Johnson @ Jiji v. A.Sherly and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **MONDAY, THE 11TH DAY OF NOVEMBER 2013/20TH KARTHIKA, 1935** **RSA.No. 984 of 2013** **----------------------AGAINST THE JUDGMENT IN AS NO.120/2009 OF ADDL.DISTRICT COURT II, THIRUVANANTHAPURAM DATED 31-01-2013** **.. AGAINST THE JUDGMENT IN OS NO.19/2002 OF SUB COURT,ATTINGAL DATED 31-03-2009** **...** **APPELLANT(S)/APPELLANT/2N DEFENDANT:** **----------------------------------------------------------------------** **JOHNSON @ JIJI,AGED 48 YEARS, S/O.J.K.ABEL, VAZHAVILA VEEDU** **(FROM VELUNTHARA PURAYIDAM, ANJENGO.P.O), SINGARATHOPE, CHIRAYINKEEZH DESOM, SARKARA VILLAGE, PIN-695 309.** **BY ADV. SRI.A.P.SUBHASH** **RESPONDENT(S)/RESPONDENTS/PLAINTIFFS 1 AND 2, ADDL.DEFENDANTS 3 TO 10:** **-----------------------------------------------------------------------------------------** **1. A.SHERLY,AGED 52 YEARS, D/O.J.K.ABEL, PALATTYKOONATHAN HOUSE, STADIUM ROAD, THURAVOOR.P.O, ALUVA TALUK, PIN-683 572.** ## **2. A.THRESSA,AGED 55 YEARS,** - **D/O.J.K.ABEL(BLOOM DALE), ROMEO VILLA, MARKET ROAD, ERAVIPURAM, KOLLAM-691 011.** **3. V.A.JOSEPH @ BABU, RIYALAND, VADAKKEARRAYATHURUTHI, SARKARA VILLAGE, CHIRAYINKEEZH, PIN-695 304.** **4. IRYN @ BABU, W/O.JOSE, SANTHANPURAM, VADDAIKAL, ALAPPUZHA, PIN-688 011.** **..2/-** **Kss** **..2....** ## **RSA.NO.984/2013** ## **5. SAMUEL ABEL,** - **S/O.J.K.ABEL, PARADISE VEEDU, VADAKKERAYATHURUTHIYIL, CHIRAYINKEEZH-695 304.** ## **6. PAUL ABEL,** **S/O.J.K.ABEL VEEDU NO.54, CTRV LANE NO.1, MAMAM, ATTINGAL, PIN-695 101.** ## **7. JOY GILBERT,** - **S/O.GILBERT, GREENLAND, SINGARATHOPE, CHIRAYINKEEZH, PIN-695 304.** ## **8. RAJA GILBERT,** - **S/O.GILBERT, GREENLAND, SINGARATHOPE CHIRAYINKEEZH, PIN-695304.** ## **9. SAJI GILBERT,** - **S/O.GILBERT, GREENLAND, SINGARATHOPE, CHIRAYINKEEZH, PIN-695 304.** **10. SANTHOSH GILBERT, S/O.GILBERT, GREENLAND, SINGARATHOPE, CHIRAYINKEEZH, PIN-695 304.** ## **11. LISSY,** - **S/O.SAJI GILBERT, GREENLAND, SINGARATHOPE, CHIRAYINKEEZH, PIN-695 309.** ## **12. LIVEENA,** **D/O.GILBERT, GREENLAND, SINGARATHOPE, CHIRAYINKEEZH, PIN-695 309.** ## **13. LIJEENA,** **D/O.SAJI SAJI GILBERT, GREENLAND, SINGARATHOPE, CHIRAYINKEEZH-695 309, MINOR, REPRESENTED BY HER MOTHER AND GUARDIAN LISSY, RESPONDENT NO:II ABOVE.** ## **14. LIJUN,** **S/O.SAJI GILBERT, GREENLAND, SINGARATHOPE, CHIRAYINKEEZH 695 309, MINOR, REPRESENTED BY HIS MOTHER AND GUARDIAN LISSY, RESPONDENT NO:II ABOVE.** ## **R1 BY ADV. SRI.P.VISWANATHAN(CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **P.N.RAVINDRAN** , **J.** ## **--------------------------R.S.A. No.984 of 2013 -------------------------Dated this the 11[th] day of November, 2013** ## **J U D G M E N T** The appellant is the second defendant in O.S.No.19 of 2002 on the file of the Court of the Subordinate Judge of Attingal. Respondents 1 and 2 are the plaintiffs, respondents 3 to 10 are supplemental defendants 3 to 10 and respondents 11 to 14 are legal heirs of the additional 9[th] defendant. The brief facts of the case are as follows. 2. Respondents 1 and 2 instituted O.S.No.19 of 2002 in the Court of the Subordinate Judge of Attingal praying for declaration of their title and possession over the plaint A and B schedule properties and right of easement by prescription over the plaint C schedule property and a consequential injunction restraining the defendants from interfering with their right of way over the plaint C schedule property. They also sought a direction to set aside Ext.A12 cancellation deed. The plaintiffs contended that plaint A and B scheduled properties were settled on them by the first defendant, their father as per Exts.A1 and A2 gift deeds dated 30.4.1981, but long thereafter by Ext.A12 cancellation deed dated 27.11.2001 he R.S.A.No.984/2013 2 cancelled the gift deeds and thereupon he and the second defendant, who is none other than the elder brother of the plaintiffs, obstructed them from possessing and enjoying the plant schedule properties and attempted to commit acts of waste therein. Defendants 1 and 2 filed a written statement resisting the suit. Though they admitted the execution and registration of Exts.A1 and A2 gift deeds dated 30.4.1981, they contended that neither possession nor ownership were transfered to the plaintiffs. It was contended that the originals of the gift deeds were not delivered over to the plaintiffs, that the gift deeds never came into effect, that the first defendant was in possession and enjoyment of the properties and that the cancellation deed was lawfully executed. 3. While the suit was pending, the first defendant died and additional defendants 3 to 10 were impleaded as his legal heirs. Additional defendants 3, 5 and 6 filed a written statement reiterating the contentions in the written statement filed by defendants 1 and 2. The other defendants were absent and they were set ex-parte. The trial court on an analysis of the evidence oral and documentary held that Exts.A1 ad A2 gift deeds had come into effect, that as on the date of Ext.A12 cancellation deed dated 27.11.2001 the first defendant had no manner of right over the property and therefore, the cancellation deed is not valid and binding on the plaintiffs. The trial court also held R.S.A.No.984/2013 3 that the plaintiffs are therefore entitled to the relief of declaration. As regards the right of way claimed over the plaint C schedule property, the trial court held that the plaintiffs have not acquired a right of easement by prescription over the plaint C schedule property. The suit was accordingly decreed in part declaring the plaintiffs' right, title and possession over the plaint A and B schedule properties. The trial court also declared that Ext.A12 cancellation deed is not valid and binding on the plaintiffs. Aggrieved thereby, the second defendant filed A.S.No.120 of 2009 on the file of the Court of the Additional District Judge-II Thiruvananthapuram. Before the appellate court also very same contentions which was put forward in the trial court were raised. The lower appellate court held on an analysis of the evidence oral and documentary that Ext.A12 cancellation deed is invalid and is not binding on the plaintiffs or the plaint A and B schedule properties. The appeal was accordingly dismissed upholding the judgment and decree passed by the trial court. Hence this second appeal. 4. I heard Sri.A.P.Subash, learned counsel appearing for the appellant and Sri.P.Viswanathan, learned counsel appearing for respondents 1 and 2/plaintiffs. The learned counsel appearing for the appellant contended that Exts.A1 and A2 gift deeds were executed at a point of time when the plaintiffs were minors, that there was no acceptance of the gift by the guardian/donor, that the gift deeds had 4 R.S.A.No.984/2013 not taken effect and therefore, the courts below erred in proceeding on the basis that the plaintiffs obtained title and possession over the plaint A and B schedule properties by virtue of Exts.A1 and A2 gift deeds. The learned counsel contended that as the minor plaintiffs were not competent to contract, in the absence of any recital in the gift deeds to the effect that their father had taken possession of the properties on their behalf in his capacity as their guardian, the courts below erred in holding that the gift deeds were accepted and acted upon. Per contra, the learned counsel appearing for the respondents/plaintiffs contended, relying on the decision of a learned single Judge of this Court in **Sankaran Poulu and Others v. Sundari** **Vijayamma and Another** (2013 (3) KHC 93) that even though a minor cannot accept a gift, his/her parent can accept the gift on his behalf, that if the donor himself is the parent of the minor, possession of the property by the parent on behalf of the minor would be sufficient to hold that the gift was accepted, that in the instant case apart from the fact that the father of the minor plaintiffs himself was the donor, there is the further fact that the donees had mortgaged the properties covered by the gift deeds by deposit of the title deeds and therefore, it cannot be said that the gift deeds had not taken effect. 5. I have considered the submissions made at the Bar by the learned counsel on either side. I have also gone through the pleadings R.S.A.No.984/2013 5 and the materials on record. The trial court and the lower appellate court have on an analysis of the evidence oral and documentary available in the case held that the gift deeds have been accepted and acted upon. Before the trial court as well as the lower appellate court the only contention raised by the second defendant was that the gift deeds had not taken effect. The execution of the gift deeds was in fact not disputed. The trial court as well as the lower appellate court took note of the fact that Ext.A12 cancellation deed was executed more than 20 years after the gift deeds were executed. In Ext.A1 gift deed in favour of the first plaintiff it is stated that she is aged 18 years. In Ext.A2 gift deed in favour of the second plaintiff it is stated that she is aged 20 years. Going by the recitals in the gift deeds, on the date of execution of the gift deeds the donees were not minors. It was only 20 years thereafter that the cancellation deed was executed. In the interregnum, the first plaintiff had availed a loan on the security of the property covered by Ext.A1 gift deed by creating an equitable mortgage over the plaint A schedule property. Though this fact had been pleaded by the plaintiffs, it was not denied or disputed in the written statement filed by the defendants. The plaintiffs had also produced documents to prove payment of tax by them and the fact that they were residing in the plaint schedule property. The trial court as well as the lower appellate court took note of the fact that the first R.S.A.No.984/2013 6 defendant was a guarantor to the loan transaction, which was secured by mortgage of the property covered by Ext.A1 gift deed. The case now put forward that the gift deeds executed in favour of the minors had not taken effect cannot therefore be accepted. Even if for the sake of arguments this Court were to proceed on the basis that on the date of execution of the gift deeds the donees were minors, that by itself will not in my opinion lead to the conclusion that the gift deeds had not been accepted and acted upon. In **Sankaran Poulu and** **Others v. Sundari Vijayamma and Another** (Supra) a learned single Judge of this Court after considering the case law on the point held as follows: _“It is trite law that there can be a gift in favour of a minor and the minor himself/herself can also accept the gift especially a non-onerous gift, and even if the minor was not accepting the gift, his/her parents can accept the gift on behalf of the minor. If the donor himself is the parent of the minor, the possession of the property by the parent on behalf of the minor would be sufficient to hold that the gift was accepted. Admittedly, it is not an onerous gift and as such the contention that the gift was not accepted by the donee, cannot be accepted.”_ I accordingly hold that no interference is called for with the impugned judgments. The second appeal fails and is dismissed. **P.N.RAVINDRAN, (JUDGE)** vps