Whether plea of blending can be considered at appellate stage without pleading?

HIGH COURT OF ORISSA: CUTTACK

S.A. No.288 of 1982

From the judgment and decree dated 6.3.1982 and 23.3.1982
respectively passed by Shri B.N. Dash, learned Additional District
Judge, Puri in T.A. No.2/63 of 1979/1978 reversing the judgment
and decree dated 19.4.1978 and 8.5.1978 respectively passed by
Sri S. Patnaik, learned Addl. Sub-Judge, Puri in O.S. No.44/74 of
1977/76-I.

Hadibandhu Patnaik ………………. Appellant
—versus–
Giridhari Patnaik (since dead)
through L.Rs. ……………….. Respondents

For Appellant : Mr. Gautam Mukherji,
Miss Sagarika Sahoo, Advocates
For Respondents : Mr. N.K. Sahu,
Mr. Manoj Das, Advocates

JUDGMENT
P R E S E N T:

THE HON’BLE DR. JUSTICE A.K. RATH

Date of Hearing : 25.10.2017 │ Date of Judgment: 06.11.2017

Dr. A.K. Rath, J. This is an appeal by the defendant against the judgment of the learned Additional District Judge, Puri reversing the judgment of the learned Additional Sub-Judge, Puri.

2. The dispute pertains to a house situate in mouza- Kumbharpara in Puri town. The respondent as plaintiff instituted the suit for declaration of title. The case of the plaintiff is that the suit house originally belonged to Nilakantha Mohanty, maternal grandfather. His maternal grandfather donated the house to him and his brother, Banshidhar, by means of a registered gift deed dated 31.5.1926, Ext.1, and delivered possession to them through their parents, since they were minors. The defendant was not born at the relevant point of time. His brother, Banshidhar, died within a year of execution of the gift deed. His eight annas interest passed on him by way of survivorship. He became the absolute owner thereof. It was pleaded that the defendant was residing in the village. He became ill in the year 1968 and came to Puri town for treatment. He stayed in the house with his brother. Since the defendant raised objection for construction of a pucca kitchen on the vacant portion of the house, he instituted the suit seeking the reliefs mentioned supra.

3. The defendant entered contest and filed written statement. The case of the defendant is that the house had been donated to his parents although the gift deed had been executed in the name of his two brothers. After death of their parents, he along with the plaintiff succeeded to the property having eight annas interest each and stayed there. During life time of the parents, the house was partitioned in the year 1960. The western half fell to his share and the eastern half fell to the share of the plaintiff.

4. Learned trial court struck five issues. Parties led evidence. Learned trial court came to hold that though the gift deed was executed in favour of the plaintiff, but the same had not been acted upon. The deed was nominal one. No title was passed. The plaintiff and defendant are the joint owners in possession of the house. There was no partition between the parties. It further held that on the death of the maternal grandfather of the parties, the disputed house devolved upon their mother. On the death of their mother, both the parties as well as their sister inherited the same. Held so, it dismissed the suit. The plaintiff challenged the judgment and decree before the learned District Judge, Puri, which was subsequently transferred to the court of the learned Additional District Judge, Puri and renumbered as T.A. No.2/63 of 1979/1978. The appeal was allowed.

5. The second appeal was admitted on the following substantial questions of law.

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“If upon the death of the donee, the property devolved on his legal representatives or according to the recitals in the deed of gift.”
6. Heard Mr. Gautam Mukherji, learned counsel for the appellant and Mr. N.K. Sahu, learned counsel for the respondents.

7. Mr. Mukherji, learned counsel for the appellant submitted that the gift deed dated 31.5.1926, Ext.1, was a nominal one. Possession of the property was not delivered to the donees. The donees were six years and two years respectively. The grandfather had kept the gift deed. The plaintiff had not taken steps to mutate the land in his favour. Their mother used to pay monthly tax. The gift deed was retained by the donor. He further contended that after death of Banshidhar, his share does not devolve upon the plaintiff. There was a clause in the gift deed that in case of death of the donees during life time of their parents, the property will revert back to the parents. There was no recital that in case of death of one of the donees, the entire property will devolve upon the other donee. After death of Banshidhar, his share devolved upon all heirs of the mother. In the absence of any evidence regarding delivery of possession and subsequent conduct of parties, it cannot be said that the gift deed has been acted upon. Referring to Sec.122 of the Transfer of Property Act, he submitted that a transaction of gift, in order to complete, must be accepted during the life time of the donor. All the parties live together in the house. The plaintiff was 25 years when his grandfather died. The Municipality Tax was paid by their mother. The plaintiff admitted that the gift deed had not been acted upon. He further contended that when the donor intended that the property shall be enjoyed by both the donees, the plaintiff cannot claim exclusive right over the suit property, after death of the other donee. The other brother died before acceptance of the gift deed. Since the condition imposed in the gift deed had not been fulfilled, the same became void. The plaintiff admitted that the defendant was in possession of the suit property. There was no prayer for recovery of possession. The alternative submission of learned counsel for the appellant is that the plaintiff along with the parents and defendant were staying in the suit house. The plaintiff by his conduct had allowed blending of the property in question and thrown to the same joint family stock. The suit property became a joint family property of the parties. He cited decision in the case of Mallesappa Bandeppa Desai and another vs. Desai Mallappa alias Mallesappa and another, AIR 1961 SC 1268, Smt. Pushpa Devi vs. The Commissioner of Income-tax, New Delhi, AIR 1977 SC 2230, Anathula Sudhakar vs. P. Buchi Reddy (Dead) By L.Rs. and others, AIR 2008 SC 2033, Bancha Bhol and others vs. Saria Bewa and others, AIR 1973 Ori.18, Babaji Dehuri and others vs. Biranchi Ananta and others, 1996 (I) OLR-451.

8. Per contra, Mr. Sahu, learned counsel for the respondents contended that the suit schedule property had been gifted by the maternal grandfather of the plaintiff by means of a registered gift deed, Ext.1, in favour of the plaintiff and his brother. The plaintiff had produced the gift deed from his custody in the court. Production of the gift deed by the donee itself shows that the gift deed was acted upon. The declaration in the gift deed followed by handing over the same by the donor is sufficient acceptance of the gift by the donee to complete the transfer. The defendant does not dispute the execution of the gift deed. Learned lower appellate court on a scrutiny of the evidence vis-a-vis the recitals of the gift deed has rightly come to a conclusion that the gift deed has been acted upon and the ownership of the property has been transferred to the plaintiff. The findings recorded by the learned lower appellate court are based on acceptable view. Even if, another view is possible on re-appreciation of the same evidence, the same cannot be done in a second appeal. He further contended that there is no factual foundation in the pleading that even though the gift deed had been accepted by the plaintiff, subsequently he had thrown the property into the common hotchpot and by applying the doctrine of blending, the property would be treated as the joint family property. The plea of doctrine of blending is essentially a question of fact. In the absence of factual foundation and evidence, the same cannot be gone into in second appellate stage.

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9. The apex Court, in the case of Asokan vs. Lakshmikutty and others, (2007) 13 SCC 210, on an interpretation of Sec.122 of the Transfer of Property Act, held:

“13. xxx xxx xxx The definition of “gift” contained in Section 122 of the Transfer of Property Act provides that the essential elements thereof are:

(i) the absence of consideration;
(ii) the donor;
(iii) the donee;
(iv) the subject-matter;
(v) the transfer; and
(vi) the acceptance.
14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question.

There may be various means to prove acceptance of a gift. The document may be haned over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. (See Sajukta Ray v. Bimelendu Mohanty, Kamakashi Ammal v.

Rajalakshmi and Samrathi Devi v. Parasuram Pandey).

xxx xxx xxx

16. While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role.”

10. Admittedly, the gift deed, Ext.1, was executed by Nilakantha Mohanty, maternal grandfather of the plaintiff in his favour and his brother, Banshidhar in the year 1926, when they were minors. Banshidhar died approximately one year after execution of the gift deed. The plaintiff along with his parents was residing in the house of his maternal grandfather. The defendant was not born, when the gift deed was executed. The gift deed was in possession of the plaintiff, when the same was exhibited in the court. On an anatomy of the pleadings and evidence, learned lower appellate court held that when the donor and donees and their parents were residing in the same house as members of one family and the donee was minor, retention of the gift deed by the donor was not of much consequence. On the other hand, the donor having made over the gift deed to the plaintiff on his attainment of majority would show that the gift deed had been duly acted upon. Thus the contention raised by learned counsel for the appellant that the gift deed has not acted upon fails. The gift deed was executed in favour of the plaintiff and his brother. The recitals of the gift deed reveal that in the event the death of both the donees during the life time of their father or mother, the subject matter of gift will devolve upon their parents or anyone of them who will be living. The recitals are clear and unambiguous. Thus, after death of Banshidhar, his eight annas interest in the house devolved upon the other donee, plaintiff.

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11. There is no foundational fact with regard to blending of the property by the plaintiff. Thus, the plea of doctrine of blending cannot be accepted at the second appellate stage.

12. The apex Court in the cases of Mallesappa Bandeppa Desai and another (supra) and Smt. Pushpa Devi (supra) went an in-depth analysis of the doctrine of blending. The said decisions are distinguishable on facts.

13. In Anathula Sudhakar (supra), the apex Court to summarise the position in regard to suits for prohibitory injunction relating to immovable property. The apex Court held that where a cloud is raised over plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. But instant is a case of declaration of title. The said decision is distinguishable.

14. In Bancha Bhol and others (supra), the gift deed was in favour of the minor son of the defendant no.2. The father of the minor donee was not examined. There was no evidence of acceptance. It was held that there are cases where mere possession by or on behalf of the donee may amount to acceptance of the gift.

In the said case the evidence on record is that both the donor and the donee were residing in the same homestead jointly. Mere possession, which is not an unequivocal factor, cannot be treated as evidence of acceptance. The Court has drawn adverse inference since the father of the donees was not come to the witness-box to depose to the acceptance of gift deed. In the said factual backdrop, this Court held that there are cases where mere possession by or on behalf of the donee may amount to acceptance of gift. The said decision is no help to the appellant. As held above, the gift deed had been acted upon. Babaji Dehuri and others (supra) is also distinguishable on facts.

15. A priori, the appeal fails and is dismissed. No costs.

Dr. A.K. Rath,J.

Orissa High Court, Cuttack The 6th November,2017

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