Alexander @ Samkutty v. Jainamma and Rajesh E. Gopalan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941** ## **RFA.No.327 OF 2007** **AGAINST THE JUDGMENT & DECREE IN OS 103/2004 DATED 12-04-2007 OF SUB COURT,KATTAPPANA** ## **APPELLANT/PLAINTIFF:** **ALEXANDER @ SAMKUTTY, S/O. GEORGE, MAY FAIR HOUSE,BLOCK NO.427,THOOKKUPALAM KARA, KARUNAPURAM VILLAGE,UDUMBANCHOLA TALUK, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER JAISON V.THOMAS, S/O.THOMAS,BLOCK NO.558, CHOTTUPARA P.O., KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK. (ORIGINAL OF THE POWER OF ATTORNEY EXECUTED BY THE APPELLANT IN FAVOUR OF HIS POWER OF ATTORNEY HOLDER HAS ALREADY BEEN PRODUCED AND MARKED IN THE IMPUGNED JUDGMENT AS EXT. A1 AND THEREFORE THE APPELLANT-POWER OF ATTORNEY HOLDER MY BE EXEMPTED FROM PRODUCING THE ORIGINAL OF THE POWER OF ATTORNEY ALONG WITH THIS MEMORANDUM OF APPEAL)** **BY ADVS. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B.** ## **RESPONDENTS/DEFENDANTS:** **1 JAINAMMA, W/O. LATE G. RAJAN MAY FAIR HOUSE, THOOKKUPALAM KARA, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK. 2 RAJESH E.GOPALAN SO.GOPALAKRISHNAN ELAYANKUNNIL HOUSE, CHOTTUPARA KARA, KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK.** **R2 BY ADV. SRI.K.ANIL KUMAR KOTTAYAM R1 BY ADV. SRI.P.P.JACOB R2 BY ADV. SRI.M.R.NANDAKUMAR R1 BY ADV. SRI.K.VENUGOPAL KOTTAYAM R1 BY ADV. SMT.V.H.JASMINE** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04.09.2019, THE COURT ON 14.10.2019 DELIVERED THE FOLLOWING:** RFA.327/2007 2 ## **C.R.** ## **JUDGMENT** **Dated this the 14th day of October 2019** The unsuccessful plaintiff filed this appeal against the judgment and decree dated 12[th] April, 2007 in O.S. No. 103/2004 on the file of the Sub Court, Kattappana, dismissing the suit for declaration and injunction. 2. The parties are hereinafter referred to as the plaintiff and the defendants as per their ranking before the court below. 3. The factual matrix of the case is briefly stated as under: The plaint schedule property was gifted to the plaintiff by the 1[st] defendant on 2.9.2002 as per Settlement Deed No. 1587/2002 of SRO Udumbanchola. The gift was accepted by the plaintiff and he had taken steps to effect RFA.327/2007 3 mutation of the property. But he could not effect mutation, as mutation was not effected in favour of the 1[st] defendant. The 1[st] defendant is the wife of the plaintiff's brother G. Rajan, who is no more. The plaintiff was residing in Beherin along with his brother late Rajan till 1997. The plaintiff used to extend financial assistance to late Rajan till 2002 and thus in total he parted with an amount of Rs.10,00,000/- and it remained unpaid till his death. The building in the property was leased out to State Bank of Travancore, Thookkupalam Branch and the rent was being collected by the donor. In the year 2004, when the plaintiff visited his native place, he was informed by his brother Jaison that a cancellation Deed as No.2378/2002 was executed by the 1[st] defendant cancelling the gift deed. Later, it was revealed that 1[st] defendant sold 1.800 cents of land as per sale deed No. 383/2003 in favour of the 2[nd] defendant. Since the property was gifted to the plaintiff by the RFA.327/2007 4 1[st] defendant, the execution of the cancellation deed as well the sale deed in favour of the 2[nd] defendant will not affect the plaintiff's rights. Hence, the suit was filed for a declaration that the cancellation deed and the sale deed are null and void and will not affect the rights of the plaintiff over the property as well for injunction restraining the 1[st] defendant from executing further documents pertaining to the plaint schedule property. 4. Per contra, the 1[st] defendant/1[st] respondent admitted the relationship of the parties, but denied the allegation that her husband late Rajan was residing with the plaintiff as well the allegation that the plaintiff used to meet her financial requirements and also of her husband late Rajan. In fact, late Rajan was a coffee dealer and he was running a cinema theatre also at Thookkupalam. But he had to meet certain financial liabilities and he died while the liabilities were RFA.327/2007 5 pending. The first defendant had to give her daughter in marriage and also to meet the liabilities of her late husband and so, she had the intention to alienate certain landed properties. At that time, the plaintiff intervened and offered help to meet the financial crisis and he offered Rs.10,00,000/- to her daughter Bincy Rajan and to settle the liabilities pending before the Bank. But it was on the basis of certain conditions that she should transfer 10 cents of land in favour of his wife Kunjumol Alexander and the plaint schedule property in his favour. Thus the settlement deed and the sale deed was executed on 2.9.2002. But the settlement deed was not delivered to the plaintiff and there was no valid gift as alleged as the plaintiff has not accepted the same and hence the 1[st] defendant is in exclusive possession of the property and she is collecting rent from the building. When the plaintiff left for Beharin, as the sale consideration for the property RFA.327/2007 6 transferred in the name of his wife, he had entrusted certain gold ornaments through one Prakash, his brother, as the value of the property. But the amount offered by the plaintiff was not paid, and so the settlement deed was cancelled by the 1[st] defendant by deed No.2378/2002 and conveyance deed No.383/2003 was executed. Both documents are valid documents. 5. The 2[nd] defendant contended that he is a bona fide purchaser for valid consideration without notice of the settlement deed and hence the plaintiff is not entitled to get a declaration as sought for with respect to the property transferred in his name. 6. In order to establish the case of the plaintiff , his power of attorney holder was examined as PW 1 and Exts. A1 to A6 were marked. On the side of the defendants 1 and 2, they were examined as DWs 1 and 2 respectively and Exts. B1 RFA.327/2007 7 and B2 were marked. The trial court, on appreciation of the evidence, concluded that the plaintiff is not entitled to get a decree as sought for and hence, dismissed the suit. Challenge is with respect to the judgment and decree. 7. Heard Adv. Mathew John, the learned counsel for the appellant/plaintiff, Adv. P.P. Jacob, the learned counsel for the 1[st] respondent and Adv. M.R. Nandakumar, the learned counsel for the 2[nd] respondent. 8. The plaintiff is the brother of 1[st] defendant's husband Rajan, who is no more. It is the case of the plaintiff that he was residing with late Rajan at Beharin and Rajan had to face huge financial problem and in order to tide over the same, he advanced in total an amount of Rs.10,00,000/- on various dates and while so, Rajan expired. PW1 his power of attorney testified that since he had paid Rs.10,00,000/- to late Rajan, as a consideration for the help extended by him, RFA.327/2007 8 the first defendant gifted the plaint schedule property to him by executing settlement deed No. 1587/2002 on 2.9.2002 and he had accepted the gift. Though he applied to effect mutation of the property, it was not materialized as mutation was not effected in favour of the 1[st] defendant. So, according to him, Ext.A3 is a valid gift and it was accepted by the plaintiff and the 1[st] defendant had absolutely no right to alienate any portion of the said property and therefore, the title deed in favour of the 2[nd ] defendant for a portion of the plaint schedule property is an invalid document . The plaintiff has challenged validity of the revocation deed executed by the 1[st] defendant and the subsequent sale deed. 9. At the outset, it is to be noted that the plaintiff had no case that the gift deed was executed by the 1[st] defendant on the basis of her love and affection but it was executed as he had handed over more than Rs.10,00,000/- to RFA.327/2007 9 his brother late Rajan and his wife, the 1[st] defendant as per the instruction of Rajan and after his death the property was transferred to him. But, there is nothing available on record to indicate that the plaintiff had paid in total an amount of Rs.10,00,000/- to late Rajan while he was alive as contended by him. According to DW1, the 1[st] defendant she had a liability of 17.5 lakhs in total and as there was an offer from the plaintiff to settle the liability he executed the settlement deed in his favour as well another sale deed in favour of his wife. Therefore, it is the case of 1[st] defendant that the deed in his favour was made with certain conditions and violation of the conditions made her to execute the revocation deed. In short the plaintiff's case is that the document in his favour is a gift deed and as he accepted the gift, it cannot be cancelled by another deed and so the cancellation deed and the subsequent sale deed are not valid documents and will not RFA.327/2007 10 affect his rights. 10. In view of the rival contentions ,it is relevant to consider the definition of gift under the provisions of Section 122 of Transfer of Property Act (for short T.P.Act), which reads as follows: “ 122. “Gift” defined .- “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made .- Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. 123 . Transfer how effected .- For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of of moveable property, the transfer may be effected either by a registered RFA.327/2007 11 instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.” 11. A perusal of the aforesaid provisions would show that, the gift is a transfer of certain existing movable or immoveable property made voluntarily and without consideration, by one person (donor) to another (donee). Acceptance by the donee during the life time of the donor is the other criteria for a valid gift. Here a perusal of the rival contentions would clearly depict that the transfer was not without any consideration, but as a result of certain financial transactions though, the same was not at the time of execution of the document. So it is obvious that the most essential characteristics of a valid gift that the 'transfer must be made voluntarily and without consideration' are not there. The plaintiff has a case that for the financial help rendered by him to late Rajan, the document was executed by the 1[st] RFA.327/2007 12 defendant after his death. Therefore, it was for consideration and not given willingly without payment or without the expectation of payment. 12. As DW1, the 1[st] defendant had testified that her husband late Rajan had liabilities in I.D.C.Bank at time of his death and apart from that she had to present Rs.10,00,000/- to her daughter and so she decided to sell certain properties and then the plaintiff had agreed to clear off the liabilities to the tune of Rs.17,50,00/- and the plaintiff through PW1 deposited a sum of Rs.90,000/- in the account of her son-in law. But there was no further payment as offered by him and hence, by Ext.A5, Ext.A3, the gift deed dated 2.9.2002 was cancelled on 13.12.2002 by her. According to DW1, she was compelled to execute the cancellation deed as the plaintiff had failed to comply with the conditions in Ext.A3 gift deed. She has a definite case that the plaintiff had agreed to settle RFA.327/2007 13 the liabilities including payment of money presented to her daughter, on her marriage, but he failed to perform the stipulations in Ext.A3 and the property remained in her possession and there was no voluntary transfer and it was not accepted by him. Hence, Ext.A3 is not a valid document and it has been revoked by Ext.A5. Thereafter, Ext. A6, sale deed dated 24.2.2003 was executed and it would show that the 1[st] defendant had alienated 1.800 cents of property out of the plaint schedule to the 2[nd] defendant and it is in his possession. It is well settled that only if the gift is accepted, it can be said that there was proper transfer of the gift by the donor and acceptance of the gift by the donee, so as to constitute a valid gift. 13. The disputed gift deed is of-course a registered one. The plaintiff's case is that he tried to get the property mutated in his name but it was not mutated. Hence, mutation RFA.327/2007 14 was not effected and he did not pay property tax for the property. It is significant to note that the original gift deed has not been produced and the plaintiff/donee was not examined before the court, but his power of attorney was examined as PW1. The 1[st] defendant challenged the legality of the gift deed mainly on the ground that there was no acceptance of the gift by the plaintiff and she never handed over the deed after registration to the plaintiff and possession of the property was not delivered to him and there was no acceptance of gift by him and it was not acted upon. Section 122 and 123 of T.P. Act provides that there must be proof of delivery and acceptance of possession of the gifted property. It is well settled that there is no mode prescribed for acceptance of a gift. The act of receiving or taking the property by the donee has to be gathered from the conduct of the parties in dealing with the matter involved. The over all RFA.327/2007 15 circumstances of the case and normal human conduct of the parties have to be considered very carefully before taking a decision as to whether there is acceptance of the gift by the donee. 14. It was held in Vannathi Valappil Janaki and others v. Puthiya Purayil Paru and others (AIR 1986 Kerala 110) that no express acceptance is necessary for completing a gift is a well accepted proposition of law, the overall circumstances of the case and the normal human conduct will certainly weigh the court in this matter. 15. In Bini Anilkumar v. Bhaskaran (2009 (3) KLT 753) it has been held that the circumstances surrounding the execution of the document will be sufficient to hold that the settlement was accepted by the donee. 16. Whether, the plaintiff has accepted the gift on its execution on 2.9.2002 has to be gathered from the RFA.327/2007 16 circumstances available on record. As referred above, the mutation of the property has not been effected and no document is available on record to prove that possession of the property was taken over by the plaintiff on the strength of A3. It is pertinent to note that the stipulations in the document would project the fact that the possession of the property still remains with the 1[st] defendant as she is having the right to rent out the building in the property, to collect the rent from the building in the property and take the income from the property. The most glaring circumstance as evident from the recital in the document itself is that the donee, i.e. the plaintiff, will get the absolute right over the property only after her death and that too, only on compliance of the conditions/stipulations in the document. A reading of Ext.A3 makes it clear that the 1[st] defendant retain the entire right over the property and the plaintiff had no right to interfere RFA.327/2007 17 with her right to deal with the building rented out. The option to rent out the building or not is left with the 1[st] defendant. She maintains the exclusive right to collect rent of the building. All these facts make it clear there was no divestiture of title as on the execution of Ext.A3. 17. As referred above transfer of property has to be effected as contemplated under Section 123 of the T.P.Act. Of-course Ext.A3 is a registered document but evidence is lacking to establish that there was delivery of property. There must be a permanent alienation of property to effect a transfer. 18. As mentioned above, it has come out in evidence that the gift deed after the execution and registration was not received directly by the plaintiff from the Sub Registry concerned. In fact by that time he had gone abroad and was not available at his native place. PW1 on his behalf received it RFA.327/2007 18 from the Sub Registry but did not produce it before the court. The plaintiff, who had filed the suit for declaration on the basis of the gift deed, is supposed to prove that the gift was accepted by him and acted upon the same. But, no reliable evidence was adduced to substantiate the contention that actual delivery/transfer of property had taken place. As mentioned earlier his case is that Rs.10,00,000/- was spent by him to meet the urgent financial requirements of the 1[st] defendant, but he could not substantiate the same by adducing reliable and cogent evidence before the court. Though, it is not proved it would show that his case is that as consideration for the financial help provided by him, the gift was effected. Therefore, the transfer cannot be treated as made voluntarily and that the transfer was without consideration, in money or money's worth. So also, the fact that no mutation of property had been effected by the plaintiff RFA.327/2007 19 and no effective attempt was made by him are also glaring circumstances to show that the gift was not accepted by the plaintiff. 19. It is important to note that the specific recital in the deed is that the plaintiff would get 'absolute title over the property' only on the death of the 1[st] defendant. Till that the 1[st] defendant can exercise her right over the property. The recital is so clear that she could rent out the building and collect the rent and the plaintiff had no right to dispute/interfere with it or challenge it. As long as the plaintiff cannot question the 1[st] defendant in exercising any right in the property it will have an impact on his legal right. Such a clause in the deed will not create absolute right or title on the plaintiff or at least restrict or deprive the rights of the plaintiff as the owner of the property in enjoying the same. The recitals in deed that the plaintiff will get absolute right RFA.327/2007 20 over the property only on the death of the 1[st] defendant, is the reservation of retaining power of alienation with her and that will definitely obstruct/restrain the plaintiff to assert a claim that he is the owner of the property. Such a clause restricting free enjoyment would abundantly establish the there was no delivery of property on acceptance of the gift. The stipulation was not for mere collection of rent, but the absolute right to deal with the property still vest with the 1[st] defendant. It is all the more established by the definite and clear clause that the absolute right of title will vest with the plaintiff only on the death of the 1[st] defendant. So it cannot be construed as a valid transfer and delivery of property as contemplated under Section 123 of the T.P.Act. Therefore, there was no acceptance of gift and consequently, delivery of property. 20. In Baby Ammal v Rajan Asari (1997(1) KLT 340 RFA.327/2007 21 (SC)), it was held that Section 122 of the Transfer of Property Act defines gift executed 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 Section123. These must be proof of delivery and acceptance of possession of the gifted property. 21. In short, it could be gathered from the evidence on record that the possession of the property was never handed over to the plaintiff on the basis of Ext.A3 and there was no acceptance of possession of the gifted property and it continued with the 1[st] defendant. The recitals in Ext A3 and the other glaring circumstances would clearly indicate that as there was no acceptance of the gift by the plaintiff and delivery of the property by the 1[st] defendant, she is empowered to cancel it. So Ext.A5 cancellation document is a valid document. After execution of Ext.A5 the 1[st] defendant had RFA.327/2007 22 alienated a small bit of land for valuable consideration to the 2[nd] defendant, who innocently purchased the property. Therefore, sale made in his favour is valid and also binding on the plaintiff. When the entire evidence available on record is evaluated, it could be seen that the plaintiff could not adduce evidence to show that the gift was accepted by him and the process of transfer was completed as envisaged under Section 123 of the Transfer of Property Act. Sufficient evidence is not available to show that after registration of the gift deed the plaintiff, the new owner acquires the ownership over the property, to use it as per his wish. 22. Therefore, I am of the view that the court below has evaluated all the material aspects properly and meticulously and concluded that the plaintiff has failed to adduce evidence to establish that the gift was accepted by him so as to entitle him to get right/title over the property on the RFA.327/2007 23 basis of Ext.A3 gift deed. Hence, I find that the the trial court rightly considered the above facts and the said finding does not warrant an interference. Resultantly, the appeal suit fails and it is dismissed confirming the judgment and decree under challenge. However the parties are directed to bear their respective costs. Sd/- SHIRCY V. JUDGE sb