1 of 28 OS.97-2001 & OS.50-2003
IN THE COURT OF THE SENIOR CIVIL JUDGE, ARMOOR.
Present: Sri V. Sreenivasa Siva Ram,
Senior Civil Judge, Nizamabad,
FAC: Senior Civil Judge (FTC), Armoor.
Dated this the 6th day of April, 2018.
O.S.No. 97 of 2001
Between : Argumeedi Narsaiah S/o A. Pothanna, Age: 45 years, Occ: Agriculture, R/o Bussapoor village, Balkonda Mandal, Dist. Nizamabad.
…Plaintiff.
A n d
1. Argumeedi Pothanna S/o Narsimlu, Aged: 70 years, Occ: Agriculture, R/o Bussapoor village, Balkonda Mandal, Dist. Nizamabad(Died)
2. Argumeedi Venkat Reddy S/o A. Narsaiah, Aged: 26 years, Occ: Agriculture, R/o Bussapoor village, Balkonda Mandal, Dist. Nizamabad.
3. Argumeedi Padma D/o A. Narsaiah, Aged: 15 years, Student Minor, Represented by her natural mother and guardian Smt. Argumeedi Gangubai W/o A. Narsaiah, Aged : 40 years, Occ: Household, R/o Bussapoor village, Balkonda Mandal, Dist. Nizamabad.
4. Argumeedi Mallavva W/o Late Pothanna, Aged about 70 years, Occ: Agriculture, R/o Bussapoor village, Balkonda Mandal, Dist. Nizamabad. (D4 added as LR of defendant No.1 as per orders in
IA.No.377/2003, dt. 7.7.2003.)
…Defendants.
And
O.S.No. 50 of 2003
Between :
1. Argumeedi Narsaiah S/o A. Pothanna, Age: 50 years, Occ: Agricul ture, R/o Bussapoor village, Balkonda Mandal, Dist. Nizamabad.
2. Argumeedi Mallavva W/o Late Pothanna, Aged about 70 years, Occ: Agriculture, R/o Bussapoor village, Balkonda Mandal, Dist. Nizamabad. …Plaintiffs.
A n d
1. Argumeedi Padma W/o Thurupu Praveen, Aged: 17 years, Occ: Household R/o C/o Vespa Gangaram, Vannel (B) village, Mandal Balkonda, Dist. Nizamabad (Minor, Represented by her husband
2 of 28 OS.97-2001 & OS.50-2003
and guardian Sri Thurupu Praveen S/o Vespa Gangaram, Age: 24 years, Occ: Agriculture, R/o Vannel (B) village, Balkonda Mandal.
2. Argumeedi Venkat Reddy S/o A. Narsaiah, Aged: 27 years, Occ: Agriculture, R/o Bussapoor village, Balkonda Mandal, Dist. Nizamabad.
3. Argumeedi Gangavva W/o Argumeedi Narsaiah, Aged: 45 years, Occ: Agriculture, R/o Bussapoor village, Balkonda Mandal, Dist. Nizamabad. …Defendants.
These clubbed suits (OS.No.97/2001 and OS.No.50/2003) are coming on this 16th day of February, 2018 before me for final hearing and disposal in the presence of Sri. L. Bhoopath Reddy, Advocate for plaintiff in both suits, Sri K.Ganga Reddy, Advocate for defendants in OS.50/03, defendants 1 to 3 in OS.97/2001; and M/s. Srihari Acharya and G. Ram Kumar, Advocates for defendant No.4 in OS.97/2001 and plaintiff No.2 in OS.50/03, and after having stood over for consideration, till this day the court delivered the following.
∷ COMMON JUDGEMENT ∷
Pleadings in OS.NO.97/2001:
1. This is a suit for partition and separate possession.
2. The brief facts of the plaint are that the plaintiff is the son of defendant No.1 and the defendant No.2 and 3 are the children of the plaintiff and the plaintiff and defendants constituted a Hindu joint family and the suit schedule properties mentioned in schedule ‘A’, ‘B’ and ‘C’ are situated at Bussapoor village and
Nallur village sivars in the name of defendant No.1 who is the
Kartha of the joint family and the plaintiff in January 2000 demanded the first defendant for partition but the defendant No.1 avoided the partition on some ground or the other and the defendant No.1 secretly has executed Registered Gift Deed in favour of defendant No.2 and 3 even though she was hardly 14 years and a minor by showing her age as 18 years and the Gift
3 of 28 OS.97-2001 & OS.50-2003
deeds executed by defendant No.1 with the help of one Lingareddy were not accepted by the defendant No.3 as she is a minor and not capable of accepting the gift and when the plaintiff came to know of the same about 10 days back, he verified the same and found the 3 gift deeds are executed and that the defendant No.3 is aged 15 ½ years as per the bonafide certificate issued by the Zilla
Parishad Secondary School, Mupkal and therefore, the gift deeds are ineffective and that the defendant No.2 has no right to gift the joint family properties. Hence, the suit.
3. The defendant No.1 filed his written statement admitting the contents of the plaint stating that as he was told by defendant No.2 and one A. Lingaredy that he is executing a partition deed he executed the same and he was not aware that he was executing a gift deed and that he has no intention to gift the joint family properties and as fraud was played, the gift deeds are null and void and stated no objection for granting the decree of partition.
4. The defendants 2 and 3 filed their written statement denying the averments of the plaint and stated that the suit schedule properties are the self acquired properties of defendant No.1 and the defendant No.1 executed the Gift deed in favour of defendant
No.3 and the plaintiff being the father of defendant No.3 has accepted the same and was managing the properties and the gifts is a valid one and cannot be cancelled and that the suit ought to be dismissed.
4 of 28 OS.97-2001 & OS.50-2003
5. The defendant No.4 filed his written statement admitting the claim of the plaintiff and prayed for a decree.
6. Based on the above pleadings, the following issues are framed for trial.
1).Whether the Gift Deeds executed by the defendant in favour of the 3rd defendant are true and correct and convey title to the 3rd defendant of properties mentioned therein?
2).Whether the plaintiff is entitled to half share in the suit properties?
3).To what relief?
Pleadings in OS.NO.50/2003:
7. This is a suit for cancellation of Registered Gift Deed doc.No.151/2000, dt.15.02.2000 and Registered Gift Deed doc.No.152/2000, dt.15.02.2000 and permanent injunction.
8. The brief facts of the plaint are that the plaintiff No.1 is the son of plaintiff No.2 and the said Argumeedi Pothanna, the father of plaintiff No.1 and husband of plaintiff No.2 died on 20.2.2003 and during the lifetime of A. Pothanna, the plaintiffs and A Pothanna constituted Hindu joint family and possessed the following properties.
1) House bearing No.248, at Bussapur village
2) Open Plot in Sy.No.172/U admeasuring 555 square yards at
Bussapur village
5 of 28 OS.97-2001 & OS.50-2003
9. 3) Agricultural land admeasuring Ac.622 ¾ guntas, situated in
Sy.No.75/2, 75/5AA, 128/A, 358/A, 150/1, 150/2 and 100/2 at
Bussapur village.
4) Agricultural land admeasuring Ac.402 ½ guntas in
Sy.No.443/1, 443/2, 445/A, 445/2A and 445/5A.
The said Pothanna during his lifetime, was the Kartha of the family and after his death, the plaintiff No.1 was managing the joint family properties and the plaintiff No.1 has a half share in the above properties and for the remaining half share of his father on notional partition he will get half and his mother plaintiff No.2 will get half i.e. the plaintiff No.1 is entitled for 3/4th share and the plaintiff No.2 is entitled for 1/4th share.
10.The defendant No.1 and 2 are the sons of the plaintiff through his wife defendant No.3. During the lifetime of A.
Pothanna, the plaintiff No.1 was staying separately from defendant
No.3 due to disputes for about 5 years and at that time, all the defendants were residing in the joint family house at Bussapur village and as the father of plaintiff No.1 was the old man, he can inform and as the 2nd plaintiff was 2 or 3 years younger than
Pothanna, she was also old and inform, the defendant No.2 and 3, due to old age of Pothanna, were managing the lands and
Pothanna and plaintiff No.2 were totally dependent on the defendants for medicines, food and clothing and the name of A.
Pothanna was recorded as Pattadar and owner of all the properties and when the plaintiff No.1 was not residing separately he filed a
6 of 28 OS.97-2001 & OS.50-2003
suit for partition against his father and the defendants 1 and 2 in
OS.No.97/2001 which is pending as the said A. Pothanna during
his lifetime, executed 4 Registered Gift Deeds in favour of defendant No.1 transferring the entire joint family properties and in the said case, A.Pothanna has filed his written statement accepting them, fraud was played on him as he was under the impression that he was executing a partition deed and he had no intention of executing a gift deed and at that time, the defendant
No.1 was a minor aged 15 ½ years and therefore, the 4 Gift deeds are illegal and void and after execution of Gift deeds, the defendants left the house of Pothanna and plaintiff No.2, when the defendant No.2 became illatom soninlaw as he married and the defendant No.1 has married one T. Praveen and the marriage of defendant No.2 and 3 were performed without informing the plaintiffs and Pothanna, the gift deeds were executed in collusion with Lingareddy and Bojanna in order to deprive the plaintiffs of their share and as the defendants in OS.97/2001 claimed ownership through invalid documents. Hence, the present suit for declaration and cancellation of the 4 Gift Deeds.
11.The defendants 1 to 3 filed their written statement admitting their relationship and constitution of the joint family and contended that they are also the members of the joint family and that the suit schedule properties are not the joint family properties and Pothanna has gifted the suit schedule properties to defendant
No.1 and as Pothanna, who was the Kartha of the joint family
7 of 28 OS.97-2001 & OS.50-2003
gifted all the suit schedule properties, there is no property and disputes arose and defendant NO.1 and 2 married against the wishes of the first plaintiff and that the 1st plaintiff never lived separately from the family and the plaintiff No.1 drove the defendant No.2 and 3 from their family and Pothanna was always in sound mind till his death and that the plaintiff was present at the time of execution and registration of the Gift Deeds in favour of defendant No.1 by Pothanna and he was the one who show defendant No.1 as a major and he has accepted the gift on behalf of the minor defendant No.1 and that the gift deeds and property documents are in the custody of plaintiff No.1 and therefore the suit ought to be dismissed.
12.Based on the above pleadings, the following issues are framed for trial.
1. Whether the plaint schedule ‘E’ property are illegal and void?
2. Whether the plaint schedule ‘E’ documents are liable to be cancelled?
3. Whether the plaintiffs are entitled to declaration as prayed for?
4. Whether the plaintiffs are entitled to injunction as prayed for?
5. Whether the suit is maintainable?
6. To what relief?
13.On behalf of the plaintiff, PWs.1 to 4 were examined and
Ex.A1 to A21 were marked and on behalf of defendant, DW.1 to 3 were examined and Ex.B1 to B7 were marked.
8 of 28 OS.97-2001 & OS.50-2003
14.As per orders dt.27.9.2007, OS.No.50/2003 was clubbed with OS.No.97/2001 and the evidence was lead by both parties in
OS.No.97/2001.
15.As the evidence was taken jointly for the sake of convenience, the parties as arrayed in OS.No.50/2003 are described.
Issue No.1 in OS.No.97/2001 and issue No.1 and 2 in
OS.No.50/2003:
16.As the above issues are interrelated, they are jointly taken up and at the outset, the pedigree is as follows, i.e. one A.
Narsaiah had two sons i.e. A. Pothanna and A. Rajalingam and three daughters namely Gangavva, Lingavva and Chinnavva and that the Pothanna has one son i.e. A. Narsaiah and Narsaiah has a son by name Venkat Reddy and daughter Padma and A. Mallavva is the wife of A. Narsaiah.
17.In order to determine the above issues, the neccesary points for consideration are
a) Whether the suit schedule properties are the joint family properties of Pothanna or whether the suit schedule properties are the self acquired properties of Pothanna?
b) Whether the Pothanna has executed the four Gift Deeds Ex.A5 to A8 equivalent to Ex.B1 to B4 under fraud, coercion, misrepresentation or undue influence in favour of Padma?
c) Whether a minor can accept a Gift?
9 of 28 OS.97-2001 & OS.50-2003
POINT a):
18.On this aspect, according to A. Narsaiah, who is the plaintiff in both cases, who deposed as PW.1, according to him, all the suit schedule properties were his ancestral properties and he and his children constituted a Hindu joint family along with his father
Pothanna and this fact was also admitted by DW.2 and 3 and according to them A. Pothanna and A. Rajalingam partitioned their propertie after death of their father A. Narsimlu and in the said partition each of them got less than 1 acre of land and a small house. In view of the above contention, the aspect that has to be seen is how the suit schedule properties were acquired by
Pothanna and unfortunately the said Pothanna died during the pendency of the suits and his evidence could not be recorded and in this regard the entire evidence of PW.1 and the pleadings in both the suits do not disclose the family pedigree as well as the manner in which A. Pothanna has got the suit schedule properties and for the first time PW.2 who is the mother of PW.1, has stated in her evidence that Pothanna and Rajalingam have partitioned their properties which consisted of agricultural lands, houses and open house sites at Bussapur and Nallur villages about 45 years back wherein the said Pothanna got the properties called
Mallemodi kunta polam, Dayyapu Ippakadi seenu, Ellotolla thota at Bussapur and Nakkodi thota at Nallur and after few years, there was an exchange of properties after 10 years of partition, wherein the house site at Sakkodi thota was given to the Pothanna and the plots at Kottam Venku Jada was given to Rajalingam. She also
10 of 28 OS.97-2001 & OS.50-2003
further deposed that that the old house at Bussapur fell to the share of Pothanna and another house fell to the share of
Rajalingam and in her cross examination she admitted that she was married with Pothanna and does not know the contents of chief examination affidavit and that her husband at that time was suffering from Asthma. PW.2 further admitted in her cross examination that her husband purchased the plot from Nomula
Muthyanna.
19.PW.3, who is another witness supported the version of PW.1 and 2 and in his cross examination he admitted that he has married the daughter of PW.1’s sister and he is unable to give the description of the suit properties and admitted that he does not know the internal affairs of PW.1’s family and therefore, the evidenciary value of PW.3 is of not much use and Ex.A9 which is the Certified copy of Pahani for the year 199899 of Bussapur village is in respect of Ac.6.22 3/4th guntas in Sy.No.75/2, 75/5AA, 128/A, 358/A, 150/1, 150/2 and 100/2, at Bussapur village are in the names of A. Pothanna and A. Rajalingam and
Ex.A10 which is Certified copy of Pahani for the year 199899 of
Nallur is in respect of land admeasuring Ac.402 ½ guntas in
Sy.No.443/1, 443/2, 445/A, 445/2A and 445/5A is in the name of
A. Pothanna and Ex.A11 which is the Certified copy of Pahani for the year 200102 of Nallur, is in respect of land admeasuring Ac.4 02 ½ guntas in Sy.No.443/1, 443/2, 445/A, 445/2A and 445/5A is in the name of A. Pothanna and Ex.B5 which is the Certified
11 of 28 OS.97-2001 & OS.50-2003
copy of Pahani for the year 20002001 of Bussapur is in respect of
Ac.6.22 3/4th guntas in Sy.No.75/2, 75/5AA, 128/A, 358/A, 150/1, 150/2 and 100/2 at Bussapur village is in the name of A.
Pothanna and A. Rajalingam. The above pahanies filed by both the parties are of no help in deciding the manner in which Pothanna has acquired the properties and as it is settled aspect of law that the entries in the revenue records are not proof of title. No doubt
U/sec.35 of the Evidence Act, entries in public records are relevant fact and have evidenciary value. In Telangana area, Sethwar
Register, Supplementary Sethwar, Wasool Baqui Register, Khasra
Pahani (prepared under the Land Census 1954 under the provisions of the A.P. (Telangana Area) Tenancy and Agricultural
Lands Act, 1950), Pahani, Chowfasla and Faisal Patti constitute the core revenue record. Sethwar in Telangana Area is the mother of all the Registers. Though the primary intention of preparing this
Register was to classify the lands according to the soil and potentiality and assess the revenue, recording the names of the persons in occupation was an equally important object in preparing this Register, for, without recording the names of the persons in occupation, the Government will not be able to collect revenue. Therefore, if a persons name is recorded as an occupant or pattadar in these records, a necessary presumption would arise in his favour or in favour of the persons who claim through him that he holds title to the land.
12 of 28 OS.97-2001 & OS.50-2003
20.None of the core records as mentioned above were produced by the plaintiffs and in a suit for title, the initial burden is always upon the plaintiff to prove the same and with regard to the evidenciary value of the evidence of PW.2 with regard to the partition and exchange of properties between the Pothanna and
Rajalingam, admittedly there are no pleadings in both the suits with regard to the pedigree and partition and in this regard, A party cannot adduce evidence and set a case inconsistent with his pleadings. No amount of proof can substitute pleadings which are the foundation of a claim of a litigating party. Thus, when pleadings are silent on an issue, the party is precluded from adducing evidence in respect of that issue. In Kamaludin Sumani
Vs. Manuel Barreto Xavier & ors, 201214) All MR 256 it is held that if the pleadings are absent on a particular ground and if evidence is led then such evidence is of no use. It is held in
Rajgopal ..Vs.. Kishan Gopal, A.I.R. 2003 S.C. 4319 that when there is no pleading regarding certain issue, no finding can be given despite evidence.
In the case of “A. Gangadhar Rao vs. G. Gangarao” reported in AIR 1968 AP 291, wherein it was held it is trite to say that a party is expecting and is bound to prove the case as alleged by him and as covered by the issues framed, this is in accordance in the main principle of practice that a party can only succeed according to what was alleged and prove. He should not be allowed to succeed on a cause which he has failed to set up, he should not be
13 of 28 OS.97-2001 & OS.50-2003
permitted to change his case or set up a case, which is inconsistent with what he had himself alleged in his pleading except by way of amendment of the plaint. It was also further held that where the plaintiff claimed individual title to the suit property and when it was found that it belonged to the joint family he could not be permitted to claim the same as one of the members of the joint family particularly when he had not been authorised by the others nor he was the Manager of a joint family since the father was still living.
In view of the aforesaid legal position, the evidence of PW.2 cannot be accepted and there is no probative value for the evidence of
PW.2.
21.With respect to the constitution of the joint family, even though the plaintiffs and DW.2 and 3 have stated that a joint family was there, and when the plaintiffs contend that the suit schedule properties are the joint family properties and when the defendants contend that the suit schedule properties are the self acquired properties of A. Pothanna, and when PW.2 has stated that Pothanna has purchased a plot from Nomula Muthyanna, but there is no document or proof to show when it was purchased and in what manner and with respect to the legal position about the joint family With respect to legal position, In Hindu Law by S.V.
Gupte, Volume 1, Article 9, it was stated:
(1) There is no presumption that a joint family possesses joint or any properly.
14 of 28 OS.97-2001 & OS.50-2003
(2) Once it is admitted or proved that a joint family possesses joint property, the presumption is that all property held by one or more members of the family is joint family property provided that such joint property is sufficient to raise the presumption.
(3) There is a presumption that property acquired by two or more members of a joint family by joint labour or exertions is joint family property, although such property is acquired without the aid of joint family property.
(4) There is no presumption that a business carried on by a member of a joint family either by himself or in partnership with a stranger is a joint family business.
(5) Once it is admitted or proved that the property in dispute was originally selfacquired or separate, the presumption is that it continued separate.
(6) Once it is admitted or proved that a partition has taken place, the presumption is that all property of the joint family has ceased to be joint family property.
6.Property can be proved to be of joint family by adducing the evidence to establish that such property is ancestral or acquired with the aid of such property.
If it is established that the family possesses some property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging selfacquisition to establish affirmatively that the property was acquired without the aid of the joint family property. But no such, presumption would arise if the nucleus is such that with its help the property claimed to be joint
15 of 28 OS.97-2001 & OS.50-2003
would not have been acquired and an important element for consideration is the income which the nucleus yielded. The existence of some nucleus, is not the sole criterion. The nucleus should yield sufficient surplus income from which the subsequent acquisitions could be made. It is well settled that a property acquired by causing detriment to the ancestral property would be joint family property, if, for instance, ancestral property is sold and with the proceeds thereof property acquired, the said property would be joint family property. But what would be the position if the property is acquired partly with the aid of the joint family property and partly from the manager's own funds ? It is contended on behalf of the respondent that in such a case as there is detriment to the joint family property the entire property acquired would become the joint family property. In support of this contention reliance is placed on Mangal Singh v. Hakesh . In that case it was found that both the ancestral property of the family and the selfacquired properties were utilized for acquiring the properties in dispute. It was held that whatever may be the extent of the contribution of the acquiring member himself out of his self acquired fund, if he takes the aid of any portion of joint or ancestral property in acquiring the property however small that aid may be, the property so acquired assumes the character of joint family property and cannot be claimed by himself as self acquisition. It was observed that the extent of his contribution or that of the family fund is immaterial. If any help is taken from the
16 of 28 OS.97-2001 & OS.50-2003
family property it is enough to make the selfacquired property, the property of the joint family.
8.Therefore, it is clear if the property can be deemed to be self acquired property if it clear detriment to the ancestral property or without using the ancestral property. If there is detriment to the ancestral property, the property acquired will take character of a joint family property and if the detriment is so insignificant as not to amount to a real detriment, the property acquired will not be joint family property.
22.In view of the above legal position, the plaintiffs i.e. A.
Narsaiah has to first establish that there was a nucleus of the joint family and not a single document or evidence has been adduced to prove the existence of the nucleus and as I have already stated above the plaintiffs has not filed the core revenue records and the evidence of DW.2 and 3 with regard to existence of the joint family is of no use as it is settled aspect of law that the plaintiff has to rely on his evidence and cannot rely on the weakness or on the latches on the part of the defendants and mere entries in the pahani showing the name of Pothanna and Rajalingam are of no use in the absence of proof of mode of acquisition and therefore, the plaintiffs have failed to prove that the suit schedule properties are not the joint family properties and therefore it can be said that the suit schedule properties are self acquired properties of
Pothanna and this point is answered in favour of the defendants.
17 of 28 OS.97-2001 & OS.50-2003
POINT b):
23.On this aspect, the pleadings in both the suits do not disclose even the words fraud, coercion, misrepresentation, and undue influence except stating that the plaintiff is being deprived of his right for the property. No doubt A. Pothanna for the first time in his written statement has mentioned that he has executed
Registered Gift Deeds i.e. Ex.A5 to A8 equivalent to Ex.B1 to B4 on misrepresentation that he was executing a partition deed and admittedly, the said Pothanna died before he could give evidence and the relevant witness is PW.2 who is the wife of Pothanna and mother of plaintiff No.1, and according to her, the said Pothanna died at the age of 80 and from 5 years prior to his death, he was suffering from old age diseases and was weak and was not in good health and the said Pothanna was totally dependent on the defendants and the defendants controlled the household affairs.
24.PW.4 has also supported the version of PW.2 that by playing fraud and misrepresentation, the defendants got executed the Gift deeds and with respect to the evidenciary value of PW.2 and PW.4 regarding fraud and misrepresentation, there is not an iota of pleading which forms the basis and foundation for the case and with respect to the aspect that proof without any pleading is of no use as I have already stated above and with respect to the mode of proof and legal standards regarding fraud, coercion, misrepresentation or undue influence,
18 of 28 OS.97-2001 & OS.50-2003
In K.M. Madhavakrishnan vs S.R. Sami And Ors.reported in
(1980) 2 MLJ 398
The general rule of law is that a party of full age and understanding is normally bound by his signature to a document whether he reads it or understands it or not. Equity does not save people from the consequences of their own folly but will save them from being victimised by other people.
Whenever a person of full age and understanding puts his signatures to a legal document without taking the trouble of reading it or without asking the document to be read and explained to him but signs it relying on the word of another as to its character, content or effect, he cannot be heard to say that it is not his document.
"The doctrine of non est factum does not apply unless there is a misrepresentation in inducing a mistaken belief as to the class of character of the supposed document and not a misrepresentation simply as to its contents. On the other hand, a mistake as to the contents of a deed of document is not sufficient.
Section 16 of the Indian Contract Act which particularly deals with the requirement of evidence and the onus in a case in which undue influence is alleged. Section 16 of the Contract Act reads as follows:
16.(1) A contract is said to be induced by "undue influence" where the relations subsisting between the parties are such that one of
19 of 28 OS.97-2001 & OS.50-2003
the parties is in a position to dominate the will of the other and uses the position to obtain an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall be upon the person in a position to dominate the will of the other. Nothing in this subsection shall affect the provisions of See l11 of the Indian Evidence Act, 1872.
It can be seen from the language of this section of the Contract
Act that the court has to ask the person who has founded his claim upon a document to prove that the grant was not obtained by undue influence only when the initial onus is discharged by the person who alleges undue influence, and that there has been such relations existing between the parties that one of the parties was in a position to dominate the will of the other and could use the position to obtain an unfair advantage.
20 of 28 OS.97-2001 & OS.50-2003
In Ladli Prasad Jaiswal vs Karnal Distillery Co., Ltd., & Ors
reported in 1964 SCR (1) 270 the honble supreme court held
In this context, one must note that a vague and general plea can never serve the purpose and satisfy the requirements of pleadings as to undue influence, for which purpose, the party pleading must plead the precise nature of the influence exercised, the manner of the use of the influence and unfair advantage obtained by the other.
In the case of Subhas Chandra Das Mushib vs Ganga Prosad
Das Mushib And Ors reported in 1967 AIR 878, 1967 SCR (1)
331
Under s. 16 (1) of the Indian Contract Act a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. This shows that the court trying a case of undue influence must consider two things to start with, namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donor and (2) has the donee used that position to obtain an unfair advantage over the donor'? And it was also held that no
presumption of undue influence can arise merely because
parties were nearly related to each other or merely because
donor was an old or of weak character.
21 of 28 OS.97-2001 & OS.50-2003
25.In view of the aforesaid legal position, the burden is on the plaintiffs to prove that fraud, coercion, misrepresentation and undue influence have taken place and when there are no pleadings in both the suits and when there is no evidence to show that the will of Pothanna was dominated by the defendants and mere pleadings of sensile diseases without any proof are of no help to the plaintiffs and Whenever a person of full age and understanding puts his signatures to a legal document without taking the trouble of reading it or without asking the document to be read and explained to him but signs it relying on the word of another as to its character, content or effect, he cannot be heard to say that it is not his document and therefore, in view of the aforesaid legal position, the plea of fraud, coercion, misrepresentation and undue influence fails and this point is answered in favour of the defendants.
POINT c):
26.Now the aspect that has to be considered is whether a minor can accept a Gift and in this regard, it is an admitted fact that when Ex.A5 to A8 equivalent to Ex.B1 to B4 were executed in favour of Padma by Pothanna even though the age of Padma was mentioned as 18 years, it is admitted by DW.1 i.e. Padma that she was aged 15 ½ years at the time of execution of the above gift deeds and Ex.A4 which is the bonafide certificate issued by the school showing that Padma was born on 19.10.1985 is not in dispute. The relevant legal provisions are
22 of 28 OS.97-2001 & OS.50-2003
"122. Gift" defined. "Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void." "123. Transfer how effected. For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered."
A minor in law suffers from certain specified disabilities. A minor is not competent to enter into a contract. Section 11 of the Contract
Act states : "11. Who are competent to contract. Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject."
A minor suffers disability from entering into a contract but he is thereby not incapable of receiving property.
23 of 28 OS.97-2001 & OS.50-2003
Section 127 throws light on the question of validity of transfer of property by gift to a minor. It recognises minor's capacity to accept the gift without intervention of guardian, if it is possible, or through him.
Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.
Onerous gift to disqualified person. A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound."
The last part of Section 127, underlined above, clearly indicates that a minor donee, who can be said to be in law incompetent to contract under Section 11 of the Contract Act is, however, competent to accept a non onerous gift. Acceptance of an onerous gift, however, cannot bind the minor. If he accepts the gift during his minority of a property burdened with obligation and on attaining majority does not repudiate but retains it, he would be bound by the obligation attached to it.
Section 127 clearly recognises the competence of a minor to accept the gift. The provision of law is clear and precedents clarify the position. See the decisions of Judicial Commissioner in the case of
24 of 28 OS.97-2001 & OS.50-2003
Firm of Ganeshdas Bhiwaraj vs.Suryabhan [1917 XIII Nagpur Law
Reports 18]; Munni Kunwar vs. Madan Gopal [1916 (XXXVIII) ILR
Allahabad 62 at 69]; and Firm of Geneshdas Bhiwaraj vs.Suryabhan [1917 Vol. 39 Indian Cases 46
The position in law, thus, under the Transfer of Property Act read with the Indian Contract Act is that "the acquisition of property being generally beneficial, a child can take property in any manner whatsoever either under intestacy or by Will or by purchase or gift or other assurance inter vivos, except where it is clearly to his prejudice to do so. A gift intervivos to a child cannot be revoked.
There is a presumption in favour of the validity of a gift of a parent or a grandparent to a child, if it is complete [See Halsbury's Laws of England Vol. 5(2) 4th Edn. Paragraphs 642 & 647]. When a gift is made to a child, generally there is presumption of its acceptance because express acceptance in his case is not possible and only an implied acceptance can be excepted
Section 122 covers the case of a minor donee being a person under legal disability. The section, therefore, employs the expression 'accepted by or on behalf of donee'. As we have seen above, Section 127 clearly indicates competence of a minor donee to accept the gift, if he is capable of so doing. Such acceptance of a gift can be made by himself or on his behalf by someone else.
Where a gift is made in favour of a child of the donor, who is the grandfather of the child, the acceptance of gift can be presumed to have been made to her without any overt act signifying acceptance
25 of 28 OS.97-2001 & OS.50-2003
by the minor. The gift was executed in 2000. It remained in force for all these years during which time the donee had attained majority and had not repudiated the same.
27.In the instant case The donee padma is an educated girl of 15 years of age, capable of understanding and when she is living jointly with the donor. Knowledge of the execution of the gift would have been derived in normal circumstances, by the minor, being beneficiary, sooner or later.
28.Consequently, conclusion has to follow that the gift having been duly accepted in law and thus being complete, it was irrevocable under Section 126 of the Transfer of Property Act.
Section 126 prohibits revocation of a validly executed gift except in circumstances mentioned therein.
29.Therefore, for the aforesaid legal position, the plea of the plaintiffs that Padma being a minor cannot accept the gift is not correct and this point is answered in favour of the defendants.
30.For the reasons stated in points a) to c), the Gift Deeds executed by the defendant No.1 i.e. Pothanna in favour of the 3rd defendant Padma is true and correct and convey title to the 3rd defendant Padma in respect of suit schedule properties and the gift deeds executed by Pothanna in favour of Padma under Ex.A5 to A8 equivalent to Ex.B1 to B4 are not liable to be cancelled and they are not illegal and void. Accordingly, the issues 1 in OS.97/2001 and issues No.1 and 2 in OS.50/2003 are answered.
26 of 28 OS.97-2001 & OS.50-2003
ISSUE NO.2 IN OS.97/2001 AND ISSUE NO.3 AND 4 IN
OS.NO.50/2003:
31.As I have already held that the gift deeds executed by
Pothanna in favour of Padma are valid, for the reasons stated above in points a) to c), the plaintiff in both the cases is not entitled for partition and also declaration of title and for permanent injunction over the suit schedule properties. Accordingly, the issues are answered.
ISSUE NO.5 IN OS.50/2003:
32.With respect to the issue of maintainability of the suit, no provision was put forward by both the parties to show that the suits are not maintainable and hence, the above issue is answered in favour of the plaintiffs.
ISSUE No.3 in OS.97/2001 and issue No.6 in OS.50/2003:
33.In the result, both the suits are dismissed with costs.
Typed to my dictation, corrected and pronounced by me in open Court, on this the 6th day of April, 2018.
Senior Civil Judge,
Armoor.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR
PLAINTIFF: DEFENDANTS:
PW.1 : Argumeedi Narsaiah DW.1: Argumeedi Padma PW.2: Argumeedi MallammaDW.2: Argumeedi Sayanna PW.3: Argumeedi Mohan ReddyDW.3: Eleti Bhumanna PW.4: Nomula Chinna Linganna
27 of 28 OS.97-2001 & OS.50-2003
Exhibits marked
On behalf of
Plaintiff: Ex.A1 : Original Market value certificate issued by Sub Registrar, Armoor in respect of land of Nallur village Sy.No.443/1, 443/2, 445/A, 445/2A, 443/2 Ex.A2: Original Market value certificate issued by Sub Registrar, Armoor in respect of land of Bussapur village Sy.No.75/2, 75/2AA, 128/A, 358, 150/1, 150/2, 100/1, 100/2 Ex.A3: Original Market Value certificate issued by Sub Registrar, Armoor in respect of House No.248 situated at Bussapur village Ex.A4 : Original Bonafide certificate of Argumeedi Padma (defendant No.3 issued by Head Master, ZPPS, Mupkal, Balkonda Mandal Ex.A5: Certified copy of Gift Deed doc.No.151/2000, dt.15.02.2000 in respect of Ac.6.22 3/4th guntas in Sy.No.75/2, 75/5AA, 128/A, 358/A, 150/1, 150/2 and 100/2 at Bussapur village Ex.A6: Certified copy of Gift Deed doc.No.152/2000, dt.15.02.2000 in respect of land admeasuring Ac.402 ½ guntas in Sy.No.443/1, 443/2, 445/A, 445/2A and 445/5A. Ex.A7 : Certified copy of Gift Deed doc.No.2059/2000, dt.10.11.2000 in respect of Open Plot in Sy.No.172/U admeasuring 555 square yards at Bussapur village Ex.A8: Certified copy of Gift Deed doc.No.2060/2000, dt.10.11.2000 in respect of House bearing No.248, at Bussapur village Ex.A9: Certified copy of Pahani for the year 199899 of Bussapur village in respect of Ac.6.22 3/4th guntas in Sy.No.75/2, 75/5AA, 128/A, 358/A, 150/1, 150/2 and 100/2 at Bussapur village in the name of A. Pothanna and A. Rajalingam Ex.A10: Certified copy of Pahani for the year 199899 of Nallur in respect of land admeasuring Ac.402 ½ guntas in Sy.No.443/1, 443/2, 445/A, 445/2A and 445/5A in the name of A. Pothanna. Ex.A11: Certified copy of Pahani for the year 200102 of Nallur, in respect of land admeasuring Ac.402 ½ guntas in Sy.No.443/1, 443/2, 445/A, 445/2A and 445/5A in the name of A. Pothanna. Ex.A12: Certificate issued by Gram Panchayat, Bussapur, dt.18.01.2003 stating that A. Pothanna is also called K. Pothanna Ex.A13 : Pattadar Pass Book, Bussapur in respect of Ac.6.22 3/4th guntas in Sy.No.75/2, 75/5AA, 128/A, 358/A, 150/1, 150/2 and 100/2 at Bussapur village in the name of A.
28 of 28 OS.97-2001 & OS.50-2003
Pothanna Ex.A14: Title Deed pass book, Bussapur in respect of Ac.6.22 3/4th guntas in Sy.No.75/2, 75/5AA, 128/A, 358/A, 150/1, 150/2 and 100/2 at Bussapur village in the name of A. Pothanna Ex.A15:: Pattadar pass book Nallur in respect of land admeasuring Ac.402 ½ guntas in Sy.No.443/1, 443/2, 445/A, 445/2A and 445/5A in the name of A. Pothanna. Ex.A16 : Title Deed pass book, Nallur in respect of land admeasuring Ac.402 ½ guntas in Sy.No.443/1, 443/2, 445/A, 445/2A and 445/5A in the name of A. Pothanna. Ex.A17: Certified copy of plaint in OS.No.97/2001 Ex.A18:: Written statement of D1 in OS.No.97/2001 Ex.A19:: Written statement of D2 and D3 in OS.No.97/2001 Ex.A20:: Certified copy of Pahani for 199495, Bussapur village lands Ex.A21:: Certified copy of Pahanies for 19942005, Nallur village lands
Defendants:
Ex.B1: Certified copy of Gift Deed doc.No.151/2000, dt.15.02.2000 in respect of Ac.6.22 3/4th guntas in Sy.No.75/2, 75/5AA, 128/A, 358/A, 150/1, 150/2 and 100/2 at Bussapur village Ex.B2: Certified copy of Gift Deed doc.No.152/2000, dt.15.02.2000 in respect of land admeasuring Ac.402 ½ guntas in Sy.No.443/1, 443/2, 445/A, 445/2A and 445/5A. Ex.B3: Certified copy of Gift Deed doc.No.2059/2000, dt.10.11.2000 in respect of Open Plot in Sy.No.172/U admeasuring 555 square yards at Bussapur village Ex.B4: Certified copy of Gift Deed doc.No.2060/2000, dt.10.11.2000 in respect of House bearing No.248, at Bussapur village Ex.B5: Certified copy of Pahani for the year 20002001 of Bussapur in respect of Ac.6.22 3/4th guntas in Sy.No.75/2, 75/5AA, 128/A, 358/A, 150/1, 150/2 and 100/2 at Bussapur village in the name of A. Pothanna and A. Rajalingam Ex.B6: Certified copy of Pahani for the year 20012002 of Nallur in respect of land admeasuring Ac.402 ½ guntas in Sy.No.443/1, 443/2, 445/A, 445/2A and 445/5A in the name of A. Padma Ex.B7: Certified copy of Pahaniies of Bussapur village and Nallur village for the years 195556, 1957, 1958 in the name of Koppula Pothanna and A. Pothanna
Senior Civil Judge,
Armoor.