AATTUPURATH LAKSHMIKUTTY AMMA v AATTUPURATH SREEDHARAN NAIR; ARAVINDAKSHAN NAIR; NARAYANIKUTTY AMMA; KOTTIVATTATHAZHATH SOUMINI; NAYANA (MINOR) REPRESENTED BY MOTHER

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941** **SA.No. 67 of 2001(G)** **AGAINST THE JUDGMENT AND DECREE DATED 31-08-2000 IN AS 150/1998 of PRINCIPAL SUB COURT, KOZHIKODE** **AGAINST THE JUDGMENT AND DECREE DATED 24-03-1998 IN OS 713/1995 of PRINCIPAL MUNSIFF COURT, KOZHIKODE-II** **APPELLANT:APPELLANT:PLAINTIFF:** **AATTUPURATH LAKSHMIKUTTY AMMA, D/O LAKSHMI AMMA, VIJAYAMANDIRAM, KUNNAMANGALAM AMSOM, KARANTHUR DESOM, KOZHIKODE TALUK** **BY ADVS. SMT.SAVITHA GANAPATHIYATAN SMT.SHAHNA KARTHIKEYAN SRI.M.P.SREEKRISHNAN** ## **RESPONDENTS:RESPONDENTS:DEFENEDANTS:** - **1 AATTUPURATH SREEDHARAN NAIR, S/O LATE KRISHNAN NAIR, KUMARANALLUR AMSOM, ANAYAMKUNNU DESOM, KOZHIKODE TALUK** - **2 AATTUPURATH ARAVINDAKSHAN NAIR, S/O LATE KRISHNAN NAIR, VADAKKETHODUKAYIL, KUMARANALLUR AMSOM, ANAYAMKUNNU DESOM, KOZHIKODE TALUK** - **3 DO. NARAYANIKUTTY AMMA D/O LAKSHMI AMMA, AKKARAPARAMBIL, KUMARANALLUR AMSOM, DESOM, KOZHIKODE TALUK** **SA67/2001,SA.68/2001,SA.73/2001 2** **4 KOTTIVATTATHAZHATH SOUMINI, D/O. KAMALAKSHI AMMA, NEELESWARAM AMSOM, DESOM, KOZHIKODE TALUK 5 NAYANA, 6 YEARS, MINOR, REPRESENTED BY 4TH RESPONDENT MOTHER - DO.** **R1 & R2 BY ADVS. SMT.PRABHA R.MENON SRI.K.JAYESH MOHANKUMAR SRI.M.KRISHNAKUMAR SRI.PUSHPARAJAN KODOTH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2019, ALONG WITH SA.68/2001, SA.73/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SA67/2001,SA.68/2001,SA.73/2001 3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941** **SA.No. 68 of 2001(G)** **AGAINST THE JUDGMENT AND DECREE DATED 31.08.2000 IN AS 149/1998 of PRINCIPAL SUB COURT, KOZHIKODE** **AGAINST THE JUDGMENT AND DECREE DATED 24.03.1998 IN OS 715/1995 of PRINCIPAL MUNSIFF COURT, KOZHIKODE-II** ## **APPELLANT/APPELLANT:PLAINTIFF:** **AATTUPURATH NARAYANIKUTTY AMMA, D/O LAKSHMIKUTTY AMMA, AKKARAPARAMBIL, KUMARANALLUR AMSOM, ANAYAMKUNNU DESOM, KOZHIKODE TALUK** **BY ADVS. SMT.SAVITHA GANAPATHIYATAN SMT.SHAHNA KARTHIKEYAN** ## **RESPONDENTS/RESPONDENTS:DEFENDANTS** - **1 AATTUPURATH SREEDHARAN NAIR, S/O LATE KRISHNAN NAIR, KUMARANALLUR AMSOM, ANAYAMKUNNU DESOM, KOZHIKODE TALUK** - **2 DO. LAKSHMIKUTTY AMMA, D/O. DO. VIJAYAMANDIRAM, KUNNAMANGALAM AMSOM, KARANTHUR DESOM, KOZHIKODE TALUK** - **3 DO. ARAVINDAKSHAN NAIR, S/O. KRISHNA NAIR, KUMARANALLUR AMSOM, ANAYAMKUNNU DESOM, KOZHIKODE TALUK** - **4 KOTTIVATTATHAZHATH SOUMINI, D/O. KAMALAKSHI AMMA, PARAKUNNATH, NEELESWARAM AMSOM AND DESOM, KOZHIKODE TALUK** - **5 NAYANA AGED 6 YEARS, MINOR,** **SA67/2001,SA.68/2001,SA.73/2001 4** ## **REPRESENTED BY 4TH RESPONDENT - MOTHER, DO.** R1 &R2 **[BY ADVS.]** **SMT.PRABHA R.MENON SRI.K.JAYESH MOHANKUMAR SRI.M.KRISHNAKUMAR SRI.PUSHPARAJAN KODOTH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2019, ALONG WITH SA.67/2001, SA.73/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SA67/2001,SA.68/2001,SA.73/2001 5** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941** **SA.No. 73 of 2001** **AGAINST THE JUDGMENT AND DECREE DATED 31.08.2000 IN AS 151/1998 of PRINCIPAL SUB COURT, KOZHIKODE** **AGAINST THE JUDGMENT AND DECREE DATED 24.03.1998 IN OS 711/1995 of PRINCIPAL MUNSIFF COURT, KOZHIKODE-II** ## **APPELLANTS :APPELLANTS :PLAINTIFFS:** **1 SOUMINI, D/O. KAMALAKSHI AMMA, KOTTIVATTATHAZHATH, NEELESWARAM AMSOM DESOM, KOZHIKODE TALUK 2 NAYANA (MINOR) AGED 6 YEARS REPRESENTED BY GUARDIAN 1ST APPELLANT, DO** **BY ADVS. SMT.SAVITHA GANAPATHIYATAN SMT.SHAHNA KARTHIKEYAN SRI.M.P.SREEKRISHNAN** ## **RESPONDENTS:RESPONDENTS:DEFENDANTS:** **1 AATTUPURATH SREEDHARAN NAIR, S/O. LATE KRISHNAN NAIR, KUMARANALLUR AMSOM, ANAYANKUNNU DESOM, KOZHIKODE TALUK.** **2 DO. ARAVINDAKSHAN NAIR, S/O. LATE KRISHNAN NAIR, DO. 3 DO. NARAYANIKUTTY AMMA, D/O. LAKSHMI AMMA, AKKARAPARAMBIL DO. DO.** **SA67/2001,SA.68/2001,SA.73/2001 6** **4 DO. LAKSHMIKUTTY AMMA, D/O. LAKSHMI AMMA, VIJAYA MANDIRAM, KUNNAMANGALAM AMSOM, KARANTHUR DESOM, KOZHKIODE TALUK** **BY ADVS. SMT.PRABHA R.MENON SRI.K.JAYESH MOHANKUMAR SRI.M.KRISHNAKUMAR SRI.PUSHPARAJAN KODOTH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2019, ALONG WITH SA.67/2001, SA.68/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SA67/2001,SA.68/2001,SA.73/2001 7** ## **JUDGMENT** These are the three appeals filed by the plaintiffs in O.S.Nos. 713/1995,715/1995 and 711/1995 of the Prl.Munsiff's Court, Kozhikode-II and in A.S.Nos. 149/1998,150/1998 and 151/1998 of the Prl.Sub Court, Kozhikode. 2. The two daughters and the legal heirs of one son of late Krishnan Nair, claim the respective properties alleged to have been given to them under Ext.A1 gift deed by their father. The Trial Court allowed the suit in O.S.No. 715/1995 in respect of item No.1 property as per Ext.A1 document and dismissed the suit in so far as item No.6 property in the document is concerned. The other two suits were dismissed. It was confirmed in appeal against which these three appeals were preferred. 3. All these three suits were filed for declaration of title of respective plaintiff and their right, title and interest over the property and consequential relief thereof, based on Ext.A1 ## **SA67/2001,SA.68/2001,SA.73/2001 8** gift deed. Both the Trial Court and the First Appellate Court found that gift was not accepted and consequently the suits were dismissed except the suit in O.S.No.715/1995, which was allowed in part. 4. The following questions were framed at the time of admission: 1. Whether the recital in the document that the donor does not have any right in the property and that applications have been filed for transferring, the jema(Patta) would not conclusively prove the acceptance of the gift making the gift valid. 2. Whether the courts below were right in law in holding that there was no valid gift by the mere fact that possession was retained by the owner for taking the income from the property. 3. Whether the payment of taxs or filing of the suit on the basis of the gift deed will not amount to acceptance of gift by the donees. 5. The question centering around the Ext.A1 document and the deposition thereunder. According ## **SA67/2001,SA.68/2001,SA.73/2001 9** to the defendants, Ext.A1 document is not at all a gift as the clause therein would show that there was no intention on the part of the executant/donor to give the property in absolute to the beneficiaries thereunder as the donor has reserved his life interest over the property till his death and also reserved the life interest of his wife till her death besides the clause prohibiting alienation of the property till his death. But going by Ext.A1 document it is clear that the first part of the active body of the gift deed would show that the donor has expressed his intention to give the property and all rights over it by way of gift to the beneficiaries thereunder in consideration of the love and affection towards his children. It is also made clear in the document by recital that he had given the property, parted with the title in consideration of love and affection and given the property in gift specifying the property and dividing the property held by him into 8 schedules. There is specific clause in the document showing that the respective party should take the ## **SA67/2001,SA.68/2001,SA.73/2001 10** respective property allotted to their share. A partial restrain on alienation till the death of donor is a valid clause and permissible and once gift was given with that condition it will not defeat the gift already given. But, the gift would stand as subject to that condition that doesn't mean that the donor had not given the property in gift to the respective parties to the document. Reserving a life interest over the property by the donor also will not take away the gift once it was given in accordance with the law in force. Ext.A1 document and its construction would clearly show that a gift of property was given to respective person by scheduling 8 items of the property by dividing the large extent of property owned by the donor. The donor is none else the father of beneficiary under the document, the respective plaintiffs. Admittedly after the execution of the above said gift a cancellation deed was subsequently executed by the father admitting execution of earlier gift. But, no document was produced or let in evidence. But, it is an ## **SA67/2001,SA.68/2001,SA.73/2001 11** admitted case of both sides that the father has subsequently cancelled the earlier gift under Ext.A1. The said unilateral cancellation of the gift already given is of no use having no legal consequences. 6. Regarding the acceptance of the gift, the provision contained in the Transfer of Property Act, Section 3 says that when a document was registered in due process of the law in force and duly entered in the registers kept for that purpose, it would be a notice to the beneficiary thereunder and in so far as a gift registered in accordance with the law in force entered in the registers kept for that purpose, it would be a notice to all beneficiaries under the gift, the Ext.A1. Unless they have declared their intention not to accept the gift by document or by the way as mandated under the law in force, the gift would stand as accepted by notice by its registration as far as the beneficiaries are concerned. No case of rejection by declaration that they have not accepted the gift or rejected the gift either set ## **SA67/2001,SA.68/2001,SA.73/2001 12** up or let in evidence. So, a mere registration when it was completed in due course of law by entering the same in the registers kept in the Registry, it would be a notice to the beneficiaries and unless it was rejected it is amounts to acceptance by the beneficiaries. Hence, there is no merits in the contention that the gift was not accepted by the beneficiaries, the respective plaintiff in the three suits. 7. It is seemed to be so strange that the Trial court and the First Appellate Court has committed a very serious error by holding that Ext.A1 is valid in so far as item No.1 property is concerned and in rejecting the gift regarding other items. 8. The learned counsel for the respondent at this juncture relied on the decision rendered by the Apex Court in _**Baby Ammal v. Rajan Asari (1997 (1) KLT 340).**_ The factual situation involved in that case is different from the present cases as the document involved in that case shows that the title was retained by the donor till his death. Hence, the legal position settled in that decision ## **SA67/2001,SA.68/2001,SA.73/2001 13** is of no use in the present case in hand. In short, the decree and judgment rendered by the First Appellate Court as well as the Trial Court does not reflect proper application of law in force and hence liable to be set aside. The plaintiffs are entitle to the grant of declaration of title over the respective property scheduled in the respective suits and the injunction sought in the suit. In the result, all these three appeals are allowed. The decree and judgment of the First Appellate Court and the Trial Court are set aside. The respective suits are hereby decreed declaring the respective title of plaintiff over the schedule properties and granted injunction as prayed for in the suit. But, considering the nature of dispute both the parties are directed to suffer their respective cost of appeal. ## **Sd/-** ## **P.SOMARAJAN** **JUDGE** msp