Judgment:
1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH R DATED THIS THE3D DAY OF APRIL, 2018 BEFORE THE HON’BLE MR. JUSTICE B.VEERAPPA RSA.NO.7039/2009 BETWEEN: Smt. Padmavati Bai W/o. Gunde Rao Deshpande/Nadgir Age:
78. years, Occ: Household/Agriculture R/o. M.Bommanahalli Tq: Shorapur, Dist: Yadagiri Since deceased through LR.
1. Vanamala Bai @ Laxmi Bai W/o Bindurao Kulkarni Age: Major, Occ: Agriculture R/o. M.Bommanahalli Tq: Shorapur, Dist: Yadagiri Since deceased through LRs. a. Suryakant S/o Bindurao Age:
41. years, Occ: Government Servant and Agriculture (son) b. Tunga Bai D/o Bindurao Age:
43. years, Occ: Household/ Agriculture (daughter) c. Geetabai D/o Bindurao Age:
36. years, Occ: Household/ Agriculture (daughter) 2 d. Seetabai D/o Bindurao Age:
34. years, Occ: Household/ Agriculture (daughter) All (‘a’ to ‘d’) are R/at M.Bommanahalli Tq: Shorapur, Dist: Yadagiri-585216 Presently residint at Kalaburagi-585102 (By Sri Sandeep Vijayakumar, Advocate) AND: Ushabai W/o Raghvendra Rao Nadigar Age:
56. years, Occ: Household R/o.,C/o., R.N.Rao Advocate Santosh Colony, Near Varghese Building, Jewargi Road Kalaburagi-585102 ... Appellants ... Respondent This RSA is filed under Section 100 of CPC praying to set aside the judgment and decree passed by the Hon’ble Civil Judge (Senior Division) at Shorapur in R.A.No.34/2008 dated 03.11.2008 and to set aside the judgment and decree passed by the Hon’ble Civil Judge (Junior Division) at Shorapur in O.S.No.17/1997 dated 19.04.2008 by allowing this regular second appeal and grant such other order/relief as this Court may be pleased to grant in the facts and circumstances of the case. This appeal coming on for Admission this day, the Court delivered the following:
3.
JUDGMENTThe unsuccessful plaintiff filed the present regular second appeal against the judgment and decree 03.11.2008 made in R.A.No.34/2008 on the file of the Civil Judge (Sr.Dn.), Shorapur dismissing the appeal filed by the plaintiff confirming the judgment and decree dated 19.04.2008 made in O.S.No.17/1997 on the file of the Civil Judge (Jr.Dn.), Shorapur dismissing the suit of the plaintiff for cancellation of gift deed, declaration, rectification of ROR and injunction in respect of the suit schedule properties morefully described in the schedule to the plaint.
2. It is the case of the plaintiff that she is the owner of the suit properties bearing Sy.No.115(a) measuring 11 acres 2 guntas situated at Muneer Bommanhalli village, Shorapur taluk, Sy.No.9(a) measuring 11 acres 2 guntas known as ‘Gobbar Hola’ situated at Yaktapur village, Shorapur taluk and 4 Sy.No.10(b) measuring 9 acres 16 guntas known as ‘Murmuli Hola’ situated at Yaktapur village, Shorapur taluk, the defendant was not related to her in any manner whatsoever and the defendant having no concern with the plaintiff got executed the registered gift deed in her favour on 20.09.1975 from the plaintiff in respect of the suit properties. It was further contended that there was absolutely no consideration of love and affection between the plaintiff and the defendant so as to execute a gift deed by the plaintiff in favour of the defendant. Therefore, in the absence of any love and affection between the plaintiff and the defendant that the alleged registered gift deed dated 20.09.1975 does not confer any right, title or interest to the defendant over the suit properties. It was further contended that the defendant got the suit properties mutated in her name on the strength of the said false and fictitious gift deed with the collusion and connivance of the revenue officials in the year 1981-82 without service of any 5 notice on the plaintiff as per the procedure known to law. Therefore, plaintiff has filed suit for the relief as sought for.
3. The defendant has filed written statement denying averments made in the plaint. Inter-aliea contended that the averments made by the plaintiff that defendant is no way related to her is totally false, since the father-in-law of the defendant viz., Sri.Narayan Rao and the husband of the plaintiff Sri.Gunderao were cousin brothers. The family is known as not only Nadiger, but also Deshpande and Jahagirdar. The plaintiff is issue-less, whereas the father-in-law of the defendant survived by his five sons one of whom is the husband of the defendant. Both Sri.Narayan Rao and Gunderao had their landed properties at Bommanhalli, Yaktapur and other places. The late husband of the plaintiff intended to adopt the husband of the defendant as his adopted son, but the father-in-law of the 6 defendant refused to give the husband of the defendant in adoption to the husband of the plaintiff. Therefore, in view of the existence of such close relation between the plaintiff and the defendant, the allegation made by the plaintiff in the plaint that the plaintiff and the defendant are no way related to each other is totally false.
4. It was further contended that on 29.09.1975 the plaintiff on her own volition executed a registered gift deed in favour of the defendant in respect of the suit properties as per the wishes of her late husband. Therefore, the question of the absence of love and affection for the plaintiff to execute a gift deed in favour of the defendant is totally false. On the basis of the said registered gift deed, the defendant got the suit properties mutated in her name as per law. Therefore, the question of collusion or connivance with the revenue officials in mutation of the suit properties in favour of 7 the defendant does not arise. It was further contended that Smt.Laxmi Bai w/o deceased Bindu Rao and her son have filed the present false suit against the defendant challenging the legality of the registered gift deed dated 20.09.1975 without the knowledge of the plaintiff herself. Since, the said Smt.Laxmi Bai and her son are intending to knock of the suit properties. Hence, the allegations made in the plaint are all denied as false. Therefore, sought for dismissal of the suit.
5. On the basis of the above pleadings, the Trial Court framed the following issues:
1. Whether plaintiff proves that, the execution of the gift deed bearing document No.25/1975 dated 20.09.1975 in favour of the defendant in respect of suit property, it becomes null and void?. 8 2. Whether plaintiff proves that, the name of the defendant entered in record of rights in the year 1981-82, it will not confirm any right of ownership and possession of the suit properties of the defendant?.
3. Whether plaintiff proves that, she is in lawful possession and enjoyment of the suit schedule properties?.
4. Whether plaintiff proves that, this Court have jurisdiction to direction the revenue authorities to rectification of ROR?.
5. Whether defendant proves the suit is barred by limitation?.
6. Whether plaintiff proves that, she is entitled relief as prayed for?.
7. What order or decree?.
6. In order to establish the case of the plaintiff, the plaintiff has examined seven witnesses as PW.1 to 7 and got marked 75 documents as Ex.P.1 to Ex.P.75. On the other hand defendant examined as DW.1 and got marked document as Ex.D.1. 9 7. The trial Court considering both oral and documentary evidence on record, recorded a finding that plaintiff failed to prove that the execution of the gift deed dated 20.09.1975 in favour of the defendant in respect of suit properties is null and void. Further plaintiff failed to prove that the name of the defendant entered in record of rights in the year 1981-82, it will not confirm any right of ownership and possession of the suit properties of the defendant. Further plaintiff failed to prove that she is in lawful possession and enjoyment of the suit schedule properties, as on the date of the suit. The Trial Court further recorded a finding that plaintiff failed to prove that the Trial Court has jurisdiction to direct the revenue authorities to rectify the record of rights. The Defendant proved that the suit is barred by limitation. The plaintiff is not entitled the relief as prayed for. Accordingly, by impugned judgment and decree dated 19.04.2008 suit came to be dismissed with costs. 10 8. Being aggrieved by the judgment and decree passed by the Trial Court, the Legal Representatives of plaintiff’s have filed R.A.No.34/2008 before Civil Judge (Sr. Dn) at Shorapur, who after hearing both the parties by impugned judgment and decree dated 03.11.2008 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court.
9. Being aggrieved by the concurrent findings of fact recorded by the Courts below did not deter the appellant from preferring the present regular second appeal as last ditch attempt 10. I have heard the learned counsel for the parties to the lis.
11. Sri.Sandeep Vijayakumar, learned counsel for the appellants vehemently contended that the impugned judgment and decree passed by the Courts below dismissing the suit of the plaintiff for cancellation 11 of gift deed and declaration/rectification of record of rights and for injunction is erroneous and contrary to the material on record. He would further contend that both Courts below failed to notice that for the execution of gift deed consideration of the love and affection is essential under the provisions of Section 122 of Transfer of Property Act. In the absence of the same, the very document gift deed is invalid. He would further contend that both the Courts below failed to notice that the defendant obtained gift deed from the plaintiff without any consideration of love and affection, by playing fraud. Therefore, Courts below were not justified in dismissing the suit of the plaintiff.
12. He further contended that both the Courts below erred in holding that suit filed by the plaintiff is barred by limitation ignoring the fact that the from the date of knowledge and cause of action first accrues, the suit was filed within the time as contemplated. On that 12 ground alone the impugned judgment and decree passed by the Courts below cannot be sustained. He would further contend that both the Courts below have proceeded to dismiss the suit without considering the oral and documentary evidence on record. The impugned judgment and decree passed by Courts below are liable to be set-aside for non-consideration of both oral and documentary evidence on record. Therefore, he sought to set-aside the impugned judgment and decree passed by the Courts below by allowing present appeal.
13. I have given my anxious consideration to the arguments advanced by the learned counsel for the appellant and perused the material on record, including original records carefully.
14. It is specific case of the plaintiff that she is the owner of suit schedule properties. The defendant is not related to her. But plaintiff has executed gift deed in favour of the defendant on 20.09.1975 in respect of the 13 suit schedule properties without consideration of the love and affection between the plaintiff and defendant. By virtue of gift deed the revenue authorities in collusion with defendant, have entered the revenue records in favour of the defendant in the year 1981-82 onwards. Therefore, same has to be rectified.
15. The defendant filed written statement denying the averments made in the plaint, except the registered gift deed executed by the plaintiff in favour of the defendant on 20.09.1975 out of love and affection. The defendant contended that the plaintiff and defendant are relatives. Out of love and affection gift deed was executed. In the gift deed it is specifically stated that defendant has served the plaintiff with at most love and affection. Therefore, on the basis of love and affection the gift deed came to be executed. 14 16. In order to substantiate the case of the plaintiff, one of the son of plaintiff examined as PW.1 and produced Ex.P.1 to 75. In order to disprove the case of the plaintiff, the defendant examined her husband as DW.1.
17. The material on record clearly depicts that plaintiff has executed registered gift deed in favour of the defendant on 20.09.1975 is not in dispute. The only dispute is that plaintiff has executed gift deed without there being any consideration of love and affection between the plaintiff and defendant. The PW.1 stated on oath that he learnt that execution of gift deed as per Ex.P.1 from the deceased plaintiff-Padmavtibai herself. He has no personal knowledge about the execution of the registered gift deed by the deceased plaintiff in favour of the defendant. Therefore, question of deposing by PW.1 that there was no consideration of love and affection for the deceased plaintiff to execute the gift 15 deed dated 20.09.1975 in favour of the defendant does not arise. The plaint averments clearly depicts that only contention urged by the plaintiff to challenge the validity of the gift deed Ex.P.1 is that there was no consideration of love and affection between the plaintiff and defendant.
18. In view of the contentions urged by the learned counsel for the appellant with vehemence, it is relevant to consider the definition of gift deed under the provisions of Section 122 of the Transfer of Property Act, which reads as under; “Gift” defined, - “Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called 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.” 16 On careful perusal of the provisions of Section 122 of Transfer of Property Act, makes it clear that in order to transfer of any movable or immovable properties by way of gift the requirement of any consideration shall not be existing between the donor and the donee. The gift is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee. Accepted by or on behalf of the donee and such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
19. Admittedly, in the present case the original plaintiff has gifted the suit schedule properties and defendant has accepted. There is no dispute in respect of the same. Therefore, contention of the plaintiff that there was no consideration of love and affection between the plaintiff and defendant to execute the registered gift 17 deed by plaintiff in favour of defendant as per Ex.P.1 cannot be accepted. It is not the case of the plaintiff that, gift deed obtained by the defendant by playing fraud or coercion. Absolutely there is no whisper in the entire pleadings pleaded by the plaintiff in the plaint about the exercise of any fraud or coercion by the defendant to get the gift deed Ex.P.1 executed by plaintiff in favour of the defendant. It is not the case of the plaintiff that gift deed was made with certain conditions and any of the one conditions has been violated by the defendant and the condition of revocation has been retained under the registered gift deed.
20. The material on record clearly depicts that the plaintiff has not denied the execution of registered gift deed on 20.09.1975 in favour of the defendant by her. Therefore, question of examining the attesting witnesses to the gift deed Ex.P.1 by the defendant to prove the execution of the said gift deed does not arise. 18 The plaintiff has challenged the legality of the gift deed Ex.P.1 solely on the ground that there was no consideration of love and affection between herself and the defendant. But the question of existence of any love and affection between the plaintiff and the defendant is not the criteria to hold the gift deed Ex.P.1 as invalid. In view of provisions of Section 122 of Transfer of Property Act, when two essential characteristics of a valid Gift are (1) the gift must be voluntary (2) it should be without consideration. The said principles of law aptly applicable to the facts and circumstances of the present case.
21. It is also not in dispute that in pursuance of the said registered gift deed executed by the plaintiff in favour of the defendant on 20.09.1975, the defendant got mutated her name to the suit properties in the year 1981-82. The defendant continued till the date of filing of the suit and till today. Admittedly, plaintiff has not 19 challenged the said revenue entries made. The Ex.P.3 to 11, 12 and 13 record of rights and mutation entries in the name of defendant on the basis of registered gift deed. The very averments made in the plaint it is clear that plaintiff was aware of the fact that the execution of gift deed dated 20.09.1975 itself and there cannot be any direction to the revenue authorities to change the entries unless gift is declared as invalid.
22. It is also not in dispute that registered gift deed executed by the plaintiff in favour of the defendant on 20.09.1975 and suit was filed on 30.12.1996 after lapse of more than two decades (21 years). The cancellation of gift deed or any other declaration has to be made within three years, when right to sue first accrues as contemplated under the provisions of Article 58 of the Limitation Act. The plaintiff has not challenged the gift deed, nor revenue entries made thereon more than 21 years. It clearly depicts that plaintiff executed 20 the gift deed in favour of the defendant out of love and affection only after 21 years, now it is contended that gift deed was made without consideration of the love and affection cannot be accepted.
23. Considering the provisions of Section 122 of Transfer of Property Act, the Hon’ble Supreme Court in the case of Ku. Sonia Bhatia /vs/ State of U.P. and others, reported in AIR1981SC1274held as under; Para No.16. It is, therefore, clear from the statement made in this book that the concept of gift is diametrically opposed to the presence of any consideration or compensation. A gift has aptly been described as a gratuity and an act of generosity and stress has been laid on the fact that if there is any consideration then the transaction ceases to be a gift. Before closing this aspect of the matter we might also refer to the definition of consideration given in various books. Black’s Law Dictionary defines ‘consideration’ thus :
21. “Consideration is not to be confounded with motive, Consideration means something which is of value in the eye of the law, moving from the plaintiff, either of benefit to the plaintiff or of detriment to the defendant.” This is the view expressed in 2 QB851 Similarly, at p. 61 in the same volume, the words adequate consideration’ have been defined thus :- “ ‘One which is equal, or reasonably proportioned to the value of that for which is it given.’ Fair and reasonable under circumstances.” (Emphasis (here-into ‘ ’) ours) Para No.20. From a conspectus, therefore, of the definitions contained in the dictionaries and the books regarding a gift or an adequate consideration, the in escapable conclusion that follows is that ‘consideration’ means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee, similarly, when the word ‘consideration’ is qualified by the word 22 ‘adequate’. it makes consideration stronger so as to make it sufficient and valuable having regard to the facts, circumstances and necessities of the case. It has also been seen from the discussions of the various authorities mentioned above that a gift is undoubtedly a transfer which does not contain any element of consideration in any shape or form in fact, where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour. It has been rightly pointed out in one of the books referred to above that we should not try to confuse the motive or the purpose of making a gift with the consideration which is the subject matter of the gift. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a gift but these filial considerations cannot be called or held to be legal considerations as understood by law. It is manifest, therefore, that the passing of monetary consideration is completely foreign to the concept of a gift having regard to the nature, character and the 23 circumstances under which such a transfer takes place. Further more, when the legislature has used the word ‘transfer’ it at once invokes the provisions of the Transfer of Property Act. Under Section 122 of the Transfer of Property Act, gift is defined thus : “Gift’ is the transfer of certain existing moveable or immovable 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.” Para No.22. We now deal with the second limb of the argument of Mr. Kacker that as in the case of a gift there is no question of a consideration, we should hold that the 3rd part of clause (b) of the proviso 24 which contains the words ‘for adequate consideration’ is inapplicable and ignore the same. This argument is diametrically opposed to the well-known rule of interpretation that courts in interpreting statutes must not interpolate or legislate. It is well settled that a legislature does not waste words without any intention, and every word that is used by the legislature must be given its due import and significance. In the instant case, the words ‘adequate consideration’ have undoubtedly a well recognized concept and, as indicated above, the intention was to exclude any transaction which is not for adequate consideration. Not to speak of a gift but even if a sale is found to be bona fide but the consideration is inadequate, for instance where the property has been sold for a nominal price or below the market value, the transaction would fall beyond the protection given by clause (b) of the proviso. Our attention has been drawn by Mr. Kacker to a single Bench decision by Banerji. J.
Fatesh Singh v. State of Uttar Pradesh. (1977) 3 A)) LR690: (AIR1978NOC101 (A))) where the 25 learned Judge had taken the view that the definition of a transfer given in clause (b) of the proviso included a gift because a gift also could not be said to be transfer without consideration even though consideration may not be weighed in terms of money. The learned Judge in taking this view had obviously fallen into error of confusing what was the motive or the reason for the gift as being a legal consideration of it. It has already been pointed out that in considering the nature of a gift one should not confuse the motive, which may be love and affection, or spiritual benefit, with valuable consideration which has to be either in the shape of a money compensation or equivalent of the same. It is true that in every gift the donor has a particular motive and objective or a reason to part with his property in favour of the donee, the reason being, in some cases, love and affection where the gift is in favour of a relation or friend, or spiritual benefit in other cases but this will be the immediate motive for making the gift and cannot be regarded as a consideration for the gift 26 because the very concept of gift is based on a purely gratuitous consideration. The Division Bench of the Allahabad High Court in the case referred to above has rightly overruled the view of the Banerji, J., on this count. In fact the matter has been considered by other High Courts who have consistently taken the view that a gift is a transfer without consideration, love and affection being only the motive for making the transfer. In Debi Saran Koiri v. Nandalal Chubey AIR1929Pat 591 while elucidating the nature and character of a gift Sahay. J.
made the following observations; “Now, Section 122, T.P. Act, defines “gift” as a transfer of certain existing moveable or immovable 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”. “To my mind consideration in Section 122, T.P. Act, means valuable consideration and not consideration in the shape of 27 conferring spiritual benefit to the donor. If valuable consideration be not the consideration referred to in Section 122, I fail to understand how any gift can be made without consideration at all. There must be some sort of consideration in every gift, for instance, a consideration of an expectation of spiritual or moral benefit or consideration of love and affection. ‘Such considerations are not considerations contemplated in Sec.
122. The consideration there contemplated must be valuable consideration, that is consideration either of money or of money’s worth’”.
24. In view of the provisions of Order VI Rule 4 of Code of Civil Procedure “in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading”. 28 25. This Court considering the provisions of VI Rule 4 of CPC in the case of K.S.Mariyappa /vs/ K.R.Siddalinga Setty, reported in AIR1989KAR425held that, “requirement – particulars necessary in pleading to enable opposite party to meet the case – Bald and general allegation cannot lead to an issue, not being plea of fraud or collusion – Material particulars such as when, how, who in what manner and for what purpose fraud practiced and who colluded with whom, in what manner, with what object must be averred – After long lapse of time, clear pleadings and proof as to fraud and collusion absent, not possible to hold allotment of larger share in pervious suit result of fraud and collusion”.
26. Admittedly, in the present case there is no pleading for fraud or collusion and suit filed more than two decades only on the ground that gift deed executed 29 without consideration of the love and affection in the absence of any pleadings as contemplated. Hence, the case of the plaintiff cannot be accepted.
27. It is relevant to note that how the transfer effected under the provisions of Section 123 of Transfer of Property Act, which reads as under :- Section-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 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. 30 On careful reading of the said provisions makes it clear that 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.
28. The Hon’ble Supreme Court considering the provisions of Section 123 of T.P. Act in the case of Surendra Kumar /vs/ Nathulal reported in AIR2001S.C. 2040 at Para No.12 held as under; 12. Section 123 of the Transfer of Property Act, 1882 provides; “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. 31 In the present case there exists a registered deed of gift signed by the donor and attested by two witnesses. Therefore, the requirement of the law as incorporated in the Section is satisfied. Section 68 of the Indian Evidence Act, 1872 makes a provision regarding proof of execution of a document required by law to be attested. Therein it is laid down that: “If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. If there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence”. The proviso to the section, which is relevant for the present purpose, reads; “Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 32 1908 (16 of 1908), unless its execution by person by whom it purports to have been executed is specifically denied”. (Emphasis supplied). On a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not specifically denied its execution. In the present case, the donor Chand Bai has specifically admitted execution of the deed of gift in favour of the appellant. Therefore, the lower appellate Court was in error in holding that the deed of gift has not been duly proved since one of the witness. Indeed the certified copy of the registered deed of gift was produced in the trial Court along with an application filed by the plaintiff in the previous suit. Suit No.69/70 (4/76) that the same may be called for. The trial Court, being satisfied about the reason for non-production of the original document, marked the certified copy of the deed of gift as Exhibit-3. 33 29. Admittedly in the present case, the registered gift deed Ex.P.1 signed by the donor/plaintiff, attested by witnesses and donor specifically admitted the execution of the gift deed in favour of the defendant. The registered gift deed can be said to be duly proved even if one of the attesting witnesses is not called for proving its execution. Since execution of registered gift deed Ex.P.1 is not denied by the plaintiff, question of proving would not arise.
30. As already stated above, the suit was filed after lapse of two decades (21 years) from the date of execution of the gift deed clearly barred by limitation under the provisions of Article 58 of the Limitation Act. This court while considering the provisions of Article 58 of Limitation Act in the case of ILR1989KAR993– Dada Jinnappa Khot vs. Shivalingappa Ganapati Bellanki held as under; 34 “5. That application came to be disposed off by the Tahsildar on 04.05.1970 as per order found in Ex.P3. The Tahsildar after duly hearing the plaintiff and the defendant took the view that the encroachment complained of by the defendant was true and it had, therefore, to be vacated. This finding is recorded despite the opposition mounted by the plaintiff asserting that he had not encroached on any portion of defendant’s land and he was in possession of his own land. In short, he claimed title to the disputed area claiming it to be his own property. Although Ex.P3 came to be made on 04.05.1970, there can be little doubt that on the presentation of an application by the defendant to the revenue authorities complaining of encroachment of his land by the plaintiff and asking for restoration of possession to the suit property. In other words, the defendant claiming to be the owner of the suit property had accused the plaintiff of having encroached upon it unauthorisedly and made it clear that he was, therefore, seeking the assistance of the 35 revenue authorities for being put back into possession and in that process clearly putforward his right to the suit property denying thereby the right, title and interest of the plaintiff if any in the suit property. at any rate when he branded possession of the suit property by plaintiff as that of a trespasser who had encroached illegitimately on the defendant’s property, it would become evident to any on that the defendant was not merely asserting title to the property but was also denying the title of the plaintiff to the same when he went on to characterize the possession of the plaintiff as that of an encroacher or an unlawful intruder. While there can be no doubt that when the defendant’s claim to the suit property and ordering possession thereof to be restored to him, without more the plaintiff’s right to the suit property had been infringed upon and consequently the case of action to assail it before Court had certainly arisen for the but the question is as to when such cause had arisen for the first time. I would have no hesitation in saying that it arose the moment 36 the defendant filed a petition to the Tahsildar seeking to recover possession of the suit property from the plaintiff claiming the same to be his and denying the plaintiff’s rights, title and interest in the property and his right to be in possession thereof. Under Article 58 of the Limitation Act the time to assert and to rise up against invasion of one’s occurs when the aberration to the plaintiff’s right or the slighting of the plaintiff’s right occurs for the first time. 6…..
7. I am to notice that the expression “where the right to sue first accrues” appearing in Article 58 came to be included in the Limitation Act of 1964 in place of Article 120 of the old Act of 1908. In Article 120 of the old Act, which was the corresponding Article to Article 58 of the new Act, the language used was quite different. In that the language employed in the old Act read, “when the right to sue accrues.” It may well be on the basis of the language of the provision as it stood prior to the Amending Act 37 of 1964, it was possible to contend that whenever the right to sue accrued, a plaintiff who was the repository of such a right could treat it as the commencement of the period of limitation. But under the new Act with the change in the language of the statute the same having become more specific and precise with the inclusion of the words “when right to sue first accrues”, there can be little doubt that although a cause of action may have arisen even on subsequent occasions as well, what is material for the purpose of computing the period of limitation under Article 58 is the date when the right to sue first accrued.
8. The Supreme Court has adverted to the question as to what type of threat to a plaintiff’s title can signal the running of time against him in case of successive denials. In the case of RUKHMABAI vs. LAXMINARAYAN* Supreme Court made the following enunciation: “Whether there are successive invasions or denials of a right, the 38 right to sue under Article 120 accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however, ineffective and innocuous it may be, cannot be considered to be clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.” The ratio of the decision referred to supra although rendered in a different context makes it clear that the right to sue can be treated as having arisen when there was a clear or unequivocal threat proceeding from the opponent and that a threat which clearly invades or jeopardizes the plaintiff’s right can be taken as giving rise to a compulsory cause of action to take steps for smothering such a threat.” 39 31. In view of the aforesaid circumstances, the trial Court held that the plaintiff failed to prove the execution of the gift deed dated 29.09.1975 in favour of the defendant in respect of suit property becomes null and void and further failed to prove the record of rights for the year 1981-82 will not confirm of ownership and possession of suit property by the defendant and further failed to prove that she is in lawful possession and enjoyment of suit property as on the date of suit and failed to prove that the Court has jurisdiction to direct the revenue authorities for rectification of ROR and further the defendant has failed to prove the suit is barred by limitation. Accordingly, by the judgment and decree dated 19.04.2008 dismissed the suit.
32. On the appeal filed by the LRs of plaintiff, the lower appellate Court after framing the issues as contemplated under Order 41 Rule 31 of CPC and after considering the entire material on record, has recorded 40 a finding that the recitals made in Ex.P.1 clearly indicates how the plaintiff and defendants were related to each other. PW.1 one of the sons of original plaintiff, in the cross-examination has stated that one Narayanrao was the father-in law of the defendant. But clearly admitted that Narayanrao and Gundurao, the husband of the plaintiff were brothers. It is the specific contention of the defendant Gundurao and Narayanrao were cousins. The admission of PW.1 clearly depicts that plaintiff and defendant are related to each other. Moreover, Ex.P.1 gift deed indicates the relationship between the plaintiff and defendant. Therefore, it is hard to believe that the plaintiff and defendant are not related to each other.
33. The lower appellate court further recorded a finding that the recitals of Ex.P.1 registered gift deed specifically mentions that defendant served the plaintiff with utmost love and affection before execution of gift deed. The love and affection itself is sufficient to 41 indicate that the gift deed executed by the plaintiff is valid and the plaintiff has not made out any case to disbelieve Ex.P.1. Ex.P.2 to P.13 RORs showing the name of original plaintiff till 1980-81 and the name of the defendant was shown as owner and possession from 1981, neither the plaintiff nor legal representatives of the plaintiff have challenged the mutation in the name of defendant in the records of suit land i.e., Ex.P.12 mutation dated 27.03.1981. It is true that there was a delay to enter the name of the defendant in the record of rights in respect of suit property itself is not sufficient to believe the story of plaintiff. Ex.P.21 to P.30 reveals that PW.1 admitted that his father and plaintiff were aware of the registered gift deed. Why the father of the plaintiff did not ask his sister plaintiff to take legal action against the defendant in respect of suit land at least in the year 1982. The silence on the part of the plaintiff clearly depicts that the plaintiff executed valid gift deed in respect of suit property. Therefore, the 42 lower appellate Court held that the judgment and decree passed by the Court below does not call for interference and the judgment was made based on the oral and documentary evidence on record.
34. The appellate Court further recorded a finding that DW.1 who is the husband and power of attorney holder of the defendant No.1 categorically stated on oath that his grand-father Bhimrao and Hanmanthrao, father-in-law of the plaintiff were brothers and plaintiff gifted the suit land in favour of the defendant out of love and affection. The said statement made on oath in chief is not at all challenged in the cross-examination by the plaintiff. Therefore, the lower appellate Court dismissed the appeal. Therefore, the contention of the learned counsel Sri.Sandeep Vijayakumar that the gift deed Ex.P.1 was not made for consideration of love and affection and suit was filed within time from the date of knowledge cannot be accepted. 43 35. Both the Courts below considering both oral and documentary evidence on record and especially the recitals in the gift deed concurrently held that the plaintiff failed to prove the registered gift deed dated 20.09.1975 is null and void and defendant will not confirm any right of ownership and possession over the suit property and the plaintiff failed to prove his lawful possession as on the date of suit and the suit is clearly barred by limitation. Such a finding of fact recorded by the Court below cannot be interfered with by this Court exercising the powers under the provisions of Section 100 of Code of Civil Procedure as there are no substantial questions of law involved in the present appeal. Accordingly, appeal is dismissed at the stage of admission without reference to the respondent. Ordered accordingly. Srt/KJJ/NSP Ct: VK Sd/- JUDGE