Mathew Kurian (deceased) and others vs Alice Skariah and Laila Skariah

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **RSA.No.1416 OF 2012** **AGAINST THE JUDGMENT AND DECREE DATED 16.08.2012 IN AS NO.397/2007 OF DISTRICT COURT, KOTTAYAM** **AGAINST THE JUDGMENT AND DECREE DATED 24.09.2007 IN OS NO.457/2002 OF PRINCIPAL SUB COURT, KOTTAYAM** **-----** ## **APPELLANT/APPELLANT/PLAINTIFF:** - **1 MATHEW KURIAN (DIED), AGED 69 YEARS, S/O.LATE MATHEW, CHEMMANAM THAMARAPPALLIL HOUSE, KUNNAPPALLY KARA, MULAKULAM VILLAGE, MULAKULAM P.O., KOTTAYAM DISTRICT.** ## **[DIED; LRs IMPLEADED]** ## *** ADDL. APPELLANTS 2 & 3** - **ADDL.A 2 T.K.THAMBI, (DIED) AGED 58 YEARS, S/O.LATE MATHEW KURIAN, CHEMMANAM THAMARAPPALLIL HOUSE, KUNNAPPALLY KARA, MULAKULAM VILLAGE, MULAKULAM P.O., KOTTAYAM DISTRICT.** - **ADDL.A 3 T.K.BABY, AGED 56 YEARS, S/O.LATE MATHEW KURIAN, CHEMMANAM THAMARAPPALLIL HOUSE, KUNNAPPALLY KARA, MULAKULAM VILLAGE, MULAKULAM P.O., KOTTAYAM DISTRICT.** ## **** ADDL. APPELLANTS 4 TO 6** - **ADDL.A 4 LEELA THAMBI, AGED 57 YEARS, W/O.LATE THAMBI, CHEMMANAM THAMARAPPALLIL HOUSE, KUNNAPPALLY KARA, MULAKULAM VILLAGE, MULAKULAM P.O., KOTTAYAM DISTRICT.** **ADDL.A 5 KURIAN THAMBI, AGED 59 YEARS, S/O.LATE THAMPI, CHEMMANAM THAMARAPPALLIL HOUSE, KUNNAPPALLY KARA, MULAKULAM VILLAGE, MULAKULAM P.O., KOTTAYAM DISTRICT.** **RSA.No.1416 OF 2012 -2-** **ADDL.A[6] JOSEPH THAMBI, AGED 24 YEARS, S/O.LATE THAMPI, CHEMMANAM THAMARAPPALLIL HOUSE, KUNNAPPALLY KARA, MULAKULAM VILLAGE, MULAKULAM P.O., KOTTAYAM DISTRICT.** ***(LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.A2 AND A3 AS PER ORDER DATED 27.03.2015 IN IA.608/2015).** ****(LEGAL REPRESENTATIVES OF DECEASED ADDL.2ND APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 4 TO 6 AS PER ORDER ORDER DATED 28.06.2017 IN IA.1443/2017.)** **BY ADVS. SRI.M.C.SEN (SR.) SRI.ALIAS M.CHERIAN** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 ALICE SKARIAH, AGED 53, D/O.SKARIAH, KANJIRAMPARA HOUSE, KUNNAPPALLY KARA, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN-686610. 2 LAILA SKARIAH, AGED 49, D/O.SKARIAH, KANJIRAMPARA HOUSE, KUNNAPPALLY KARA, MULAKKULAM VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT, PIN-686610. R1 BY ADV. SRI.DOMSON J.VATTAKUZHY, BY ADV. SRI.MATHEW JOHN R2 BY ADV. SRI.MATHEW JOHN (K)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = RSA No.1416 of 2012** ## **= = = = = = = = = = = = = = = = = = Dated this the 17[th] day of February, 2020** ## **JUDGMENT** The plaintiff in a suit for partition and declaration of title is the appellant. The suit was dismissed concurrently by the courts below. 2. The plaint schedule consists of three items; plaint 'A' schedule having an extent of 3.43 acres, plaint 'B' schedule with an extent of 1.52 acres and plaint 'C' schedule having an extent of 51.625 cents. 3. The plaint schedule properties originally belonged to Mathu, the predecessor-in-interest of the parties. Mathu had two sons - Kurian (plaintiff) and Scaria. Scaria predeceased Mathu. The defendants are the children of Scaria. 4. In the year 1977, Mathu conveyed the plaint schedule properties in favour of the defendants viz. the children of his predeceased son Scaria as per Ext.A4 gift deed. Subsequently Mathu executed Exts.A5 and A6 cancellation deeds purporting to RSA No.1416 of 2012 :- 2 :- cancel Ext.A4 gift. Thereafter, Mathu executed Ext.A8 Will bequeathing the plaint 'B' schedule to the plaintiff. On the death of Mathu, his wife executed Ext.A9 Will bequeathing the one-third right over the plaint 'A' and 'C' schedule properties that devolved on her as a legal heir of Mathu, in favour of the plaintiff. Thus, the plaintiff claims absolute title over the plaint 'B' schedule on the strength of Ext.A8 Will executed by Mathu, and 2/3[rd] (1/3 plus 1/3) right over plaint 'A' and 'C' schedules under Ext.A9 Will by the mother and as a legal heir of Mathu. 5. The defendants contend that Exts.A5 and A6 cancellation deeds are of no consequence since Ext.A4 gift was already accepted and consequently Exts.A8 and A9 Wills executed by Mathu and his wife respectively, who did not have title, are of no avail. 6. The courts below held that Ext.A4 gift has taken effect and that the subsequent cancellation is not valid. Accordingly the suit was dismissed. RSA No.1416 of 2012 :- 3 :- 7. Heard learned counsel Sri.Alias M. Cherian on behalf of the appellant and Sri.Mathew John, learned counsel for the respondents on the following substantial questions of law:- (i) Is Ext.A4 a gift or a Will. (ii)Is Ext.A4 gift bad for lack of proper attestation as mandated under law. (iii)Are Exts.A5 and A6 revocation deeds valid. 8. Ext.A4 was executed by Mathu in favour of the defendants considering the fact that they are the children (daughters) of his predeceased son Scaria and for their enjoyment on account of natural love and affection. Rights over the properties were conveyed to the donees on the very execution of the document. The document was to take effect immediately on its execution. The donees are given possession of the property under Ext.A4 and they could make improvements in the property. The donees are directed to effect mutation and pay tax in their names. Therefore, it is a transfer in praesenti. There is no force in the contention that RSA No.1416 of 2012 :- 4 :- Ext.A4 is a Will. Exhibit A4 is a gift. Substantial question of law no.(i) is answered accordingly. 9. It is contended that Ext.A4 gift lacks proper attestation and hence is not valid. The argument is that, Ext.A4 is not attested by 2 witnesses which is a mandatory requirement under Section 123 of the Transfer of Property Act. Though such an argument is advanced, I find that no such case was set up by the plaintiff till this stage. There was no pleading or challenge at the time of evidence regarding sufficiency of attestation of Ext.A4 gift. Apart from the donor, the Will shows three persons, one George, the licensee and the scribe as signatories at the time of execution. The learned counsel for the appellant would rely on the judgment of the Apex Court in Kamalam v. Ayyasamy [2001 (7) SCC 503] and also M.L.Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and Others [1969 (1) SCC 573] to contend that scribe or an identifying officer or registering officer cannot be an attesting witness. The said decisions does not lay down any proposition that the scribe or a RSA No.1416 of 2012 :- 5 :- registering officer cannot be an attesting witness. The question is essentially as to whether they signed the document with an intention to attest, ie: “animo attestandi”. Nothing prevents them from signing the document as attestors also. It is trite that even a scribe or a licensee could be an attesting witness and the question is whether they signed animo attestandi, that is with an intention to attest. No such challenge having been raised, there was no occasion for the defendants to prove that the document was sufficiently attested by two witnesses. The question is purely one of fact and is not available to be urged for the first time in the second appeal. Substantial question of law no. (iii) is answered accordingly. 10. Now coming to the validity of Exts.A5 and A6 cancellation deeds, the gift, once it is accepted by the donee, cannot be cancelled unless there is such power retained by the donor, contingent on any event which may occur. According to the plaintiff, Ext.A4 gift deed contained a stipulation that the properties shall not be RSA No.1416 of 2012 :- 6 :- alienated during the life time of the donor. The defendants were attempting to alienate the property and therefore, the contingency has occurred and the gift is liable to be cancelled, submits the learned counsel. Learned counsel for the appellant relying on the judgments of the Apex Court in Sarojini Amma S. v. Velayudhan Pillai Sreekumar [2018 (14) Scale 339] and Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker and Others [1997 (2) SCC 255] and also the judgment of this Court in Radhamani Amma and Another v. Vimala Kumari [2017 4 KLJ 378] contend that, Ext.A4 gift which contains a reservation, could be cancelled by the donor. The judgments relied on by the learned counsel does not have any relevance to the facts at hand. To enable cancellation of a gift, the condition must be a valid one. Once the donees have been given the absolute title over the property, there cannot be a subsequent restraint on alienation. Such clauses are void under Sections 10 and 11 of the Transfer of Property Act and is liable to be ignored by the donee. The clause relating to restraint on RSA No.1416 of 2012 :- 7 :- alienation, as incorporated in Ext.A4 gift, is not valid and the donees/defendants are entitled to ignore the same. 11. Learned counsel for the appellant would submit that Ext.A4 reserves a right of way through the property dealt with therein to the adjoining property and therefore, it is an onerous gift. Ext.A4 gift was executed in the year 1977 and Exts.A5 and A6 cancellation deeds are executed in the year 1997. The property was mutated in the name of the donees-defendants and they paid tax ever since the execution of Ext.A4. The possession of the property was handed over to the donees. Considering Ext.A4 to be an onerous gift, there is no case for any of the parties that the defendants were not prepared to accept the burden of right of way imposed on the property. The evidence is overwhelming that the gift was accepted and took effect much prior to Exts.A5 and A6 cancellation deeds. Therefore, the cancellation is of no avail and does not affect the title of the donees. Exts.A5 and A6 cancellation deeds having been held RSA No.1416 of 2012 :- 8 :- against, no title vested with the testators to bequeth under Exts.A8 and A9 Wills. Substantial question of law (iii) is answered accordingly. The courts below have rightly held against the plaint claim. There is no merit in the second appeal and the same is accordingly dismissed. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge