Kosala Kumar v. Kosala Kumari and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940** ## **RSA.No. 160 of 2006** **AGAINST THE DECREE AND JUDGMENT IN AS 12/2000 OF PRINCIPAL SUB COURT,TRIVANDRUM** **AGAINST THE DECREE AND JUDGMENT IN OS 600/1997 of PRINCIPAL MUNSIFF COURT ,TRIVANDRUM** ## **APPELLANT/APPELLANT/PLAINTIFF:** **KOSALA KUMAR T.C.42/991-1, SUBHADRA NIVAS, MUTTATHARA,, VALLAKKADAVU P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.S.KALKURA SRI.HARISH GOPINATH SRI.MAHESH ANANDAKUTTAN SRI.M.S.KALESH** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** - **1 KOSALA KUMARI T.C.42/991, RAJEEV GANDHI LANE, VALLAKKADAVU, MUTTATHARA, THIRUVANANTHAPURAM, NOW RESIDING AT, T.C.42/991 (2), THARAYAVILAKOM, SIVA BHAVAN,, VALLAKKADAVU P.O., THIRUVANANTHAPURAM.** **2 RAJKUMAR S/O. CHANDRAMOULI T.C.42/991, RAJEEV GANDHI LANE,, VALLAKKADAVU, MUTTATHARA, THIRUVANANTHAPURAM, NOW RESIDING AT T.C.42/991 (2), THAYARAVILAKOM, SIVA BHAVAN, VALLAKKADAVU P.O., THIRUVANANTHAPURAM.** - **3 RATHEESH KUMAR S/O. CHANDRAMOULI T.C.42/991, RAJEEV GANDHI LANE, VALLAKKADAVU, MUTTATHARA, THIRUVANANTHAPURAM, NOW RESIDING AT T.C.42/991 (2) THAYARAVILAKOM, SIVA BHAVAN, VALLAKKADAVU P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.A.CHANDRA BABU SRI.U.S.GANESH KUMAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH RSA.161/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA 160/2006 & RSA.161/2006 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940** **RSA.No. 161 of 2006** **AGAINST THE DECREE AND JUDGMENT IN AS 11/2000 of PRINCIPAL SUB COURT,TRIVANDRUM DATED 30-11-2005** **AGAINST THE DECREE AND JUDGMENT IN OS 1673/1997 of PRINCIPAL MUNSIFF COURT ,TRIVANDRUM DATED 27.11.1999** ## **APPELLANT/APPELLANT/PLAINTIFF:** **KOSALA KUMAR, S/O.SIVADASAN, T.C.42/991-1, SUBHADRA NIVAS,, MUTTATHARA, VALLAKKADAVU P.O.,, THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.S.KALKURA SRI.HARISH GOPINATH** **SRI.M.S.KALESH SRI.V.VINAY MENON** ## **RESPONDENT/RESPONDENTS/DEFENDANTS:** **1 KOSALA KUMARI, D/O.SIVADASAN, T.C.42/991, RAJEEV GANDHI LANE, VALLAKKADAVU, MUTTATHARA, THIRUVANANTHAPURAM, NOW RESIDING AT, T.C.42/991 (2), THARAYAVILAKOM, SIVA BHAVAN,, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. 2 RAJKUMAR S/O. CHANDRAMOULI T.C.42/991, RAJEEV GANDHI LANE,, VALLAKKADAVU, MUTTATHARA, THIRUVANANTHAPURAM,, NOW RESIDING AT T.C.42/991 (2), THAYARAVILAKOM,, SIVA BHAVAN, VALLAKKADAVU P.O.,, THIRUVANANTHAURAM. 3 RATHEESH KUMAR S/O. CHANDRAMOULI T.C.42/991, RAJEEV GANDHI LANE, VALLAKKADAVU, MUTTATHARA, THIRUVANANTHAPURAM, NOW RESIDING, AT T.C.42/991 (2) THAYARAVILAKOM, SIVA BHAVAN,, VALLAKKADAVU P.O., THIRUVANANTHAPURAM.** **RSA 160/2006 & RSA.161/2006 3** **4 KOSALA RAMADAS S/O. SIVADASAN T.C.42/991, RAJEEV GANDHI LANE,, VALLAKKADAVU, MUTTATHARA, THIRUVANANTHAPURAM.** **BY ADVS. SRI.A.CHANDRA BABU SRI.U.S.GANESH KUMAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH RSA.160/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RSA 160/2006 & RSA.161/2006 4** ## **JUDGMENT** The plaintiff filed a suit for injunction initially in O.S.No.600/1997 before the Munsiff's Court, Thiruvananthapuram against trespass and causing obstruction to the peaceful possession of property having an extent of 8.070 cents obtained by virtue of Ext.A1 gift deed dated 17.4.1991. The gift deed was executed by his father out of the large extent of property having 25 cents. After the institution of the suit and during its pendency, the father executed a cancellation deed, Ext.A6 dated 26.3.1997 cancelling the gift in favour of the plaintiff under Ext.A1 document. Consequently, the plaintiff filed another suit for declaration of title over the plaint schedule property. Both the suits were dismissed by the trial court on the ground that Ext.A1 gift deed is not a gift in the eye of law, but it is only a Will, the last testament of the executant, the ## **RSA 160/2006 & RSA.161/2006 5** father. It was upheld by the First Appellate Court by dismissing the appeal and the suit. Aggrieved by the said judgment and decree, the plaintiff came up with these appeals. The question came up for consideration are: i) Whether the trial court and the first appellate court are justified in construing Ext. A1 gift deed as a Will left out by the executant simply on the reason that no possession was handed over to the beneficiary under the gift ? ii) What are the requirement for a valid gift under Section 122 of Transfer of Property Act? Mere retaining a possession by the donor would destruct the gift if it is otherwise satisfy all other ingredients which constitute a valid gift ? iii) Whether the first appellate court and the trial court justified in dismissing the suit by holding that Ext. A1 gift deed is only a Will and not a gift ? **RSA 160/2006 & RSA.161/2006 6** 2. Ext.A1 is the alleged document executed by the father in favour of the plaintiff. Going by the various recital and the nomenclature, it is clear that the document is named as a gift. It is a registered one. Various recital shows that the donor has agreed to give the property and to transfer the title over the property to the donee under the document with immediate effect. The donor has also authorised the donee to mutate the property in his name and to hold the property as full owner and title holder. The gift deed was executed by the father in the name of his son in consideration of love and affection. It is further recited in the document that during his lifetime the donor will retain possession and he will take usufructs from the property. Going by the recital contained in Ext.A1 document it is clear that what is reserved under the document by the donor is only to retain possession for the purpose of taking yield from the property for his livelihood. ## **RSA 160/2006 & RSA.161/2006 7** No right of alienation, no right of encumbrance either reserved or included anywhere in the document and no condition was also either attached or included to the gift. No condition imposed in Ext.A1 document restricting any right of transfer and ownership. But the donee was authorised to mutate the property in his name with immediate effect. In fact, there is nothing in Ext.A1 document to show that it is a conditional gift. There is nothing in the said document to show any right, title or interest either limited or otherwise reserved over the property by the donor except the right to hold possession of the property for the purpose of taking usufructs from the property till his death. So it cannot be treated as either as a conditional gift, will or testament. 3. The document is a pukka gift and not a Will or testament as found by the trial court and the first appellate court. The trial court and ## **RSA 160/2006 & RSA.161/2006 8** the first appellate court went wrong in appreciating the legal position settled by the Apex Court in _**Baby Ammal v. Rajan Asari (1997(1) KLT 340(SC), Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker and others (1997) 2 Supreme Court Cases 255)**_ and _**Khushalchand Swarupchand Zabak Jain, Jalgaon vs. Sureshchandra Kanhaiyalal Kochar and another (1995 Supp (2) Supreme Court Cases 36)**_ . The decision drawn in _**Baby Ammal v. Rajan Asari (1997(1) KLT 340(SC),**_ the question involved is the validity of a gift under which the donor has retained the title and possession in respect of the property. But the document was executed as a gift which would come into effect only after his death. In the instant case, no alienable interest or title retained by the plaintiff and it is not a conditional gift. So the legal preposition laid down in that decision cannot be applied in the instant case. The first appellate court and the trial court went wrong in **RSA 160/2006 & RSA.161/2006 9** applying the legal position in its correct perspective. 4. The decision drawn in _**Naramadaben Maganlal**_ _**Thakker v. Pranjivandas Maganlal Thakker and others (1997) 2 Supreme Court Cases 255)**_ what is involved is a conditional gift by which the donor has retained possession and enjoyment of property during his lifetime with a condition that the gift would come into effect and operative after his death. In that document a right to transfer of property absolutely by way of gift and right to take mesne profits also reserved. Only a limited right alone was given under the document to the donee. In the instant case, the donor has given and transferred full right, title and interest over the property in favour of the donee and the donee was authorised to mutate the property. No right of alienation or encumbering the property reserved in the document. Hence, the legal position applied in the above decision cannot be ## **RSA 160/2006 & RSA.161/2006 10** extended to the instant case. The third decision _**Khushalchand Swarupchand zabak jain, Jalgaon vs. Sureshchandra Kanhaiyalal kochar and another (1995**_ _**Supp (2) Supreme Court Cases 36)**_ relied on by both the trial court and the first appellate court also standing on a different footing, where in a sale deed was obtained by playing fraud and misrepresentation. It has nothing to do with the present case in hand. Both the trial court and the first appellate court went wrong in applying the legal position settled in its correct perspective. Earlier the Apex Court had the occasion to consider the validity and irrevocability on a gift in _**K.Balakrishnan v. K.Kamalam and others (2004 1**_ _**Supreme Court Cases 581**_ ). A recent decision drawn by the Apex Court on the issue would be a sufficient answer to the dispute involved in the lis. A three Bench of the Apex Court in _**Renikuntla Rajamma (D) by Lrs v. V.K.Saravanamma**_ _**(2014 KHC 4466)**_ have laid down the legal position ## **RSA 160/2006 & RSA.161/2006 11** that delivery of possession is not an essential condition for making a valid gift of immovable property. Needless to say that as per Section 3 of Transfer of Property Act when there is a registered document, it has been registered in accordance with the law in force and duly entered the document in the register kept by the registering authority it would amount to notice to all the beneficiaries there under. In other words, an execution and registration of a gift deed and its entry in the relevant records kept by the sub registrar office would amount to deemed notice to all the beneficiaries there under and notice itself amounts to acceptance if it has not been refused or rejected by the beneficiaries by their specific act by executing a document or making a declaration on that behalf. In the instant case a subsequent cancellation was executed after a lapse of seven years, after its acceptance. The donor has accepted the gift and **RSA 160/2006 & RSA.161/2006 12** mutated in his name. These aspects were not properly considered or taken into consideration either by the trial court and by the first appellate court. Hence, the decree and judgment of the trial court and the first appellate court in dismissing the suit are liable to be set aside. I do so, by allowing these appeals. 5. Hence, both the appeals are allowed. Both the suits are decreed in terms of the plaint by granting decree as prayed for. The parties shall suffer their respective costs of suit, the first appeal and the second appeal. **Sd/P.SOMARAJAN, JUDGE** pm **// TRUE COPY // PA TO JUDGE**