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Judgment
294 paragraphs · 6,618 wordsThe unsuccessful plaintiff filed the present regular second appeal against the judgment and decree 03.11.2008 made in R.A.No.34/2008 on the file
of the Civil Judge (Sr.Dn.), Shorapur dismissing the appeal filed by the plaintiff confirming the judgment and decree dated 19.04.2008 made in
O.S.No.17/1997 on the file of the Civil Judge (Jr.Dn.), Shorapur dismissing the suit of the plaintiff for cancellation of gift deed, declaration,
rectification of ROR and injunction in respect of the suit schedule properties morefully described in the schedule to the plaint.
It is the case of the plaintiff that she is the owner of the suit properties bearing Sy.No.115(a) measuring 11 acres 2 guntas situated at Muneer
Bommanhalli village, Shorapur taluk, Sy.No.9(a) measuring 11 acres 2 guntas known as ‘Gobbar Hola’ situated at Yaktapur village, Shorapur
taluk and Sy.No.10(b) measuring 9 acres 16 guntas known as ‘Murmuli Hola’ situated at Yaktapur village, Shorapur taluk, the defendant was
not related to her in any manner whatsoever and the defendant having no concern with the plaintiff got executed the registered gift deed in her favour
on 20.09.1975 from the plaintiff in respect of the suit properties. It was further contended that there was absolutely no consideration of love and
affection between the plaintiff and the defendant so as to execute a gift deed by the plaintiff in favour of the defendant. Therefore, in the absence of
any love and affection between the plaintiff and the defendant that the alleged registered gift deed dated 20.09.1975 does not confer any right, title or
interest to the defendant over the suit properties. It was further contended that the defendant got the suit properties mutated in her name on the
strength of the said false and fictitious gift deed with the collusion and connivance of the revenue officials in the year 1981-82 without service of any
notice on the plaintiff as per the procedure known to law. Therefore, plaintiff has filed suit for the relief as sought for.
The defendant has filed written statement denying averments made in the plaint. Inter-aliea contended that the averments made by the plaintiff that
defendant is no way related to her is totally false, since the father-in-law of the defendant viz., Sri.Narayan Rao and the husband of the plaintiff
Sri.Gunderao were cousin brothers. The family is known as not only Nadiger, but also Deshpande and Jahagirdar. The plaintiff is issue-less, whereas
the father-in-law of the defendant survived by his five sons one of whom is the husband of the defendant. Both Sri.Narayan Rao and Gunderao had
their landed properties at Bommanhalli, Yaktapur and other places. The late husband of the plaintiff intended to adopt the husband of the defendant as
his adopted son, but the father-in-law of the defendant refused to give the husband of the defendant in adoption to the husband of the plaintiff.
Therefore, in view of the existence of such close relation between the plaintiff and the defendant, the allegation made by the plaintiff in the plaint that
the plaintiff and the defendant are no way related to each other is totally false.
It was further contended that on 29.09.1975 the plaintiff on her own volition executed a registered gift deed in favour of the defendant in respect of
the suit properties as per the wishes of her late husband. Therefore, the question of the absence of love and affection for the plaintiff to execute a gift
deed in favour of the defendant is totally false. On the basis of the said registered gift deed, the defendant got the suit properties mutated in her name
as per law. Therefore, the question of collusion or connivance with the revenue officials in mutation of the suit properties in favour of the defendant
does not arise. It was further contended that Smt.Laxmi Bai w/o deceased Bindu Rao and her son have filed the present false suit against the
defendant challenging the legality of the registered gift deed dated 20.09.1975 without the knowledge of the plaintiff herself. Since, the said Smt.Laxmi
Bai and her son are intending to knock of the suit properties. Hence, the allegations made in the plaint are all denied as false. Therefore, sought for
dismissal of the suit.
On the basis of the above pleadings, the Trial Court framed the following issues:
Whether plaintiff proves that, the execution of the gift deed bearing document No.25/1975 dated 20.09.1975 in favour of the defendant in respect of
suit property, it becomes null and void?
Whether plaintiff proves that, the name of the defendant entered in record of rights in the year 1981-82, it will not confirm any right of ownership
and possession of the suit properties of the defendant?
Whether plaintiff proves that, she is in lawful possession and enjoyment of the suit schedule properties?
Whether plaintiff proves that, this Court have jurisdiction to direction the revenue authorities to rectification of ROR?
 5. Whether defendant proves the suit is barred by limitation?
 6. Whether plaintiff proves that, she is entitled relief as prayed for?
 7. What order or decree?
In order to establish the case of the plaintiff, the plaintiff has examined seven witnesses as PW.1 to 7 and got marked 75 documents as Ex.P.1 to
Ex.P.75. On the other hand defendant examined as DW.1 and got marked document as Ex.D.1.
The trial Court considering both oral and documentary evidence on record, recorded a finding that plaintiff failed to prove that the execution of the
gift deed dated 20.09.1975 in favour of the defendant in respect of suit properties is null and void. Further plaintiff failed to prove that the name of the
defendant entered in record of rights in the year 1981-82, it will not confirm any right of ownership and possession of the suit properties of the
defendant. Further plaintiff failed to prove that she is in lawful possession and enjoyment of the suit schedule properties, as on the date of the suit. The
Trial Court further recorded a finding that plaintiff failed to prove that the Trial Court has jurisdiction to direct the revenue authorities to rectify the
record of rights. The Defendant proved that the suit is barred by limitation. The plaintiff is not entitled the relief as prayed for. Accordingly, by
impugned judgment and decree dated 19.04.2008 suit came to be dismissed with costs.
Being aggrieved by the judgment and decree passed by the Trial Court, the Legal Representatives of plaintiff’s have filed R.A.No.34/2008
before Civil Judge (Sr. Dn) at Shorapur, who after hearing both the parties by impugned judgment and decree dated 03.11.2008 dismissed the appeal
and confirmed the judgment and decree passed by the Trial Court.
Being aggrieved by the concurrent findings of fact recorded by the Courts below did not deter the appellant from preferring the present regular
second appeal as last ditch attempt
I have heard the learned counsel for the parties to the lis.
Sri.Sandeep Vijayakumar, learned counsel for the appellants vehemently contended that the impugned judgment and decree passed by the Courts
below dismissing the suit of the plaintiff for cancellation of gift deed and declaration/rectification of record of rights and for injunction is erroneous and
contrary to the material on record. He would further contend that both Courts below failed to notice that for the execution of gift deed consideration of
the love and affection is essential under the provisions of Section 122 of Transfer of Property Act. In the absence of the same, the very document gift
deed is invalid. He would further contend that both the Courts below failed to notice that the defendant obtained gift deed from the plaintiff without
any consideration of love and affection, by playing fraud. Therefore, Courts below were not justified in dismissing the suit of the plaintiff.
He further contended that both the Courts below erred in holding that suit filed by the plaintiff is barred by limitation ignoring the fact that the from
the date of knowledge and cause of action first accrues, the suit was filed within the time as contemplated. On that ground alone the impugned
judgment and decree passed by the Courts below cannot be sustained. He would further contend that both the Courts below have proceeded to
dismiss the suit without considering the oral and documentary evidence on record. The impugned judgment and decree passed by Courts below are
liable to be set-aside for non-consideration of both oral and documentary evidence on record. Therefore, he sought to set-aside the impugned judgment
and decree passed by the Courts below by allowing present appeal.
I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant and perused the material on record,
including original records carefully.
It is specific case of the plaintiff that she is the owner of suit schedule properties. The defendant is not related to her. But plaintiff has executed
gift deed in favour of the defendant on 20.09.1975 in respect of the suit schedule properties without consideration of the love and affection between
the plaintiff and defendant. By virtue of gift deed the revenue authorities in collusion with defendant, have entered the revenue records in favour of the
defendant in the year 1981-82 onwards. Therefore, same has to be rectified.
The defendant filed written statement denying the averments made in the plaint, except the registered gift deed executed by the plaintiff in favour
of the defendant on 20.09.1975 out of love and affection. The defendant contended that the plaintiff and defendant are relatives. Out of love and
affection gift deed was executed. In the gift deed it is specifically stated that defendant has served the plaintiff with at most love and affection.
Therefore, on the basis of love and affection the gift deed came to be executed.
In order to substantiate the case of the plaintiff, one of the son of plaintiff examined as PW.1 and produced Ex.P.1 to 75. In order to disprove the
case of the plaintiff, the defendant examined her husband as DW.1.
The material on record clearly depicts that plaintiff has executed registered gift deed in favour of the defendant on 20.09.1975 is not in dispute.
The only dispute is that plaintiff has executed gift deed without there being any consideration of love and affection between the plaintiff and
defendant. The PW.1 stated on oath that he learnt that execution of gift deed as per Ex.P.1 from the deceased plaintiff-Padmavtibai herself. He has
no personal knowledge about the execution of the registered gift deed by the deceased plaintiff in favour of the defendant. Therefore, question of
deposing by PW.1 that there was no consideration of love and affection for the deceased plaintiff to execute the gift deed dated 20.09.1975 in favour
of the defendant does not arise. The plaint averments clearly depicts that only contention urged by the plaintiff to challenge the validity of the gift deed
Ex.P.1 is that there was no consideration of love and affection between the plaintiff and defendant.
In view of the contentions urged by the learned counsel for the appellant with vehemence, it is relevant to consider the definition of gift deed under
the provisions of Section 122 of the Transfer of Property Act, which reads as under;
“Gift†defined, - “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 donee, and accepted by or on behalf of the donee.â€
Acceptance when to be made, - 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.â€
On careful perusal of the provisions of Section 122 of Transfer of Property Act, makes it clear that in order to transfer of any movable or immovable
properties by way of gift the requirement of any consideration shall not be existing between the donor and the donee. The 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.
Accepted by or on behalf of the donee and such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
Admittedly, in the present case the original plaintiff has gifted the suit schedule properties and defendant has accepted. There is no dispute in
respect of the same. Therefore, contention of the plaintiff that there was no consideration of love and affection between the plaintiff and defendant to
execute the registered gift deed by plaintiff in favour of defendant as per Ex.P.1 cannot be accepted. It is not the case of the plaintiff that, gift deed
obtained by the defendant by playing fraud or coercion. Absolutely there is no whisper in the entire pleadings pleaded by the plaintiff in the plaint about
the exercise of any fraud or coercion by the defendant to get the gift deed Ex.P.1 executed by plaintiff in favour of the defendant. It is not the case of
the plaintiff that gift deed was made with certain conditions and any of the one conditions has been violated by the defendant and the condition of
revocation has been retained under the registered gift deed.
The material on record clearly depicts that the plaintiff has not denied the execution of registered gift deed on 20.09.1975 in favour of the
defendant by her. Therefore, question of examining the attesting witnesses to the gift deed Ex.P.1 by the defendant to prove the execution of the said
gift deed does not arise. The plaintiff has challenged the legality of the gift deed Ex.P.1 solely on the ground that there was no consideration of love
and affection between herself and the defendant. But the question of existence of any love and affection between the plaintiff and the defendant is not
the criteria to hold the gift deed Ex.P.1 as invalid. In view of provisions of Section 122 of Transfer of Property Act, when two essential characteristics
of a valid Gift are (1) the gift must be voluntary (2) it should be without consideration. The said principles of law aptly applicable to the facts and
circumstances of the present case.
It is also not in dispute that in pursuance of the said registered gift deed executed by the plaintiff in favour of the defendant on 20.09.1975, the
defendant got mutated her name to the suit properties in the year 1981-82. The defendant continued till the date of filing of the suit and till today.
Admittedly, plaintiff has not challenged the said revenue entries made. The Ex.P.3 to 11, 12 and 13 record of rights and mutation entries in the name
of defendant on the basis of registered gift deed. The very averments made in the plaint it is clear that plaintiff was aware of the fact that the
execution of gift deed dated 20.09.1975 itself and there cannot be any direction to the revenue authorities to change the entries unless gift is declared
as invalid.
It is also not in dispute that registered gift deed executed by the plaintiff in favour of the defendant on 20.09.1975 and suit was filed on 30.12.1996
after lapse of more than two decades (21 years). The cancellation of gift deed or any other declaration has to be made within three years, when right
to sue first accrues as contemplated under the provisions of Article 58 of the Limitation Act. The plaintiff has not challenged the gift deed, nor
revenue entries made thereon more than 21 years. It clearly depicts that plaintiff executed the gift deed in favour of the defendant out of love and
affection only after 21 years, now it is contended that gift deed was made without consideration of the love and affection cannot be accepted.
Considering the provisions of Section 122 of Transfer of Property Act, the Hon’ble Supreme Court in the case of Ku. Sonia Bhatia /vs/ State
of U.P. and others, reported in AIR 1981 SC 1274 held as under;
Para No.16. It is, therefore, clear from the statement made in this book that the concept of gift is diametrically opposed to the presence of any
consideration or compensation. A gift has aptly been described as a gratuity and an act of generosity and stress has been laid on the fact that if there
is any consideration then the transaction ceases to be a gift. Before closing this aspect of the matter we might also refer to the definition of
consideration given in various books. Black’s Law Dictionary defines ‘consideration’ thus :
“Consideration is not to be confounded with motive, Consideration means something which is of value in the eye of the law, moving from the
plaintiff, either of benefit to the plaintiff or of detriment to the defendant.â€
This is the view expressed in 2 QB 851. Similarly, at p. 61 in the same volume, the words adequate consideration’ have been defined thus :-
“ ‘One which is equal, or reasonably proportioned to the value of that for which is it given.’ Fair and reasonable under circumstances.â€
(Emphasis (here-into ‘ ’) ours)
Para No.20. From a conspectus, therefore, of the definitions contained in the dictionaries and the books regarding a gift or an adequate consideration,
the in escapable 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 considerations 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. Further more, when the legislature has
used the word ‘transfer’ it at once invokes the provisions of the Transfer of Property Act. Under Section 122 of the Transfer of Property Act,
gift is defined thus :
“Gift’ is the transfer of certain existing moveable 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.â€
Para No.22. We now deal with the second limb of the argument of Mr. Kacker that as in the case of a gift there is no question of a consideration, we
should hold that the 3rd part of clause (b) of the proviso which contains the words ‘for adequate consideration’ is inapplicable and ignore the
same. This argument is diametrically opposed to the well-known rule of interpretation that courts in interpreting statutes must not interpolate or
legislate. It is well settled that a legislature does not waste words without any intention, and every word that is used by the legislature must be given its
due import and significance. In the instant case, the words ‘adequate consideration’ have undoubtedly a well recognized concept and, as
indicated above, the intention was to exclude any transaction which is not for adequate consideration. Not to speak of a gift but even if a sale is found
to be bona fide but the consideration is inadequate, for instance where the property has been sold for a nominal price or below the market value, the
transaction would fall beyond the protection given by clause (b) of the proviso. Our attention has been drawn by Mr. Kacker to a single Bench
decision by Banerji. J. Fatesh Singh v. State of Uttar Pradesh. (1977) 3 A)) LR 690 : (AIR 1978 NOC 101) (A))) where the learned Judge had taken
the view that the definition of a transfer given in clause (b) of the proviso included a gift because a gift also could not be said to be transfer without
consideration even though consideration may not be weighed in terms of money. The learned Judge in taking this view had obviously fallen into error
of confusing what was the motive or the reason for the gift as being a legal consideration of it. It has already been pointed out that in considering the
nature of a gift one should not confuse the motive, which may be love and affection, or spiritual benefit, with valuable consideration which has to be
either in the shape of a money compensation or equivalent of the same. It is true that in every gift the donor has a particular motive and objective or a
reason to part with his property in favour of the donee, the reason being, in some cases, love and affection where the gift is in favour of a relation or
friend, or spiritual benefit in other cases but this will be the immediate motive for making the gift and cannot be regarded as a consideration for the gift
because the very concept of gift is based on a purely gratuitous consideration. The Division Bench of the Allahabad High Court in the case referred to
above has rightly overruled the view of the Banerji, J., on this count. In fact the matter has been considered by other High Courts who have
consistently taken the view that a gift is a transfer without consideration, love and affection being only the motive for making the transfer. In Debi
Saran Koiri v. Nandalal Chubey AIR 1929 Pat 591 while elucidating the nature and character of a gift Sahay. J. made the following observations;
“Now, Section 122, T.P. Act, defines “gift†as a transfer of certain existing moveable 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 doneeâ€.
“To my mind consideration in Section 122, T.P. Act, means valuable consideration and not consideration in the shape of conferring spiritual benefit
to the donor. If valuable consideration be not the consideration referred to in Section 122, I fail to understand how any gift can be made without
consideration at all. There must be some sort of consideration in every gift, for instance, a consideration of an expectation of spiritual or moral benefit
or consideration of love and affection. ‘Such considerations are not considerations contemplated in Sec. 122. The consideration there contemplated
must be valuable consideration, that is consideration either of money or of money’s worth’â€.
In view of the provisions of Order VI Rule 4 of Code of Civil Procedure “in all cases in which the party pleading relies on any
misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such
as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleadingâ€.
This Court considering the provisions of VI Rule 4 of CPC in the case of K.S.Mariyappa /vs/ K.R.Siddalinga Setty, reported in AIR 1989 KAR
425 held that,
“requirement â€" particulars necessary in pleading to enable opposite party to meet the case â€" Bald and general allegation cannot lead to an
issue, not being plea of fraud or collusion â€" Material particulars such as when, how, who in what manner and for what purpose fraud practiced and
who colluded with whom, in what manner, with what object must be averred â€" After long lapse of time, clear pleadings and proof as to fraud and
collusion absent, not possible to hold allotment of larger share in pervious suit result of fraud and collusionâ€.
Admittedly, in the present case there is no pleading for fraud or collusion and suit filed more than two decades only on the ground that gift deed
executed without consideration of the love and affection in the absence of any pleadings as contemplated. Hence, the case of the plaintiff cannot be
accepted.
It is relevant to note that how the transfer effected under the provisions of Section 123 of Transfer of Property Act, which reads as under :-
Section-123 â€" 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 moveable 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.
On careful reading of the said provisions makes it clear that 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 moveable
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.
The Hon’ble Supreme Court considering the provisions of Section 123 of T.P. Act in the case of Surendra Kumar /vs/ Nathulal reported in
AIR 2001 S.C. 2040 at Para No.12 held as under;
 12. Section 123 of the Transfer of Property Act, 1882 provides;
“123, Transfer how effected â€" 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.
In the present case there exists a registered deed of gift signed by the donor and attested by two witnesses. Therefore, the requirement of the law as
incorporated in the Section is satisfied. Section 68 of the Indian Evidence Act, 1872 makes a provision regarding proof of execution of a document
required by law to be attested. Therein it is laid down that:
“If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose
of proving its execution. If there be an attesting witness alive, and subject to the process of the Court and capable of giving evidenceâ€.
 The proviso to the section, which is relevant for the present purpose, reads;
 “Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document not being a will, which has been
registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by person by whom it purports to
have been executed is specifically deniedâ€. (Emphasis supplied).
On a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the
person who has executed the deed of gift has not specifically denied its execution. In the present case, the donor Chand Bai has specifically admitted
execution of the deed of gift in favour of the appellant. Therefore, the lower appellate Court was in error in holding that the deed of gift has not been
duly proved since one of the witness. Indeed the certified copy of the registered deed of gift was produced in the trial Court along with an application
filed by the plaintiff in the previous suit. Suit No.69/70 (4/76) that the same may be called for. The trial Court, being satisfied about the reason for non-
production of the original document, marked the certified copy of the deed of gift as Exhibit-3.
Admittedly in the present case, the registered gift deed Ex.P.1 signed by the donor/plaintiff, attested by witnesses and donor specifically admitted
the execution of the gift deed in favour of the defendant. The registered gift deed can be said to be duly proved even if one of the attesting witnesses
is not called for proving its execution. Since execution of registered gift deed Ex.P.1 is not denied by the plaintiff, question of proving would not arise.
As already stated above, the suit was filed after lapse of two decades (21 years) from the date of execution of the gift deed clearly barred by
limitation under the provisions of Article 58 of the Limitation Act. This court while considering the provisions of Article 58 of Limitation Act in the
case of ILR 1989 KAR 993 â€" Dada Jinnappa Khot vs. Shivalingappa Ganapati Bellanki held as under;
“5. That application came to be disposed off by the Tahsildar on 04.05.1970 as per order found in Ex.P3. The Tahsildar after duly hearing the
plaintiff and the defendant took the view that the encroachment complained of by the defendant was true and it had, therefore, to be vacated. This
finding is recorded despite the opposition mounted by the plaintiff asserting that he had not encroached on any portion of defendant’s land and he
was in possession of his own land. In short, he claimed title to the disputed area claiming it to be his own property. Although Ex.P3 came to be made
on 04.05.1970, there can be little doubt that on the presentation of an application by the defendant to the revenue authorities complaining of
encroachment of his land by the plaintiff and asking for restoration of possession to the suit property. In other words, the defendant claiming to be the
owner of the suit property had accused the plaintiff of having encroached upon it unauthorisedly and made it clear that he was, therefore, eeking the
assistance of the revenue authorities for being put back into possession and in that process clearly putforward his right to the suit property denying
thereby the right, title and interest of the plaintiff if any in the suit property. at any rate when he branded possession of the suit property by plaintiff as
that of a trespasser who had encroached illegitimately on the defendant’s property, it would become evident to any on that the defendant was not
merely asserting title to the property but was also denying the title of the plaintiff to the same when he went on to characterize the possession of the
plaintiff as that of an encroacher or an unlawful intruder. While there can be no doubt that when the defendant’s claim to the suit property and
ordering possession thereof to be restored to him, without more the plaintiff’s right to the suit property had been infringed upon and consequently
the case of action to assail it before Court had certainly arisen for the but the question is as to when such cause had arisen for the first time. I would
have no hesitation in saying that it arose the moment the defendant filed a petition to the Tahsildar seeking to recover possession of the suit property
from the plaintiff claiming the same to be his and denying the plaintiff’s rights, title and interest in the property and his right to be in possession
thereof. Under Article 58 of the Limitation Act the time to assert and to rise up against invasion of one’s occurs when the aberration to the
plaintiff’s right or the slighting of the plaintiff’s right occurs for the first time.
 6…..
 7. I am to notice that the expression “where the right to sue first accrues†appearing in Article 58 came to be included in the Limitation Act of
1964 in place of Article 120 of the old Act of 1908. In Article 120 of the old Act, which was the corresponding Article to Article 58 of the new Act,
the language used was quite different. In that the language employed in the old Act read, “when the right to sue accrues.†It may well be on the
basis of the language of the provision as it stood prior to the Amending Act of 1964, it was possible to contend that whenever the right to sue accrued,
a plaintiff who was the repository of such a right could treat it as the commencement of the period of limitation. But under the new Act with the
change in the language of the statute the same having become more specific and precise with the inclusion of the words “when right to sue first
accruesâ€, there can be little doubt that although a cause of action may have arisen even on subsequent occasions as well, what is material for the
purpose of computing the period of limitation under Article 58 is the date when the right to sue first accrued.
The Supreme Court has adverted to the question as to what type of threat to a plaintiff’s title can signal the running of time against him in case
of successive denials. In the case of RUKHMABAI vs. LAXMINARAYAN* Supreme Court made the following enunciation:
“Whether there are successive invasions or denials of a right, the right to sue under Article 120 accrues when the defendant has clearly and
unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however, ineffective and
innocuous it may be, cannot be considered to be clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise
to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.â€
The ratio of the decision referred to supra although rendered in a different context makes it clear that the right to sue can be treated as having arisen
when there was a clear or unequivocal threat proceeding from the opponent and that a threat which clearly invades or jeopardizes the plaintiff’s
right can be taken as giving rise to a compulsory cause of action to take steps for smothering such a threat.â€
In view of the aforesaid circumstances, the trial Court held that the plaintiff failed to prove the execution of the gift deed dated 29.09.1975 in
favour of the defendant in respect of suit property becomes null and void and further failed to prove the record of rights for the year 1981-82 will not
confirm of ownership and possession of suit property by the defendant and further failed to prove that she is in lawful possession and enjoyment of suit
property as on the date of suit and failed to prove that the Court has jurisdiction to direct the revenue authorities for rectification of ROR and further
the defendant has failed to prove the suit is barred by limitation. Accordingly, by the judgment and decree dated 19.04.2008 dismissed the suit.
On the appeal filed by the LRs of plaintiff, the lower appellate Court after framing the issues as contemplated under Order 41 Rule 31 of CPC and
after considering the entire material on record, has recorded a finding that the recitals made in Ex.P.1 clearly indicates how the plaintiff and
defendants were related to each other. PW.1 one of the sons of original plaintiff, in the cross-examination has stated that one Narayanrao was the
father-in law of the defendant. But clearly admitted that Narayanrao and Gundurao, the husband of the plaintiff were brothers. It is the specific
contention of the defendant Gundurao and Narayanrao were cousins. The admission of PW.1 clearly depicts that plaintiff and defendant are related to
each other. Moreover, Ex.P.1 gift deed indicates the relationship between the plaintiff and defendant. Therefore, it is hard to believe that the plaintiff
and defendant are not related to each other.
The lower appellate court further recorded a finding that the recitals of Ex.P.1 registered gift deed specifically mentions that defendant served the
plaintiff with utmost love and affection before execution of gift deed. The love and affection itself is sufficient to indicate that the gift deed executed
by the plaintiff is valid and the plaintiff has not made out any case to disbelieve Ex.P.1. Ex.P.2 to P.13 RORs showing the name of original plaintiff till
1980-81 and the name of the defendant was shown as owner and possession from 1981, neither the plaintiff nor legal representatives of the plaintiff
have challenged the mutation in the name of defendant in the records of suit land i.e., Ex.P.12 mutation dated 27.03.1981. It is true that there was a
delay to enter the name of the defendant in the record of rights in respect of suit property itself is not sufficient to believe the story of plaintiff.
Ex.P.21 to P.30 reveals that PW.1 admitted that his father and plaintiff were aware of the registered gift deed. Why the father of the plaintiff did not
ask his sister plaintiff to take legal action against the defendant in respect of suit land at least in the year 1982. The silence on the part of the plaintiff
clearly depicts that the plaintiff executed valid gift deed in respect of suit property. Therefore, the lower appellate Court held that the judgment and
decree passed by the Court below does not call for interference and the judgment was made based on the oral and documentary evidence on record.
The appellate Court further recorded a finding that DW.1 who is the husband and power of attorney holder of the defendant No.1 categorically
stated on oath that his grand-father Bhimrao and Hanmanthrao, father-in-law of the plaintiff were brothers and plaintiff gifted the suit land in favour of
the defendant out of love and affection. The said statement made on oath in chief is not at all challenged in the cross-examination by the plaintiff.
Therefore, the lower appellate Court dismissed the appeal. Therefore, the contention of the learned counsel Sri.Sandeep Vijayakumar that the gift
deed Ex.P.1 was not made for consideration of love and affection and suit was filed within time from the date of knowledge cannot be accepted.
Both the Courts below considering both oral and documentary evidence on record and especially the recitals in the gift deed concurrently held that
the plaintiff failed to prove the registered gift deed dated 20.09.1975 is null and void and defendant will not confirm any right of ownership and
possession over the suit property and the plaintiff failed to prove his lawful possession as on the date of suit and the suit is clearly barred by limitation.
Such a finding of fact recorded by the Court below cannot be interfered with by this Court exercising the powers under the provisions of Section 100
of Code of Civil Procedure as there are no substantial questions of law involved in the present appeal.
 Accordingly, appeal is dismissed at the stage of admission without reference to the respondent.
 Ordered accordingly.