Dileep and Devanandan @ Thambi v. Hema Ramachandran Pillai

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 RSA.No. 382 of 2010() --------------------AS.96/2003 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.405/1998 of MUNSIFF COURT, MAVELIKKARA .................... APPELLANTS/ RESPONDENTS/ADDL.DEFENDANTS 2&3: ---------------------------------------------------- 1. DILEEP, S/O.KRISHNAMMA, ELANGALLOOR HOUSE, EREZHA NORTH, KANNAMANGALAM VILLAGE. 2. DEVANANDAN @ THAMBI, S/O.KRISHNAMMA, ELANGALLOOR HOUSE, EREZHA NORTH, KANNAMANGALAM VILLAGE. BY ADV. SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA RESPONDENT(S): APPELLANT/PLAINTIFF; ----------------------------------- HEMA RAMACHANDRAN PILLAI, D/O.RAMACHANDRAN PILLAI, VADAKKEPERUMPRAL VEEDU, KARUVATTA, KARUVATTA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------R.S.A.No.382 of 2010 -------------------------------------Dated this the 7[th] day of April, 2010. JUDGMENT** The second appeal is brought up by appellants/defendant Nos. 2 and 3 against judgment and decree of learned Additional District Judge-II, Mavelikkara in A.S.No.96 of 2003 reversing dismissal of O.S.No.405 of 1998 of the court of learned Munsiff, Mavelikkara. That was a suit filed by the respondent for a declaration of her title, recovery of possession and injunction in respect of the suit property, 22.916 cents in R.S.No.449 of 1984 and the building thereon. It is not disputed that the said property originally belonged to the father of respondent who as per Ext.A3, settlement deed No.415 of 1978 settled the same in favour of respondent at a time when she was a minor aged about 9 years and staying at Bombay. During the relevant time respondent along with her parents was residing in the building **RSA No.382/2010** 2 in the suit property. While so, at the instance of defendant No.1 (sister of respondent) the father executed Ext.B1, deed No.506 of 1990 cancelling Ext.A3, settlement deed and then he executed Ext.B7, sale deed No.624 of 1991 in favour of defendant No.1. After respondent attained majority and within 12 years of the cancellation/sale deeds (Exts.B1 and B7) she filed the suit seeking reliefs as aforesaid. Appellants resisted the suit contending that Ext.A3, settlement deed in favour of the respondent was not intended to take effect, had not taken effect and was cancelled by the settler as per Ext.B1 followed by assignment in favour of defendant No.1. After the death of defendant No.1, her legal representatives - appellants/additional defendant Nos.2 and 3 executed Ext.B3, **RSA No.382/2010** 3 partition deed and divided the suit property among them. It is also stated that defendant No.1 had created mortgage over the suit property and availed loan. Learned Munsiff was of the view that there was no acceptance of Ext.A3, settlement deed, it was cancelled even before it was accepted by the respondent and hence the assignment deed executed by the settler in favour of deceased defendant No.1 is valid. Consequently the suit was dismissed. Respondent moved the first appellate court. First appellate court placing reliance on the decision in **Asokan Vs. Lakshmikutty (2008(1) KLT 54)** held that there was acceptance of Ext.A3, settlement deed during the life time of the settler and hence Ext.B1, cancellation deed is invalid. It followed that the assignment deed executed by the settler in favour of **RSA No.382/2010** 4 deceased defendant No.1 did not affect title of respondent. In view of that finding and in reversal of dismissal of the suit respondent was given a decree as prayed for. That is under challenge in this second appeal. The substantial questions of law urged in the memorandum of Second Appeal are whether in the light of decision in Baby Ammal v. Rajan Asari ((1997) 2 SCC 636) first appellate court was justified in holding that Ext.A3, gift deed had taken effect, whether the suit as framed without making a prayer for setting aside Exts.B1 and B7 is maintainable and in the absence of the assignees of appellant No.2, first appellate court was justified in granting relief to the respondent. It is contended by learned counsel placing reliance on the decisions in **Omana Vs. Kesavan (2005(1) KLT 893) and Baby Ammal Vs.** **RSA No.382/2010** 5 **Rajan Asari ((1997) 2 SCC 636)** that there is no valid settlement in favour of the respondent and at any rate, it is not proved to have been accepted during life time of the settler and hence first appellate court was not correct in holding that Ext.B1, cancellation deed followed by the assignment deed in favour of deceased defendant No.1 are invalid. 2. So far as Ext.A3, settlement deed is concerned, argument is that it did not convey right, title and interest over the suit property to the respondent in presenti and that such right, title and interest was intended to pass to the respondent only after life time of the settler and his mother who were to possess and enjoy the property notwithstanding Ext.A3 and hence its cancellation is valid. I have gone through a photocopy of Ext.A3 given to me for perusal by the **RSA No.382/2010** 6 learned counsel. The document states that respondent being a minor aged about 9 years during the relevant time was under care and custody of the settler during that time and in accordance with his desire to provide for her future livelihood, he wanted to settle the property in favour of respondent and to accomplish that desire, he has executed Ext.A3, settlement deed dated 15-02-1978. The document states that the settler wanted to settle the property in favour of respondent “right now” and accordingly, the document is executed. The property is given on gift to the respondent. The document authorises respondent in view of the gift made to effect mutation in her name, make necessary changes in the Thandaper record, pay tax and obtain purchase certificate. That settlement was **RSA No.382/2010** 7 however subject to a reservation that the settler and his mother would have a right of residence in the building in the suit property and enjoy the said property during their life time and the respondent was to enjoy the property after the death of settler and his mother. I am unable to understand from the above that Ext.A3 is not a settlement but a Will or is a conditional settlement so that non compliance of the condition it has to fail. On the other hand, it is a settlement as per which right, title and interest of the settler is transferred to respondent in presenti reserving a life interest for the settler and his mother and with a direction that respondent should enjoy the property after their death. The mere fact that enjoyment of the property or even possession of it by the respondent was deferred **RSA No.382/2010** 8 until death of the settler and his mother does not make the document anything less than a settlement. In **Baby Ammal Vs. Rajan Asari (supra)** relied on by learned counsel the document on the facts and circumstances of the case was found to be not transferring title in presenti. There, the relevant clause stated that “all the right to enjoy the property and the right to reside in the building will remain with me during my life time and Rajan Asari will derive the said rights with full freedom after my life time” . Relying on the relevant clauses in the document Supreme Court held that the transaction did not satisfy the requirements of section 122 of the Transfer of Properties Act and that there must be proof of delivery and acceptance of possession of the gifted property. In **K. Balakrishnan Vs. Kamalam and Ors.** **RSA No.382/2010** 9 **(AIR 2004 SC 1257)** it is held that merely because the donor had reserved to herself possession and enjoyment of the gifted property, it did not render the gift deed in favour of the minor ineffective. It only meant that enjoyment of the property by the donee is deferred to a particular time. I must also bear in mind that during the time Ext.A3 was executed respondent was a minor aged about 9 years living under care and custody of the settler himself and in such a situation, one need not expect physical delivery of possession of property to the respondent. This court in **Pathumma Vs. Pocker (1997(2) KLT** **958)** has held, even in respect to a gift under the Mohamedan law where delivery of possession is an essential requirement that when the donor and donee reside in the property which is subject matter of **RSA No.382/2010** 10 the gift, no physical departure by the donor or formal entry into possession of the property by the donee is necessary and that if the donee is the wife, no mutation of name is also necessary if there is a declaration that the husband delivered possession to the wife and the deed is handed over to her and retained by her. In this case referring to Ext.A3, I stated that there is a conveyance of right, title and interest of the settler to the respondent in presenti and that respondent was empowered and authorised to effect mutation in her name and make necessary changes in the Thandaper record, pay revenue and obtain purchase certificate. Unless title of the settler had passed to the respondent, no such direction or authorisation would have been made and was possible. Ext.A3, coupled with the **RSA No.382/2010** 11 evidence of PWs.1 to 7 and Ext.X1 would show that mutation of the property has already been effected in the name of respondent, certainly in tune with the right conferred upon by her as per Ext.A3. It is also seen from Ext.A1, proceeding dated 27.07.1992 that after Ext.A3 was cancelled by the settler as per Ext.B1, he made an attempt to effect mutation back to his name (which also meant that mutation had been changed in favour of the respondent) but, that attempt was shot down by the Tahasildar. Thus, it is in evidence that in tune with the recital in Ext.A3 mutation of property was effected in the name of respondent. It is settled position of law that so far as gift which is not onerous is concerned, only slight evidence of its acceptance is required. This court in **Vannathi Valappil Janaki &** **RSA No.382/2010** 12 ## **Ors. Vs. Puthiya Purayil Paius & Ors. (AIR 1986 Kerala 110)** has taken that view. There, it was held that even mere silence by the donee may sometimes be indicative of acceptance provided it is shown that the donee knew about the gift and that no express acceptance is necessary for completing the gift. In this case, there is evidence to show that respondent was aware of the settlement. Even the recitals in Ext.B1, cancellation deed would reinforce the view that Ext.A3 was intended to take effect and did take effect. What is stated in Ext.B1 is that the settler has executed Ext.A3, settlement deed in favour of the respondent but the settler continued to be in possession and enjoyment of the property with his mother (for whose benefit also a life interest was reserved under Ext.A3) having predeceased him **RSA No.382/2010** 13 and under changed circumstances he thought that it is not necessary to retain Ext.A3 and hence the document is being cancelled. In other words, the settler thought that it was necessary to cancel Ext.A3 which indicated that it had taken effect. Further fact to be born in mind is that Ext.A3, original settlement deed was produced in court by the respondent herself. In these circumstances, inference is inescapable is that Ext.A3 was accepted and it had taken effect before the settler attempted to cancel the same by Ext.B1. Ext.A3 is not a conditional settlement. No power is reserved with the settler to cancel the same. This court in **Gopalakrishnan Vs. Rajamma** **(2006(4) KLT 377)** has held that once the gift is accepted and there is no provision for its revocation contained in the document itself, the **RSA No.382/2010** 14 donor cannot unilaterally cancel the gift except through the process of court. In the circumstance, Ext.B1 cancellation is of no consequence and cannot affect the right, title and interest conveyed to the respondent as per Ext.A3. It is admitted that the settler died in the year 1994 after execution of Ext.B7, assignment deed in favour of defendant No.1. As such, after 1994 it was within the power of respondent to get possession of the property and enjoy the same. 3. Yet another contention raised is that the suit is time barred as it is not filed within three years of Exts.B1 and B7 of the year 1990 and 1991, respectively. It is also contended by learned counsel that absence of a prayer for setting aside Exts.B1 and B7 is fatal. So far as Exts.B1 and B7 are not valid, it is open to the **RSA No.382/2010** 15 respondent to ignore the same as, a document which is void can be avoided by stating so and no declaration or setting aside of that document is required since a void document is non est in the eye of law. Respondent is justified in ignoring Exts.B1 and B7 and seeking declaration of her title as per Ext.A3 and recovery of possession. It is not disputed that the suit is brought within 12 years of Exts.B1 and B7. Hence Article 65 of the Limitation Act applied. The suit is maintainable as rightly found by the courts below. 4. It is then contended that at any rate, assignee of appellant No.2 is a necessary party to the suit. Though such a contention is raised by appellant No.2 details of the assignment are not given in the written statement. Hence non-impleadment of assignee of appellant **RSA No.382/2010** 16 No.2 cannot be said to be fatal. The question whether the decree granted by the first appellate court would bind such assignee is a different matter which is not required to be decided in this appeal. On going through the copies of the relevant documents, judgment under challenge and considering the decisions placed before me, I find that no substantial question of law is involved in the appeal requiring its admission. Accordingly the second appeal is dismissed in limine. **(THOMAS P JOSEPH, JUDGE)** Sbna/-