KESAVAN GANGADHARAN and others v. KESAVAN RAJENDRAN and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 26TH DAY OF JULY 2012/4TH SRAVANA 1934 RSA.No. 840 of 2005 ( ) ----------------------AS.45/1996 of ADDL. DISTRICT COURT (ADHOC), FAST TRACK-II, PATHANAMTHITTA OS.505/1993 of MUSNIFF COURT,ADOOR APPELLANT(S)/RESPONDENTS/PLAINTIFFS.: ----------------------------------------------- 1. KESAVAN GANGADHARAN, S/O.KESAVAN, VAYANAKKUNNIL MURUPPEL VEEDU, ANGADICKAL THEKKEKKARA MURI, ANGADICKAL VILLAGE. 2. KUTTYAMMA DEVAKIAMMA, W/O.GANGADHARAN, VAYANAKUNNIL MURUPPEL VEEDU, ANGADICKAL THEKKEKKARA MURI, ANGADICKAL VILLAGE. 3. DEVAKIAMMA USHA, D/O.DEVAKIAMMA, VAYANAKKUNNIL MURUPPEL VEEDU, ANGADICKAL THEKKEKKARA MURI, ANGADICKAL VILLAGE. 4. LEELAMONY @ PUSHPALATHA, D/O.DEVAKIAMMA, VAYANAKKUNNIL MURUPPEL VEEDU, ANGADICKAL THEKKEKKARA MURI, ANGADICKAL VILLAGE. 5. GANGADHARAN ASHOKAN, S/O.GANGADHARAN, VAYAKKUNNIL MURUPPEL VEEDU, ANGADICKAL THEKKEKKARA MURI, ANGADICKAL VILLAGE. BY ADV. SRI.LIJU.V.STEPHEN RESPONDENT(S)/APPELLANTS/DEFENDANTS: ------------------------------------- 1. KESAVAN RAJENDRAN, S/O.KESAVAN, VILAYIL VEEDU, IYKAD MURI, KODUMON VILLAGE. 2. KUTTYAMMA INDIRAMMA, W/O.RAJENDRAN, VILAYIL VEEDU, IYKAD MURI, KODUMON VILLAGE. 3. INDIRAMMA AMBILY, D/O.INDIRAMMA, - VILAYIL VEEDU, IYKAD MURI, KODUMON VILLAGE. BY ADV. SRI.S.ABHILASH - R1 TO R3 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-07-2012, ALONG WITH RSA. 886/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. Nos.840 & 886 of 2005 -------------------------------------Dated this the 25[th] day of July, 2012.** ## **JUDGMENT** These appeals arise from the common judgment and decree of learned Additional District Judge (Adhoc), Fast Track-II, Pathanamthitta in A.S.Nos.45 of 1996 and 44 of 1996 respectively, reversing the judgment and decree of learned Munsiff, Adoor in O.S.Nos.505 of 1993 and 82 of 1991, respectively. 2. The appellants in R.S.A.No.840 of 2005 filed O.S.No.505 of 1993 for a declaration that Ext.A1, settlement-cum-cancellation deed No.301 of 1971 executed by the late Kesavan is void, that they have right, title and interest over the property as per Ext.B1, settlement deed No.4198 of 1969 executed by the said Kesavan and for other reliefs. The 1[st] respondent in R.S.A.No.840 of 2005 filed O.S.No.82 of 1991 against the 1[st] appellant in R.S.A.No.840 of 2005 originally for a decree for prohibitory injunction claiming that the suit property which takes in the property referred to in O.S.No.505 of 1993 also belongs to and is in his possession and enjoyment as per Ext.A1, settlement-cumcancellation deed No.301 of 1971 **.** Later, in view of the contentions raised by the appellant in R.S.A.No.886 of 2005, plaint in O.S.No.82 of 1991 was amended to incorporate a prayer for recovery of possession, fixation of boundary and for prohibitory injunction. 2 RSA Nos.840 & 886/2005 3. The trial court dismissed O.S.No.82 of 1991 and allowed O.S.No.505 of 1993. The respondents challenged that common judgment and decree before the first appellate court in A.S.Nos.44 of 1996 and 45 of 1996. The first appellate court on a finding that the appellants were not even aware of Ext.B1, settlement deed No.4198 of 1969, that the said settlement deed has not taken effect and that at any rate, by the said settlement deed, the appellants did not get absolute title over the property, reversed finding of the trial court and granted a decree in O.S.No.82 of 1991. O.S.No.505 of 1993 was dismissed. Thus, judgment and decree of the first appellate court are under challenge in these Second Appeals. 4. The following substantial questions of law are framed for a decision: i. Whether a gift deed validly executed by the donor accepted by the donee and in the absence of a revocable clause, the donor could unilaterally revoke that gift that has already taken effect? ii. Whether the express implication of acceptance narrated in the prior and subsequent gift deeds and the evidence adduced by DW1 is sufficient to prove acceptance of the gift by the prior donee? 3 RSA Nos.840 & 886/2005 iii. Whether remittance of land tax or effecting of mutation on the basis of a void gift deed gives right or legal title to the donee of the void gift deed? iv. Whether reserving of life-interest by the donor in the gift deed ipso facto makes it a revocable gift or gives authority to the donor to revoke the gift deed which has had already taken effect? 5. It is not disputed that 2.64 acres, a portion of which forms the disputed property originally belonged to the late Kesavan. While so, the said Kesavan executed Ext.B1, settlement deed No.4198 of 1969. As per the said settlement deed, it is claimed by the appellants that 1.20 acres was settled exclusively in favour of the 1[st] appellant in R.S.A.No.840 of 2005 and the one acre on its immediate south was settled jointly in favour of the appellants in R.S.A.No.840 of 2005. It is the further case of the appellants that of the remaining 44 cents with the late Kesavan, he assigned 34 cents to the 1[st] respondent who sold it as per Ext.B2, assignment deed. The remaining 10 was given to the grandson by the late Kesavan as per Ext.B3. It is contended by the appellants that by virtue of Ext.B1, settlement deed, they are in possession and enjoyment of the 2.20 acres (made up of 1.20 acres exclusively given to the 1[st] appellant and the one acre given to the appellants jointly) which lie contiguous within common boundary. It is while so that the late Kesavan executed Ext.A1, settlement-cum-cancellation 4 RSA Nos.840 & 886/2005 deed. According to the appellants, Ext.A1, settlement-cum-cancellation is invalid as the late Kesavan had no right, title or interest over the 2.20 acres so that he could execute Ext.A1, settlement-cum-cancellation deed. It is also the case of the appellants that since Ext.B1, settlement was not conditional and no power of revocation was retained by the late Kesavan, he had no right to unilaterally cancel Ext.B1, settlement deed No.4198 of 1969. 6. The learned counsel for the appellants has placed reliance on the decisions in **Vannathi Valappil Janaki and others v. Puthiya Purayil Paru and others (AIR 1986 Kerala 110), Asokan v. Lakshmikutty (2008 (1) KLT 54)** and **Cherukat vijayalakshmi v. Cherukat Gopalakrishna Menon (2010 (4) ILR Kerala 485)** . It is contended that so far as Ext.B1, settlement deed No.4198 of 1969 is not onerous, only slight evidence is sufficient to prove its acceptance. It is contended that by Ext.B1, the appellants were put in possession of the 2.20 acres. At any rate, the appellants got constructive possession of the said property by delivery of Ext.B1, the original settlement deed to them. It is pointed out that the family house is situated in the 2.20 acres where, before, at the time of, and after Ext.B1, the appellants are residing. The learned counsel submitted that the late Kesavan and the 1[st] respondent also resided in the family house for some time after Ext.B1. During 1971, the 1[st] respondent started living with a married lady elsewhere and then the late Kesavan also started residing with the 1[st] respondent. It is while so, that Ext.A1, settlement-cum-cancellation 5 RSA Nos.840 & 886/2005 deed No.301 of 1971 was executed. The learned counsel argues that the only right the late Kesavan, the donor has retained while executing Ext.B1 was to reside in the family house, take yield from the 2.20 acres and if necessary, to lease out the right to take ususfructus and get the income. It is further argued by the learned counsel that even the recitals in Ext.A1 would show that the appellants had knowledge about Ext.B1 and that there is no case for the respondents or the late Kesavan (in Ext.A1) that Ext.B1 is not a settlement deed. It is also pointed out by the learned counsel that cancellation of Ext.B1, by Ext.A1 is not for the reason that Ext.B1 has not taken effect but for the only reason that retaining Ext.B1 as such was not in the interest of the late Kesavan. It is argued that the said ground is not sufficient to cancel Ext.B1 which has already taken effect. The learned counsel prayed that the judgment and decree of the first appellate court be set aside and that of the trial court be restored. 7. The learned counsel for the respondents contended that there is no evidence to show that the appellants were even aware of Ext.B1, settlement deed until the institution of suit. It is argued that though in Ext.B1, it is provided that appellants could effect mutation, pay revenue and obtain patta, nothing of that sort has happened. These circumstances indicated that Ext.B1 has not come into effect. It is argued that as per Ext.B1, absolute right over the 2.20 acres was to go to the appellants only 6 RSA Nos.840 & 886/2005 after the death of Kesavan which meant that until the death of Kesavan, he continued to be the owner of the property. Hence it was open to the late Kesavan to cancel Ext.B1 as done by Ext.A1. 8. Ext.B1 is a settlement deed. A settlement would operate as a gift. The settled position of law as regards acceptance of a gift which is not onerous is that only slight evidence is sufficient to prove its acceptance. In appropriate cases even the recitals in the document is sufficient to show that the gift has taken effect. That is because, when the gift or settlement is not onerous, the donee is aware of the gift, was capable and had the opportunity of accepting it, the presumption is that the donee would accept it. In Halsbury's Laws of England , 4[th] Edition (Vol.20) paragraph 48, quoting from London and County Banking Co. v. London and River Plate Bank ((1888) 21 QBD 535 at page 542) it is stated: ## “............ A man may be fairly presumed to assent to that to which he in all probability would assent if the opportunity of doing so were given to him”. (See also **Vannathi Valappil Janaki and others v. Puthiya Purayil Paru** **and others** (supra) where it is held that when the gift of immovable property is not onerous, only slight evidence is sufficient for establishing its RSA Nos.840 & 886/2005 7 acceptance by the donee. The same view is taken in **Cherukat vijayalakshmi v. Cherukat Gopalakrishna Menon** (supra)). In **Asokan v.** **Lakshmikutty** (supra), it was a case where following the gift in favour of the son, certain directions were made in the document to be complied with by the son. The son either refused or failed to comply with the said directions. The question arose whether in the said circumstances, the donor could cancel the gift? It was held that after a proper gift is made, if the donee does not comply with the directions that would not empower the donor to cancel the gift. It was also held that the averment in the gift deed in regard to the handing over of possession is sufficient proof of acceptance by the donee. In **Balakrishnan v. Kamalam (2004 (1) KLT 623)** , it was a case of gift of property by the mother to the minor son. Later, the mother cancelled that gift by a deed of cancellation. The Supreme Court observed that nondelivery of possession, non-acceptance of any right of ownership over it and failure by the donee on attaining majority in getting his name mutated are not circumstances negativing the presumption of acceptance by the minor. 9. In **Omana v. Kesavan** (supra) relied on by the learned counsel for the respondents the gift was conditional and the donor retained possession and enjoyment of the property. He also retained the right to mortgage the property during his life time. There was no evidence of 8 RSA Nos.840 & 886/2005 acceptance of the gift. In that circumstances cancellation of the gift and execution of the sale deed in favour of others was found valid since there was no valid gift. 10. Ext.B1 describes itself as a settlement deed. The relevant recitals are: "..................ന�ങള�� ധനന�ശയ� ച�യ����ന�ര���ന��ന�ല പട�ക 1-)0 ന�നര വസ��� ന�ങള�ല ഒന�� കക� ഗ�ഗ�ധരന പപത�(കമ�യ�� രണ�� നനര വസ��� ന�ങള ആറ�തപര�� ക-ട� ക-ട�യ�� ഇന� മ��ല തപര�ല ക-ട� കര� �0ര1�� പടയ� പ�ട�ച�� എചനറ പ�ല��ല� പ-ര5�വക�ശ� ആ��യ�� സര7 സ8��പ9മ�യ� അന�ഭവ�ച� ചക�ളണ�. പട�ക വസ����ള�ചല ആദ�യ� തനര�ചടട���ന��ന�� പ�ടതമല?�ച� വ�ങ �ന��ന�� ഇ��ലച?ട ചകട�ട1�ല സ8��പ9മ�യ� ��മസ���ന��ന�� എന��� അവക�ശവ �� അധ�ക�രവ �� ഉണ�യ�ര���ന��ണ�. വസ����ള�ല യ�ച��ര � കടബ�ധ(�യ�മ�ല. ........................" 11. The next document is Ext.A1, the settlement-cum-cancellation deed No.301 of 1971 executed by the said Kesavan. There, it is recited: 9 RSA Nos.840 & 886/2005 ".............. 4198-)0 നനറ�യ� ................. |ന�ങള�ല 1 മ��ല 6 വചര കക�കള�ചട തപര��മ�പ�� ഒര�| |---| |ധനന�ശയ�ധ�ര� രജ�സര ച�യ�വ�ന ഇടയ�യ�ട�ള���| |ആക�ന�. തമല നനര<br>ധനന�ശയ�ധ�ര��ല1�| |എതന�ചട�1� ��മസ�ച�ര�ന ന�ങള�ല 1 ഉ� 2 ഉ�| |കക�കള�ചട ��ല�പര(പപക�രവ�� തപപരണയ�മന�സര�ച��| |അന� അവ�വ�ഹ��ന�യ�ര�ന 7-)0 കക���| |ഇ��ലചപട വസ���വ�ചനറ ഒര�ശ� തപ�ല�� ചക�ട���ച�| |ട� ധനന�ശയ�ധ�ര�<br>രജ�സര<br>ച�യ��<br>�| |തപ�യ�ട�ള���<br>................ <br>ട�| |ധനന�ശയ�ധ�ര��ല1� എതന�ട<br>�ണ�യ�ര�ന| |ചപര�മ�റ1�ന�� സ�രകണയ��<br>�� സ�രമ�യ<br>മ�റ�| |സ�ഭവ�ച�ര���ന��ചക�ണ� എചനറ<br>രകചയ| |മ�നന�ര1� തമല നനര ധനന�ശയ�ധ�ര� പ-ര5മ�യ�| |റദ� ച�യ���<br>ഈ<br>ധനന�ശയ�ധ�ര�<br>എഴ<br>���| |വയ���ന��ക�ന�. .............'| 12. Kesavan, the executant of Exts.B1 and A1 died in the year, 1977. It is not disputed that the appellants produced Ext.B1, original settlement deed in the trial court. 10 RSA Nos.840 & 886/2005 13. It is relevant to note from Ext.B1 that the late Kesavan executed the “settlement deed” in favour of the appellants stating that he has “settled” the 2.20 acres in their favour. When it is stated in Ext.B1 that the said property is “settled” in favour of the appellants, it follows that the donor/settler has divested himself of all his right, title, interest and possession of the 2.20 acres and conveyed it to the donees. This is further clear from the recital in Ext.B1 that from the date of Ext.B1, the donees are to effect mutation, pay the revenue and obtain the patta. The donees could do so only if title had passed to them. If there was no transfer of title in favour of the appellants, it was not at all necessary to state in Ext.B1 that there is no encumbrance over the property. 14. It is true that the donor has reserved a right to reside in the family house in the 2.20 acres covered by Ext.B1 and to take ususfructus from the property. He has also retained the right to lease out the right to take ususfructus from the property. It is within the power of a life estate holder even to grant a lease of the property subject to the limitation that such lease would stand terminated on the life estate ceasing to exist. The recital in Ext.B1, after stating that the property is 'settled' in favour of th appellants who are also permitted to effect mutation, pay revenue and obtain patta in their own name that the appellants are to enjoy the property absolutely after the death of the late Kesavan is only referable to the right, though limited, Kesavan had retained with him to reside in the family house, take the 11 RSA Nos.840 & 886/2005 ususfrctus or lease out that right and take the income and the settlement being subject to that right of Kesavan during his life time. Such reservations are common in settlement/gift deeds and does not affect or cut down the right, title and interest transferred. In this case, what the donor has retained is only a right to take the ususfructus from the property or lease out that right to others and to reside in the building in 2.20 acres. I do not find any recital in Ext.B1 that the donor retained possession of the property. Even otherwise, it is not as if there must be a physical delivery of possession to the donee complete a settlement/gift. There could even be a valid gift of the property in the possession of a trespasser provided the donor either obtains and gives possession of the property to the donee or does all that he can to put the power of the donee to obtain possession. The donor may lawfully make a gift of the property in the possession of a lessee or a mortgagee. Delivery of constructive possession of the property to the donee is sufficient. (See **Abdul Rahim v. Abdul Zabar - 2009 (2) KLT SN.88 - Case No.88SC** ). 15. Respondents have a plea that the appellants were not aware of Ext.B1 until they instituted the suit against the appellants. That plea should fail for more reasons than one: firstly, in Ext.A1, the late Kesavan states that he executed Ext.B1 at the instigation of the appellants 1 and 2 in R.S.A.No.840 of 2005. If so, they should be aware of Ext.B1. Secondly, as aforesaid all the parties hereto and the late Kesavan were residing under the 12 RSA Nos.840 & 886/2005 same roof dining together and there is no reason to think that the late Kesavan kept the execution of Ext.B1 in secret and; thirdly, the appellants produced in court the original settlement deed (Ext.B1) there being no case for the respondents or evidence that appellants got custody of Ext.B1 stealthily. Ext.B1 shows that there is divestiture of the right, title and interest of the donor in favour of the donees on the date of Ext.B1 and consistent with that divestiture in favour of the donees, they were authorised and permitted to effect mutation, pay revenue and obtain patta in their names. True, it is also stated that the donees are to enjoy the property absolutely after the death of the donor. But that recital does not in any way derogate from the divestiture already made and can only mean that the gift is subject to the right that the donor has reserved for himself in Ext.B1 and stated above. 16. It is an admitted fact that before,at the time of and after Ext.B1, the parties hereto and the late Kesavan were residing in the family house in 2.20 acres. It is only later that the 1[st] respondent and the late Kesavan shifted residence. In such a situation at the time of Ext.B1, a physical delivery of possession of the 2.20 acres was not warranted or expected. I must also bear in mind that delivery of possession could be constructive. When the original gift deed (Ext.B1) was handedover to the 13 RSA Nos.840 & 886/2005 donees who were permitted to effect mutation, pay revenue and obtain patta in their name, that indicated handing over of constructive possession of the property to the donees. 17. The cancellation of Ext.B1 by Ext.A1, settlement-cumcancellation deed was not for the reason that Ext.B1 has not taken effect. Ext.A1 does not state so. The late Kesavan himself had no case in Ext.A1 that Ext.B1 had not taken effect. In paragraph 30 of the decision in **Balakrishnan v. Kamalam** (supra) it is observed: “In the instant case, non-mention of the fact of non-acceptance of the gift by the donee in the cancellation deed reinforces our inference that the donor mother herself, at the time of cancellation of the gift, never assumed that the gift was not accepted and, therefore, it is revocable.” There is also no case for anybody that Ext.B1 is not a settlement. The reason stated in Ext.A1 for cancellation of Ext.B1 is that at the time of Ext.B1, settlement deed was executed, nothing was given to the 1[st] respondent (out of the 2.20 acres dealt with under Ext.B1), that the attitude of the appellants towards the late Kesavan at the time of Ext.B1 gradually changed, became worse and hence for protection of the interest of Kesavan, 14 RSA Nos.840 & 886/2005 it was necessary to cancel Ext.B1. That reason, I am unable to think afforded authority or right for the late Kesavan to cancel Ext.B1. If Ext.B1 had not come into effect, there was also no necessity to cancel it. 18. It is relevant to note that subsequent to Ext.B1, the late Kesavan assigned 34 cents from the rest of the property belonging to him to the 1[st] respondent (as evidenced by Ext.B2) and the remaining ten cents to his grandson as per Ext.B3. This also indicated that Kesavan was disposing of the property belonging to him. The mere fact of non-mutation of the property in the name of the appellants, non payment of revenue or non obtaining of patta (so far as the appellants had the right to do so) cannot lead to any inference that the settlement as per Ext.B1 was not accepted or acted upon as held in **Balakrishnan v. Kamalam** (supra). In these circumstances and particularly as Ext.B1, settlement is not onerous, I am persuaded to accept the argument of the learned counsel for the appellants that it was accepted and acted upon by the appellants. 19. Ext.B1 is not conditional on the donees looking after the late Kesavan, nor Ext.B1 empowered the late Kesavan to revoke Ext.B1 under any circumstances. In the circumstances revocation of Ext.B1 could only through the court. The late Kesavan had no right or authority to cancel Ext.B1 after it was accepted. I therefore hold that the cancellation of Ext.B1 as per Ext.A1 is invalid. The settlement made under Ext.A1 to the extent it 15 RSA Nos.840 & 886/2005 concerned the 2.20 acres settled as per Ext.B1 is invalid. The finding of the first appellate court to the contrary is erroneous. The first appellate court, without reference to the recitals in Exts.A1 and B1 and the position of law on the point has reversed the finding entered by the trial court that Ext.B1 stands even after Ext.A1. It follows that the respondents are not entitled to the reliefs prayed for in O.S.No.82 of 1991 and that the appellants in R.S.A.No.840 of 2005 are entitled to a decree as prayed for in O.S.No.505 of 1993. 20. The substantial questions of law framed are answered as above. Resultantly these Second Appeals are disposed of as under: A. R.S.A.No.840 of 2005 is allowed as under: i. Judgment and decree of the learned Additional District Judge, Pathanamthitta in A.S.No.45 of 1996 are set aside. ii. Judgment and decree of the learned Munsiff, Adoor in O.S.No.505 of 1993 are restored. B. R.S.A.No.886 of 2005 is allowed as under: 16 RSA Nos.840 & 886/2005 i. Judgment and decree of the learned Additional District Judge, Pathanamthitta in A.S.No.44 of 1996 are set aside. ii. Judgment and decree of the learned Munsiff, Adoor in O.S.No. 82 of 1991 are restored. iii. O.S.No.82 of 1991 of the court of learned Munsiff, Adoor will stand dismissed. C. Parties shall suffer their costs through out. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**