THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY
Second Appeal No.473 of 2014
Between: B.Gourishankar And D.Suguna and another
Dated 25th July, 2014
…Appellant …Respondents Counsel for the appellant: Sri K.Pradeep Reddy Counsel for the respondents: ----
The Court made the following:
JUDGMENT:
This second appeal arises out of judgment and decree, dated 26.02.2014, in A.S.No.29 of 2009, on the file of the learned III Additional District Judge, Ranga Reddy District at L.B.Nagar, whereby the learned Judge has confirmed the judgment and decree, dated 23.12.2008, in O.S.No.301 of 2004, on the file of the learned Additional Senior Civil Judge, Ranga Reddy District.
The appellant herein filed the above-mentioned suit for declaration of his title and consequential injunction after declaring the gift settlement deed, dated 12.03.1999, purportedly executed in favour of respondent No.1 as null and void in respect of Acs.4.00 of land in Survey No.141 of Pulimamidi Village, Kandukur Mandal, Ranga Reddy District.
Respondent No.1 is the sister of the appellant. It is the pleaded case of the appellant that while he was mentally ill between 1996 and 2003, respondent No.1 has created a gift settlement deed stated to have been executed by him and that the said gift settlement deed was never executed by him. That when the respondents started spreading rumours that they are the owners of the property under the gift settlement deed, dated 12.03.1999, the appellant has filed the above- mentioned suit.
Respondent No.1 filed a written statement, wherein she has pleaded that the appellant has executed the gift settlement deed in hale and healthy state of mind. She has further stated that the appellant has entered into a compromise on 14.10.2002 in O.S.No.768 of 2000 on the file of the learned II Additional Senior Civil Judge, Ranga Reddy District which revealed that the appellant was mentally sound.
Having regard to the respective pleadings of the parties, the following issues were framed by the trial Court:
“1. Whether the plaintiff is entitled for declaration to declare that the plaintiff is the absolute owner of the suit schedule property?
2. Whether the gift settlement deed dated 12.03.1999 is true and binding on the plaintiff?
3. Whether the plaintiff is entitled for perpetual injunction as prayed for?
4. To what relief?”
On behalf of the appellant, he examined himself as PW.1 and examined one S.C.R.Murthy, as PW.2. He has also got marked Exs.A1 to A25 on his behalf.
On behalf of the respondents, respondent No.1/defendant No.1 was examined as DW.1 and she has also examined D.Prabhakar, D.Ramesh and D.Mallamma as DWs.2 to 4.
On appreciation of documentary and oral evidence, the trial Court dismissed the suit by holding all the issues against the appellant. The lower appellate Court confirmed the said judgment and decree in the appeal filed by the appellant.
At the hearing, the only submission advanced by the learned counsel for the appellant is that in her cross-examination, defendant No.1 as DW.1 admitted that as the appellant owed some money to her, he executed gift settlement, dated 12.03.1999, and that as the gift settlement deed was executed for monetary consideration, the same is void.
A perusal of the judgments of the Courts below would show that the above-noted contention was not raised before the trial Court as well as the lower appellate Court. Even in the grounds of appeal before the lower appellate Court, no such ground was raised. Both the Courts below have rightly concentrated on the plea of the appellant that he was not in sound and disposing state of mind at the time when the gift was stated to have been executed. Based on the oral and documentary evidence, both the Courts below have come to the conclusion that the appellant failed to prove that he was not mentally sound on the date when the gift is stated to have been executed. The learned counsel for the appellant has not addressed his submissions on this aspect. Therefore, this aspect need not be specifically dealt with.
Inasmuch as the appellant failed to raise the issue as to whether the gift deed is valid or not in view of the alleged monetary consideration, the appellant cannot be permitted to raise the said ground for the first time at the stage of second appeal. Even in the grounds of second appeal also, such a ground has not been specifically raised. In view of the same, this contention cannot be countenanced.
For the above-mentioned reasons, the second appeal fails and the same is accordingly dismissed.
As a sequel to dismissal of the second appeal, S.A.M.P.No.1304 of 2014 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 25th July, 2014
VGB