RSA No.3535 of 2008 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3535 of 2008 (O & M) Date of Decision: 31.03.2011 Prineet Kaur and others ……Appellants Versus Nasib Kaur and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Arun Jain, Sr. Advocate with Mr. Ashish Aggarwal, Advocate for the appellants. Mr. M. S. Khaira, Sr. Advocate with Mr. Dharminder Singh, Advocate for respondent Nos.2 to 7. L.N. MITTAL, J (ORAL) By this common judgment, I am disposing of two appeals i.e RSA No.3535 of 2008 and RSA No.3536 of 2008 both titled ‘Prineet Kaur and others versus Nasib Kaur and others’. These appeals have arisen out of two suits i.e Civil suit No.174 dated 19.05.1994 and Civil Suit No.179 dated 25.05.1994 both filed by Madanjit against his brother Baljit Singh and others. Both the suits were consolidated. Original plaintiff Madanjit has since died and is represented by the appellants as his legal representatives. Baljit Singh (original defendant No.1 in Civil suit No.174 and original defendant No.4 in Civil Suit No.179) has also since died and is RSA No.3535 of 2008 (O & M) - 2 - represented by his widow Nasib Kaur respondent No.1 as his legal representative. Baldev Singh son of Sher Singh, who was defendant No.4 in Civil Suit No.174 and defendant No.3 in Civil Suit No.179, has since died and his legal representatives were not brought on record and are not party to the instant second appeals. Both the suits were filed against same eight defendants, although numbered differently. Facts are being taken from Civil Suit No.174. Gulwant Kaur mother of plaintiff Madanjit and defendant No.1- Baljit Singh was owner of the suit land measuring 40 Bighas 12 Biswas situated in village Mangwal. A kothi also stood constructed in it. She executed gift deed dated 25.06.1968 thereby gifting the suit property in favour of plaintiff and defendant No.1 in equal shares. The plaintiff, in the suits, challenged the said gift deed qua half share of suit land in favour of defendant No.1-Baljit Singh on the ground that defendant No.1 never accepted the said gift. The plaintiff claimed the said gift deed to be valid qua his half share in the suit land. The plaintiff also pleaded Will dated 11.07.1982 in his favour by Gulwant Kaur and in view thereof, the plaintiff claimed to be owner in possession of the entire suit land as Gulwant Kaur had since died on 30.12.1983. Sale deed dated 17.05.1994 executed by defendant No.1 in favour of defendant Nos.2 to 4 and also two sale deeds dated 10/14.05.1996 executed by defendant No.4 in favour defendant No.5 and in favour of defendant Nos.6 and 7 were also challenged in the RSA No.3535 of 2008 (O & M) - 3 - suit. The plaintiff accordingly sought declaration and permanent injunction in both the suits. Defendant No.1 broadly denied the plaint allegations and inter alia pleaded that in view of the gift deed, he had become owner in possession of half share in the suit land. The gift is legal and valid and was accepted by him. Gurbaksh Singh father of plaintiff and defendant No.1 had challenged the aforesaid gift deed dated 25.06.1968 by filing suit against Gulwant Kaur and against plaintiff and defendant No.1 herein, but the said gift deed was upheld upto High Court. Will set up by the plaintiff was also disputed by defendant No.1. Various other pleas were also raised. Defendant Nos.2 to 4 also contested the suit. Defendant Nos.5 to 7 did not file written statement whereas defendant No.8 was proceeded ex parte. Learned Additional Civil Judge (Senior Division), Sangrur vide common judgment and decrees dated 18.10.2005 partly decreed both the suits filed by plaintiff-Madanjit to the extent of half share in the suit land and dismissed the suits regarding remaining half share in the suit land holding the same to be of defendant No.1 in view of the gift deed. Legal representatives of plaintiff preferred two first appeals, both being dismissed by learned Additional District Judge (Ad hoc), Fast Track Court, Sangrur vide judgments and decrees dated 21.08.2008. Feeling aggrieved, legal representatives of plaintiff have filed the instant two regular second appeals. RSA No.3535 of 2008 (O & M) - 4 - I have heard learned counsel for the parties at considerable length and also perused the case files including files of the Courts below. Learned counsel for the appellants vehemently contended that suit filed by Gurbaksh Singh to challenge the impugned gift deed dated 25.06.1968 was dismissed by the trial Court on 16.05.1977 and even RFA No.1297 of 1977 preferred by Gurbaksh Singh in that suit was dismissed by this Court on 15.07.1986, but Baljit Singh defendant No.1 herein, who was defendant No.2 in the said suit, did not contest that suit. It was vehemently contended that the aforesaid gift deed was never accepted by defendant No.1-Baljit Singh and consequently, the said gift deed qua half share in the suit land in favour of defendant No.1 was not valid. Reference was made to Section 122 of the Transfer of Property Act, 1882 (in short, the TP Act) to emphasise that in order to constitute valid gift, acceptance thereof by the donee is mandatory requirement. It was also submitted that such acceptance has to be made during the life time of the donor and while the donor is still capable of giving the property. Reference was also made to Section 125 of the TP Act, according to which if one of two or more donees does not accept the gift, the gift is void only to the extent of the interest which such donee would have taken if he had accepted the gift. It was contended that plaintiff had accepted the gift and, therefore, the gift qua half share in the suit land in favour of the RSA No.3535 of 2008 (O & M) - 5 - plaintiff is valid and since defendant No.1 did not accept the gift, gift of half share in the suit land in favour of defendant No.1 is void. Learned counsel for the appellants cited following judgments namely:- 1) Nanak Chand versus Ami Lal and others, 2003(2) RCR (civil) 260. 2) Baby Ammal versus Rajan Asari, 1997(1) Apex Court Journal 556 (S.C) 3) Naramadaben Maganlal Thakker versus Pranjivandas Maganlal Takker and others, 1996(2) Apex Court Journal 617 (S.C) 4) Rajamma versus Biswajith, 2002(1) Civil Court Cases 46 (Kerala). 5) Sukhdev Singh versus Harbhajan Singh and others, 1992 Civil Court Cases 727 (P & H), to emphasise that acceptance of gift by the donee is essential for a valid gift and without acceptance, the gift is void. It was also pointed out that even sanction of mutation is not sufficient to infer acceptance of the gift. Learned counsel for the appellants also contended that defendant No.1 also never came in possession of the suit land and it would also depict that he never accepted the gift. Reference in this RSA No.3535 of 2008 (O & M) - 6 - behalf was made to judgment in other litigation i.e Ex.P-13 whereby plaintiff’s lessee Bhajan Singh was held to be in possession of the suit land under the plaintiff herein. Learned counsel for the appellants also contended that in view of Will dated 11.07.1982, plaintiff has become owner of the entire suit land i.e half share by way of gift and the remaining half share which continued in the ownership of Gulwant Kaur on account of non-acceptance of the gift by defendant No.1, in terms of the Will. Learned counsel for the appellants also contended that defendant No.1 had filed a suit for permanent injunction on 23.10.1993 against the plaintiff, but after framing of issues in that suit, defendant No.1 herein, who was plaintiff in that suit, got the said suit dismissed as withdrawn on 17.05.1994. This fact was mentioned to refer to the conduct of defendant No.1 herein. It was also pointed out that sale deed dated 17.05.1994 executed by defendant No.1 in favour of defendant Nos.2 to 4 would not be an act of valid acceptance of the impugned gift because the said sale deed was executed more than 10 years after the death of donor Gulwant Kaur on 30.12.1983 whereas acceptance should be during the life time of the donor. It was emphasized that there was no overt act by defendant No.1 regarding acceptance of the gift by him. RSA No.3535 of 2008 (O & M) - 7 - On the other hand, learned counsel for the respondents contended that there was valid acceptance of the gift by defendant No.1 as well. Reference in this regard was made to the suit instituted by Gurbaksh Singh against Gulwant Kaur and against plaintiff and defendant No.1 herein. It was also pointed out that in proceedings initiated under Section 145 of the Code of Criminal Procedure (in short, Cr.P.C), plaintiff herein had filed Crl. Misc. No.2986-M of 1985 under Section 482 Cr.P.C for quashing the proceedings initiated under Section 145 Cr.P.C and in that petition, the plaintiff himself pleaded that the plaintiff and defendant No.1 (petitioner and respondent No.2 respectively in the said petition) were joint owners of the suit land in equal shares. The said plea was accepted by this Court vide order dated 06.01.1986 and, therefore, proceedings under Section 145 Cr.P.C were quashed. Learned counsel for the respondents also relied on judgment of Hon’ble Supreme Court in the case of Asokan versus Lakshmikutty and others, 2007 13 SCC 210 to contend that there was valid acceptance of the gift by defendant No.1 as well. I have carefully considered the rival contentions. The main controversy to be decided in the case is regarding acceptance of the gift in question by defendant No.1-Baljit Singh. The plaintiff has, however, failed to prove that the said gift was not accepted by defendant No.1. In the registered gift deed itself, it is recited that possession of the suit land had been delivered by the donor to both the donees. In the case of Asokan (supra), father had executed gift RSA No.3535 of 2008 (O & M) - 8 - deed in favour of the son and it was recited in the gift deed that property gifted had been handedover to the donee. It was held to be valid gift. Same is the position in the instant case. The matter does not rest here. The plaintiff has relied on Will dated 11.07.1982 executed in his favour by Gulwant Kaur. In the said Will (which was executed 14 years after the impugned gift deed), Gulwant Kaur donor/testatrix again reiterated that the suit land had already been gifted by her to her two sons i.e. plaintiff and defendant No.1 herein and they are owners in possession thereof. It would thus depict that till then, there was no dispute between the two brothers i.e plaintiff and defendant No.1 and they were joint owners in possession of the suit land. Delivery of possession of the suit land to the donees constitutes sufficient overt act on behalf of both the donees to depict that they had accepted the gift. In addition to it, the plaintiff himself referred to the suit filed by Gurbaksh Singh to challenge the gift deed. The said suit was dismissed by the trial Court and RFA No.1297 of 1977 filed by Gurbaksh Singh in that suit was dismissed by this Court vide judgment dated 15.07.1986. Perusal of said judgment dated 15.07.1986 reveals that Madanjit (plaintiff herein) and Baljit Singh (defendant No.1 herein), who were defendant Nos.3 and 2 in that suit, had also filed written statement therein pleading that they had become owners of the entire suit property in view of impugned gift deed. The said plea by Baljit Singh in the said suit would also depict RSA No.3535 of 2008 (O & M) - 9 - that he had expressly accepted the gift in question. Even in Crl. Misc. No.2986-M of 1985, the plaintiff himself pleaded that he and defendant No.1 herein are joint owners of the suit land. It would also depict that even the plaintiff knew and accepted the fact that the gift had been accepted by both of them i.e by plaintiff and defendant No.1. In the instant suits, the plaintiff has thus out of greed and dishonesty taken the plea that the gift was not accepted by defendant No.1. On the contrary, even plaintiff himself, who was defendant No.3 in the suit instituted by Gurbaksh Singh, also pleaded the entire gift deed to be valid in all respects. The plaintiff cannot approbate and reprobate. He cannot turn around and for the first time now plead in the instant suits, instituted in the year 1994 i.e. 26 years after the gift deed, that the gift had not been accepted by defendant No.1. Prior to it, plaintiff himself had all along been accepting the entire gift deed to be valid. Judgments cited by counsel for the appellants are not of any help to them because even in those judgments, it was laid down that question whether there was acceptance of the gift or not would depend upon facts and circumstances of each case. There is no dispute with the legal proposition laid down in the said judgments, as is also manifest from bare reading of Section 122 of the T.P. Act, that gift in order to be valid has to be accepted by the donee. However, the question whether donee has accepted the gift or not is more a question of fact than a question of law. Adjudication of the said question would depend on the evidence led in a particular case and RSA No.3535 of 2008 (O & M) - 10 - the facts and circumstances thereof. There can be no precedent for this purpose. In the instant case, there is ample conduct of both the parties including the plaintiff himself to depict that defendant No.1 had also accepted the gift in question and had at different stages asserted his ownership over half share of the suit land pursuant to the gift. Consequently, plea of the plaintiff that the gift was not accepted by defendant No.1 and, therefore, the gift is invalid qua his half share in the suit land, cannot be accepted and has been rightly negatived by the Courts below. As regards contention that plaintiff alone is in exclusive possession of the entire suit land as held in judgment Ex.P-13, suffice to notice that the said judgment came in suit instituted by plaintiff’s lessee on 28.05.1986 on the basis of writing dated 22.05.1986. As noticed hereinbefore, in Will dated 11.07.1982, it was recited by donor/testatrix Gulwant Kaur that both plaintiff and defendant No.1 are owners in possession of the suit land. It would depict that till then, both of them were in possession of the suit land. It appears that subsequently, some dispute arose between them regarding possession of the suit land leading to initiation of proceedings under Section 145 Cr.P.C by the police. In those proceedings, receiver was appointed and receiver took possession of the suit land. However, the said proceedings were quashed by this Court vide order dated 06.01.1986 and, thereafter the plaintiff took possession of the suit land from the receiver and gave the same to Bhajan Singh vide writing dated 22.05.1986. Consequently, if the RSA No.3535 of 2008 (O & M) - 11 - plaintiff subsequently came in exclusive possession of the suit land, it would not depict that defendant No.1 had not accepted the gift. It may be added that even alleged exclusive possession of the plaintiff over joint suit land would be deemed to be possession of both the cosharers i.e plaintiff and defendant No.1. For this, reference may be made to Full Bench judgment of this Court in the case of Bhartu versus Ram Sarup, 1981 PLJ 204. It is correct that alleged acceptance of gift by defendant No.1 by executing sale deed dated 17.05.1994 would be no valid acceptance of gift because donor Gulwant Kaur had already died on 30.12.1983 i.e more than 10 years earlier whereas acceptance has to be during the life time of the donor. Consequently, observation by the lower appellate Court that execution of said sale deed by defendant No.1 also amounts to acceptance of the gift is patently erroneous and illegal. However, at the same time, defendant No.1 is proved to have accepted the gift for various other reasons noticed hereinbefore. In view of the aforesaid discussion, it is held that there was valid acceptance of the gift by defendant No.1 and, there was, therefore, sufficient compliance with provision of Section 122 of the TP Act and accordingly defendant No.1 became owner of half share of the suit land. As regards Will dated 11.07.1982, the same is already under adjudication in RSA No.2975 of 2003. Consequently, I need RSA No.3535 of 2008 (O & M) - 12 - not comment anything on the validity of the said Will. However suffice to notice that even in the said Will, the testatrix Gulwant Kaur specifically stated that she had already gifted the suit land to her two sons i.e plaintiff and defendant No.1 herein and there are owners in possession of the suit land. Consequently, the said Will did not pertain to the suit land. In addition to it, Gulwant Kaur testatrix herself was not owner of the suit land at the time of her death in view of gift deed dated 25.06.1968 and consequently plaintiff could not inherit the suit land from Gulwant Kaur pursuant to the aforesaid Will. For the reasons aforesaid, I find no merit in these second appeals, although for reasons different than those recorded by the lower appellate Court. Both the appeals are accordingly dismissed. (L. N. MITTAL) JUDGE 31.03.2011 A.kaundal