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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
Narsing Rao Nandikonda, J
Prem Rao – Appellant
Versus
M Vijaya Lakshmi – Respondent
CITY CIVIL COURT APPEAL No.231 of 2008
For the Appellants/Petitioners: A. Bhaskara Chary
For the Respondents: Syed Jameel Ahmed
A registered gift deed executed by an owner during their lifetime takes precedence over a previously executed Will, rendering the testamentary disposition operative only on remaining assets, and is deemed proved under Section 68 of the Evidence Act if its execution is not specifically denied by the donor.
Headnote:(A) Indian Evidence Act, 1872 - Section 68 - Gift Deed - Attestation - Proof of execution - Proviso to S. 68 states that it is not necessary to call an attesting witness to prove the execution of a registered document, other than a Will, unless its execution is specifically denied by the executant - Registered gift deed stands proved if not denied by the donor.
(B) Transfer of Property - Testamentary vs. Inter Vivos - A subsequent valid registered gift deed executed by the owner takes precedence over a prior Will, effectively superseding the testamentary disposition of the property.
Facts of the case:
The suit property was originally owned by a woman who had adopted the first plaintiff. She executed a gift deed transferring the property to the first plaintiff in 2005. The defendant, her brother, relied on a 2002 Will, claiming the ground floor was bequeathed to him. The trial court decreed the suit in favor of the plaintiff, declaring the Will inoperative due to the inter vivos transfer. The defendant appealed.
Findings of Court:
The court held that the gift deed was a registered document and, as the executant did not deny it, the requirement to examine an attesting witness under Section 68 of the Evidence Act was unnecessary. The court further reaffirmed that a gift deed executed during the owner's lifetime renders a prior Will inoperative regarding the gifted property.
Issues: 1. Whether the trial court was justified in holding that the plaintiff acquired valid title via the gift deed. 2. Whether the Will executed in 2002 confers rights despite the subsequent gift deed. 3. Whether the defendant's counter-claim was rightly rejected.
Ratio Decidendi: Execution of a registered gift deed by an owner during their lifetime effectively divests them of ownership, making a prior Will inoperative as the testator no longer possesses the property to bequeath at the time of death. Furthermore, if the executant of a registered gift deed does not specifically deny its execution, the document is deemed proved under the proviso to Section 68 of the Evidence Act without needing an attesting witness. Result : Appeal dismissed; trial court judgment confirmed.
| Table of Content |
|---|
| 1. overview of the competing claims of a gift deed versus a previous will. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 2. summary of appellate arguments concerning evidence and validity of documents. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 3. legal proof of registered gift deeds and the supersession of previous testamentary dispositions. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32) |
| 4. competency of a plaintiff/poa holder to testify regarding facts within personal knowledge. (Para 33 , 34 , 35 , 36 , 37 , 38 , 39) |
| 5. final adjudication on title and the lack of necessity to adjudicate peripheral arguments irrelevant to the core relief. (Para 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48) |
JUDGMENT
This Appeal is filed by the appellants/plaintiffs under Section 96 of the Civil Procedure Court, 1908, being aggrieved by the Judgment and Decree, dated 04.09.2008 passed in O.S.No.590 of 2008 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad.
2. Heard Sri A. Bhaskara Chary, learned counsel for the appellants and Sri Syed Jameel Ahmed, learned counsel for the respondents. Perused the entire material on record.
3. For the sake of convenience, the parties hereinafter referred to, as they are arrayed before the Learned trial Court.
4. The brief facts of the case is that the present litigation arises out of a dispute relating to ownership and possession of a residential house bearing No.10-3-39 situated at Humayun Nagar, Hyderabad, consisting of ground floor and first floor with a built-up area of about 670 square feet. Originally, the said property belonged to one Achamma, who had purchased the property from Rukia Begum in the year 1971 under a registered sale deed. Achamma had no children. She had adopted Plaintiff No.1 - Smt. M. Vijaya Lakshmi during her lifetime.
5. According to the plaintiffs, Achamma executed a registered gift deed dated 09.09.2005 (Ex.A1) in favour of plaintiff No.1, thereby transferring the suit schedule property to her. Subsequently, plaintiff No.1 sold the property to plaintiff Nos.2 and 3 under an Agreement of Sale-cum-General Power of Attorney dated 04.09.2007 (Ex.A2).
6. It is the case of the plaintiffs that the defendant B. Prem Rao, who is the brother of Achamma, was occupying a portion of the property and continued to remain in possession even after the property was transferred to plaintiff No.1 through the gift deed. The defendant allegedly refused to vacate the premises.
7. The plaintiffs further stated that the defendant had earlier filed OS No.1800 of 2006 for perpetual injunction, claiming rights over the property on the basis of a will allegedly executed by Achamma, but the said suit was dismissed for default on 21.07.2007. Therefore, the plaintiffs filed the present suit OS No.590 of 2007 seeking declaration that plaintiff No.1 is the absolute owner of the suit schedule property, recovery of possession from the defendant, and mesne profits at the rate of Rs.2,000/- per month from 09.09.2007 till delivery of possession.
8. The defendant contested the suit by filing a written statement. He admitted that Achamma was the owner of the property and that plaintiff No.1 was her adopted daughter. However, she contended that Achamma executed a will dated 26.04.2002 (Ex.B2) whereby the ground floor was bequeathed to the defendant and the first floor to plaintiff No.1. He also alleged that the gift deed relied upon by the plaintiffs was obtained fraudulently by taking advantage of Achamma.
9. The defendant further asserted that the alleged sale in favour of plaintiff Nos.2 and 3 was not valid. He also filed a counter-claim seeking declaration that he is the owner of the ground floor portion and for partition of the property.
10. Basing on the pleadings of both the parties, the learned trial Court framed the following issues for trial:
i. Whether the Plaintiff No. 1 has got title in suit property?
ii. Whether Court Fee paid is insufficient?
iii. Whether the
