JAGDISH CHANDER versus SATISH CHANDER AND ORS. on 27 February 2019

JAGDISH CHANDER

v.

SATISH CHANDER AND ORS.

(Civil Appeal No. 2361 of 2019)

FEBRUARY 27, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Suit – Gift deed – Validity of – Respondent No.1-plaintiffalleged that appellant-first defendant by playing fraud on theirmother, got executed a fictitious gift deed without her knowledgeand consent in respect of a suit land – Suit was dismissed by thetrial court – Trial court held that evidence on record was notsufficient to hold any fraud was played on mother of the parties forexecution of the gift deed – First Appellate Court agreed with thefindings of the trial court – However, High Court allowed the appealand reversed the judgments of both the courts below, mainly on theground that the gift deed was executed by receiving considerationof Rs.5000/- – On appeal, held: On a perusal of the copy of the giftdeed,it is clear that what is mentioned on the first page of thedocument, is the valuation of the property for the purpose of stampduty and registration charges which is arrived at Rs.5000/-, but notthe consideration received by the donor for executing the gift deed– The gift deed was correctly interpreted by the trial court and theFirst Appellate Court – Further, order of mutation also only refersto the valuation of the property – There was nothing to indicate thatthe said amount of Rs.5000/- was paid as consideration to the donor– Thus, Judgment of the High Court set aside.

Allowing the appeal, the Court

HELD: 1. At the outset, it is to be noted that the gift deedwhich is executed in favour of the appellant herein, is a registeredgift deed. It is also clear from the evidence on record that motherof the respondent no.1-plaintiff and appellant-first defendant hasacquired title to the property by way of Will. Same is evidentfrom the Ext.D-4, a judgment in another Civil Suit. In the saidsuit, it is clearly held that she has acquired title to the propertyby way of Will, as such, the property is to be considered as a self-acquired property of mother of the parties in question.[Para 13][52-C, D]

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A2. As there is a serious dispute with regard to receipt ofconsideration of Five Thousand Rupees for executing the giftdeed, this Court has carefully perused the copy of the gift deedwhich is placed on record. A perusal of the gift deed makes itclear that what is mentioned on the first page of the document, isthe valuation of the property for the purpose of stamp duty andBregistration charges which is arrived at Rs.5,000/-, but not theconsideration received by the donor for executing the gift deed.The gift deed is correctly interpreted by the Trial Court and theFirst Appellate Court. But by misconstruing the same, the HighCourt has held that gift was evidenced by a consideration amountCof Rs.5,000/-. It is true that if the gift is evidenced byconsideration,same cannot be valid one within the meaning ofSection 122 of the T.P. Act. But it is clear from the documentitself that no consideration is passed on as per the registeredgift deed. Mentioning of Rs.5,000/- in the first page, for thepurpose of valuation, cannot be said to be a consideration receivedDby the donor for executing the gift deed. [Para 14][52-D-G]

3. With reference to the order of mutation Ext.PW3/F, theHigh Court held that the order of mutation embodied in Ext.PW3/F conveys the alienation under Ext.DW2/A and that the samebeing a coloured transaction or a sham transaction. On perusalEof the order of mutation, it is seen that the order of mutation alsoonly refers to the valuation of the property as Rs.5000/-. Thereis nothing to indicate that the said amount of Rs.5,000/- has beenpaid as consideration to the donor. Both the Gift Deed Ext.DW2/A as well as the order of the mutation only indicate the valuation

Fof the property as Rs.5,000/- only for the purpose of stamp dutyor registration charges and for payment of fees for mutationrespectively. The High Court erred in saying that Ext.DW2/Awhen read with Ext.PW3/F candidly convey qua the alienation ofthe suit land under Ext.DW2/A and the donor receivingconsideration from the donee. [Para 15][53-G, H; 54-B-D]G

4. Further, the High Court fell in error in re-appreciatingthe evidence on record to come to a different conclusion thanthe findings recorded by the Trial Court, in exercise of powerunder Section 100 of the Code of Civil Procedure. As the findingsrecorded by the Trial Court and the First Appellate Court are inH

accordance with the evidence on record, and further the HighCourt has misconstrued the document of gift, this Court is of theview that judgment of the High Court is liable to be set aside.[Para 16][53-E, F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2361of 2019.

From the Judgment and Order dated 25.10.2016 of the HighCourt of Himachal Pradesh at Shimla in RSA No. 383 of 2007.

J. S. Attri, Sr. Adv., Narender Singh, Rameshwar Prasad Goyal,Advs. for the Appellant.

Ms. Varuna Bhandari Gugnani, Anupam Raina, Sunando Raha,Advs. for the Respondents.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J. 1. Leave granted.

2. The appellant in this appeal was the first defendant in the suitin, Civil Suit No.RBT 1251/95/92 filed before the Sub-Judge, 1[st] Class,Jawali, District Kangra, Himachal Pradesh. This appeal is filed aggrievedby the judgment dated 25.10.2016 in Regular Second Appeal No. 383 of2007 passed by the High Court of Himachal Pradesh, at Shimla.

3. The first respondent-plaintiff has filed the aforesaid suit fordeclaration to the effect that he is joint owner to the extent of 435/924shares i.e 0-04-57 hectares in the suit scheduled land. It was his case inthe suit that Smt. Vidya Devi, the mother of the plaintiff and the firstdefendant was the original owner of the suit land. She executed aregistered Will in favour of him and the appellant herein on 09.04.1991.As per the Will, 0-03-84 hectares of land was bequeathed to the plaintiffand 0-02-85 hectares of land was bequeathed to the appellant herein.Smt. Vidya Devi had also executed a Will in respect of other land infavour of the proforma respondent nos.2 & 3 herein. It is the allegationof the respondent no.1-plaintiff that the appellant herein by playing fraudon Smt. Vidya Devi, on 23.04.1991, got executed a fictitious gift deedwithout her knowledge and consent. It is further pleaded that the suitland is ancestral property and the parties are governed by KangraCustomary Law to inherit the land as such he is entitled for declarationas prayed for.

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A4. The appellant-defendant No.1 has contested the suit. Whiledenying various allegations made by the plaintiff, it was the case of theappellant herein that Smt. Vidya Devi had executed a valid gift deed inhis favour out of her free will, consent and without undue influence.The gift deed was registered with the Sub- Registrar as such question offraud does not arise. It was pleaded, by virtue of the gift, the appellantBhas become the owner of 558 shares out of 924 shares, out of which 285shares were due on account of the gift deed. The appellant also deniedthe allegation of the respondent no.1-plaintiff that the suit land wasancestral property and governed by Kangra customary law.

5. The trial Court by judgment dated 2[nd] June, 2003 has dismissedCthe suit filed by the first respondent herein. The trial Court on appreciationof evidence on record has held that the donor Smt. Vidya Devi hasnever challenged the gift deed during her lifetime. The first respondent-plaintiff being a third party to the gift deed, it is not open to him tochallenge the validity of the gift on any ground. Further the trial CourtDhas held that the evidence on record is not sufficient to hold that anyfraud has been played on Smt. Vidya Devi for execution of the giftdeed. The plea of the plaintiff that as the document of gift is evidencedby consideration of Rs. 5,000/- the same is in violation of provision underSection 122 of the Transfer of Property Act, 1882 is also negatived byrecording a finding that there is no endorsement of receipt of considerationEamount. On the allegation of the plaintiff that the suit land is ancestralproperty and they are covered by Kangra Customary law, the trial Courthas held that Vidya Devi has derived title by way of will from her latefather as such suit property is to be considered as self acquired propertyof Smt. Vidya Devi.F6. With the aforesaid findings, the trial Court has dismissed thesuit.

7. Aggrieved by the judgment and decree passed by the trial Courtdismissing the suit, the first respondent has filed first appeal before theAdditional District Judge, Fast Track Court, Kangra at Dharamsala,GHimachal Pradesh. Even the First Appellate Court has agreed with thefindings of the trial Court by judgment dated 2[nd] August, 2007 and theFirst Appeal (Civil Appeal No. 147-J/05/03) was dismissed.

8. Aggrieved by the same, the first respondent-plaintiff haspreferred second appeal in the High Court in Regular Second AppealHNo. 383 of 2007.

9. The High Court, by impugned judgment, has allowed the appealby reversing the judgments of both the courts below, mainly on the groundthat the gift deed was executed by receiving consideration of Rs.5,000/-.It is held that in view of such consideration received by the donor, sameis not in accordance with the provisions of T.P. Act. Further, the HighCourt also has taken into consideration the document of mutation(Ext.PW-3/F) with regard to suit property, where delivery of possessionof the land is recorded on receipt of Rs.5,000/-. Further, the High Courtopined that as much as Will was executed on 09.04.1991 in favour ofRespondent no.1 and the appellant herein, there was no reason to executegift deed within a short span of time, i.e, on 23.04.1991. With the aforesaidfindings, the appeal is allowed, by decreeing the suit for declaration asprayed for.

10. We have heard the learned counsel for the appellant and alsolearned counsel for the respondents.

11. In this appeal, it is mainly contended by learned counsel forthe appellant that the High Court, without deciding any substantial questionof law, has interfered with the factual findings recorded by the TrialCourt as well as the First Appellate Court, by re-appreciating the evidenceon record. It is submitted that in exercise of power under Section 100 ofthe Code of Civil Procedure, it is not open for the High Court to re-appreciate the evidence on record and to come to a different conclusionby disturbing the findings recorded by the trial Court, as confirmed bythe First Appellate Court. Further, it is contended that the High Courtwhile relying on the document (Ext. PW-3/F) held that gift deed wasexecuted by receiving consideration amount of Rs.5,000/-. It is submittedthat the original document is in vernacular language. The figure ‘5,000’as mentioned, on the first page of the document, is only for the purposeof valuation, for payment of stamp duty, but same is erroneouslyconsidered as consideration by the High Court. It is further submittedthat as the gift deed was not under challenge, it was not open for theHigh Court to overturn the findings recorded by the Trial Court and theFirst Appellate Court, for granting relief of declaration as prayed for.

12. On the other hand, it is contended by learned counsel appearingfor the respondents that there was absolutely no reason for executingthe gift deed by Smt. Vidya Devi, on 09.04.1991, within a short span oftime, after executing the Will. It is contended that as much as the giftdeed is executed within few days after the execution of Will, that itself A

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Acreates an amount of doubt on the genuineness of gift deed. It is submittedthat such gift deed was got executed without her knowledge and consent.It is also submitted that as the gift deed is evidenced by receipt ofconsideration, and further in view of the documentary evidence relatingto mutation (Ext.PW-3/F), there are no grounds to interfere with thejudgment of the High Court.B

13. Having heard the learned counsels on both the sides, we haveperused the impugned judgment of the the High Court and other materialplaced on record. At the outset, it is to be noted that the gift deed whichis executed in favour of the appellant herein, is a registered gift deed. Itis also clear from the evidence on record that Smt. Vidya Devi hasCacquired title to the property by way of Will. Same is evident from theExt.D-4, a judgment in Civil Suit No.163 of 1987, decided on 22.08.1989.In the said suit, it is clearly held that Smt. Vidya Devi has acquired titleto the property by way of Will, as such, the property is to be consideredas a self-acquired property of Smt. Vidya Devi.

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14. As there is a serious dispute with regard to receipt ofconsideration of Five Thousand Rupees for executing the gift deed, wehave carefully perused the copy of the gift deed which is placed onrecord. A perusal of the gift deed makes it clear that what is mentionedon the first page of the document, is the valuation of the property for theEpurpose of stamp duty and registration charges which is arrived atRs.5,000/-, but not the consideration received by the donor for executingthe gift deed. The gift deed is correctly interpreted by the Trial Courtand the First Appellate Court. But by misconstruing the same, the HighCourt has held that gift was evidenced by a consideration amount ofRs.5,000/-. It is true that if the gift is evidenced by consideration,sameFcannot be valid one within the meaning of Section 122 of the T.P. Act.But it is clear from the document itself that no consideration is passedon as per the registered gift deed. Mentioning of Rs.5,000/- in the firstpage, for the purpose of valuation, cannot be said to be a considerationreceived by the donor for executing the gift deed.G

15. With reference to the order of mutation Ext.PW3/F, the HighCourt held that the order of mutation embodied in Ext.PW3/F conveysthe alienation under Ext.DW2/A and that the same being a colouredtransaction or a sham transaction. In Ext.PW3/F-mutation, it is statedthat “Gift Deed registered valuating Rs.5,000/-.” The order of mutationreads as under:-H

“Mutation of the Gift Deed executed by Smt.Vidya Devi to JagdishChander as identified by Tilak Raj, Advocate at Nurpur whichhas the value of Rs.5,000/-. Registry put up for transfer ofownership and possession valuing Rs.5,000/-. Therefore, mutationof the registry bearing No.162 dated 23.04.1991 regarding landKhasra No.235/710, New Khasra No.2132, 2133, area 0-02-85hectare out of 0-06-1 hectare is sanctioned.”

By perusal of the above order of mutation, it is seen that the orderof mutation also only refers to the valuation of the property as Rs.5000/-.There is nothing to indicate that the said amount of Rs.5,000/- has beenpaid as consideration to the donor. Both the Gift Deed Ext.DW2/A aswell as the order of the mutation only indicate the valuation of the propertyas Rs.5,000/- only for the purpose of stamp duty or registration chargesand for payment of fees for mutation respectively. The High Court erredin saying that Ext.DW2/A when read with Ext.PW3/F candidly conveyqua the alienation of the suit land under Ext.DW2/A and the donorreceiving consideration from the donee.

16. Though, it is the contention of the respondent that such giftdeed was not executed by Smt.Vidya Devi on her free will and consent,there is no evidence on record placed to substantiate such allegation.Further, in absence of challenge to the gift deed, it is not open to recordany findings on the validity of the gift. The High Court also committederror in relying on the mutation proceeding, which itself is based on theregistered gift deed. Further, the High Court fell in error in re-appreciatingthe evidence on record to come to a different conclusion than the findingsrecorded by the Trial Court, in exercise of power under Section 100 ofthe Code of Civil Procedure. As the findings recorded by the Trial Courtand the First Appellate Court are in accordance with the evidence onrecord, and further the High Court has misconstrued the document ofgift, we are of the view that judgment of the High Court is liable to be setaside.

17. For the aforesaid reasons, we allow this appeal and set asidethe impugned judgment of the High Court dated 25.10.2016 passed inRegular Second Appeal No.383 of 2007. Consequently, the suit filed inCivil Suit No. RBT1251/95/92 on the file of Sub-Judge, First Class Jawali,Kangra, Himachal Pradesh, stands dismissed, with no order as to costs.

Ankit Gyan

Appeal allowed.

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