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IN THE HIGH COURT OF ORISSA
S.C. Mohapatra, J.
NATABAR MOHANTY AND OTHERS - APPELLANT
Versus
TANKA THANAPATI - RESPONDENT
First Appeal No. 224 of 1978
Decided On : 30-09-1993
GIFT DEED - VOLUNTARINESS - CONSIDERATION - ACCEPTANCE - INTERPRETATION OF SECTION 122, 123 OF THE TRANSFER OF PROPERTY ACT - VALIDITY OF GIFT DEED - BURDEN OF PROOF - LEGAL REPRESENTATIVES - SUBSTITUTION - RIGHT TO DECLARE TITLE.
Fact of the Case:
Plaintiff No. 1, an elderly woman, executed a deed of gift transferring her entire property to the Defendant, who was not a relative or close acquaintance. The Defendant claimed that the gift was voluntary and without consideration, and that he had been taking care of the Plaintiff and her husband. The Plaintiff, however, alleged that she had been misled into signing the deed of gift, believing that it was a power of attorney. She subsequently executed a cancellation deed and a Will in favor of Plaintiff No. 3.
Finding of the Court:
The Court held that the gift deed was invalid. It found that the Plaintiff had not executed the deed voluntarily, as she had been misled into believing that it was a power of attorney. The Court also found that the gift was not without consideration, as the Defendant had executed an agreement to maintain the Plaintiff and her husband. Finally, the Court found that the Defendant had not accepted the gift, as he had not taken possession of the property.
Issues: 1. Whether the gift deed was executed voluntarily. 2. Whether the gift was without consideration. 3. Whether the gift was accepted by the Defendant. 4. Whether the legal representatives of the Plaintiff could be substituted in the suit. 5. Whether Plaintiff No. 3 could get his title declared after the death of Plaintiff No. 1.
Ratio Decidendi: 1. The Court held that the burden of proof was on the Defendant to prove that the gift deed was executed voluntarily. The Court found that the Defendant had failed to discharge this burden, as there was evidence that the Plaintiff had been misled into signing the deed of gift. 2. The Court held that the gift was not without consideration, as the Defendant had executed an agreement to maintain the Plaintiff and her husband. This agreement constituted consideration for the gift. 3. The Court held that the Defendant had not accepted the gift, as he had not taken possession of the property. The Court found that the Defendant's claim that he had taken possession of the property was not credible. 4. The Court held that the legal representatives of the Plaintiff could be substituted in the suit, as they had an interest in the subject matter of the suit. However, the Court held that the legal representatives would not be bound by the findings in the suit, and that they would be entitled to get their title declared against Plaintiff No. 3 and the person who would be declared to be in possession in the proceeding u/s 145, Code of Criminal Procedure or the proceeding under the Orissa Land Reforms Act. 5. The Court held that Plaintiff No. 3 could not get his title declared after the death of Plaintiff No. 1, as such a case had not been proved in the present suit.
Final Decision: The Court allowed the appeal, reversed the judgment of the trial court, and declared that the Defendant did not get any title on the basis of the deed of gift. The Court also gave liberty to the legal representatives of the Plaintiff to get their title declared against Plaintiff No. 3 and the person who would be declared to be in possession in the proceeding u/s 145, Code of Criminal Procedure or the proceeding under the Orissa Land Reforms Act.
JUDGMENT :
S.C. Mohapatra, J. - Plaintiffs 2 & 3 and legal representatives of Plaintiff No. 1 are Appellants against dismissal of a suit for declaration of title In this appeal, Appellant No. 1 has expired and memorandum has been filed that he has left behind, no legal representatives for which his name has been expunged.
2. Judhistir Parida husband of Plaintiff No. 1 was an employee under the ruler of Sonepur. He has acquired about 34 acres of agricultural land in village Dhobamunda which is about 2 to 3K. Ms. from Sonepur town. He has also a house on land measuring about 10 decimals in Sonepur town. All these properties were acquired in name of his wife Plaintiff No. 1. Defendant is a man of village Sankara in Binka Police-Station. He has a house at Majhipada of Sonepur Town which is a different area than the area in which Judhistir and his wife reside in their house in Sonepur town. Village Sankara is 10 to 12 miles from Sonepur intervened by Anga river. Defendant is a Peon in the Block Development Office since about 5 to 6 years before the date of his deposition and has a betel shop in Sonepur town. Defendant was going to worship in Samalai temple near house of Plaintiff No. 1 every day and was visiting the house of Judhistir from his childhood. In the aforesaid background, when Judhistir was more than 70 years and was suffering from cancer and Plaintiff No. 1 was also sufficiently aged, she executed a deed of gift of her entire property in village and the house at Sonepur on 28-9-1973. On the same day, Defendant executed an agreement to maintain Plaintiff No. 1. The deed of gift was registered on the next day which is in custody of Defendant and the agreement executed by Defendant is in custody of Plaintiff No. 1. Within a few days of execution of the deed Judhistir expired. There after, troubles started. Plaintiff No. 1 cancelled the deed of gift on 10-7-1974 by a registered instrument. Shortly after such cancellation 04-9-1974 Plaintiff No. 1 executed a Will in favour of Plaintiff No. 3. In the same year, Defendant initiated a proceeding u/s 145, Code of Criminal Procedure, against Plaintiff No. 1 and Plaintiff No. 3, claiming to be in possession of the land. Preliminary order was passed and the agricultural land was attached : On account of this attachment of the property when evidence was being recorded in the 149, Code of Criminal Procedure proceeding, Plaintiff No. 1 and Plaintiff No. 3 with Plaintiff No. 2, filed a suit for declaration of title in respect of the property on 5-10-1977, claiming that Plaintiff No. 2 is the Thikadar in respect of the disputed land under Plaintiff No. 1
3. Case of Plaintiffs is that the land belongs to her, Defendant approached Plaintiff No. 1 for execution of a power of attorney so that her properties can be managed by him and she and her husband would be maintained by him. Believing that a power of attorney was being executed by her, Plaintiff No. 1 signed a document scribed on stamp paper and got it registered. She never intended to donate her entire property. On basis of such a document Defendant has no title. She was continuing in possession till the same was attached u/s 145, Code of Criminal Procedure
4. Case of Defendant is that from his childhood he is acquainted with Plaintiff No. 1 and he was taking care of Plaintiff No. 1 and her husband, who were treating him as his son. He was at times advancing money and was also purchasing medicines for them. Therefore, Plaintiff No. 1 was pleased with him and transferred her property by gift with the hope that the will maintain her and her husband property for rest of the life and enjoy the property since Plaintiff No. 1 and her husband were childless. He was in possession of the property after the gift and Plaintiff after donating the property which was accepted by him cancelled it, which is of no effect. He was acquired valid title over the property.
5. Before trial, Plaintiff No. 1 died during pendency of the suit. Two nephew of her husb
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