APHC010109312021 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3397] THURSDAY ,THE SEVENTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA KRISHNA RAO SECOND APPEAL NO: 164/2021 Between: Talari Satyanarayana ...APPELLANT AND Talari Vana Kameswaramma and Others ...RESPONDENT(S) Counsel for the Appellant: 1. T V V KOTESWARA RAO Counsel for the Respondent(S): 1. BALA MOHAN RAO S 2. The Court made the following: Judgment: This second appeal under Section 100 of the Code of Civil Procedure (“C.P.C.” for short) is filed aggrieved against the Judgment and decree, dated 16.03.2020 in A.S.No.150 of 2016, on the file of the VI Additional District Judge, Krishna at Machilipatnam (“First Appellant Court” for short), reversing the Judgment and decree, dated 13.10.2016 in O.S.No.271 of 2007, on the file of Principal Senior Civil Judge, Machilipatnam (“Trial Court” for short). 2. The appellant herein is the plaintiff; respondent Nos.1 to 4 herein are defendant Nos.1, 2, 4 and 5 and 5th respondent herein is 3rd defendant in the suit in O.S.No.271 of 2007, on the file of Principal Senior Civil Judge, Machilipatnam. 3. The plaintiff initiated action in O.S.No.271 of 2007, on the file of Principal Senior Civil Judge, Machilipatnam, with a prayer for declaring his title over the schedule property and for a consequential recovery of possession of the same. 4. The learned Principal Senior Civil Judge, Machilipatnam, decreed the suit with costs. Felt aggrieved of the same, the unsuccessful defendant Nos.1, 2, 4 & 5 in the above said suit filed A.S.No.150 of 2016, on the file of the VI Additional District Judge, Krishna at Machilipatnam. The First Appellate Court, allowed the appeal by setting aside the decree and judgment of the Trial Court. Aggrieved thereby, the unsuccessful plaintiff approached this Court by way of second appeal. 5. For the sake of convenience, both parties in the appeal will be referred to as they are arrayed in the original suit. 6. The case of the plaintiff, in brief, as set out in the plaint averments in O.S.No.271 of 2007, is as follows: The 1st defendant is the mother of plaintiff whereas the 2nd defendant is his sister and that plaint schedule property belongs to the 1st defendant and that on 25.06.1986, she gifted the schedule property to the plaintiff executing a registered settlement deed and that he accepted the same. On 01.09.1986, the 1st defendant executed a revocation deed of the settlement deed, dated 25.06.1986 but it is not valid under law. Subsequently, the 1st defendant executed a gift deed in favour of 2nd defendant on 13.04.2006 and in turn, the 2nd defendant executed a registered agreement of sale-cum-General Power of Attorney on 30.04.2007 in favour of 3rd defendant and she had mentioned as if she gave possession of the suit property to the 3rd defendant, but such agreement of sale-cum-General Power of Attorney, dated 30.04.2007 is invalid and illegal in view of the settlement deed, dated 25.06.1986. On 19.06.2007, the plaintiff issued a legal notice to the defendants asserting his title over the schedule property. On 25.06.2007 the 1st defendant and on 03.06.2007 the 3rd defendant issued reply but they cannot claim any right, title and interest over the schedule property. The plaintiff impleaded the defendant Nos.4 and 5 as per order in I.A.No.403 of 2014, dated 15.10.2014. In collusion with the defendant Nos.2 and 3, the defendant Nos.4 and 5 obtained sale deed on 09.11.2012 but they did not acquire any right over the schedule property. Hence, he filed the suit. 7. The 1st defendant filed written statement before the trial Court by denying the averments in the plaint. The brief averments in the written statement are as follows: On 25.06.1986, the 1st defendant executed a Will in favour of the plaintiff, but because of the subsequent conduct of the plaintiff i.e., as he abused her and as he beat her, she cancelled it on 01.09.1986. She is the absolute owner of the schedule property. On 13.04.2006, she executed a gift deed in favour of the 2nd defendant and it is within the knowledge of the plaintiff. Since she executed gift deed, dated 13.04.2006, the 2nd defendant became the absolute owner of the schedule property and the plaintiff has no right to seek declaration of his title over the schedule property and consequential recovery of possession. The suit claim is barred by limitation. 8. The 2nd defendant filed written statement before the trial Court by denying the averments in the plaint. The brief averments in the written statement are as follows: On 25.06.1986, the 1st defendant executed a deed in favour of the plaintiff, the deed, dated 25.06.1986 was a Will and on 01.09.1986, the 1st defendant cancelled it and that on 13.04.2006, she gifted such property to her and as such, she is the absolute owner of the schedule property. As she was the absolute owner, she sold the property to the 3rd defendant executing contract of sale-cum-General Power of Attorney on 30.04.2007. 9. The 3rd defendant filed written statement before the trial Court by denying the averments in the plaint. The brief averments in the written statement are as follows: In the year 2007, the 2nd defendant offered the property for sale and that he agreed to purchase the same for Rs.4,00,000/-. On 30.04.2007, the 2nd defendant on receipt of such consideration, executed a contract of sale-cum- General Power of Attorney delivering the possession handing over the original gift deed, dated 13.04.2006 and as such, she has right over the schedule property. The defendant Nos.1 and 2 got colluded with the plaintiff and as such, the plaintiff filed the suit, but the plaintiff is not entitled for suit reliefs. 10. The 5th defendant filed written statement before the trial Court by denying the averments in the plaint. The brief averments in the written statement are as follows: The 1st defendant informed them that she executed Will in favour of the plaintiff, but it was revoked and 2nd defendant was in possession over the schedule property and she executed a Power of Attorney in favour of the 3rd defendant and they purchased the schedule property for Rs.6,53,000/- under a sale deed and that they are in possession and enjoyment of the schedule property. 11. On the basis of above pleadings, the learned Principal Senior Civil Judge, Machilipatnam, framed the following issues for trial: (1) Whether the plaintiff is not entitled for the plaint schedule property in view of the cancellation of the Will, dated 25.06.1986 as pleaded by 1st defendant? (2) Whether the present suit is filed by defendant Nos.1 and 2 in collusion with plaintiff as pleaded by 3rd defendant? (3) Whether the plaintiff is entitled for declaration? (4) Whether the plaintiff is entitled for future profits? (5) To what relief? 12. During the course of trial in the trial Court, on behalf of the plaintiff, P.W.1 to P.W.4 were examined and Exs.A.1 to A.12 were marked. On behalf of the defendants, D.W.1 to D.W.4 were examined, but no documents were marked. 13. The learned Principal Senior Civil Judge, Machilipatnam, after conclusion of trial, on hearing the arguments of both sides and on consideration of oral and documentary evidence on record, decreed the suit with costs. Felt aggrieved thereby, the unsuccessful defendant Nos.1, 2, 4 & 5 in the above said suit filed A.S.No.150 of 2016, on the file of the VI Additional District Judge, Krishna at Machilipatnam, wherein, the following points came up for consideration: 1) Whether the plaintiff is entitled for declaration of his title over the suit property? 2) Whether the plaintiff is entitled for recovery of possession of the suit property as prayed for? 3) Whether the suit of the plaintiff is barred by the period limitation? 4) Whether the impugned judgment and decree is sustainable on facts and law? 5) To what relief? 14. The learned VI Additional District Judge, Krishna at Machilipatnam i.e., the first appellate Judge, after hearing the arguments, answered the points, as above, against the plaintiff and allowed the appeal filed by the defendants by setting aside the decree and judgment of the Trial Court. Felt aggrieved of the same, the unsuccessful plaintiff in O.S.No.271 of 2007 filed the present second appeal before this Court. 15. On hearing both side counsels at the time of admission of the second appeal, on 20.07.2021, this Court, framed the following substantial questions of law: (1) Whether cancellation of gift deed-Ex.A.1 by Ex.A.4 is against Section 126 of the Transfer of Property Act? (2) Whether the Appellate Court is justified in reversing the decree and judgment of the trial Court upon re-appreciation of the material and evidence? 16. Heard Sri T.V.V. Koteswara Rao, learned counsel for the appellant and heard Sri G. Rama Gopal, learned counsel, representing on behalf of Sri S. Bala Mohana Rao, learned counsel for the respondents. 17. Law is well settled that under Section 100 of CPC the High Court cannot interfere with the findings of fact arrived at by the First Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence. In a case of Bhagwan Sharma v. Bani Ghosh1, the Apex Court held as follows: “The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the First Appellate Court which was the final Court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature.” In a case of Kondira Dagadu Kadam vs. Savitribai Sopan Gujar2, the Apex Court held as follows: 1 AIR 1993 SC 398 2 AIR 1999 SC 471 “The High Court cannot substitute its opinion for the opinion of the First Appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 18. The undisputed facts are originally the suit schedule property belongs to the 1st defendant and she executed a registered settlement deed in favour of plaintiff on 25.06.1986 under Ex.A.1 by creating life interest in favour of donor, by giving vested remainder rights in favour of plaintiff and 1st defendant subsequently cancelled the Ex.A.1 registered settlement deed within three months from the date of Ex.A.1 on 01.09.1986 and after 10 years from the date of revocation deed, the 1st defendant executed a registered gift deed in favour of her daughter i.e., 2nd defendant on 13.04.2006. It is also admitted fact that subsequently, the 2nd defendant executed a registered agreement of sale-cum-General Power of Attorney in favour of 3rd defendant on 30.04.2007. 19. Learned counsel for the respondents would contend that Ex.A.1 is not at all a gift settlement deed and it is a Will deed only. Perused the recitals in Ex.A.1 registered settlement deed. The caption of the document is mentioned as settlement deed relating to immovable property, value of Rs.40,000/-. The recitals in Ex.A.1 gift settlement deed are from the date of settlement deed onwards, the donor restricted to alienate the schedule property in favour of any person and having rights to utilize the income derived from the property during the life tenure and she has to pay the tax to the municipality during her lifetime. It was further reiterated in Ex.A.1 registered settlement deed that after her life time, the son of donor i.e., plaintiff is entitled to take possession and enjoy the same including the alienation. In Ex.A.1 registered settlement deed it was further reiterated by the donor that she applied to transfer the property on the name of the plaintiff and submitted a proper requisite formats before the competent authority. If Ex.A.1 document is originally a Will, there is no need to mention in Ex.A.1 by the donor that she is restricting the right of alienation of Ex.A.1 property in favour of third parties by creating vested reminder rights to the plaintiff i.e., son. In Ex.A.3 revocation deed also the donor clearly reiterated that she executed a registered settlement deed under Ex.A.1 in favour of her son i.e., plaintiff. 20. In order to ascertain the true intention of the settler one has to closely scrutinize the document i.e., registered settlement deed under Ex.A.1 to find out whether the intention of the settler was to divest the property in her lifetime or to give possession of property of her lifetime. The intention of the executant has to be gathered from a comprehensive view of all the terms of the document. An interest is said to be the vested interest when there is an immediate right of person enjoyment or a person right for future enjoyment. The recitals in Ex.A.1 registered settlement deed clearly goes to show that out of love and affection only, the donor wanted to confer the property on her son/plaintiff without any consideration and considering the love and affection as sale consideration and she wanted to confer the property without any sale consideration. The recitals in Ex.A.1 registered settlement deed clearly discloses that the executant had no further right of alienation of the property and the terms of the document shall came into force at once from the date of execution by conferring the right on the settllee/son and life interest is retained by the donor and vested rights were given to settlee. A crucial recital made in the registered settlement deed by the settler is that she will not alienate the property to others during her lifetime and vested remainder rights were given to plaintiff. The aforesaid recitals are clear indications to confirm to say that the settler has created a vested right on the plaintiff and the right to possess the property alone was postponed till her death. On careful perusal of the recitals in Ex.A.1 registered settlement deed and also Ex.A.3-revocation deed, I am of the considered view that it is a registered gift settlement deed only but not a Will, therefore, there is no force in the contention of the respondents that Ex.A.1 is a Will deed but not a settlement deed. 21. Learned counsel for the respondents placed a reliance of Kirala Venkatamma and another vs. K. Munaswamy and others3, wherein the composite High Court of Andhra Pradesh at Hyderabad held as follows: “3. The broad tests or characteristics as to what constitutes a will and what constitutes a settlement have been noticed in a number of decisions. But the main test to find out whether the document constitutes a will or a gift is to see whether the disposition of the interest in the property is in praesenti in favour of the settlees or whether the disposition is to take effect on the death of the executant. If the disposition is to take effect on the death of the executant, it would be a will. But if the executant divests his interest in the property and vests his interest in praesenti in the settlee, the document will be a settlement. The general principle also is that the document should be read as a whole and it is the substance of the document that matters and not the form or the nomenclature the parties have adopted. The various clauses in the document are only a guide to find out whether there was an immediate divestiture of the interest of the executant or whether the disposition was to take effect on the death of the executant. If the clause relating to the disposition is clear and unambiguous, most of the other clauses will be ineffective and explainable and could not change the character of the disposition itself. For instance, the clause prohibiting a revocation of the deed on any ground would not change the nature of the document itself, if under the document there was no disposition in praesenti. In such a case the clause prohibiting revocation will be contrary to law and will be ineffective. If, on the other hand, the document is a settlement, merely because 3 right of revocation is given, it would not change the character of the document as a settlement 'because such a clause will be against law and will be invalid. The 3 2018 (4) ALD 675 nomenclature of the document nor the fact that it had been registered also will not be of any assistance in most of the cases unless the disposition is very ambiguous and extraneous mid is required to construe that clause.” In the case on hand, the nomenclature terming the original of Ex.A.1 as well as recitals incorporated in Ex.A.1 clearly goes to show that Ex.A.1 is a settlement deed only and it is not a Will deed. In view of the aforesaid reasons, I am not accepting the contention of the learned counsel for the respondents that Ex.A.1 is a Will deed but not a gift settlement deed. 22. Learned counsel for the appellant/plaintiff would contend that the 1st defendant has no right to cancel the gift settlement deed and cancellation of gift settlement deed entertained by the Sub-Registrar is void document and revocation deed can be ignored and ultimately the 1st defendant has no right to execute another gift settlement deed in favour of 2nd defendant without cancelling Ex.A.1 document validly by a Court of law. He contends that since 2nd defendant has not got any valid title and original of Ex.A.4 subsequent documents are not valid documents. 23. Now the point to be decided is whether the registered revocation deed said to have been executed by 1st defendant, dated 01.09.1986 is a valid document? Ex.A.1 registered settlement deed is admitted by the 1st defendant/ settler. It is not the case of the 1st defendant that Ex.A.1 is obtained by way of coercion and undue influence by the plaintiff. The reasons assigned by the 1st defendant in the revocation deed for cancellation of registered settlement deed is, subsequent to the execution of settlement deed, the plaintiff used to abuse her without giving respect to her and that she lost her love and affection on her son i.e., plaintiff and that she is revoking Ex.A.1 gift settlement deed. 24. Learned counsel for the respondents placed a reliance of S. Sarojini Amma vs. Velayudhan Pillai Sreekumar4, wherein the Apex Court held as follows: “A conditional gift with no recital of acceptance and no evidence in proof of acceptance, where possession remains with the donor as long as he is alive, does not become complete during lifetime of the donor. When a gift is incomplete and title remains with the donor the deed of gift might be cancelled.” In the case on hand, the gift deed is not a conditional gift, no conditions were incorporated in Ex.A.1, therefore, the ratio laid down in the aforesaid case law is not applicable to the present facts of the case. 25. Learned counsel for the respondents placed another reliance of Baby Ammal vs. Rajan Asari5, wherein the Apex Court held as follows: “Section 122 of the Transfer of Property Act defines gift executive in the manner indicated thereunder divesting the title to and possession of the donor in the property and vesting the same in the donee under Section 123. These must be proof of delivery and acception of possession of the gifted property. In this case, both the title and possession is respect of the property remained with the plaintiff. There is no acceptance of possession by the respondent in the light of above recital. As a consequence, the appellant remained to be the owner during her life time. Under these circumstances, It cannot be construed to be a gift deed in favor of the respondents. At best, it would be only a licence in favour of the respondent to remain in possession jointly with the appellant. Therefore, the High Court was not right in concluding that Ex.A-1 is a gift deed and that the appellant has no title to the property for declaration as he had parted with possession.” 4 (2019) 11 Supreme Court Cases 391 5 (1997) 2 Supreme Court Cases 636 In a case of Renikuntla Rajamma (dead) by Legal Representatives vs. K. Sarwanamma6, the Full Bench of Apex Court held as follows: Section 129 was amended by Act No. 20 of 1929 whereby the words “or, save as provided by Section 123, any rule of Hindu or Buddhist Law” have been deleted. Section 129 of the T.P. Act today reads as under: “129. Saving of donations mortis causa and Muhammadan Law – Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law.” The above leaves no doubt that the law today protects only rules of Muhammadan Law from the rigors of Chapter VII relating to gifts. This implies that the provisions of Hindu Law and Buddhist Law saved under Section 129 (which saving did not extend to saving such rules from the provisions of Section 123 of the T.P. Act) prior to its amendment are no longer saved from the overriding effect of Chapter VII. The amendment has made the position more explicit by bringing all other rules of Hindu and Buddhist Law also under the Chapter VII and removing the protection earlier available to such rules from the operation of Chapter VII. Decisions of the High Court of Mysore in Revappa v. Madhava Rao and Anr. AIR 1960 Mysore 97 and High Court of Punjab and Haryana in Tirath v. Manmohan Singh and Ors. AIR 1981 Punjab and Haryana 174, in our opinion, correctly take the view that Section 123 supersedes the rules of Hindu Law insofar as such rules required delivery of possession to the donee. In the aforesaid case law, the Full Bench of the Apex Court further held as follows: “The matter can be viewed from yet another angle. Section 123 of the T.P. Act is in two parts. The first part deals with gifts of immovable property while the second part deals with gifts of movable property. 6 (2014) Supreme Court Cases 445 Insofar as the gifts of immovable property are concerned, Section 123 makes transfer by a registered instrument mandatory. This is evident from the use of word “transfer must be effected” used by Parliament in so far as immovable property is concerned. In contradiction to that requirement the second part of Section 123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or “by delivery”. The difference in the two provisions lies in the fact that in so far as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property.” In a case of K. Balakrishnan vs. K. Kamalam and others7, the Apex Court held as follows: “We have critically examined the contents of the gift deed. To us, it appears that the donor had very clearly transferred to the donees ownership and title in respect of her 1/8th share in properties. It was open to the donor to transfer by gift title and ownership in the property and at the same time reserve its possession and enjoyment to herself during her lifetime. There is no prohibition in law that ownership in property cannot be gifted without its possession and right of enjoyment. Under Section 6 of the Transfer of Property Act "property of any kind may be transferred" except those mentioned in clauses (a) to (i). Section 6 in relevant part reads thus: 7 (2004) 1 Supreme Court Cases 581 "6. What may be transferred.- Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,- (a) .............. (b) A mere right to re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby. (c) ........... (d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. (e) A mere right to sue cannot be transferred.” In a case of N. Thajudeen vs. Tamil Nadu Khadi and Village Industries Board8, the Apex Court held as follows: It is important to reproduce Section 126 of the Act, which reads as follows: “126. When gift may be suspended or revoked.- The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.” 8 2024 INSC 817 In the aforesaid case law, the Apex Court further held as follows: “Section 126 of the Act is drafted in a peculiar way in the sense that it contains the exceptions to the substantive law first and then the substantive law. The substantive law as is carved out from the simple reading of the aforesaid provision is that a gift cannot be revoked except in the cases mentioned earlier. The said exceptions are three in number; the first part provides that the donor and donee may agree for the suspension or revocation of the gift deed on the happening of any specified event which does not depend on the will of the donor. Secondly, a gift which is revocable wholly or in part with the agreement of the parties, at the mere will of the donor is void wholly or in part as the case may be. Thirdly, a gift may be revoked if it were in the nature of a contract which could be rescinded.” In the aforesaid case law, the Apex Court further held as follows: “In simpler words, ordinarily a gift deed cannot be revoked except for the three contingencies mentioned above. The first is where the donor and the donee agree for its revocation on the happening of any specified event. In the gift deed, there is no such indication that the donor and donee have agreed for the revocation of the gift deed for any reason much less on the happening of any specified event. Therefore, the first exception permitting revocation of the gift deed is not attracted in the case at hand. Secondly, a gift deed would be void wholly or in part, if the parties agree that it shall be revocable wholly or in part at the mere will of the donor. In the present case, there is no agreement between the parties for the revocation of the gift deed wholly or in part or at the mere will of the donor. Therefore, the aforesaid condition permitting revocation or holding such a gift deed to be void does not apply. Thirdly, a gift is liable to be revoked in a case where it is in the nature of a contract which could be rescinded. The gift under consideration is not in the form of a contract and the contract, if any, is not liable to be rescinded. Thus, none of the exceptions permitting revocation of the gift deed stands attracted in the present case. Thus, leading to the only conclusion that the gift deed, which was validly made, could not have been revoked in any manner. Accordingly, revocation deed dated 17.08.1987 is void ab initio and is of no consequence which has to be ignored.” The legal position in this regard is well settled by the Apex Court in the case of Thota Ganga Laxmi and another vs. Government of Andhra Pradesh and others9 held as follows: In this connection, we may also refer to Rule 26(i)(k) relating to Andhra Pradesh under Section 69 of the Registration Act, which states: “The registering officer shall ensure at the time of preparation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by a declaration showing natural consent or orders of a competent Civil or High Court or State or Central Government annulling the transaction contained in the previously registered deed of conveyance on sale: Provided that the registering officer shall dispense with the execution of cancellation deed by executant and claimant parties to the previously registered deeds of conveyances on sale before him if the cancellation deed is executed by a Civil Judge or a Government Officer competent to execute Government orders declaring the properties contained in the previously registered conveyance on sale to be Government or Assigned or Endowment lands or properties not registerable by any provision of law”. A reading of the above rule also supports the observations we have made above. It is only when a sale deed is cancelled by a competent Court that the cancellation deed can be registered and that too after 9 2012 (1) ALD 90 (SC) notice to the concerned parties. In this case, neither is there any declaration by a competent court nor was there any notice to the parties. Hence, this Rule also makes it clear that both the cancellation deed as well as registration thereof were wholly void and non est and meaningless transactions. The ratio laid down in the above decisions of the Apex Court are squarely applicable to the facts of the present case. Therefore, the law is very clear that when the donor executed a gift settlement deed duly registered before Sub-Register, the same is accepted by the donee, if the donor wants to cancel the said gift settlement deed, he has to approach the civil Court for cancellation questioning the alleged fraud played by the plaintiff but not by way of execution of cancellation deed before the Sub-Registrar. In the case on hand, no notice was issued to the plaintiff i.e., donee before execution of cancellation deed before the Sub-Registrar and the donor unilaterally cancelled the above gift settlement deed after a lapse three months from the date of registered gift settlement deed. Therefore, the original of Ex.A3 cancelation deed is void and non est. 26. In the case of Satya Pal Anand vs. State of Madhya Pradesh10, the Apex Court held as follows: Thus, in the absence of any power conferred on the Registering Authority to adjudicate any aspect, it is difficult to agree with the view in Thota Ganga Laxmi (supra) that the Registering Authority cannot unilaterally register a deed of cancellation. In my considered opinion, in the absence of any rule like the one that is prevalent in the State of Andhra Pradesh, which commands the Registering Officer to ensure at the time of preparation for registration of cancellation deeds of previously registered deed of conveyances on sale before him that such 10 (2015)15 SCC 263 cancellation deeds are executed by all the executant and claimant parties to the previously registered conveyance on sale and that such cancellation deed is accompanied by declaration showing natural consent, the Registering Authority or the superior authority cannot refuse to register a deed of cancellation solely on the ground that the claimant parties to the previously registered conveyance are not present or they have not given consent. By referring the above case, the Full Bench of the Apex Court in a case of Veena Singh (deceased) through L.Rs vs. District Registrar and another11, held as follows: A document, once it is registered, can be cancelled or set aside only by a civil court of competent jurisdiction. Upon the registration of the sale deed on 16 April 2012, the registration authorities are rendered infructuous and would have no power to cancel registration even on the ground of fraud or other irregularities; In the aforesaid case law, the Apex Court further held as follows: …. this Court also observed that the role of the Sub-Registrar stood discharged once the document had been registered, since there is no express provision in the Registration Act which empowers him to recall the registration. This Court held: "34. The role of the Sub-Registrar (Registration) stands discharged, once the document is registered (see Raja Mohammad Amir Ahmad Khan [State of UP. v. Raja Mohammad Amir Ahmad Khan, AIR 1961 SC 787])...There is no express provision in the 1908 Act which empowers the Registrar to recall such registration. The fact whether the document was properly presented for registration cannot be reopened by the Registrar after its registration. The power to cancel the registration is a substantive matter. In absence of any express provision in that 11 (2022)7 SCC 1 behalf, it is not open to assume that the Sub-Registrar (Registration) would be competent to cancel the registration of the documents in question. Similarly, the power of the Inspector General is limited to do superintendence of Registration Offices and make rules in that behalf. Even the Inspector General has no power to cancel the registration of any document which has already been registered." This Court observed that Section 35 of the Registration Act does not confer a quasi-judicial power on the registering officer, who is not expected to evaluate title or irregularity in the document. As such, the validity of the registered deed of extinguishment could be placed in issue only before a court of competent jurisdiction. On the above facts, this Court upheld the dismissal of the writ petition by the High Court, with an opportunity being granted to the appellant to pursue a remedy in accordance with law. Therefore, the decision in Satya Pal Anand (supra) has held that once a deed of extinguishment had been registered by the registering officer, the registering officer had no power to recall it nor was it amenable to the supervisory control of the Inspector General of Registration under Section 69 of the Registration Act. The ratio laid down in the aforesaid decisions squarely applicable to the present facts of the case. The law is very clear that the Sub- Registrar has no authority to entertain the cancellation deed for cancelling the registered gift settlement deed. Therefore, the registered cancellation deed said to have been executed by donor to cancel the earlier registered gift settlement deed Ex.A1 is null and void and registration authority has no power to cancel the earlier registered gift settlement deed. 27. The law is well settled that in view of the aforesaid case laws, it is very clear that the donor cannot suspend or revoke a gift deed unless there is a condition in the gift deed. Admittedly, in the case on hand, no condition was incorporated in Ex.A.1 that the donor retained her right to cancel the registered gift deed. In the case on hand, the material on record amply proves that the 1st defendant executed a registered gift settlement deed in favour of her son i.e., plaintiff out of love and affection whereunder she conveyed vested reminder rights to the plaintiff by reserving life interest for herself. In Ex.A.1 it was specifically recited that a restriction was imposed on 1st defendant to alienate the schedule property in favour of any person and the donor also applied to transfer of property on the name of the plaintiff and also submitted prescribed formats before the concerned authorities. Furthermore, the execution of gift settlement deed by the 1st defendant is not in dispute by the settler. The execution of gift settlement deed under Ex.A.1 from out of love and affection in favour of plaintiff is also admitted in registered revocation deed said to have been executed by the 1st defendant. 28. The evidence on record clearly indicates that the 1st defendant is not disputing about the execution of Ex.A.1 registered gift settlement deed in favour of plaintiff from out of love and affection. It is also not the case of the 1st defendant that Ex.A.1 registered gift settlement deed is obtained by way of coercion, fraud and undue influence, therefore, the plaintiff got title in the plaint schedule property. Even if the possession of the same is postponed till the date of death of 1st defendant, the said Ex.A.1 was accepted by the donee and acted upon. In Ex.A.1 the donor has not reserved her right to cancel the gift deed. The material on record further proves that within three months from the date of execution of Ex.A.1, the donor unilaterally cancelled the registered gift settlement deed before the Sub-Registrar without giving notice to the donee i.e., plaintiff, therefore, the said cancellation and registration is non est. As per the own case of the 1st defendant, she executed a Will deed, but not a gift settlement deed in favour of plaintiff and subsequently, it was revoked. Even assume if Ex.A.1 is a Will, question of revoking the Will does not arise simply, the executent of the Will has to execute another Will by narrating entire facts then the latter will only prevails. The donor has not approached the competent Civil Court to challenge the gift settlement deed. The Sub-Registrar entertained the revocation deed without any authority and cancelled the said gift settlement deed, therefore, both cancellation of registered gift settlement deed as well as registration thereof, were only void, non est and meaningless transactions. For the aforesaid reasons, Ex.A.3 revocation deed is void document and it can simply ignore and 1st defendant has no right to execute gift deed in favour of 2nd defendant without any proper cancellation of earlier gift settlement deed Ex.A.1, therefore, Ex.A.3 document and subsequent documents came into existence in pursuance of Ex.A.3 viz., original of Ex.A.4 & Ex.A.5 and Ex.A.9 are invalid documents and those documents can be ignored. 29. The learned counsel for the respondents would contend that even if the Court came to a conclusion that Ex.A.1 document is a gift deed, the suit for possession is not at all maintainable since the donor retained possession till her demise. As stated supra, the donee i.e., plaintiff is having vested rights in the plaint schedule property, therefore, the cancellation deed executed before the Sub-Registrar is void document consequent to the cancellation deed, the 1st defendant executed a gift deed in favour of 2nd defendant under original of Ex.A.4. Therefore, the said gift deed is not a valid document and the 1st defendant has no right to execute any gift deed in favour of 2nd defendant and it is not valid document since the 1st defendant restricted her right of alienation in Ex.A.1 and Ex.A.1 is also not properly cancelled, therefore, all Ex.A.3 to Ex.A.5 and Ex.A.9 documents are meaningless transactions. 30. The learned counsel for the respondents placed a reliance of Rajendra Bajoria and others vs. Hemant Kumar Jalan and others12. The facts in the aforesaid case law relates to a partnership firm was constituted under a deed of partnership. The ratio laid down in the aforesaid case law is not at all applicable to the present case. 31. In a case of Bay Berry Apartments Private Limited and another vs. Sobha and others13, the Apex Court held that “an appeal is a continuation of the suit. The Appellate Court in view of Order VII Rule 7 of the Code of Civil Procedure may take into consideration subsequent events with a view to mould the relief.” It is undisputed fact though the plaintiff is having title in the suit schedule property by virtue of a registered gift settlement deed Ex.A.1 by the date of filing of suit and during the lifetime of the settler, he is not entitled the possession because settler is alive during the pendency of the suit. In the case on hand, the 1st defendant i.e., settler died on 22.01.2019 during the pendency of the First Appeal. After death of the settler, life interest will cease during the pendency of the first appeal, the settler died, therefore, there is no impediment now for granting possession in favour of the plaintiff since second appeal is a continuation of a suit proceedings. As state supra, the plaintiff is having valid title by virtue of Ex.A.1 registered gift settlement deed. In view of death of the settler during the pendency of the first appeal, the plaintiff is having absolute rights and he is entitled possession, but the learned First Appellate Judge came to a wrong conclusion and allowed the appeal by setting aside the decree and judgment passed by the learned trial Judge. 12 (2022) 12 Supreme Court Cases 641 13 AIR 2007 SC 226 32. For the aforesaid reasons, I am of the considered view that the First Appellate Court is not justified in reversing the decree and judgment passed by the learned trial Judge. 33. In the result, the second appeal is allowed by setting aside the decree and judgment, dated 16.03.2020 in A.S.No.150 of 2016, on the file of the VI Additional District Judge, Krishna at Machilipatnam. Defendant Nos.4 and 5 are directed to deliver the vacant possession of plaint schedule property to the plaintiff within a period of three (03) months; failing which the plaintiff is at liberty to take necessary steps as per law. Considering the facts and circumstances of the case, each party do bear their own costs in the second appeal. As a sequel, miscellaneous petitions, if any, pending in the Appeal shall stand closed. __________________________ V. GOPALA KRISHNA RAO, J. DT.17.04.2025. PGR