JUDGMENT
V. Gopala Gowda, J.
1. The appellant was the first defendant, respondents 2 and 3 were defendants 2 and 3 and the first respondent was the plaintiff in the Trial Court. For the sake of convenience, the rank of the parties are referred to as in the Trial Court.
2. The plaintiff filed the suit in O.S. No. 577 of 1988 against the defendants for declaration that she is the owner of suit schedule properties and the 3rd defendant has no right to cancel the gift deed by the deed dated 14-3-1988 and also for permanent injunction. The suit schedule properties were gifted by the 3rd defendant to the plaintiff under a registered gift deed dated 27-5-1982 but the same had been cancelled by a registered deed dated 14-3-1988. Hence, the plaintiff filed the suit. The suit was resisted by the defendants by filing written statement. The first defendant contended that the plaintiff obtained the gift deed in her favour by misrepresentation and playing fraud.
3. On the basis of the pleadings, the Trial Court framed issues. Both the parties led evidence by examining witnesses and producing documents. On appreciation of the material on record, the Trial Court decreed the suit by its judgment dated 31-8-1989. The appeal filed by the defendants in R.A. No. 123 of 1989 against the judgment of the Trial Court was dismissed by the first Appellate Court by its judgment dated 6-3-1998. Aggrieved by the same, the first defendant has preferred this second appeal.
4. This appeal was admitted to consider the following substantial questions of law.–
(a) Whether the Courts below are right in holding that the 3rd defendant had no right to cancel the gift deed dated 27-5-1982 which had been executed in favour of the plaintiff?
(b) Whether the Courts below are right in holding that the cancellation deed dated 14-3-1988 is not in accordance with law?
(c) Whether the Courts below are right in rejecting the gift deed dated 14-3-1988 executed by the 3rd defendant in favour of the 1st defendant?
5. Notices of this appeal were sent to defendants twice but they returned with endorsement “no such persons”. On 12-8-1999 for the reasons recorded by this Court on the submission made that they had been served in the same address before the Courts below, service was held sufficient. That is the reason for non-appearance of the defendants in this Court.
6. Heard the learned Counsel for the first defendant/appellant and perused the judgments and decrees of the Courts below.
7. Execution of Gift Deed by the 3rd defendant in favour of the plaintiff is not in dispute. What the defendants contend is that the gift deed was got executed by misrepresentation and playing fraud on the 3rd defendant. The Trial Court considered this aspect while answering Issue No. 2. It has found that defendants have not furnishes the particulars of alleged misrepresentation and fraud. Even the Counsel for the defendants fairly admitted before the Trial Court that no particulars are given. The Trial Court referred to Order 6, Rule 4 of the Civil Procedure Code and held that in the absence of particulars, it cannot be held that the gift deed was obtained by misrepresentation. The Trial. Court also adverted to the evidence of P.W. 1. He has categorically stated that 3rd defendant executed the gift deed. It was found that nothing worth was elicited in the cross-examination of P.W. 1 in this regard. Looking into the recitals of the gift deed, it was noticed that since the 3rd defendant has promised the plaintiff during her marriage, he has gifted away the suit schedule properties. Taking into consideration all these aspects, the Trial Court held that defendants failed to prove that plaintiff obtained the gift deed by fraud or misrepresentation on 3rd defendant. The first Appellate Court also considered this aspect of the matter and concurred with the finding of the Trial Court. The first Appellate Court held that although katha of the suit schedule properties had been transferred in the name of the plaintiff and she was in possession and enjoyment of the same, the 3rd defendant kept quiet and he has not filed any suit seeking cancellation of the gift deed on the ground that the gift deed was obtained by misrepresentation and fraud. Hence, the Courts below were justified in their findings in favour of the plaintiff and there is no ground for interference.
8. The first two substantial questions of law framed by this Court relates to right of the 3rd defendant to cancel the gift deed and the findings of the Courts below are right in holding that cancellation was not in accordance with law. The Trial Court considered the right of 3rd defendant to cancel the gift deed while answering Issue No. 3. Accepting the argument of the learned Counsel for the plaintiff placing reliance upon Section 126 of the Transfer of Property Act that a registered gift deed cannot be unilaterally cancelled, placing reliance upon the decision in Narayanamma and Anr.v. Papanna, 1988 (1 ) Kar. LJ. 80 : ILR 1987 Kar. 3892, it was held that cancellation of gift deed by 3rd defendant by another registered deed was not legal and valid as per the aforesaid decision, the remedy was to file a suit seeking cancellation of the gift deed. Admittedly, the 3rd defendant has not filed suit seeking the said relief. Since he has admitted execution of gift deed and the same has been acted upon, the 3rd defendant had no right to cancel the same unilaterally. The first Appellate Court extracted Section 126 of the Transfer of Property Act and held that the gift deed cancelled at the will of the donor is void. Thus, the findings of the Courts below are in conformity with the law laid down by this Court in the aforementioned decision. The concurrent findings recorded by the Courts below give no room for interference. Accordingly, the first two substantial questions of law are answered in the affirmative.
9. The third substantial question of law framed by this Court is wrong as the same is to the effect that “Whether the Courts below are right in rejecting the gift deed dated 14-3-1988 executed by the 3rd defendant in favour of the 1st defendant?” In fact, the gift deed is dated 27-5-1982. It is in favour of the plaintiff. The deed dated 14-3-1988 is the cancellation deed. Further, the said deed is not the gift deed executed in favour of the first defendant. Courts below did not reject the gift deed in favour of the first defendant. Thus, the issue has been wrongly framed and the same does not require consideration, especially in view of the affirmative answer given on the first two substantial questions of law. There is no merit in the appeal.
10. Accordingly, the appeal is dismissed.