1. Heard Sri Siddhartha Srivastava, learned counsel for the appellant and Sri Sharad Chandra Singh holding brief of Sri Rakesh Kumar Tripathi, learned counsel for the respondent.
2. This is plaintiff's appeal against the judgment and decree dated 28.02.2012 passed by the Additional District Judge, Court No.1, Siddhartha Nagar in Civil Appeal No.7 of 2009 arising out of Original Suit No.164 of 1997.
3. Original Suit No.164 of 1997 was instituted for cancellation of the gift-deed dated 21.07.1991/24.07.1991 executed by Mohan of his bhumidhari land in favour of the defendant, Smt. Prabhawati.
4. The plaint case, in short, was that the plaintiff was the brother of Mohan. Mohan neither had a son nor a daughter and that during his life time his wife Smt. Tirthi had died. It was alleged that the defendant got a gift-deed executed through an imposter of Mohan, which was liable to be cancelled on the grounds: that Mohan did not at all execute the gift-deed; that the statement in the gift-deed that the defendant was daughter of Mohan was incorrect; that the gift deed was executed without a mental act of the donor; that there was no valid acceptance of the gift; that the defendant did not enter into possession of the property; and that even if the defendant is found to be daughter of Mohan, she does not have any such relationship as she herself is married and mother of many children.
5. The defendant contested the suit by denying the plaint allegations and claiming that she was the only daughter of Mohan and that Mohan had no son or other issue. It was claimed that the gift was voluntarily executed by Mohan, which was duly attested by the witnesses and registered in accordance with law of registration; and that the gift was duly accepted by her and that her name was duly recorded in the revenue records pursuant to the gift-deed. It was also claimed that the suit was barred by limitation as also by principles of estoppel and acquiescence.
6. The Trial Court framed various issues and came to the conclusion that the gift-deed was validly executed, the execution of which was proved by its attesting witness - Gokaran, who was examined as D.W.2; that the defendant was the daughter of Mohan, which fact was duly proved by oral evidence as well as from the extract of the Parivar Register; that the death certificate produced by the plaintiff to the effect that Mohan died on 25.05.1991, that is prior to the execution of the gift-deed, was not reliable whereas from the evidence led by the defendant it was clear that Mohan had died on 10.08.1991; and that the name of the defendant was also mutated in the revenue records. With the aforesaid findings the suit was dismissed.
7. Aggrieved by the judgment and decree of the Trial Court the plaintiff went up in appeal and the Appellate Court dismissed the appeal and affirmed the findings of the Trial Court. Challenging the judgment and decree of the courts below present second appeal has been filed.
8. Learned counsel for the appellant has raised three points for consideration in this appeal. The first is to the effect that in the gift-deed there is a recital that the donor has made a gift of the value of Rs.40,000/- in favour of the donee. He, therefore, contends that Rs.40,000/- was its consideration, accordingly, it was not a gift, but a sale and, as such, would be void, as sale consideration never passed. The second is that the courts below wrongly discarded Paper No.44-Ga (death certificate of Mohan), which indicated that Mohan had died on 25.05.1991 i.e. before the date of execution of the gift-deed. The third and the last is that from the statement of the defendant, made during her oral testimony, it appears that she was a minor at the time when the gift-deed was executed, therefore, in absence of any acceptance on behalf of the minor, the gift was void.
9. It is noteworthy that the finding recorded by the courts below that Prabhawati was the daughter of Mohan has not been subjected to challenge.
10. So far as the first point is concerned, I have perused the gift-deed, which has been brought on record by means of an affidavit in support of the stay application. From a perusal of the photocopy version of the gift deed, as the typed copy contains many typing errors, it appears that bhumidhari land was gifted whereas Rs.40,000/- has been mentioned as the valuation of the property donated and not as consideration. The valuation has been mentioned, obviously, for the purpose of payment of stamp duty. Accordingly, the first contention of the learned counsel for the appellant is not acceptable and is hereby rejected. It is noteworthy that similar contention was made before the lower appellate court. The lower appellate in paragraph 15 of its judgment rejected this contention and came to the conclusion that a composite reading of the deed clearly disclosed that it was a gift of immovable property and not a sale. I' am in agreement with the finding recorded by the lower appellate court.
11. As regards the second contention, that is with regards to the reliability of Paper No.44-Ga, the Trial Court has considered the reliability of the document and came to a conclusion that the said death certificate was obtained in the year 2005 and the entry therein, with respect to the date of death of Mohan, was made with reference to the Parivar Register, but the Parivar Register did not disclose the date of death of Mohan as 25.5.1991. Accordingly, the correctness of the entry with regard to the date of death of Mohan, in Paper No.44-Ga, was disbelieved. The Trial Court also took notice of the fact that the gift-deed had the photograph of Mohan pasted on it, which was not disputed by any of the witnesses including the plaintiff. Accordingly, the Trial Court disbelieved the evidence led by the plaintiff to the effect that Mohan had died on 25.05.1991. The finding of the trial court was affirmed by the lower appellate court. Even otherwise, from the averments made in the plaint, which has been brought on record as an Annexure to the affidavit in support of the stay application, I do not find that there is any averment to the effect that Mohan had died on 25.5.1991 or that he was not alive on the date of execution of the gift-deed. For this reason also, the second contention of the learned counsel for the appellant cannot be accepted.
12. On the question of valid acceptance of the gift, the learned counsel for the appellant contended that since from the testimony of Prabhawati (defendant-respondent), as also from the entry of her date of birth in the Parivar Register, it appeared that she was a minor on the date of the execution of gift deed, therefore, in absence of any proof of valid acceptance by a guardian or next friend on her behalf, the gift would not be complete. In reply to the aforesaid contention, the learned counsel for the respondent pointed out that in the title of the plaint of the Original Suit No.164 of 1997, which was instituted in the year 1997, the age of the defendant, Smt. Prabhawati, was mentioned as 28 years. This means that in the year 1991, as per the description given by the plaintiff, Smt. Prabhawati would be aged about 21 years and, as such, not a minor on the date of execution of the gift deed. Learned counsel for the respondent also pointed out that in the plaint there is no averment with regards to the minority of the defendant on the date of execution of the gift-deed.
13. I have carefully perused the plaint, which has been annexed as Annexure No.1 to the affidavit in support of the stay application. A perusal of the array of the parties in the plaint goes to show that the age of Smt. Prabhawati has been disclosed as 28 years, which translates to 21 years on the date of execution of the gift-deed. There is also no averment in the plaint to the effect that Smt. Prabhawati was a minor on the date of execution of the gift. In the plaint, however, it has been mentioned that from the impugned deed, acceptance is not established. Accordingly, I have perused gift deed, which is on record as Annexure No.3 to the affidavit in support of stay application. In the gift deed there is a clear recital that the donor was transferring his possession over his bhumidhari land and that the gift has been accepted by the donee i.e. Prabhawati. It has also been stated that from now onwards Prabhawati is entitled to get her name mutated in the revenue records. This recital in the gift deed raises a presumption about the acceptance of the gift by the donee. The trial court while deciding issue no.1 has taken note of the statement of Prabhawati, who had appeared as D.W.1. In her statement Prabhawati stated that on the same day she entered into possession of the land and continues to remain in possession. Thus, it cannot be said that there was no acceptance of the gift. Even otherwise, assuming that actual physical possession remained with the father then also the gift could not have been invalidated considering the relationship of father and daughter. In the case of Kamakshi Ammal V. Rajalaksmi & others AIR 1995 Madras 415 (para 21) it was held that where a father made a gift to his daughter and on its acceptance by her, she allows her father to enjoy the income from the properties settled in view of the relationship of father and daughter between the donor and donee, it could not be said that there was no acceptance of gift by the donee even assuming that the donor continued to be in possession and enjoyment of the property gifted.
14. Likewise, even if it is assumed that the defendant was minor on the date of execution of the gift deed, the gift would not be invalidated for lack of acceptance by another guardian or next friend, as acceptance can be implied by the conduct of the donee. In the case of K Balakrishnan V. K. Kamalam (2004) 1 SCC 581, the apex court after noticing a number of authorities, in paragraph 30 of its judgment, held as under: "As seen above, in the case of a minor donee receiving a gift from her parents, no express acceptance can be expected and is possible, and acceptance can be implied even by mere silence or such conduct of the minor donee and his other natural guardian as not to indicate any disapproval or repudiation of it."
15. In the instant case, the counsel for the appellant has not been able to point out any material to show that the gift was repudiated by the donee or her natural guardian, or that she disapproved of it. Thus, from the discussion made above, the third contention also, as raised by the learned counsel for the appellant, cannot be accepted. No other point was pressed.
16. In view of the aforesaid discussion, I find that the matter is concluded by concurrent findings of fact recorded by the courts below, which do not suffer from any legal infirmity and, as such, no substantial question of law arises for consideration in this appeal. Consequently, the appeal is dismissed summarily.
Order Date :- 18.5.2012/AKShukla/-