IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

HONOURABLE SRI JUSTICE M. VENKATA RAMANA

SECOND APPEAL No.1453 of 2018

Between:

Gogineni Danunjaya, S/o.late Ankaiah

… APPELLANT

AND

Gogineni Anusha, W/o. Gogineni Sunil

... RESPONDENT

DATE OF JUDGMENT PRONOUNCED :04.09.2020

SUBMITTED FOR APPROVAL

HONOURABLE SRI JUSTICE M. VENKATA RAMANA

1. Whether Reporters of Local Newspapers

may be allowed to see the order? Yes/No

2. Whether the copy of order may be

marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

fair copy of the order? Yes/No

____________________

M.VENKATA RAMANA, J

MVR,J

S.A.No.1453 of 2018

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*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

*HONOURABLE SRI JUSTICE M. VENKATA RAMANA

+ S.A.No.1453 of 2018

% Dated : 04.09.2020

Between:

# Gogineni Danunjaya

… APPELLANT

AND

$ Gogineni Anusha

... RESPONDENT

! Counsel for appellant : Mr. N.Sai Phanindra Kumar

^Counsel for Respondent : Mr.M.Chalapathi Rao

<GIST :

>HEAD NOTE:

? Cases referred:

1. AIR 2019 SC 3027

2. 2001(3) ALT 439

3. ALR 2013 KERALA 30

4. 2019 (5) ALT 99(SC)

5. 2019(5) ALD 36 (AP)

6. AIR 1989 SC 1809

7. (2001) 3 SCC 179

8. 2018(4) SCC 562

9. 2013(5) ALD 711

10. 2017(2) ALD 733

11. (2012) 2 ALD 659

12. 1996(2) LW 600(Madras High Court)

13. AIR 1951 SC 280

14. 2012(3) ALD 404

15. 2012(2) ALT 57

16. 2017(4) ALD 12

17. 2012(1) ALD 90(SC)

18. 2013(3) ALT 467

19. (2014) 9 SCC 445

20. (1997) 2 SCC 636

21. AIR 2007 AP 50

22. AIR 2016 SC 2250

____________________

M.VENKATA RAMANA, J

MVR,J

S.A.No.1453 of 2018

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HON’BLE SRI JUSTICE M. VENKATA RAMANA

SECOND APPEAL No.1453 of 2018

JUDGMENT:

This second appeal is directed against the decree and judgment in

A.S.No.71 of 2015 dated 25.06.2018 on the file of the Court of learned XI

Additional District Judge, Guntur, at Tenali. It was in turn preferred

against the decree and judgment in O.S.No.44 of 2011 dated 16.09.2015

on the file of the Court of learned Additional Senior Civil Judge, Tenali.

2. The defendant is the appellant. The plaintiff is the respondent.

3. Smt.Gogineni Rayamma is the mother of the appellant.

Smt.Paturi Nirmala was the daughter of Smt.Gogineni Rayamma. She

died about 23 years prior to the institution of the suit. The respondent

is her only daughter. Thus, she is the grand-daughter of Smt.Gogineni

Rayamma and the niece of the appellant. The respondent was brought

up by Smt.Gogineni Rayamma from the time her mother passed away

and when she was 1½ years old. Smt.Gogineni Rayamma performed her

marriage also. Sri Suneel (P.W.2) is the husband of the respondent.

While Smt.Gogineni Rayamma and the appellant have been the residents

of Pedaravuru village of Tenali Revenue Mandal, the respondent and her

husband have been residing at Gudivada of Tenali Revenue Mandal.

4. Smt.Gogineni Rayamma was the owner and title holder of items 1

to 3 of plaint schedule properties. Item – 1 is a R.C.C. building in an

open site of 217-8-1 square yards in Door Number 352/2 of Pedaravuru

village. Item – 2 of plaint schedule is an open site of 170.2 square yards

at Pedaravuru village. While item – 3 is Ac.0.46 cents of wet land in

D.No.72/B of Pedaravuru village. These properties shall be referred to

hereinafter as ‘the suit properties’ for convenience.

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5. It is the case of the respondent that Smt.Gogineni Rayamma

gifted away the suit properties to her under a registered gift deed dated

09.06.2010 out of love and affection, free will and voluntarily in her

favour conferring absolute rights, that this gift was acted upon and that

Smt.Gogineni Rayamma had delivered possession of these suit properties

to her on the same day. Thus, according to the respondent, she

continued to be in possession and enjoyment of these properties till she

was dispossessed by the appellant therefrom.

6. It is the further case of the respondent that on behalf of

Smt.Gogineni Rayamma, a registered notice dated 21.08.2020 was issued

purportedly from the office of Sri Gaddipati Rambabu, advocate, Tenali,

alleging that she had revoked the afore stated gift deed by a registered

revocation deed dated 28.10.2010 on the premise that it was obtained

from her, playing fraud and that on the same day, Smt.Gogineni

Rayamma had executed a registered gift deed in favour of the appellant

conferring the suit properties. These allegations are all false and

concocted according to the respondent. She further claimed that she

never played any kind of fraud nor prevailed upon Smt.Gogineni

Rayamma in getting the suit properties gifted in her favour and hence,

she got issued a reply to the above notice through her advocate. It is

the further case of the respondent that the appellant prevailed upon

Smt.Gogineni Rayamma to get the revocation deed as well as the gift

deed executed on 20.08.2010, having had developed grudge against her.

She further alleged that on 28.11.2010, the appellant had got the

standing paddy crop harvested from item No.3 of the suit properties,

though the crop was raised by her highhandedly and illegally and also

occupied items 1 and 2 of the suit properties highhandedly without any

manner of right. Her further case is that her attempts to present

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complaints to the police and the Tahsildar, Tenali, did not yield any

result and since the wife of the appellant was then MPTC of their place

on account of such influence, items 1 and 2 of the suit properties could

not be mutated in her favour nor she could pay property tax therefor.

7. Therefore, in the above circumstances, according to the

respondent, she was constrained to lay the suit against the appellant.

The following reliefs were sought, as seen from her plaint against the

appellant:

“1. for recovery of the possession of the suit properties

from the appellant and hand over the same to the

respondent;

2. for permanent injunction restraining the appellant and

his men from in any way interfering with the

respondent’s peaceful possession and enjoyment of the

suit properties after she is put in possession of the

same;

3. for recovery of damages of Rs.20,000/- from the

appellant towards paddy crop cut and carried away by

him on 28.11.2010;

4. to award mesne profits from the date of the suit till

the date when the respondent is put in possession of

the suit properties.”

8. The appellant resisted the claim of the respondent denying the

case set up by her against him. The specific contention of the appellant

is that his mother Smt.Gogineni Rayamma was old and suffered a

fracture to her right leg due to fall, for which he got her treated in the

hospital of one doctor Anil Kumar, at Tenali as an in-patient from

03.02.2010 to the last week of March 2010. His further case is that

thereafter, his mother was brought to their village Pedaravuru and

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during that time, the respondent offering to take care of Smt.Gogineni

Rayamma, at Gudivada village, prevailed on Smt.Gogineni Rayamma as

well as the appellant, made them believe the purpose for which she was

to be taken to Gudivada and thus, the respondent had taken

Smt.Gogineni Rayamma to her house. It is further case of the appellant

that when Smt.Gogineni Rayamma was staying with the respondent, she

and her husband on the pretext of getting her treated at Tenali by a

doctor brought her to Tenali, got her thumb impressions affixed on some

papers inspite of protest by Smt.Gogineni Rayamma and that after some

time, the respondent revealed to Smt.Gogineni Rayamma that she

executed a gift deed in respect of the suit properties in his favour,

which Smt.Gogineni Rayamma questioned.

9. It is the further case of the appellant that when Smt.Gogineni

Rayamma started pestering the respondent raising hue and cry, the

appellant was sent for to Gudivada and that he had brought his mother

to his house at Pedaravuru, where Smt.Gogineni Rayamma informed him

about the registered gift deed in favour of the respondent, while

expressing her desire to cancel the same as well as to execute a fresh

gift deed in respect of the suit properties in his favour. Accordingly, it is

the case of the appellant that a cancellation deed was executed by her

as well as a gift deed in favour of the appellant on 20.08.2010 in respect

of the suit properties.

10. It is the further case of the appellant that Smt.Gogineni Rayamma

got issued a legal notice dated 21.08.2010 to the respondent stating that

she had executed the cancellation deed as well as the gift deed in

favour of the appellant with reference to the suit properties and that

the gift deed dated 09.06.2010 stood in the name of the respondent was

got cancelled by her. It is the further case of the appellant that he was

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in possession and enjoyment of the suit properties even during life time

of Smt.Gogineni Rayamma and by virtue of the gift deed executed on

20.08.2010, he began to enjoy these properties peacefully as an owner.

It is further case of the appellant that Smt.Gogineni Rayamma did all

these acts on her own, and also filed caveat petitions against the

respondent.

11. The appellant denied of highhandedly carrying away the standing

paddy crop from item – 3 of the suit properties or with reference to

alleged highhanded occupation of items 1 and 2 of the suit properties.

He alleged that the husband of the respondent is a well versed litigant

and that the registered gift deed dated 09.06.2010 in the name of the

respondent was not properly attested nor registered nor was it executed

by Smt.Gogineni Rayamma voluntarily and out of free will and that it

was got registered on misrepresentation, playing fraud on her and by

coercion. The appellant also questioned the nature of the relief sought

in the suit contending that the respondent should have sought relief of

declaration of her title, in as much as a cloud is cast on the alleged title

set up by the respondent, before seeking possession of the suit

properties.

12. On the pleadings of the nature stated above with reference to the

case set up by the parties, learned trial Judge settled the following

issues for trial:

1. Whether the gift deed dated 09.06.2010 is true, valid,

executed by Smt.Gogineni Rayamma voluntarily?

2. Whether the gift deed dated 20.08.2010 in favour of

defendant is true, valid and executed by Smt.Gogineni

Rayamma and binding on the plaintiff?

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3. Whether the defendant came into possession of plaint

schedule property by virtue of the gift deed dated

20.08.2010?

4. Whether this suit is not maintainable without seeking

relief of declaration?

5. Whether the plaintiff is entitled to possession of the plaint

schedule property?

6. Whether the plaintiff is entitled to permanent injunction

as prayed for?

7. Whether the plaintiff is entitled for damages of

Rs.20,000/- claimed by her?

8. Whether the plaintiff is entitled for future mesne profits?

9. To what relief?

13. At the trial, the respondent examined herself as P.W.1, her

husband as P.W.2, P.W.3 being one of the attestors to Ex.A1 gift deed

dated 09.06.2010 as well as Ex.A9 - a registered will, P.W.5 being the

scribe of Ex.A1 and further examined P.W.4, P.W.6 and P.W.7 in proof of

her case as to visit of Smt.Gogineni Rayamma to her house as well as

delivery of possession of the suit properties in her favour and their

enjoyment. She relied on Ex.A1 to Ex.A16 at the trial. The appellant

examined himself as D.W.1 while relying on the testimony of D.W.2 to

D.W.5 and Ex.B1 to Ex.B26 in support of his contention.

14. Basing on the material, learned trial Judge accepted the case set

up by the respondent, mainly holding that by virtue of Ex.A1 gift deed

dated 09.066.2010, Smt.Gogineni Rayamma had divested herself of the

right, title and interest to the suit properties, which she transferred by

this gift deed in favour of the respondent and that it was acted upon.

Further holding that in view of this gift in favour of the respondent,

Smt.Gogineni Rayamma had no right to execute either Ex.B1 revocation

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deed or Ex.B2 gift deed dated 20.08.2010 with reference to the suit

properties in favour of the appellant, learned trial Judge also held that

possession of the suit properties was delivered under Ex.A1 gift deed to

the respondent by Smt.Gogineni Rayamma - the donor, who continued to

be in possession and enjoyment of the suit properties and that the

appellant had highhandedly dispossessed her therefrom without any

manner of right. Thus observing, the case of the respondent was

accepted, while holding that the respondent did not prove the actual

damages suffered by her to an extent of Rs.20,000/- as claimed by her

on account of harvest of paddy crop from item-3. Thus, except in

respect of issue No.7, all other issues stood answered in favour of the

respondent by the learned trial Judge and against the appellant.

15. The appellant, aggrieved thereby preferred, A.S.No.71 of 2015

and whereas the respondent also preferred A.S.No.80 of 2015

questioning the findings recorded on issue No.7 against her. Learned

appellate Judge by common judgment in both these appeals dated

25.06.2018, accepting the case set up by the respondent, concurring

with the findings so recorded by the learned trial Judge, dismissed the

appeal of the appellant, while allowing the appeal preferred by the

respondent in part directing that the appellant should pay a damages of

Rs.5,000/- to the respondent, on account of the alleged act of cutting

and carrying away the standing paddy crop from item – 3 of the suit

properties.

16. In this second appeal, Sri N.Sai Phanindra Kumar, learned counsel

for the appellant and Sri M.Chalapathi Rao, learned counsel for the

respondent, presented their respective arguments. Since both the

learned counsel agreed, this second appeal is being disposed off on

merits, including with reference to application of Section 100 CPC now.

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17. Sri N.Sai Phanindra Kumar, learned counsel for the appellant

assailed the findings recorded by learned trial Judge as well as the first

appellate Court mainly on the ground that both the courts were carried

away by Ex.A1 Gift Deed, to hold that it made out an imperative

necessity to accept the contention of the respondent that the suit

properties were absolutely conveyed to her transferring right, title and

interest, by Smt.Gogineni Rayamma, though there is no acceptable proof

as such, with reference to delivery of possession of the suit properties

thereunder. Even otherwise, according to learned counsel for the

appellant, whatever evidence let-in by the respondent in this context is

not on sound foundation, which is liable to the rejected. While

elaborating with reference to the evidence on record, particularly

questioning the execution of Ex.A1 by Smt.Gogineni Rayamma, which

the respondent sought to establish by means of highly interested

testimony of her husband, viz., P.W.2 and their close associate P.W.3

who was the clerk of P.W.2, contentions are advanced to reject the oral

testimony of other witnesses.

18. While referring to the proof offered as to holding possession of

these suit properties by the respondent, particularly Ex.A8 cist receipt,

it is contended that when it is dated 12.06.2010, the claim of the

respondent that she paid land revenue for the years 2010-11, is

preposterous in as much as there could not have been any payment of

cist before hand.

19. Thus pointing out that there is any amount of misreading of

evidence and improper appreciation of oral as well as documentary

evidence, learned counsel for the appellant contended that the

substantial questions of law set out in the grounds of appeal as well as

additional substantial questions of law raised on behalf of the appellant

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need to be considered in this appeal and a request is made to accept the

contention of the appellant setting aside the decrees and judgments of

both the Courts below.

20. Sri M.Chalapathi Rao, learned counsel for the respondent

strenuously contended that when there is acceptable proof of execution

of gift deed by Smt.Gogineni Rayamma under Ex.A1 in favour of the

respondent in the presence of the primary evidence in the nature of

Ex.A1 itself, which validly transferred the right, title and interest in the

suit property in her favour, there cannot be any further proof required.

Supporting the findings recorded by both the Courts in respect of holding

on possession of the suit properties by the respondent under Ex.A1,

learned counsel for the respondent contended that in the presence of

contents of Ex.B1 and Ex.B2 relied on for the appellant that refer to

Ex.A1 Gift deed, there is definite proof offered by the respondent, of

valid execution of Ex.A1 Gift Deed in her favour by Smt.Gogineni

Rayamma, which has been acted upon.

21. Referring to the material on record as to possession delivered

under Ex.A1 to the respondent by the donor, learned counsel for the

respondent further contended that sufficient evidence is placed on

record to prove that the appellant had highhandedly dispossessed the

respondent from the suit properties, while assailing the evidence relied

on by the appellant in support of his contention.

22. Thus, learned counsel for the respondent requested to confirm

the decrees and judgments of both the Courts below, while further

contending that having regard to the nature of the dispute and findings

recorded by learned trial Judge as well as the appellate Judge,

application of Section 100 CPC nor framing any question of law as such in

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this case, did not arise. Thus, learned counsel for the respondent

requested to dismiss this second appeal at the admission stage itself

calling for no interference with the decrees and judgments of the both

the Courts below.

23. In this second appeal on behalf of the appellant, copies of

documents of Ex.A1 in I.A.No.3 of 2018, Ex.A2, Ex.B1 and Ex.B2 in

I.A.No.2 of 2018 and Ex.B11 to Ex.B13, Ex.B17, Ex.B18 and Ex.A8 in

I.A.No.1 of 2020 are filed by learned counsel for the appellant. No

formal objection is raised with reference to these petitions for the

respondent and having regard to the purpose for which they are filed,

they are required to be allowed with a view to place such material on

record. Even otherwise, it has to be stated at this stage that since the

paper book filed on behalf of the appellant did not contain all the

required documents and the depositions of the witnesses are not in

complete shape, the original records have been sent for, from the Courts

below and which are now available for consideration in this matter.

Therefore, allowing the above petitions did not and cannot in any

manner prejudice or affect the interest of the respondent. Hence, all

these three petitions stand allowed.

24. In the grounds of appeal, on behalf of the appellant, the following

substantial questions of law are raised:

“1. Whether the findings of the Lower Appellate Court are

perverse and contrary to law and weight of evidence?

2. Whether the Lower Appellate Court is right in confirming the

judgment of the trial Court?

3. Whether the Gift is valid in the absence of the handing over

the possession of the suit schedule property during the

lifetime of the Donor?

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4. Whether the Courts below are justified in decreeing and

confirming the suit without appreciating the circumstances

under which the alleged gift deed has been executed and

whether it can be held valid in the circumstances of the

execution?

5. Whether the Courts below adopted and applied the principle

of law that the Court should see that the party who

approached the Court should prove his case relying upon his

strength but not taking advantage of the lacunae of the

defendant?

6. Whether the lower Appellate Court is justified in holding that

the Gift deed executed by the Donor i.e. late Smt.Gogineni

Rayamma remains valid and the respondent/plaintiff became

the absolute owner of the plaint schedule properties even

after the donor revoked the same?

7. Whether the lower Appellate Court is justified in holding that

the Respondent/plaintiff is entitled for recovery of item Nos.1

to 3 of the suit schedule property from the plaintiff without

appreciating the well placed evidence of the appellant/

defendant?

8. Whether the lower Appellate Court is right in confirming the

judgment of trial Court in regard to the possession of the suit

schedule properties by granting permanent injunction in

relation to the possession of the suit schedule property?”

25. In the course of hearing and on behalf of the appellant, I.A.No.1

of 2019 was filed raising the following additional substantial questions of

law:

1. Whether suit for delivery of possession is maintainable

without seeking declaration of title in case where there is

serious title dispute?

2. Whether the suit of possession is maintainable based on

revoked Gift-deed without seeking cancellation of revocation

deed?

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3. Whether the Notice issued by the Donor and caveat filed by

her, can be ignored while determining the Validity of Gift-

deed?

4. Whether there is valid gift in favour of plaintiff as per Section

126 of Transfer of Property Act?

This petition in I.A.No.1 of 2019 is allowed.

26. In terms of Section 100 CPC, certain questions, which have

imperative bearing in considering and deciding a matter, including those

based on facts stand attracted. It is not as though at this stage the

Court should be carried away by the nature of the concurrent findings

recorded by the trial Court and appellate Court including on facts. A

duty is cast on the Court in terms of Section 100 CPC, in case of

necessity to appraise the material on record afresh and when the

interests of justice warrant such situation, when the findings recorded

by the Courts below are perverse, absurd, did not base on material

evidence or in misreading or due to omission to consider the same.

27. The course to follow in such circumstances and the role when the

respondent can have or can be heard, are well explained in the

judgment of Hon’ble Supreme Court in ARULMIGHU NELLUKADAI

MARIAMMAN TIRUKKOIL V. TAMILARASI (DEAD) BY LRS.

1

Nonetheless,

having regard to the nature of the dispute in this case and the material

on record and considering the manner in which both the Courts below

have appreciated the material and recorded the findings, among the

questions raised in the grounds of appeal on behalf of the appellant in

the considered opinion of this Court, question Nos.5, 6 and question

No.3 in the additional question in I.A.N o.1 of 2019 stand pertinent for

consideration and determination in this second appeal.

1

AIR 2019 SC 3027

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28. Reasons shall be assigned infra for preferring these substantial

questions of law in this matter, attracting application of Section 100 CPC

in given facts and circumstances of the case and particularly having

regard to serious contentions advanced on behalf of the respondent

against application of Section 100 CPC. This second appeal stands

admitted.

29. These three substantial questions of law, which are extracted

hereunder, for convenience stand considered now in this judgment

together, since the facts and material in relation thereto either

admitted or dispute overlap:

“5. Whether the Courts below adopted and applied the principle

of law that the Court should see that the party who

approached the Court should prove his case relying upon his

strength but not taking advantage of the lacunas of the

defendant?

6. Whether the lower Appellate Court is justified in holding that

the Gift deed executed by the Donor i.e. late Smt.Gogineni

Rayamma remains valid and the respondent/plaintiff became

the absolute owner of the plaint schedule properties even

after the donor revoked the same?

3. Whether the Notice issued by the Donor and caveat filed by

her, can be ignored while determining the Validity of Gift-

deed?”

30. Ex.A1 Gift deed dated 09.06.2010, is the foundation of the case

set up by the respondent against the appellant. In terms thereof, the

suit properties were gifted by Smt.Gogineni Rayamma to the

respondent, out of love and affection, since the respondent was brought

up by her from the time her mother passed away, about 23 years prior to

the date of Ex.A1. Its recitals are further that Smt.Gogineni Rayamma

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conferred right, title and interest to the suit properties in favour of the

respondent and that possession was delivered to her on the same day,

i.e., 09.06.2010. Thus, the recitals of Ex.A1 are that Smt.Gogineni

Rayamma divested herself of right, title and interest to the suit

properties since then.

31. There are certain admitted facts, which require attention in this

context. Smt.Gogineni Rayamma was 73 years old by the date of Ex.A1.

She suffered a fracture to her right leg above the ankle. At the time of

her visit to item No.1 of the suit properties, viz., the house, according to

the appellant, she suffered such fracture. According to the respondent

as deposed by her as P.W.1, it occurred on 03.02.2010. She was

admitted in the hospital of one doctor Anil Kumar, at Tenali. She was

treated as an in-patient in that hospital in between 03.02.2010 and

24.03.2010. After discharge from the hospital, Smt.Gogineni Rayamma

returned to Pedaravuru, to the house of the appellant. Evidence on

record also makes out that the appellant as well as the respondent

attended on her when she was undergoing treatment in that hospital. It

is but natural for them to attend on her, in those circumstances.

32. It is also admitted that in or about ten days from the date of

discharge from the above hospital, viz. 24.03.2010, Smt.Gogineni

Rayamma went to the house of the respondent at Gudivada village from

Pedaravuru. However, there is dispute as to whether she was taken by

the respondent, coaxing her and the appellant, offering to attend on her

or that the appellant himself had left her at the place of the

respondent. But the fact remained established is that Smt.Gogineni

Rayamma stayed with the respondent during that time. Her stay was for

about four months, as the consistent evidence on record makes out.

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P.W.1, viz., the respondent herself deposed more than once at the trial

that Smt.Gogineni Rayamma was taken back to Pedaravuru from

Gudivada on 18.08.2010.

33. It was during her stay at Gudivada, Ex.A1 Gift Deed came into

existence on 09.06.2010. It was executed voluntarily, on her own

volition by Smt.Gogineni Rayamma, according to the respondent.

However, the contention of the appellant is that Smt.Gogineni Rayamma

was enticed to accompany the respondent and her husband to Tenali, as

if they were taking her for medical treatment and during that time, they

obtained thumb impressions of Smt.Gogineni Rayamma on certain

documents, by which process, they created Ex.A1. After coming to know

from the respondent later that it was Ex.A1 Gift Deed, according to the

version of the appellant, she raised hue and cry and unable to bear her

remonstrations, since Smt.Gogineni Rayamma went on questioning the

respondent in bringing out such document, as seen from the testimony

of the appellant as D.W.1, one Sri Subba Rao was sent him, who

informed the wife of the appellant that Smt.Gogineni Rayamma was

intending to return to Pedaravuru. These circumstances are denied by

the respondent. However, the fact established from the evidence on

record is that the appellant accompanied by three or four, who

according to him, included D.Ws.2 to 5 went to Gudivada on 18.08.2010

and thus, she was brought back to Pedaravuru. It is the version of the

appellant that she began to stay in his house from then onwards.

34. At Gudivada, it is the evidence on behalf of the appellant that,

when D.W.1 (appellant) and others met Smt.Gogineni Rayamma, she

divulged as to the document obtained by the respondent and her

husband in respect of the suit properties and which she again revealed

upon returning to Pedaravuru, while expressing her desire to cancel

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Ex.A1 Gift Deed and to confer these properties on the appellant. Thus,

execution of Ex.B1, the deed of cancellation of Ex.A1 Gift Deed and

execution of Ex.B2 Gift Deed by Smt.Gogineni Rayamma in favour of the

appellant, on the same day, viz. 20.08.2010 are explained by the

appellant. During all these events and occasions, the evidence on

record makes out that Smt.Gogineni Rayamma was active mentally and

physically though she was suffering from pain due to leg injury.

35. The respondent has questioned validity and nature of Ex.B1 and

Ex.B2 documents, while asserting that pursuant to Ex.A1, she continued

to be in possession and enjoyment of all these three items in the suit

property, from which she was dispossessed by the appellant later on

highhandedly.

36. Smt.Gogineni Rayamma died on 29.08.2010, i.e. within nine days

of execution of Ex.B1 and Ex.B2. It was during the time when she was at

Pedaravuru, a legal notice was served on her behalf from the office of

one Sri Gaddipati Rambabu, advocate, Tenali, on the respondent. Ex.A2

is this legal notice dated 21.08.2010. That is to say, next day after

Ex.B1 and Ex.B2 documents, this legal notice was sent to the

respondent. The circumstances under which Ex.A1, as described above

was allegedly obtained by the respondent and her husband at Tenali,

taking advantage of her disability or inability either due to old age or

due to the fracture, are stated in this Ex.A2 legal notice. It further

referred to the circumstances under which Smt.Gogineni Rayamma

returned to Pedaravuru along with the appellant on 18.08.2010 and that

the appellant came to know the above circumstances under which Ex.A1

was obtained, while referring to execution of Ex.B1 and Ex.B2 by her. A

reply was sent to this legal notice as per Ex.A3 on 25.08.2010.

MVR,J

S.A.No.1453 of 2018

19

37. Significance has to be attached to Ex.A2 notice in as much as it’s

contents reflect that it was issued on the instructions of Smt.Gogineni

Rayamma through her advocate setting out her version surrounding

execution of Ex.A1, Ex.B1 and Ex.B2. Further significance has to be

attached to the contents of Ex.A3 reply, wherein the claim set out in

Ex.A2 on behalf of Smt.Gogineni Rayamma was refuted by the

respondent asserting her stand in respect of execution of Ex.A1 in her

favour by Smt.Gogineni Rayamma, while seriously questioning the nature

and effect of Ex.B1 and Ex.B2.

38. As seen from Ex.A3, there is no denial that Ex.A2 legal notice was

not issued upon instructions of Smt.Gogineni Rayamma. The tenor of

contents of Ex.A3 reflects that Ex.A2 legal notice was issued in fact and

indeed upon the instructions of Smt.Gogineni Rayamma. Nor it is stated

in Ex.A3 reply notice that, at the instance of the appellant, it was

issued.

39. It was only in the plaint, the respondent sought to attribute

nature of Ex.A2 legal notice to the appellant suggesting that at his

instance, it was got issued. Similar is the version of the respondent as

P.W.1 in her affidavit in lieu of examination-in-chief. It was only in the

cross-examination of the appellant as D.W.1., it was suggested on behalf

of the respondent that Ex.A2 legal notice was not issued upon the

instructions of Smt.Gogineni Rayamma.

40. Unfortunately in the judgment of the trial Court, there is

absolutely no reference to Ex.A2 legal notice and reply to it in Ex.A3 or

their contents. A passing reference is seen in the judgment of the first

appellate Court without specifically mentioning Ex.A2 in para–18.

Import and effect of the contents of Ex.A2 legal notice and Ex.A3 it’s

MVR,J

S.A.No.1453 of 2018

20

reply vis-à-vis the stand of the respondent at the trial were not

discussed nor any findings were recorded by the learned trial Judge or

the first appellate Judge. This circumstance has assumed significance

and importance in the context of application of Section 100 CPC and

presenting a substantial question of law. The substantial question of law

additionally raised in I.A.No.1 of 2019 with reference to Ex.A2 legal

notice, caveat petition in Ex.B3 in O.P.No.39 of 2010 dated 24.08.2010

on the file of the Court of learned Principal Senior Civil Judge, Tenali

and Ex.B5 caveat petition in O.P.No.45 of 2010 dated 24.08.2010 on the

file of the Court of learned Principal Junior Civil Judge, Tenali, now

comes into play. Smt.Gogineni Rayamma is described as one of the

caveators as seen from Ex.B3 and Ex.B5 along with the appellant.

41. Ignorance or rather failure to consider Ex.A2, Ex.A3, Ex.B3 and

Ex.B5, though based on fact, did attract forming a substantial question

of law.

42. Nonetheless, these reasons did make out that there is

a substantial question of law, which requires consideration under Section

100 CPC in this case. Other two questions referred to supra, also stand

for determination similarly, in this second appeal.

43. On behalf of the appellant, GURUBILLI SREERAMULU AND

OTHERS v. JOGA VERRODU AND OTHERS

2

, is relied on contending that

misconstruing a document amounts to serious error of law, which can be

interfered with in second appeal. C.V.SURESH v. TOBIN AND

ANOTHER

3

is also relied on for the appellant in the same context.

2

2001 (3) ALT 439

3

ALR 2013 Kerala 30

MVR,J

S.A.No.1453 of 2018

21

STATE OF RAJASTHAN AND OTHERS v. SHIV DAYAL AND ANOTHER

4

is

also relied on for the appellant in this respect.

44. However, on behalf of the respondent, strong reliance is placed in

ANDE SAMBASIVA RAO v. GUNTI RAMA SUBBA RAO AND ANOTHER

5

contending that in similar facts and circumstances, it is held in the

above ruling, by one of learned Judges of this Court that there are no

substantial questions of law, where execution of a Gift Deed vis-à-vis a

deed of cancellation came up for consideration. CORPORATION OF THE

CITY OF BANGALORE v. M.PAPAIAH

6

is relied on in this respect for the

respondent, where the question was with reference to nature of revenue

record and in those circumstances, finding in respect of interpretation of

revenue record was not held as a question of law.

45. Further reliance is placed on behalf of the respondent in

SANTOSH HAZARI v. PURUSHOTTAM TIWARI (DECEASED) BY LRs.

7

.

46. In a latest judgment of Hon’ble Supreme Court, the legal

parameters within which substantial questions of law in terms of Section

100 CPC appear, is considered in NAZIR MOHAMED v. J. KAMALA AND

OTHERS, in Civil Appeals No.2843 and 2844 of 2010, dated 27.08.2020 in

para – 37 as under:

“37. The principles relating to Section 100 CPC relevant for

this case may be summarised thus:

1. An inference of fact from the recitals or contents of a

document is a question of fact, but the legal effect of

the terms of a document is a question of law.

Construction of a document, involving the application of

4

2019(5) ALT 99 (SC)

5

2019(5) ALD 36 (AP)

6

AIR 1989 SC 1809

7

(2001) 3 SCC 179

MVR,J

S.A.No.1453 of 2018

22

any principle of law, is also a question of law.

Therefore, when there is misconstruction of a document

or wrong application of a principle of law in construing

a document, it gives rise to a question of law.

2. The High Court should be satisfied that the case

involves a substantial question of law, and not a mere

question of law. A question of law having a material

bearing on the decision of the case (that is, a question,

answer to which affects the rights of parties to the suit)

will be a substantial question of law, if it is not covered

by any specific provisions of law or settled legal

principle emerging from binding precedents, and,

involves a debatable legal issue.

3. A substantial question of law will also arise in a contrary

situation, where the legal position is clear, either on

account of express provisions of law or binding

precedents, but the Court below has decided the

matter, either ignoring or acting contrary to such legal

principle. In the second type of cases, the substantial

question of law arises not because the law is still

debatable, but because the decision rendered on a

material question, violates the settled position of law.

4. The general rule is, that High Court will not interfere

with the concurrent findings of the Courts below. But it

is not an absolute rule. Some of the well-recognised

exceptions are where (i) the courts below have ignored

material evidence or acted on no evidence; (ii) the

courts have drawn wrong inferences from proved facts

by applying the law erroneously; or (iii) the courts have

wrongly cast the burden of proof. A decision based on

no evidence, does not refer only to cases where there is

a total dearth of evidence, but also refers to case,

where the evidence, taken as a whole, is not reasonably

capable of supporting the finding.”

MVR,J

S.A.No.1453 of 2018

23

(Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs,

referred to above, is also considered in this judgment of Hon’ble

Supreme Court).

47. In view of legal position so emerged, it is manifest in this case

that there are substantial questions of law requiring determination,

referred to supra. Hence, contention of learned counsel for the

respondent that there are no questions of law, much less, substantial

questions of law that stand for consideration in this case, stands

rejected.

48. The procedure, the High Court is expected to follow in terms of

Section 100 CPC is well explained in Arulmighu Nellukadai Mariamman

Tirukkoil V. Tamilarasi (Dead) by Lrs., case, referred to supra. In

terms of Section 100 CPC, it is for the Court to consider upon hearing the

appellant at the time of admission that there are substantial questions

of law for determination and the High Court should specify in this

regard. Thereupon, notice is required to be issued to the respondent,

who is entitled to point out that such substantial question of law, which,

in the opinion of the High Court, requires consideration, did not arise

and further to put forth his contentions in support of the findings

recorded by the first appellate Court or the trial Court, as the case may

be.

49. Observations in SURAT SINGH (DEAD) v. SIRI BHAGAWAN AND

OTHERS

8

, in para – 21 of the said ruling, are extracted therein and

pertinent for the present purpose are referred to hereunder:

“21. Sub-section (1) of Section 100 says that the second

appeal would be entertained by the High Court only if the

High Court is "satisfied" that the case involves a

8

2018(4) SCC 562

MVR,J

S.A.No.1453 of 2018

24

"substantial question of law". Sub section (3) makes it

obligatory upon the appellant to precisely state in memo

of appeal the "substantial question of law" involved in

the appeal. Sub-section (4) provides that where the

High Court is satisfied that any substantial question of

law is involved in the case, it shall formulate that

question. In other words, once the High Court is

satisfied after hearing the appellant or his counsel, as

the case may be, that the appeal involves a

substantial question of law, it has to formulate

that question and then direct issuance of notice to

the respondent of the memo of appeal along

with the question of law framed by the High

Court. Sub-section (5) provides that the appeal shall be

heard only on the question formulated by the High Court

under sub-section (4). In other words, the jurisdiction of

the High Court to decide the second appeal is confined

only to the question framed by the High Court under sub-

section(4). The Respondent, however, at the time of

hearing of the appeal is given a right under sub

section (5) to raise an objection that the question framed

by the High Court under sub-section (4) does not involve

in the appeal. The reason for giving this right to the

respondent for raising such objection at the time of

hearing is because the High Court frames the question at

the admission stage which is prior to issuance of the

notice of appeal to the respondent. In other words, the

question is framed behind the back of respondent

and, therefore, sub-section (5) enables him to

raise such objection at the time of hearing that the

question framed does not arise in the appeal. The

proviso to sub-section (5), however, also recognizes

the power of the High Court to hear the appeal on any

other substantial question of law which was not initially

framed by the High Court under sub-section(4).

However, this power can be exercised by the High Court

only after assigning the reasons for framing such

MVR,J

S.A.No.1453 of 2018

25

additional question of law at the time of hearing of the

appeal.”

50. There is evidence on record of P.W.1, viz., the respondent, who is

the donee, under Ex.A1 and direct beneficiary apart from P.W.2, who is

her husband, P.W.3 who are the attestors and identifying witnesses to

Ex.A1 and P.W.5 it’s scribe. This oral testimony supports the claim of

the respondent based on Ex.A1 to the effect that Smt.Gogineni

Rayamma herself had executed Ex.A1 voluntarily out of free will and

without any undue influence or coercion brought upon her, due to love

and affection for her.

51. The circumstances under which Smt.Gogineni Rayamma was seen

at the time of execution of Ex.A1 were also prevailing and continued

when Ex.B1 and Ex.B2 were executed by her in favour of the appellant.

In the sense, she was recuperating from the fracture to her right leg. It

was immediately after discharge from the hospital, she stayed with the

respondent and sometime later, she joined her son, viz., the appellant

at Pedaravuru. In or about first week of April, 2010, she joined the

respondent and Ex.A1 was executed approximately two months later.

The recitals in Ex.A1 clearly reflect the stand of the respondent that it

was a voluntary act of Smt.Gogineni Rayamma and not otherwise.

52. One important circumstance in this context is admission of its

execution upon proof of her identity before the Sub-registrar concerned

at Tenali, by Smt.Gogineni Rayamma. As rightly observed by both the

Courts below, there was an opportunity for Smt.Gogineni Rayamma to

protest against execution of this document before the above authority.

It was not so done. This important circumstance stands against the

appellant and having regard to the testimony of P.W.3 and P.W.5, the

MVR,J

S.A.No.1453 of 2018

26

above circumstance stands strengthened. Even if P.W.1 and P.W.2 are

treated as highly interested witnesses in this respect, there is no reason

to reject the testimony of P.W.3 and P.W.5.

53. P.W.3 also figured as an attestor to Ex.A9 a registered will

executed by Smt.Gogineni Rayamma with reference to items 2 and 3 of

the suit properties. However, as seen from the contents of Ex.A1 itself,

out of 356.2 square yards of item – 2 of the suit properties referred to in

Ex.A9 will, 186 sq. yards was gifted to the appellant under a registered

deed dated 26.03.2009. It is not in dispute that appellant has

constructed a house in this 186 square yards of site, where he is now

living at Pedaravuru. Apparently, Ex.A9 will did not become the last and

final testament of Smt.Gogineni Rayamma though items 2 and 3 of the

suit properties were intended to be bequeathed in favour of the

respondent. Contents of Ex.A9 will reflect that it was the respondent

and her husband, who were attending to the necessities of Smt.Gogineni

Rayamma by the date of its execution, i.e. 18.02.2005. Registration of

this will is an additional feature, which was rightly relied on for the

respondent at the trial to establish the nature of execution of Ex.A1

being voluntary by Smt.Gogineni Rayamma.

54. Execution of Ex.A9 will is admitted by the appellant not only in

his written statement but also at the trial as D.W.1. Nonetheless, the

circumstances in this case make out that this will was revoked in view of

admitted situation of conferring a part of the site upon the appellant. In

this context, the contents of the deposition of the appellant as D.W.1 in

examination-in-chief assumed importance. He clearly stated therein

that the respondent got Ex.A1 Gift Deed executed by his mother in her

favour, referring to execution of Ex.A9 will dated 18.02.2005, at the

MVR,J

S.A.No.1453 of 2018

27

desire of his mother. This circumstance relating to Ex.A9 will was also

appreciated by both the Courts below in favour of the appellant.

55. Execution of Ex.A1 by Smt.Gogineni Rayamma, is not a matter in

issue, as such. In view of the stand of the appellant himself in this case,

and reference made to it in Ex.B1, Ex.B2, Ex.B3, Ex.B5 and Ex.A2 make

it clear.

56. In view of these positive circumstances, despite the testimony of

D.W.1 to D.W.5 in support of defence of the appellant against Ex.A1 and

as if Smt.Gogineni Rayamma informed them the manner by which Ex.A1

was obtained by the respondent and her husband, it cannot have any

bearing.

57. Issuance of Ex.A2 legal notice or statements attributed to

Smt.Gogineni Rayamma in Ex.B1 and Ex.B2 or Ex.B3 as well as Ex.B5

caveat petitions have no impact to affect validity of Ex.A1 Gift deed.

Failure of the trial Court or the first appellate Court to refer them in

their judgments and evaluate, cannot cause any prejudice to the

appellant. Particularly, having regard to the legal effect of execution of

Ex.A1 in favour of the respondent by Smt.Gogineni Rayamma, in terms of

Section 122 and Section 126 of Transfer of Property Act, such defence

cannot stand.

58. Learned counsel for the respondent relied on NAKKA

PARTHASARATHY v. NAKKA KRISHNAVENI AND OTHERS

9

contending

that revocation of gift in terms of Section 126 of Transfer of Property

Act is not permissible in the absence of any specific recital in the Gift

Deed in question as to contingency that would arise in future or

happening of a specific event, whereby such gift is intended to be

9

2013(5) ALD 711

MVR,J

S.A.No.1453 of 2018

28

cancelled. In the same context, a reference is also made to SYAMALA

RAJA KUMARI AND OTHERS v. ALLA SEETHARAVAMMA AND OTHERS

10

.

59. Nor Ex.B1 Revocation deed and the oral testimony let-in in proof

of it by the appellant can have any effect nor withdraw or take away the

right, title and interest conferred on the respondent by Smt.Gogineni

Rayamma in respect of the suit properties. Neither there are any

circumstances making out that Smt.Gogineni Rayamma was subjected to

undue influence or coercion nor that she was prevailed upon to execute

Ex.A1 in favour of the respondent. Contentions are advanced on behalf

of the appellant in this respect, relying on DUDDUMPUDI

VENKATARAYUDU v. DUDDUMPUDI RAJAGOPAL

11

and DHARMAN AND

SIX OTHERS v. MARIMUTHU

12

can have no application on facts.

60. On the other hand, strenuous contentions are advanced on behalf

of the respondent particularly relying on BISHUNDEO NARAIN v.

SEOGENI RAI

13

with reference to the admitted and proved facts in this

case that the question of undue influence or applying coercion did not

arise and that there are no pleadings as such in this context giving all

required particulars in terms of Order VI Rule 4 CPC. There are

pleadings either as seen from the written statement or Ex.A2 notice

referring to certain circumstances, sought to be fortified by the

testimony of D.W.1, D.W.2, D.W.4 and D.W.5.(testimony of D.W.3 stood

eschewed, since he did not face cross-examination, by the order of the

trial Court dated 05.03.2013. Unfortunately, this fact is not mentioned

either by the learned trial Judge or appellate Judge nor referred in their

respective judgments). However, proof offered by the appellant on

10

2017 (2) ALD 733

11

(2012) 2 ALD 659

12

1996 (2) LW 600 (Madras High Court)

13

AIR 1951 SC 280

MVR,J

S.A.No.1453 of 2018

29

whom, burden lies to establish these circumstances is not sufficient and

it is not trustworthy.

61. Learned counsel for the respondent specifically relied on the

procedure, the registering authority is required to follow in case of

revocation of documents referring to Rule 26(i)(k)(i) of A.P.Registration

Rules. This rule requires the registering authority, whenever a deed of

cancellation is sought to be registered referring to cancellation of

a previously registered deed of conveyance on sale. It requires the

registering authority to ensure at the time of presentation of such

cancellation deed that the said deed is executed by all the executants

and claimant parties to the previously registered conveyance of sale.

Such cancellation deed as per this rule should be accompanied by a

declaration showing mutual consent of the parties to the earlier

registered deed, which is intended to be cancelled.

62. Remedy as such available is also considered in KAPUGANTI

JAGANNADHA GUPTA v. DISTRICT REGISTRAR, SRIKAKULAM AND

OTHERS

14

, HAJI MOHAMMAD AHMED v. STATE OF ANDHRA PRADESH,

REP. BY ITS DISTRICT REGISTRAR, HYDERABAD AND OTHERS

15

,

including in EDIGA CHANDRASEKAR GOWD AND ANOTHER v. STATE OF

ANDHRA PRADESH AND OTHERS

16

. Effect of the above rule is referred

to by Hon’ble Supreme Court in THOTA GANGA LAXMI AND ANOTHER v.

GOVERNMENT OF ANDHRA PRADESH AND OTHERS

17

.

63. Though this rule refers to a registered conveyance on sale,

required to be cancelled by another deed, it appears that the nature of

this conveyance is treated by a wider connotation to include deeds of

14

2012(3) ALD 404

15

2012(2) ALT 57

16

2017 (4) ALD 12

17

2012(1) ALD 90 (SC)

MVR,J

S.A.No.1453 of 2018

30

sale or gift or exchange, by which the immovable property could be

transferred from one person to another. The effect of the above rule to

meet such eventualities is stated in EDIGA CHANDRASEKAR GOWD AND

ANOTHER v. STATE OF ANDHRA PRADESH AND OTHERS, referred to

supra by one of the learned Judges of this Court at Hyderabad.

64. Another contingency considered by this rule for presentation of

such deed of cancellation is, orders of a competent civil Court or High

Court or State or Central government annulling the transaction

contained in the previous registered Deed of Conveyance of sale.

65. As rightly observed by the trial Court and the first appellate

Court, no attempt was made during lifetime of Smt.Gogineni Rayamma

or later by the appellant to question Ex.A1 Gift Deed under Section 31 of

Specific Relief Act, and for its cancellation.

66. Therefore, the contention of the appellant cannot stand nor Ex.B1

and Ex.B2, as rightly observed by the Courts below, stand to

consideration. They do not in any manner interdict transfer of title

under Ex.A1 Gift Deed in favour of the respondent, since they are legally

invalid and are rightly held void by the Courts below. Ex.B2 Gift deed in

favour of the appellant did not invest him with right, title and interest

to the suit properties, in these circumstances, since Smt.Gogineni

Rayamma had no such right by then, in view of Ex.A1 Gift deed favouring

the respondent.

67. One of the contentions on behalf of the appellant to question

Ex.A1 Gift Deed is that in given facts and circumstances of the case,

there is no proof that Ex.A1 Gift Deed was acted upon, upon acceptance

by the respondent and that the possession of suit properties was never

delivered to the respondent. Thus, it is contended that these properties

MVR,J

S.A.No.1453 of 2018

31

remained within the domain and control of the appellant, who infact

was enjoying them during the lifetime of Smt.Gogineni Rayamma.

68. The respondent came out with a clear case in her pleadings as

well as the evidence that she was dispossessed from item – 3 wet land,

where she raised paddy crop, on 28.11.2010 by the appellant, who had

cut and carried away the standing crop, which was ripe for harvest. As

rightly contended for the respondent, one factor to consider in this

respect is, failure of the appellant to question the outcome of A.S.No.80

of 2015 further in this appeal or by a separate appeal, where the first

appellate Court directed the appellant to pay damages of Rs.5,000/- to

the respondent for carrying away such crop. It is a serious lapse on the

part of the appellant.

69. Whatever be the nature of finding recorded by the learned

appellate Judge in this context, who simply relied on the statement of

P.W.1 elicited in cross-examination, obviously in response to a

suggestion on behalf of the appellant, that this item – 3 of suit

properties could fetch 20 to 22 bags of paddy worth Rs.5,000/-, this

particular finding is not questioned further. Thus, a clear finding

recorded against the appellant that he had resorted to unlawful

dispossession of the respondent from item–3 of the suit properties

remained on record and outstanding against him. No explanation is

offered on behalf of the appellant in this context for such serious

omission. It being a finding on question of fact, it gains importance in

this second appeal. This finding is binding on the appellant.

70. In the above circumstances, apart from the evidence adduced by

the respondent either through herself as P.W.1 or her husband P.W.2

and P.W.7, who according to them was attending to agriculture in this

MVR,J

S.A.No.1453 of 2018

32

land on their behalf, the inference drawn by the learned appellate

Judge holds the field. It is further to be noted that the appellant as

D.W.1 clearly stated in his cross-examination that P.W.7 has no axe to

grind against him. Nor he had attributed any reason or motive for

P.W.7, who is a resident of Pedaravuru to support the respondent in

respect of possession and enjoyment of item–3 of the suit properties by

her. Ex.A8 cist receipt, nature of which is seriously assailed on behalf of

the appellant, in this respect takes a back seat and recedes.

71. The wife of the appellant was then a MPTC member. On account

of this fact and political influence, the appellant could wield in that

village, in as much as Surpanch of the Gram Panchayat of this village, is

supported by the wife of the appellant, there was certain impediment

faced by the respondent either to pay the property tax in respect of

items 1 and 2 of the suit properties or to get them mutated in her

favour. These factors and circumstances are abundantly discussed in the

judgments of the trial Court and the first appellate Court.

72. Even otherwise, as rightly observed in the judgments under

appeal, acceptance of the Gift can well be inferred from the fact that

the respondent herself is the custodian of Ex.A1, who had produced it at

the trial from her custody. Production of Ex.A9 Will is an added factor

to strengthen her contention. This circumstance was considered in a

ruling of this Court in PAGADALA BHARATHI AND ANOTHER v. J.RADHA

KRISHNA

18

while further observing that delivering possession of the

property is not a condition precedent in terms of Section 122 of Transfer

of Property Act to make a gift valid.

18

2013(3) ALT 467

MVR,J

S.A.No.1453 of 2018

33

73. In RENIKUNTLA RAJAMMA(DEAD) BY LEGAL REPRESENTATIVES

v. K.SARWANAMMA

19

, holding that delivery of possession to donee

under a gift is not an essential condition in view of Section 123 of

Transfer of Property Act. In Paras 9 to 11 of this ruling, the following

observations are recorded.

“9. Chapter VII of the Transfer of Property Act, 1882 deals with

gifts generally and, inter alia, provides for the mode of making

gifts. Section 122 of the Act defines ‘gift’ as a 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. In

order to constitute a valid gift, acceptance must, according to

this provision, be made during the life time of the donor and

while he is still capable of giving. It stipulates that a gift is void

if the donee dies before acceptance.

10. Section 123 regulates mode of making a gift and, inter alia,

provides that a gift of immovable property must be effected by a

registered instrument signed by or on behalf of the donor and

attested by at least two witnesses. In the case of movable

property, transfer either by a registered instrument signed as

aforesaid or by delivery is valid under Section 123. Section 123

may at this stage be gainfully extracted:

“123. Transfer how effected – For the making of a gift of

immoveable 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.”

11. .................................................

A conjoint reading of Sections 122 and 123 of the Act makes it

abundantly clear that “transfer of possession” of the property

19

(2014) 9 SCC 445

MVR,J

S.A.No.1453 of 2018

34

covered by the registered instrument of the gift duly signed by

the donor and attested as required is not a sine qua non for the

making of a valid gift under the provisions of Transfer of

Property Act, 1882.”

74. Reliance placed in BABY AMMAL v. RAJAN ASARI

20

to support his

contention that proof of delivery of possession and acceptance under a

gift being essentials to prove such transaction, is not proper since the

facts considered therein stand differently. In the said ruling itself, it

was observed that the document in question, in given facts and

circumstances of the case, could not be construed as a Gift Deed, while

considering the effect of Sections 122 and 123 of Transfer of Property

Act.

75. Thus, having regard to law in this respect and the fact situation

concurrently held in favour of the respondent by the trial Court and the

first appellate Court, the contentions advanced on behalf of the

appellant, needs rejection.

76. A vain attempt is also made on behalf of the appellant contending

that a suit for mere possession without seeking the relief of declaration

is not maintainable and even otherwise the burden is on the respondent

to establish his case, who cannot rely on the weaknesses or lacunae in

the case of the appellant. This contention in fact did not call for

consideration in this second appeal. It being purely based on facts, is

not covered by Section 100 CPC. Reliance is placed for the appellant in

MUDDASANI SAROJANA v. MUDDASANI VENKAT NARSAIAH & OTHERS

21

in support of this contention. This ruling however, is overruled by

20

(1997) 2 SCC 636

21

AIR 2007 AP 50

MVR,J

S.A.No.1453 of 2018

35

Hon’ble Supreme Court in MUDDASANI VENKATA NARSAIAH (DEAD)

THROUGH LRs v. MUDDASANI SAROJANA

22

.

77. Thus, on a conspectus of the material, the findings to record in

this second appeal are that Ex.A1 Gift Deed is not affected in any

manner in its purpose and effect in relation to the suit properties by the

stand of deceased Smt.Gogineni Rayamma reflected in Ex.A2 legal

notice, Ex.B3 and Ex.B5 caveat petitions including the contents of Ex.B1

deed of cancellation and Ex.B2 the Gift deed in favour of the appellant.

The right, title and interest to the suit properties stood transferred and

vested in the respondent by virtue of Ex.A1 and that, they are not

divested. Thus, the respondent remained absolute owner of the suit

properties with lawful right, title and interest transferred in her favour

from Smt.Gogineni Rayamma during her lifetime under Ex.A1.

78. All these substantial questions of law are thus answered.

79. In the result, this second appeal is dismissed confirming the

judgment of the learned XI Additional District Judge, Guntur, at Tenali

in A.S.No.71 of 2015 dated 25.06.2018. In the circumstances, having

regard to the close relationship in between these parties, they are

directed to bear their own costs throughout. Miscellaneous petitions in

I.A.No.2 of 2018, I.A.No.3 of 2018, I.A.No.1 of 2020 and I.A.No.1 of 2019

stand allowed. Interim order granted on 16.09.2019 stands vacated.

Pending petitions if any, shall stand closed.

____________________

M. VENKATA RAMANA, J

Dt:04.09.2020

Rns

22

AIR 2016 SC 2250

MVR,J

S.A.No.1453 of 2018

36

HON’BLE SRI JUSTICE M. VENKATA RAMANA

SECOND APPEAL No.1453 OF 2018

Date:04.09.2020

Rns