2013 Supreme(Mad) 1963

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.BANUMATHI and T.S.SIVAGNANAM, JJ.
The Chairman & Managing Trustee Krishnaswamy Educational Trust Rep., by N.A.K.Balakrishnan No.8, IV Cross Street, Nungambakkam, Chennai 600 034. - Appellant
Versus
Tmt. C.V. Rajeswari Ammal (Deceased) - Respondents
O.S.A.No.384 of 2012 Against C.S.No.22 of 2004
Decided On : 13.06.2013

An unregistered gift deed can be looked into for collateral purpose to show the nature and continuous possession of the plaintiff.

Headnote:

ADVERSE POSSESSION - GIFT DEED - UNREGISTERED - COLLATERAL PURPOSE - COMPOSITE TRANSACTION - INTENTION OF PARTIES - POSSESSION - NATURE OF POSSESSION - ADVERSE POSSESSION - REQUIREMENTS - SATISFIED - TITLE PERFECTED.

Fact of the Case:

Plaintiff filed a suit for declaration of title of the property mentioned in the plaint schedule, as the plaintiff has perfected title by adverse possession in terms of Section 34(F) of the Specific Relief Act. The plaintiff is the Chairman and Managing Director of an Educational Trust. The case of the plaintiff is that by a deed of absolute gift dated 06.01.1985, the first defendant donated the plaint schedule property to the plaintiff, pursuant to which the first defendant delivered possession and the plaintiff also took possession of the said property for the purpose of running a school established and administered by the plaintiff Trust. It is further stated that the plaintiff is in possession of the suit schedule property ever since the date of the gift deed dated 06.01.1985 till the filing of the suit for a period of more than 18 years and the property having been assessed to Property Tax by the Corporation of Chennai in the name of the plaintiff and the plaintiff has been regularly paying the Property Tax. It is further stated that the Assistant Commissioner of Urban Land Tax, Egmore, levied Urban Land Tax by assessment order dated 16.05.1995 and by further proceedings dated 08.11.1995, the said authority granted exemption of the land from the levy of Urban Land Tax, as the said land has been put to use for school purpose. It is further stated that pursuant to the gift, the first defendant along with her sons (defendants 2 to 5) entered into an agreement with the plaintiff dated 06.01.1985, confirming the gift deed and the fact that the plaintiff was put in possession of the suit schedule property by relinquishing the right of a portion of the said property earmarked as plot No.11-A out of the total extent of 29 grounds and 486 sq. ft., which was also in possession and enjoyment of the plaintiff along with the said property as per the registered lease deed dated 19.12.1969, which proves continuous possession and enjoyment of the property since 1964 onwards. Further case of the plaintiff is that in the said agreement dated 06.01.1985, the defendants permitted the plaintiff Trust to apply for exemption from stamp duty for the purpose of registration of the gift deed dated 06.01.1985 and the plaintiff Trust applied for exemption to the Government and the Government by G.O.Ms.No.161, dated 22.03.1990, granted exemption from stamp duty in respect of an extent of 2 grounds and 1467 sq.ft., out of the total extent of 9 grounds and 1400 sq.ft., covered by the gift deed. The said order of exemption was published in the Tamil Nadu Government Gazette dated 11.04.1990. The plaintiff further stated that the animus of long possession and enjoyment of the suit schedule property since 1964 for a period of more than 39 years has been established, thereby the plaintiff perfected his prescriptive title of adverse possession of the said property. Further case of plaintiff is that the plaintiff approached Tahsildar, Egmore, Nungambakam Taluk to issue patta for the said property and Tahsildar by letter dated 13.06.2003 directed the plaintiff to produce registered deed of conveyance for issuing patta. Stating that the possession of the suit property has already been handed over to the plaintiff and is in possession and enjoyment over and above the period prescribed and that the plaintiff has perfected title by adverse possession, the plaintiff trust has filed the suit to get a declaration of title to the suit property on the basis of adverse title. The 2nd and 3rd defendants in their written statement denied the execution of the gift deed by stating that no such document could have been executed without the knowledge of the defendants 2 to 5 as the first defendant was aged about 70 years and suffering from old age diseases. Further it was stated that the plaintiff Trust occupied about 29 grounds as a lessee from August 1964 and a request was made by the defendants to vacate leased property and after prolonged negotiation, the plaintiff agreed to release about 20 grounds and retained the remaining portion of 9 grounds and 1400 sq.ft., as if the lease continued in respect of the said area. The payment of property tax and the exemption obtained by the plaintiff under the Urban Land Tax Act were denied. Further, it was stated that the plaintiff cannot be claimed adverse possession, as they are lessee of the property and their possession cannot be adverse to the owner. Further, it was contended that the exemption granted by the Government from payment of stamp duty had expired and the plaintiff is not entitled to claim that the property was gifted to them or they have perfected title by adverse possession.

Finding of the Court:

The Court held that the gift deed is not registered and that the plaintiff Trust continued to be in possession of the suit property as a lessee and that there was no animus to treat the possession in assertion of title. The Court by judgment and decree dated 22.06.2012, dismissed the suit holding that the plaintiff is not entitled to a declaration as prayed for.

Issues: Whether the plaintiff is entitled to get the relief of declaration of title to the suit property by way of adverse possession and to what relief are the parties entitled?

Ratio Decidendi: The Court held that the plaintiff's possession of the suit property after 06.01.1985 is that of the Donee and not as a lessee. The Court also held that Ex.P.2 gift deed is not a draft document and that the suit should have been filed for specific performance and the suit for declaration is not maintainable. The Court further held that the plaintiff has perfected title by adverse possession.

Final Decision: The Court allowed the appeal and set aside the judgment and decree in C.S.No.22 of 2004, dated 22.06.2012, and decreed the suit as prayed for.