High Court
Case Details
RSA 35/2002 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) This appeal by the plaintiffs, is directed against the judgment and decree dated 21.08.2001 passed by the learned District Judge, Bongaigaon, in Title Appeal No.49/1993, allowing the appeal preferred by the defendants by set ting aside the judgment and decree dated 30.07.1977 (decree drawn on 01.08.1977) passed by the learned Asstt. District Judge, Dhubri, in Title Suit No.17/1976, whereby and whereunder the plaintiffs’ right, title and interest in respect of t he suit land has been decreed by declaring the gift deeds both dated 10.11.1953 (Ext.-Kha and Ext.-Gha) as void by holding that the said gift is not valid as th e donee during the lifetime of the donor did not accept the gift, as required un der Section 122 of the Transfer of Property Act (in short the Act). 2.
Legal Reasoning
The appellants as plaintiffs instituted the said suit for declaration of right, title and interest over the land described in Schedule-A to the plaint a nd for recovery of khas possession by evicting the defendants from the land and the houses described in Schedule-B and Schedule-C to the plaint and Dag No.1 of Schedule-A land, apart from declaration that the gift deeds, both dated 10.11.19 53, as well as the Will are fictitious deeds and liable to be cancelled and the defendants have not acquired any title by the said deeds, contending inter alia that Schedule-A land originally belonged to Sashi Mohan Das, the grandfather of the plaintiffs, who died on 16.12.1954 and after his death the property devolved on the plaintiffs being the sons of Satish Chandra Das, son of Sashi Mohan Das. It has also been pleaded that two sisters of Satish Chandra Das, namely, Shyama la Sundari Das and Champa Rani Das would not inherit any property belonged to Sa shi Mohan Das, he having died in the year 1954. The further pleaded case is that the defendants taking advantage of two fictitious deeds both dated 10.11.1953 ( Ext.-Kha and Ext.-Gha) as well as a Will claimed the property, though Sashi Moha n Das never executed any gift deed and the Will. It has also been pleaded that i n any case Shyamala Sundari Das and Champa Rani Das cannot acquire any right, ti tle and interest by virtue of the gift deeds both dated 10.11.1953, such gift ha ving not been accepted by them during the lifetime of the donor, namely, Sashi M ohan Das. The suit of the plaintiffs has been contested by the defendants by filin 3. g written statement, contending inter alia that out of the total land belonging to Sashi Mohan Das, land measuring 2 kathas 8 lechas and 4 kathas 8 lechas were gifted by him in favour of Shyamala Sundari Das and Champa Rani Das, both daught ers of Sashi Mohan Das, by executing two gift deeds both dated 10.11.1953 and th e land in Dag No.1 of Schedule-A has been given to them by an Will. Based on the pleadings of the parties, the Trial Court framed the follow Have the plaintiffs proved the accrual of the cause of action as alleged 4. ing issues for determination:- (i) ? (ii) (iii) (iv) (v) Is the suit barred by limitation? Are the gift and the Will valid and voluntarily made by Sashi Mohan Das? Was the (cid:28)Mahamaya Stores (cid:29) looted in the riots of 1955? Was the (cid:28)Mahamaya Basanalaya (cid:29) established by the defendants as stated in Part-II of the written statement? (vi) Did defendant Nos.1 and 2 acquired the (cid:28)C (cid:29) schedule property out of the income of the business left by Sashi Mohan as alleged by the plaintiffs or did t hey acquire the said properties out of their own income? (vii) their mother Smt. Moni Bala Das? (viii) (ix) ule properties? Is the suit property valued and properly stamped? Have the plaintiffs’ right, title and interest in (cid:28)A (cid:29), (cid:28)B (cid:29) and (cid:28)C (cid:29) sched Did the plaintiffs live during their minority under the guardianship of Are the plaintiffs entitled to delivery of khas possession of (cid:28)C (cid:29) and (cid:28)B (x) (cid:29) schedule properties as also of Dag No.1 of (cid:28)A (cid:29) schedule property? To what relief, if any, are the plaintiffs entitled? (xi) 5. The Trial Court upon appreciation of the evidence on record, both oral a nd documentary, decreed the suit of the plaintiffs by holding that the plaintiff s have acquired right, title and interest in respect of the suit land and neithe r Shyamala Sundari Das nor Champa Rani Das or the successor-in-interest of Champ a Rani Das could acquire any right, title and interest by virtue of the gift dee ds both dated 10.11.1953, the same having not been accepted by the donee prior t o the death of Sashi Mohan Das, the donor. 6. Being aggrieved, the defendants preferred the aforesaid appeal, which ha s been allowed by setting aside the judgment and decree passed by the Trial Cour t by holding that the defendants could prove the acceptance of the gift during t he lifetime of Sashi Mohan Das and also due execution of the gift deeds both dat ed 10.11.1953 and hence they have acquired right, title and interest in respect of the land, which has been gifted away by the aforesaid gift deeds both dated 1 0.11.1953. The judgment and decree passed by the Trial Court accordingly has bee n set aside. Hence the present appeal. The appeal was admitted for hearing vide order dated 25.02.2002 on the f
Legal Reasoning
7. ollowing substantial questions of law:- (i) For that the Gift Deed Ext.-Kha having been executed on 10.11.53 in favo ur of Smt. Champa Rani Das by Sri Sashimohan Das and the donor having died on 16 .12.54 and there being no proof of acceptance of the Gift during the life time o f the donor, the substantial question of law arises whether the Gift is a legall y valid one as per provision of Section 122 of the Transfer of Property Act, 188 2? (ii) For that in the Gift Deed it is mentioned that the possession of the pro perty gifted has already been given to the donee and from the Ext.-Ga it appears that said Champa Rani Das got Khatian only on 5.9.61 long after the death of th e donor and as such, the substantial question of law arises whether such writing in the gift deed amounts to acceptance in the eye of law as required under Sect ion 122 of the Transfer of Property Act, 1882? I have heard Mr. B.R. Dey, learned Sr. counsel for the appellants/plaint 8. iffs and Ms. T. Goswami, learned counsel appearing for the respondents/defendant s. 9. Mr. Dey, the learned Sr. counsel referring to the provisions contained i n Section 122 of the Act, has submitted that to constitute a valid gift within t he meaning of the said provisions of law, the donee must accept the gift during the lifetime of the donor. In the instant case, according to learned Sr. counsel , since the donee could not prove the acceptance of the gift during the lifetime of the donor, who died on 16.12.1954, the gift executed by Sashi Mohan Das on 1 0.11.1953 (Ext.-Kha and Ext.-Gha) is not valid and consequently no right, title and interest can be passed on to the defendant No.3 Shyamala Sundari Das and the defendant Nos.1 to 10, the successors-in-interest of Champa Rani Das. It has al so been submitted that in the absence of the gift the property would be inherite d by the plaintiffs, they being the sons of Satish Chandra Das, who was the son of Sashi Mohan Das and Sashi Mohan Das having died in the year 1954, i.e. before coming into force the Hindu Succession Act, 1956. 10. On the other hand, Ms. Goswami, the learned counsel appearing for the re spondents, referring to the finding recorded by the First Appellate Court has su bmitted that it is evident from the recital of Ext.-Kha and Ext.-Gha, gift deeds , that the daughters, namely, Shyamala Sundari Das and Champa Rani Das were put into possession and based on such possession khatians were also issued in the ye ar 1961, which implies acceptance of the gift by the donee. Referring to Ext.-1, the letter issued by the donor, namely, Sashi Mohan Das to his wife, it has als o been submitted that the donor has also in the said letter has indicated about execution of the gift deeds in favour of two daughters, who in normal circumstan ces would have been deprived from the property, as Sashi Mohan Das died in the y ear 1954. The learned counsel, therefore, submits that since the gift was accept ed by two daughters, namely, Shyamala Sundari Das and Champa Rani Das, the same is valid within the meaning of Section 122 of the Act and hence the judgment and decree passed by the First Appellate Court needs not interference. 11. e parties, in the light of the substantial questions of law formulated. I have considered the submissions advanced by the learned counsel for th 12. Ext.-Kha and Ext.-Gha are two gift deeds, both dated 10.11.1953, execute d by Sashi Mohan Das in favour of Shyamala Sundari Das and Champa Rani Das, his daughters. Execution of such gift deeds by Sashi Mohan Das in favour of his afor esaid two daughters has been proved and such finding has not been challenged in the present appeal. In this appeal the only question which arose for considerati on is whether there was acceptance of gift by the donee, namely, Shyamala Sundar i Das and Champa Rani Das, prior to the death of Sashi Mohan Das, the donee. It appears from the recital in Ext.-Kha and Ext.-Gha gift deeds that both Shyamala Sundari Das and Champa Rani Das were put into possession of the property gifted away. It is also evident from the deposition of witnesses and as found by the Fi rst Appellate Court that the land revenue was also paid in respect of the said p roperty by or on behalf of Shyamala Sundari Das and Champa Rani Das. Ext.-Ga and Ext.-Uma are the final khatians issued in favour of Champa Rani Das and Shyamal a Sundari Das, respectively. These khatians were issued in the year 1961. Issuan ce of the khatians presupposes the possession of both Shyamala Sundari Das and C hampa Rani Das, which also lends support to the case of the defendants relating to acceptance of the gift. It also appears from Ext.-1, letter written by the do nor to his wife, that he has executed the gift deeds in favour of his two daught ers, namely, Shyamala Sundari Das and Champa Rani Das and they have been put to possession thereby indicating the acceptance of the gift. 13. Having regard to the aforesaid position and the evidence as discussed ab ove, I am of the view that the First Appellate Court has rightly held that the d onee have accepted the gift during the lifetime of the donor. Hence the judgment and decree passed by the First Appellate Court does not require any interferenc e. 14. 15. The appeal is, therefore, dismissed. No costs. Registry is directed to send down the records.