Himachal Pradesh High Court
Tokha vs Smt. Biru And Ors. on 29 November, 2002
Equivalent citations: AIR 2003 HP 107
Author: L S Panta
Bench: L S Panta
ORDER Lokeshwar Singh Panta, J.
1. This appeal under Section 100 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 3-5-1993 passed by District Judge, Chamba in First Appeal No. 6 of 1992, who, on appeal reversed the judgment and decree of Senior Sub Judge, Chamba dated 18-12-1990 dismissing the suit of the respondent No. 1. The defendant No. 1 Tokha in the suit out of which this appeal arises, is the appellant and the respondent No. 1 is the plaintiff and other two pro forma respondents herein are defendants 2 and 3. Hereinafter the parties will be referred to as the plaintiff and the defendants.
2. Smt. Biru plaintiff filed suit for declaration and possession against the defendants inter alia alleging that she made a gift in favour of one Singh of her land comprising Khasra Nos. 78, 92, 98, 162, 351, 381 396, 410, 425 and 442 measuring 7 bighas and 2 biswas and khasra Nos. 72, 80, 142, 206, 237, 339, 421 measuring 3 bighas and 4 biswas situated in Mohal Saho, Pargana Himgiri, Tehsil Churah, District Chamba. Necessary deed of gift was executed on 12-1-1984 mark Ext. D-1 and the said gift was made for providing services to the plaintiff during her lifetime and on her death to perform her last rites by the donee Singh. The plaintiff alleged that an agreement was executed on 5-3-1984 by the donee undertaking to provide maintenance to the plaintiff during her lifetime and in case of failure to do so, the deed of gift shall be restored to her. According to the plaintiff, the donee provided maintenance to her till he was alive and after his death on 26-10-1989 the defendants succeeded to the land in dispute which was the subject matter of the deed of gift but since they have failed to provide maintenance to her, therefore, prayer for declaration that the defendants being successor of deceased Singh were bound by the agreement Ext. PW-3/A executed by deceased to maintain the plaintiff, hence the gift shall stand revoked and the possession of the land in dispute shall be restored to her.
3. The defendants in their written statement contested and resisted the suit of the plaintiff mainly on the grounds that deceased Singh had been looking after and providing maintenance to the plaintiff and in lieu thereof, she gifted the land in dispute to Singh and after the death of the donee, the land in dispute having been succeeded by them they are not bound to provide any maintenance to the plaintiff and further that the gift being complete and the possession having passed over to the defendants, the plaintiff was not entitled to revocation of the gift and therefore, the suit was not maintainable. They pleaded that deceased Singh never executed any agreement on 5-3-1984 regarding the revocation of the deed of gift and the said agreement was false and forged having no binding effect and even if it was presumed to have been so executed, the deceased Singh was bound to provide maintenance to the plaintiff till his lifetime and after his death defendants are not bound to provide any service to the plaintiff or to maintain her.
4. On the pleadings of the parties, the trial Court settled the following issues on 11-6-1991 :
1. Whether the suit in the present form is not maintainable as alleged? .... OPD
2. Whether the writing dated 5-3-1984 was executed between the plaintiff and deceased Singh creating a right of maintenance qua the gift deed executed by the plaintiff in favour of deceased Singh on 12-1-1984 registered on 6-4-1984? .....OPP
3. If issue No. 2 is proved in affirmative whether the defendants are bound to provide maintenance to the plaintiff in view of the writing dated 5-3-1984? ....OPP
4. If issue No. 3 is also proved in affirmative whether the defendants have failed to provide maintenance and thus the gift deed and the consequential mutation of the estate of deceased Singh in favour of the defendants are liable to be set-aside? .... OPP
5. Whether the plaintiff is entitled to the possession of the gifted property as prayed for? ...OPP
5. Both the parties adduced oral and documentary evidence in support of their respective claims. Finding on Issue No. 1 was returned by the learned trial Court in the affirmative whereas Issues No. 2 to 5 were decided in negative meaning thereby against the plaintiff and in favour of the defendants and consequently the suit of the plaintiff was dismissed.
6. Aggrieved against the judgment and decree of the trial Court the plaintiff carried the matter in appeal before the first appellate Court and the said appeal Was allowed, consequently, the suit of the plaintiff was decreed. Now, Tokha, the defendant No. 1 has challenged the judgment and decree of the first appellate Court in this Second Appeal before this Court.
7. This Court on 14-7-1993 admitted the appeal on the following Substantial Questions of law :
1. Whether there was any legally enforceable condition of rendition of services, the non-performance of which would deny the gift?
2. Whether the agreement to render services was admissible in evidence?
8. I have heard Mr. Trllok Chauhan, learned counsel for defendant No. 1 and Ms. Rama Mehta, learned counsel for the plaintiff.
9. Mr. Trilok Chauhan, learned counsel contended that there was no condition in the deed of gift Ext. D-1 (copy Ext. P-1) which was executed by the plaintiff in favour of deceased Singh about its revocation and as such separate agreement executed on 5-3-1984 mark Ext. PW-3/A will not form part of the deed of gift as the said agreement being contrary to the deed of gift cannot supersede the gift made by the plaintiff-donor in favour of deceased Singh; that even if it is deemed to be a valid agreement executed by the plaintiff and donee Singh the said agreement was personal to the donee who died on 26-10-19,89 and was not binding on the defendants who succeeded the land in dispute under Section 8 of the Hindu Succession Act as the defendants have become absolute owners thereof; that since the plaintiff herself did not appear in the witness box to substantiate her claim made in the plaint and therefore adverse inference has to be drawn against her: that agreement dated 5-3-1984 has not been proved in accordance with law; that the deed of gift Ext. D-1 was without condition of revocation and as such it was only pious desire of the donor that she would be maintained by the donee during her lifetime and that there is no evidence on record adduced by the plaintiff to prove that the defendants have failed to maintain her.
10. Per contra Ms. Rama Mehta, learned counsel for the plaintiff contended that since the gift deed Ext. D-1 was conditional and agreement Ext. PW-3/A executed by the plaintiff with donee Singh during his lifetime was the document of the same transaction, as such the gift has been validly revoked by the plaintiff as held by the learned first appellate Court.
11. I have given my anxious and thoughtful consideration to the respective contentions of the learned counsel for the parties.
12. On a bare perusal of the contents of deed of gift Ext. D-1 it is evident that this gift was executed by the plaintiff in favour of deceased Singh for providing maintenance/services to her during her lifetime and there was no condition imposed therein for its revocation. It is admitted fact that the plaintiff has not appeared in the witness box to substantiate her claim and on her behalf her Special Attorney Magha has appeared as PW-1. The deed of gift was executed by the plaintiff in favour of donee Singh on 12-1-1984 and it was registered by the sub Registrar, Tehsil Churah, District Chamba on 6-3-1984. It was not the case of the plaintiff that during the period when the gift was executed and later on registered, the donee had not maintained her. The agreement Ext. PW-3/A on which the case of the plaintiff was based was admittedly executed by her with donee Singh on 5-3-1984 and in that document there is no whisper that the deed of gift was conditional which could have been revoked in terms of Section 126 of the Transfer of Property Act. If the deed of gift was to be revoked by the plaintiff by agreement Ext.
PW-3/A, the plaintiff should have stated so before the Sub Registrar at the time of registration of deed of gift which was admittedly registered on 6-3-1984. The evidence of the special attorney PW-1 who appeared on behalf of the plaintiff is of no help to the case of the plaintiff as in his cross examination he specifically admitted that neither the deed of gift was made by the plaintiff in his presence nor donee Singh executed any agreement with the plaintiff in his presence, meaning thereby that agreement PW-8/A has not been properly proved on record by the plaintiff and no reliance can be placed on such a document. The donee had died on 26-10-1989 and after his death the property in dispute was inherited by the defend ants being his legal representatives. Kayum Khan (PW-2) is the son of deceased Gulama who scribed the agreement Ext. PW-3/A and deposed before the Court that the document was in the hands of his father Gulama but he could not prove the, contents of the document. However, PW-3 Hashim is the witness of the document Ext. PW-3/A in whose presence the said document was allegedly executed. The said document was found to be shrouded under the thick clouds of suspicion by the learned trial Court on various grounds but the learned appellate Court on appreciation of the evidence came to the conclusion that the said defendants have failed to prove that the said document was forged one and as such the reasoning on this issue was set-aside.
13. The finding of the first appellate Court that the deed of gift was conditional which was later on revoked by the plaintiff is apparently unsustainable. As stated hereinabove, on bare perusal of the deed of gift it was specifically stated therein that the donee was maintaining her before the execution of deed of gift and he would do so in future as well but there was no such condition that the gift would be revoked by the donor. The subsequent agreement, therefore, cannot supersede the unconditional deed of gift and the finding of the learned first appellate Court holding that the deed of gift Ext. D-1 stands superseded by agreement Ext, PW-3/A is invalid and unsustainable. The deed of gift made by the plaintiff in favour of deceased Singh was complete on 12-1-1984 on which day the possession of the land in dispute was delivered to the donee. It is settled law that, once gift deed is executed and has been delivered to the donee the donor cannot revoke the same on the ground that the gift is not completed until the deed is registered (see Venkat Subla Srinivas Hegde v. Subha Rama Hegde, AIR 1928 Privy Council 86.
14. In Murikipudi Ankamma v. Tummalacheruvu Narasayya, AIR 1947 Madras 127, learned single Judge of Madras High Court held that in the absence of any express reservation of a power of revocation in the gift deed a donor does not continue to have the right to revoke a gift. For if a man will improvidently bind himself up by a voluntary deed, and not reserve a liberty to himself by a power of revocation, a Court will not loose the fetters he has put upon himself and without reservation of power to revoke, gift cannot be revoked under Section 126 of the Transfer of Property Act.
15. In Gandadhara Iyer v. Kulathu Iyer Sankara Iyer, AIR 1952 Travancore-Cochin 47, a Division Bench of the said Court held that when there is an out-and-out transfer by way of gift followed by a direction to the donee to maintain the donor the latter direction is only a pious wish. On the other hand, if the gift deed starts with a statement that it is made with the object of providing for the maintenance of the donor and this statement is followed by the operative clause, there can be no doubt that the gift is subject to the liability to maintain the donor. Thus, where after the operative portion of the gift deed other clauses providing for the expenses in connection with the donor's funeral ceremonies and for the services expected from the donee are introduced, the directions will not give any right to the donor to revoke the gift if the conditions are not observed.
16. In M. Venkatasubbaiah v. M. Subbamma, AIR 1956 Andhra 195, learned single Judge held that a gift subject to the condition that the donee should maintain the donor cannot be revoked under Section 125 for failure of the donee to maintain the donor firstly for the reason that there is no agreement between the parties that the gift should be either suspended or revoked: and secondly this should not depend on the will of the donor. Again, the failure of the donee to maintain the donor as undertaken by him in the document is not a contingency which could defeat the gift. All that could be said is that the default of the donee in that behalf amounts to want of consideration. Section 126 itself provides against the revocation of a document of gift for failure of consideration. If the donee does not maintain the donor as agreed to by him, the latter could take proper steps to recover maintenance etc. It is not open to a settler to revoke a settlement at his will and pleasure and he has to get it set aside in a Court of law by putting forward such pleas as bear on the invalidity of gift deed. Similar view was taken by Judicial Commissioner of Himachal Pradesh in Smt. Gaurju v. Tara Chand, AIR 1962 HP 4.
17. A learned single Judge of Orissa High Court in Tila Bewa v. Mana Bewa, AIR 1962 Orissa 130, has also held that gift cannot be revoked for failure of donee to maintain donor under Sections 126 and 122 of the Transfer of Property Act as there was no agreement between the parties that the gift could be either suspended or revoked.
18. In Union Bank Ltd. v. Mst. Ram Rati, AIR 1954 Allahabad 595 (Lucknow Bench), learned single Judge has held that a gift would be a valid gift if the gift has been accepted even though the document may not have been registered at the time of the execution of the document and it cannot be revoked subsequently, if the document has been registered. Further it is said that a completed gift takes effect from the date of the execution and not from the date of registration.
19. A Division Bench of this Court in Smt. Shakuntla Devi v. Smt. Amar Devi, AIR 1985 HP 109, has held that if the gift not based on fraud, undue influence or misrepresentation its cancellation is not valid under Section 126 of the Transfer of Property Act.
20. In Vannathi Valappil Janaki v. Puthiya Purayil Paru, AIR 1986 Kerala 110, a learned single Judge of Kerala High Court has held that when a gift of immovable property has been accepted by the donees and they are in possession of the property the fact that after making the gift the donors felt that it was a folly or imprudence or want of foresight on their part to have executed the deed of gift will not clothe them with power of revocation of the gift under Sections 126 and 122 of the Transfer of Property Act.
21. Alearned single Judge of this Court in Mool Raj v. Jamna Devi, AIR 1995 HP 117, has held that when no specific condition of revocation has been made in the deed itself, in the event of failure of the donee to render services to the donor or maintain the donor the gift cannot be revoked under Section 126 of the Transfer of Property Act.
22. In the case in hand there is no specific condition either for giving maintenance or for revoking of the gift deed in case services are stopped to be rendered by the donee. Anyway, the fact remains, as has been stated in the deed of gift that the gift was in lieu of services meaning thereby that the donee had to render services to the donor-plaintiff but in the absence of any specific condition in the event of failure of the donee to render services, the gift could not be revoked. Thus, the deed of gift Ext. D-1 if considered as an outcome of general law cannot be said to be revocable one when no specific condition for its revocation has been made in the deed Itself in the event of failure of the donee to provide services to the donor or maintain the donor, the gift cannot be revoked.
23. In that view of the matter, and in the light of the above said decisions of various High Courts, the first appellate Court acted illegally in considering the document of gift to be conditional and revocable one. The above first question of law accordingly stands answered in favour of the defendants and as a consequence thereof it is held that deed of gift Ext. D-1 was unconditional, it could not be revoked on account of the failure of donee (since deceased) to render services or to maintain the plaintiff.
24. Admittedly, the plaintiff has not stepped into the witness box. Her special attorney has appeared as PW-1. One of the material issue involved in the present appeal is whether the donee or after his death the defendants have failed to provide maintenance to the plaintiff and thus the deed of gift and the consequential mutation of the estate of the deceased Singh in favour of the defendants are liable to be set-aside. It was the plaintiff to state and rebut that the deed of gift executed by her in favour of the donee was conditional and after the death of the donee the defendants have failed to maintain her. PW-1 has simply pleaded ignorance to the facts. On the failure of the plaintiff to step in the witness box and depose in support of her case and to subject herself to cross-examination, an adverse inference will have to be drawn against her. The appearance of special attorney cannot be treated as having appeared in the capacity of plaintiff. Such appearance is only as a witness in his personal capacity. It has been held by the Supreme Court in Vidyadhar v. Manikrao, (1999) 3 SCC 573 : (AIR 1999 SC 1441) that where the plaintiff to the suit does not appear in the witness box and states his own ease on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct, (see Gurdev Singh v. Gulabrao, 2000 (3) Shim. L.C. 285, Mohinder Singh v. Kurukshetra University, 2001 (2) Shim LC 246, Harswarup v. Ram Lok Sharma, 2000 (3) Shim LC 160; Ishwar Bhai C. Patel v. Harihar Behera, 1999 (2) Current Civil Cases 171 : (AIR 1999 SC 1341) (SC); Roshan Lal v. Krishan Dev, 2002 (1) Cur LJ (HP) 261 and Ram Parsad v. Hari Narain, AIR 1998 Rajasthan 185 (Jaipur Bench).
25. In Rattan Dev v. Pasam Devi, (2002) 7 SCC 441, the Supreme Court has held that the proposition of law laid down in Ishwar Bhai C. Patel v. Harihar Behera, (AIR 1999 SC 1341) is undoubtable wherein it has been emphasized that withholding of the plaintiff himself from the witness box and thereby denying the defendant an opportunity for cross-examination of himself results in an adverse inference being drawn against the plaintiff.
26. Since the plaintiff has failed to step in the witness box, an adverse inference has to be drawn against her and as such she cannot be said to be entitled for relief sought for in the suit. The other evidence adduced by the plaintiff does not support the case of the plaintiff that she was not at all maintained by the defendants. The finding of the first appellate Court which is to the contrary is liable to be set-aside.
27. The contention of Ms. Rarna Mehta, learned counsel for the plaintiff that deed of gift and agreement Ext. PW-3/A entered into between the plaintiff and donee Singh on 5-3-1984 taken together will clearly show that a condition was imposed in the deed of gift to maintain the plaintiff and on the failure of the donee to do so, the conditional gift was superseded and Ext. PW-3/A was an integral part of the transaction and could not be divorced from the deed of gift, cannot be accepted nor the ratio of the decision relied upon in the case Mt. Purnia Kurmi v. Mahindra Nath Mahanti, AIR 1968 Assam and Nagaland 50, will be applicable in the facts and circumstances of the present case. In that case the plaintiff executed the deed of gift in favour of the defendant in respect of her entire property and the defendant became an universal donee. On the same day of the gift, the donee accepted the gift on condition that he would maintain the plaintiff an old widow with none-else to look after her till her death. The learned Judge has found that deed of gift which was executed on 17th November, 1961 and another document Ext. 2 executed by the defendant on the same day whereby he agreed that he would maintain the plaintiff till her death and that in case she refused to maintain her properly then he would not be entitled to the gifted property would form part of the same transactions. In the facts and circumstances of the said case, the learned Judge held that Exts. 1 and 2 taken together will clearly show that condition was superseded to the gift and a condition was integral part of the transaction and could not be divorced from the gift.
28. Similarly the decision in case Gehru Ram v. Rohlu, 1998 (1) Shim LC 360, relied upon by the learned counsel for the plaintiff is also of no assistance or help to the plaintiff. In that case the plaintiff gifted the suit land in the year 1988 in favour of the defendant and the terms and conditions of the deed of gift were that the defendant was to render all kinds of services to the plaintiff and in the event of such services not rendered by the defendant the gift deed was to be revoked automatically and the suit land was to be vested back to the plaintiff. Considering the facts of the said case it is clear that the deed of gift was conditional executed in favour of the donee.
29. In Thakur Raghunath Ji Maharaj v. Ramesh Chandra, (2001) 5 SCC 18 : AIR 2001 SC 2340 the facts were that land was gifted for a specific charitable purpose for constructing a Degree College building thereon with the condition attached to it that if the building was not constructed within six months the deed would come to an end and donor would become entitled to the property. An agreement was also executed on the same day when the deed of gift was executed. In the facts of that case their Lordships held that relationship between the donor and donee was fiduciary nature, donee continued to be trustee and donor could claim back the property on breach of the conditions mentioned therein and donee having failed to fulfil the conditions the suit for possession filed by the donor was rightly decreed by the first appellate Court. The ratio of this judgment is not applicable in the facts of the present case. In the case on hand the agreement Ext. PW-3/A was not executed on 12-1-1984 when the deed of gift was executed by the plaintiff in favour of donee Singh whereas the alleged agreement was only executed on 5-3-1984 just one day prior to the registration of the deed of gift on 6-3-1984 and in these circumstances the deed of gift and the agreement would not form part of the same transaction and cannot be read together and given effect to as held by the first appellate Court.
30. No other point was argued by the learned counsel for the parties.
31. For the above said reasons, the judgment and decree dated 3-5-1993 passed by District Judge, Chamba in Civil Appeal No. 6/1992 is set aside. Consequently, the suit of the plaintiff for declaration and possession by revocation of the deed of gift under reference stands dismissed. This appeal is allowed with no order as to costs.
32. Since the appeal is allowed on the aforesaid legal issues, I do not consider it necessary and expedient to deal with other contentions raised by learned counsel for the defendant No. 1 during hearing of the appeal.
33. Now the next question arises whether the plaintiff-donor is entitled for maintenance or not from the defendants who have admittedly inherited the property in dispute after the death of donee Singh. As per the stipulation contained in deed of gift Ext. D-1 the donee was under obligation to maintain the plaintiff during her life time. During the pendency of the appeal the defendants filed an application being CMP No. 745/ 2000 stating therein that the plaintiff has arrived at a compromise with the defendant No. 1 wherein she relinquished all her interest over the property in dispute for three tolas of Gold which were duly handed, over to her. Thereafter, the plaintiff went to the house of her parents where she is presently residing with two daughters of her deceased brother. The defendant No. 1 despite the aforesaid compromise has time and again approached the plaintiff to live with him but the plaintiff at the instance of one Magga who appeared on her behalf as her Attorney and other persons namely Aghi Ram, Chuni, Nand Lal, Tula and Bheema has refused to accompany defendant No. 1. The plaintiff is also presently receiving pension from the Himachal Pradesh State Government under the Old Age Pension Scheme which was got provided to her by the efforts of defendant No. 1 and his deceased brother donee Slngh. The defendant No. 1 has also undertaken that he is still ready to take the plaintiff with him and look-after her properly during her life time and in case she is not ready and willing to accompany him and to live with him he is ready to pay reasonable maintenance to the plaintiff as may be directed by this Court. In reply to the said application the plaintiff has stated that defendant No. 1 has not paid anything to her nor she has relinquished all her rights and interest over the property in dispute after receiving three tolas of gold. Her parents had died long time back and there is non-else who could look after her. The age of the plaintiff in the affidavit in support of the reply was stated to be 80 years. Efforts were made by the Court to settle the dispute amicably involved in this appeal but the plaintiff being an old lady and residing at far-flung area of Chamba District could not attend the Court nor she could impart proper and effective instructions to her learned counsel. Order dated 19-4-2002 reveals that a sum of Rs. 5000/-was paid to the plaintiff by defendant No. 1 in cash in the presence of the Pradhan, Gram Panchayat which was accepted and the receipt of the said amount was also handed over to defendant No. 1 by her which was duly authenticated by the witnesses and the Pradhan of the Gram Panchayat. The Pradhan has also issued separate certificate acknowledging the payment of Rs, 5,000/-by the plaintiff. The said amount was paid to her by defendant No. 1 on account of maintenance. In this backdrop of the case, I am of the view that in the interest of law and justice appellant-defendant No. 1 Tokha is directed to pay a sum of Rs. 500 p.m. to donor-plaintiff Smt. Biru till her life time. The said amount shall be remitted by the appellant-defendant No. 1 by money-order to the plaintiff at a place where she is presently residing.
34. Interim order shall stand vacated. CMP No. 745/2000 shall also stand disposed