Judgment:
A. Pasayat, J.
1. He who says what is mine is yours and what is yous is yours is a saint. He says, what is your is mine and what is mine is mine is a wicked man', says Babylanian Telmud (Aboth V). The principal characters involved in this unfortunate family dispute are brother and sister, giving a lie to the saying blood in thicker than water. Bone of controversy revolves round a building standing on Ac 0.64 decimals of land claimed to have been gifted by Sita Devi, mother of Bimelendu (plaintiff No. I), Sanjukta and Sakuntala (defendant Nos. 1 and 2) and mother-in-law of Niharika (plaintiff No. 2) who are respondent No. 1, appellant, respondent No. 3 and respondent No. 2 respectively in this appeal.
2. A brief reference to the factual position would suffice. Suit property described in Schedule B of the plaint originally belonged to one Ganesh Chandra who executed a registered permanent lease deed dated 11-4-1944 in favour of aforesaid Sita Devi in respect of the same, along with other properties forming a compact book measuring Ac.O.238 decimals. At the time of execution of the said lease deed, no building was standing on any part of the property. On 24-12-1962 she executed a gift deed in favour of her elder daughter Sanjukta (defendant No. 1). By that time she had constructed a building in 1959-60 in the leasehold property in her possession by availing loan. On 20-11-1978 Sita Devi executed a registered gift deed in favour of her younger daughter Sakuntala (pro forma defendant No. 2) in respect of Ac. O.081 decimals. In the said registered deed of gift, the donor declared that she obtained the property by the aforesaid registered deed of laese and on payment of the premium and by paying rent to the ex-landlord and to the Government after vesting of the property in question and that she exercised ownership over the property. It was further indicated therein that to meet her legal necessity, she had sold Ac.O.090 decimals from the leasehold property and remaining land measuring Ac.O.148 decimals stood recorded in her name and she was paying rent. She constructed a two storied building on the southern side of the plot of land. Another single stoned building stood on the northern side. By the gift deed in question, Sita Devi gifted the double storied building in favour of pro forma defendant No. 2. Plaintiffs filed the suit for a declaration that defendant No. 1 is not the exclusive owner of the suit property and the same is the joint property of the plaintiffs and defendant Nos. 1 and 2, and for a further declaration that the order dated 17-6-1992 passed by the Commissioner of Settlement is illegal, without jurisdiction and not binding on the plaintiffs and for issuance of direction to the Collector for necessary Correction of the settlement record of rights. Their case in a nutshell is that gift deed on which defendant No. 1's case is founded was not acted upon, and in any event did not relate to the suit property. Without properly appreciating the factual and legal aspects, settlement authorities directed recording the properties in defendant No. 1's name. In any event, recording was done on the basis of misrepresentation, and neither conferred any title on defendant No. 1 nor destroyed it so far as plaintiffs are concerned.
3. Only defendant No. 1 contested the suit and filed written statement. Her stand as reflected in the written statement was to the effect that recital in the registered gift deed dated 19-11-1978 in favour of defendant No. 2 to the effect that she had kept the building in question for her own residence is a collusive act and is of no avail to the plaintiffs. Because late Sita Devi was not conversant with English language in which the document was ascribed, such a recital in the document being contrary and not in conformity with the gift deed in favour of defendant No. 1 dated 14-12-1962 (Ext. E), there is nothing to effect title of defendant No. 1 as the same has already been conveyed in her favour. When the record of rights was published in 1991, she was taken by surprise to find that the properties gifted to her have been recorded jointly in her name and in the name of the plaintiffs. She filed R. P. No. 830 of 1991 before the Commissioner of Land Records and Settlement which has been decided against the plaintiffs on contest. As such, she has stressed that the finding of the Commissioner is binding on the plaintiffs, and pro forma defendant No. 2. During her stay at Bhubaneswar she had entrusted plaintiff No. 1 to look after the suit house at Cuttack. Unfortunately, with a view to grab the property, plaintiff No. 1 gave her impression that he was taking steps for mutation of the house in her name. Being her own brother, she had implicit faith and trust and never suspected/motives of her brother. She was paying money to plaintiff No. 1 for maintenence of house, and payment of taxes etc. When the execution of registered gift deed (Ext. E) by the previous admitted owner in her favour is not challenged, exclusive title of the suit properly had passed to her. It has been rightly held by the Commissioner in the settlement case that it has to be recorded in her favour. Possession of the property had been delivered to her and she was the exclusive owner. The gift deed had been acted upon as she had accepted the gift, and had exclusive control over the property.
4. Seven issues were framed. Issue Nos. 4, 6 and 7 which read as follows are really pivotel issues.
'4. Whether the suit, schedule property is the joint property of the parties or the same is the exclusive property of the defendant No. I?
6. Whether the land gifted under the deed of gift dated 24-12-1962 has been accepted?
7. Whether the gift land under the gift deed dated 24-12-1962 was related to the suit property?'
Learned trial judge held that the gift land under gift deed dated 24-12-1962 is the joint property of the parties and is not exclusive property of defendant No. 1. Consequently, it was held that order passed by the Settlement authority in R. P. Case No. 830 of 1991 and publication of Hal record-of-rights are illegal and void. It was further held that the gift was not accepted by donee (defendant No. 1) and when the gift was not accepted, no title was conveyed and it had no sanctity and it was non est in the eye of law. Therefore, there was no necessity to seek a declaration to set aside the gift deed which was otherwise void within the meaning of Section 102 of Transfer of Property Act (in short, 'T.P. Act').
5. Stand of the appellant in the appeal can be said in a nutshell as follows:
The gift deed which is of the year 1962 for the first time has been challenged in 1992 after three decades. Plaintiffs have taken plea of non-existence and on that basis alone sought for a declaration that the suit property be declared as joint property and not exclusive property of defendant No. 1. With reference to Sections 122 and 123 of T. P. Act and Section 17 of Indian Registration Act, (in short, 'Registration Act'), it is submitted that there was unimpeachable evidence to show acceptance. The purpose of the suit in substance is revocation of the gift deed and therefore, the suit was clearly hit by Article 59 of Indian Limitation Act (in short, 'Limitation Act'). Stand of respondents sons unnecessary details is that Sita Devi raised construction over the suit property which defendant No. 1 allegedly obtained under the deed of gift. The same related to a piece of vacant land. It was argued in the Court below that the expression 'Sakala' mentioned in it relates to the building which was raised in the suit land. The trial Court has rightly rejected the plea. In order to satisfy the requirements of Section 122 of T. P. Act, acceptance must be shown. Between 24-12-1962, the date of execution and registration of gift deed up to 1-1-1982 i.e. the death by donor, there was no endorsement regarding acceptance of gift in the deed itself. It is not in dispute that residential building in question alleged to have been gifted was under possession of the donor and she continued to possess the same till death, and respondent No. 1-plaintiff No. 1 continued to be the care taker in respect of the building. The donor remained in occupation of the properties during her life time. This aspect has neither been doned in the pleadings, nor assailed in cross-examination. The appellant has not substantiated her stand to the effect that respondent No. 1 in order to grab the property gave impression that he had taken mutation of the house in her name, and she was all along paying money for maintainance of the house and payment of taxes. Not a word was indicated in the written statement and no evidence was led to show as to how she became the owner of the building. On the contrary, it has been proved that donor raised the building, kept the same till her death through herself and/or through tenants. One material fact has to be noticed that the tenants were inducted by donor who continued to collect rent from them. Respondent No. 3 on the strength of a power of attorney collected rent in respect of the house in question on behalf of all legal heirs including appellant from the tenants. This is one of the acts of joint ownership in respect of the suit property which militates against stand taken by the appellant. The plea that the appellant was remaining at Bhubaneswar, she entrusted her brother to look after the property on her behalf has not been substantiated in view of categorical statement of P.W. 1 that he has been residing at Bhubeneswar since 1968.
6. Before coming to take note of factual aspects, deck has to be cleared so far as relevant legal position is concerned. In order to constitute a valid gift, pivotal requirement is acceptance thereof. No particular mode of acceptance is required and the circumstances throw light on that aspect. The burden of proof is on the party who alleges that document was not intended to be acted upon. If burden of proof is placed on a party, presumption operated against him. Burden of proof and presumption have to be considered together. A transaction of gift in order to be complete must be accepted by the donee during the life time of donor. Factum of acceptance can be established by different circumstances such as the donee taking possession of properly or being in possession of deed of gift alone. If a document of gift after its execution or registration in favour of donee is handed over to him by the donor which he accepts, it amounts to valid acceptance of gift in law. This position has been settled by a series of decision randered owner a long span of time. The specific recital in the deed that possesion is given raises a presumption of acceptance. The essence of a gift is that it is gratuitous transfer. Blaekstone says, 'Gifts are always gratuitous, grants are upon some consideration or equivalent'. The gift is an act of generosity or consideration, present is an act of kindness, Courtesy or respect. When we speak of a gift, we refer in our minds to a giver, when we speak of an endowment we refer in our minds to the receiver; when we speak of talent we only think of its intrinsic quality. In ordinary legal effect, there cannot be a 'gift' without a giving or taking. The giving and taking arc the two contemporaneous, reciprocal acts which constitute a gift. Section 122 of the T. P. Act postulate that 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 and accepted by or on behalf of the donee. The essential elements of a gift are (a) the absence of consideration, (b) the donor, (c) the donee, (d) the subject-matter, (e) the transfer and (f) the acceptance. The concept of gift is diametrically opposed to the presence of any consideration of compensation. A gift has been aptly described as a gratuity and an act of generosity and stress is on the fact that if there is any consideration then the transaction ceases to be a gift. Complete absence of consideration is the hallmark which distinguishes a gift from a grant of for that matter other transactions which may be for valuation or adequate consideration. 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 equivelant or benefit measured in terms of money in respect of a gift, the transaction ceases to be a gift and assumes a different colour. The nature or purpose of making a gift should not be confused 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 those 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 gift having regard to the nature. Character and the circumstances under which such a transfer takes place.
7. There arc a few circumstances which further the case of appellant. Undisputed position is that gift deed was in her possesion and production of original deed of gift Ext. E is from her custody. P.W. 1 in his cross-examination has accepted that a chit was granted by the donor to appellant, defendant No. 1 collect gift deed after registration. Learned trial judge has observed that there was no clear and clinching evidence to the effect that the donor has handed over the deed to defendant No. 1. The undisputed position being that a chit had been handed over to appellant-defendant No. 1 to collect the deed clearly reflects intention to hand over the deed to her- More personal non-delivery even if it is accepted to be correct as pleaded, cannot be a ground for rebuttal of presumption. Learned trial judge has lightly brushed aside mention in the deed that possesion was delivered on the ground that there was no oral evidence adduced by the appellant to show that she had accepted gift deed. The burden had been erroneously placed on her. Execution of Ext. E and voluntary nature of execution thereof was not disputed. It was however observed that evidence with regard to acceptance was meagre and scanty. Great emphasis has been laid on Ext. 2, dated 20-11-1978 which contained a recital that donee had kept the building for her residential purpose. Learned trial judge did not accept the contention of plaintiffs that this was vital. We was of the view that the aforesaid recital in Ext. 2 was of little consequence. Learned trial judge, however, emphasized on the absence of any specific mention of existence of the building. It was noted that construction of the building was prior to 1959 and after availing loan under the M.I.G. scheme construction was completed on 15-9-1960. Mention of the words 'Sekala Prakar Satwa' in Ext. E was held to be not relatable to the building in the absence of specific mention of building. The view seems to be erroneous because the gift related to the property covered by the deed and everything standing thereon. It was contended by learned counsel for respondent that donor was continuing in enjoyment of property. That is really of no consequence. Specific recital in the deed that possession has been handed over to the donee. When such recital is there, presumption arose that possession has been handed over 10 the donee. Onus in such cases is on the person who claims that notwithstanding such recital possession was not given. (See Fatima Bibi v. Khairum Bibi, AIR 1923 Madras 52 and Kamakshi Ammal v. Rajalakshmi, AIR 1995 Madras 415. There is no doubt that it is rebuttable presumption. The plaintiffs have failed to displace the presumption. Circumstances arc the particulars which accompany an act, the surroundings of an act. While considering whether there was a valid gift, intention of the donor, execution of the deed and acceptance are pivotal features. Title of Sita Devi to the entire 238 decimals of leasehold property is not in dispute, as is the sale of AO/90 decimals. A significant accepted position is gift of AO.81 decimals to younger daughter Sakuntala. At the time of settlement, it was noticed that she was in possession of AO.84 decimals. This has not been challenged. Conduct of donor in making gift to Sankuntala, the younger daughter which has not been challenged, is a significant factor. Unusual conduct cannot be indicated to the gift made to Sanjuta, the elder daughter. Normal human conduct is a circumstance, unless exceptional circumstances for departure arc made out. Two gifts arc claimed to have been made; the latter one to younger daughter. A reasonable inference can be drawn about the intention of the donor to make the gift to Sanjukta. When execution of deed of gift in her favour is not disputed, plaintiffs are to prove that the execution was sham and was never intended to be acted upon. There is no clear circumstance to come to such conclusion. It is claimed that deed of gift was not acted upon by acceptance. Possession of the deed of gift, as indicated above is a strong circumstance in support of acceptance. Admittedly it is in possession of Sanjukta. There is no plausible explanation offered by plaintiffs how the deed which is a registered document came to her possession. Plaintiffs claim that land and buildings continued to be in possesion of the donor, and this has been stated in the deed in favour of Sakuntala. Possession by self occupation or by letting it to others can be with implied permission. Closer the relationship, stronger would be the presumption in favour of such permissive possession. To conclude otherwise, some hostile animus by conduct of the donor ought to have been proved. Where from factum of possession, two inferences can be drawn, either of permissive possession or rightful possession, inference in favour of the former would be more reasonable. Absence of relationship of distant relationship may have tilted the balance in favour of the latter. But that is not the case here. Long silence without demur on the part of plaintiffs without any explanation is a vital factor. Payment of rent in name of donor, in whose name land had been mutated, and building has been recorded cannot be a circumstance to defeat valid title of Manjukta. Peruming the entire evidence, the irresistible conclusion is that learned trial Court has not appreciated the same, by giving undue importance to circumstances as highlighted above, thereby rendering this finding vulnerable.
8. Appeal deserves to be allowed which I direct. Judgement and decree appealed against are set aside. Suit is dismissed. The parties are to bear their respective costs.