Friday, 1 March 2019

Whether mentioning of Rs.5,000/- for purpose of valuation can be said to be consideration received by donor for executing gift deed?

 As there is a serious dispute with regard to
receipt of consideration of Five Thousand Rupees for
executing the gift deed, we have carefully perused the
copy of the gift deed which is placed on record. A

perusal of the gift deed makes it clear that what is
mentioned on the first page of the document, is the
valuation of the property for the purpose of stamp duty
and registration charges which is arrived at Rs.5,000/-,
but not the consideration received by the donor for
executing the gift deed. The gift deed is correctly
interpreted by the Trial Court and the First Appellate
Court. But by misconstruing the same, the High Court has
held that gift was evidenced by a consideration amount
of Rs.5,000/-. It is true that if the gift is evidenced
by consideration,same cannot be valid one within the
meaning of Section 122 of the T.P. Act. But it is clear
from the document itself that no consideration is
passed on as per the registered gift deed. Mentioning of
Rs.5,000/- in the first page, for the purpose of
valuation, cannot be said to be a consideration received
by the donor for executing the gift deed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2361 OF 2019
[Arising out of S.L.P.(C) No.36299 of 2016]

Jagdish Chander  Vs Satish Chander And Ors.
Dated:February 27, 2019

R. Subhash Reddy, J.

1. Leave granted.
2. The appellant in this appeal was the first
defendant in the suit in, Civil Suit No.RBT 1251/95/92
filed before the Sub-Judge, 1st Class, Jawali, District
Kangra, Himachal Pradesh. This appeal is filed aggrieved
by the judgment dated 25.10.2016 in Regular Second
Appeal No. 383 of 2007 passed by the High Court of
Himachal Pradesh, at Shimla.
3. The first respondent-plaintiff has filed the
aforesaid suit for declaration to the effect that he is
joint owner to the extent of 435/924 shares i.e 0-04-57
hectares in the suit scheduled land. It was his case in

the suit that Smt. Vidya Devi, the mother of the
plaintiff and the first defendant was the original owner
of the suit land. She executed a registered Will in
favour of him and the appellant herein on 09.04.1991. As
per the Will, 0-03-84 hectares of land was bequeathed to
the plaintiff and 0-02-85 hectares of land was
bequeathed to the appellant herein. Smt. Vidya Devi had
also executed a Will in respect of other land in favour
of the proforma respondent nos.2 & 3 herein. It is the
allegation of the respondent no.1-plaintiff that the
appellant herein by playing fraud on Smt. Vidya Devi, on
23.04.1991, got executed a fictitious gift deed without
her knowledge and consent. It is further pleaded that
the suit land is ancestral property and the parties are
governed by Kangra Customary Law to inherit the land as
such he is entitled for declaration as prayed for.
4. The appellant-defendant No.1 has contested the
suit. While denying various allegations made by the
plaintiff, it was the case of the appellant herein that
Smt. Vidya Devi had executed a valid gift deed in his
favour out of her free will, consent and without undue
influence. The gift deed was registered with the Sub-
Registrar as such question of fraud does not arise.

It was pleaded, by virtue of the gift, the appellant has
become the owner of 558 shares out of 924 shares, out of
which 285 shares were due on account of the gift deed.
The appellant also denied the allegation of the
respondent no.1-plaintiff that the suit land was
ancestral property and governed by Kangra customary law.
5. The trial Court by judgment dated 2nd June, 2003 has
dismissed the suit filed by the first respondent herein.
The trial Court on appreciation of evidence on record
has held that the donor Smt. Vidya Devi has never
challenged the gift deed during her lifetime. The first
respondent-plaintiff being a third party to the gift
deed, it is not open to him to challenge the validity of
the gift on any ground. Further the trial Court has held
that the evidence on record is not sufficient to hold
that any fraud has been played on Smt. Vidya Devi for
execution of the gift deed. The plea of the plaintiff
that as the document of gift is evidenced by
consideration of Rs. 5,000/- the same is in violation of
provision under Section 122 of the Transfer of Property
Act, 1882 is also negatived by recording a finding that
there is no endorsement of receipt of consideration
amount. On the allegation of the plaintiff that the suit

land is ancestral property and they are covered by
Kangra Customary law, the trial Court has held that
Vidya Devi has derived title by way of will from her
late father as such suit property is to be considered as
self acquired property of Smt. Vidya Devi.
6. With the aforesaid findings, the trial Court has
dismissed the suit.
7. Aggrieved by the judgment and decree passed by the
trial Court dismissing the suit, the first respondent
has filed first appeal before the Additional District
Judge, Fast Track Court, Kangra at Dharamsala, Himachal
Pradesh. Even the First Appellate Court has agreed with
the findings of the trial Court by judgment dated
2nd August, 2007 and the First Appeal (Civil Appeal No.
147-J/05/03) was dismissed.
8. Aggrieved by the same, the first respondentplaintiff
has preferred second appeal in the High Court
in Regular Second Appeal No. 383 of 2007.
9. The High Court, by impugned judgment, has allowed
the appeal by reversing the judgments of both the courts
below, mainly on the ground that the gift deed was
executed by receiving consideration of Rs.5,000/-. It
is held that in view of such consideration received by

the donor, same is not in accordance with the provisions
of T.P. Act. Further, the High Court also has taken into
consideration the document of mutation (Ext.PW-3/F) with
regard to suit property, where delivery of possession of
the land is recorded on receipt of Rs.5,000/-. Further,
the High Court opined that as much as Will was executed
on 09.04.1991 in favour of Respondent no.1 and the
appellant herein, there was no reason to execute gift
deed within a short span of time, i.e, on 23.04.1991.
With the aforesaid findings, the appeal is allowed, by
decreeing the suit for declaration as prayed for.
10. We have heard the learned counsel for the appellant
and also learned counsel for the respondents.
11. In this appeal, it is mainly contended by learned
counsel for the appellant that the High Court, without
deciding any substantial question of law, has interfered
with the factual findings recorded by the Trial Court as
well as the First Appellate Court, by re-appreciating
the evidence on record. It is submitted that in exercise
of power under Section 100 of the Code of Civil
Procedure, it is not open for the High Court to reappreciate
the evidence on record and to come to a
different conclusion by disturbing the findings recorded

by the trial Court, as confirmed by the First Appellate
Court. Further, it is contended that the High Court
while relying on the document (Ext. PW-3/F) held that
gift deed was executed by receiving consideration amount
of Rs.5,000/-. It is submitted that the original
document is in vernacular language. The figure ‘5,000’
as mentioned, on the first page of the document, is only
for the purpose of valuation, for payment of stamp duty,
but same is erroneously considered as consideration by
the High Court. It is further submitted that as the gift
deed was not under challenge, it was not open for the
High Court to overturn the findings recorded by the
Trial Court and the First Appellate Court, for granting
relief of declaration as prayed for.
12. On the other hand, it is contended by learned
counsel appearing for the respondents that there was
absolutely no reason for executing the gift deed by Smt.
Vidya Devi, on 09.04.1991, within a short span of time,
after executing the Will. It is contended that as much
as the gift deed is executed within few days after the
execution of Will, that itself creates an amount of
doubt on the genuineness of gift deed. It is submitted
that such gift deed was got executed without her

knowledge and consent. It is also submitted that as the
gift deed is evidenced by receipt of consideration, and
further in view of the documentary evidence relating to
mutation (Ext.PW-3/F), there are no grounds to interfere
with the judgment of the High Court.
13. Having heard the learned counsels on both the
sides, we have perused the impugned judgment of the
the High Court and other material placed on record. At
the outset, it is to be noted that the gift deed which
is executed in favour of the appellant herein, is a
registered gift deed. It is also clear from the evidence
on record that Smt. Vidya Devi has acquired title to
the property by way of Will. Same is evident from the
Ext.D-4, a judgment in Civil Suit No.163 of 1987,
decided on 22.08.1989. In the said suit, it is clearly
held that Smt. Vidya Devi has acquired title to the
property by way of Will, as such, the property is to be
considered as a self-acquired property of Smt. Vidya
Devi.
14. As there is a serious dispute with regard to
receipt of consideration of Five Thousand Rupees for
executing the gift deed, we have carefully perused the
copy of the gift deed which is placed on record. A

perusal of the gift deed makes it clear that what is
mentioned on the first page of the document, is the
valuation of the property for the purpose of stamp duty
and registration charges which is arrived at Rs.5,000/-,
but not the consideration received by the donor for
executing the gift deed. The gift deed is correctly
interpreted by the Trial Court and the First Appellate
Court. But by misconstruing the same, the High Court has
held that gift was evidenced by a consideration amount
of Rs.5,000/-. It is true that if the gift is evidenced
by consideration,same cannot be valid one within the
meaning of Section 122 of the T.P. Act. But it is clear
from the document itself that no consideration is
passed on as per the registered gift deed. Mentioning of
Rs.5,000/- in the first page, for the purpose of
valuation, cannot be said to be a consideration received
by the donor for executing the gift deed.
15. With reference to the order of mutation Ext.PW3/F,
the High Court held that the order of mutation embodied
in Ext.PW3/F conveys the alienation under Ext.DW2/A and
that the same being a coloured transaction or a sham
transaction. In Ext.PW3/F-mutation, it is stated that

“Gift Deed registered valuating Rs.5,000/-.” The order
of mutation reads as under:-
“Mutation of the Gift Deed executed by
Smt.Vidya Devi to Jagdish Chander as
identified by Tilak Raj, Advocate at
Nurpur which has the value of Rs.5,000/-.
Registry put up for transfer of ownership
and possession valuing Rs.5,000/-.
Therefore, mutation of the registry
bearing No.162 dated 23.04.1991 regarding
land Khasra No.235/710, New Khasra
No.2132, 2133, area 0-02-85 hectare out of
0-06-1 hectare is sanctioned.”
By perusal of the above order of mutation, it is seen
that the order of mutation also only refers to the
valuation of the property as Rs.5000/-. There is nothing
to indicate that the said amount of Rs.5,000/- has been
paid as consideration to the donor. Both the Gift Deed
Ext.DW2/A as well as the order of the mutation only
indicate the valuation of the property as Rs.5,000/-
only for the purpose of stamp duty or registration
charges and for payment of fees for mutation
respectively. The High Court erred in saying that
Ext.DW2/A when read with Ext.PW3/F candidly convey qua
the alienation of the suit land under Ext.DW2/A and the
donor receiving consideration from the donee.

16. Though, it is the contention of the respondent
that such gift deed was not executed by
Smt.Vidya Devi on her free will and consent, there is no
evidence on record placed to substantiate such
allegation. Further, in absence of challenge to the gift
deed, it is not open to record any findings on the
validity of the gift. The High Court also committed
error in relying on the mutation proceeding, which
itself is based on the registered gift deed. Further,
the High Court fell in error in re-appreciating the
evidence on record to come to a different conclusion
than the findings recorded by the Trial Court, in
exercise of power under Section 100 of the Code of Civil
Procedure. As the findings recorded by the Trial Court
and the First Appellate Court are in accordance with the
evidence on record, and further the High Court has
misconstrued the document of gift, we are of the view
that judgment of the High Court is liable to be set
aside.
17. For the aforesaid reasons, we allow this appeal and
set aside the impugned judgment of the High Court dated
25.10.2016 passed in Regular Second Appeal No.383 of
2007. Consequently, the suit filed in Civil Suit No.

RBT1251/95/92 on the file of Sub-Judge, First Class
Jawali, Kangra, Himachal Pradesh, stands dismissed, with
no order as to costs.
.................... J.
[R. Banumathi]
.................... J.
[R. Subhash Reddy]
New Delhi;
February 27, 2019

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