Revocation of gift to the government school.
Sunlawseeker
(Querist) 15 November 2012
This query is : Resolved
Dear Sirs,
My friend had given a 8 cents of land to the Government to construct a Primary School. But, the Government has not utilized that land for the past 20 years.
May my friend ask to return back the land?
Pls help in this regard.
Thanking you
V.Sundaresan
Devajyoti Barman
(Expert) 15 November 2012
The transfer once made willfully and validly can not be cancelled.
He however taking inacation on the part of the govt may start using it.
Arvind Singh Chauhan
(Expert) 15 November 2012
Try to take recourse of following judgment-
CASE NO.:
Appeal (civil) 6972 of 1999
PETITIONER:
THAKUR RAGHUNATH JI MAHARAJ & ANR.
Vs.
RESPONDENT:
RAMESH CHANDRA
DATE OF JUDGMENT: 11/05/2001
BENCH:
S. Rajendra Babu & Shivaraj V. Patil
JUDGMENT:
W I T H
CIVIL APPEAL NO. 6973 OF 1999
J U D G M E N T
Shivaraj V. Patil J.
L...I...T.......T.......T.......T.......T.......T.......T..J
The defendants are the appellants before this Court in
Civil Appeal No. 6972/1999 challenging the correctness and
validity of the judgment and decree passed in the second
appeal No. 1020/97 by the High Court of Judicature at
Allahabad. The plaintiff is the appellant in Civil Appeal
No. 6973/1999 challenging the impugned judgment to the
extent of granting one year time to the defendants for
constructing college building in the suit land. The
Plaintiff was bhumidhar of the suit plot of land No. 233
measuring 1.98 acres. He executed a gift deed in favour of
the defendant Thakur Raghunath Ji Maharaj, Virajman Shri
Ram Mandir Chutar Teka Village Sakitara, District Mathura on
16.8.1971 for the purpose of construction of college
building on the said plot of land. On the same day, a deed
of agreement was executed to the effect that the land was
gifted for building of degree college and the said building
should be constructed within the period of six months from
the date of the execution of the gift deed failing which the
plaintiff would have the right over the suit plot of land.
College building was not constructed within the said period
inspite of repeated requests and demand by the plaintiff.
Finally, notice was sent by the plaintiff on 16.10.1985 to
comply with the conditions of the agreement but the
defendants refused to do so. The plaintiff also stated that
his possession over the land continued as there were two
‘samadhis of his father and mother existing on the land.
The defendants filed written statement resisting the
said suit contending that the suit filed by the plaintiff
was barred by time; the plaintiff executed the gift deed in
favour of defendant no. 1 without any conditions and that
there was no agreement between the plaintiff and the
defendant for the construction of degree college on the
disputed land. The trial court held that the suit filed by
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the plaintiff was beyond the period of limitation and the
defendant had not executed any agreement dated 16.8.1971.
In this view, the suit was dismissed. Aggrieved by the
judgment and decree of the trial court, the plaintiff filed
the first appeal, which was allowed, decreeing the suit of
the plaintiff holding that the suit was filed within time
and that the agreement mentioned above was executed. The
defendants approached the High Court by filing the second
appeal, aggrieved by the judgment and decree passed by the
first appellate court.
The High Court by the impugned judgment concurred with
the view taken by the first appellate court; however,
noticing that the suit plot was still vacant, instead of
directing the defendants to return the suit plot, gave an
opportunity to the defendants to establish a degree college
within a period of one year. It is made clear that in case
the college is established and the building is constructed
on the said plot of land within the time allowed, the
defendants need not comply with the decree passed by the
first appellate court and its operation shall be deemed to
have been stayed for a period of one year. Hence this
appeal.
The learned counsel for the appellants urged that the
suit filed by the plaintiff is clearly barred by time; the
gift deed executed by the plaintiff was unconditional and
absolute and the so-called agreement could not defeat the
rights conferred under the gift deed on the defendants. The
learned counsel for the respondents argued supporting the
impugned judgment.
As to the execution and validity of the agreement, the
first appellate court recorded a categorical finding based
on the pleadings and evidence that it was a genuine
document. The finding of fact recorded by the first
appellate court was not interfered with by the High Court in
the second appeal and rightly so. The gift deed and
agreement were executed on the same day. Having regard to
the evidence, the High Court and the first appellate court
were right in taking the view that both formed the part of
one transaction. It is not disputed that the gift deed did
not contain any conditions in regard to the building of
college on the suit plot but in the agreement it is clearly
stated that in the suit land, there are built up chabutaras
of ‘samadhis of the father and mother of the plaintiff,
shall be maintained in the same condition; the suit land
shall be used for the construction of a degree college and
not for any other purpose; if the college is not built
within six months, the gift deed will be deemed to have come
to an end and that the plaintiff shall be considered to be
the owner of the land; the possession will be of the
plaintiff till the degree college is not built; in case the
college building is not constructed within the said period,
the plaintiff will be entitled to take appropriate action in
the court of law and in the event the degree college is
constructed, the plaintiff will have no right over the land.
From these terms contained in the said deed of agreement, it
is clear that the gift was not absolute and/or
unconditional. The gift deed and the agreement forming one
transaction are to be read together and given effect to
accordingly. In other words, the defendants had to take
both the benefit and burden. They could not reap the
benefit and avoid to unload the burden. Since the
defendants did not construct a college building on the suit
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land, the gift did not come into effect.
Before the High Court, the learned counsel for the
defendants contended that the substantial question of law
that arose for consideration was whether Article 54 or
Article 66 of the Limitation Act would apply to the suit.
Article 54 of the Limitation Act relates to specific
performance of a contract. It has no application at all to
the present suit, as the suit filed was not for specific
performance but one for possession based on reason of
forfeiture by breach of condition. Article 66 prescribes
period of limitation as 12 years for filing a suit for
possession of immovable property when the plaintiff has
become entitled to possession by reason of any forfeiture on
breach of condition and the time begins to run when the
forfeiture is incurred or the condition is broken.
‘Samadhis of parents of the plaintiff exist in the land
which were to be maintained; the land could not be used for
any purpose other than constructing building for degree
college and that the possession of the land shall continue
with the plaintiff so long the college is not built.
According to the plaintiff, the defendants finally refused
to construct degree college building in the land on
16.10.1985, giving rise to immediate course of action.
Hence the suit filed immediately thereafter in the year 1985
itself was not barred by time, as rightly accepted by the
first appellate court. The same was not disturbed in the
second appeal by the High Court. Having regard to the
pleadings, facts and circumstances of the case, evidence
placed on record and the nature of transaction between the
parties, we are of the view that the suit was not barred by
time.
Further the relationship between the plaintiff and the
defendants was fiduciary as the suit property was gifted for
a specific charitable purpose and the condition attached to
the gift that in case college building was not constructed
within a specified time, the plaintiff would be entitled to
the property, was a valid condition; the donee continued to
be trustee and the donor could claim back property on the
breach of conditions mentioned in the agreement. The High
Court rightly relied on the decision of this Court in State
of Uttar Pradesh vs. Banshi Dhar and Ors. ( AIR 1974 SC
1084) which fully supports the case of the respondent in
regard to his claim for possession of the property. In the
said judgment, it was held that the donation given by Dubey
was conditional; the Government was a mere custodian of the
cash till condition was complied with and if the performance
thereof was defeated by the Government, the gift did not
take effect. It was further held that the transaction was
not a gift simpliciter but was subject to certain
conditions; as conditions were not carried, the State could
not keep the money and the suit was liable to be decreed.
In the present case, the land was given for charitable
purpose in the public interest as already noticed above.
The High Court was right and justified in giving concession
to the defendants to construct building within a period of
one year and staying the decree of first appellate court for
a period of one year. The High Court has also indicated
that in case the defendants take necessary steps and start
constructing college building over the land and for no fault
of them, the construction of the college building is not
completed within the time allowed, it is open to them to
seek further extension. The High Court, having agreed with
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the findings recorded by the first appellate court, however,
in the larger public interest to serve charitable purpose
and to adjust equities has granted time to the defendants to
construct the college building as stated above. Since
substantial justice has been done, the impugned judgment
does not call for any interference at the hands of this
Court. Thus, we see no merit in these appeals. Hence they
are dismissed. No costs.
Raj Kumar Makkad
(Expert) 15 November 2012
If the gift was conditional then definitely your friend can get it revoked but if the same was unconditional and absolute then there is no scope. The law cited above is also on the same line.
