KANDAKUNJU THANKAPPAN v. LAKSHMY and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940** **SA.No. 704 of 1997** **AGAINST THE JUDGMENT AND DECREE DATED 31-07-1997 IN AS 120/1990 of SUB COURT, CHERTHALA** **AGAINST THE JUDGMENT AND DECREE DATED 13-07-1990 IN OS 419/1988 of PRL. MUNSIFF COURT, CHERTHALA** ## **APPELLANT/APPELLANT/DEFENDANT:** **1 *KANDAKUNJU THANKAPPAN, (DIED) VAVAKKATTUVELIYIL, CHARAMANGALAM MURI, THANNEERMUKKOM VILLAGE.** **LRS IMPLEADED AS ADDL.APPELLANTS** **ADDL.A2 VINOD S/O.KANDANKUNJU THANKAPPAN, VAVAKKATTU VELIYIL, CHARAMANGALAM MURI, THANNEERMUKKOM VILLAGE.** ## **ADDL.A3 YASODARA** **D/O.KANDANKUNJU THANKAPPAN, VAVAKKATTU VELIYIL, CHARAMANGALAM MURI, THANNEERMUKKOM VILLAGE.** ## **ADDL.A4 MAJA** **D/O.KANDANKUNJU THANKAPPAN, VAVAKKATTU VELIYIL, CHARAMANGALAM MURI, THANNEERMUKKOM VILLAGE. * LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 4 AS PER ORDER DATED 21.11.2014 IN IA 394/2011.)** ## **BY ADV. SRI.V.T.RAGHUNATH** ## **RESPONDENTS/RESPONDENTS/ PLAINTIFF/RESPONDENTS:** **1 KANDAKUNJU NARAYANAN(DIED)** **2 **LAKSHMY, (DIED) D/O.KARUMBI AND REAL SISTER OF DECEASED NARAYANAN, THOTTUNKAL, CHARAMANGALAM, THANNEERMUKKOM.** **S.A.Nos. 704 of 1997** **2** **and 739 of 2001** - **3 ***PARVATHY, (DIED)** **D/O.KARUMBI AND REAL SISTER OF DECEASED NARAYANAN, THOTTUNKAL, CHARAMANGALAM, THANNERMUKKOM.** - **4 KAUMARY,** **D/O.KARUMBI AND REAL SISTER OF DECEASED NARAYANAN, PUTHUVEETTU VELI, CHARAMANGALAM, THANNEERMUKKOM.** - **5 SUPRAN,** **S/O.KANDAKUNJU AND REAL BROTHER OF DECEASED NARAYANAN, MAZHUVANCHERIL, CHARAMANGALAM, THANNEERMUKKOM.** ## **ADDL.R6 JAYAMMA** **D/O.PARVATHY, PUTHENKARAYIL, CHERTHALA EAST MURI, KOKKOTHAMANGALAM VILLAGE, CHERTHALA - 688524. ***(LEGAL REPRESENTATIVE OF DECEASED R3 IS IMPLEADED AS ADDL.R6 AS PER ORDER DATED 21.11.2014 IN IA 392/2011.)** **ADDL.R7 RAJAMMA, D/O LAKSHMI** **63 YEARS, MATTATHIL, KAYIPPURAM MUHAMMA PO. - 688525.** **ADDL.R8 KARTHIKEYAN** **S/O.LAKSHMI, 56 YEARS, THOTTUNKAL, KAYIPPURAM MUHAMMA PO - 688 525.** **ADDL.R9 SATHI** **D/O.LAKSHMI, 54 YEARS, KUTTICHIRA, CHARAMANGALAM MUHAMMA PO - 688525.** **(**LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 7 TO 9 AS PER ORDER DATED 04.07.2017 IN IA 3122/2014.)** **BY ADVS.** **SRI.JOHN JOSEPH VETTIKAD SRI.NAVIN BOSE SRI.SABU GEORGE** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, ALONG WITH SA.739/2001, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **S.A.Nos. 704 of 1997** **3** **and 739 of 2001** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940** **SA.No. 739 of 2001** **AGAINST THE JUDGMENT AND DECREE DATED 16-06-2001 IN AS 84/1993 of SUB COURT, CHERTHALA** **AGAINST THE JUDGMENT AND DECREE DATED 31-07-1993 IN OS 648/1988 of ADDL.MUNSIFF COURT,CHERTHALA** **APPELLANTS/(APPELLANTS IN THE APPELLATE COURT AND PLAINTIFFS IN THE TRIAL COURT):** - **1 VINOD, AGED 24 S/O.THANKAPPAN, VAVAKKATTU VELIYIL HOUSE, THANNEERMUKKOM SOUTH, CHARAMANGALAM.** **2 VAJA, AGED 21 S/O.THANKAPPAN, VAVAKKATTU VELIYIL HOUSE, THANNEERMUKKOM SOUTH, CHARAMANGALAM.** - **3 YESHODHARA, W/O.THANKAPPAN, VELIYIL HOUSE, THANNEERMUKKOM SOUTH, CHARAMANGALAM.** - **4 KUNJUKUNJU THANKAPPAN,** **VELIYIL HOUSE, THANNEERMUKKOM SOUTH, CHARAMANGALAM.** **BY ADV. SRI.V.T.RAGHUNATH, C.V.RAJALAKSHMI** ## **RESPONDENT/(RESPONDENTS IN THE APPELLATE COURT AND LEGAL HEIRS OF DECEASED SOLE DEFENDANT):** - **1 *LEKSMY, (DIED) D/O.KARUMBI, (SISTER OF NARAYANAN) THOTTUMKAL, CHARAMANGALAM, THANNEERMUKKOM.** - **2 **PARVATHI, (DIED) D/O.KARUMBI (SISTER OF NARAYANAN) THOTTUMKAL,** **S.A.Nos. 704 of 1997** **4** **and 739 of 2001** ## **CHARAMANGALAM, THANNEERMUKKOM.** **3 KUMARY, D/O.KARUMBI (SISTER OF NARAYANAN), MAZHUVANCHERIL, CHARAMANGALAM, THANNEERMUKKOM.** **4 SUPRAN, S/O.KANDAKUNJU (BROTHER OF NARAYANAN) MAZHUVANCHERIL, CHARAMANGALAM, THANNEERMUKKOM.** ## **ADDL.R5 JAYAMMA,** **D/O.PARVATHY, PUTHAN KARAYIL, CHERTHALA EAST MURI, KOKOTHAMANGALAM VILLAGE, CHERTHALA.** ****(THE LEGAL REPRESENTATIVE OF DECEASED 2ND RESPONDENT IS IMPLEADED AS SUPPLEMENTAL 5TH RESPONDENT AS PER ORDER DATED 04.08.2017 IN IA 2938/2014.)** **ADDL.R6 RAJAMMA, D/O LEKSHMI 63 YEARS, MATTATHIL, KAYIPPURAM MUHAMMA P.O. 688525** **ADDL.R7 KARTHIKEYAN** **S/O.LEKSHMI, 56 YEARS, THOTTUNKAL, KAYIPPURAM MUHAMMA P.O. - 688525.** ## **ADDL.R8 SATHI** **D/O.LEKSHMI, 54 YEARS, KUTTICHIRA, CHARAMANGALAM MUHAMMA PO - 688525.** *** (THE LEGAL REPRESENTATIVES OF DECEASED FIRST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 6 TO 8 AS PER ORDER DATED 04.08.2017 IN IA 2941/2014.)** **BY ADVS. SRI.NIDHI BALACHANDRAN SRI.SABU GEORGE** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2018, ALONG WITH SA.704/1997, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **S.A.Nos. 704 of 1997 and 739 of 2001** **5** ## **JUDGMENT** The crucial question to be resolved in these matters is as to whether the concurrent findings of the courts below that the document marked as Ext.B1 in the suits, from which the second appeals arise, is a will and not a gift, are sustainable in law. 2. The facts necessary for adjudication of the aforesaid question are the following : O.S.No.419 of 1988, from which S.A. No.704 of 1997 arises, is a suit for partition. The suit property therein is one obtained by the plaintiff and the defendant jointly in terms of Ext.A1 partition deed. In the suit, the plaintiff claimed partition of his one-half share in the property. The defendant contended that the plaintiff has gifted his onehalf share in the suit property to the minor children of the defendant in terms of Ext.B1 document; that the donees under the said document have accepted the gift made by the plaintiff and, therefore, the plaintiff has no subsisting right in the property. The trial court found that Ext.B1 is a Will and not a gift and passed a preliminary decree consequently as prayed for by the plaintiff. Though the defendant challenged the decision of the trial court in appeal, the appellate court confirmed the decision of the trial court. The defendant, who is aggrieved by the **S.A.Nos. 704 of 1997** **6** **and 739 of 2001** concurrent decisions of the courts below, has thus come up in the second appeal challenging the same. O.S.No.648 of 1988, from which S.A. No.739 of 2001 arises, is a suit filed on behalf of the minors, in whose favour Ext.B1 document in O.S. No.419 of 1988 is executed, for a declaration of their title over the properties covered by the said document including the subject matter of O.S. No.419 of 1988 and for consequential reliefs. The document referred to above is marked in this suit also as Ext.B1. The case set out by the plaintiffs in the plaint is that the same is a gift as its nomenclature indicates; that the same has been accepted by the plaintiffs and that, therefore, they become the absolute owners of the properties. The plaintiff in O.S. No.419 of 1988, who is the defendant in the suit, contended that Ext.B1 is only a Will and not a gift and, therefore, title to the properties has not been passed on to the plaintiffs. The trial court rejected the case of the plaintiffs and dismissed the suit holding that the document is a Will and not a gift and the decision of the trial court has been confirmed in appeal. The plaintiffs, who are aggrieved by the concurrent decisions of the courts below, have thus come up in the second appeal challenging the same. 3. Heard the learned counsel for the parties on either side. 4. It is not discernible from the materials on record as to the reason why the subject suits have not been tried jointly. Be that as **S.A.Nos. 704 of 1997** **7** ## **and 739 of 2001** it may, as indicated at the outset, the crucial question is as to the nature of the document marked identically in the suits as Ext.B1. The nomenclature of the document, no doubt, is that of a gift. It is settled that the nomenclature of the document is not decisive in disputes of this nature and the intention of the parties is to be derived from the recitals of the document. There cannot be any doubt to the preposition that in the case of a gift, the transfer of property takes effect _in praesenti_ and in the case of a Will, the transfer of property takes effect _in futuro_ . The pointed question, therefore, is as to whether transfer of property had been taken effect _in praesenti_ in terms of Ext.B1 document. It is trite that in a case of this nature, the recitals of the document are to be read conjointly to understand their impact and effect. For a proper understanding of the nature of the document, the relevant recitals of the same need to be perused and I am extracting the same for the said purpose: “1985-06-12 ആയ�രത� ത��ള�യ�രത� എൺപത� അഞ�മ�ണ� ജ�ൺ മ�സ� പന�ണ�� ��യ�� �ണ�ർമ�ക� ത�ക� വ�ല� ജ�ൽ ച�രമ�ഗ�� മ�റ�യ�ൽ വ�വക�ട& തവള�യ�ൽ എങപനതറ മകള&� മമനർകള&� ആയ8 എട& 6 വയസ&ള വ�ലന�ദ�നതറയ�� ആറ� വയസ&ള വ�ണ�യ�ത1യ�� ലപർക�1�യ�ൽ 62 കണക�ഞ� മകൻ മകതത�ഴ�ൽ അറ�പത�രണ� വയസ&ള ന�ര�യണൻ എഴ���തക�1�ത ഇഷദ�നയ�ധ�ര� 1� മമനർകൾ എനതറ ലനതര ഇളയ സല9�ദരന�യ �ങപനതറ മകള&� വ�ഭ�ര;ന�� സ��ന ര9��ന�� ആയ ഞ�ൻ 1� മമനർകതള മ==വക��� മ��ൽ എനതറ പ�ൻ��1ർച�വക�=�കൾ എന ന��യ�ൽ പ�ന�ന�വ�ല=ഷ� വളർത� വ�ദ;�ഭ;�സ�ദ�ക�ര;ങൾ ന�ർവ9�ച&� ന1ന� വര�ന��� ലമൽ നപക�ര� 1� മമനർകൾ എതന മ�ന�� ആന=യ�ച& . കഴ�ഞ� വര�ന��� ആക�ന� xxx xxx xxx ലമൽ നപക�രതമ� �� അവക�=തപട പട�ക വസ��കള&� വകകള&� **S.A.Nos. 704 of 1997** **8** **and 739 of 2001** എനതറ ക��ല=ഷ� പ�ൻ��1ർച�വക�=�കള�യ 1� മമനർകൾക� �ന�ച�യ� അ1ങണതമന�� അനപക�ര� അവക�=തപ1�നല��1�ക�1� മമനർകള&ത1 ഉപജ�വനത�ന�� ഭ�വ�ജ�വ���ദ�വ;ദ�ക�� മറ&� ക�1��ൽ ഗ�ണകരമ�യ� ��ര�തമന�ണ�യ എനതറ സF�മ�യ അഭ�നപ�യവ�� ആനഗ9വ�� അന�സര�ച& 6000 പട�ക വസ��കൾക�� വകകൾക�� ക�1� ആറ�യ�ര� ര�പ� മ��പ& വ�� ന�ര�യണൻ 3 - 1� ഒപ& ന�ശയ�ച& മമനർകലള�1�ള നപല�;ക സലന9വ�ത�;� നപ��ഫ�ത�ലKൽ ഇഷദ�ന� തചയ��വന�ര�ക�ന��ന�ൽ എനതറ ക��ല=ഷ� മ��ൽ പട�ക വസ��വകകൾ മകവ=� വച&� വസ��വകകള&ത1 സർക�ർ കര� പഞ�യത� ന�ക��� മ����യ�� 1� മമനർകള&ത1 ലപര�ൽ ക�ട� ��ർത�� ലപര�മ�റ� പടയ� പ�1�ച&� പട�ക 2-ആ� നമർ വസ��വകകതള സ�ബന�ച�1ലത�ള� 1� �ങപന�മ�യ� ലയ�ജ�ലച� വ�ഭജ�ലച� എനതറ ക��ല=ഷ� നകയവ�നകയ സർവസF��ന�ലത�1�ക�1� അന�ഭവ�ച&തക�ള&ന��ന ഞ�ൻ ഇ��ന�ൽ പ�ർണമ�യ� സമ��ച&� പട�ക വസ��വകകള�ൽ ന�ൽപ&തകട�1ങള�ൽ ഞ�ൻ ഇലപ�ൾ ��മസ�ക�ന�� ലപ�ത� ��1ർന� ��മസ�ച&തക�ണ� തമ�ത� വസ��കള�ല�യ�� ആദ�യ� ഞ�ൻ �തന എ1�ക�ന��തണന�� ലമൽ നപക�രമ�ള ��മസ�ദ� സRകര;തതലയ� ആദ�യ� എ1�ക�ന��തനലയ� �1സ� തചയ&ന��ന�� ലച�ദ;� തചയ&ന��ന�� 1� മമനർകൾകT ഒര� നപക�രത���� അവക�=� ഉണ�യ�ര�ക�ന�ത� ന�� ഇ�� മ��� വ;വസ തചയ��� പട�ക വസ��വകകള�ൽ സ�പ��മ�യ� യ�ത��ര� വ�ധമ�യ ക1 ബ�ദ;�യ�� ഇത� ന�� ഉറപ& പറഞ� വ�=Fസ�പ�ച&� ഇ��ൽ നപ�;കത�ൽ വ�വര�ക�നത��ഴ�തക പട�കവസ��കള���ള സർവ�വക�= .” ബ�ദ;�കള&� ഇ��മ��� വ�തട�ഴ�ഞ�� എഴ��� �ന�ര�ക�ന� As seen from the extracted recitals of the document, the executant has stated categorically in the document that the minor children, in whose favour the document is executed, have been treated by him as his successors and were being brought up by him on that basis and the purpose of the document is to enable the minors to get his properties described therein on his death. The recitals of the document indicate that the possession of the properties has not been handed over by the executant to the minors. On the other hand, the document recites that the minors can take possession of the properties on the death of the executant and enjoy the properties thereafter, after effecting mutation in their favour. The document also recites that the executant will continue to reside in the building in the properties and take usufructs from the **S.A.Nos. 704 of 1997** **9** **and 739 of 2001** properties until his death. In other words, in terms of the document, none of the rights of ownership has been transferred by the executant in favour of the minors. On the other hand, the executant reserved in himself, in terms of the document, all the rights attached to the ownership of the properties and made his intention very clear that the minors would own and enjoy the properties only after his death. It is, therefore, clear that there was no transfer of ownership of the properties _in praesenti_ and the view taken by the courts below that the document will not amount to a gift and the same can be treated only as a Will, is perfectly in order. 5. The learned counsel for the appellant, placing reliance on the decision of this Court in _**Balan A. and Others v. Thanka and Others** [2013 (2) KHC 643]_ contended that though the nomenclature of the document is not decisive, the same is one among the circumstances which the court has to take into account while understanding the nature of the document and that the courts below have not reckoned the nomenclature of the disputed document at all while interpreting the document. It was also contended by the learned counsel that the expression “ക��ല=ഷ�” is not used in the context of divesting the properties, but only in the context of referring the minors as his successors and the courts below went wrong in understanding the said expression as one used in the context of divesting the properties. The **S.A.Nos. 704 of 1997** **10** **and 739 of 2001** learned counsel also contended that merely for the reason that the executant has reserved in himself the right to enjoy the properties during his lifetime, the document will not loose its character as a gift. It is further contended by the learned counsel, placing reliance on the last sentence in the portion of the document extracted above, that the same would establish beyond doubt that the intention of the executant was to transfer all his interest in the properties _in praesenti._ 6. I do not find any substance in the contentions advanced by the learned counsel for the appellants. True, in _**Balan A.** (supra),_ this Court observed that while interpreting disputed documents, the nomenclature also can be taken note of for understanding the intention of the party. I do not think that the said decision has any application in a case where the intention of the party is explicit otherwise from the recitals of the document. A close reading of the document as a whole does not indicate to me that the expression “ക��ല=ഷ�” contained in the document is not used in the context of divesting the properties as contended by the learned counsel. True, as contended by the learned counsel, merely for the reason that the executant has reserved in himself the right to enjoy the properties during his lifetime, the document will not loose its character as a gift. But, in the instant case, as indicated above, no rights whatsoever over the properties have been divested by the executant in favour of the minors in terms of the **S.A.Nos. 704 of 1997 and 739 of 2001** **11** document and as such, the said argument is irrelevant in the context. 7. Lastly, it was contended by the learned counsel for the appellants that the issue adjudicated by the courts below is academic as the executant of Ext.B1 document died pending suit and even if the document is construed as a Will, the properties would devolve on the very same parties. The learned counsel, however, conceded that though Ext.B1 has been cancelled by the executant, it is cancelled as if it is a gift and in so far as the executant has made it very clear in his pleadings in the suit that he wanted to give the properties to the minors after his death, the disposition would stand notwithstanding the cancellation of the document. It is unnecessary to consider the said issue as the same does not arise for consideration in these matters. 8. It is conceded that if the disputed document is not construed as a gift, but as a Will, the impugned decisions of the courts below are in order. In the circumstances, in the light of the aforesaid finding, the second appeals are devoid of merits and the same are, accordingly, dismissed. ## **Sd/-** ## **P.B.SURESH KUMAR** **SKS** **JUDGE**