K. Cherunni v. Nalini and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 27TH DAY OF SEPTEMBER 2017/5TH ASWINA, 1939 Mat.Appeal.No. 331 of 2010 ( ) ------------------------------- AGAINST THE ORDER IN OP 600/2008 of FAMILY COURT,KOZHIKODE DATED 2409-2009 APPELLANT/PETITIONER: -------------------- K.CHERUNNI,S/O.LATE KELU,61 YEARS, KOZHIMBATTIL HOUSE,THAZHEKKODE AMSOM AND DESOM,, KOZHIKODE DISTRICT. BY ADV. SRI.SANTHARAM.P RESPONDENT/RESPONDENTS: ---------------------- 1. K.NALINI,D/O.UNNIRAMAN,AGED 50 YEARS, CHENAMTHODIKA HOUSE,THAZHEKKODE AMSOM AND DESOM,, MANASSERY POST,KOZHIKODE TALUK. 2. SINI.K.UNNI,W/O.SHYJAN,AGED 27 YEARS, MANNARAKKAL HOUSE,KAKKOOR AMSOM AND DESOM, KAKKOOR POST,KOZHIKODE TALUK. 3. ANILA.K.UNNI,W/O.SREENISH LALU, AGED 25 YEARS,KALIYAMKUNNATH HOUSE, KODEL AMSOM AND DESOM, PANTHEERANKAVU POST, MANAKKADAVU, KOZHIKODE TALUK. R1 TO 3 BY ADV. SRI.SUNNY MATHEW THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2017, THE COURT ON 27-09-2017, DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE, J & ANU SIVARAMAN, J** *** * * * * * * * * * * * * *** Mat.Appeal No.331 of 2010 ---------------------------------------Dated this the 27[th] day of September 2017 ## **J U D G M E N T** ## **Shaffique, J** This appeal is filed by the petitioner in O.P.No.600/2008 challenging the order dated 24/09/2009 of the Family Court, Kozhikode. 2. The petitioner and the 1[st] respondent got married and they had two daughters in the wedlock. They started living separately since 1996. 3. The petition schedule property was obtained by the petitioner as his share by way of a registered partition deed No.759/1984. He constructed a house in the property. When the respondents objected to the petitioner enjoying the property, he filed O.P.No.29/1999 before the Family Court and sought for an injunction to restrain the respondents from interfering with the possession and enjoyment. The said original petition came to be dismissed. Mat.Appeal No.331/2010 2 4. There were other cases relating to matrimonial issues. Mediators interfered in the matter and it was decided to withdraw all the pending cases between the parties. As per the terms of settlement, the petitioner also agreed to convey the title and interest over the petition schedule property and one half share in another property to the respondents by settlement deed and to pay Rs.40,000/- each to respondents 2 and 3 towards marriage expenses. Accordingly, the cases were withdrawn. It is further stated that as per the settlement, a joint application had been filed for dissolution of marriage and he had also executed the settlement deed. Subsequently, the respondent withdrew her consent for mutual divorce and accordingly, the said application was dismissed. Petitioner, therefore, revoked the settlement deed executed by him, by a deed of cancellation. It is his contention that the revocation deed is legal and valid and binding on the respondents. It is further stated that respondents 2 ad 3 are married and living separately with their husbands. Petitioner filed O.P.350/2003 for recovery of possession of petition schedule property excluding the house in which the 1[st] respondent was residing. The said original petition was withdrawn with liberty to Mat.Appeal No.331/2010 3 file a fresh petition with the same cause of action. It is contended that the house and courtyard and access to the house occupied by the 1[st] respondent is shown as B schedule property. He accepts the right of the 1[st] respondent to occupy the house in the petition schedule property until the matter is decided. Petition C schedule property is a portion of petition A schedule property excluding petition B schedule property. It is alleged that the respondents have no title, right and possession over C schedule property and he is entitled to get recovery of possession, for which the original petition has been filed. 5. Respondents filed a joint counter statement. They contended that the present suit is barred by limitation and res judicata. Petitioner has no possession over the petition schedule property for the last 14 years and it is in the exclusive possession of the respondents. They, however, admitted that the property belonged to the petitioner, but he had abandoned the respondents in the year 1994 and thereafter he has no possession over the schedule property. O.P.No.29/1999 came to be dismissed since it was found that the petitioner has no possession over the schedule property. They also denied the fact that the 1[st] Mat.Appeal No.331/2010 4 respondent had withdrawn the compromise for divorce by mutual consent. According to them, petitioner has no right or possession over the schedule property. The petitioner executed a registered deed 40/02 in favour of the respondents and they have accepted the same. Even before the decree was executed, the 1[st] respondent was in possession of the schedule property. The gift deed being acted upon, it is not open for the petitioner to revoke the same. The cancellation deed is therefore invalid and no claim can be made based on the cancellation deed. 6. Before the Family Court, petitioner was examined as PW1 and the 1[st] respondent was examined as RW1. Petitioner relied upon Exts.A1 to A10 and respondents relied upon Exts.B1 to B3. Exts.C1 and C1 (a) are the Commission report and plan. The Court below found that the petition is not barred by the principles of res judicata. However, taking note of the fact that the gift had been completed, there is no validity for the cancellation deed. Accordingly, the original petition was dismissed. 7. Learned counsel for the appellant, while impugning the judgment, contended that the gift was never acted upon. Gift Mat.Appeal No.331/2010 5 was not accepted by the respondents and therefore it was open for the appellant to revoke the gift by executing a cancellation deed. Further, the gift deed came to be executed based on an agreement to have a divorce by mutual consent which was not complied by the 1[st] respondent. On the other hand, the learned counsel for the respondents supported the stand taken by the Family Court. 8. In the petition, the specific averment is that the petitioner has agreed to convey the title and interest over the schedule property and one half share in another property to respondents by a deed of settlement and to pay Rs.40,000/- each to respondents 2 and 3 for marriage expenses on certain conditions. One of the conditions was to have a consent decree for divorce. All the cases between the parties were withdrawn and mutual consent petition was also filed. But, the 1[st] respondent did not agree with the divorce after the execution of the settlement deed. In paragraph 5 of the petition, it is stated that _“since the 1[st] respondent has failed to comply with the terms, the petitioner has revoked the settlement deed referred above as the original of the settlement deed or possession of the property has_ Mat.Appeal No.331/2010 6 _not been delivered to the respondents.”_ In the objection filed by the respondents, it is stated that the gift deed had become final and the cancellation deed is not valid under law. Ext.A2 is the gift deed. In Ext.A2, the recitals would show that it is a gift deed executed by the petitioner in favour of respondents for 15 cents of land situated in Re-Sy.No.145/1-2 of Thazhekkadu Amsom Desom. As per the recitals, the jenmom right with all other interest is being given to the respondents for their livelihood as a gift. Ext.A3 is the cancellation deed, recitals of which would show that the gift deed was executed pursuant to a compromise between the parties by which he had agreed for a divorce by mutual consent. In so far as the gift deed has not been accepted and the property is still in his possession, the gift deed is being cancelled. Exts.A4 to A7 are the tax receipts. Exts.B1 is a building tax receipt and B2 is the communication received by respondents from the Grama Panchayat. Ext.B3 is a notice for payment of tax. 9. There is no dispute about the proposition that once the gift is accepted, it cannot be cancelled. There is also no dispute about the proposition of law that a gift becomes valid only on Mat.Appeal No.331/2010 7 acceptance. Possession of property is not a criteria for deciding whether there is acceptance of gift or not. Gift is defined u/s 122 of the TP Act, 1882 (hereinafter referred to as 'the TP Act') Sec.122 reads as under: _**“122. “Gift”** defined.- “Gift”is the transfer of certain existing movable or immovable 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.”_ 10. The very definition itself indicates that the transfer by way of gift has to be accepted by or on behalf of the donee. The transfer is effected by way of a registered instrument in terms of Sec.123 which reads as under: _**“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._ Mat.Appeal No.331/2010 8 _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. “_ 11. Sec.126 relates to the circumstances under which a gift can be revoked. Sec.126 reads as under: ## _**“126. When gift may be suspended or**_ _**revoked.-** The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be._ _A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded._ _Save as aforesaid, a gift cannot be revoked._ _Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.”_ 12. The Family Court found that the recital in Ext.A2 shows that possession of the property has been handed over and Mat.Appeal No.331/2010 9 therefore the gift has been completed. 13. In order to constitute a valid gift, the main requirement is acceptance of the gift. No particular mode of acceptance is required and whether there is acceptance or not is a matter to be considered in the circumstances arising in the case. The factum of acceptance can be established in different circumstances such as donee taking a property or being in possession of the deed of gift. For example, if a document of gift after its execution or registration in favour of the donee, is handed over to him by the donor, it amounts to valid acceptance of gift under law. Even the specific recital in the deed that possession was given raises a presumption of acceptance. The acceptance need not be expressed as such whereas it can be inferred and it may even be proved by possession exercised by the donee. 14. The Apex Court in **Ashokan v. Lak** _[2007(13) SCC 210]_ , had occasion to restate the law in regard to gift. It is held at paragraphs 13 to 16, 20, 23 and 30 as under: _**“13.** We have noticed the terms of the deeds of gift. Ex facie, they are not onerous in nature. The definition of “gift” contained in Section 122 of the Transfer of Property Act provides that the essential elements thereof are:_ Mat.Appeal No.331/2010 10 _(i) the absence of consideration;_ _(ii) the donor;_ _(iii) the donee;_ _(iv) the subject-matter;_ - _(v) the transfer; and_ _(vi) the acceptance._ _**14.** Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. (See Sanjukta Ray v. Bimelendu Mohanty, Kamakshi Ammal v. Rajalakshmi and Samrathi Devi v. Parasuram Pandey.)_ _**15.** Concept of payment of consideration in whatever form is unknown in the case of a gift. It should be a voluntary one. It should not be subjected to any undue influence._ _**16.** While determining the question as to whether delivery of possession would constitute acceptance_ Mat.Appeal No.331/2010 11 _of a gift or not, the relationship between the parties plays an important role. It is not a case that the appellant was not aware of the recitals contained in deeds of gift. The very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometimes indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift.”_ _**“20.** When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. (See Prem Singh v. Birbal.) When such a presumption is raised coupled with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and not on the donee.”_ _**“23.** Could they now turn round and say that he was to fulfil a promise? The answer thereto must be rendered in the negative. It is one thing to say that the execution of the deed is based on an aspiration or belief, but it is another thing to say that the same constituted an onerous gift. What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Contract Act. It was not done. The deeds of gift categorically state, as an ingredient for a valid_ Mat.Appeal No.331/2010 12 _transaction, that the property had been handed over to the donee and he had accepted the same. In our opinion, even assuming that the legal presumption therefor may be raised, the same is a rebuttable one but in a case of this nature, a heavy onus would lie on the donors.”_ _**“30.** Once a gift is complete, the same cannot be rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift.”_ Referring to Narayani Bhanumathi v. Karthyayani Lelitha Bhai _[1973 KLT 961]_ it was held that evidence bearing on the question of acceptance of the gift deed will have to be appreciated in the background of the circumstance relating to the execution of such a deed. It is observed that there may be cases where slightest evidence of such acceptance would be sufficient. There may be instances where the circumstances themselves eloquently speak to such acceptance. It is, however, held that though it is only normal to assume that the donee would have accepted the gift deed, it is again a question of fact to be considered on the background of circumstances of each case. The Apex Court also referred to Alavi v. Aminakutty and Others [1984 KLT 61 (SN)] wherein it was held that where the deed of gift itself recites that Mat.Appeal No.331/2010 13 the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raises a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore the burden lies on the person who alleges or claims the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject-matter of the gift was not delivered over to the donees. 15. In the case on hand, the factual circumstances arising would show that there was a settlement between the parties by which they agreed to have a mutual consent divorce on condition of the petitioner executing a gift deed in favour of the respondents. In the gift deed, the following is the recital: “മ�ല (പക�ര��ളള പട�കയ�ല� വസ���, ജന�, നടപ�, �����യ സ�സ�� അവക�ശങള�� ഇ��ന�ല ന�ങള �ലട � �ടര!�ളള ജ"വ�� ച��വ�മ�ക�� �ററ ���യ� ഇ��ന�ല ദ�ന��യ� �!�ര�ക�!�. Mat.Appeal No.331/2010 14 അ��ലക�ണ�ഈ ദ�ന�ധ�ര (പക�ര� മ���ല വസ��� കകവശ� ലവച �� സരക�ര ന�ക ��� ലക�ട�ത�� ജന�വക�ശ��യ� അന�ഭവ�ക�!��ന�� യമ/ഷ� (കയവ�(കയങള ലചയ�!��ന�� �ററ�� പട�കയ�ല� വസ�� �വ�നമ�ല മ���ല ന�ങളക����ല� എന�ക � യ�ല��രവക�ശവ �� . മ�രചയ�� ഇ��� ജ���ര�പ�ന ഹരജ� മ6�ധ�പ�ച�.” 16. As per the recital in the deed, respondents were permitted to take possession of the property, mutate the property in their names and no one else other than the respondents will have any right. Though a presumption of acceptance could be raised in this regard by virtue of the recitals in the document, the said presumption is rebuttable. Therefore, irrespective of the statement in the document, it has to be considered as to whether the appellant had discharged his burden to rebutt the presumption. If the gift is not accepted, he is entitled to revoke the gift deed and the concellation deed will become valid. Whereas, as held by the Apex Court in **Asokan** (supra), if the gift is complete, the same cannot be rescinded. 17. Therefore, initially it has to be considered, whether the gift had been accepted by the respondents making it a complete Mat.Appeal No.331/2010 15 gift or not. 18. PW1 in his evidence refers to a settlement of the matrimonial issues, on the basis of which he had executed the gift deed, since the parties agreed for divorce by mutual consent. The respondent committed breach of the settlement terms and therefore the gift deed was not handed over nor the possession was given and accordingly the two gift deeds registered on 07/01/2002 were cancelled. In the deposition of the respondent as RW1 in I.A.N.1365/2004 in O.P.No.161/2000 she had admitted about the settlement between the parties to withdraw all the pending cases and file a joint petition for divorce. The said deposition is marked as Ext.A9. In Ext.A9, she deposed that “അ��ന� (പ��ഫ���യ� ആണ� ഭരത�വ�ല: വസ�� �വ���ളള പക ��� അവക�ശ� എന�ക �� ക �ട�കളക�� ദ�ന� �ര �വ�ന �"ര ��ന�ച��. അ�ന�സര�ച� O.P.No.303/2001 file ആക�.” She further deposed that the appellant had given evidence whereas she has withdrawn from the petition. She further deposed that “joint petition അന�വദ�ക�ത��ലക�ണ� ലചറ�ണ� എഴ���യ രണ� ഭ�ഗ�ധ�രങള�� cancel ” ലചയ�മ�� എ! � അറ�യ����. In her evidence before the Family Court as RW1 She admits that she had withdrawn from the 16 Mat.Appeal No.331/2010 compromise and the gift deed was registered on the basis of the settlement between the parties in regard to the matrimonial issues. However, she deposed that the petitioner did not pay Rs.40,000/- each for the children as promised. But no such ground is taken in the pleadings. 19. Therefore, it is an admitted fact that there was a settlement between the parties relating to the matrimonial issues and as part of the settlement, they agreed to have a divorce by mutual consent and as consideration for the said agreement, the petitioner decided to register and execute the gift deed. Since the respondent had withdrawn from the agreement for divorce by mutual consent, the petitioner had revoked the gift deed by cancellation deed inter alia stating that the gift had not taken effect. As already indicated, though acceptance of the gift can be presumed on a mere reading of the gift deed, the said presumption is rebuttable. In this case, the gift deed was executed since the parties agreed to have a divorce by mutual consent. Therefore, the gift deed can be treated as accepted only on compliance of the corresponding obligation to have a divorce by mutual consent. In other words, the parties intended the gift Mat.Appeal No.331/2010 17 to take effect by acceptance only on having a divorce by mutual consent. When the respondent had backed out of her obligation to have a divorce by mutual consent, it can be treated that the gift deed has not been acted upon or it has not been accepted by the respondent and therefore, the presumption available stands rebutted by the admitted stand of the parties. Hence, it has to be concluded that there was no acceptance of the gift and hence the cancellation deed Ext.A3 has to be treated as valid. 20. Further, under Section 126 of the TP Act, a gift can be suspended or revoked. The donor and donee may agree on the happening of a specified event which does not depend on the will of the donor, a gift can be suspended or revoked. Further, a gift can also be revoked in cases in which if it were a contract, it might be rescinded. A contract contains mutual promises and obligations. A gift can be revoked for coercion, fraud, misrepresentation or undue influence, in the same way, a contract can be rescinded. Even an innocent misrepresentation under Section 18(3) of the Indian Contract Act is found to be a ground for revoking a gift (Cf Re Glubb, Banfield v. Rogers (1900) 1 Ch 354). But, there is no specific pleading in that regard and Mat.Appeal No.331/2010 18 therefore we do not think it necessary for us to consider whether the gift could have been rescinded invoking Section 126 of the Transfer of Property Act. In the result, i) Mat.Appeal is allowed and the judgment of the Family Court in O.P.No.600/2008 is set aside. ii) O.P.No.600/2008 is allowed and the petitioner is entitled for the following decree. a) Title of the petitioner over C schedule property is hereby declared . b) Petitioner is entitled for recovery of possession of C schedule property from the respondents. c) The respondent shall surrender possession of C schedule property to the petitioner within a period of one month from the date of receipt of a copy of this judgment. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** (sd/-) ## **(ANU SIVARAMAN, JUDGE)** jsr True Copy P.S to Judge