Satyanarayana Rao, J.
1. The first defendant is the appellant in this second appeal. The plaintiff, who is the sole respondent, instituted the suit out of which this second appeal arises, for a declaration of his title to the suit properties and for a permanent injunction restraining the defendants from interfering with his possession and enjoyment of the properties.
2. The plaintiff is the grandson of one Panaya. Plaintiff's father is Subbaiah. Panaya had a brother Veerayah who had no sons but had four daughters. One of the daughters was married to one Nallamuthu Ramachandriah who, after his marriage lived practically as an iliatom son-in-law in the house of Veerayah. The houses of Panaya and Veerayah formed portions of the same house. Veerayah by a gift deed, Ex. A-7, dated 11-6-1918 gifted away items 1 to 4 of the plaint schedule to Ramachandriah, his son-in-law, and the fifth item in the plaint schedule was acquired by Ramachandriah Under Ex. A-8 dated 8-8-1922. For a long time, Ramachandriah had no issue. On 15-5-1930, by Ex. S-6, Ramachandriah purported to gift away items 1 to 5 of the plaint schedule properties to the plaintiff subject to certain conditions. The place of residence of Ramachandriah and the plaintiff's father was Nadendla, a village within the jurisdiction of the Sub-Registrar of Chilakalauripet. The document was executed at Chilakalauripet in the Karnam's house. It was presented for registration on the subsequent day, 16-5-1930 at Chilakalauripet and was registered. The plaintiff bases his title to the suit properties on this gift deed.
3. The case of the defendants, the first defendant being the daughter born to Ramachandriah 274 days after the date of the gift deed and the second defendant being her husband, who however died pending suit, was that when this document was received by post by Ramachandriah on 17th or 18th of May 1930 at Nadendla he complained after having the document read over to him, he being illiterate, to D. Ws. 4 and 5, that he was defrauded by Subbaiah, the father of the plaintiff who was then a minor, as it was represented to him that the document was a will executed in accordance with the wishes of Ramachandriah whereas as a matter of fact he found on a perusal of the document that the entire property was gifted away to the plaintiff subject only to the obligation of the donee performing the obsequies of Ramachandriah. There was no obligation cast on the donee to maintain Ramachandriah and his wife; nor was there any obligation cast on him to perform the funeral ceremonies of Ramachandriah's wife.
After haying this document read over to him and realising that he was made to execute fraudulently a document which he never intended to execute on 19-5-1930 he executed a deed of cancellation Ex. B-3 in which he stated:
'The minor's father Subbaiah having represented to me that he would recite in the said-document certain matters which he had told me, namely, that minor Narayana should maintain me and my wife during our lifetime, that only after the lifetime of both of us he should enjoy the property with all rights and some other matters favourable to us, and would get the document registered, had, without making the recitals accordingly, got it written that my obsequies alone would be performed. As he thus misled me and got the deed registered and as all the conditions in the said deed are against me, I hereby cancel the dhakal deed bearing No. 791 as stated above.'
4. This was followed by a notice which he issued on 4-6-1930 to the plaintiff's father as his guardian, which however was not produced by the plaintiff, in which he intimated that he had by a registered deed cancelled the gift-deed, Ex. B-6, for the reasons mentioned therein. On 26-7-1930, the plaintiff's father sent a reply through his vakil Ex. 7, in which he asserted that the document was executed by Ramachandriah out of his free will and was in accordance with his wishes, that Ramachandriah even got the transfer of patta and other things effected in pursuance of the deed of gift and that there was no reason to cancel the deed. It is now conceded that there was no transfer of patta, nor even application for mutation off names was sent at or about the time of registration of the gift deed. After this no steps were taken by the plaintiff's father to have the deed established in a Court of law and as found by both the Courts the patta continued in the nama of Ramachandriah till his death which occurred in 1941 and it is also found by both the Courts below that in fact possession of the properties continued under Ramachandriah till the date of the death of Ramachandriah's wife Ran-gamma which happened on 8-9-1933.
The first defendant the daughter of Ramachandriah born after the execution of the gift deed, claimed the properties as the heir of her father and she pleaded that the deed of gift was vitiated by fraud, undue influence and misrepresentation. Further she also raised the contention that the gift was not accepted before it was revoked by Ex. B-8 and that therefore the cancellation was valid and good.
5. On these contentions, the learned Subordinate Judge who tried the suit framed as many as 6 issues, leaving out of consideration the general issue, and of these the two principal issues were those relating to fraud which according to the defendants vitiated the gift deed and the other relating to the acceptance of the gift deed left before it was revoked. The learned Subordinate Judge, after an exhaustive and careful consideration of the evidence adduced by both sides, came to the conclusion that the gift was vitiated by fraud, undue influence and misrepresentation; and that it was not accepted before it was cancelled by Ramachandriah under Ex. B-8. There was neither delivery of the deed which remained always with the defendants who produced it in Court nor was there delivery of possession as possession of the properties continued till 1933, when Rangamma died, with Ramachandriah. The patta also remained in Ramchandriah's name till his death. He found that the deed of gift was sent by post to Ramachandriah and that the case of the defendants that it was only then that he learnt the mischief played by Subbiah was correct. On these findings he dismissed the plaintiffs, suit.
6. Against this decision, there was an appeal to the District Judge who reversed the decision and decreed the plaintiff's suit on what appears to me untenable grounds. He raised as points for determination three questions, viz., (1) was the gift accepted? (2) Is the gift deed vitiated by undue influence, fraud or misrepresentation, and (3) If points 1 and 2 be found for plaintiff-appellant, is the deed of revocation, Ex. B-8 of any effect on the plaintiff's title? It will be seen from these that the important questions were, the first two, the third being merely consequential upon the findings to be reached on points Nos. 1 and 2.
7. The learned Judge on point No. 1 agreed with the trial Court in finding that the gift deed, after its execution, was not delivered to the plaintiff's father Subbaiah and his case that he obtained the gift deed from the Sub-Registrar's Office, kept it with him for three or four years and later gave it to the karnam for mutation of names was found to be false. He also agreed with the trial Court in finding that possession was with Ramachandriah. Having found this, he reached the curious conclusion, that there was acceptance of gift on behalf of his or by P. W. 9 the father, i.e. Subbaiah. It has been held by the Judicial Committee in -- 'Kalyanasundaram Pillai v. Karuppa Moopanar' that if after the execution of the deed of gift, the deed was delivered to the donee, but the registration of the document took place later, the acceptance of the deed after the execution would complete the gift and make it irrevocable. It was pointed out in that case that the statement of the law in -- 'Venkati Rama Reddi v. Pillaty Rama Reddi', AIR 1917 Mad 27 (B) required a qualification viz., that the acceptance of the gift by the donee must be during the lifetime of the donor. It therefore follows that if there is acceptance of the gift after execution of the deed, even though the registration was postponed, to a later date, the gift would become irrevocable. The fact that the deed was executed and registered would not make it irrevocable, if in fact there was no acceptance by the donee either before registration but after execution or even after registration. See -- 'Papathi Animal v. Doraiswami Naicker', AIR 1930 Mad 290 (C).
The crucial dates in the present case are the date of execution of the deed Ex. B-6, i.e., 15-5-1930, and the date of the deed of revocation Ex. B-8, dated 19-5-1930, which was communicated on 4-6-1930 to the donee's father by registered notice. One has to see whether between these two dates, there is anything in the evidence to show that there was acceptance by or on behalf of the donee. It is found concurrently by both the Courts that notwithstanding the execution the deed continued to remain in the hands of the donor even after its registration. It was the donor that presented the document for registration on 16-5-1930 and got it registered. The possession of the properties was not delivered to the donee during the material period. If there was no delivery of the deed and possession of the property to the donee it may be open to the donee to prove by cogent evidence that there were other modes of acceptance for example a letter written immediately after the execution of the document. But what the law requires in my opinion is acceptance of the gift after its execution though the deed may not be registered. Anterior negotiations or talks about the transfer of property by way of gift, would not amount to acceptance of the transfer of the property by gift. The law requires acceptance, because in many cases the gift deed might contain onerous conditions and the donee may not be wilting to carry out those terms. An option to accept or refuse the gift is therefore given to him. I do not for a moment suggest that acceptance may not be implied, but the facts relied on to draw an inference of acceptance must be acts of positive conduct on the part of the donee or persons acting on his behalf and not merely passive acquiescence such as standing by when the deed was executed or was registered.
In the present case there is no evidence on behalf of the donee that Subbiah was present on 16-5-1930 at the Sub-Registrar's Office at Chilakaluripet. I do not suggest thereby that that would have constituted sufficient compliance. His mere presence at the time of registration would not amount to acceptance; but if there is something more in the nature of positive act on his part unambiguously establishing acceptance of the deed of gift, it may be sufficient. I have adverted to this aspect in such detail for the reason that the learned Judge seems to think that even antecedent talks before the execution of the deed would be sufficient to constitute acceptance of the gift. He refers to these facts in para. 35 of his judgment and to the evidence of P. Ws. 9, 6 and 7 in particular, who were present at the time of the execution of the gift deed. He refers to the fact that the father P. W. 9 and Ramachandriah went to Chilakaluripet to have the gift deed executed and registered. The title deeds, Exs. A-7 and A-8 were taken there and handed over to Gopalakrishniah who prepared the document and were left in the hands of P. W. 9. He then refers to some statements, without quoting it, in Ex. B-7 as indicating acceptance of the gift.
It is not known what the learned Judge had in mind when he referred to a statement in Ex. B-7 and the learned counsel for the respondent was not able to say what the learned Judge meant by that sentence in that paragraph; nor am I able to find anything to signify acceptance of the gift before it was cancelled. Exhibit B-7, the reply notice, it must be remembered, was issued long after the cancellation of the gift deed by Ex. B-8 and the issue of notice on 4-6-1930. Even if under Ex. B-7 the father had accepted as he did the gift deed that would be ineffective in law to constitute acceptance as by that time the gift deed was revoked. The learned Judge sums up in that paragraph his conclusion thus:
'That statement (the statement in Ex. 7) though it is ineffective to constitute acceptance on the date of Ex. B-7 may be used to reinforce the conclusion that we may draw on the basis of the evidence of P. Ws. 9, 6 and 7 and the production of Exs. A-7 and A-8 in Court by P. W. 9 that he accepted the gift on behalf of his son when the deed was executed.
I find that the gift was accepted by P. W. 9 on behalf of his minor son, the plaintiff on the date of the execution of Ex. B-6 and that as soon as Ex. B-6 was registered, title to the properties covered by the instrument was transferred from Ramachandriah to the plaintiff.'
I have not been able to find nor has learned counsel for the respondent been able to point out, anything either in the evidence of P. Ws. 13, 6 and 7 or in Ex. B-7 to indicate that there was acceptance of the gift after its execution by P. W. 9. All that was attempted to be proved on behalf of the respondent by his learned counsel was that Subbaiah must have been pre-sent at the time of the registration of the document and from, that we might infer acceptance. But even the presence of Subbaiah in the Registrar's office has not been established by evidence, assuming that an inference of acceptance may be drawn from that fact. It is therefore impossible to accept the conclusion of the learned Judge that there was acceptance of the gift by P. W. 9 on behalf of the donee.
8. If there was no acceptance of the gift by the father, it follows that the cancellation of the gift deed by Ramachandriah under Ex. B-8 is valid. The property therefore will continue to belong to Ramachandriah and after his death would devolve upon the daughter, the first defendant.
9. This finding is enough to dispose of this second appeal. But even on the other question of fraud and misrepresentation the finding of the learned Judge cannot be said to be justified in law. He seems to think that the evidence of D. Ws. 4, 8 and 9 which they speak to the complaint of Ramachandraiah immediately the document was received from the post office & was read over to him was inadmissible in evidence as a statement of a deceased person which could not be brought under Section 32, Evidence Act. What is sought to be established by the oral evidence is that immediately after the document was received Ramachandriah complained to these people that he was deceived or defrauded by Subbaiah. It affords evidence of his conduct immediately after receipt of the document. The statements are not attempted to be proved as statements made by Ramachandriah but only to establish the conduct of Ramachandriah. I do not see any legal objection for the admission of these statements in evidence and there is no reason to eschew the evidence of D. Ws. 4, 8 and 9 on that account.
The learned Judge was also of opinion that there was no definite pleading regarding the fraud that was complained of by the defendants. The fraud was categorically and clearly stated by Ramachandriah himself in Ex. B, and that is the case which the defendants attempted to prove in the trial Court and which was accepted by it. These defects would undoubtedly warrant a reconsideration of the evidence by the lower appellate Court. It is no doubt true that the learned Judge recorded an alternative Ending even on the assumption that the evidence of D. Ws. 4, 8 and 9 was admissible. But it is rather difficult to separate how much of his finding was coloured by the fact that his evidence was inadmissible and that the pleading was inadequate or insufficient. However it is unnecessary to adopt that course, as in my opinion the finding on the first point is sufficient to dispose of this second appeal.
10. It follows from the foregoing that the decision of the learned District Judge must be set aside and that of the Subordinate Judge restored with costs here and in the Court below. The appellant will pay the court-fee payable to the Government which will of course be included in the costs recoverable from the respondent. (Leave to appeal is refused).