TMI Blog1974 (9) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 had already separated amongst themselves. The dispute in (his 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 plaintiff's 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. 6. 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties 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. I. In this court, Mr. Prern 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 immovabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m might be made by her, or, anybody else on her behalf. 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. 13. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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