Thirunavukkarasu vs Sankariammal

B. Akbar Basha Khairi, J.—One Manickathammal was the original owner of the property involved in both the appeals. Manickathammal

has a son by name Thirunavukkarasu and a daughter by name Sankari Ammal. Sankari Animal has two children, by name Valamburinadhan and

minor Rathinamala. Sankari Ammal had a daughter by name Thamaraiselvi who died leaving behind her son minor Anbazhagan. Manickathammal

and Thirunavukkarasu instituted the suit in O.S.No. 390 of 1983 against Sankari Ammal seeking declaration and injunction. According to them,

the suit property was the absolute property of Manickathammal and that the defendant Sankari Ammal surreptitiously obtained a gift deed from

Manickathammal on 2.2.1982. Later, Manickathammal cancelled the gift deed by way of a registered document dated 10.2.1983 and on the same

day, she had executed a gift deed in favour of her son Thirunavukkarasu. Manickathammal and Thirunavukkarasu sought for declaration of title to

the property and also for an injunction restraining Sankari Ammal from interfering with their possession and enjoyment of the property.

Sankari Ammal in turn, instituted a suit in O.S.No. 246 of 1985. According to her, on 2.2.1982, Manickathammal had executed Ex.B-1

registered gift deed with her full willingness and volition where under she had given life estate to Sankari Ammal and after her life, the property was

to vest in the heirs of Sankari Ammal, namely plaintiffs 2 and 3 and the fourth plaintiff, who happens to be the son of the predeceased daughter of

Sankari Ammal. According to Sankari Ammal, at the time of execution of the gift deed, her brother Thirunavukkarasu was in possession of the

property. On the date of gift, he had grown sugarcane corps in the property. Later, when Sankari Ammal demanded possession of the property, a

panchayat was held on 11.4.1982 wherein, Thirunavukkarasu agreed to vacate the lands and deliver vacant possession to Sankari Ammal after

harvesting the standing sugarcane crops. She had instituted the suit stating that her brother Thirunavukkarasu had not delivered possession of the

property, but questions her title to the suit property. Therefore, she filed the suit in O.S.No. 246 of 1985 seeking declaration of her possessory

and absolute title to the suit property and also for possession from Thirunavukkarasu.

The respective plaintiffs had filed written statements raising the same contentions raised by them in their respective plaints mutatis mutandis in

each suit.

The learned Trial Judge framed five issues in O.S.No. 390 of 1983 to the effect whether the gift deed was executed against the will of the

donor, whether the gift deed was revoked and whether the gift deed was not a genuine document. Similar issues were framed by the learned Trial

Judge in O.S.No. 246 of 1985 also. The learned Trial Judge admitted the gift deed as Ex.B-1, revocation deed as Ex.A-21 and the gift deed in

favour of Thirunavukkarasu as Ex.A-25 along with other documents and after trial, came to the conclusion that Manickathammal had executed

Ex.B-1 gift deed out of her free will and volition and that having executed a gift deed wherein she had stated that she is not reserving the right to

revoke the deed, Manickathammal had not right to execute Ex.A-21, cancellation deed and also Ex.A-25, another gift deed in favour of her son.

Holding so, the learned Trial Judge dismissed O.S.No. 390 of 1983 and decreed the suit in O.S. No. 246 of 1985 granting the reliefs claimed by

the plaintiffs therein.

Aggrieved by the dismissal of C.S.No. 390 of 1983, the plaintiffs therein preferred A.S.No. 193 of 1988 and aggrieved by the decree and

judgment in O.S.No. 246 of 1985, the defendant namely Thirunavukkarasu preferred A.S.No. 149 of 1987. The learned Sub-Judge, Ariyalur

who heard both the appeals disposed them of by a common judgment. The learned Sub-Judge confirmed the judgments and decrees passed by

the Trial Court. Aggrieved by both decrees and judgments delivered by both the courts, Thirunavukkarasu, the second plaintiff in O.S.No. 390 of

1983 who happens to be the defendant in O.S.No. 246 of 1985 has come forward with both these appeals.

It is not in dispute that after the disposal of the suits and before the institution of the first appeals, Manickathammal died. The first point that

arises for consideration is whether Ex.B-1, gift deed was executed out of her free will and volition and secondly, whether Ex.B1 can be revoked

though both the courts below have clearly held that Ex.B-1, gift deed is a true, valid and genuine document executed by Manickathammal out of

her free will and volition.

A careful reading of the plaint in O.S.No. 390 of 1983 shows that even there, the plaintiffs have clearly pleaded that the gift deed was not a

genuine document and on the very next day of execution and registration of the document, the appellant herein had issued a publication in a Tamil

Daily to the effect that the gift deed was not executed by Manickathammal out of her free will and volition where as Manickathammal herself had

sent Ex.B-7 notice through her counsel to the effect that Ex.B1 was not executed out of her free will and volition. Further, the fact that the

appellant had claimed title to the property by virtue of the gift deed executed by his mother after cancellation of Ex.B-1 by execution of Ex.A-21

document itself would go to show that he had admitted the genuineness of Ex.B-1 document. Be that as it may, when there is a clear and

concurrent findings by both the courts below that Ex.B-1 is a true, valid and genuine document, I do not find any arguable matter left behind to be

considered by this Court to upset the finding.

The next question is whether Manickathammal retained the residuary power to revoke Ex.B-1, gift deed. In Ex.B-1, Manickathammal had

stated that,

It is thus clear that Manickathammal had not retained the residuary power to cancel the gift deed. The learned Counsel for the appellant submitted

that in pursuance of Ex.B-1, possession had not been delivered to Sankari Ammal. But that would be of no avail. Section 123 of Transfer of

Property Act reads as under:

Transfer haw effected: 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, a 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.

Nowhere it is stated that the gift of Immovable property should be followed by delivery of possession to complete the transaction. It is sufficient if

a deed of this type is attested by two witnesses and registered. The gift is complete as soon as the gift deed is delivered to the donee. Sankari

Ammal, the donee has filed the gift deed in the court which is marked as Ex.B-1. The production of the gift deed by the donee itself would show

that it has been delivered to her by the donor. Therefore, the question of delivery of possession of the property gifted would not assume

importance for completion of the gift.

The next question is whether Manickathammal can cancel the deed. Section 126 of the Transfer of Property Act reads as under:

When gift may be suspended or revoked: The donor and donee may agree that on happening of any specified event which does not depend

on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will

of the donor, is void wholly or in part, as the case may be.

A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration

without notice.

In the instant case, there is no agreement that the deed would stand revoked on the happening of any specified event. No specified event had been

mentioned in the deed where Manickathammal had reserved the right to revoked the gift deed in toto. By virtue of the provision of Section 126 of

the Transfer of Property Act, it is clear that the instant gift deed cannot be revoked. When the gift deed cannot be revoked, Exs.A-21 and A-25

are of no consequence. Both the courts below have rightly held that the gift deed Ex.B-1 is an irrevocable document. Even here, I find that the

concurrent finding of both the courts below are unassailable. The learned Counsel has not made out any arguable point regarding this aspect also.

In the result, both the appeals are dismissed confirming the decrees and judgments rendered by both the courts below. The time for delivery of

possession is two months from today. The respective parties shall bear their own costs.