JUDGMENT
Pranab Kumar Chattopadhyay, J.
1. The Appeal is directed against the judgment and decree dated 10th January, 1996 passed by the learned Additional District Judge, 2nd Court, Alipore in title Appeal No. 106 of 1995 affirming the judgment and decree passed by the learned Munsif, Fourth Court, Alipore in Title Suit No. 18 of 1992.
2. The suit, was filed by the plaintiff against the defendant who is the appellant herein for recovery of possession of the suit premises after vacating the defendant/appellant therefrom. The essential facts giving rise to this appeal are briefly summerised hereinafter, the father of the plaintiff acquired the suit premises by way of gift executed by Gurupada Halder and Sukumari Devi on 1st September, 1952, the said Gurupada Halder and Sukumari Devi executed deed of gift in respect of the suit property in favour of their nephew, Shankar Banerjee, the father of the plaintiff herein.
3. Prativa Devi, the mother of the defendant/appellant herein was given life interest for staying in the suit premises by the said deed of gift. In the year 1970, the father of the plaintiff, Shankar Banerjee, died leaving his widow, Pulama Banerjee and his son, Bhaskar and daughter, Malabika. Pulama and Bhaskar transferred their shares in the suit property by executing a sale deed in favour of Malabika on 25th May, 1981. Prativa Devi @ Pratima Devi, the mother of defendant/appellant Gorachand Mukherjee died on 9th September, 1989 and after his death, plaintiff Malabika Dutta served a notice upon defendant/appellant, Gorachand Mukherjee to vacate the suit premises in view of revocation of licence. It was however specifically mentioned in the said deed of gift that Gorachand Mukherjee would be allowed to remain in this suit premises in ease of death of Prativa Devi before attainment of majority by said Gorachand. Since Gorachand was major at the time of death of his mother Prativa, the plaintiff asked Gorachand to vacate the suit premises since Gorachand refused to vacate the suit premises, plaintiff instituted the suit, against gorachand for his eviction therefrom.
4. The defendant/appellant appeared in the suit and contested the same by filing written statement. In the said written statement defendant/appellant denied all material allegations made against him by the plaintiff and the defendant contended that the plaintiff did not acquire any right, title and interest in the suit property either by the said deed of gift or by way of transfer of the shares of her mother Pulama, and brother Bhaskar in her favour. The defendant/appellant also stated in the written statement that the heirs of Shankar Banerjee did not acquire any right to transfer the suit premises to anybody as the donor specifically prohibited such transfer and mentioned the same in the deed of gift. The defendant also contended that the said deed of gift was never acted upon. Defendant claimed acquisition of title in the suit premises by way of adverse possession as the said defendant claimed that he had collected rent from the tenant besides living in a portion of the suit premises.
5. Learned Munsif of the Trial Court upon considering the materials and evidence on record and also analysing the pleadings of the respective parties decreed the suit holding that the defendant Goraehand, or his mother. Prativa Devi did not acquire any title in the suit premises by way of adverse possession and further held that the defendant was a licencee in respect of the suit premises. Learned Munsif also held that the transfer of shares of Bhaskar and Pulama in favour of the plaintiff Malabika did not violate any condition of the deed of gift.
6. Being aggrieved by the said decision of the learned Munsif an appeal was preferred before the Lower Appellate Court by the defendant Gorachand, but the learned Judge of the First Appellate Court after considering the arguments of both the parties and on the basis of the materials and evidence on record came to a conclusion that the learned Munsif was absolutely correct in decreeing the suit and the reasons given by the learned Munsif were also held as correct and accordingly the learned Judge of the First Appellate Court refused to interfere with the judgment and decree passed by the learned Munsif. The appeal was therefore dismissed by the learned Judge of the Lower Appellate Court. In view of dismissal of the appeal by the learned Judge of the First Appellate Court, Gorachand preferred the instant Second Appeal before this Court against the judgment and decree passed by the learned Judge of the first Appellate Court.
7. At the time of admission of this appeal no questions of law were formulated by this Court and as such before proceeding further I formulate the following questions of law for the purpose of deciding the instant Second Appeal.
1. Whether the condition of the deed of gift has been violated in view of transfer of the shares of other heirs of Shankar Banerjee in favour of the plaintiff Malabika.
2. Whether by operation of law i.e., in view of Section 14 of Hindu Succession Act, limited right/interest of Pratima @ Prativa Devi ripened into an absolute title.
3. Whether the deed of gift became void on account of non-compliance of the specific conditions mentioned in Section 122 of the Transfer of Property Act.
8. Mr. sudhis Dasgupta, learned senior counsel appearing on behalf of the appellant contended that the deed of gift was never acted upon. Mr. Dasgupta specifically contended that Shankar as the donee never accepted the gift during the lifetime of the donors namely Gurupada and Sukumari. Pratima @ Prativa Devi, the mother of the appellant Gorachand was in the suit property. According to the learned counsel of the appellant, donee namely, Shankar did not Induct Pratima @ Prativa in the suit premises and allowed her to stay therein in terms of the deed of gift, and as such according to the learned counsel of the appellant the said deed of gift was never acted upon.
9. The learned counsel of the appellant further submitted that the learned judge of the First Appellate Court erroneously held that the deed of gift was acted upon as the rents were collected from the tenants by the plaintiff. According to the learned counsel, the said gift was required to be accepted by and to be acted upon by the donee Shankar. But the plaintiff herein is admittedly not Shankar. The learned counsel of the appellant accordingly contended that Shankar never accepted the said deed of gift nor the same was acted upon during the lifetime of the donors in terms of Section 122 of the Transfer of Property Act. According to Mr. Dasgupta, mere staying in the property by Prativa and Shankar’s non-interference with her possession cannot establish that the deed of gift was acted upon and Shankar accepted the stay of Prativa in the suit premises because of the deed of gift. According to the learned counsel of the plaintiff there must be some positive act by the donee in support of acceptance of the deed of gift. According to Mr. Dasgupta, Prativa’s just staying in the suit premises will not mean acceptance of deed of gift by Shnakar.
10. Mr. Dasgupta further contended that Shankar, father of the plaintiff had no title to the suit property. It has been contended on behalf of the appellant that unless gift in favour of “Shankar” is found effective, the plaintiff cannot have title over the suit property as plaintiff is claiming her title through Shankar. Learned counsel of the appellant contended that plaintiff must prove his title in a suit for recovery of possession and refer to a decision of the supreme Court in this regard (Brahma Nand v. Mathra Puri).
11. Mr. Dasgupta, learned counsel of the appellant submitted that donee must accept the gift in terms of the provision of Section 122 of the Transfer of Property Act but in the instant case according to the learned counsel donee Shankar never accepted the gift in terms of the aforesaid provision of the Transfer of Property Act and as such it cannot be said that Shankar got the title over the suit property. Mr. Dasgupta cited following decisions in support of his aforesaid argument:
1. C, Venkatasubbamma v. N. Narayana Swami
2. I.L.R. (1951) 1 Calcutta,295 at page 297 (Jitindra Mohan Karmakar v. Nltyananda Das Bairagya.
12. Mr. Dasgupta submitted that Lower Appellate Court wrongly held that mere inaction on the part of Shankar who impliedly be considered as acceptance. Learned counsel of the appellant further urged that the amendment application filed by the appellant for amendment of the written statement during the pendency of the appeal was though ordered to be heard along with appeal but the same was not done finally. According to Mr. Dasgupta, without disposal of the amendment application appeal could not have been finally heard and disposed of by the learned Judge of the First Appellate Court. Mr. Dasgupta cited the following decisions in support of his aforesaid contention :
1. AIR 1979 SC 551 (Ishwardas v. State of M.P.)
2. (B.K. Narayana Pillai v. Parameswaran Pillai)
13. The next point urged by the learned counsel of the appellant is whether the limited interest of Pratima @ Prativa Devi in the suit premises could ripen into an absolute title in view of provision of Section 14 of Hindu Succession Act. Learned Counsel of the appellant submitted that in the instant case life interest in the suit property was given to Prativa Devi for the purpose of residence and according to the learned counsel of the appellant that provision was made in lieu of right to maintenance and as such the limited right of Prativa would blossom into full ownership rights.
14. Mr Dasgupta further contended that life interest was given to Prativa in the suit property in lieu of right to maintenance and so the said right of the life interest of Prativa in the suit property had ripened into absolute title in terms of Section 14 of Hindu Succession Act. Learned Counsel cited a decision of the Supreme Court (Mangat Mal v. Punni Devi). Mr. Dasgupta further contended that the donor being the maternal uncle was under the moral obligation to maintain Prativa who was a widow and was facing acute accommodation problem at the relevant point of time as her landlord took steps to evict her from the tenanted premises where said Prativa had been living before occupying a portion of the suit premises.
15. According to Mr. Dasgupta said moral obligation of the maternal uncle transformed into legal obligation in the instant case. Mr. Dasgupta cited a decision of the Supreme Court (State of M.P. v. Harishankar Goel) in this regard. Learned Counsel of the appellant further contended that by the deed of gift Shankar was prevented from transferring the property mentioned in the schedule of the said deed of gift during lifetime of Prativa. In the said deed it was also mentioned that Gorachand, the son of Prativa would be allowed to remain in the suit premises in case of death of Prativa until he attains majority. Prativa died in the year 1989 but the heirs of Shankar excepting the plaintiff herein i.e. widow, Pulama and son Bhaskar transferred their shares in the suit property by executing a sale-deed in favour of the plaintiff on 25th may, 1981.
16. According to the learned counsel of the appellant, the aforesaid transfer would not be described as family settlement or arrangement. By executing a regular sale deed shares in the suit property transferred by the son and widow of Shankar during the lifetime of Prativa. Since Pulama and Bhaskar got the title in the property through Shankar and as such according to the learned counsel of the appellant terms mentioned in the deed of gift would be very much applicable on the heirs of Shankar as they got the title to the suit property through Shankar. Accordingly, learned counsel of the appellant contended that the heirs of Shankar acted in clear violation of the terms mentioned in the deed of gift and, therefore, plaintiff cannot get title over the suit property for the aforesaid reason.
17. Mr. Puspendu Bikash Sahu appearing on behalf of the plaintiff submitted that mere handing over of the deed of gift by the donor to the donee amounts to acceptance. Referring to the oral evidence of Bhaskar, son or Shankar, Mr. Sahu contended that the suit premises was initially mutated in the name of Shankar and thereafter the same was recorded in the name of Bhaskar. According to the learned counsel of the plaintiff, Shankar, the father of the plaintiff exercised his right of ownership over the suit premises which he acquired by the deed of gift, by initiating legal proceedings before the Civil Court against Prativa.
18. Learned counsel of the plaintiff further contended that Shankar noted in terms of the deed of gift by allowing his sister Prativa to stay at the suit premises in compliance of the specific terms mentioned in the deed of gift by the donor mid thereby acted in terms of the deed of gift, According to the learned counsel of the plaintiff, Shankar filed a suit in the civil Court being title Suit No. 171 of 1965 against Prativa as the owner of the suit premises,
19. It appears from the Judgment in the said Civil Suit filed by Shankar as the plaintiff against the mother of the defendant herein namely Prativa Devi that, the right of ownership of the plaintiff in respect of the suit property was recognised by the learned Munsif in deciding the said Title Suit No. 171 of 1965 and a copy of the judgment is Exhibit-‘E’. The other positive act the part of donee Shankar in accepting the deed of gift would appear from the fact that the suit property was mutated in the name of Shankar which has been mentioned in the evidence adduced by Bhaskar (son of Shankar) before the Trial Court.
20. Learned counsel of the plaintiff further contended that the deed of gift was handed over to Shankar and the handing over of the deed of gift to the donee Shankar would amount to acceptance of the same. Mr. Shau contended that handing over of the deed of gift to the donee is sufficient evidence of acceptance as is required under Section 122 of Transfer of Property Act. Mr. Sahu further contended that the property in question was under the possession of the donee Shankar and the deed of gift was also in the custody and or possession of Shankar and therefore the same would amount to acceptance of gift according to the learned counsel of the plaintiff. The learned counsel of the plaintiff cited following decisions in support of his aforesaid contentions:
1. (Purna chandra v. Kalipada Roy)
2. , Head Note -‘A’ and Paragraph-8 (Samrathi v. Parasuram)
3. (Shakuntala Devi v. Amar Devi)
4. (V,V, Janaki v. P.P.Paru)
21. Mr. Sahu further submitted that registration of the instruments namely, deed of gift by donor and the handing over of the same to the donee completed whole transaction of gift; and the same would comply with the requirements of the provision of Section 122 of Transfer of Property Act. Mr, Sahu thereafter contended that there could be no valid embargo in a deed of gift, which may put any restriction on the right of the donee to use and or utilize the gifted property in the manner he likes, Referring the Section 10 and 11 of the Transfer or Property Act, Mr. Sahu submitted that no restriction is permissible in a case of gift and such restriction should be treated as nonest.
22. In view of Section 11 of the Transfer of Property Act if the terms of the transfer direct that the interest created in favour of donee shall be applied or enjoyed in a particular manner then donee shall be entitled to receive and dispose of such interest as if there was no such direction. Mr. Sahu cited a decision of this Court reported (1911) 14 Cal LJ 303 at page 308 (Chamaru Sahu v. Sona Koer).
23. Learned counsel of the plaintiff further contended that the life interest of Prativa cannot ripen into absolute title as according to the learned counsel of the plaintiff right of possession to Prativa in the suit property was never given in lieu of her maintenance and/or also not in recognition of her any pre-existing right. According to Mr. Sahu, Section 14(2) of Hindu Succession Act is specifically applicable in the instant case and Section 14(1) of the Act has no manner of application herein. Mr. Sahu further contended that moral obligation may ripen into legal obligation if it is provided in Shastric Hindu Law and not otherwise. Referring to Mullahs Hindu Law (17th Edition) at page 759, Mr. Sahu submitted that the Maternal Uncle and Aunt had no moral obligation under Shastric Hindu Law to maintain niece. So according to the learned counsel of the plaintiff life interest of Prativa in the suit property was undoubtly not given in recognition of the pre-existing right of maintenance and as such according to Mr. Sahu suit property possessed by Pratima cannot ripen into absolute title under Section 14(1) of the Hindu Succession Act.
24. Mr. Sahu further contended that Sub-section (3) of Section 14 applies to Instruments, gifts etc. which create independent and new title in favour of the female for the first time as has been donee in the instant case, The learned counsel of the plaintiff submits that since the life interest in the suit property was acquired by Prativa not in lieu of maintenance provision of Section 14(1) of Hindu Succession Act cannot apply and therefore question of acquiring absolute title in the suit property by Prativa in view of said Sub-section (1) of Section 14 of the Hindu Succession Act cannot and does not arise. Mr. Sahu cited following decisions in support of his aforesaid contention;
1. AIR 1977 SC, 1944 (V. Tulasamma v. Sesha Reddi)
2. (Ram Kali v. Choudhri Ajit Shankar)
3. (Raghubar Singh v. Gulab Singh)
4. (Beni Bai v. Raghubir Prasad)
5. (Muninanjappa v. R. Manual)
25. Mr. Sahu further contended that even though the amendment application filed under Order 6, Rule 17 of C.P.C. by the appellant herein was not disposed of but for the aforesaid reason question of sending the matter back on remand before the lower appellate Court does not arise as according to Mr. Sahu subject matter of amendment application is covered by the points already formulated by this Court for the purpose of disposal of the instant appeal. The specific point as to whether the deed of gift became void for non-compliance of the requirements of Section 122 of Transfer of Property Act has been raised in the instant appeal.
26. Acceptance of gift by donee during the life time of donor is one of the requirements under Section 122 of Transfer of Property Act and learned Advocate of both the parties have advanced arguments at a considerable length before this Court. Admittedly, by the amendment, defendant wanted to incorporate in the written statement that the deed of gift did not mention that the donee had accepted it and learned counsel of the respective parties herein got adequate opportunity to make necessary submissions while arguing on the aforesaid point that whether the requirements of Section 122 were compiled with by the donee by accepting the deed of gift during the life time of donor and as such according the matter back again to the lower appellate Court by this Court does not arise.
27. Mr, Sahu further submitted that this Court while deciding the Second Appeal under S, 100 of C.P.C. can pass necessary Order on the basis of the evidence on record under Order 41. Rule 24 and furthermore this Court, under Section 103 and 107 of the Code of Civil Procedure is empowered to determine the case finally on the basis of the materials and evidence on record.
28. Considering the facts of this case, the materials and evidence on record, I do not find any pre-existing right of maintenance in favour of Prativa and as such I am unable to hold that the right of possession to the suit property by Prativa was given in lieu of maintenance, and as such in the instant case life interest of Prativa cannot ripen into absolute title under Section 14(1) of Hindu Succession Act as in absence of any preexisting right Sub-section(2) of Section 14 of Hindu Succession Act would be applicable in the instant case and Section 14(1) of the said Act has no manner of application in the instant case. The Supreme Court while considering the aforesaid provision of Section 14 of Hindu Succession Act in the judgment held as hereunder :
“…………According to the old shastric Hindu law, marriage between two Hindus is not a contract but a sacrament. The marriage is regarded as a holy union of wife and husband and by such union, the wife becomes part and parcel of the husband. Under the Shastric Hindu law, after marriage it is a pious obligation on the part of the Hindu husband to maintain his wife during his lifetime and after his death, the widow is to be maintained out of the property of the husband if the husband has left any property, This was on account of the spiritual relationship between a Hindu husband and wife. This principle was statutorily recognises by the enactments known as the Hindu Women’s Rights to Property Act, 1937 and the Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946. Under these two Acts, the right to maintenance of a Hindu widow was preserved as a pre-existing right. After independence, it was felt necessary to assure the equality of right in property to a Hindu female and to remove the artificial disparity in right to property where a male was entitled to obtain full ownership in the property and a Hindu female would only be contained by limited ownership because of the restrictions imposed on her by the Hindu Law. With this object in mind, Parliament enacted the Hindu Succession Act, 1956. After the Act came into force, the question arose whether the right of maintenance given to a widow would crystallize into a full-fledged right by virtue of Section 14(1) of the Act. After a number of decision by this Court, the said question is no longer res integra……………”
“…………..From the aforesaid pronouncement of law by this Court, it is clear that Sub-section(1) of Section 14 applies to the cases where the conferment of right on a Hindu widow was in lieu of maintenance or in recognition of her pre-existing right as provided under the Shastric law and the Hindu Women’s Right to Property Act. Sub-section (2) of Section 14 of the Act would apply only to such cases where grant conferred a fresh right or title for the first time and while conferring the said right, certain restrictions were placed by the grant or transfer……………,…..”
29. Furthermore, under Shastric Hindu Law wife should be maintained by her husband and unmarried daughter should also maintained by her father but Maternal Uncle and Aunt has neither any moral obligation nor any legal obligation to maintain the niece. Accordingly in my view maternal uncle and aunt of Prativa Devi had no obligation under Shastric Hindu Law to maintain her. Thus, I do not accept the contentions of Mr. Dasgupta that in the instant case life interest of Prativa in the suit property has ripened into absolute title under Section 14(1) of Hindu Succession Act.
30. Mr. Sahu, learned counsel of the plaintiff has rightly contended that the provision of Section 14(2) of the Hindu Succession Act is applicable in the instant case. The decision cited by Mr. Dasgupta are based on the applicability of the provision of Section 14(1) of Hindu Succession Act and as such thus decisions are not at all applicable in the present case as I have already held that provision of Section 14(2) of Hindu Succession Act is specifically applicable in the facts of the present case and sub Section(1) of Section 14 of the Act has no manner of application.
31. Accordingly, I hold that the appellant herein has also no right in respect of any portion of the suit property after the death of his mother Pratima @ Prativa Devi who was given only life interest in the sun property. Appellant has questioned the validity of the deed of gift on the ground that the same was not accepted by the donee Shankar during the life time of the donor and the deed of gift was never acted upon.
32. Mr. Dasgupta, learned counsel of the plaintiff though submitted that there must be some positive act by the donee in support of the acceptance of the deed of gift which according to Mr. Dasgupta is absent in the present case taut I cannot overlook, the fact that the donee Shankar exercised his right of ownership by filing a Civil suit, against Pratima @ Prativa Devi. Admittedly, Shankar claimed his ownership right in respect of the suit property as would appear from the fact that said Shankar, as plaintiff, filed the Suit No. 171 of 1965 against Prativa Devi in the fourth Court of Munsif at Alipore. In the said Civil Suit donee Shankar categorically stated that he acquired title of ownership in respect of the suit property in terms of the deed of gift and the said claim of Shankar in respect of the ownership right of the suit premises was recognised in the said title No. 171 of 1965 which has been marked as Exhibit-‘E’.
33. Furthermore, from the evidence of “Bhaskar”, (son of donee Shankar) it appears that suit premises was mutated in the name of Shankar. Lastly, the deed of gift was in the possession and custody of Shankar. The said deed of gift was therefore handed over to Shankar and on the basis of the said deed of gift done Shankar exercised his right of ownership by mutating his name in the Municipal records and also initiated proceedings before the Court of Law in order to prevent interference with his right of ownership by and or at the instance of Prativa Devi.
34. Accordingly in my opinion, it has been established in the present ease that Shankar accepted the deed of gift as donee and having regard to the facts and circumstances of this case, I find no difficulty to draw the conclusion that donee Shankar duly accepted the deed of gift from the do-nor Shankar and acted on the basis of the same and as such the requirements of the provisions of Section 122 of Transfer of Property Act have been fully complied with. The acceptance of a gift may be either express or may be implied which has been well established by a catena of decisions of this Court. In the instant case donee had taken several positive steps including initiation of a legal proceeding claiming ownership right in respect of the suit property on the basis of the said deed of gift. Therefore, I have no hesitation to hold the deed of gift is valid and no conditions mentioned under Section 122 of the Transfer of Property Act has been violated. The decision cited by Mr. Dasgupta on the point of acceptance of the gift by the donee in terms of the provision of Section 122 of Transfer of Property Act have therefore no manner of applications in the facts and circumstances of the present case.
35. As regards the question of violation of the conditions mentioned in the deed of gift on account of transferring the shares by the widow and son of donee Shankar in favour of the plaintiff was not considered as violation of any terms and conditions of the deed of gift by the learned Judge of the first Appellate Court. According to the said learned Judge it was a transfer inter se amongst the parties. However, in view of the provision of Section 10 and 11 of the Transfer of Property Act, no such conditions of restraint can be imposed on a transfer of property. In the case of Chamaru Sahu v. Sona Koer reported in (1911) 14 Cal LJ 303 this Court examined the effect of restraint, on alienation under Section 10 and 11 of the Transfer of Property Act. Mr. Justice Mukherjee while examining the aforesaid provisions of Transfer of Property Act held as under :
“………. .We have next to examine the provisions of Section 11 of the Transfer of Property Act. This section recognises the elementary principle that a transferee of property who takes an absolute interest, as for instance a donee or purchaser, cannot be restrained in his enjoyment or disposition of it by any condition inserted in the transfer. Such a condition deprives the property of its legal incidents and is inconsistent with or repugnant to the main purpose of the transfer. It is consequently arbitrary and not enforceable in a Court of law…….” (From page-308).
36. Lastly on the point of disposal; of the amendment application I find from the judgment of the First Appellate Court that the pendency of the application filed on behalf of the Appellant/defendant for amendment of the written statement under Order 6, Rule 17 was very much within the knowledge of the learned Judge of the Lower Appellate Court and the same was also taken into consideration but however, admittedly, no final decision of the said learned Judge has been recorded in the judgment of the lower appellate Court which in my opinion is obviously a mistake on the part of the learned Judge. But since in the present appeal the entire subject matter of the said amendment application has been fully argued and considered while considering the point relating to the validity of the deed of gift there is no necessity for sending the matter back on remand before the First Appellate Court for the purpose of disposal of the said amendment application. In my view, the disposal of the said amendment application at this stage is riot necessary.
37. For the reasons stated hereinabove, I do not find any merit in the instant Second Appeal and the same is liable to be dismissed. Accordingly, the instant Second Appeal is dismissed.
38. In the facts and circumstances of
this case, there will be, however, no order
as to costs.