2001THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1016 of 2001 DATE: 06-07-2011 Between: Dharmavaram Pentaiah .. Appellant And Vallabhoju Bhoodevi .. Respondent THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1016 of 2001 JUDGMENT: The plaintiff in O.S.No.6 of 1999 on the file of the Senior Civil Judge, Siddipet, is the appellant herein. The suit was filed for cancellation of a gift deed dated 26.02.1996 and for injunction. The schedule property is house property and the plaintiff is the only son and the defendant is the daughter of late Sheshadri. All six sisters of the plaintiff were married and they were living with their in- laws. The house was the ancestral property and in the year 1995 there was a partition between the plaintiff and his father and the house has fallen to the share of the plaintiff in that partition and father of the plaintiff did not take any share as he was old and unable to manage the business and agreed to take maintenance of Rs.500/-. A memorandum of partition was executed on 15.10.1995 and, therefore, the plaintiff has become owner of the property. The property was leased out to the tenants and rents were being collected. The defendant has no right in the house property but she set up a forged gift deed dated 26.02.1996 alleged to have been executed in her favour by the father. There is every apprehension that if the gift deed is not challenged the rights of the plaintiff will be attacked and hence, the suit. The defendant filed written statement contending that the plaintiff is not the owner of the schedule property and it is not the ancestral family property. It was the self acquired property of the father. He died intestate. The alleged memorandum of partition dated 15.10.1995 is false. The suit schedule–A house was leased to Buchaiah and Koduri Brahmam and the plaintiff is collecting the rents from the tenants. She is a widow and has been living with her parents since the death of her husband in the year 1965. The father of the plaintiff and the defendant was the kartha of the family till his death, he used to collect the rents and paying the house tax during his life time, thereafter the plaintiff is collecting the rents and paying the house tax. She is household, being widow she always restricted herself behind the doors as such she had no occasion to come out of the house. She lived with the plaintiff till she was necked out from the house on a quarrel with the wife of the plaintiff on 14.01.1999 i.e. Sankranthi festival. The gift deed was executed by the father on 26.2.1996 to the knowledge of the plaintiff and it was attested by the mother and another six relatives. The cause of action pleaded by the plaintiff is totally false and, therefore, the suit is liable to be dismissed. On the basis of the above pleadings, the following issues were framed for trial: 1. Whether plaint “A” schedule is ancestral property or self acquired property of Sheshadri? 2. Whether gift deed No.1371 dated 26.2.1996 is forged one? 3. Whether above gift deed requires cancellation? 4. Whether plaintiff entitled for perpetual injunction? 5. To what relief? On behalf of the plaintiff, P.Ws. 1 and 2 were examined and marked Exs.A-1 and A-2 and on behalf of the defendant, D.Ws.1 to 3 were examined and marked Exs.B-1 to B-3. After considering the evidence on record, the learned Senior Civil Judge, Siddipet dismissed the suit of the plaintiff and aggrieved by the said judgment and decree dated 20.12.2000, the present appeal is filed. The points, that arise for consideration, are 1) whether the plaintiff is the owner of the property? 2) Whether the gift deed Ex.B-1 in favour of the plaintiff is true and valid? 3) Whether the judgment and decree passed by the learned Senior Civil Judge, Siddipet is legal and sustainable? POINT NOS.1 to 3: It is the specific case of the plaintiff that the suit property was the ancestral property and there was a partition in the year 1995 and in that arrangement the plaint schedule property fell to his share and the father agreed to take maintenance of Rs.500/-. The partition deed was said to have been prepared on 15.10.1995 and the document is found to be not admissible and the order has become final. Before considering the alleged partition, it is to be seen as to whether the property was ancestral property or the self-acquired property of the father. In support of the claim another brother P.W.2 was examined and according to him the property was given to the plaintiff by his father as he was not able to look after the property. In cross-examination he stated that the father has purchased the plaint schedule property after started living in another house where P.W.1 was presently living. He also admitted this his father constructed the plaint schedule house. He further stated that all the properties are acquired by his father. Therefore, from his evidence, it is quite clear that there was no ancestral property and the property in dispute is not a family property and it was acquired by the father and it is his self-acquired property. In fact in the evidence of D.W.1 also this fact was not disputed. Therefore, for the plaintiff to maintain the suit he has to show that he has got title to the property from his father. The alleged family arrangement is not accepted and, therefore, in the absence of any document of conveyance in his favour by the father, the plaintiff will not get any title to the property and consequently he cannot maintain a suit for cancellation of the gift deed on the ground that it castes a cloud on his title. Therefore, I have no hesitation in holding that the plaintiff cannot be treated as a owner of the property. The above finding itself will be sufficient for a decision in the suit. But, however the question will be as to whether the gift deed is valid or not since the further rights of the plaintiff as a successor to the father will be involved. According to the case of the plaintiff the gift deed is a fabricated document. Except his evidence and also the evidence of P.W.2, there is no other material evidence to support a theory of fabrication or impersonation in obtaining the document. An effort was sought to be made by the learned counsel for the appellant contending that the signatures on the papers are different and a comparison in Ex.A- 2 with Ex.A-1 signatures will prove the same. I think such an exercise is not warranted when the evidence on the side of the defendant about the execution of the document is available. D.W.1 is the defendant and according to her, her father has executed the registered gift deed Ex.B-1, which was attested by her mother and others and the stamps were in fact purchased by the father. Added to her evidence, the evidence of D.W.2, who is related to the parties clearly deposed that the gift deed was executed by the father of the plaintiff and was scribed by one Bacha Yadagiri and he attested the document. The mother of the plaintiff is also said to have attended the registration. In cross-examination he stated that he studied M.A. and was Municipal Counsellor. He claims to have heard the contention in Ex.B-1 and stated that there was no signature of the defendant in accepting the gift. From his cross-examination there is no material to show as to how he is interested in fabricating a document in collusion with the defendant. His evidence clearly establishes due execution of the document by Sheshadri. Therefore, the evidence of D.Ws.1 and 2 clearly proves the execution of the gift deed. D.W.2 is the attesting witness and the plaintiff is a third party to the proceeding and challenges the gift deed as a fabricated and forged one. In such circumstances, the plaintiff should adduce evidence as to the circumstances under which a fabricated document was brought into and also by sending the document for comparison with admitted signatures of the executant. There is no purpose nor is permissible for the Court to compare when there is positive evidence of D.Ws.1 and 2. The execution of the gift deed is, therefore, proved and on the other hand, the theory of fabrication is unbelievable and the plaintiff could not place any material on this aspect. Having failed to establish that the gift deed is fabricated one, the learned counsel for the appellant intends to attack the gift as being not valid on the ground that it was not accepted and accordingly it is not in accordance with the requirements of Sections 122 and 123 of the Transfer of Property Act. He relied on the following decisions: 1. Deo Narain and another v. Board of Revenue, U.P. and others[1] 2. Chennupati Venkatasubbamma v. Nelluri Narayanaswami[2] 3. Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker and others[3] 4. Miss Sailabala Das v. Jitendra Kumar Hazra and others[4] 5. Kesava Kurup v. Thomas Idicula[5] 6. Baby Ammal v. Rajan Asari[6] 7. Maqbool Alam Khan v. Mst.Khodaija and others[7] 8. N.Ramaswamy Padayachi v. C.Ramaswami Padayachi and others[8] 9. Nila Dei and another v. Bidyadhar Sahani and others[9] The suit is not one for declaration of title or for partition of the property whereunder an alternative plea of the gift deed being not enforceable, being not properly accepted can be permitted to be raised even as a plaintiff. But this is a suit only for cancellation of the gift deed on the ground that it is a fabricated one. There is no plea that the gift was not accepted and, therefore, it is not valid. The present argument cannot be entertained for the simple reason that it is the defendant that is said to have fabricated the gift deed and thereby showing that the defendant was associated with the gift and its acceptance, if once the due execution is proved. Apart from it, the law is very settled that the acceptance of a gift is need not be by actual delivery of possession and it can be by establishing about the property capable of being delivered. The original gift deed is in the custody of the defendant and it was produced by her. Unless there is acceptance of gift, it could not have been in her custody. Furthermore, the property is admittedly in the possession of the tenants and the plaintiff was said to have collecting the rents and paying the tax for some time. Therefore, a delivery of constructive possession of the property is also believable. In fact, in the evidence D.W.1 has stated that about five or six years back she accepted gift and this statement was given when she was examined on 08.11.2000 and the alleged gift deed was dated 26.02.1996. Therefore, the acceptance is specifically stated by her. She also claims to have made an application to the Municipality for mutation. She appears to be an illiterate and for her to mention the house property it is very difficult to expect. He evidence also goes to show that her father and plaintiff were collecting the rents and she was getting the money from them but about two years back the plaintiff has driven her out and he is collecting the rents. Therefore, it is quite clear that she also enjoyed the rents but it was the plaintiff that has been denying for obvious reasons. Therefore, from the material available on record, it is futile to contend that the gift is not valid for the reason that it was not accepted. There is sufficient proof of the custody of the original gift deed and acceptance of the same by D.W.1 and enjoyment of the rents from it for some time by her. Therefore, there are absolutely no merits in the appeal and the suit is rightly dismissed by the lower Court. Accordingly, the Appeal Suit is dismissed with costs. ________________________ N.R.L.NAGESWARA RAO, J DATE: 06-07-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT No. 1016 of 2001 DATE: 06-07-2011 MR [1] AIR 1964 ALLAHABAD 419 [2] AIR 1954 MADRAS 215 [3] (1997) 2 Supreme Court Cases 255 [4] AIR 1962 ORISSA 74 [5] AIR 1969 KERALA 21 [6] (1997) 2 Supreme Court Cases 636 [7] AIR 1966 Supreme Court 1194 [8] AIR 1975 MADRAS 88 [9] AIR 1999 ORISSA 69