Case: JAGDISH CHANDER Vs. SATISH CHANDER

recorded C.A.@ SLP(C)No.36299/2016 by the trial Court, as confirmed by the First Appellate Court. Further, it is contended that the High Court while relying on the document (Ext. PW-3/F) held that gift deed was executed by receiving consideration amount of Rs.5,000/-. It is submitted that the original document is in vernacular language. The figure ‘5,000? as mentioned, on the first page of the document, is only for the purpose of valuation, for payment of stamp duty, but same is erroneously considered as consideration by the High Court. It is further submitted that as the gift deed was not under challenge, it was not open for the High Court to overturn the findings recorded by the Trial Court and the First Appellate Court, for granting relief of declaration as prayed for. 12. On the other hand, it is contended by learned counsel appearing for the respondents that there was absolutely no reason for executing the gift deed by Smt. Vidya Devi, on 09.04.1991, within a short span of time, after executing the Will. It is contended that as much as the gift deed is executed within few days after the execution of Will, that itself creates an amount of doubt on the genuineness of gift deed. It is submitted that such gift deed was got executed without her C.A.@ SLP(C)No.36299/2016 knowledge and consent. It is also submitted that as the gift deed is evidenced by receipt of consideration, and further in view of the documentary evidence relating to mutation (Ext.PW-3/F), there are no grounds to interfere with the judgment of the High Court. 13. Having heard the learned counsels on both the sides, we have perused the impugned judgment of the the High Court and other material placed on record. At the outset, it is to be noted that the gift deed which is executed in favour of the appellant herein, is a registered gift deed. It is also clear from the evidence on record that Smt. Vidya Devi has acquired title to the property by way of Will. Same is evident from the Ext.D-4, a judgment in Civil Suit No.163 of 1987, decided on 22.08.1989. In the said suit, it is clearly held that Smt. Vidya Devi has acquired title to the property by way of Will, as such, the property is to be considered as a self-acquired property of Smt. Vidya Devi. 14. As there is a serious dispute with regard to receipt of consideration of Five Thousand Rupees for executing the gift deed, we have carefully perused the copy of the gift deed which is placed on record. A C.A.@ SLP(C)No.36299/2016 perusal of the gift deed makes it clear that what is mentioned on the first page of the document, is the valuation of the property for the purpose of stamp duty and registration charges which is arrived at Rs.5,000/-, but not the consideration received by the donor for executing the gift deed. The gift deed is correctly interpreted by the Trial Court and the First Appellate Court. But by misconstruing the same, the High Court has held that gift was evidenced by a consideration amount of Rs.5,000/-. It is true that if the gift is evidenced by consideration,same cannot be valid one within the meaning of Section 122 of the T.P. Act. But it is clear from the document itself that no consideration is passed on as per the registered gift deed. Mentioning of Rs.5,000/- in the first page, for the purpose of valuation, cannot be said to be a consideration received by the donor for executing the gift deed. 15. With reference to the order of mutation Ext.PW3/F, the High Court held that the order of mutation embodied in Ext.PW3/F conveys the alienation under Ext.DW2/A and that the same being a coloured transaction or a sham transaction. In Ext.PW3/F-mutation, it is stated that C.A.@ SLP(C)No.36299/2016 ?Gift Deed registered valuating Rs.5,000/-.? The order of mutation reads as under:-?Mutation of the Gift Deed executed by Smt.Vidya Devi to Jagdish Chander as identified by Tilak Raj, Advocate at Nurpur which has the value of Rs.5,000/-. Registry put up for transfer of ownership and possession valuing Rs.5,000/-. Therefore, mutation of the registry bearing No.162 dated 23.04.1991 regarding land Khasra No.235/710, New Khasra No.2132, 2133, area 0-02-85 hectare out of 0-06-1 hectare is sanctioned.?By perusal of the above order of mutation, it is seen that the order of mutation also only refers to the valuation of the property as Rs.5000/-. There is nothing to indicate that the said amount of Rs.5,000/- has been paid as consideration to the donor. Both the Gift Deed Ext.DW2/A as well as the order of the mutation only indicate the valuation of the property as Rs.5,000/- only for the purpose of stamp duty or registration charges and for payment of fees for mutation respectively. The High Court erred in saying that Ext.DW2/A when read with Ext.PW3/F candidly convey qua the alienation of the suit land under Ext.DW2/A and the donor receiving consideration from the donee. C.A.@ SLP(C)No.36299/2016 16. Though, it is the contention of the respondent that such gift deed was not executed by Smt.Vidya Devi on her free will and consent, there is no evidence on record placed to substantiate such allegation. Further, in absence of challenge to the gift deed, it is not open to record any findings on the validity of the gift. The High Court also committed error in relying on the mutation proceeding, which itself is based on the registered gift deed. Further, the High Court fell in error in re-appreciating the evidence on record to come to a different conclusion than the findings recorded by the Trial Court, in exercise of power under Section 100 of the Code of Civil Procedure. As the findings recorded by the Trial Court and the First Appellate Court are in accordance with the evidence on record, and further the High Court has misconstrued the document of gift, we are of the view that judgment of the High Court is liable to be set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. Having heard the learned counsels on both the sides, we have perused the impugned judgment of the the High Court and other material placed on record. At the outset, it is to be noted that the gift deed which is executed in favour of the appellant herein, is a registered gift deed. It is also clear from the evidence on record that Smt. Vidya Devi has acquired title to the property by way of Will. Same is evident from the Ext.D-4, a judgment in Civil Suit No.163 of 1987, decided on 22.08.1989. In the said suit, it is clearly held that Smt. Vidya Devi has acquired title to the property by way of Will, as such, the property is to be considered as a self-acquired property of Smt. Vidya Devi.As there is a serious dispute with regard to receipt of consideration of Five Thousand Rupees for executing the gift deed, we have carefully perused the copy of the gift deed which is placed on record. A C.A.@ SLP(C)No.36299/2016 perusal of the gift deed makes it clear that what is mentioned on the first page of the document, is the valuation of the property for the purpose of stamp duty and registration charges which is arrived at Rs.5,000/-, but not the consideration received by the donor for executing the gift deed. The gift deed is correctly interpreted by the Trial Court and the First Appellate Court. But by misconstruing the same, the High Court has held that gift was evidenced by a consideration amount of Rs.5,000/-. It is true that if the gift is evidenced by consideration,same cannot be valid one within the meaning of Section 122 of the T.P. Act. But it is clear from the document itself that no consideration is passed on as per the registered gift deed. Mentioning of Rs.5,000/- in the first page, for the purpose of valuation, cannot be said to be a consideration received by the donor for executing the giftperusal of the above order of mutation, it is seen that the order of mutation also only refers to the valuation of the property as Rs.5000/-. There is nothing to indicate that the said amount of Rs.5,000/- has been paid as consideration to the donor. Both the Gift Deed Ext.DW2/A as well as the order of the mutation only indicate the valuation of the property as Rs.5,000/- only for the purpose of stamp duty or registration charges and for payment of fees for mutation respectively. The High Court erred in saying that Ext.DW2/A when read with Ext.PW3/F candidly convey qua the alienation of the suit land under Ext.DW2/A and the donor receiving consideration from the donee. C.A.@ SLP(C)No.Though, it is the contention of the respondent that such gift deed was not executed by Smt.Vidya Devi on her free will and consent, there is no evidence on record placed to substantiate such allegation. Further, in absence of challenge to the gift deed, it is not open to record any findings on the validity of the gift. The High Court also committed error in relying on the mutation proceeding, which itself is based on the registered gift deed. Further, the High Court fell in error in re-appreciating the evidence on record to come to a different conclusion than the findings recorded by the Trial Court, in exercise of power under Section 100 of the Code of Civil Procedure. As the findings recorded by the Trial Court and the First Appellate Court are in accordance with the evidence on record, and further the High Court has misconstrued the document of gift, we are of the view that judgment of the High Court is liable to be set aside.