SHANTU decased through LrsBhagat Ram vs KANSHI RAM

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 350 of 2005
Reserved on: 21.07.2026
Date of Decision: 03.08.2026
Shantu (deceased) through LRs ...Appellant
Versus
Kanshi Ram ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes
For the Appellant : Mr Bhupender Gupta, Senior
Advocate with Mr Pranjal Munjal,
Advocate.
For the respondent : Mr I.S. Chandel, Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 26.04.2005 passed by the learned District
Judge, Shimla vide which the judgment and decree dated
st
12.11.2002 passed by the learned Sub Judge (1 Class), Theog,
District Shimla, H.P. (learned Trial Court) were set aside. (The
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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parties shall hereinafter be referred to in the same manner as they
were arrayed before the learned Trial Court for convenience) .
2. Briefly stated, the facts giving rise to the present
appeal are that the plaintiff filed a civil suit before the learned
Trial Court seeking a declaration that a gift deed executed by the
plaintiff on 21.03.1997 stood revoked as per the conditions of
the gift on defendant’s failure to maintain the plaintiff and his
wife. The plaintiff also sought consequential reliefs of
possession and permanent prohibitory injunction. It was
asserted that the plaintiff was the owner of the suit land
mentioned in para-1 of the plaint. The plaintiff and his wife
were old. They were unable to cultivate their land. The
defendant came to the plaintiff and proposed to maintain him
and his wife, provided the plaintiff gifted the suit land to the
defendant. The defendant also helped the plaintiff during the
winters to win over his confidence. The plaintiff and his wife
believed the assurances of the defendant. The plaintiff executed
a gift deed of his half share in favour of the defendant on
21.03.1997. The gift was conditional, and it was specifically
mentioned that the gift deed would stand revoked on failure to
maintain the plaintiff and his wife. The defendant and his
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family members failed to maintain the plaintiff and his wife.
They turned them out of their house. The plaintiff also issued a
notice to the defendant. Hence, the suit was filed for seeking the
relief mentioned above.
3. The suit is opposed by filing a written statement
admitting that the plaintiff had executed a gift deed in the
defendant’s favour. It was asserted that the plaintiff was alone
and he had no wife. He married subsequently. The defendant
maintained and looked after the plaintiff for many years. The
plaintiff used to reside with the defendant and his family
members. The defendant used to cultivate the suit land. The
plaintiff executed a gift deed and a Will in favour of the
defendant in lieu of the services rendered by the defendant. The
defendant was put in possession of the suit land. The plaintiff
refused to receive any help and maintenance from the
defendant after his marriage. The defendant also sent some
money orders to the plaintiff, but the plaintiff refused to accept
them. The suit was filed without any basis. Hence, it was prayed
that the suit be dismissed.
4. No replication was filed.
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5. The following issues were framed by the learned
Trial Court on 09.03.2000:
1. Whether the gift is liable to be cancelled as prayed? OPP
2. Whether the plaintiff is entitled for the possession? OPP
3. Whether the plaintiff is entitled for the declaration? OPP
4. Whether the plaintiff is entitled for the relief of
permanent prohibitory injunction? OPP
5. Relief.
6. The parties were called upon to produce the
evidence, and the plaintiff examined himself (PW1) Het Ram
(PW2) and Ghama (PW3). The defendant examined himself
(DW1) and Chimna Ram (DW2).
7. The learned Trial Court held that the gift deed
contained a specific condition that it was being executed in lieu
of the future maintenance and in case of failure to maintain the
donor and his wife, the donor would be at liberty to revoke it.
The plaintiff’s version that the defendant had not maintained
him and his wife was highly probable. The plea taken by the
defendant that the plaintiff wanted to revoke the gift deed for
some ulterior purpose was not proved on record. Therefore, the
learned Trial Court answered all the issues in the affirmative
and decreed the plaintiff’s suit.
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8. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the defendant filed an appeal which
was decided by the learned District Judge, Shimla (learned
Appellate Court). The learned Appellate Court held that the
plaintiff failed to prove that the defendant had not maintained
the plaintiff and his wife. The personal services rendered by the
donee to the donor do not amount to any consideration under
Section 122 of the Transfer of Property Act but can be a motive
for the execution of the gift deed. The gift cannot be revoked at
the Will of the donor. The plaintiff had failed to show any breach
of the condition of the gift deed, and the learned Trial Court
erred in decreeing the suit. Therefore, the learned Appellate
Court accepted the appeal and set aside the judgment and decree
passed by the learned Trial Court.
9. Being aggrieved by the judgments and decree passed
by the learned Appellate Court, the plaintiff has filed the present
appeal which was admitted on the following substantial
questions of law on 15.07.2005.
1. Whether the Lower Appellate Court has misconstrued and
misapplied the provisions of Transfer of Property Act in
holding that there was no agreement between the parties
making the gift revocable by ignoring the stipulation and
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condition in the Gift Deed that in case of failure to render
services the Ext.PA was liable to be revoked?
2. Whether the Lower Appellate Court has rendered
erroneous and perverse findings by holding that there
was no breach of the conditions of the Gift Deed (Ext.PA
and plaintiff himself left the house of the defendant
voluntarily and refused to accept the maintenance?
3. Whether the Lower Appellate Court has taken an
erroneous view of the law by misunderstanding the
correct proposition laid down in the judgment of the
Hon’ble Court as well as the High Court’s interpretation
in holding that Ext.PA was irrevocable?
10. I have heard Mr Bhupender Gupta, learned Senior
Counsel assisted by Mr Pranjal Munjal, learned counsel for the
appellant/plaintiff and Mr I.S. Chandel, learned counsel for the
respondent/defendant.
11. Mr Bhupender Gupta, learned Senior Counsel for the
appellant, submitted that the gift deed contained a specific
condition that the gift was subject to maintaining the plaintiff
and his wife. The plaintiff's evidence showed that the defendant
had maltreated the plaintiff. He had not rendered the services to
the plaintiff and his wife, and the plaintiff was within his right
to revoke the gift deed. The learned Trial Court had rightly held
that the defendant had failed to adhere to the terms and
conditions of the gift deed and the learned Appellate Court erred
in reversing the well-reasoned judgment of the learned Trial
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Court. Therefore, he prayed that the present appeal be allowed
and the judgment and decree passed by the learned Appellate
Court be set aside. He relied upon the following judgments in
support of his submission: -
(i) Gehru Ram vs. Rohlu 1998(1) Shim. L.C. 360;
(ii) Bhagwan Dass (deceased) through Lrs vs. Tulu @ Tula
Ram & Another ILR 2019 HP 637;
(iii) Mt. Purnia Kurmi vs. Manindar Nath Mahanti AIR
1968 Assam and Nagaland 50;
(iv) Amar Chand v. Pushpa RSA No. 91 of 2021 decided on
21.06.2022 and;
12. Mr I.S. Chandel, learned counsel for the
respondent/defendant submitted that the learned Appellate Court
found as a fact that the plaintiff had not proved the violation of the
conditions of the gift deed. This is a pure finding of fact and is
binding upon this Court while deciding the regular second
appeal. The plaintiff had failed to specify the manner in which
the services were to be rendered. The evidence on record
showed that the plaintiff had himself left the house of the
defendant. The defendant had even sent the money orders to
the plaintiff, but the plaintiff had refused to accept them. The
plaintiff intended to revoke the gift deed after his marriage at
his wife’s instance. The learned Appellate Court had rightly held
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that future maintenance cannot be a consideration for
execution of the gift deed, but a motive. A will was executed in
favour of the defendant, and the suit does not survive after the
plaintiff’s death. Therefore, he prayed that the present appeal
be dismissed. He relied upon the following judgments in support of
his submission: -
(i) Jaladi Suguna (deceased) through Lrs vs. Satya Sai
Central Trust and others (2008) 8 SCC 521;
(ii) Mool Raj vs. Jamna Devi and others AIR 1995 HP 117
and;
(iii) Naresh Kumari & Ors vs. Chameli & Ors 2024 INSC
965.
13. I have given a considerable thought to the
submissions made at the bar and have gone through the records
carefully.
14. A submission was made by Mr I.S. Chandel that the
plaintiff has died and there is a Will in his favour; therefore, the
suit does not survive. This submission cannot be accepted
because the Court had specifically held vide order dated
01.01.2016 that Bhagat Ram was the legal heir of the deceased.
Hence, the question of the succession of the deceased as far as
this regular second appeal is concerned has attained finality.
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Therefore, the judgment in Jaladi Suguna (supra) will not apply
to the present case.
Substantial Questions of law No. 1 to 3 :
15. All these substantial questions of law are
interconnected and are being taken up together for
consideration.
16. The defendant Kanshi Ram admitted that the
plaintiff had executed a gift deed and a Will in his favour. He
denied in his cross-examination that the gift deed contained a
condition of maintaining the plaintiff and his wife.
17. The statement of the defendant in his cross-
examination that the gift deed did not contain any condition of
maintaining the plaintiff and his wife is not acceptable. The gift
deed (Ext.PA) specifically mentions that it was executed in lieu
of the maintenance and the plaintiff would have a right to
revoke the gift deed on the defendant’s failure to maintain the
plaintiff and his wife. Therefore, it was duly proved that the gift
deed was conditional.
18. It was submitted that the future services cannot be a
consideration but a motive for the execution of the gift deed,
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and a gift deed cannot be revoked on failure to maintain the
donor. This submission cannot be accepted. It was laid down in
Mt. Purnia Kurmi v. Manindra Nath Mahanti , 1968 SCC OnLine
Gau 20: AIR 1968 Assam & Ngld 50   that a gift with a condition to
maintain the donor can be revoked if the donee failed to fulfil
the condition. It was observed at page 51:
“8.  Here from Exts. 1 and 2 it will be evident that the gift
is in favour of one on whom the donor has depended for
her maintenance and she has even treated him as her
own son. An obligation was cast on the donee to maintain
such a helpless widow, who had no one to look after her
and who has divested herself of all her property in favour
of the donee, who was a complete outsider to the family.
The condition under which the donee has accepted the
gift is one over which the donor has no control, and it
does not depend on the will of the donor. It is the donee
who has to play his honourable part. It is clearly
established on the one-sided evidence of the plaintiff's
side in the absence of any statement on oath to the
contrary, as found by the learned Munsiff and not
reversed by the learned Subordinate Judge, that the
defendant failed to maintain the plaintiff and that he
tortured her, for which she had to leave the house to take
shelter with P.W. 6. Even in the written statement the
defendant has not stated that he is still ready to take care
and maintain the plaintiff. It is, therefore, clear that the
case is brought within the provisions of Section 128 of the
Transfer of Property Act as noticed above and the
specified event, namely the refusal to maintain the
plaintiff, has taken place, for which the defendant alone
is responsible, and it did not depend on the will of the
plaintiff, and so the gift is liable to be revoked.
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9.  A reference may also be made to Section 31 of the
Transfer of Property Act, which may be quoted:—
“31. Subject to the provisions of Section 12 of the
Transfer of property an interest therein may be
created with the condition superadded that it shall
cease to exist in case a specified uncertain event shall
happen, or in case a specified uncertain event shall
not happen”.
10.  It is clear that Exts. 1 and 2 read together forming part
of one indivisible transaction, go to show that a condition
that the transfer by gift in this case had a condition
superadded and the interest created by this transfer will
cease to exist in case a specified uncertain event, namely
refusal by the donee to maintain the donor, took place.
The view I have taken in this case finds support from a
decision of the Allahabad High Court in the case of  Jagat
Singh  v.  Dungar Singh , AIR 1951 All 599. When, therefore,
on the evidence it is clearly and unquestionably
established that the donee refused to maintain the
plaintiff, the plaintiff was entitled to file this suit for
revocation of the gift, and the learned Munsiff was
perfectly justified in decreeing the suit for revocation of
the gift deed and for other reliefs as claimed. Mr Barooah,
the learned counsel for the respondent, submits that the
condition, which was incorporated in Ext. 2, could not be
taken into account at any rate, when it was found in an
unregistered document. This could not be admissible in
evidence, in view of the provisions of Section 17 of the
Indian Registration Act. As noted earlier, it is true that
the agreement Ext. 2 is an unregistered document. But
such an agreement does not come within the terms of
Section 17 of the Indian Registration Act. By the
agreement, the donee has only contracted to maintain
the plaintiff during her lifetime, and this condition,
which is incorporated in the agreement, does not create
any interest in any immoveable property of the value of
rupees one hundred and upwards, nor does it extinguish
any rights therein. It is a condition, which is permissible
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under Sections 31 and 126 of the Transfer of Property Act,
and the document Ext. 2, which contains such a
condition, is not required to be registered under Section
17 of the Indian Registration Act, and as such the
document was rightly admitted and taken into
consideration by the learned Munsiff.”
19. This Court also held in Gehru (supra) that where a
gift deed is executed subject to the condition that the donee
should maintain the donor, it can be revoked for failure to
maintain the donor.
20. A similar view was taken by this Court in Bhagwan
Dass v. Tulu, 2019 SCC OnLine HP 3381, wherein it was held:
6. PW-2 Jhanji Devi, though, stepped into the witness
box, for proving, vis-a-vis, the defendant Tulu Ram,
hence breaching the afore condition, as borne in Ext.
PW-3/A, yet, the defendants' counsel rather failed to
mete any suggestion to her, hence during her cross-
examination, for, hence therethrough, his, striving, to,
rebut, the efficacy, of, the afore articulations, embodied,
in, her examination-in-chief. The effect of the afore lack,
of, any suggestion becoming meted, to, PW-2, the
widow, of, the deceased donor, and, appertaining to the
defendant, during, her lifetime, rendering service to her.
(a) Consequently, the aforesaid condition, as borne in
Ext. PW-3/A, hence making, it, incumbent, upon him, to
also render service to her, rather becoming hence
acquiesced, to, become rather breached, (b) thereupon it
would be befitting to conclude, vis-a-vis, dehors, the
defendant proving, vis-avis, his rendering service, to, the
donor, during, the latters' lifetime, yet, his failing to
prove the afore condition, as, embodied in Ext. PW-3/A,
hence enjoining him to also render service to the widow
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of the deceased donor. The consequence thereof is, vis-
a-vis, the declaratory decree, as strived to become
rendered, becoming amenable, to become granted, vis-
a-vis, the plaintiff.
21. This position was reiterated in Amar Chand (supra),
wherein it was held.
14. Therefore, in view of the fact that the suit was decreed
by the learned Trial Court by holding that on record it
stood proved that the conditions of the Gift Deed stood
breached by the defendant by not rendering service to the
mother of the plaintiffs and same was reiterated by the
learned Appellate Court, said findings having been
returned by the learned Courts below being findings of
fact and further as no substantial question of law is being
involved in the present appeal, the same is dismissed.
22. Thus, the gift with a condition to maintain the donor
can be revoked on failure to fulfil the condition.
23. In Mool Raj (supra), this Court had found that the
gift deed did not contain any condition of revocation on failure
to maintain the donor. Therefore, this judgment does not apply
to the present case.
24. In Naresh Kumari (supra), the Hon'ble Supreme
Court held that there cannot be any condition to render the
services in perpetuity, but the rendering of services can be
during the lifetime of the donor and donee. In the present case,
the condition was to maintain the plaintiff and his wife during
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their lifetime, and it was not perpetual. Therefore, the cited
judgment does not apply to the present case.
25. The plaintiff asserted that the defendant had
threatened to assault him and failed to maintain him. He stated
in his cross-examination that he had married 2-4 months
before executing the gift deed and the Will. He remained in the
house of the defendant for 2-3 days. The defendant had
threatened him. He had wrongly mentioned in his plaint that
the defendant had turned him out of his house. He stated that
the defendant had sent the money order 2-3 times, but he had
returned the same.
26. Ghama (PW3) stated that the defendant had not
maintained the plaintiff and the plaintiff had to maintain
himself. The plaintiff was unable to cultivate his land. He stated
in his cross-examination that the plaintiff used to reside alone
at the time of the execution of the gift deed and he was not
being maintained by any person.
27. The defendant Kanshi Ram admitted that the gift
deed was executed in his favour. He denied that there was no
condition in the gift deed regarding the maintenance of the
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plaintiff. The plaintiff was earlier residing with him in his
house, and he had maintained the plaintiff. The plaintiff had
executed the gift deed in lieu of the services rendered by the
defendant to him. The plaintiff and his wife remained with him
as husband and wife for 6-7 days. Thereafter, the plaintiff left
for his home voluntarily. He had not threatened the plaintiff or
his wife. The plaintiff had asked him to pay maintenance to him
in his home. Subsequently, the plaintiff refused to accept the
maintenance from him.
28. The statement of the defendant corroborates the
plaintiff's version that the defendant was not maintaining him.
The plaintiff had no reason to leave the defendant’s home after
6-7 days of his marriage if he was residing with the defendant
for 4 years before the execution of the gift deed. The defendant
denied that the gift deed did not contain any condition that he
would have to maintain the plaintiff, which is contrary to the
terms and conditions of the gift wherein a specific condition has
been mentioned to this effect. Het Ram (PW2) stated that this
condition was explained at the time of the execution of the gift.
The denial of the defendant to maintain the plaintiff and his
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wife shows that the defendant is not a trustworthy witness and
he did not intend to maintain the plaintiff.
29. Mr I.S. Chandel, learned counsel for the respondent,
vehemently submitted that the plaintiff had refused to accept
the money order sent by the defendant, which shows that the
plaintiff had himself refused to take the services of the
defendant. This submission cannot be accepted. The condition
in the gift deed was to maintain the plaintiff and not to pay
money to him. The plaintiff is an old person who required care
and attention. He cannot be left to fend for himself by paying
money to him. Therefore, the plaintiff was within his right to
refuse the amount sent to him because it would not constitute
the maintenance as is understood in the context of the present
case.
30. Chimna Ram (DW2) stated that the plaintiff used to
reside separately from the defendant and sometimes he used to
reside with the defendant. The defendant used to take care of
the plaintiff before his marriage. The plaintiff remained in the
house of the defendant for 4 to 5 years. The defendant
maintained him. The plaintiff expressed his desire to gift the
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land to the defendant. The plaintiff remained with the
defendant for about a week after his marriage and thereafter
went to his home. The plaintiff told him that he was getting the
maintenance and he was happy. The defendant had sent him
once to the house of the plaintiff because the plaintiff had
refused to accept the maintenance money. The plaintiff stated
that he wanted to take back his land at the instance of his wife.
31. The testimony of this witness is not believable. He
claimed that the plaintiff was residing separately and thereafter
that the plaintiff was residing with a defendant. He has not
provided any explanation as to why the plaintiff and his wife
should leave the house of the defendant if they were being
maintained by the defendant properly. As already stated, the
condition was to maintain the plaintiff and his wife and not to
pay them money. Therefore, the payment of money would not
constitute sufficient compliance with the condition of the gift
deed.
32. Thus, the learned Trial Court rightly held that the
defendant had failed to prove that he was maintaining the
plaintiff as per the terms and conditions of the gift deed and the
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learned Appellate Court erred in reversing the well-reasoned
judgment of the learned Trial Court. The learned Appellate
Court was swayed by the fact that maintenance cannot be a
consideration of the gift deed but can only be a motive, which is
not correct because this Court has consistently held that
maintenance can be a condition of the gift deed and the learned
Appellate Court was bound by these judgments.
33. Therefore, the learned Appellate Court had
misdirected itself in law while appreciating the evidence which
led to the findings recorded by the learned Appellate Court. The
learned Appellate Court also erred in ignoring the express
condition of the gift deed which provided maintenance by the
defendant and a revocation of the gift deed in case of failure.
Hence, all these substantial questions of law are answered
accordingly.
Final Order :
34. In view of the above, the present appeal is allowed,
and the judgment and decree passed by the learned Appellate
Court are ordered to be set aside while those passed by the
learned Trial Court are ordered to be restored.
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35. The appeal stands disposed of, so also the pending
application(s), if any.
36. Records of the learned Courts below be sent down
forthwith.
(Rakesh Kainthla)
Judge
rd
3 August, 2026
(Nikita)
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