The High Court · 2025

Judgment

,1'1 TION'BLF:, SRI JTIS-TICE ABHINAND KUMAI]. SHAVTLI ANI) HON'BLE SRT JT]STICE LAXMI NARAYANA ALISHETTY CI'I'Y CML COUR'I AI'['EALNo.9l of 2014 .il.[X]M].N't-: lper Hon ble Sri .lustice l-atni Nara.t'unu Ali.shett_t') 'l'his appeal is flled aggrieved by thc.iudgment and decrec datcd 02.06.20 l4 in O.S.No.7l9 ol 2007 on the file of the I I.Addi tional (ih icl J udge, C it), C ivi I Court. I l.v-dcrabad.

2. Heard Sri Mohd. Ajmal Ahmed, lealned counsel lor the appcllant. and Sri Kilau Palakudhi, leamcd counsel ibr the r-cspontlents. l. 1'he appcllant herein is delendant and respondent No.l hctein is plaintiff in the suit. During the pcrrdency o1- this appeal, rcspondent No. I diedl hence, his legal representativcs werc brought on record as rcspondent Nos.2 to 4. For convenience. hereinafter the parties are referred to as they are arrayed in the suit.

4. -l'he facts that lead to filing of the present appeal as averred irr thc plaint ar!- us hcreundor: 2 l^J./'\ /.\ I / :0ll ,( ( \\or)lol I (i) the plaintiff is the owner and possessor of house properly bearing ntunicipal No. l2-2-800i44113, adrneasurinll 295 square yards situated at Dilshadnagar Colony, RetiBowli. Mehdipatnam. Hyderabad (hcreirratlcr ret'erred to as "suit schedLrle properly" ), having acquircd the sanre under registered gift sl-ttlenrent deed document bearing docuurent No.38/2005, dated 05.01.2005, executed hy thc defcndant, who is her brother; that she has been paying thc elcctricity bills, water charges and municipal taxes to thc Departnrcnts concemed; that del-endant, after cxecuting gili settlerrcnt cleetl. shilied his residence to Karimnacal and staftcd living therc in the arrcestral house bearing No.4-2-91 to 95 at Shastri Roud (ii) '[hc plaintill- is .,vorking as Staff Nurse in Aseer Central Flospital, dbra K ingdorrl of Saudi Arabia, and she rrsed to visit H1'derabad in lhc vacatiorls; that after execution ol gilt settlement deed, she joincd her duty at Kingdom of Saudi Arabia and her husband and tu'o sons were in possession of the suit schedule propefty; that dLrring her visit in the year 2006, the det-endant requestecl her to permit hinr to stay in thc suit schedule property as ,/_ ) 3 .-1f,s.J.t l,\..1. J C.C.C.A.No 9l of 2014 hc ri as l:rcing dif)iculty tbr studies of his childlen and considering his reclucst and relationship, I11 good laith, she permitted the detindant to stay in the suit schedule property along with his fhrnily and thus, the detbndant was in permissive possession of the su it schcdr,rlc property;

(iii) that as delendant and the plaintiff were in cordial terms, tl.re lattcl uscd to take care ol- his needs and rrccessities and also used to irelp him financially; that the delendant has obtained a sunt of- Rs.40.00,000/- lrour plaintill' towards interest fi'ee hand loan; that clcspitc repc'lted lccluests by the plaintilT to rcpay thc antount. the dctendant lirilcd to repay the amount and therefbre, she was fbrced to issue lcgal notice on 20.1 1.2007 to thc delcndant asking hirn to pa_v the cnlirc amount within a period o1'one week and also issued another notice to her elder brother lor partition ol ancestral propert), situatcd at Shastri Road, Karimnagar, and shc lelt fbr Saudi Arabia to join her duty. (iv) In the absence ol the plaintiff, the delendant unilaterally, without conscnt, intirnation and concurrence of plaintiff, cancelled the -eili settlernent deed on 03.12.2007, vide cancellation deed -l ll(s.J(( Lt:.l. J , C.C.A.No.9toll0l'1 \ bearing docurncnt No.5l87 ol 1007. The delendanr issued reply to the legal notice issued b1, the plaintifT on I _5.ll.1007 rvirhout disclosing the cancellation ol'gift settlcrnent deed; rhat the l.rusband ol plaintiff came to knorv about the cancellation ol'cilt settlentent deed on the intervening night of' l6/17.12.2007 whcn the def'endant forcelully drivcn out hirn and their rninor sons liom the suit schedule properly and clairned orvncrship over thc suit schedule property and disclosed about the cancellation o1- pift settlement deed. (v) That husbancl of-thc plaintilT inlonned the plaintiflabout the development ol issue-s and thereafler. he has applie'd for certified copy of the canccllation decd and in the meanwhile. the plaintifT came back to Incliir on ]6. I1.2007, on emergency visa and visited the suit schetlr-rlc propertv. [txr,'ever, the deferrdant did not allowher to enter into the suit schedule property and also threatened her with dire consccluenccs and as such. she approached the Police. Asilnagar and lodged a cornplaint against tl're defendant. The police refused to act on the said complaint and instead. advised the plaintiff to approach the competent Civil Court: ";: ) ..1^s.Jd I \.1. ./ ( (l.C A.No 9l ol 20l.1 (vi) -[hat the defbndant has got no right or title over thc suit schedulc propcrty as he himse ll, out o1'love and aftbction, gifted it to the plaintil-t. arrd later, on ill-advice ol others and with an evil intention, he cancc.lled the gift settlement deed.

5. With thc afbresaid pleadings, the plaintiff filed a suit against the delendant and thc trial court decreed the suit, vide judgnrent datcd 02.06.10 1-1, declaring the cancellation of the gift settlenrent deed datccl 0.1.ll.1007 as null, illegal and void and not binding on the plaintili- and lirrthcr, directed thc dclendant to delivcr vacant posscssion ol-the sr-rit schedulc propefty to the plaintiff.

6. 'l-he dc-l'endant entered appearance and filed written stittenrent clcnr irrq the avermcnts and allegations made in the plaint and firnher, averred that thc plaintiff is neither owner nor possessor ol'thc suit schcclule properly at any point of time and that the giI1 settlerrent dccd bearin-e docurrent No.38 of 2005, dated

05.0 1.2005, is not complete, as physical possession of the suit schedule property was not delivered to plaintilf and the gift deed rvas executed onl"v" to save her rnarital life and to satisly the der-nands of hcr husband, and tl-rus, the gift settlernent deed .-1K.t,../& i. \.1. J ( C.C.A.^-o.g1 ol 20ll document is a sham document ancl the sarre \vas nerer acted upon; that plaintitT llled an application belbrc the CHMC to rnutate her name in respect ol suit schedule property in the month ol November, 2007 and through hcr lcgal noticcs datcd 20.11.2007 and 24.11.2007, the plaintifl' uas clainring herselt' as owner and possessor of the suit schedule properlv r.r,ith a mala llde intention to usurp the said propertyl that thc dcl'endant having come to knorv the evil intention of the plaintifl. carrccllcd the gili se ttlement deed vide docunrent bearing No.5l87 of'1007. dated 0.1.12.2007 and also submitted application to the mur.ricipality that the mutation ol the propertv should not be ctlcctccl in thc narne of'the plaintil'l- and accordingly, the Deputy Cournr issioner'. Circle VII. GHMC,has rejected the request of the plaintil'l'fbr mr-rlation,vide his letter dated I 1.02.2008. (ii) The del'endarrt denied that the shificd his residence to Karimnagar after execution ol gifi scttlcme nt deed and was living at the ancestral lrouse bearing No.4-2-9 I to 95 situated at Shastri Road; that thc niarital lil'e ol the plaintitf u,ith her husband was always undel peril as her husband used to thrcatL.n her that he ..t^J../& 1..\.r. ./ C C C,\ No Al ol'l0l.l would divorce her and will rnarry his own cousin sister residing at Nanded; and that evcrv tirlre, their elder brother used to patch up thcm by reconc iliation. (iii) The defcndant ir'as running an intentet browsing center in thc name and style ot' 'M/s Neo Net Communications' since 1998 and it is only sourcc of incorne lbr thc del'endant and his family and the perrnissive possession of- the del-endant in the suit schedule propertyis a created one; that husband of ptaintiffis a permanent resident of hoLrsc- No. l8-l-60ti situated at Falaknurna, Jangammet, Hyderabad ancl thcr r)L'\'!-r sta\ed irr tlre suit scIredule property; that he has not obtainc(l hand loan u,ithout intereSt amounting to Rs.40,00,000/- ll'our the plaintil'l; arrcl that the plaintilf advanced the said amount to the del'endant and his elder brother, through her NRE Account oI HDtrC Bank.in order to obtain the Release deed lrom her eight sisters and thcleafier', the plaintiff has issued a notice datcd 20. I 1.1007 accusing the detbndant ol rnisappropriatiorr of thc amount ol Rs.40,22,696l-, for which defendant issr"rc'd rcpll' dated i1.12.2007 stating that the said amount was -9iven by the plaintilT lbr payment to their eight sisters E ,1KS.J& L\A, J ( ( (-.A -\o.91 ol2014 lor obtaining the Release deed in respect ol'thc anccstral propcrty l bearing No.4-2-91 to 95 situated at Shastri Road. Karin'rnagar and her.rce, it is a dcbt which has to be discharsed b1 lrimself and his eldcr brothcr Mohd. Ahdul Rahrran Khan ecluallv rrrrd hencc, thcy are prepared to repay the said amount after selling the ancestral house at Karimnagar (iv) It was specifically averred that the gili settlerrerrt decd was not acted r,rpon with and physical possession o['thc suit schedule property was not delivered to the plaintifl- and hcncr. the donor. in the said circurnstances, has a right to revoke thc gili by ltlcte declaration. Fr,rrther, it was averred that the allegnions that on

26.12.2007. rvhen the plaintill straiglrtas ar canr. to thc suit schedule propefty, the defendant did not allos hcr t() -'nter into the suit schedule property and also threatencd hcl rvith dire consequences are all false and baseless; that at the instance of the plaintilf ancl her husband, the dct'endanl was :Lur-lrroned to Asifhagar Police Station and the Policc thrcatened to book a l-alse case against him and then, the def'endant cornplaincrl the matter to the Assistant Commissioner of Poiice. Asilitagar, r.vho directed the --:'-r\-. () ,tKS.t& 1t"1. J C.C.C.A.No 9l ol 20l4 lnspector of'Policc, Asiliragar Policc Station, not to interlere with the civil disputes. The dclendant tinally avemed that the suit is not nraintainable as the plaintilT tirilcd to scck declaration of her title in respect ol the suit schedule propcrty-, by paying the court fee therefore and prayed to dismiss the suit.

1. Based on the abor,c plcadings of both the parties,the trial Court liarned thc lbllor,i,ine issucs lirl trial: (i)Whethcr the gift dced dated 05.01.2005 is sham and nominal documcnt and nerer actcd upon? (ii)llso, rvhcther the' canccllation tlocument No.5287 o1 2007 is invalid and liable to be declared as void? (iii)Whether the plaintiff is entitled for recovery of possession ol suit schedulc' propertl,? (iv)To what relie t'?

8. To substantiate her case. on bchal t' ol' the plaintiflf, PWs. I to 5 were examined and E,xs.A- I to A- I 7 wcre rrarked. On behalf of the det-endant. DWs. I to 6 u,ere erarlined arrd Exs.B- I to 8-26 and X- I u,ere rr ark cc1. t0 lA\-/d/\{/ \\Lf,,l,r11)ll r i

9. T he trial Court has considered all the issur-s and made the ,./ fb ilowing observations:- "...1'hough DWs. I and 2 in their eridence deposctl tlrat l:s A- I the gilt decd is exccutcd by the deli:ndant as a 'ccuritl' fbr the repayment ol the loan amounts due by thc de f'endant to the plaintifl DW.2 in his cross examination ha. acl-mittcd that ttx A-I thc gili deed was cxccutcd br thc drlendant in f avour Ol- thc plaintifl with his or.rr liee \\ill and r()nsent and thcrc was no lraud played by thc plaintilt'nor applied unduc influcncc or coercion in obtaining such docuu.rcnl. Iurttrer. as pcr the admission of DW.2 and PW.4 u'ho preparcd thc drafi gift deed at the instancc olthe defcndant inlnlcdiirl,rl) on thc cxecution of llx A-l gift deed. the posscssion olilrc propertl was de livered to the plaintifl who signed Ex A- I as a token of acceptance of the gift. . ." "...As per the evidence of PW. I and PW.l in thc r car 2006. rvhen the plaintifl came to llyderabad thc defcndant approached her and sought permission to reside rn the suit schedule property with his family and accoltlingly. thc plaintiff permitted hirn to stay in thc said plopcnr and accordingll' as secn lrom llx A-i. shc has peicl rrater consunrption charges to the Department on ll-ll-2007. Further as per the evidencc ol PW.2 supported by thc evidence ol'PW.3 on the intervening night ol l6t 17-12-2007, the delendant drove the husband and thc chiltlren ol' thc plaintifll'tiorn the suit schcdule propert) ..." t1 .l(tJd 1..\.1. J C.C.C.A.No.9l ol 20l4 ''. . . Whcreas though DWs. I . 2 and 4 in their evidence deposed that the detbndant cxecuted I-x A- I gifi deed in lavour of the plaintill only as a security lor thc repalrnent ol the loan payable by the delendant to the plarntill'as pcr the admission of DWs. I and 2 in the ir cross-csam ination thc def-endant executcd Ex A-l gift dced in {hvour of'the plaintill duc to love and aflection and though I)W. I in his evidcnce deposed that the plaintill obtained Ex A- I b1' playing fraud, the def'cndant has l-ailed lo pro\ e anl liaud rvas played by the plaintifl in obtaining l:x A- l. On thc othcr hand evcn the cvidcncc adduced fionr thc sidc ol'thc tlcl'endant shows that the gift deed was executcd hl the drlcnclant with his tiec will and consent and no lraud rvas plal'ecl or rnisrepresentation was madc or applicd unduc inlluence in obtaining llxs. A- l. Therefore, as per the evidence addLrcetl liom thc side of thc plaintifl, the dcfendant altcr exccuting the gilt deed shilted his t'amily to Karirnnagar and started living at his ancestral house at Karirnnagar and the dcli'ndant though dcnied thc same in Exs. B-24 to 8-26 the certificd copies of the registercd release deeds exccutcd bl the plaintifl'and her sisters in lavour of' DWs.I and 2 thcrcin. thcir address is shown as residing at Karirnnagar. 'l he said documcnts rvcrc executed in the year 2005 and the documcntary evidence produced by the delcndant shou's tlrat tlre del-endant r.r,as residing in Karirnnagar in thc 1ear 2006..." "...As per the evidcncc ol l'W. I and ['W.2. in the vcar 2006. when the plainti{T carnc to i [l dcrabad. the tlcfendant 'i ),) l^ \.-/,r 1\ I ./ ( ( ( \ \(' 9l ,,1 lol.l approachcd her and rcquested her to permithim to sta), in the I suit schedulc property and accordingl_,-. the plaintil'l pcrrnittcd him to stay in the suit schedule propert)'- lherehl. thc delendant is in permissive possession over thc sLrit schedulc property and as seen lrom thc cvidence oi PWs.l to i rvhilc the husband and children of the plaintiffrvere in possession ot' the suit schcdule property along rvith the delcntlant on thc interrening night ol 16l17-12-2007 the det-endant drovc thc hLrsband and the childrcn ol the plaintill frorn ttre suit schedule property... "

10. By observing as hereinabove, the trial Court has came to the lollowing conclusions:- "'l'hat thc delcndant was in permissive possessionol' thc suit schedule property as seen lrom the evidence of'PWs. I to i. whilcthc husband and children ol the plaintil'l' s'erc irr posscssion ol the suit schedule property and that on thc inren,ening night of l6/17 .12.2007 , the def'endant drove rhc husband and children ol the plaintiff from the suit schedule property. "'l hat the gift settlcrncnt decd dated 05.0 I .2005 executr-d in fhvour of' plaintifl'was acted upon and lurther, physical posscssion ofthe propcrty was also delivered to the plaintifl- thcrefore. the gili decd cannot be treated as sham and norlinal docunrent and thus. came to conclusion that the cancellation of gifi dced 03.12.2007 is invalid and thus.hcld that thc sarnc is liable to be declared as void.'' 1r. 't _4r' 13 .l^.!.-i(t ,,\:1, "/ ('(- ( .\.\o 9l of20l4 I l. Aggrieved by the afbresaid judgrnent and decree of the trial Court. the defundant prel'crred the prcsent Appcal on the lollowing grounds:-. Thc trial Courl except narrating the pleadings and evidencc lead b,r,' both sicles, has not apprcciatcd thc evidence. docLu-ne nts or argurllents advanced by delendant. b. The trial Court erroneously harped upon thc recitals in the gift deed that the same \,as executcd out ot' lovc and af'lection and possession has been delivered, ignoring thc contention ol the defendant that he is challenging the contents ol the documcntthat the sarneare brought up as a result ol fiaud and urisrepresentation by the plaintifL C fhough defendant has never stated that the detcndant has cxccuted a gilr deed with his ll'ec will and conscrrt. horvever, lhc trial Court has recorded observations conlrary to the evidence, therefore, the same are perverse. d. 1-hat cxcept tl.re oral assertion ol plaintill' that physical possessionof the suit schedule property u,as delivered by the defendant, no rrraterial rvas placed on record, hou,evcr, thc trial 1,1 lA S../d /. \ L/ ( .( .( . \.\,) 9l ,11 lo! I \ { Court has conrc to an erroneous conclLlsi()r1 that physical possessior.r o[' the suit schedule propefty was delivered to the plaintilf l'hat there is no evidence on record thaton tl-re intervening night of 16117.12.2007, the husband and children olplaintitl'rvere dispossessed tl'orn the suit schedule property l. l'hat thc trial courl ignored the fact that Lhe plaintitl'has approached GI IMC for mutation ol her name irr the rrunicipal records only in the year 2007 and the said request rvas rejected b1' (;IJMC on the objections being rnade by the def-endant. fhe Municipal taxes, water electricity bills were paid br the defendant uhichclealll, showhis possession over the suit schedule propertv g. That the trial Courr lailed to examine and appreciate that the del-endant did not violate Rule 26(K)ol the A.P. Registration Act. 1908 (hercinatier re l-erred to as "the Act") in cancelling the gili dccd. h. That the trial Court failed to appreciate that the defenclant oLrght to har c lileda separate suit lbr cance Ilation ol cili settlenicnt 15 r(S.,rrt I \. 1. J t.( .( ,\.No 9l ol l0ll

12. l,earned counsel fbr the appellant submitted that the gilt scttlcment deed was executed by the delendant ln t'avor-rr ol plaintilf . who is his own sister, on 05.01 .2005, howe ver, the sarne \vas merely norninative and was never acted upon, and that physical possession ol' the property was never dclivercd to the plaintif 1. lle tLrther subrnitted that the gili scttlemcnt dcecl u'as executed onlv to save the marriage of thc plaintitT and thercfbre. tlie defcndant has right to revoke or cancel the gili scttlcmcnt decd on the ground that the plaintiff is trying to assert titlc over thc suit schcdule propeilyand this aspect was not appreciatcd b1.'the trial Court in proper perspective and has come to an erroneous conclusion. [.earncd counsel lurther submitted that in vielr, ot' the lari laid down in by the erstwhile llon'ble Cour-t ol Andhla l)radesh IN (iaragaboyina lLadhakrishna and anoth€r I/. District llcgistrar, Visakhapatn:rm and others, a donor is entitlcd to cancel the -eili deed. As the gill deed was not accepted, the del-cndant exercised his rieht arld cancelled the gili settlemcnt deed I I 16 AKS..t& 1.N.1..J ( C.(:.A.No.9l of ?01.1 '['herefbre. the obsen'atior-r of the trial Court that carrcellation ot'the gift settlerncnt deed on 03.12.2007 is unilateral, and hence, the cancellation deed is null and void, is erroneous and lurther subrrittcd that llule 26(K) of'thc Act is applicable only to sale dceds and it has no application to gift settlement deecl.

13. Lcarncd counsel lor the appellant lufther suhrrnitted that no separatc Courr l'ee was paid insolar as delivery ol- possession is concerncd. therelbre, the suit is barred fbr non-pav ment of Court fee and thisirspect was not properly appreciated. by the trial Court ancl crroneorrslv sranted the said rclief in lavour ol-the plaintil'1. I3rv contending as above, learned counsel prayed to allow tl-ris Appeal.

14. On thc other hand, learned counsel for the respondents subrnitted thet as per Section i I ol the Specific Relic'l'Act, l9(r3. the only renredl' tbl cancellation ol docurnents is to file a suit Horvever, irr thc plesent case, thc delendant has cancelled the gift deed unilateralll.' rvhich is per se impermissible under law and is contrary to l{ulc 26(K) oi the Act. Therefore, cancellation deed dated 03.12.2007-Ex.A6 is void and the trial Cout after due . appreciation ol oral and documentary evidence and the legal 7/ -- t7 l^s../{ / \.1 .i C.C.( A.No.9l ol 20l I position has rightly decreed thc suit and declared the cancellation deed as null and void. I 5. l-earned counsel f urther subrnitted that as per Section 59 ol' thc Limitation Act, 196i, the suit has to beflled within a period of' three years frorr the date of execution of document or lrorn the datc o1'larowlcdgc. In the prcscnt case, the respondent/p laintifl llled the suit in tl.re l car' 3007 lbr cancellation ol gitt scttlerme nt deed dated

05.0 I .2005, which is within the period of limitation. l(r. As per Scction 6 of'the A.P.Court-fees and Suits Valr,ration Act, 1956, no separatc court fee is required to be paid ibr consequential reliet. 'l-here lbre, the contention of thc appellant that the suit is barred lor non-payrnent of Couft l'ee lbr delivery of' possession is untenable.

17. Learned counsel tbl respondents furlher subrnitted that pcr i Section 9l ol- the Indian Evidence Act, I 872, oral evidencc contrary to the docurxentary evidence cannot be considered. In the prcsent case, in the gitt settlelnentdeedexecuted by thedefendant,it is speciticalll, rnentionedtl-rat thc possession has been delivered to l8 .l(s.J^ 1-.\.1. J ( (.( A.No.9l ol 201-l the responderrt. as such, oral evidence adduced on behall ol the { det-endant that physical possessionol tl-re propertl has not been delivered to plaintitl'cannot be accepted. Learned counsel further submitted that no grounds were rnade out to interf-erc with the well- reasoned ordcr passed by the trial Court and the grounds raised by the del'endant/appe llarrt arc untenable and hence. th is appeal IS liable to be d isrnissed I8. In the light ol the aloresaid grounds raisedin the rnernorandurl of grounds ol Appcal and the subnrissions made by learned counscl appealing lor both the parties, the firllowing issues emerge lor consideration in this appeal. l) \\/hether gifi settlernent deed dated 05-0 l-2005 was acted upon and physical possessiorr of the suit schedule property was delivered to plaintiffl 2) Whether unilateral cancellation of gift deed dated

05.01.2005 is void? 3 ) Whcther the cancellation deed is contrarv to Rule 26 (K) olthe Registration Act? 4) Whether plaintifl is entitled to recovery of possession of thc suit schedule property? -- {. ,: t9 ..1K'..J& L\1, J C.C.C.A.No.9l oI20l l 5) 6) Whether judgment and decree passed by the trial Court is proper and sustainable or it requires interference by this Court? 'l'o what relie{? ISSIIE No. I to 3:

19. Issue Nos.1 to J ale interlinkcd and therefore, they are ansrvcred togcthcr.

20. It is aclnritted thct that thc plaintil'f and delcndant arc siblings and that defi:ndant executed a rcgistered gift deed dated 05.01 .2005 (Ex.Al) in rcspect ol- suit schedule property in favour of the plaintifT out o1- lovc and aft-cction. As per Clause 2 of the gifi sL-ttlcrnent dccc1, physical possession has been delivered to the done, i.e., plaintiff, hor.vever, it is specific contention of the del'endant that the giti settlerrent deed is a sham and norninal docurnent and was never acted upon and that physical possession was not delivcrcd to the plaintill-. 2l . Plaintill- got herself exanrined as PWI and assefted that on execution ol'gili settlernent deed, possession has been delivered to I i 2o .l(s.Jd /. \.1. ../ t .C.(' {.No 9l ol 20l{ her and deferrdant shifted his residence to ancestral prope(y situated at Karimnagar and in thc vear 2006, at request ol' the defendant. she permitted hinr to stay in the suit sclrt:dule property, since he was liicing difficutty fbr his children's educution.

22. PW2. rvho is the husband ol'the plaintitl'. als() asserted that the possession of the suit schedule propefiy was rlelivered to the plaintiff, and that he alonu with their trvo childrcn u as residing in the suit schedule properl),. Ile lirnher deposed that in the 1,ear 2006, the dcferrdant approached the plaintiff ivith rt--qLrest to pcnnit him to stay in the suit schedule propelty as he was lacing dilficulty fbr his chilaren's cducatior.r and in vicu oi f'arnill r'clationship, thc ptaintifl permitted thc def'endant to stay in a portion of the suit schedule property and it is only permissive possession

23. PW3, who is ar-r independent witncss and owner ol' house bearing H No.l0-3-l9l/B/2, llurnayun Nagar. Hyderabad, deposed that on the intervening night of l6117.12.2007 at 1.30 A.M., the husband olthe plaintilf along with Iris two minor sons came to his house and inlbrmed him that his brother-in-law i.c'.. delendant drove them out of their house and requested him to allow them to I 2t tK:;..J& L.\..1..t C.C ( ./\.No.gl ol l()14 stay in his house till morning and that he perrnitted them hirn to stay in his housc till rnorning.

24. PW4, who is au advocate, has deposed that the plaintiff and defendant approached him in the last week ol December, 2004 to preparc eifi scttlernent deed in rcspect of suit schedule property and based on the instructions of the def'endant, he prepared the gift settlement decd; that the accornpanied the plaintitT and def'endant to Sub-Registrar's ol'tlce. Colkorrda: that thc gifi settlenrent deed rvas signed by the del'endant and rvas accepted by the plaintiff and therealler, the same was registered. I Ie furlher deposed that he signed as one o{'thc r.vitnesses to the said document.

25. DW I dcposcd that the plaintifl' has obtained the gift settlement decd by plal,ing liaud on him and that he came to knorv I about the sanre only alier lapse o1'two vcars and that he took the plaintiffto an advocate fbr drafting the gilt settlement deed

26. t)W2 clde r brother of plaintiff dcposed that he is aware of the contents of'thc gift scttlclnent deed;that he attested the said 22 .4KS.J& l.\'.1. J C.('.C.A.No 9l of 2014 c document and also confirmed that in the gift deed, thcre are clauses regarding love and af-fection and delivery oi possession. 21 . DW3 dcposed that he does not know' the contents o l' his chief-affidavit and hence. he was treated as hostile ri itness.

28. DW 4 the brother in law of'the del'cndant clc'1.roscd that gift settlement decd was cxecutcd bv dcf'endant in lavour of the plaintiff to settle the money disputcs betri,ecn thcnr; and the gift settlement decd was cancelled on advicc of'his lirther, wherr tlie def'endant approached his father arrd stated that plaintilT is tlvirrg to rrutate the l)roperty in her name.

29. It is relcvant to note that the de f'endant/D\l' I and his elder brother, who was examined as I)W2, in their cross exarnination admitted that when the gilt settleurent deed rvas car-rcelled, the plaintiff was at Saudi Arabia. It is perlinent to n()te lrom the depositions that.prior to execution ol'the gilr settlcnrcnt deed; the delendant took the plaintilT to an advocatc tbr the purpose ol drafting the gift settlement deecl. It is not in dispute rhat _eift settlement deed contains a clausc regarding deliven, olpossession. '2.1 ..,(.s.J(( l.\..r. J ( C.C.A.No.glof2014 Further. exccLltion ol Gili Scttlernent I)eed out of love and afl-ection coupled with delivery of possession and acceptance of Gitt by piaintil'f is eviderrt fionr Gili Serttlerrent Dced, deposition of Pw I and 2 as well as Dw I to Drv 4.

30. Moreover, the delenclant has not adduced any evidence in suppoft of his conterrtion that the plaintifT obtaincd the gift settlement dcecl b,v cornmitting iiaud. 'T'hc def'endant has denied that, aiter executing thc gift scttlement deed, he and his lamily shifted their residcnce to Karinrnagar. I lor.vcver, as perExs.B24 to

826. exccuted in the years 2005 and 2006. the addrcss of the delendant isshown as Karilnnagar, thereby contradicting his own staltcrltcnt. 3l . The cvidcncc ol- PW I ancl PW2 indicates that the delendant approached the plaintill'and requested perrnission to reside in the suit scl-redule property, and the plaintilf allowed him to stay therein. Thus. the dclendant was in pernrissive posscssiorr of the propefty. Furthennore, according to deposition of PW3, the plaintifls husband and children, who werc in possession of the suit schedule '21 ..t,(t./<{ .1.\t. .,/ (.C.C.A.l\o.91 ol l()l { (\ property, \\ ere subsequently ousted fl'om the suit schedule property.

32. In vieu, of the evidence and nlaterial placcd on record, the del'endant contention that he was unaware of' the deliverr, of I)ossession clause, that possession was not delivelecl, and that the eift settlerrent deed was obtained bv liaLrd ,r un1"11alrle. -.1i. Further. considering the deposition of DWl. it is evident that the gift deed was executed voluntarily, consciousll lind out of love and affectior-r. 'l-herefore, it cannot be said that the ii li settlenrcnt deed was obtained by lraud, particularly in thc absence of any crcdible or acceptable evidence supporting tlre contention ol de f'endant.

34. Insofar as the delivery ofpossession is concrrned, it is trite law that delivery of possession is not a condition sine qua non to validate the gifi. The Hon'ble Apex Court in N.P. Stseendrun v. N.P. Ponnamnra', observed as under: " I l.be,fore proceeding Jurther. it is nece.s,sary to analyze the nature, scope and provi-sions deuling v,ith : 2o255CC Online SC626 25 . t(5',.J(t l,\:.1. J C.C.C.A.No.9l of 2014 tthe above docuntent in ltrief Section 122 oJ the Transfer of Property Act, 1882 defines "Gift". Article 33 of the lndian Stamp Act. lB99 and Article 3l of the Kerala Stamp Act, 1959, defines "Gift" as an instrunxent of, not being settlemenl. y,ill or tansfer. There;/Ltre, a valid G(i. crs de/inect would refer to an i.nstrument by which lhere is voluntary disposition of one's existing property either movable or immovable, without consideration to another, the acceptance of which should be made during the lifetime of the donor, implying imminent vesting of'the right upon acceptance. Seclion 123 states. how a gi/i is to be nttde. It hcr.s ttt,o parts. l'he earlier part clcals with imntrnable propertv and the later, with movctble proper1'. InsoJar as an immovable properr- is concerned, registration is mandatory, which is in tune v,ith Section 17 of rhe Registration Ac!. Whereas. it is rutt only mantlalory kt register a g(i oJ a mtnahle propertv, it.also can be effec ted bSt delivery. Section 126 .\tates, as to when o gtft can be suspended or revoked. This section bars unilateral revocation. Section 127 enables the donor to impose any condition in the deed, which has to be acceptedfor the gift to take eLfect or.in other words, the donee without accepting the obligation. cannot be said to have accepted the g(i. Sec'r ion I 28 dectls with the liability o'1 the donee.for the debts ol'the tlonor to rhe extent of lhe propert.).' comltrised therein. A conspicuous reading of the provisions would disclose that .for a gifr of an immovable propert,,, to be valid. it has to be registered. universal cancellotion of the gift rs impermissible and delivery of possession is not a condition sine qua non to validate the gi/i." 12025SCC Online SC626 { )tt {(.\.Jd L\.1 ../ ( ( C.A.No 9l ol l0l.l " 18. The ratio in the above judgments would lnve to ba opplied considering the.facts of the case. lt is seltled lalr' that deliverv of possession is not sine qtru notl lo valitlatc a gift or settlement. Therehre. .for thc clocument to be valid, it is sfficient if it is Tlroved that the satne was acted upon during the life tinte of the executont. In the present case, it is not irt tti.tltute that the plaintilf has registered the instrumt'nt. Sttch registration by the plaintif.f is possible ortlv if rhe documenl was handed over bv- De.fendant Nrt. l. The .factum o-f'acceptance can be derived.from tlte conducl rf' the ;tarties. This Court in the judgment in Daulot Singh (Supra) has held that the possession t,/' the gi/i itsell would amount to acceptance. The plaittti//. whett the strit v,as filed, was in possession of the original title decd. The stand of the defendants rhat the pluirtti/f took away the document later is unbelievalrle. Even assuming that the original deed was returned after registration, the fact that it was already aL:ted upon. cannot be altered. Once a gift has been acted trp<tn, tht .\a 1e cannot be unilaterally cancelled. As alreudy hbld by us, delivery ofpossession is only one of tht: rnethods lo prove acceptance and not the sole ntelhod. The receipt of the original document by the plairtti-/l'and registration of the same, would amounl to Lt.(eptancc of the gifr and the transaction satisfies the reiltrirentent of Sec'tion 122 of the Transfer of Property* .,lct. 1882. The creation of life interest witlt rights to enjoy the income .fiom the property is a plausible and justifiable reason ;fbr the plaintiff not to reside in the premises. Once the document is declared as "gft", Defendant ,No. I had no right to cancel the same unilarerully and the Srtb llegistrar had no right to regi\ter the 27 . I A',.tJ.{ I \..1. ./ ( .(1.('..,\.No.9 I of l0l1 cancellation deed. Once the document is categorized as a gift, in the absence of any clttuse or reservation to cancel, lhe execulant has no right to cancel the same. The rea.sons for cancellation or revocation of gift have to be proved in a court rlf lav'. There./itre. according to us, the unilateral cancellation of tlrc document is void and as a natural corollary, the sale deed dated 19.10. 1993 executetl by De.fendant No. l/Jttther also, is invalid. " 35 'fhis tlon'ble Court ir.r l:tzalullah Khon t'. Stote of A.Pt., observed as under: "9. Whether a gtft is made either in terms of Section 123 of tha Act, or orally b.v ct Nlohammedan, the necessary ingredients that ttust exist to bring ctbout the valid gift are; (a) making of gift by donor; (b) acceptance o.f the same bv the donae: and (c) delit,erv of possession o/'the gi/iecl propcr . 10. The expression of intention b), the donor and delivery of possession of the property ure evident ft"om the gift deed. dated 19-7-2006. Though respondent No. 3 pleads that the possession of the pt'operry: is rL,ith him, his plea can not be acceptecl. Section 90 of tlrc Evidence Acr prohibits any oral plea. contro7'to lhe recitals in a written document. The acceptance of the Cift is established througlt mutation of entries in the ntunicipal and other records in favour of the petitioner. Thus, a complete transaction qf gift came into existence ? 2012 SCC OnLinc AP 1131 \ I )a ..1(.1.J& 1. \ 'r J ( C.L.A No.9l ol l()ll hetu,een respondent No.3 on the one hantl and the petitioner on the other. I I. ,4 porty lo o lransfer can certainly cancel it in case necessar.\t ingredients as provided for under lal, are established. Such tansaction can be sale or for that matle'r unv conveyance including gi,ft, nnrtgage, exchange and the like. Though transactiotl.\ such as sale und gift are brought into existence with uniloteral act.s rf- exect ion of the documents, the lttgal effect lherco/-is that the title in respect of the propertlt stands trans/btred in Jbvour o/ the tranderees name therein. nofirilhstanding the .fact that the transferee may nol have.suhscrihect his signature in thal documents. Front this lxtint of-view, the sale deed on the one harul and the gift tleed on the other, stand on the same.footing. " i6. Applying the above legal position ol Fuzolulloh Khutt (supra) to l'acts of thc present case, it can bc observed that expression of intention and delivery of possession is clear ll'orn the recitals ol' the gift deed. Moreover, the delivery of possession is proved lrorn the depositions of tl-rc l)Ws I to 3 and liorn Exs. ll24 to 826. However, the delendant lailed to adduce an)' cogcnt evidence on record to support his contentionthat there r.r'asno dclivery ol propemy. Applying thc above legal lrosition ol .N. /1 Soseendran" cose (cited supnt) it can be deiclFned thal the delivery of possession to the plaintifl is 29 l(.\.r( 1\ l ./ (l( ( /\ No9lol'2{)ll irnr.naterial and hence the gilt is valid in the eyes ol law. Therefbre, in the above circumstances, the Trial Court rightly hcld that cancellation ol gili deed is invalid and liable to be declared void and accordingly, the issues are ansrvercd in lavour ol- plaintiff and against the dclendant. ISSI.JE No.4:

37. [n view of the findings on Issue Nos. I to 3. the plaintifT is entitled to recovery of possession ol thc suit schedr-rle property lrorn the defendant and accordingly, the issue is ansrvcred in favour of'plaintilL ISSTJII, NO.5: i8. Inso{'ar as the cancellation o1' gilt settlcrrent decd is concerncd, it is relevant to discuss Rule 26(i)(k)(i) ol thc Rcgistration Rules, which reads as under: " 26. (i) every document shall, before acceplance .fbr registrc ion, be examined by the Registering O;fJicer to ensLtre lhal all the requirements prescribed in the Act and in lhese rules shall have been complied with, for in.s tanc e --,- 1 '1 (:r 3O ,.tA.l.J& t-.v..1 J ( C.C.A No.9l ol20l-1 (k)(i)'l-he registrating olJicer shall ensure at rhe time oJ presentation for registration of cancellation deeds of pretiotrsl"r' regislered deed of convq)ances on sale before him thcrt suclt cancellarion deeds are ttxecuted by all tha erecutcrnt und claimanl parties 16 7l1at previctusly registcred convevance on sale and tltctt sttch cancelletion clced is accompanied by a daclaration shou,ing mutual consenl or orders of a compe,tent Civil or H igh ('ourt or State or Central Gr.tvernment annulling the transctction contained in tha previousbt registerul deed of couvevance on sale; Provicletl that the registering fficer shall dispense with the e.recttion of cancellation deeds by exectttant and clainant parties to the previously registered deeds of co,1vc.t'ot:::es on sale beJbre him if the cancelltttion deed is exac'utatl b1'u Civil Judge or a Governmen.t OlJicer competent b exeutte Government Orders declaring the propertie.s contained in the previous$, registered conve.r.'atk'e on sale to be Government or,4ssigned or Endot:mant lands or prctperties not registerable by any 1-..rovi.t iott.t oJ'lut'. '

39. lJpon reading of tl.re above rule, it clear that 1br cancellation oldecds. rnrrtual consent between the parties is required and all the executants and claimanls have to execute the cancellation deed and shalI also give ol- a dcclaration, il such cancellation is not all-ected ln purslrancc o1'the orders ol'competent Court ol a competcnt goverdffIent oflicer. 3i ..1^.lJ.t l-.\..t J C.C C.A.No 9l of 20lJ -10. Ilorr'blc Suplemc Court in Tltotu Gonga Ltkshmi t'. Goventnrcnl of Andhra Pratlesi, opincd that there cannot be any urlilatcral cancellation ola sale decd and that a party, who wants to canccl a sale deed executed, has to necessarily file a civil suit fbr its cancc-llation or seek reconveyance lrom the vendee, and that exccuting a cancellation deed, or getting it registered, is unheard of in larv. l-hc'Sr"rprcme Court also ref'errcd to the above said Rulc and obsen'ctl that the said Rule is consistent with the vieu, ol'the Court that a cancellation deed can be registered only after a sale decd is canccllcd b1,a conrpetent civil Cour1, aller notice to the conccrned partit:s. and that, in the absence ol any declaration by a competcnt Cou or notice to parties, the cancellation deed as well as registration thereol' were wholly void & non est and that suclr transactions arc rrean ingless transactions +1. 'fhis (lourt in Edigrt Chantlrosekar Gowtl r,. State of A.ll., observed as undcr: "44. In P. Ramanatha Aiyar's "The Law Lexicon" (2"'t Editionl. the term "conveyance" is defined as "a deed ':0t:(ttet.ngosc '10 tr SaC Onl.irrc llrd i..l l I 32 'r(.s.J& 1-.\..1..,1 ( ( (:.A No 9l ot 20l'l' l whic'h passes or convevs land or thing ,from one man lo ttnother. Tlte trans.fir of land or olher estate or ory) intarest therein.fi'ont one person or closs o/'persons to aruttlrcr"

45. Thus. the term "conveyance" has o wider connotctk)tl and it would certainly include deeds of "sale"/"gi/i"/"exchange" by which property,r' trans.f'erred .from one person to another.

46. l/' rhe rule ntoking onhority, which ./i'amecl Rule 26(i)(b(i). irtentletl thot the said rule .should apply only to "5dls"r"gi./i"t"exchange" deeds, it would have ment ioned t he.re categot'). of documents specdically. There u,as no nacessii' to use the words " convevance r-,n sale".

47. The obviotrs intention of the rule making authority appcors lo he to cover lransactions which are not merel.t' in the nuture o-/' deeds of sale. It thus, in my opinion. intentlecl to cover not only "gift'i"exchange" deeds but ulso "ugrecmants for sale"/ 32 executor contra('ts or "agreenrcnts.fbr Sale-cum-General Power o-f Attorne.y," or "agreemettts .for sttle-cunt- Irrevocab|e Generol Pou'er o.f Altctrne)"'. "

43. fherefirre. in the lisht of ianguage cnrployed is Rule 26(i)(kXi) ol'Ilegistration Act and ratio laid down by this Coun in the above .iudgrnent. thc said Rule not only applies to sale deeds, but also to the gill dcccl irr the qivcn set of lacts. 'f herefore, in vierv of a66vn legal position canccllation of gilt settlcment deed is void. 33 ..1(.slJ& 1-,\,1. i C C.C.A No.9l of 20l J ISSTI ENO .6:

44. In the light of tl.re above discussion'and legal position' this Court is ol tl.re considered opinion that this Appeal is devoid of merits and is accordingly dismissed' No costs' As a scquel, the miscellaneous petitions pending' if any' shall stand closcd' //TRUE COPY// To, records)

1. The ll Additional Chief Judge, City Civil Cou

2. One CC to SRl. IVD AJMAL AHI/ED Advocate IOPUC] 3. One CC to SRl. ADNAN IVAHMOOD Advocate IOPUC] 4. One CC to SRl. KIRAN PALAKURTHI, Advocate [OPUC] 5. Two CD Copies Sd/- A.V.S.PRASAD PUry REGISTRAR { ECTION OFFICER Hyderabad. ( with kul&arn & HIGH COURT DATED:02/05/20115 +DECREE JUDGMENT CCCA.No.91 ol 2014 DISMISSINC THE CCCA WITHOUT ('OSTS 1i\E sTArt U 3 ttI rilffi F * * SPI$ +q IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD FRIDAY ,THE SECOND DAY OF MAY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE ABHINAND KUMAR SHAVILI AND THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CITY CIVIL COURT APPEAL NO: 91 OF 2014 Between: MOHDAMMED FAZULUR RAHMAN KHAN, S/o. Late Nawab Khan, aged 42yearc, Occ Computer Network Engineer, R/o.H.No.12-2-8OO144113, Rethibowli, Dilshadnagar Colony, Mehdipatnam, Hyderabad. ...APPELLANT/ Defendant AND

1. HAJERA KHATOON, W/o. Mohammed Sikander Ali Khan, Occ Service Abroad. R/o. H. No.18-2-608, Falaknuma, Jangammet, Hyderabad-

2. Mohammed Sikander Ali Khan, S/o. Mohammed Asif Ali Khan, Aged about 52 years, Occ.Government Servant, RJo. H.No.18-2-608, Falaknuma, Jangammet, Hyderabad.

3. Mohammed Sajid Ali Khan, S/o. Mohammed Sikander Ali Khan, Aged about 2'l years, Occ. Student, R/o. H.No.18-2-608, Falaknuma, Jangammet, Hyderabad.

4. Mohammed Sayeed Ali Khan (l\linor), S/o. Mohammed Sikander Ali Khan, Aged about 16 years, Occ. Student, R/o. H.No.18-2-608, Falaknuma, Jangammet, Hyderabad. Represented by the father and natural guardian, Respondent No.2, Mohammed Sikander Ali Khan S/o. Mohammed Asif Ali Khan, Aged about 52 years, Occ. Government Servant, Fl/o. H.No.18-2-608, Falaknuma, Jangammet, Hyderabad. ( Respondent Nos. 2 to 4 are brought on record as LR's of deceased Sole Respondent as per Court Order dated 2S-10-2024 vide LA.No. 1 of 2016 in CCCA No. 91 of2014) ...RESPONDENTS Appeal Under Section 96 of CPC aggrieved by the Judgment and decree in O.S.No. 719 ot 2O07 dated 02-06-2014 on the file of the Court of the ll Additional Chief Judge, City Civil Court at Hyderabad. This appeal coming on for hearing and upon perusing the grounds' of appeal, the Judgment and Decree of the Court below and the material papers in the case and upon hearing the arguments of Sri Mohd. Ajmal Ahmed, Advocate for the Appellant and of Sri Kiran Palakurthi, Advocate for Respondent Nos. 2 to 4. This court doth order and decree as fullows

1. That the appeal be and hereby is dismissed and 2. that there shall be no order as to costs in this Appeal. //TRUE COPY' Sd/. A.V.S.PRASAD DEPUTY REGISTRAR ON OFFICER To,

1. The ll Additional Chief Judge, City Civil Court at Hyderabad. 2. Two C.D.copies Kulrkarn I HIGH COURT DATED:02/05/202li DECRET'- CCCA.No.91 of 2014 DISMISSNG T}{E CCCA WITHOUT COSTS J