# Chaudhary v. Smt. Prabhawati

- **Citation:** (2012) 2 ILRA 531
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-18
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chaudhary-v-smt-prabhawati-42297
- **Pages:** 5

## Headnote

Code of Civil Procedure-Section 100Second Appeal-cancellation of gift deeddismissed by Courts below-questioned
on ground in gift deed valuation of
property shown Rs. 40,000/-hence a sale
transaction-that the donor even after
gift remained in possession-concurrent
finding of fact recorded by Court belowmere showing valuation of property not
sale transaction-gift deed acted uponname of donor mutated in revenue
record-continuation of possession having
relation of father-daughter-permissible
in eye of law-no substantial question of
law involve-appeal dismissed.

Held: Para 10 and 15

So far as the first point is concerned, I
have perused the gift-deed, which has
been brought on record by means of an
affidavit
in
support
of
the
stay
application. From a perusal of the
532 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
photocopy version of the gift deed, as
the typed copy contains many typing
errors, it appears that bhumidhari land
was gifted whereas Rs.40,000/- has
been mentioned as the valuation of the
property
donated
and
not
as
consideration. The valuation has been
mentioned, obviously, for the purpose of
payment of stamp duty. Accordingly, the
first contention of the learned counsel
for the appellant is not acceptable and is
hereby rejected. It is noteworthy that
similar contention was made before the
lower
appellate
court.
The
lower
appellate
in
paragraph
15
of
its
judgment rejected this contention and
came to the conclusion that a composite
reading of the deed clearly disclosed that
it was a gift of immovable property and
not a sale. I' am in agreement with the
finding recorded by the lower appellate
court.

In the instant case, the counsel for the
appellant has not been able to point out
any material to show that the gift was
repudiated by the donee or her natural
guardian, or that she disapproved of it.
Thus, from the discussion made above,
the third contention also, as raised by
the learned counsel for the appellant,
cannot be accepted. No other point was
pressed.
Case law discussed:
AIR 1995 Madras 415 (para 21); (2004) 1 SCC
581

## Text

2 All] Chaudhary V. Smt. Prabhawati
531
Force, as he does not hold a "Civil Post"
under the Union or a State.

19. In view of the answers to
questions 1 and 2, the decision of the trial
court on issue no.1, that the order of
termination, apart from other provisions,
was in violation of the provisions of
Article
311
(1)
and
(2),
requires
reconsideration. However, considering the
dicta of the Apex Court in the case of
Union of India versus Ram Phal (supra), it
still has to be seen whether the termination
was in accordance with the provisions of
the BSF Rules or not. As no finding has
been recorded on that score by the
appellate court, I consider it appropriate to
remand the matter to the lower appellate
court to test the validity of the order of
termination in accordance with the law.

20. As there is no challenge to the
finding recorded by the courts below on
Issues No.2, 3, 4 and 5, the same shall be
treated to have been settled between the
parties.

21. For the reasons aforesaid, the
appeal is partly allowed. The judgment
and decree dated 29.11.1995 passed by the
Civil Judge (Senior Division), Ballia in
Civil Appeal No. 35 of 1994 is hereby set
aside. The matter is remanded back to the
lower appellate court to decide the appeal
afresh, in the light of the observations
made herein above. The hearing of the
appeal shall be confined to Issues no.1 and
6 only, all the other issues shall be treated
as having become final between the
parties. Since the matter is very old, I
direct the Registry to forth with send back
the record of the court below. The court
concerned shall endeavour to decide the
appeal of the defendant-appellant in an
expeditious manner, preferably within a
period of three months from the date of
receipt of the record or from the date of
production of certified copy of this order,
whichever is later. There is no order as to
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

SECOND APPEAL No. - 500 of 2012

Chaudhary

 ...Petitioner
Versus
Smt. Prabhawati

 ...Respondent

Counsel for the Petitioner
Sri Rajesh Kumar Chitragupt
Sri Siddhartha Srivastava

Counsel for the Respondent:
Sri Rakesh Kr. Tripathi
Sri Sharad Chandra Singh

Code of Civil Procedure-Section 100Second Appeal-cancellation of gift deeddismissed by Courts below-questioned
on ground in gift deed valuation of
property shown Rs. 40,000/-hence a sale
transaction-that the donor even after
gift remained in possession-concurrent
finding of fact recorded by Court belowmere showing valuation of property not
sale transaction-gift deed acted uponname of donor mutated in revenue
record-continuation of possession having
relation of father-daughter-permissible
in eye of law-no substantial question of
law involve-appeal dismissed.

Held: Para 10 and 15

So far as the first point is concerned, I
have perused the gift-deed, which has
been brought on record by means of an
affidavit
in
support
of
the
stay
application. From a perusal of the
532 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
photocopy version of the gift deed, as
the typed copy contains many typing
errors, it appears that bhumidhari land
was gifted whereas Rs.40,000/- has
been mentioned as the valuation of the
property
donated
and
not
as
consideration. The valuation has been
mentioned, obviously, for the purpose of
payment of stamp duty. Accordingly, the
first contention of the learned counsel
for the appellant is not acceptable and is
hereby rejected. It is noteworthy that
similar contention was made before the
lower
appellate
court.
The
lower
appellate
in
paragraph
15
of
its
judgment rejected this contention and
came to the conclusion that a composite
reading of the deed clearly disclosed that
it was a gift of immovable property and
not a sale. I' am in agreement with the
finding recorded by the lower appellate
court.

In the instant case, the counsel for the
appellant has not been able to point out
any material to show that the gift was
repudiated by the donee or her natural
guardian, or that she disapproved of it.
Thus, from the discussion made above,
the third contention also, as raised by
the learned counsel for the appellant,
cannot be accepted. No other point was
pressed.
Case law discussed:
AIR 1995 Madras 415 (para 21); (2004) 1 SCC
581

(Delivered by Hon'ble Manoj Misra, J.)

1. Heard Sri Siddhartha Srivastava,
learned counsel for the appellant and Sri
Sharad Chandra Singh holding brief of Sri
Rakesh Kumar Tripathi, learned counsel
for the respondent.

2. This is plaintiff's appeal against the
judgment and decree dated 28.02.2012
passed by the Additional District Judge,
Court No.1, Siddhartha Nagar in Civil
Appeal No.7 of 2009 arising out of
Original Suit No.164 of 1997.

3. Original Suit No.164 of 1997 was
instituted for cancellation of the gift-deed
dated 21.07.1991/24.07.1991 executed by
Mohan of his bhumidhari land in favour of
the defendant, Smt. Prabhawati.

4. The plaint case, in short, was that
the plaintiff was the brother of Mohan.
Mohan neither had a son nor a daughter
and that during his life time his wife Smt.
Tirthi had died. It was alleged that the
defendant got a gift-deed executed through
an imposter of Mohan, which was liable to
be cancelled on the grounds: that Mohan
did not at all execute the gift-deed; that the
statement in the gift-deed that the
defendant was daughter of Mohan was
incorrect; that the gift deed was executed
without a mental act of the donor; that
there was no valid acceptance of the gift;
that the defendant did not enter into
possession of the property; and that even if
the defendant is found to be daughter of
Mohan, she does not have any such
relationship as she herself is married and
mother of many children.

5. The defendant contested the suit
by denying the plaint allegations and
claiming that she was the only daughter of
Mohan and that Mohan had no son or other
issue. It was claimed that the gift was
voluntarily executed by Mohan, which was
duly attested by the witnesses and
registered in accordance with law of
registration; and that the gift was duly
accepted by her and that her name was
duly recorded in the revenue records
pursuant to the gift-deed. It was also
claimed that the suit was barred by
limitation as also by principles of estoppel
and acquiescence.
2 All] Chaudhary V. Smt. Prabhawati
533

6. The Trial Court framed various
issues and came to the conclusion that the
gift-deed
was
validly
executed,
the
execution of which was proved by its
attesting witness - Gokaran, who was
examined as D.W.2; that the defendant was
the daughter of Mohan, which fact was
duly proved by oral evidence as well as
from the extract of the Parivar Register;
that the death certificate produced by the
plaintiff to the effect that Mohan died on
25.05.1991, that is prior to the execution of
the gift-deed, was not reliable whereas
from the evidence led by the defendant it
was clear that Mohan had died on
10.08.1991; and that the name of the
defendant was also mutated in the revenue
records. With the aforesaid findings the
suit was dismissed.

7. Aggrieved by the judgment and
decree of the Trial Court the plaintiff went
up in appeal and the Appellate Court
dismissed the appeal and affirmed the
findings of the Trial Court. Challenging the
judgment and decree of the courts below
present second appeal has been filed.

8. Learned counsel for the appellant
has raised three points for consideration in
this appeal. The first is to the effect that in
the gift-deed there is a recital that the
donor has made a gift of the value of
Rs.40,000/- in favour of the donee. He,
therefore, contends that Rs.40,000/- was its
consideration, accordingly, it was not a
gift, but a sale and, as such, would be void,
as sale consideration never passed. The
second is that the courts below wrongly
discarded
Paper
No.44-Ga
(death
certificate of Mohan), which indicated that
Mohan had died on 25.05.1991 i.e. before
the date of execution of the gift-deed. The
third and the last is that from the statement
of the defendant, made during her oral
testimony, it appears that she was a minor
at the time when the gift-deed was
executed, therefore, in absence of any
acceptance on behalf of the minor, the gift
was void.

9. It is noteworthy that the finding
recorded by the courts below that
Prabhawati was the daughter of Mohan has
not been subjected to challenge.

10. So far as the first point is
concerned, I have perused the gift-deed,
which has been brought on record by
means of an affidavit in support of the stay
application. From a perusal of the
photocopy version of the gift deed, as the
typed copy contains many typing errors, it
appears that bhumidhari land was gifted
whereas Rs.40,000/- has been mentioned
as the valuation of the property donated
and not as consideration. The valuation has
been mentioned, obviously, for the purpose
of payment of stamp duty. Accordingly,
the first contention of the learned counsel
for the appellant is not acceptable and is
hereby rejected. It is noteworthy that
similar contention was made before the
lower appellate court. The lower appellate
in paragraph 15 of its judgment rejected
this contention and came to the conclusion
that a composite reading of the deed
clearly disclosed that it was a gift of
immovable property and not a sale. I' am in
agreement with the finding recorded by the
lower appellate court.

11. As regards the second contention,
that is with regards to the reliability of
Paper No.44-Ga, the Trial Court has
considered the reliability of the document
and came to a conclusion that the said
death certificate was obtained in the year
2005 and the entry therein, with respect to
the date of death of Mohan, was made with
534 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
reference to the Parivar Register, but the
Parivar Register did not disclose the date
of
death
of
Mohan
as
25.5.1991.
Accordingly, the correctness of the entry
with regard to the date of death of Mohan,
in Paper No.44-Ga, was disbelieved. The
Trial Court also took notice of the fact that
the gift-deed had the photograph of Mohan
pasted on it, which was not disputed by
any of the witnesses including the plaintiff.
Accordingly, the Trial Court disbelieved
the evidence led by the plaintiff to the
effect that Mohan had died on 25.05.1991.
The finding of the trial court was affirmed
by the lower appellate court. Even
otherwise, from the averments made in the
plaint, which has been brought on record
as an Annexure to the affidavit in support
of the stay application, I do not find that
there is any averment to the effect that
Mohan had died on 25.5.1991 or that he
was not alive on the date of execution of
the gift-deed. For this reason also, the
second contention of the learned counsel
for the appellant cannot be accepted.

12. On the question of valid
acceptance of the gift, the learned counsel
for the appellant contended that since from
the testimony of Prabhawati (defendantrespondent), as also from the entry of her
date of birth in the Parivar Register, it
appeared that she was a minor on the date
of the execution of gift deed, therefore, in
absence of any proof of valid acceptance
by a guardian or next friend on her behalf,
the gift would not be complete. In reply to
the aforesaid contention, the learned
counsel for the respondent pointed out that
in the title of the plaint of the Original Suit
No.164 of 1997, which was instituted in
the year 1997, the age of the defendant,
Smt. Prabhawati, was mentioned as 28
years. This means that in the year 1991, as
per the description given by the plaintiff,
Smt. Prabhawati would be aged about 21
years and, as such, not a minor on the date
of execution of the gift deed. Learned
counsel for the respondent also pointed out
that in the plaint there is no averment with
regards to the minority of the defendant on
the date of execution of the gift-deed.

13. I have carefully perused the
plaint, which has been annexed as
Annexure No.1 to the affidavit in support
of the stay application. A perusal of the
array of the parties in the plaint goes to
show that the age of Smt. Prabhawati has
been disclosed as 28 years, which
translates to 21 years on the date of
execution of the gift-deed. There is also no
averment in the plaint to the effect that
Smt. Prabhawati was a minor on the date
of execution of the gift. In the plaint,
however, it has been mentioned that from
the impugned deed, acceptance is not
established. Accordingly, I have perused
gift deed, which is on record as Annexure
No.3 to the affidavit in support of stay
application. In the gift deed there is a clear
recital that the donor was transferring his
possession over his bhumidhari land and
that the gift has been accepted by the
donee i.e. Prabhawati. It has also been
stated that from now onwards Prabhawati
is entitled to get her name mutated in the
revenue records. This recital in the gift
deed raises a presumption about the
acceptance of the gift by the donee. The
trial court while deciding issue no.1 has
taken note of the statement of Prabhawati,
who had appeared as D.W.1. In her
statement Prabhawati stated that on the
same day she entered into possession of
the land and continues to remain in
possession. Thus, it cannot be said that
there was no acceptance of the gift. Even
otherwise, assuming that actual physical
possession remained with the father then
2 All] Mahavir V. Smt. Phool Wati
535
also the gift could not have been
invalidated considering the relationship of
father and daughter. In the case of
Kamakshi Ammal V. Rajalaksmi &
others AIR 1995 Madras 415 (para 21) it
was held that where a father made a gift to
his daughter and on its acceptance by her,
she allows her father to enjoy the income
from the properties settled in view of the
relationship
of
father
and
daughter
between the donor and donee, it could not
be said that there was no acceptance of gift
by the donee even assuming that the donor
continued to be in possession and
enjoyment of the property gifted.

14. Likewise, even if it is assumed
that the defendant was minor on the date of
execution of the gift deed, the gift would
not be invalidated for lack of acceptance
by another guardian or next friend, as
acceptance can be implied by the conduct
of the donee. In the case of K
Balakrishnan V. K. Kamalam (2004) 1
SCC 581, the apex court after noticing a
number of authorities, in paragraph 30 of
its judgment, held as under: "As seen
above, in the case of a minor donee
receiving a gift from her parents, no
express acceptance can be expected and is
possible, and acceptance can be implied
even by mere silence or such conduct of
the minor donee and his other natural
guardian
as
not
to
indicate
any
disapproval or repudiation of it."

15. In the instant case, the counsel for
the appellant has not been able to point out
any material to show that the gift was
repudiated by the donee or her natural
guardian, or that she disapproved of it.
Thus, from the discussion made above, the
third contention also, as raised by the
learned counsel for the appellant, cannot be
accepted. No other point was pressed.

16. In view of the aforesaid
discussion, I find that the matter is
concluded by concurrent findings of fact
recorded by the courts below, which do not
suffer from any legal infirmity and, as
such, no substantial question of law arises
for
consideration
in
this
appeal.
Consequently, the appeal is dismissed
summarily.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2012

BEFORE
THE HON'BLE MANOJ MISRA, J.

SECOND APPEAL No. - 539 of 1985

Mahavir

 ...Petitioner
Versus
Smt. Phool Wati

 ...Respondent

Counsel for the Petitioner:
Ravi Prakash Srivastava
Ashish Srivastava
H.N. Pandey
H.P.Pandey
Prakesh Srivastava
Tarun Agarwal

Counsel for the Respondents:
H.N. Pandey
H.N. Dubey
H.P. Pandey
J.P.Pandey
S.C

U.P.Z.A.
&L.R.
Act-Section-157-sale
transaction by member of Scheduled cost
on
23.03.1974-while
amended
prohibition
came
in
existence
on
28.01.1977
having
no
retrospective
effect-even if sale executed by court in
pursuance
of
Decree
of
specific
performance suit-restriction against S.T.
Can not be applicable upon S.C.-both
court below rightly discreed the suitSecond
Appeal
dismissed-as
the