Balan v. Baby Girija

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 21ST DAY OF MARCH 2013/30TH PHALGUNA 1934** **Mat.Appeal.No. 622 of 2009 ( ) -------------------------------** **AGAINST THE ORDER/JUDGMENT IN OP.1484/2002 of FAMILY COURT,TRIVANDRUM DATED 12-02-2009** ## **APPELLANT(S/RESPONDENT:** **---------------------------------------------BALAN, AGED 55 YEARS, S/O.SANKARAN, MURIKKUMPUZHA, MUNDAKKAL MURI VAILOOR VILLAGE, TRIVANDRUM DISTRICT.** **BY ADV. SRI.K.P.SREEKUMAR** ## **RESPONDENT(S)/PETITIONER** **----------------------------------------------** **BABY GIRIJA, AGED 52 YEARS, RESIDING AT MURIKKUMPUZHA, MUNDAKKAL MURI VAILOOR VILLAGE, TRIVANDRUM DISTRICT.** ## **R,R BY ADV. SMT.K.KUSUMAM** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Mat. Appeal No.622/2009** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** **EXT.A4: DECREE IN O.P.NO.582/2001. EXT.A5 & A5(a): BUILDING TAX RECEIPTS DATED EXT.A6: DOCUMENT NO.202/2004 OF SRO, MURUKKUMPUZHA.** **TRUE COPY** **PA TO JUDGE.** ## **PIUS.C. KURIAKOSE &** ## **P.D. RAJAN, JJ.** ------------------------------------------- Mat.Appeal No. 622 of 2009 ---------------------------------------------Dated this the day of March, 2013 ## **JUDGMENT** ## **P.D. Rajan, J.** This appeal is directed against the judgment in O.P.No.1484/2002 of the Family Court, Thiruvananthapuram, which was filed by the wife for declaration that the revocation of gift deed is void and for injunction. Appellant is the husband and respondent is the wife in this appeal. They married as per customary rites and two children, by name Deepa Rani and Deeja Rani were born to them. The petition schedule item No.1 owned by the appellant and item No.2 by the respondent. While they were living together, they had given these properties (item 1 & 2) in favour of their younger daughter, Deeja Rani by virtue of gift deed No.863/94. As per that gift deed, the respondent has got the right to reside in the building situate in the property and to take income from that property. Both children were married Mat. Appeal No.622./09 2 and they are now residing in their husbands' house. While so, the relationship between the appellant and the respondent got strained and the appellant insisted the respondent to vacate the building by saying that she has no right to reside in the building and he cancelled the gift deed executed in favour of his daughter as per cancellation deed No.1099/2000. According to the respondent, the gift deed came into effect and the appellant has no right to oust the respondent, as the deed was executed by the appellant and the respondent jointly. Aggrieved by the cancellation of the gift deed, the respondent filed the above case. 2. The appellant husband resisted the suit in the court below by filing written objection and in which he contended that gift deed No.863/1994 was executed in favour of his daughter, after retaining his right for enjoyment of the property and his right for residence in the building, which never came into effect. Moreover, Deeja Rani never took possession of the property as per the gift deed. The respondent is now making attempt to evict him from the property and building. The appellant cancelled the gift deed as per document No.1099/2000. Deeja Rani has no possession Mat. Appeal No.622./09 3 over the property. She never mutated the property in her favour and not paid the land tax. The original gift deed Nos.862/1994 and 863/1994, which were kept in his almirah were stolen by the respondent on 25.4.2000 and left his house taking all her belongings. After this, the building is in his possession and the respondent never resided in that building and he has no intention to sell the property. His wife, the respondent, is leading an adulterous life and no chance to re-union. She is trying to acquire his property illegally. 3. In the court below, both parties adduced evidence. The evidence consisted of oral testimony of PW1 and RW1 and Exts.A1 to A3 and Exts.B1 to B3. The learned Judge of the Family Court came to the conclusion that the property bequeathed to the minor daughter is valid and the cancellation deed No.1099/2000 dated 12.5.2000 of SRO Murukkumpuzha was set aside. The court below also granted declaration in favour of the respondent declaring the right to reside in the petition schedule item No.1 and the appellant is restrained from obstructing the said right of the respondent and from creating any document in respect of the property. Aggrieved by that, the husband filed this appeal. Mat. Appeal No.622./09 4 4. The learned counsel appearing for the appellant contended that donee is a minor and there was no acceptance of the gift deed by the minor. As per Hindu law, the father alone can accept the property of a minor, when there is no acceptance of the gift deed by the minor, there was no gift as per law. No evidence has been adduced by the respondent to prove the execution of the gift deed. Deeja Rani is a necessary party in this appeal. Without evidence regarding the acceptance of the gift deed, no relief can be granted in favour of the respondent. 5. The learned counsel appearing for the respondent strongly resisted the above contention and contended that immediately after the execution of the gift deed, the father and mother accepted gift and the respondent made all efforts for its preservation. They accepted the gift deed for and on behalf of the minor as per Ext.A1, hence cancellation deed has no effect, moreover she is paying the building tax. In the circumstance, the appellant has no right to file the above appeal. There is no illegality or irregularity in the findings of the courts below. 6. For proper determination of the question in Mat. Appeal No.622./09 5 dispute it would be convenient to refer the law laid down for a valid gift. Accordingly we refer Section 122 and 123 of Transfer of Property Act, which read as follows: - **Section 122** : **“Gift” defined.** “Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the denor, 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.” - **Section 123: Transfer how effected.** For the purpose of making a gift of immovable 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 movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.” A close reading of the above Sections show that the gift of the property can be made only by a registered instrument. The document should be attested by at least two witnesses. The transfer should be made without consideration. It should be accepted by or on behalf of donee. The acceptance should be made during the donor's life time and before the donor is Mat. Appeal No.622./09 6 legally disabled from giving and its acceptance that completes the gift. 7. It is seen from the pleadings that execution of the document has not been denied by the appellant. PW1 in her evidence contended that item No.1 property belongs to the appellant and item No.2 belongs to the respondent. Moreover, the property in Re-survey No.100/14 an extent of 25 cents of property gifted to her daughter Deepa Rani by virtue of gift deed No.862/1994. The plaint schedule item Nos.1 and 2 properties were gifted to Deeja Rani on 7.5.1994 by virtue of Ext.A1 gift deed No.863/1994. While executing Ext.A1, the appellant and the respondent were residing in the property with their children. Thereafter, on 12.5.2000, he cancelled his share in the gift deed by virtue of documents Ext.A2 and Ext.B2. The mutation of the property was effected and she is paying land tax to the property. Decree in O.P.No.582/2001, building tax receipts dated 8.11.2001 and 19.7.2002 and document No.202/2004 of SRO, Murukumpuzha are marked as Exts.A4, A5, A5(a) and A6 respectively. On 4.6.2000, the appellant ousted the respondent and her children. The appellant has no right to cancel Ext.A1, since the Mat. Appeal No.622./09 7 property was gifted by the appellant and the respondent jointly. Now, he is trying to induct strangers in the property. But, the appellant, RW1 would say that there was no acceptance of gift by his daughter Deeja Rani and the right to enjoy the property and building was vested with him during his lifetime, and 14 cents of property and building in Survey No.2/2006 (re-survey No.100/10) of Veiloor Village are in his ownership. Retaining this right, in the year 1994, he executed gift deed No.863/1994 and that gift deed was not came into effect. As per that gift deed, his daughter, Deeja Rani never took possession of 14 cents of property. Moreover, several attempts were made to oust him from the building situated therein. In such a situation, he cancelled that gift deed by virtue of cancellation deed No.1099/2000 of SRO, Murukkumpuzha. In the meantime, on 25.4.2000, his wife, broken the lock of the almirah and snatched the title deed Nos.862/94 and 863/94. Now she is residing with another man namely, Jagadheesh. Ext.B2 is the cancellation deed. Ext.B3 is the copy of judgment in O.P.No.582/2001. In cross examination, RW1 admitted that now he is residing with one Indira, which shows that he renounced his previous wife Mat. Appeal No.622./09 8 Baby Girija. 8. We have perused the words expressed in Ext.A1 gift deed, in which, there are clear words describing the transfer of interest by donor to the donee. The construction of the deed is clear in the description portion of the document which explain the intention of the donor. A perusal of the document shows that the appellant and the respondent had given item 1 and 2 in favour of Deeja Rani, the daughter, who is their dependant. In certain situation it is a difficult task to interpret deeds and testamentary instruments in order to find out the intention of the executants. It is only because of the use of inaccurate terms and expressions and imperfections in the use of language, antiquities, lack of precision and other short comings. It is well settled that the description given to a document is not determinative of the true nature of the transaction, but it has to be ascertained on reading the recitals in the document as a whole. Here the substance of the transaction can be gathered from the intention of the parties. In order to construe the legal effect of Ext.A1 gift deed it is not only the description of the document but also the substance is to be looked into. Considering the future and in consideration Mat. Appeal No.622./09 9 of love and affection, they transferred the interest in the property [item 1& 2] to their daughter. The words are unambiguous and clear. A close reading of the gift deed as a whole, the conclusion reached by both parties, became clear that they gifted that property to their daughter. In this context, we may refer the decision of the Supreme Court in ## _**Kuppuswami Chettiar**_ v. _**A.S.P.A. Arumugam Chettiar and another**_ [AIR 1967 SC 1395] held thus (para 4): “In the present case, the release was without consideration. But property may be transferred without consideration. Such a transfer is a gift. Under S. 123 of the Transfer of Property Act, 1882, a gift may be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Consequently, a registered instrument releasing the right, title and interest of the releasor without consideration may operate as a transfer by way of a gift, if the document clearly shows an intention to effect the transfer and is signed by or on behalf of the releasor and attested by at least two witnesses. Exhibit B-1 stated that the releasor was the owner of the properties. It showed an intention to transfer his title and its operative words sufficiently conveyed the title The instrument, on its true construction, took effect as a gift. The gift was effectively made by a registered instrument signed by the donor and attested by more than two witnesses.” From the above decision it is found that the property is transferred to the donee by way of gift and he is entitled to Mat. Appeal No.622./09 10 get whole interest of the donor unless it appears from the deed that a restricted interest was given. According to Section 123 of the Act for making a gift of immovable property, the transfer must be made by a registered document signed by or on behalf of the donor and attested by at least two witnesses. According to Section 122 of the Act, the delivery of possession is not necessary for acceptance of the gift. Therefore, the gift is made by a registered document and the same has been accepted by or on behalf of the donee make it complete the gift and if any of the formalities is not complied, the gift will be bad, which is against the provisions provided in Section 122 of the Act. 9. The next contention in the appeal was that at the time of execution of the gift deed Deeja Rani was a minor and there was no acceptance of the gift. It is clear from the evidence that donor is the father of Deeja Rani and Ext.A1 is a registered document. When donee is a minor the acceptance of the gift can be made only by her natural guardian. According to the Hindu Minority and Guardianship Act 1956, the father alone could be the guardian of the minor Deeja Rani as well as her property. It is only after father that the mother Mat. Appeal No.622./09 11 can be the guardian of a Hindu minor. As far as Ext.A1 is concerned, we are of the opinion that acceptance can only be made by father as the guardian of the minor and when he himself executed the document, the acceptance can be presumed. In one decision of _**Swaku**_ v. _**Hemanand**_ [AIR 1972 Himachal Pradesh 31], it is held thus: (para 4): “4. So far as the gift deed (Ex.RA) is concerned. It is a registered document. The entry was made in the revenue record in respect of this gift. The recital in the deed itself indicated that possession was delivered to the donee. The presumption is that the possession was delivered to the natural guardian of the donee, namely his father. Apart from this, the donee's father appeared as witness in the case and affirmed that he accepted the gift on behalf of the minor. As such the Court of first appeal rightly held that the gift was validly accepted and was binding on the parties.” In this context we may refer another decision in _**Ponnuchami**_ ## _**Servai**_ v. _**Balasubramanian and others**_ [AIR 1982 MADRAS 281], it is held thus: (para 10): “Even assuming that I could go into the question of acceptance. I see no reason to differ from the conclusion of the court below. The non-acceptance would strike at the root of the validity of the deed. If there was no acceptance, there was no need for the first defendant to execute a deed of revocation on 7-51974. Further, the circumstances in which the first defendant was placed go to show that the whole idea was to see that the properties were saved for the family. Such a purpose cannot be effectuated by execution of a sham or nominal document. The plaintiff was a minor and the acceptance of the settlement can only be by his guardian. After the Hindu Minority and Guardianship Act, 1956, there can Mat. Appeal No.622./09 12 be no doubt that the father alone could be the guardian of the person as well as the property of a minor. It is only after him that the mother can be the guardian. Unfortunately, there is a general notion that in a document executed by the father in favour of a minor issue, somebody else has to be appointed as a guardian and the mother is referred to as the guardian in such cases. But, this is a lay and erroneous notion. The acceptance , on the facts here, can only be by the father as the guardian of the minor and when he himself executed a document, the acceptance can be presumed.” It is clear from the above decision that the gift was accepted by the father of the minor since he is the guardian as per Hindu Minority and Guardianship Act. In the present case, the gift deed was executed and registered on 7.5.1994. It was attested by two competent witnesses. The father, who is the donor, accepted the gift deed on behalf of the minor, which is presumed to be accepted, completes the formalities of Sections 122 and 123. Therefore, the objection of the appellant that the gift was not accepted cannot be sustained. He executed the cancellation deed only on the basis of acceptance of the gift deed for and on behalf of the minor. Ext.B1 proceedings of the Assistant Collector and Ext.B2 deed have no validity in the eye of law. The contention of the appellant that there was no acceptance of gift is hereby rejected. 10. After execution of the gift deed the respondent and Mat. Appeal No.622./09 13 her daughter acted upon that document. Even after passing years without any reason appellant cancelled the document in a whimsical manner. But the cancellation of the gift deed was set aside by the trial court. Appellant contended that he has got absolute right in the property, therefore he wants to retain ## possession over it. In _**Picha Gangadharan**_ v. _**Pachi Kamalakshi**_ [1993 (2) KLJ 974] this Court held that: “A gift deed which has been accepted and acted upon by the donees cannot be cancelled by the donor in a capricious manner. A transfer by gift is very much binding on the donor and donee and once it has come into operation. It is as good as any other assignment or transfer. Merely, on the ground that donor's attitude towards the donee has undergone change after execution of the gift deed he cannot revoke it.” The court below found that the respondent has the right to reside in the building in the petition schedule item No.1 and to enjoy the said property. In the circumstances, the appellant was restrained from making any obstruction in the said right and from creating any document in respect of the property. We find no illegality or irregularity in the finding recorded by the trial court. The initial burden for getting the relief was established by PW1 in the trial court. When she approaches the trial court for a declaration of her right, the burden of proof is upon her and she adduced both oral and documentary 14 Mat. Appeal No.622./09 evidence in support of her contention. The court below has considered the oral and documentary evidence and examined the matter in detail and decreed the suit. No reasons are highlighted before us to interfere in the finding. Therefore, the gift of the property by the father to Deeja Rani is valid. There is no substance in the argument of the appellant and this appeal is to be dismissed. In the result judgment and decree passed by the Family Court, Thiruvananthapuram are confirmed. We find no illegality or irregularity in the finding recorded by the Family Court. There is no merit in this appeal and accordingly, it is dismissed. There is no order as to cost. ## **PIUS.C.KURIAKOSE,JUDGE** ## **P.D. RAJAN, JUDGE.** acd Mat. Appeal No.622./09 15 Mat. Appeal No.622./09 16 Mat. Appeal No.622./09 17