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IN THE COURT OF THE IV ADDL. DISTRICT JUDGE:: NELLORE

Monday, this the third day of April 2017

Present::CH. RAMACHANDRA MURTHY,
IV Addl. District Judge,
Nellore.

A.S.No.104/2015

Dasararaju Lakshmi
wife of D.Subrahmanyam Raju, Hindu,
..... Appellant
aged about 40 years, House Wife,
residing at Z.P.Colony, Nellore City.
Vs.
Konduru Ravamma
wife of Subba Raju, Hindu, aged about
65 years, residing in Door No.25-1-646,
near Ebinezer Church, Z.P.Colony,
Nellore. ….. Respondent

APPEAL PREFERRED UNDER ORDER 41 RULE 1 OF CPC ON BEHALF OF

THE THE APPELLANT AGAINST THE DECREE AND JUDGMENT DATED
30.9.2015 IN OS NO.387/2007 ON THE FILE OF PRINCIPAL SENIOR CIVIL
JUDGE, NELLORE.
Dasararaju Lakshmi …. Plaintif

Vs.
Konduru Ravamma …. Defendant

This appeal coming on 3.3.2017 for final hearing before me in the

presence of Sri G.Jayachandra Raju advocate for Appellant and of Sri
A.Ramachandra Raju advocate respondent and the matter having stood over
for consideration till this day, this Court made the following-

JUDGMENT
1. Appellant is a plaintiff in OS 387/2007 on the file of learned Principal

Senior Civil Judge, Nellore, prefer the present appeal against the decree and

judgment dated 30.09.2015 against the dismissal of the suit for declaration and

permanent injunction.

2. The brief averments of the plaint are that:

(I) The defendant is mother of the plaintiff. Father of the plaintiff

purchased plot no.1 in Nellore Bit-I covered in S.No.2016/B, 2020/B and 2021/B

and 2022/B in approved lay out plan in extent of 60 ankanams in the name of
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the defendant. Defendant has no capacity to purchase the suit property. The

suit property was given to the plaintiff in an extent of 17 ankanams out of 58

ankanams, northern side portion at the time of her marriage towards

Pasupukunkuma and the property was delivered possession to her on

08.05.1997. Defendant also executed a settlement agreement on 08.05.1997

in the name of the plaintiff. She has been in possession and enjoyment over

the suit property. Defendant is nothing to do with the suit property. Hence,

the suit.

3. Defendant filed written statement denying the avernments in the

plaint. She also denied the execution of settlement agreement. She contends

that the plaintiff and her husband obtained her signatures on stamp papers on

the pretext of arranging loan and further after construction of one house, the

defendant is residing in one portion and another portion was let-out to the

plaintiff on monthly rent of Rs.600/-. The plaintiff fabricated the settlement

agreement dated 08.05.1997. The plaintiff is in occupation of the suit property

as tenant. Plaintiff is nothing to do with the suit property. Therefore, the

defendant request to dismiss the suit with costs.

4 On the above pleadings the following issues are framed by the

trial court.

1. Whether the 60 annkanams of vacant site had been purchased by late

Konduru Subbaraju, as pleaded by the plaintiff?

2. Whether the plaint schedule site was given to the plaintiff towards
Pasupukumkuma as pleaded by the plaintiff?

3. Whether the plaintiff had constructed the plaint schedule house, as

pleaded by her?

4. Whether the plaintiff is entitled to the declaratory relief as prayed for?

5. Whether the plaintiff is entitled for grant of permanent injunction, as

prayed for?

6. To what relief?
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5. On behalf of plaintiff PW1 to 3 were examined and Ex.A1 to A7.

On behalf of defendant DW1 and 2 were examined and Ex.B1 to B3 were

marked.

6. After hearing both sides and an appreciation of oral and

documentary evidence the learned Senior Civil Judge held that Ex.A6 is not

valid and inadmissible evidence for want of registration. By observing the same

the suit of the plaintiff for declaration of title and permanent injunction was

dismissed without costs.

7. Aggrieved by the said decree and judgment, the plaintiff preferred the

present appeal.

(i) In the grounds of appeal it is contended that

1. :- The trial court failed to appreciate the

evidence on record.
2. :- The court below erred in construing the
document is hit by the process of
sec.17(1)(b) and 49 of the Registration
Act.
3. :- The trial court should have seen that the
document dated 08.05.1997 cannot be
recorded as an agreement.

Therefore, appellant requested to allow the appeal and set aside the

said decree and judgment and consequently decree the suit for declaration of

title and permanent injunction as prayed for.

8. Heard both sides and perused relevant records and written

arguments submitted on behalf of the defendant.

9. Now the point for consideration in the present appeal is:

1. Whether Ex.A6 agreement dated 08.05.1997 is valid and

admissible in evidence?
2. Whether the plaintif is entitled to declaration of title
and permanent injunction as prayed for?
3. Whether the decree and judgment by the learned
Principal Senior Civil Judge in OS 387/2007 dated
30.09.2015 are liable to be set aside?
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POINTS Nos.1 to 3

1. Whether Ex.A6 agreement dated 08.05.1997 is valid and

admissible in evidence?
2. Whether the plaintif is entitled to declaration of title
and permanent injunction as prayed for?
3. Whether the decree and judgment by the learned
Principal Senior Civil Judge in OS 387/2007 dated
30.09.2015 are liable to be set aside?

They are interrelated and I deal with them together.

10. It is not in dispute that the suit property and adjoining property was

purcahsed in the name of the defendant. It is evident from Ex.B3 sale deed

dated 11.08.1982. Plaintiff is daughter of the defendant. The defendant paid

property tax, it is evident from Ex.B2. She also paid electricity bills. It is

evident from Ex.B1.

11. The main contention of the plaintiff is that the suit property was

given to her on 08.05.1997 by the defendant by executing settlement

agreement in Ex.A6 and that she got constructed a house and paying house

taxes and that the defendant is nothing to do with the suit property. On the

other hand the defendant contends that she never executed Ex.A6 and that

Ex.A6 is a fabricated document and that plaintiff is nothing to do with the suit

property.

12. Plaintiff examined as PW1. She deposed that the suit property

was given to her towards Pasupukunkuma on 08.05.1997 and defendant also

executed Ex.A6 and that she has been in possession and enjoyment over the

suit property.

(i) During her cross examination, she admitted that her mother

performed her marriage in the year, 1997 by incurring marriage expenses. She

also presented six sovereigns of gold ornments. She does not know who

scribed Ex.A6. Defendant executed Ex.A6 for an extent of 18 ankanams out of

60 ankanams. She denied a suggestion that her husband obtained the

signatures of the defendant on blank stamp papers on the pretext of getting

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loan and that defendant never executed Ex.A6. She admitted that the entire

property including the suit property is still stands in the name of the

defendant. She filed a suit in OS 96/2007 against the defendant herein. She

denied a suggestion that she forcibly evicted the defendant from her house

and leased out the same to the tenants. She denied a suggestion that the suit

property was not given to her towards Pasupukunkuma.

13. PW2 deposed that he scribed Ex.A6. Ex.A6 was executed by the

defendant. The defendant called the attestors. He denied a suggestion that

Ex.A6 is a fabricated document and that defendant never executed Ex.A6.

14. PW3 deposed that he settled the marriage of the plaintiff.

Husband of the plaintiff carried rice business along with him for some time.

Defendant voluntarily executed Ex.A6 in favour of the plaintiff. He denied a

suggestion that he fabricated Ex.A6 and that defendant never executed the

same.

15. Defendant is examined as DW1. She denied the execution of

Ex.A6. She deposed that she got constructed two portions. In one portion she

is residing and another portion was let-out to the plaintiff on monthly rent of

Rs.600/-. She is paying house taxes. She denied a suggestion that the suit

property was given to the plaintiff towards Pasupukunkuma and that she

executed Ex.A6 and that plaintiff has been in possession and enjoyment over

the suit property.

16. DW2 is sister of the plaintiff and daughter of the defendant. She

deposed that the defendant got constructed two portions and let out one

portion to the plaintiff on monthly rent of Rs.600/-. Her father died in the year,

1996. She denied a suggestion that the suit property was given to the plaintiff

towards Pasupukunkuma and that defendant executed Ex.A6 and that plaintiff

has been in possession and enjoyment over the suit property.

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17. The first contention of the plaintiff is that the suit property was

given to her and defendant also executed Ex.A6 settlement agreement on

08.05.1997. Defendant denied the same. In order to prove the execution of

Ex.A6, the plaintiff examined PW2 who is scribe of Ex.A6.

18. On perusal of recitals of the Ex.A6 the property was delivered

possession to the plaintiff and created absolute rights in favour of the plaintiff.

It is recited that the property was given to the plaintiff towards

Pasupukunkuma and thereby the property was settled in favour of the plaintiff.

The document is referred to as settlement deed. It is not an agreement to

settle the property. The recitals of Ex.A6 clearly shows that it is a settlement

deed, wherein absolute rights were created in favour of the plaintiff on the

date of document itself.

19. As argued by the learned advocate for the plaintiff, stamp duty

and penalty was paid on Ex.A6 document. District Registrar issued certificate

in Ex.A7 stating that stamp duty and penalty was paid on Ex.A6.

20. As argued by the learned advocate for the defendant, the title

over the immovable property will be transferred in the name of individual

through a registered document only. Ex.A6 is not a registered document.

21. As per Section.17 of the Registration Act, 1908, the documents

referred under (a) to (e) shall be registered. Section 17 (a) is relating to

instruments to gift of the immovable property. Section 17(2) of Registration

Acts reads as follows:

“Any document not itself creating,

declaring, assigning, limiting or
extinguishing any right, title or interest of
the value of Rs.100/- and upwards or in
immovable property, but merely creating
the right to obtaining another document
which will, when executed, create, declare,
assign, limit or extinguish any such right,
title or interest.
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Section 17 (2)(V) of Registration Act deals

with the agreement. The said provision is
applicable to the documents referred in
Section 17(2)(b) and (c) only. Section 17 (2) of
the Act does not include Section 17 (a) which
relates to gifts. Therefore, any agreement to
make gift does not come under the (v) of
Sec.17 (2) of the Registration Act.

The reason why it is excluded seems to be

that as per Sec.25(1) of Indian Contract Act “A
promise to make gift is void unless it is in
writing and registered under the law for the
time being in force for the registration of the
documents and is made an account of natural
love and affection and affection between the
parties in a near relation to each other”.

22. Even assuming that Ex.A6 is a settlement agreement executed by

the defendant, it is not valid and enforcible in view of the provisions of

Sec.17(2)(v) of Registration Act and in view of the provisions of Sec.25 (1) of the

Indian Contract Act, 1872. As per provisions of Sec.25 of the Contract Act

clearly shows that any promise made out of love and affection in between the

parties must be through a registration document. In the circumstances of the

case and for the above reasons Ex.A6 agreement to gift is not valid and not

enforcible.

23. The next question is whether the property shall be given to

daughter towards Pasupukunkuma through an unregistered document like

Ex.A6.

24. As argued by the learned Advocate for the defendant, the gift by way of

Pasupu Kumkuma must be made through a registered document and no oral

gift is admissible in evidence. In a decision reported in :-

2007(1) A.L.T. Page 312 ( Gajula Ratnaji Vs.

Boppana Veera Prabhavathi & another),
Wherein their Lordships while dealing with the
subject of gift by way of Pasupu Kumkuma, after
following the Full Bench Decision of Hon’ble High
Court of Andhra Pradesh, reported in 2001(5)
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A.L.T. page 130 (Gandevalla Jayaram Reddy Vs.

Mokkala Padmavathamma), it is observed as
follows:

“The transfer of property towards

Pasupu Kumkuma is a gift of immovable
property, the consideration whereof would be love
and affection could come within the meaning of
Section 123 of the Transfer of Property Act,1882.
Therefore, such transaction would attract the
provisions of Section 17(1)(b) of the Registration
Act and requires registration”.

25. In the present suit, the plaintiff did not get any registered

document from her mother in order to prove that she got gift by way of Pasupu

Kumkuma in respect of the suit property. In the absence of any such registered

document, the plaintiff cannot claim any title to the suit property by way of

Pasupu Kumkuma. In view of the principles laid down in the above decision, I

hold that the plaintiff will not get any title through Ex.A6 on oral gift by way of

Pusupu Kumkuma. She is not entitled to any declaration of title to the suit

property.

26. The plaintiff is relied upon the documents in Ex.A2 to A4. Those

documents are not relevant to prove her title over the suit property. Ex.A5 is

certified copy of written statement filed by the defendant as 1 st defendant in

OS 968/2007. The said suit was filed by the present plaintiff for permanent

injunction. The defendant in Ex.A5 denied the share of the plaintiff over the

subject matter of the property. Therefore, Ex.A1 to A5 documents are not

relevant to prove the right, title of the plaintiff over the suit property.

27. As stated above, the suit property is stands in the name of the

defendant. It was purchased in the name of the defendant under Ex.B3 sale

deed. As stated above, the plaintiff is claiming right and title over the suit

property through Ex.A6. The said document is not valid for want of

registration. No title passes to the plaintiff in pursuance of unregistered

document in Ex.A6.
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28. As per evidence of DW1, the plaintiff is in possession of the suit

property as tenant. As per provisions of Sec.53 (A) of Transferred Property Act,

1882, the doctrine of part performance is confined to transfers for

consideration and it is not extended to gifts. It was laid down in a decision

reported in Piru Charan Pal and another Vs. Minor Suneel Moy Nemo AIR

1973 Kalkatta. Therefore, the plaintiff is also not entitled to equitable relief

of permanent injunction against the defendant in pursuance of Ex.A6

unregistered settlement deed. Viewed from any angle, the plaintiff is not

entitled to permanent injunction since, she is not having any legal and valid title

over the suit property. When the plaintiff is not entitled to declaration of title,

she is not entitled to further relief of permanent injunction.

29. The learned Senior Civil Judge has rightly appreciated the

evidence on record and rightly came to the conclusion. I do not found any

ground to disturb the finding recorded by the court below. Hence, I answered

the points accordingly.

30. In the result, the Civil Appeal preferred by the appellant/plaintiff

Dasararaju Lakshmi wife of D.Subrahmanyam Raju against the decree and

judgment in O.S.No.387/2007 on the file of Principal Senior Civil Judge, Nellore

dated 30.9.2015 is hereby dismissed with costs by confirming the said decree

and judgment.

Typed on my direct dictation by the Typist (VI A.D.J Court) corrected and
pronounced by me in open Court on this the 3rd day of April 2017.

IV ADDITIONAL DISTRICT JUDGE

NELLORE

APPENDIX OF EVIDENCE

---NIL---

IV ADDITIONAL DISTRICT JUDGE

NELLORE.
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