Topic: Hutchegowda vs Smt. Jayamma And Anr

Hutchegowda vs Smt. Jayamma And Anr
Equivalent citations: ILR 1996 KAR 1711, 1996 (2) KarLJ 751 - Bench: H N Tilhari - 5 September, 1995

JUDGMENT

Hari Nath Tilhari, J.

1. This is a plaintiff's Second Appeal from the Judgment and decree dated 11th September, 1984, passed by the Principal Civil Judge, Mandya, in Civil Regular Appeal No. 90/1978 (Mari Hutchamma and another v. Hutchegowda), arising out of Judgment and decree dated 30th September, 1978, passed by Munsiff, Malavalli, in O.S. 138/1975, decreeing the plaintiff's claim for partition and possession of 1/2 share in the schedule suit property, allowing the defendants' appeal and setting aside the Judgment and decree of the Trial Court in O.S.No. 138/1975 and dismissing the plaintiff's suit in entirety.

2. The facts of the case in brief are that the plaintiff - respondent filed this suit giving rise to this appeal for partition and separate possession of 1/2 share of the property in suit, namely, 24 guntas of land bearing Sy.No. 19/1, situate in Ganiganapura Village with the allegations to the effect that the property in suit belonged to 2nd defendant - respondent No. 2 - Marihutchamma and that Marihutchamma was in possession of the suit property. According to the plaintiff's case, 2nd defendant executed a gift deed in May 1968, jointly in favour of the plaintiff - appellant and the 1st defendant -respondent No. 1 - Smt. Jayamma, putting them in joint possession of the suit property. Plaintiff claims to be the joint owner of the property in suit on the basis of the gift deed 20th May 1968 and claimed himself entitled to 1/2 share. Further, he alleged in the plaint that notice for partition had been given, but, defendant No. 1 did not comply with the same, so, the cause of action for filing the suit for partition and separate possession of 1/2 share claimed by the plaintiff - appellant did arise and so, the suit was filed for the above relief.

3. That the defendants - respondents filed the written statement and asserted that the suit in question was not maintainable both on law and on facts. That the defendants denied that plaintiff was in joint possession or in joint legal possession of the suit property, the defendants contended that the plaintiff had agreed to marry 1st defendant and on that score, the 2nd defendant executed the gift deed in favour of plaintiff - appellant and the 1st defendant, but, the gift deed was not yet put into action and before the gift deed could be acted upon, the plaintiff fell out of the terms and did never marry the 1st defendant - respondent No. 1, so, on 18.6.1973, defendant No. 2, cancelled the gift deed dated 20.5.1968, by another deed of cancellation. The 2nd defendant further asserted that plaintiff having come to know of the cancellation of the gift deed as well as of the fact that the marriage of 1st defendant had been performed with another person, plaintiff got a notice issued on 18.4.1976, calling upon the defendant No. 2, to perform the marriage of 1st defendant with the plaintiff and that notice was replied. Further, according to defendants the gift deed had not been acted upon and the condition thereof had not been fullfilled. Therefore, plaintiff had no right to the property and no right had passed on under the gift deed and so, the plaintiff's suit was liable to be dismissed. Other pleas were also taken and defendants claimed exemplary costs.

4. On the basis of the pleadings of the parties, the Trial Court framed the following issues and additional issues:

1. Whether the plaintiff proves that the plaintiff and the 1st defendant are the joint owners and in possession of the suit property by virtue of a registered gift deed dated 22.5.1968, executed by the 2nd defendant in their favour.

2. Whether the plaintiff proves that he is entitled to partition and possession of his half share in the suit property?

3. Whether the suit is bad for non-joinder of necessary party?

4. To what reliefs the parties are entitled?

ADDL. ISSUES

1. Whether the defendants prove that the alleged gift deed dated 20.5.68, is invalid as the same was not completed due to failure of plaintiff in accepting the gift at any time?

2. Whether the plaintiff proves that the suit is hit by the Prevention of Fragmentation and Consolidation of Holdings Act?

5. The Trial Court, that is, the learned Munsiff decreed the plaintiff's suit for partition and separate possession of half share in the suit property. The Trial Court opined that if the gift deed was not acted upon and it was not gifted to the plaintiff, there was no need to have executed a deed of cancellation Ex.D1 and so, the circumstances and the facts are sufficient to imply that the gift was executed by the plaintiff. That the suit is not hit by the provisions of Prevention of Fragmentation and Consolidation of Holdings Act, 1966. The Trial Court further, held that the Ex.P1 - the gift deed does not show that there was any agreement between the parties for suspension and extension of the gift and therefore, Ex.D1 - the cancellation deed did not affect the operation of the gift deed. That the plaintiff is entitled to 1/2 share.

Feeling aggrieved from the Judgment and decree of the Trial Court, the defendant preferred the 1st Civil Regular Appeal in the Court of Principal Civil Judge, Mandya. The learned Civil Judge, after consideration of the evidence held that the Trial Court was not justified in holding the gift deed dated 20.5.1968, had been acted upon. He further held that the Lower Court i.e. Trial Court was not justified in holding that the plaintiff, present appellant had become the owner of the half share in the suit property under the alleged gift deed as well as the Trial Court was not justified in holding that the plaintiff - appellant has been entitled to partition, separate possession of the alleged half share in the suit property. As the gift deed had not been acted upon and until it was acted upon, plaintiff did not get any right in the schedule property, as the plaintiff had failed to marry the 1st defendant and as such, the Appellate Court held that the plaintiff was not entitled to the decree granted by the Trial Court and the decree granted by the Trial Court was illegal and was set aside. Thus, after allowing the appeal and setting aside the decree of Lower (Trial) Court, the Lower Appellate Court dismissed the plaintiff's claim in the suit for partition and separate possession.

Having felt aggrieved from the Judgment and decree of the Lower Appellate Court referred to above, the plaintiff has filed the Second Appeal under Section 100 of the Code of Civil Procedure.

6. On behalf of the learned Counsel for the appellant, it has been urged by Sri G. Venkatachala, that learned Court below miscontrued the deed and erred in holding that the deed did not become operative and was not acted upon. Sri Venkatachala, further submitted that the deed became effective and transfer thereunder became effective on the transfer being effected by registered deed and deeds being handed over and in any case, the plaintiff having attained majority, the transfer deed became effective and he became the full owner along with defendant No. 1. That as such, this is a case in which the deed has been misinterpreted and the finding has wrongly been recorded to the effect that the deed did not become effective. That plaintiff -appellant had issued notice to Marihutchamma - defendant number 2 who did not marry her daughter with plaintiff, instead her daughter had been married earlier to someone else. That as such, the Lower Appellate Court erred in law in setting aside the Trial Court decree.

Shri Venkatachala submitted lastly, that once the deed had become effective and no power of revocation or suspension had been reserved under the deed, the gift deed could not be cancelled.

On behalf of the respondents, appearance has been put by Sri Amarnath, holding brief for Sri M.S. Purshotama Rao, learned Counsel for the respondents. The respondents' Counsel submitted that whether the deed had to be acted or not is a question of fact and the Lower Appellate Court has recorded a finding to the effect that the gift deed has not been acted upon as well as the condition precedent has not been fulfilled or complied with, as the plaintiff betrayed from his promise to marry and did not marry the defendant No. 2's daughter. Further, the learned Counsel submitted that this is a pure finding of fact. He further submitted that the transfer under it did not and could not take place until both conditions prescribed thereunder were fulfilled, namely, the attaining of majority and the marrying of plaintiff by daughter of defendant No. 2, that is, defendant No. 1, unless either of the conditions are fulfilled, the transfer or the conveying of title of the donee did not take place and when transfer had to take place in future under the deed, the gift could have been completed only in the future date, that is, on the fulfillment of the conditions and the transfer of the property under the deed by handing over the gift deed. That as such, really, gift did not become operative to transfer any title in the property to the plaintiff - defendant No. 1. The transfer had to take place in future as the tenor of the document indicates and when that condition was not fulfilled, the deed can be subject not to have become effective or to have been acted upon and therefore, the gift deed remained ineffective and no title did pass on to the donees thereunder. The learned Counsel further submitted that the deed of cancellation that had been executed will not mean that the gift became effective. That the question whether the deed became effective is to be determined in the tight of the terms of the gift deed itself and not by any other external circumstances, particularly, when the terms of the gift deed are clear and express. That lastly, in this view of the matter that, the deed did not become operative, no title did pass on to defendant No. 1 and that the suit filed against defendant No. 2, was not maintainable and was rightly dismissed. No other contention had been advanced by the Counsels for both the parties.

7. I have applied my mind to the contentions of the learned Counsels for both the parties as well as to the material on record including the gift deed Ex.P1 dated 20th May, 1968. The principal question to be determined in this appeal is whether as per terms and desire under the deed of gift and the law relating thereto, did the gift deed operate to transfer the title of the donor in respect of the properties in dispute to the donees. If it did not have the effect of transferring and conveying the title to the properties of the donor to the donee, then, it can be said that no title passed on to the donees, that is, the plaintiff - appellant and defendant - respondent No. 1 and then there was no need for executing the deed of cancellation and even if it was executed, it will not make the deed of gift effective and operative. Before I proceed further, it will be profitable to refer to certain provisions of law in this regard. Section 122 of the Transfer of Property Act defines the gift reads as under:

"122. '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.

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."

The expression "transfer" has been defined in Section 5 of the Transfer of Property Act. Section 5 of the Transfer of Property Act reads as under:

"5. In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and "to transfer property" is to perform such act.

In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals."

8. A reading of the two Sections indicate that gift is mentioned as a transfer of existing movable or immovable property. It is made voluntarily and without consideration by the person called donor in favour of another person called donee and the donee is required to accept it. The requirement of Section is the acceptance of the gift must be made during the lifetime of the donor and while he still keeps on going, but, before the acceptance is done, if the donee dies, the gift becomes void. A perusal of Section 123 will reveal that the gift of an immovable property can be made by a registered instrument signed by or on behalf of the donor and attested by two witnesses, but, a gift of movable property may be effected either by instrument or by simple delivery of the moveable property.

Section 123 of the Transfer of Property Act reads as under:

"123. 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 movable 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."

9. A reading of this Section along with Sections 122 & 5 of the Act, it appears to me that in the matter of gift also, transfer or conveyance of the property may be provided to take place in present or in future, that is, transfer may be effective either in present or in future, as it may be provided under the deed of transfer, that is, the gift deed. The gift deed may also provide that the transfer may be effective on the happening of certain conditions in future as well. That is, in other words, person making the gift may provide that the interest in gifted property will stand conveyed or transferred as per deed either in present or in future. But, as per expression 'transfer' the requirement is of conveying of properly by a living person to another living person. Though, as per Section 5, companies and associations have been included under living persons. Here, in the deed, it has to be looked into what is the intention of the parties, whether the transfer has been effected in present or in future. It is one of the trite principle of law of interpretation of documents, as laid down in the case of STATE OF ORISSA v. TITAGHUR PAPER MILLS COMPANY LIMITED, as under:

"It is a well-settled rule of interpretation that a document must be construed as a whole. This rule is stated in Halsbury's Laws of England, Fourth Edition, Volume 12, Paragraph 1469 at page 602, as follows:

"Instrument construed as a whole.

It is a rule of construction applicable to all written instruments that the instrument must be construed as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause must be so interpreted as to bring them into harmony with the other provisions of the instrument, if that interpretation does no violence to the meaning of which they are naturally susceptible. The best construction of deeds is to make one part of the deed expound the other, and so to make all the parts agree. Effect must, as far as possible, be given to every word and every clause."

Similar have been the observations of their Lordships of the Supreme Court in the case of CHUNCHUN JHA v. EBADAT ALI, ,

where, their Lordships of the Supreme Court had been pleased to lay down as per paragraph-6 thereof:

"Where a document has to be construed, the intention must be gathered, in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used."

10. Keeping these well settled principles of law of interpretation of document, when I peruse the deed of gift, it appears to me from the perusal thereof and the reading thereof that the transfer of title in favour of the donees had to take effect and they were given right to get the possession to enjoy the property under the gift deed only on their attaining major and the plaintiff - appellant getting married with the daughter of 2nd defendant - respondent No. 2.

11. It will be proper to quote the material portions of the deed as per a translation of the deed as submitted by the learned Counsel for both the parties after reading the deed jointly:

"The recitals of this deed are - "since my husband is getting stomach ache often and his body is decaying and to do any agricultural work, etc., there is no strength, due to which reason, to safeguard and to maintain my properties, I will perform the marriage of my second daughter Jayamma, you Hutchegowda, son of Chikkamallegowda have come forward in the presence of witnesses, well-wishers and friends to marry my daughter Kum. Jayamma, at this juncture you have requested me to execute a gift deed in your name and in the name of Kum. Jayamma. On account and in pursuance of the said request, I execute the gift deed of the schedule property to both of you in the name of god. Both of you after attaining the majority, become absolute owners and shall enjoy the property yourself and your successors by paying property tax etc. to the Government.

The above mentioned property, placed with my husband Lingegowda, who is my husband shall maintain me and you two out of the proceeds of the schedule property cannot alienate for any reason to do which he has no right. At present, i have the son by name Hutchegowda, aged about 4 years. You shall enjoy the above mentioned property and live therein as you wish after you get majority and get married, then schedule thereunder."

12. A reading of the deed and the tenor of the document reveals that the gift deed was executed in favour of the plaintiff and 1st defendant subject to the condition that plaintiff after attaining the majority marries with the daughter of the donor and it is provided as per the deed itself that the ownership or the title to the property subject matter of the gift deed is not to pass on to the donees, till both of the donees attain the majority and getting married. It means the transfer was not made in present, but, the transfer of property under the gift deed had to take place in future and at the time when both attained majority and the deed further puts that they shall enjoy the property as full owners and live only after they attained majority and get married. Reading of this deed per se reveals that under the gift deed, the transfer of subject-matter of the gift deed mentioned in the deed was not intended or expressed to pass on to the donees or to be conveyed in present. The deed itself provided that the transfer will be effective on the happening of the future event, namely, the attaining of majority by both as well as on the plaintiff's marrying the daughter of the donor as the marriage was intended as incentive and motive for gift deed being executed. Here, the learned Counsel for the appellant submitted that "I have gifted" meant that immediately donor wanted to transfer the title. I am unable to accept that contention. When the absolute ownership is not to pass on to the donees, but it has to pass on to the donees, only on their attaining the majority and they will be entitled to get the property as owners. The intention of the donor appears to be and the letters of the deed convey the idea that the transfer of the property under the registered deed of gift would take place only on happening of both the conditions. The expression "I have gifted" here, it means that the donor has performed the act of executing the gift deed to transfer the property, whereas the transfer had to take effect in future and therefore, "I have gifted" means, "I have executed the gift deed gifting the property for transfer to take effect in future and not in present." The construction I am putting in accordance with well settled principle of law that no expression used in the deed to be taken to be superfluous. In the case of RAMANA DAYARAM SHETTY v. THE INTERNATIONAL AIRPORT AUTHORITY OF INDIA, , their Lordships observed:

"It is a well settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document "and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use. To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The Court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable."

13. Expression lastly used in the document "you shall enjoy the above mentioned property and live, as you wish after you attained majority and got married." These expressions have to be taken as controlled by the expression used earlier that the intention of the author is that the right and title as an absolute owner of the property should pass on to the donees on the fulfilment of those conditions. That as the document appears to have been executed with the object of the marriage and the effect of it is that donees could get absolute ownership under the deed on the fulfilment of both the conditions, namely, attaining the age of majority by both of them and they getting married and until and unless this had so happened, the property had to remain in possession of the husband of the donor, namely, Lingegowda and he is to make use of it as per deed and its terms. It was provided that the donor intended and provided in the deed that out of the usufructs income of the property that her husband Lingegowda maintain the donor and the two donees as well. This action shows that till the happening of the condition, namely, the attaining the age of majority by the two donees and their getting married, the property had to remain in possession of the husband of the donor, so, the property had not been transferred to the donees, the transfer could take effect only on the donees attaining majority and getting married. That as the marriage did not take place in the present case and the plaintiff did not marry the defendant's daughter for one reason or another, even on which they could get the right to enjoy the property as absolute owners, in my opinion, that deed did not become effective to transfer the title of the property to the plaintiff and defendant No. 1 and the title of the property remained with the donor - respondent No. 2, that is, defendant - respondent No. 2, namely, Smt. Mari - Hutchama. In my opinion, the learned Lower Appellate Court was correct in taking that mere execution of the deed of cancellation at subsequent stage will not lead to the conclusion that the gift deed had been acted upon. The deed cancelling the gift deed might have been executed as a matter of mere precaution or safety protection, but, from that presumption cannot be drawn that the gift deed had been acted upon or it became operative. As I mentioned earlier, it has to be looked as a gift deed itself when it had become operative in the light of the provisions of the Transfer of Property Act. That when it was proved that transfer is to take place only on the happening of certain events or things, namely, the attaining of majority by both the donees and their marriage and when this did not happen the deed did not become effective to transfer any title or interest in the property either in favour of the plaintiff-appellant or defendant-respondent-Kum. Jayamma When the property did not pass on to both under gift deed and the ownership of the property continued with the donor, no title did pass on to either the plaintiff or to Hutchamma. That as such, the suit of the plaintiff-appellant was completely misconceived and was rightly dismissed by the Lower Appellate Court after setting aside Trial Court's decree.

14. Thus, considered, I am of the opinion that the present Second Appeal is devoid of merits and as such, it is hereby dismissed with costs.