In the High Court of Judicature at Madras Dated: 31.08.2010 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal Nos.342 and 1155 of 2002 and C.M.P.No.2762 of 2002 S.A.No.342 of 2002: 1. Ramachandran 2. Vallatharasu ..Appellants ..vs.. 1. Govindarajan 2. Sahul Hameed 3. Ganesarethinam 4. Jeyaraj 5. Thiruvarur Municipality rep.by its Muncipal Commissioner, Thiruvarur. ..Respondents
S.A.No.1155 of 2002:
Thiruvarur Municipality rep.by its Muncipal Commissioner, Thiruvarur. ..Appellant ..vs.. 1. Govindarajan 2. Sahul Hameed 3. Ganesarethinam 4. Jeyaraj 5. Ramachandran 6. Vallatharasu ..Respondents
Second Appeals under section 100 of Civil Procedure Code, filed against the judgment and decree dated 22.11.2001 in A.S.No.95 of 2001 on the file of Principal District Court, Nagapattinam, reversing the judgment and decree dated 12.07.2001 in O.S.No.275 of 2000 on the file of Sub Court, Tiruvarur.
For Appellants : Mr.K.Chandrasekaran
(S.A.342/2002)
For Respondents : Ms.K.M.Nalinishree for R1 to R4
Mr.V.Raghupathi for R5
COMMON JUDGMENT
Since both the appeals arise out of the judgment made in A.S.No.95 of 2001, these appeals are disposed of by the following common judgment.
2. The appellant in S.A.No.1155 of 2002 and the appellants in S.A.No.342 of 2002 are the defendants before the trial court and they filed these Second Appeals aggrieved over the decree and judgment dated 22.11.2001 passed by the learned Principal District Judge, Nagapattinam, in A.S.No.95 of 2001, whereby the decree and judgment dated 12.07.2001 passed by the learned Subordinate Judge, Tiruvarur, in O.S.No.275 of 2000 were set aside.
3. The respondents in both the appeals were the plaintiffs, who filed O.S.No.275 of 2000 on the file of Sub Court, Tiruvarur, against the appellants in both appeals, for declaration of their title to the suit property measuring to an extent of 726 sq.ft. and also for a permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property.
For convenience, the parties are referred to as they are arrayed in O.S.No.283 of 1998.
4. The case of the plaintiffs, in brief, is as follows:
The suit property measuring to an extent of 726 sq.ft.and other properties situated in S.No.2936/3 were originally belonged to the family of one Subramania Pillai and on partition, some properties were allotted to the share of Subramania Pillai and on his demise, the said properties were converted into house plots by his wife and his children. The plaintiffs purchased the land measuring to an extent of 9448 sq.ft.from the legal heirs of the deceased Subramania Pillai on 28.10.1991 by way of four separate sale deeds and they divided the same into 2035 sq.ft.for plaintiffs 1 to 3 and 3343 sq.ft. for the 4th plaintiff. Thereafter, the properties were sub-divided as 2936/3-E (1st plaintiff), 2936/3-D (2nd plaintiff), 2936/3-C (3rd plaintiff) and 2936/3-B (4th plaintiff). In order to reach Marudhapattinam road, the plaintiffs had decided to have a pathway measuring to an extent of 726 sq.ft.(6′ x 121′). Hence, out of the total extent purchased by them, 726 sq.ft.was allotted as the common pathway, more particularly marked as ‘ABCD’ and the total extent of 9448 sq.ft. purchased by the plaintiffs was shown as ‘EFGD in the plan annexed to the plaint and in order to avoid litigation, they decided to give the pathway as gift to the 1st defendant. Hence, they executed a gift deed dated 17.05.1995 and the same was registered in the office of the Sub-Registrar, Thiruvarur; however, it was not accepted and acted upon by the Thiruvarur Municipality and no right was transferred to them. Moreover, on the date of execution of the gift deed, neither the Commissioner nor the staff of the Municipality was present in the sub Registrar Office. The original gift deed was only in the possession of the plaintiffs and they alone were enjoying the suit property and hence, the gift deed was a sham and nominal document. The 3rd defendant purchased the property from the 2nd defendant, one of the vendors of the plaintiffs, on the western side of the plaintiffs’ property. When defendants 2 and 3 made attempts to trespass into the suit property, which was in the exclusive possession of the plaintiffs, they were prevented by the plaintiffs and when the plaintiffs orally complained to the 1st defendant, the staff of the Municipality informed them that since the property was gifted to the Municipality, the plaintiffs cannot prevent defendants 2 and 3 from using the suit property as the common pathway. Hence, the plaintiffs were constrained to file the suit for the said reliefs.
5. The said suit was resisted by the defendants stating that the plaintiffs, having executed the gift deed in respect of the suit property and handing over possession to the Municipality, had no right to revoke the gift deed. The Municipality accepted the gift deed and took possession of the property and it is under their maintenance. Now, in view of the gift deed executed by the plaintiffs, the common pathway belongs to the 1st defendant. Further, the suit was not maintainable since all the plaintiffs jointly filed the suit, whereas they purchased the property individually and, as such, the suits ought to have been filed separately and Order 1 Rule 3 CPC is not applicable to this case. There was no fence or compound wall in between the suit property and the Tamil Nadu Electricity Board also put up an electric post in the suit property and gave electricity connection to the houses. Under such circumstances, the suit has to be dismissed.
6. The trial court framed two issues and on the side of the plaintiffs, the 4th plaintiff was examined as P.W.1 and Exs.A-1 to A-10 were marked and on the side of the defendants, D.Ws.1 and 2 were examined and Exs.B-1 to B-5 were marked. The trial court, on a consideration of the evidence both oral and documentary, had dismissed the suit and aggrieved over the same, the plaintiffs filed A.S.No.95 of 2001 before the Principal District Court, Nagapattinam, and the appellate court allowed the appeal and reversed the finding of the trial court; against which, the 1st defendant Municipality preferred S.A.No.1155 of 2002 and defendants 2 and 3 preferred S.A.No.342 of 2002.
7. At the time of admission of both the appeals, this Court framed the following substantial questions of law for consideration:
S.A.No.342 of 2002:
(1) Whether the court below is right that Ex.A-6 has not been accepted by Tiruvarur Municipality especially when the plaintiffs themselves have voluntarily executed gift deed in favour of the Municipality for formation of public road and more so, when the plaintiffs themselves have not contended that there was no acceptance ?
(2) Is the lower court right in coming to the conclusion that because of non-acceptance of Ex.A-6 gift deed, the property continued to belong to the plaintiffs, when admittedly under Ex.A-6 the plaintiffs have divested all rights, title interest over the property and transferred title to the Municipality ?
(3) Is the lower appellate court right in coming to the conclusion that the plaintiffs can question Ex.A-6 without praying that it is sham and nominal in law ?
(4) Whether the lower appellate court erred in not adverting to the provisions of District Municipality Act which declares that all public roads vest with the Municipality and such vesting being with or without a gift deed ?
S.A.No.1155 of 2002:
(1) Whether the suit filed by the plaintiffs without giving proper notice to the Municipality is maintainable in law ?
(2) Whether the lower appellate court is justified in not properly considering Ex.A-6 and also deposition of P.W.1 as the disputed suit property has been already gifted by the plaintiffs to the 1st defendant Municipality which has been maintaining the same as public road ?
(3) Whether the suit is bad for mis-joinder of necessary parties and also lack of proper cause to file suit ?
(4) Whether the lower appellate court has properly and lawfully applied about estoppel against the plaintiffs in the suit ?
8. Assailing the finding of the lower appellate court, the learned counsel for the 1st defendant Municipality (appellant in S.A.No.1155 of 2002) submitted that the trial court, on an appreciation of evidence, had come to the conclusion that the suit property, which was gifted to the 1st defendant Municipality, was taken over by them and the plaintiffs have no legal right to cancel the gift deed and by coming to such conclusion, the trial court had correctly dismissed the suit. But, the lower appellate had allowed the appeal on an erroneous finding that the gift deed executed by the plaintiffs was not given effect to and the same was not acted upon by the 1st defendant Municipality and the pathway was not maintained by the Municipality. Moreover, the observation of the trial court that the original gift deed executed by the plaintiffs was produced before the Court only by the plaintiffs, would go to show that the original document was not handed over to the 1st defendant Municipality. Since the original was produced by the plaintiffs, it could be presumed that there was no acceptance of gift on the part of the 1st defendant Municipality and it is incorrect to state that the gift deed was not acted upon. In fact, the electric pole was erected in the suit property and electricity connections were given to the houses and it would show that the suit property is under the control of the 1st defendant Municipality. Further, the learned counsel for the 1st defendant, by relying upon the judgment reported in the case of ASOKAN ..vs.. LAKSHMIKUTTY AND ANOTHER ((2007) 13 SCC 210), submitted that in that case, it has been held that there may be various means to prove the acceptance and it is not necessary to prove any overt act in respect thereof. Therefore, the case put forth by the plaintiffs that the possession of the original gift deed was only with them which would show that the gift was not accepted bythe Municipality, has no meaning. Even acceptance can be expressed by mere silence. Moreover, in the gift deed, no condition was imposed on the 1st defendant Municipality. Under such circumstances, the finding arrived at by the lower appellate court has to be set aside.
9. Learned counsel for defendants 2 and 3 (appellants in S.A.No.342 of 2002) submitted that the suit was filed on 16.12.1998 and the gift deed was cancelled on 28.12.1998 i.e.after the filing of the suit. Since the gift deed was executed on 17.05.1995, they ought to have filed the suit within the period of three years to set aside the same. The plaintiffs, knowing fully well that the suit will be hit by limitation if it is not filed within three years for setting aside the gift deed, have filed the present suit for declaration and injunction even without cancelling the gift deed. Moreover, all the plaintiffs had purchased their respective properties under four separate sale deeds. Under such circumstances, they ought to have filed the suits separately and as such, the suit is liable to be dismissed for mis-joinder of necessary parties. But the lower appellate court, without considering these aspects, had set aside the well considered judgment of the trial court.
10. Per contra, the learned counsel for the plaintiffs submitted that the suit property had never been used as the common pathway. The electric poles were erected in the suit property only at the expenses of the plaintiffs for their convenient enjoyment. Therefore, it cannot be said that the 1st defendant Municipality had taken over the control of the suit property. Moreover, in the gift deed, there was no covenant preventing the plaintiffs to convert the suit property as their exclusive pathway. Since the gift deed was not acted upon, the reliefs sought for by the plaintiffs were legally maintainable and no fault could be found in the judgment of the lower appellate court.
11. Heard the learned counsel for the parties and perused the materials available on record.
12. It is not in dispute that the plaintiffs had purchased the property measuring to an extent of 9448 sq.ft. under four separate sale deeds from the legal heirs of the deceased Subramania Pillai and in order to have a pathway to reach the Marudhapattinam road, they decided to gift the suit property measuring to an extent of 726 sq.ft.to the 1st defendant Municipality and, accordingly, they did so. But, subsequently, one of the vendors of the plaintiffs, namely, the 2nd defendant, had sold the property, on the western side of the plaintiffs property, to the 3rd defendant. When the 3rd defendant started to use the suit property as the public road, that was prevented by the plaintiffs. When it was complained to the Municipality, they instructed the plaintiffs not to prevent the public since it was already gifted to the Municipality. Therefore, the present suit was filed for declaration and injunction.
13. The trial court had dismissed the suit by coming to the conclusion that the gift deed was acted upon and the Municipality had taken over the property under their control. But the lower appellate court had set aside the judgment and decree of the trial court on a finding that since the original gift deed was in the possession of the plaintiffs, it could be presumed that the gift deed was never acted upon. Therefore, in view of the submissions made on either side, the question that has to be decided is, whether the reliefs sought for by the plaintiffs are legally sustainable, especially when they executed the gift deed in favour of the Municipality. In this regard, reliance may be
placed on the judgment reported in (2007)13 SCC 10 and the relevant paragraphs are extracted hereunder:
“14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. (See Sanjukta Ray v. Bimelendu Mohanty (AIR 1997 Ori 131), Kamakshi Ammal v. Rajalakshmi (AIR 1995 Mad 415) and Samrathi Devi v. Parasuram Pandey (AIR 1975 Pat 140).
15. Concept of payment of consideration in whatever form is unknown in the case of a gift. It should be a voluntary one. It should not be subjected to any undue influence.
16. While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. It is not a case that the appellant was not aware of the recitals contained in deeds of gift. The very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometimes indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift.
17. In Narayani Bhanumathi v. Karthyayani Lelitha Bhai (1973 Kerala LJ 354 a learned Single Judge of the Kerala High Court stated the law thus:
If the earlier settlement deed was executed on an assurance that Defendants 2 and 3 will be looked after, that presupposes the knowledge of the gift by the donees and an understanding reached between them at the time of execution of the settlement deed which could be sufficient to support the plea of acceptance especially when there is no question of the donee getting possession of properties since there is reservation of right to enjoy the property in the doners during their lifetime.
The evidence bearing on the question of acceptance of the gift deed will have to be appreciated in the background of the circumstance relating to the execution of such a deed. There may be cases where slightest evidence of such acceptance would be sufficient. There may still be cases where the circumstances themselves eloquently speak to such acceptance. Normally when a person gifts properties to another and it is not an onerous gift, one may expect the other to accept such a gift when once it comes to his knowledge, since normally, any person would be only too willing to promote his own interest. Maybe in particular cases there may be peculiar circumstances which may show that the donee would not have accepted the gift. But these are rather the exceptions than the rule. It is then only normal to assume the rule. It is only normal to assume that the donee would have accepted the gift deed. One would have to look into the circumstances of the case in order to see whether acceptance could be read. Mere silence may sometimes be indicative of acceptance provided it is shown that the donee knew about the gift. Essentially, this is a question of fact to be considered on the background of circumstances of each case.
18. Mr.Iyer, however, submitted that it would be open to the donors to prove that in fact no possession had been handed over. Strong reliance inthis behalf has been placed on S.V.S.Muhammad Yusuf Rowther v. Mohd.Yusuf Rowther (AIR 1958 Mad 527) and Alavi v.Aminakutty (1984 KLT 61 (SN).
19. In S.V.S.Muhammad Yusuf Rowther, the Madras High Court was dealing with a case of gift under the MohammedanLaw. Therein it was opined:(AIR p.529, para 11)
“11. In my judgment, learned counsel for the appellants is justified in his complaint that the courts below have wrongly thrown the onus of proving that this requirement as to delivery of possession had been complied with on the contesting defendants. It is no doubt true that delivery of possession of gifted properties is an essential condition of the validity of the gift and its operative nature under the Muslim Law and it would be for the donees to establish it”.
20. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. (See Prem Singh v.Birbal ((2006) 5 SCC 353). When such a presumption is raised coupled with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and not on the donee.
21. In Alavi, Paripoornan, J. (as His Lordship then was) held: (KLT p. 61)
It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject-matter of the gift was not delivered over to the donees. (emphasis in original)
……..
30. Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent
conduct of a donee cannot be a ground for rescission of a valid gift”.
14. A reading of the said judgments would show that slightest evidence of acceptance by the donee is sufficient to come to a conclusion that the gift deed is acted upon. In the instant case, even according to the plaintiffs, when they prevented defendants 2 and 3, the 1st defendant Municipality instructed them not to prevent them since the property had been gifted to the Municipality. This act of the 1st defendant Municipality itself is sufficient to hold that the gift was accepted and acted upon. Therefore, in my considered opinion, the fact that possession of the original document was with the plaintiffs, has no significance. Moreover, no condition was stipulated by them in the gift deed. Under such circumstances, the finding of the lower appellate court that the gift was not acted upon, is liable to be set aside. Moreover, as contended by the learned counsel for the defendants (appellants) that when the plaintiffs had purchased the properties by way of four separate sale deeds, they ought to have filed separate suits. Therefore, the suit has to fail on the ground of mis-joinder of necessary parties also. Therefore, in my considered opinion, the finding arrived at by the lower appellate court is not legally sustainable and the same is liable to be set aside. Accordingly, the same is hereby set aside.
Accordingly, both the second appeals are allowed by setting aside the decree and judgment of the lower appellate court and the decree and judgment of the trial court, dismissing the suit, is hereby confirmed. No costs. Consequently, connected C.M.P.is closed.
gl
To
1) The Subordinate Judge,
Tiruvarur.
2) The Principal District Judge,
Nagapattinam.
Copy to:
The Record Keeper,
V.R.Section,
High Court,
Madras