ex.D-1 has also been proved by Gian Chand (D.W.6), Registration Clerk.

Another point raised by Sh. M.L. Sharma is hat the gift deed Ex.D-1 was bad being for consideration of past and future services, as stated in the gift deed and admitted by the Respondents-defendants in their written statement as well as evidence. To substantiate his submissions, Sh. Sharma has taken this Court through the written statement of Respondents-defendants Nos. l and 2, the contents of the gift deed and other evidence on record. He has referred to Section 122 of the Transfer of Property Act (hereinafter called ''the Act'') which defines gift and also to the judgment of the Supreme Court in Km. Sonia Bhatia Vs. State of U.P. and Others,

On the other hand, Sh. Bhupinder Gupta learned Counsel appearing for Respondents Nos. l and 2 has refuted the arguments of Sh. Sharma and urged that it deserves to be rejected on the sole ground that it has been raised for the first time before this Court. In the alternative, his submission is that from the construction of the gift deed Ex.D-1, it is clear that past and future services were only motive for executing the gift deed and were not consideration as envisaged u/s 122 of the Act. In support of his submission, Sh. Gupta has referred to the judgments in V. Ranga Rao Vs. Kithori Ammal and Others, Hiralal Chimanlal Vs. Gavrishankar Ambashankar, and Subhash Chandra Vs. Nagar Mahapalika, . This Court again finds the submissions of Sh. Sharma devoid of any force.

Section 122 of the Act envisages two essential characteristics of valid gift; that it should be voluntary and without consideration. The word ''consideration'' has not been defined in the Act. But it has been interpreted by the learned Judges of the Supreme Court in Smt. Shakuntala etc. etc. v. State of Haryana AIR 1979 SC 843. They have held that it has been used in the Act in the same sense as in the Indian Contract Act and excludes natural love and affection. They have observed that if gifts are to be for consideration, these will amount to sale within the meaning of Section 54 or exchange within the meaning of Section 118 of the Act. They have referred to the definition of the word ''consideration'' as provided in Section 2(d) of the Contract Act. It is:

When, at the desire of the promisor, the promisee or any other person has done or abstained from doing or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.

From this definition it is clear that the word ''consideration'' means a reasonable equivalent or other valuation benefit passed on by the promisor to the promisee or by the transferrer to the transferee and in the absence of such a factor the transaction is without consideration. Love and affection as well as personal services rendered in the past and promised for the future cannot be termed as valuable benefits or equivalent thereto, which passes to done from door making the gift deeds for consideration. Applying this to the facts of the present case, this Court finds from the recital in the gift deed Ex.D-1 that Respondents Nos. 1 and 2; donees, served Labha, donor, who wishes that they will serve him and his wives in future was not a consideration but was only a motive.

While interpreting the word ''adequate consideration'' appearing in Sub-section 6 of Land Holdings Act, the learned Judges of the Supreme Court in Ku. Sonia Bhatia v. State of U.P. (supra) have given meaning to the word ''consideration'' used in Section 122 of the Act in the following terms:

From a conspectus, therefore, of the definitions contained in the dictionaries and the books regarding a gift or an adequate consideration, the inescapable conclusion that follows is that ''consideration means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee, similarly, when the word ''consideration'' is qualified by the word ''adequate'', it makes consideration stronger so as to make it sufficient and valuable having regard to the facts, circumstances and necessities of the case. It has also been seen from the discussions of the various authorities mentioned above that a gift is undoubtedly a transfer which does not contain any element of consideration in any shape or form. In fact where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour. It has been rightly pointed out in one of the books referred to above that we should not try to confuse the motive or the purpose of making a gift with the consideration which is the subject matter of the gift. Love, affection spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these filial considerations cannot be called or held to be legal consideration as understood by law. It is manifest, therefore that the passing of monetary consideration is completely foreign to the concept of a gift having regard to the nature, character and the circumstances under which such a transfer takes place. Furthermore, when the legislature has used the word ''transferor'' it at once invokes the provisions of the Transfer of Property Act. u/s 122 of the Transfer of Property Act, gift is defined thus:

Gift'' is the transfer of certain existing movable or immovable 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 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.

From the above verdict of the Supreme Court, it is clear that considerations which make a gift invalid as provided u/s 122 of the Act are those which can be measured in terms of money. The past and future services cannot be measured in terms of money, therefore these are not the ''considerations'' as postulated in Section 122 of the Act and these are only ''motive'' for execution to the gift deed. Due to services rendered in the past and expectation that these will continue in future the donor may possess such feelings and sentiments which may motivate him for the execution of gift deed. Since his feelings and sentiments cannot be measured in money or equivalent thereof, the gift is no for consideration. For taking this view, this Court is further supported by the judgments in V. Ranga Rao v. Kithori Ammal (supra) Hiralal Chimanlal v. Gourishankar Ambashankar (supra) and Subhash Chandra v. Nagar Mahapalika, Kanpur (supra).

Another point raised by Sh. M.L. Sharma, is that the gift was not valid as it was not complete by delivering possession of the land in dispute. According to Sh. Sharma, Labha continued to be in possession of the land in dispute even after the execution and registration of the gift deed, Ex.D-1. This submission of Sh. Sharma is against the concurrent findings of fact arrived at by the Courts below which have held Respondents Nos. 1 and 2 in possession. At the time of attestation of mutation on 15.11.1969, Labha himself had admitted handing over of possession of the land in dispute to Respondents Nos. 1 and 2, However, handing over of the possession is not a necessary condition for gift as provided u/s 123 of the Act. Interpreting this Section, this Court has already held in Ganga Ram V. Prabha Dayal, R.S.A. Nos. 231 of 1985 decided on 2.4.1993 that Section 123 of the Act postulates that for a transfer of immovable property, by way of gift, only registered instrument signed by or on behalf of the donor and attested by atleast two witnesses is required. No other point is raised by Sh. M.L. Sharma on behalf of the Appellants.

The result of the above discussion is that there is no merit in this appeal and it is dismissed. Costs easy.