Jagdish Chander Vs Satish Chander

C.A.@ SLP(C)No.36299/2016

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2361 OF 2019 [Arising out of S.L.P.(C) No.36299 of 2016]

Jagdish Chander ...Appellant

Versus

Satish Chander And Ors. ...Respondents

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted.

2. The appellant in this appeal was the first

defendant in the suit in, Civil Suit No.RBT 1251/95/92

filed before the Sub-Judge, 1st Class, Jawali, District

Kangra, Himachal Pradesh. This appeal is filed aggrieved

by the judgment dated 25.10.2016 in Regular Second

Appeal No. 383 of 2007 passed by the High Court of

Himachal Pradesh, at Shimla.

3. The first respondent-plaintiff has filed the

aforesaid suit for declaration to the effect that he is

joint owner to the extent of 435/924 shares i.e 0-04-57

hectares in the suit scheduled land. It was his case in

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the suit that Smt. Vidya Devi, the mother of the

plaintiff and the first defendant was the original owner

of the suit land. She executed a registered Will in

favour of him and the appellant herein on 09.04.1991. As

per the Will, 0-03-84 hectares of land was bequeathed to

the plaintiff and 0-02-85 hectares of land was

bequeathed to the appellant herein. Smt. Vidya Devi had

also executed a Will in respect of other land in favour

of the proforma respondent nos.2 & 3 herein. It is the

allegation of the respondent no.1-plaintiff that the

appellant herein by playing fraud on Smt. Vidya Devi, on

23.04.1991, got executed a fictitious gift deed without

her knowledge and consent. It is further pleaded that

the suit land is ancestral property and the parties are

governed by Kangra Customary Law to inherit the land as

such he is entitled for declaration as prayed for.

4. The appellant-defendant No.1 has contested the

suit. While denying various allegations made by the

plaintiff, it was the case of the appellant herein that

Smt. Vidya Devi had executed a valid gift deed in his

favour out of her free will, consent and without undue

influence. The gift deed was registered with the Sub-

Registrar as such question of fraud does not arise.

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It was pleaded, by virtue of the gift, the appellant has

become the owner of 558 shares out of 924 shares, out of

which 285 shares were due on account of the gift deed.

The appellant also denied the allegation of the

respondent no.1-plaintiff that the suit land was

ancestral property and governed by Kangra customary law.

5. The trial Court by judgment dated 2nd June, 2003 has

dismissed the suit filed by the first respondent herein.

The trial Court on appreciation of evidence on record

has held that the donor Smt. Vidya Devi has never

challenged the gift deed during her lifetime. The first

respondent-plaintiff being a third party to the gift

deed, it is not open to him to challenge the validity of

the gift on any ground. Further the trial Court has held

that the evidence on record is not sufficient to hold

that any fraud has been played on Smt. Vidya Devi for

execution of the gift deed. The plea of the plaintiff

that as the document of gift is evidenced by

consideration of Rs. 5,000/- the same is in violation of

provision under Section 122 of the Transfer of Property

Act, 1882 is also negatived by recording a finding that

there is no endorsement of receipt of consideration

amount. On the allegation of the plaintiff that the suit

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land is ancestral property and they are covered by

Kangra Customary law, the trial Court has held that

Vidya Devi has derived title by way of will from her

late father as such suit property is to be considered as

self acquired property of Smt. Vidya Devi.

6. With the aforesaid findings, the trial Court has

dismissed the suit.

7. Aggrieved by the judgment and decree passed by the

trial Court dismissing the suit, the first respondent

has filed first appeal before the Additional District

Judge, Fast Track Court, Kangra at Dharamsala, Himachal

Pradesh. Even the First Appellate Court has agreed with

the findings of the trial Court by judgment dated

2nd August, 2007 and the First Appeal (Civil Appeal No.

147-J/05/03) was dismissed.

8. Aggrieved by the same, the first respondent-

plaintiff has preferred second appeal in the High Court

in Regular Second Appeal No. 383 of 2007.

9. The High Court, by impugned judgment, has allowed

the appeal by reversing the judgments of both the courts

below, mainly on the ground that the gift deed was

executed by receiving consideration of Rs.5,000/-. It

is held that in view of such consideration received by

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the donor, same is not in accordance with the provisions

of T.P. Act. Further, the High Court also has taken into

consideration the document of mutation (Ext.PW-3/F) with

regard to suit property, where delivery of possession of

the land is recorded on receipt of Rs.5,000/-. Further,

the High Court opined that as much as Will was executed

on 09.04.1991 in favour of Respondent no.1 and the

appellant herein, there was no reason to execute gift

deed within a short span of time, i.e, on 23.04.1991.

With the aforesaid findings, the appeal is allowed, by

decreeing the suit for declaration as prayed for.

10. We have heard the learned counsel for the appellant

and also learned counsel for the respondents.

11. In this appeal, it is mainly contended by learned

counsel for the appellant that the High Court, without

deciding any substantial question of law, has interfered

with the factual findings recorded by the Trial Court as

well as the First Appellate Court, by re-appreciating

the evidence on record. It is submitted that in exercise

of power under Section 100 of the Code of Civil

Procedure, it is not open for the High Court to re-

appreciate the evidence on record and to come to a

different conclusion by disturbing the findings recorded

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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

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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

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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

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“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.

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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.

17. For the aforesaid reasons, we allow this appeal and

set aside the impugned judgment of the High Court dated

25.10.2016 passed in Regular Second Appeal No.383 of

2007. Consequently, the suit filed in Civil Suit No.

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RBT1251/95/92 on the file of Sub-Judge, First Class

Jawali, Kangra, Himachal Pradesh, stands dismissed, with

no order as to costs.

.................... J. [R. Banumathi]

.................... J. [R. Subhash Reddy]

New Delhi; February 27, 2019

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