Jyotirmay Bhattacharya, J.@mdashThis first appeal is directed against the judgment and decree passed by the Learned Civil Judge (Senior Division), 2nd court at Hooghly on 29th April, 2005 in Title Suit No. 69 of 2002 at the instance of the plaintiff/respondent. Admittedly, the plaintiff executed a deed of gift on 27th March, 1996 bequeathing the suit property in favour of his son the defendant/respondent herein. The deed of gift was accepted by the defendant/respondent, who mutated his name as the owner of the said property in the revenue records of the State as well as in the Municipal records. He has constructed a boundary wall surrounding the suit property to protect his property.
2. Long after the execution and registration of the said deed of gift the plaintiff (father) filed a suit on 28th June, 2002 seeking declaration that the deed of gift executed by the plaintiff (father) in favour of the defendant/respondent(son) bequeathing the suit property which was registered at the office of the Additional Joint Sub-Registrar of Serampore at Singur bearing No. 824 of 1996 is void, inoperative, ineffective and not binding upon the plaintiff as the defendant''s right under the said deed of gift has been forfeited having violated the condition and the terms of the gift deed vide plaintiff''s letter dated 1st June, 2002.
3. He has also prayed for a decree for cancellation of the said gift deed and permanent injunction for restraining the defendant and/or his promoters, agents, successors or anybody claiming right, title, interest under him from taking possession of the scheduled land and making any construction thereon or changing the nature and character thereof. He has also prayed for a decree for perpetual or mandatory injunction against the defendant and his agents and promoters directing them to remove all the building materials heaped and piled up at the suit property and the illegal construction raised thereon which has caused immense damage to the suit property and restore it to its original condition removing the newly constructed walls and restraining them by way of perpetual injunction from assertion of right and/or from the commission of any act which would be contrary to the rights of the plaintiff, and for return of the original deed of gift dated 27th March, 1996 to the plaintiff within a specified date and for damages amounting to Rs. 1,31,000.00 for causing loss to the plaintiff by cutting down all the valuable fruit bearing trees forcibly and removing the timber from the suit property during the pendency of the suit.
4. It was alleged in the plaint that defendant is the only son and the first child of the plaintiff. He was brought up by the plaintiff with unprecedented love and care. The defendant is a renowned doctor (Physician). He was married to a fair and apparently sober looking girl with a moderate family background. The defendant got a job in Coal India Ltd. in the year 1984 and he was posted at Assansol. Since then he started living at Assansol with his wife. However, after some time the defendant got another job in Indian Railways and came back with his wife to live with the plaintiff''s family members at Uttarpara. When the plaintiff, who was an Accountant General, in Indian Audit and Accounts Department, was transferred to Delhi Office, the defendant started quarreling with the mother and sister on flimsy grounds. Thus, ultimately, peace in the plaintiff''s family was disturbed. Subsequently, in a meeting, held with neighbors and well-wishers, it was decided that the defendant will leave the plaintiff''s house and stay separately with his family. The defendant then left the plaintiff''s house without disclosing his address. However, subsequently, at the intervention of the sister and her husband, the defendant and his wife agreed to come back to the plaintiff''s house. The plaintiff also agreed to accommodate them in his house. The plaintiff also agreed to make some addition or alteration to his house for providing them a suitable accommodation therein. However, ultimately the idea of renovating the old house was abandoned as the defendant requested the plaintiff to give him some vacant land where he would construct his own house. The plaintiff, out of love and affection, executed and registered a deed of gift bequeathing the suit property in favour of his son. Though the defendant initially decided to construct his residential house on the said land but ultimately he found that Uttarpara was inconvenient for him as he had to travel a long distance for attending his place of service. Ultimately he purchased a ready house at 7/56, Diamond Park, Joka, Kolkata-700104 where he shifted himself along with his family members. The plaintiff also gave a sum of Rs. 3,00,000.00 to the defendant at the request of the defendant for purchase of the said property. The plaintiff also gave matured values of Rs. 1.72 lakhs to the defendant. After the defendant purchased the said house at Joka, he did not require the gifted land at Uttarpara anymore, which he agreed to return to the plaintiff. Since subsequently the defendant did not reconvey the gifted land to the plaintiff and on the contrary he tried to ascertain from the plaintiff about his willingness to purchase the said property at a price not less than fifteen lakhs which was the highest price offered to the defendant for transferring the said property to a proposed purchaser, the plaintiff then realized that he was duped by the dishonest assurance given by the defendant for constructing a residential house by him and staying there to look after him during his old age. The plaintiff then realized that the defendant had no sincere and genuine intention to construct any residential building therein and/or stay there with his family. The plaintiff thus, realized that he was deceived by his son and his wife, who caused the plaintiff to execute the deed of gift in favour of the defendant for bequeathing the suit property in his favour and thus, he filed the said suit by claiming the aforesaid reliefs.
5. The defendant contested the said suit by filing written statement denying the material allegations contained in the plaint. He stated that after he became a doctor he got a job in Coal India Limited and since then he along with his wife started living at the place of his work at Assansol. Subsequently, he got an appointment in Eastern Railway when he again came back to his father''s house at Uttarpara. But since he subsequently, found it difficult to commute to the place of his employment from Uttarpara he shifted his family to a rented accommodation at Becharam Street Lane, Behala. Thereafter he purchased a ready and completed house at Joka and started living there permanently. He further alleged that he never pressurized his father to gift the suit property to him. He asserted that his father executed two gift deeds; first of such gift deed was executed in the year 1996 whereby he bequeathed about 7 kottahs 11 chataks 30 Sq. Ft. of bastu land to his daughter and thereafter he executed another deed of gift for bequeathing 5 kottahs of bastu land (approximately) to his son. He further stated that the said deed of gift was executed by his father voluntarily and the said deed of gift was also accepted by him. He however, asserted that immediately after acceptance of the said gift he mutated his name as owner thereof in the revenue records of the State as well as in the records of the Municipal authority. Subsequently, he requested his father to transfer his absolute interest in the passage leading to the gifted property so that he can utilize the gifted property exclusively without any interference. But the plaintiff (father) did not agree to such proposal. The defendant further contended that the gift was not a conditional gift. Rather he claimed that it was an absolute gift. According to him such a gift cannot be cancelled by the donor, after its acceptance by the donee. He thus, prayed for dismissal of the said suit.
6. Parties led their evidence in support of their respective claims. The deed of gift was admitted into evidence as Ext. 1, several correspondences made between the parties regarding transfer of the suit property were also admitted into evidence on proof by the plaintiff. The defendant has proved the mutation certificate issued by the Municipal authority (Ext. C). Tax receipt showing payment of Municipal rates and taxes by the defendant was admitted into evidence and was marked as (Ext. A). The assessment register corresponding to the suit premises issued by the Municipal authority shows that defendant''s name was entered therein as owner of the said property. The Learned Trial Judge, after considering the pleadings of the respective parties and their evidence both oral and documentary, came to a conclusion that the deed of gift was executed and registered by the plaintiff out of love and affection for his son. The Learned Trial Judge held that the deed of gift was not a conditional gift as no condition was imposed upon the defendant for constructing a dwelling unit therein. The Learned Trial Judge further held that the deed of gift was an absolute gift as by such gift not only the exclusive right of enjoyment was given to him but also right of transfer of the gifted property was also conferred upon him. The Learned Trial Judge thus, held that since this was an absolute gift and the said gift was also accepted by the defendant and possession has also been delivered to him, such a gift cannot be cancelled and/or revoked by the donor at his will.
7. The suit was, thus, dismissed by the learned Trial Judge by the Judgment and decree dated 29th July, 2005. The legality and/or correctness of the said judgment and decree passed by the Learned Trial Judge has been challenged by the plaintiff (father) in the present appeal.
8. We have heard the Learned Counsel appearing for the parties, we have considered the materials on record including the judgment and decree challenged in this appeal.
9. Now we are required to consider as to whether the Learned Trial Judge was justified in dismissing the said suit in the facts and circumstances of the instant case.
10. Mr. Basu, Learned Advocate, appearing for the appellant submitted that though execution and registration of the said deed of gift is not disputed by his client but he wanted to avoid the said gift, as according to him, the said gift was procured by the defendant and his wife by exercising fraud and undue influence upon him. He further submitted that exercise of undue influence in procuring the said gift deed is an intangible plea taken by his client which can only be ascertained from the circumstantial evidence leading to execution and registration of the said deed of gift by the plaintiff in favour of his son. He further contended that the defendant is a doctor and as such the plaintiff expected that his son will stay in the suit property by constructing a dwelling unit so that he can be looked after by his son during his old age. He further contended that such expectation was developed within the plaintiff as the defendant assured the plaintiff that he would construct a dwelling unit in the suit property and will stay there with his family, if the said property is gifted to him. He thus, contended that the defendant, in fact, emotionally blackmailed his father''s sentiment in procuring said deed of gift. Even though he knew from the very beginning that he would never construct any dwelling unit there nor he will settle there with his family, still then he behaved in such a fashion which induced his father to believe that if the suit property is given to the defendant, then he will construct a dwelling unit therein and will stay there with his family and the plaintiff (father), in fact, gifted the said property to his son with the expectation that his son will construct a dwelling house therein and he will settle there. He thus, contended that it is not a case where the plaintiff wanted to avoid the said gift deed on the ground of non-fulfillment of the condition imposed in the deed of gift but it is a case where he wanted to cancel the deed of gift as the said deed of gift was procured by exercising fraud and undue influence upon the father by his son who induced him to execute the said deed of gift by giving a false assurance that he would stay in the suit property after constructing a dwelling unit therein. Thus, according to Mr. Basu, though the Learned Trial Judge considered the merit of the said suit from the angle of the plaintiff''s right to revoke such a deed of gift for non-fulfillment of the condition imposed in the deed of gift but, in fact, this is a case where the court is required to consider as to whether the deed of gift was caused to have been executed by the plaintiff by exercising fraud and misrepresentation by the defendant upon his father or not. Taking us through the evidence on record, he tried to impress upon us that the defendant at no point of time had any intention to settle on the suit property by constructing a dwelling unit therein. He submitted that knowing fully well that defendant had no intention to settle there, after constructing a dwelling house therein, he and his wife induced the plaintiff to believe that if the said suit property is gifted to the defendant, the defendant would construct a dwelling unit therein and thereafter will settle there permanently. Thus, according to him, the defendant induced the plaintiff to execute and register the said deed of gift by emotionally blackmailing the fatherly affection of the plaintiff towards his only son. The plaintiff ultimately realized that the defendant had no intention to settle there, after constructing a dwelling unit therein, when the plaintiff received a letter from his son being Ext. 2 whereby he, for the first time, intimated the plaintiff, his intention to sell the said property and ascertained the plaintiff''s willingness to purchase the said property by paying the price of that Rs. 15,00,000.00 which has already been offered to him for transfer of the suit property from an intending purchaser. It is only after receiving the said letter, the plaintiff realized that the defendant procured the said deed of gift from him by exercising fraud and undue influence upon him and the defendant at no point of time had any intention to settle in the said property after constructing a dwelling unit therein and immediately thereafter he filed the instant suit seeking the aforesaid relief. During the pendency of the said suit the plaintiff found that a stranger was taking steps for constructing a multi-storied building therein, then the plaintiff amended the plaint seeking additional relief by way of mandatory injunction for removal of the building materials heaped on the suit property and for demolition of the construction raised therein.
11. Mr. Basu relied upon a decision of a Division Bench of this Hon''ble Court in the case of
12. Mr. Asoke Banerjee, Learned Senior Counsel, appearing for the respondent refuted such submission of Mr. Basu by submitting that the plaintiff all throughout wanted to avoid the said deed of gift on the ground of non-fulfillment of the condition imposed upon the defendant in the deed of gift itself and as such the plaintiff cannot make out any new case for avoiding the said deed of gift for the first time before this court.
13. He further submitted that the pleadings regarding exercise of fraud and undue influence in the process of execution of the deed of gift by the plaintiff is absent in the instant case. He pointed out that though the plaintiff mentioned in the plaint that the said deed of gift was procured from him by exercise of fraud and undue influence upon him by his son and his wife but details of such fraud and undue influence which was alleged to have been exercised upon him in the process of execution and/or registration of the said deed of gift as required to be pleaded in the plaint as per the provision contained in Order VI, Rule 4 of the Civil Procedure Code, have not been mentioned in the plaint.
14. He further submitted that in case one intends to avoid any transaction on the ground of fraud and misrepresentation, he is required to plead the details of such fraud and misrepresentation alleged to have been exercised upon him with reference to the date when such fraud and misrepresentation was exercised upon the executant and the place where such fraud and/or misrepresentation was exercised upon him. Taking us through the entire pleadings of the plaint, Mr. Banerjee submitted before us that such pleadings of fraud and misrepresentation is absent in the instant case and as such the deed of gift cannot be cancelled on the ground of fraud and misrepresentation.
15. Mr. Banerjee further submitted that the deed of gift was executed by the father voluntarily out of his love and affection towards his son. The said deed of gift was accepted by the son and such acceptance was acknowledged by him in the deed itself. He also mutated his name not only in the revenue records of the State but also in the records of Municipal authority. He has also constructed a boundary wall surrounding the said property after taking possession thereof. Thus, he contended that once the deed of gift was accepted and possession was delivered to him and the deed of gift having thus been acted upon, it cannot be cancelled and/or revoked on any ground, save and except on any of the grounds as mentioned in Section 126 of the Transfer of Property Act.
16. Mr. Banerjee, thus, contended that since none of the ingredients for suspension and/or revocation of the deed of gift as provided u/s 126 of the said Act is proved in the instant case, the Learned Trial Judge was justified in rejecting the plaintiff''s suit. He further contended that if the deed of gift is read carefully then it will appear therefrom that the deed of gift was an absolute gift as not only the exclusive right and/or interest of the donor was absolutely transferred in favour of the donee but also absolute right of transfer the said property in favour of any person of his choice was given to him by the donor. He thus, prayed for dismissal of this appeal.
17. Let us now consider the merit of the appeal in the facts of the present case in light of the submission made by the respective parties as recorded hereinabove.
18. Here is the case where we find that the execution of the deed of gift by the plaintiff and registration thereof by him is not disputed. Acceptance of the deed of gift by the donee is apparent on the face of the deed itself, as acceptance of the gift by the defendant is recorded and acknowledged by the defendant himself in the deed itself. The defendant''s possession of the suit property also cannot be denied by the plaintiff as admittedly the defendant after obtaining such gift not only mutated his name in the revenue records as well as in the Municipal records but also he constructed the boundary wall surrounding the suit property. The deed of gift is also in the custody of the defendant. Though the plaintiff stated that the said deed of gift was kept in the custody of his wife but subsequently the son received the deed of gift from his mother by misrepresentation, but the plaintiff failed to prove that the deed of gift was in the custody of the plaintiff''s wife and the defendant received the same from his mother''s custody by misrepresentation. Be that as it may on consideration of the pleadings of the parties and their evidence, we can safely hold that the deed of gift was executed and registered by the plaintiff and the same was accepted by the defendant and the deed of gift was duly acted upon by the parties and the possession of the gifted property was delivered by the plaintiff to his son. As such we hold that the deed of gift is a valid deed of gift u/s 122 of the Transfer of Property Act. The validity of the said deed of gift cannot be challenged in the instant case as the plaintiff himself has prayed for cancellation of the said deed of gift on the ground of non-fulfillment of the condition imposed upon the donee in the gift deed itself. Though the plaintiff initially pleaded for avoiding the said deed of gift on the ground of non-fulfillment of the condition imposed upon the donee in the deed of gift but ultimately he abandoned such claim and fall back on the ground of fraud and misrepresentation to avoid the said deed of gift, as according to the plaintiff, the intention of making such transfer by way of gift did not originate from the plaintiff himself and he was induced to execute the said deed of gift as he was made to believe that his son will construct a dwelling house in the suit property and will settle there permanently, if the suit property is gifted to him. Though the plaintiff stated in his evidence that such a representation was made by the defendant to him before execution of the said deed of gift and he was, in fact, induced to execute the said deed of gift with an expectation that the defendant will honour his assurance but, in fact, he subsequently realized that he was deceived by his son who, in fact, had no intention at any point of time to construct any house in the suit property and/or settle there permanently. He further stated that he realized that he was deceived, only when he received a letter being Ext. 2 from his son.
19. In this context we have examined the entire pleadings and evidence of the parties. In fact, normally all transactions are followed by some discussion and the thinking process of the transferrer is developed out of such discussion with the persons who participated in such discussion with the transferrer. In the present case we also find that prior to the execution and registration of the said deed of gift some discussions were held amongst the family members of the plaintiff, but ultimately if the statements made in the deed itself are considered then we find that the decision for execution of such deed of gift originated with the transferrer without being influenced by the outcome of such discussion. In this context if we consider the deed itself, we find that the plaintiff himself stated therein that he executed the said deed of gift out of his love and affection for his son. In fact, he earlier executed another gift deed in favour of his daughter out of love and affection. Thus execution of the impugned deed of gift was not the first deed of gift executed by him. He executed the said deed of gift consciously and with clear understanding of the consequence of execution of such deed of gift. The plaintiff stated in the said deed of gift that the defendant being his only son is very much affectionate to him. He further stated therein that since the defendant had no landed property and/or house property he decided to gift the said landed property to his son so that he can construct a house therein after taking loan from his employer. He further stated therein that he executed the said deed as he considered that execution of such a deed is his duty to settle his son. The plaintiff has not stated in the said deed of gift that he executed the said deed of gift on the request of the defendant. He has also not stated therein that he was induced to execute the said deed of gift by the defendant and his wife as he was assured by them that if the said landed property is gifted to the defendant he will construct a dwelling house therein and settle there permanently. On the contrary, by the said deed of gift he has transferred his right title and interest in favour of his son viz, the defendant herein exclusively. He also conferred right of transfer upon his son authorizing him to transfer his right title and interest in favour of any person of his choice. If the statements made by the plaintiff in the deed itself are taken into consideration in its true spirit, we have no hesitation to hold that the plaintiff, at the time of execution of the said deed of gift had no intention to impose any condition upon the defendant to construct any residential house therein. This conclusion we can arrive at after considering the right of transfer which the plaintiff conveyed in favour of his son, viz, defendant herein by the said deed of gift. Had there been any intention to impose any condition upon the defendant as contended by Mr. Basu, then the plaintiff would not have given the right to transfer the suit property to his son by the said deed of gift.
20. The plaintiff was an educated person, holding a very high post (Accountant General) in the office of the Indian Accounts & Audit Department. This is not the solitary occasion when he executed the deed of gift. He earlier executed a deed of gift in favour of his daughter. Subsequently, he executed the impugned deed of gift in favour of his son. The statement made in the gift as to the reason which prompted him to execute the said deed of gift, was never denied by him as untrue and/or incorrect. As such we can safely hold that the reflection of his mind setup for execution of the said deed of gift is truly reflected in the deed itself. As such we have no hesitation to hold that the plaintiff executed the said deed of gift voluntarily and out of love and affection towards his son. His intention to execute the said gift deed originated within himself and as such he cannot subsequently avoid the said deed of gift after the said deed of gift was acted upon by the parties.
21. Hence we find no reason to disturb the findings of the court below and/or conclusion arrived at by the court below in the impugned judgment and decree. We have find no merit in this appeal.
22. Again the suit is barred by the provision of Section 34 of the Specific Relief Act, as no relief for recovery of possession was sought for by the plaintiff in the suit, though it was admitted by the plaintiff that he is out of possession and the suit property is now in the possession of the Developer engaged by the defendant who is constructing a multi-storied building on the suit property.
23. Thus for the reasons as stated above, we hold that the plaintiff cannot get any relief in the suit.
24. The appeal is, thus, stands dismissed. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties as expeditiously as possible.
Arindam Sinha, J.
I agree.
