1. The plaintiff-appellant instituted the suit for a declaration that the deed of surrender executed by her in favour of defendant No. 1 (since dead) on the 1st July, 1963 (Ext. D) was invalid and inoperative. There is also a prayer for confirmation of possession in respect of the suit lands which have been described in schedule 3 at the foot of the plaint.
2. One Sajeewan Pandey had three sons, namely, Gaya Pandey, Mandil Pandey and Mathura Pandey. Defendants 2 and 3 are the descendants of the said Gaya Pandey, and defendant No. 4 of Mathura Pandey. Mandil Pandey had two sons, namely, Sheolakhan Pandey and Ram Janam Pandey who died long ago. Mostt. Bihasi, defendant No. 1, who was widow of Sheolakhan, also died during the pendency of the suit in the trial court. Ram Janam had a son named Kedar Pandey, who died unmarried, and a daughter named Samrathi Devi who is the plaintiff in this case. It is not disputed that the three sons of Sajeewan Pandey bad already separated amongst themselves. The dispute in this suit is with regard to the estate of Mandil Pandey. According to the case of the plaintiff, on Sheolakhan's death, her father Ramjanam Pandey being the last male holder in this branch, came in exclusive possession of the properties in question in his own rights, Mostt. Bihasi being simply a maintenance holder, and, on the death of her father and her brother, Kedar, the plaintiff succeeded to the estate, she being the only heir. According to her further case, she entrusted the management of the suit properties to defendant No. 1 Mostt. Bihasi, her aunt, as she was married at a distant place. This part of the plaintiffs story regarding the character of possession of Mostt. Bihasi has not been accepted, and, according to the findings, defendant No. 1 was in possession of the suit properties in her own rights and had perfected her title as such by adverse possession. Be that as it may, on the 8th April, 1963, defendant No. 1 executed a deed of gift (Ext. 5) in favour of the plaintiff with respect to the suit lands by a registered document, and the document in question was also delivered by her to the plaintiff, which has been produced on her behalf in the suit. It further appears that after the execution of this document, the other defendants who had a reversionary right in the properties of defendant No. 1 started creating trouble, and it gave rise to some criminal proceedings, such as, a proceeding under Section 107 of the Cr PC and a criminal case under Section 379 of the Indian Penal Code. According to the further case of the plaintiff, during the pendency of the said cases, she was brought to Buxar by the defendants to effect a compromise in the said cases, and, thereby putting pressure and undue coercion on her as also by practising fraud, she was made to execute a document, namely, a deed of surrender (Bajidawa) (Ext. D) on the 1st July, 1963, with respect to the suit properties in favour of defendant No. 1. Defendant No. 1 on the same day executed two documents of gift in favour of the other set of defendants which are Exts. C and C/1. According to the plaintiff's case, she had got possession over the suit lands by virtue of the deed of gift in her favour; but after the execution of the aforesaid fraudulent document, the defendants started holding out threats to dispossess her, and, accordingly, the present suit was instituted for the reliefs already mentioned above. According to the plaintiff's case, this deed of surrender (Ext. D) was entirely inoperative, void and not binding on her, conferred no title upon the defendants. Defendant No. 1 appeared and filed her separate written statement supporting the case of the plaintiff. She, however, died sometime thereafter during the pendency of the suit.
3. The suit was contested by the other defendants. According to them, the deed of surrender executed by the plaintiff in favour of defendant No. 1 and the deeds of gift executed by defendant No. 1 in their favour were all valid and genuine documents and were not in any way vitiated on account of any act of fraud or coercion said to have been practised by them on the plaintiff.
4. The Munsif held that the deed of surrender was brought into existence by playing fraud and practising coercion upon the plaintiff. Accordingly, the said document was found by him to be an invalid document. Consequently, the two deeds of gift executed by defendant No. 1 in favour of defendants 2 to 5 conferred no title on them. In view of his findings that defendant No. 1 was in adverse possession of the suit lands, he passed a decree for recovery of possession in favour of the plaintiff.
5. Defendants 2 to 5, then, went in appeal. The learned Subordinate Judge, however, took a contrary view and held that the deed of surrender was a genuine and operative document and not in any way vitiated on account of either any act of coercion or fraud. In reply to an argument that in view of a valid title having already been conveyed in favour of the plaintiff by defendant No. 1 on her execution of the deed of gift (Ext. 5) in her favour, the deed of surrender would not extinguish the said title, the learned sub-judge relying upon a decision of the Supreme Court in Kuppuswami v. A.S.P.A Arumugam, AIR 1967 SC 1395 interpreted the document on the basis of this authority that the intention of the executant, namely, the plaintiff, was to convey her title in favour of defendant No. 1 and to extinguish her own right and title, and, accordingly, the deed of surrender amounted to an act of the plaintiff conveying the suit property in favour of defendant No. 1. He, accordingly, allowed the appeal and dismissed the plaintiff's suit.
6. It may also be stated that one of the issues framed by the trial Court, being issue No. 5, was to the effect as to whether the deed of gift dated the 8th April, 1963 (Ext. 5) executed by defendant No. 1 in favour of the plaintiff was fraudulent and had been executed under coercion as alleged by the defendants. This issue was answered in favour of the plaintiff, and he recorded a clear finding that there was no evidence on record to conclude in favour of the defendants in this regard. He, however, held this deed, while dealing with issue No. 6, to be inoperative on taking a view that the right of defendant No. 1 was only a right of maintenance out of the properties, and, therefore, she had no right to execute the deed of gift in favour of the plaintiff. This finding has not been affirmed in the manner recorded by the Munsif, by the learned Subordinate Judge. In paragraph No. 25 of his judgment, the learned Subordinate Judge has proceeded on the basis of the arguments advanced on behalf of the plaintiff-respondent in that court that this deed of gift (Ext. 5) bestowed a valid title on the plaintiff and as such it could not be extinguished by the execution of the deed of surrender. No doubt, in the last but one paragraph of his judgment, he has observed that he was fully convinced to hold that even if the plaintiff got a title by virtue of the deed of gift (Ext. 5), it had been extinguished by the deed of Bajidawa (Ext. D); but he has not recorded any concluded finding on this question.
7. Before proceeding to consider the various contentions raised by learned counsel appearing for the respective parties, I do not feel any difficulty to hold that the reason of the learned Munsif for holding that defendant No. 1 had no right to execute the deed of gift in favour of the plaintiff as she was only a maintenance holder is unsustainable in law. In view of his own finding that defendant No. 1 was in adverse possession over the suit properties and had acquired a title thereby in her own rights, her status from a mere maintenance holder had changed, she having already perfected her title on that account. Accordingly, she was perfectly competent to deal with the properties in question in whatever manner she liked as the full owner of the same. The deed of gift executed by defendant No. 1 in favour of the plaintiff was, therefore, not correctly considered and appreciated. The only ground on which the said document was challenged by the defendants was fraud and coercion exercised on defendant No. 1. In this court, Mr. Prem Lal, learned counsel appearing for the respondents, also invited my attention to the various recitals of fact in the said document, such as, the description of the plaintiff as the own daughter of defendant No. 1 and that she was living with her and nursing her which, according to the learned counsel, were not factually correct. Be that as it may, as already stated, the deed in question was not challenged by the defendants on these grounds at any stage. These are all matters relating to the realm of fact; and, if the defendants wanted to challenge the document on these materials, it was open to them to challenge this document on these grounds also and to establish as a fact that the testamentary disposition by defendant No. 1 was intended to take place and motivated due to the said factors. In this court, it is too late for them to urge these questions of fact for which no material was brought on the record.
8. Mr. Premlal, however, contended that the transfer by way of gift in favour of the plaintiff purported to have been made under the document (Ext. 5) was not complete as the same was not accepted by the plaintiff, and she herself had stated to this effect in the impugned document (Ext. D). It is true that a transaction of gift in order to be complete must be accepted by the donee during the lifetime of the donor. The fact of acceptance, however, can be established by different circumstances, such as by the donee's taking possession of the property or by possession of the deed of gift alone. There are numerous authorities in support of the proposition that if a document of gift after its execution or registration in favour of the donee is handed over to him by the donor which he accepts, it should amount in law to be valid acceptance of the gift. In support of this proposition, Mr. J.C Sinha relied upon a decision of the Judicial Committee in the case of Kalyanasundaram Pillai v. Karuppa Mooppanar, (AIR 1927 PC 42). In this case, their Lordships approved the view of the Full Bench of the Bombay High Court in Atmaram Sakharam Kalkye…Plaintiff v. Vaman Janardhan Kashelikar…Defendant ., (AIR 1925 Bom 210) (FB) that where the donor of immovable property handed over to the donee an instrument of gift duly executed and attested, it would amount to the acceptance of the gift by the donee, and the donor had no power to revoke the gift even if the registration of the instrument had not taken place. This court also in Ram Chandra Prasad v. Sital Prasad, (AIR 1948 Pat 130) took a similar view and held that the fact of the deed being handed over by the donor to the donee was sufficient evidence of his having accepted the gift, and that the acceptance of the said document was a relevant fact to prove the acceptance of the gift by him. To the same effect is the view of the High Court of Travancore and Cochin in the case of Esakkimadan Pillai v. Esakki Amma, (AIR 1953 Trav-Co 336). It is not necessary to multiply authorities in support of this proposition. From the above, discussion, it must be held that the deed of gift executed by defendant No. 1 in favour of the plaintiff was a valid and binding document resulting in a complete transfer of the interest of defendant No. 1 in respect of the suit properties to the plaintiff.
9. Now, it has to be seen whether the title and interest conveyed to the plaintiff under this deed of gift could extinguish or was retransferred in favour of defendant No. 1 by virtue of the deed of surrender (Ext. D). It is well settled that a deed of surrender simpliciter cannot affect any transfer of the title of the releasor in favour of the releasee. This proposition is not disputed. The lower appellate court, however, purported to interpret this document to see as to whether it amounted to a deed of gift conveying the title of the plaintiff in favour of defendant No. 1 and has been held that it did.
10. Mr. J.C Sinha challenged this finding of the court of appeal below on two grounds, namely, (1) that it was not a validly attested document and therefore could not be held to be a deed of gift, and (2) that the plaintiff herself having denied her own title in the property in question, she did not purport to transfer the same and such a document could not convey any property.
11. With respect to the question of due attestation of the document in question, according to Section 123 of the Transfer of Property Act “for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.” The word “attested” has again been defined in Section 3 of the said Act, which, in relation to an instrument, means “attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument …………and each of whom has signed the instrument in the presence of the executant ………” There are only two witnesses in this document (Ext. D); one is Chandradeo Cbaubey and the other, one Ramchandra Singh. Chandradeo Chaubey had also signed this document on behalf of defendant No. 1 as well as identified her before the Registrar. The endorsements made by this witness, however, may be sufficient to make him an attesting witness, but the other witness Ramchandra Singh has merely put his signature as an ordinary witness. The learned Subordinate Judge has committed an error of record in holding that this Ramchandra Singh was examined as D.W 5 to prove the deed as an attesting witness who was not even cross-examined on behalf of the plaintiff. D.W 5, however, is also named Ramchandra Singh, but he is a different man and was not a witness regarding this document. It must, therefore, be held that the deed (Ext. D) was not attested by at least two witnesses and, accordingly, does not satisfy the conditions of a valid deed of gift, as laid down by Section 123 of the Transfer of Property Act.
12. Coming to the second question as to whether any title of the plaintiff in the suit lands passed in favour of defendant No. 1 under the document (Ext. D), it is manifest from the recital of this document that she had completely disowned her own title in the suit lands. As such, it cannot be contended that she intended to transfer any property under the same. It is well settled that a transfer of property clearly contemplates that the transferor has an interest in the property which is sought to be conveyed. He cannot sever from his rights in the property and yet convey it to the transferee. All that, perhaps, was intended by this document (Ext. D) by defendant No. 1 by taking this document from the plaintiff was to have a declaration that the plaintiff had not derived any title under the deed of gift in her favour (Ext. 5), and, therefore, on execution of the document of surrender (Ext. D) no claim might be made by her, or, anybody else on her behalf.
13. In the document (Ext. B-1) in the Supreme Court case, already referred to above and relied upon by the court of appeal below, it was clearly stated that the releasor was the owner of the properties. The document expressly showed an intention to transfer the title, and its operative words sufficiently conveyed the title. It was also validly executed and attested and satisfied all the conditions of a valid gift. In these circumstances, it was held that the document was effective as an instrument of gift. The principle of that case, therefore, cannot be applied in abstract to the facts of the present case for the reasons already discussed above. The learned Subordinate Judge, therefore, has committed an apparent error of law in holding that the document (Ext. D) can be held to be a document of gift, thereby transferring the interest of the plaintiff in favour of defendant No. 1.
14. Once it is held that the plaintiff did acquire a valid title under the deed of gift (Ext. 5) in her favour executed by defendant No. 1, she could divest herself of this title only by a proper document satisfying the condition of law. The document in question, namely, the deed of surrender has already been shown and held to be invalid; therefore, no interest passed in favour of the defendant No. 1 under the said document.
15. The plaintiff, therefore, must be held to be possessed of her full title in the suit property and entitled to the reliefs claimed for in the suit.
16. In view of these clear findings regarding the invalidity of the deed of surrender in question, it is not necessary to examine the correctness of the finding of the court of appeal below on the question of fraud and coercion, etc.
17. For the foregoing reasons, I would allow this appeal, set aside the judgment and decree of the court of appeal below and restore that of the trial court but for reasons different from those of that court. The appellant shall be entitled to her costs also.
18. Appeal allowed.