2022 C L C 1973
Transfer of Property Act (IV of 1882)---
----S.122---Gift, ingredients of---General power of attorney, use as to gift property---Suit for declaration of un-partitioned share of land---Suit land belonged to deceased who was unmarried and had two brothers who had also died---Disputed land was mutated in the name of defendant being son of one of the brother of deceased on basis of two documents: (1) Registered General Power of Attorney in which another defendant i.e. grandson of brother of deceased was stated to be the attorney of deceased and (2) registered gift deed ("Doc-2") by which one of deceased's brother transferred the disputed land to his other brother---Plaintiffs (son of deceased and daughters of his son) instituted the suit seeking declaration to the effect that Gift deed and power of attorney and mutation were illegal; that deceased was over 90 years old at the time of alleged execution of the Power of attorney and had lost his senses/eyesight, and since the son was a Lambardar, who fraudulently got appointed his other son as general attorney by obtaining a thumb-mark of deceased on power of attorney and then got transferred the disputed land to his name through gift and mutation---Suit was concurrently dismissed---Respondents argued that a suit for declaration of title on basis of gift had been filed by them against deceased who appeared in the suit and admitted the gift and the suit was withdrawn; that since deceased had never questioned the gift in his lifetime, the petitioners had no right to challenge the same; that suit was time barred; and that the plaintiffs were estopped by their words/conduct to challenge the gift as plaintiff had brought the proceedings before the Revenue Officer for getting separate possession of his share by partitioning the total land but he had not claimed any share in the disputed land or the land of the deceased---Validity---Love and affection, as per principle, could not be expressed by the attorney on behalf of deceased---Evidence available on record did not suggest that the attorney before executing gift deed or making gift in favour of his father ever obtained the consent and permission of the deceased, and recitals of the gift deed indicated that the attorney, on his own, had transferred the property through gift to his father, which was not permissible under the law---Father was beneficiary but he had not appeared as witness to prove essential ingredients of the gift---No evidence of declaration of gift by the deceased or its acceptance by "B1"---Father in his written statement did not state that deceased had ever made the gift but his stance was that his own son attorney had gifted him the property---Mere transfer of possession to father was not sufficient to constitute a valid gift, nor could the gift deed be held valid as it did not justify the disinheritance of other heirs from the gift---Copy of the suit allegedly filed by father against the deceased was never produced in evidence despite the fact that he had submitted application for production of additional evidence in that regard---Fraud committed by respondents had also become clear through the statement of attorney that he was general power of attorney of deceased and that he had gifted the property to father---Such statement showed that attorney had gifted the disputed property without getting approval of the deceased which was illegal---Petitioners were denied their rights when deceased passed away in 1998 and the suit was within time from that date---Documents relating to proceedings before revenue officers were signed/executed before the date of the death of deceased, thus, there was no occasion to claim any share in the inheritance of deceased the and also the petitioners nowhere in such documents stated that they had relinquished or surrendered their share---
Power of attorney---
----Use by attorney as gift the principal's property---Gift was a personal action which could be performed by the owner himself only and for that reason the agent could not, on his own, transfer the immovable property of the principal/owner through gift based on any power of attorney, even if the power of attorney contained the power to transfer the property through gift---Such powers could only be used for completion of codal formalities of the gift which must be by the owner himself and if on the contrary a transfer was made, it would be invalid.
Gift---
---Registered deed excluding heir---Validity---Donee claiming under a gift that excludes an heir, is required bylaw to establish the original transaction of gift irrespective of whether such transaction is evidenced by a registered deed.
Limitation Act (IX of 1908)---
----S.3---Inheritance---Limitation would not run against co-sharers nor could it be allowed to form the basis for depriving a legal heir of his share in the inheritance.
0 Comments