Chandrashekaran v. Chandramathi and Gowri

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2014-04-07
Court Decision / Holding: The Regular Second Appeal is dismissed. The judgments of the trial court and the first appellate court are affirmed, holding that Ext.A1 gift came into effect and Ext.A2 cancellation is void, thereby confirming the plaintiff’s title to the property.
Final Disposition: Appeal dismissed; lower court judgments upheld; Plaintiff’s title confirmed; Ext.A1 held to have come into effect; Ext.A2 cancelled as void.

Parties to the Case

Appellants / Petitioners

Chandrashekaran, s/o Neelakantan

Respondents

Chandramathi, d/o Gowri
Gowri, d/o Kochuppennu

Legal Representation & Advocates

Counsels for Petitioners

• Sri. K. Shaj
• Sri. Sajju S.

Case Synopsis & Summary

This Regular Second Appeal before the Kerala High Court arises from a suit O.S. 300/2002 before the Munsiff, Kottarakkara, and its subsequent reversal in A.S. 192/2005. The first defendant, Chandrashekaran, is the son of the second defendant (Gowri) and appeals against concurrent findings that his mother’s gift Ext.A1 had taken effect and that Ext.A2 cancellation deed was void, thereby passing title to the plaintiff, Chandramathi, the daughter of the second defendant. The trial court decreed in favor of the plaintiff, holding that Ext.A1 gift had come into effect and that Ext.A2 was null and void; the appellate court concurred. The appellant contends that Ext.A1 was not a gift in praesenti and that the donor retained substantial rights to revoke or transfer, with the donee obtaining no present title. The respondent-plaintiff argues that the gift did take effect, evidenced by possession transferred and the life-interest recitals interpreted against revocability. The High Court discusses decisions like Naramadaben Maganlal Thammer v. Pranjivandas Maganlal Thakker and Omana v. Kesavan, distinguishing them on the facts, and ultimately holds that the gift came into effect under Ext.A1 and that Ext.A2 cancellation is ineffective. The appeal is dismissed, upholding the concurrent judgments and confirming the plaintiff’s title to the property.

Legal Doctrines & Maxims

gift in praesenti
life estate
donor’s right to revoke a gift

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that Ext.A1 does not create a present right in the donee; the gift is to take effect only after the donor’s death, hence not a present gift; the donor has repudiated the gift by cancellation and the evidence shows lack of acceptance by the donee. He relies on precedents such as Naramadaben Maganlal Thammer v. Pranjivandas Maganlal Thakker and Omana v. Kesavan to argue gifts subject to posthumous enjoyment may be cancelled.

Contentions of Respondents

The respondents/writ plaintiff argues that Ext.A1 created a gift in praesenti with possession transferred and that the donor did not reserve an encumbrance or a transferable right and thus the gift came into effect; Ext.A2 was null and void; both trial and appellate courts rightly held in favor of the plaintiff.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Naramadaben Maganlal Thammer v. Pranjivandas Maganlal Thakker	(1997) 2 SCC 255	Distinguished	Cited to discuss gifts that may be cancelled; Kerala High Court distinguishes it on facts, noting absence of donor encumbrance clause in Ext.A1 and different circumstances.
Omana v. Kesavan	2005 KHC 152	Distinguished	Cited for similar reasoning; court distinguishes on facts and rules out direct application to the present case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 7TH DAY OF APRIL 2014/17TH CHAITHRA, 1936** ## **RSA.No. 381 of 2014 ()** **----------------------AS.NO. 192/2005 OF SUB COURT, KOTTARAKKARA ............................ OS.NO. 300/2002 OF MUNSIFF COURT, KOTTARAKKARA --------------------------** **APPELLANT/APPELLANT/1ST DEFENDANT: ----------------------------------------------------------------** **CHANDRASHEKARAN, S/O.NEELAKANTAN,AGED 47 YEARS, KAZHAKKUTTATHIL VADAKKETHIL VEEDU,AVANOOR MURI, KOTTARAKARA VILLAGE, KOTTARAKARA TALUK.** **BY ADVS.SRI.K.SHAJ SRI.SAJJU.S** ## **RESPONDENT(S)/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:** **------------------------------------------------------------------------------------------------** **1. CHANDRAMATHI,D/O.GOWRI, AGED 60 YEARS, ANIL BHAVAN, AVANOOR MURI, KOTTARAKARA VILLAGE, KOTTARAKARA TALUK-691 006** **2. GOWRI, D/O.KOCHUPENNU,AGED 88 YEARS, KAZHAKKUTTATHIL VADAKKETHIL VEEDU, AVANOOR MURI, KOTTARAKARA VILLAGE,** **KOTTARAKARA TALUK.PIN-691 006** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - ## R.S.A. No. 381 of 2014 - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of April, 2014. ## **JUDGMENT** Undaunted by the concurrent finding against him, the first defendant in O.S. 300 of 2002 of the Munsiff's Court, he has come up in appeal. 2. The facts fall within a very narrow compass. The first defendant is the son of the second defendant and the plaintiff is the daughter of the second defendant. 3. The plaintiff laid the suit contending that as per Ext.A1 document, she had obtained rights over the property and the subsequent cancellation deed executed by the second defendant which is marked as Ext.A2 has no legal effect. She contended that she is enjoying the property and the gift had taken effect. 4. The first defendant resisted the suit. According to him, he did not intend to sell his property to his mother and RSA.381/2014. 2 the transaction was only as security. It is also pointed out that Ext.A1 gift was not accepted and further it was also pointed out that on a reading of the document, it can be seen that it is not a gift praesenti, but the transfer of the property is to take effect on the death of the settler. It is therefore pointed out that the suit is only to be dismissed. 5. The second defendant supported the plaintiff. 6. On the above pleadings, issues were raised by the trial court. Evidence consists of the testimony of P.W.1 and documents marked as Exts. A1 to A4 from the side of the plaintiff. The defendants had D.Ws.1 to 3 examined and Exts. B1 to B4 marked. 7. The trial court after an elaborate consideration of the materials found that Ext.A1 gift has come into effect and therefore the plaintiff has obtained title to the property. It was also found that Ext.A2 cancellation deed is null and void. Accordingly the suit was decreed. RSA.381/2014. 3 8. The aggrieved first defendant carried the matter in appeal as A.S.192 of 2005. The lower appellate court after an independent evaluation of the materials came to the identical conclusion and dismissed the appeal confirming the judgment of the trial court. 9. The said findings are assailed in this appeal. 10. Learned counsel appearing for the appellant made available a copy of Ext.A1 gift and contended that a reading of the said document would clearly reveal that no right in praesenti has been given to the donee and the donee was to get full right over the property only after the death of the donor and therefore it cannot be said that the gift has taken effect. Going by the evidence on record, it is seen that the gift has not been accepted and the donor has parted with her rights. It is also contended that on the basis of the oral evidence, in fact there was an admission on the part of the RSA.381/2014. 4 plaintiff that the gift had not been accepted which has been omitted to be noticed by the trial court. To a pointed question as to whether Ext.A1 had come into effect, the plaintiff replied that the said deed was cancelled by the donor. These aspects have been omitted to be noticed by the court below, according to the learned counsel for the appellant. Learned counsel relied on the decisions reported in Naramadaben Maganlal Thammer v. Pranjivandas Maganlal Thakker ((1997) 2 SCC 255) and Omana v. Kesavan (2005 KHC 152) and contended that conditional gift could be cancelled. Ext.A1 squarely fall within the ambit of the document construed in the above decisions and therefore the principle in those decisions apply to the facts of this case and that Ext.A1 does not survive. 11. Though the argument may look attractive at the first blush, on a close scrutiny it can be found to be without any basis at all. RSA.381/2014. 5 12. Both the courts below have considered all the aspects in considerable detail and came to the conclusion that the sale deed in favour of the mother, i.e., the deed executed by the first defendant in favour of the second defendant has taken effect and the sale has come into effect. The courts below have also considered the recital in Ext.A1 and they came to the conclusion that it is a gift in praesenti. 13. Attention was drawn to the recital in Ext.A1 that the donee will get possession only after the death of the donor and the donor has retained life estate over the property. This recital is taken as one of the grounds to say that it is not a gift in praesenti but it is a right which would take effect on a future date, i.e., on the death of the donor. 14. In the decision reported in Naramadaben Maganlal Thammer's case (supra), a reading of the decision would show that the donor continued to be in possession of the property and he was entitled to mesne profits from the RSA.381/2014. 6 property. It is clear from a perusal of the decision that the gift was to become operative after the death of the donor and he continued to be entitled to have the right to transfer the property absolutely by way of gift. In the decision reported in Omana's case (supra) also the donor retains his right to collect income from the property and precluded the donee from objecting to the alienation of the property by the donor and the right of enjoyment is postponed after the death of the donor. 15. It is construing the above clauses in the respective deeds in the respective decision that the Apex Court held that the gift could be cancelled as it has not come into effect. In the case on hand though there is a clause that the enjoyment is to be postponed, that has to be read with the other recitals which reserve a life interest in favour of the donor. It is significant to notice that unlike in the case referred to above, there is no clause in the present deed which RSA.381/2014. 7 enables the donor to encumber the property or to transfer the property. In the decision rendered by the Apex Court, the facts would show that even after executing the deed, the donor retained the right to cancel the gift and also transfer the property at his will. In such circumstances, it is to be held that the gift had not come into effect. 16. It is contended on behalf of the appellant that there is no evidence of mutation or payment of tax by the donor after the execution of the gift. Mutation and payment of tax etc. are not absolute necessity to come to a conclusion whether the gift has been accepted or not. In the document itself it is stated that possession has been given to the donee but enjoyment is postponed. Moreover, the original gift deed had been produced by the plaintiff. It is well settled that in case of a gift especially among Hindus handing over of deed is sufficient to come to the conclusion that the gift has come into effect and if that be so, certainly it can be said that the RSA.381/2014. 8 gift in the instant case had come to effect. The decisions relied on by the learned counsel for the appellant have no application to the present case. The appeal is without merits and it is only to be dismissed. Accordingly it is dismissed. P. BHAVADASAN, JUDGE sb.