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2014 Supreme(HP) 234
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Parveen Kumar – Appellant
Versus
Sarojni Devi and another – Respondents
RSA No.127/2002
Decided on: 24.3.2014
For the appellant:Mr. Rajnish K. Lall, Advocate, vice Mr. Sanjeev Sood, Advocate.
For the respondents:Mr. Neeraj Gupta, Advocate
Headnote:
GIFT DEED - IMPORTUNITY - REVOCATION - CUSTOMARY LAW - TEHSIL HAMIRPUR OF KANGRA DISTRICT - CONDITIONAL GIFT - ACCEPTANCE OF GIFT - REGISTRATION - EXECUTION OF GIFT DEED - POSSESSION OF GIFTED PROPERTY - CANCELLATION OF GIFT DEED - REVOCATION OF GIFT - TRANSFER OF PROPERTY ACT, 1882 - SECTION 126.
Fact of the Case:
Jai Nand executed a gift deed in favor of his younger daughter, Sarojni Devi, for future services to be rendered by her. Jai Nand died during the pendency of the suit. The suit was contested by Sarojni Devi, who claimed that the gift deed was absolute and there was no right of revocation. The trial court decreed the suit in favor of the plaintiff, but the lower appellate court allowed the appeal and set aside the trial court's decree.
Finding of the Court:
The High Court held that the gift deed was not a result of importunity and was absolute. The court also held that the gift deed was duly executed and registered, and that possession of the gifted property was handed over to Sarojni Devi. The court further held that the subsequent conduct of Sarojni Devi in failing to render services to Jai Nand did not give rise to a right of revocation of the gift deed.
Issues: 1. Whether the gift deed executed by Jai Nand in favor of Sarojni Devi was a result of importunity? 2. Whether the gift deed was conditional and could be revoked? 3. Whether the gift deed was duly executed and registered? 4. Whether possession of the gifted property was handed over to Sarojni Devi? 5. Whether the subsequent conduct of Sarojni Devi in failing to render services to Jai Nand gave rise to a right of revocation of the gift deed?
Ratio Decidendi: 1. The expression "importunity" has been defined as "in its correct legal acceptation, must be in such a degree as to take away importunity as he is too weak to resist; such as will render the act no longer the act of the deceased; not the free act of a capable testator." 2. To attract Section 126 of the Transfer of Property Act, the conditions to be satisfied are: (1) that the donor and the donee must have agreed that the gift shall be suspended or revoked on the happening of a specified event; (2) such event must be one which does not depend on the will of the donor; (3) that the donor and the donee must have agreed to the condition at the time of accepting the gift and (4) that the condition should not be illegal or immoral and should not be repugnant to the estate created under the gift. 3. A gift deed is complete when it is duly executed, registered, and possession of the gifted property is handed over to the donee. 4. The subsequent conduct of the donee in failing to render services to the donor does not give rise to a right of revocation of the gift deed.
Final Decision: The High Court dismissed the regular second appeal and held that there was no question of law much less to say substantial question of law involved in the regular second appeal.
Rajiv Sharma, J.
This appeal is directed against the judgment dated 31.12.2001, rendered by learned District Judge, Hamirpur, in Civil Appeal No.19 of 1993.
2. “Key facts” necessary for the adjudication of this appeal are that the predecessor in interest of the plaintiff/appellant, Jai Nand, filed a suit for possession against the respondents/defendants (hereinafter referred to as the “defendants” for the sake of convenience). Jai Nand died during the pendency of the suit and his legal representatives, namely, Krishni Devi and Parveen Kumar, were brought on record. Krishni Devi also died during the pendency of the first appeal before the learned lower appellate court. According to the plaintiff, Jai Nand (since deceased), he was entered as owner comprising khata No.86 min, khatauni No.103 min, Khasra Nos.1867/1110, 1111, 1112 and 1502, situated in Tika Badehar, Tappa Mewa, Tehsil Bhoranj, District Hamirpur, as per jamabandi for the year 1981-82. Defendant No.1, Sarojni Devi, was married in Tika Kakar, which was at a distance of 3 kms from Badehar. The plaintiff fell ill during month of September 1986 and defendant No.1 started visiting him quite often and showed all concerns about well being of the plaintiff. The plaintiff and his wife were under gratitude of defendant No.1 for looking after them with love and care. Ultimately at the request of defendant No.1 that she would serve the plaintiff and his wife, the plaintiff was made to execute a gift deed for future services by defendant No.1 in her favour on 22.12.1986 vide Ext. DW1/A with respect to land measuring 11 Kanals 14 Marlas out of field Nos.1867/1110, 1111, 112 and 1502. According to the plaintiff, the gift deed was conditional in lieu of future services to be rendered by defendant No.1 and the same was revocable under the agriculture custom of the area. After execution of the gift deed, defendant No.1 served the plaintiff and his wife for some time and thereafter, she stopped rendering services to them.
3. The suit was contested by defendant No.1. According to her, gift deed was absolute and there was no right of revocation of the gift deed. She also pleaded that right to sue did not survive to the plaintiff Parveen Kumar after the death of Jai Nand. The suit was filed ‘benami’. According to her, after marriage, she settled with her husband at Village Badehar and was looking after Jai Nand. She also provided basic necessities of life to him. She had spent huge amount for constructing a house consisting of three rooms and one cow shed at Village Badehar. She was living with Jai Nand. Jai and it was not conditional.
4. The plaintiff filed replication to the written statement filed by defendant No.1.
5. Learned trial court framed issues on 11.8.1988 and 29.11.1991. Learned trial court decreed the suit in favour of the plaintiff vide judgment and decree dated 24.12.1992. Feeling aggrieved, defendant No.1 filed an appeal before the learned lower appellate court, who allowed the appeal vide judgment and decree dated 31.12.2001. Hence, the present appeal. It was admitted on following substantial question of law on 22.5.2012:-
“1. Whether the gift deed executed by Jai Nand Ext. DW1/A was a result of importunity and being a conditional gift and the conditions have not been complied with, the gift was liable to be revoked?
6. Mr. Rajnish K. Lall, learned Advocate, on the basis of substantial question of law framed, has vehemently argued that the gift deed Ext. DW1/A dated 22.12.1986 was result of importunity. According to him, gift deed was conditional and since the conditions have not been complied with, gift deed was liable to be revoked.
7. Mr. Neeraj Gupta, learned Advocate, has supported the impugned judgment dated 31.12.2001.
8. I have heard learned counsel for the parties and have also gone through the record carefully.
9. PW1 Parveen Kumar, deposed that Jai Nand was his maternal grand father. He was his general power of attorney. Jai Nand was 85 years old. He was un
