M.C. Poulose v. Chinnamma and others (Regular Second Appeal No. 130 of 2024)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 22[ND] DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 ``` ``` RSA NO. 130 OF 2024 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 17.11.2023 IN A.S.NO.44 OF 2022 OF SUB COURT PERUMBAVOOR ARISING OUT OF THE JUDGMENT AND DECREE DATED 15.10.2022 IN O.S.NO.505 OF 2013 OF MUNSIFF COURT, PERUMBAVOOR ``` ## **`APPELLANT/APPELLANT/8TH DEFENDANT:`** ``` M.C.POULOSE AGED 72 YEARS PENSIONER, S/O.CHERIAN, POOKKOTTUVADAKKE MUTHUKADAN HOUSE, PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562 ``` ``` BY ADVS. SHEEBA MARIAM. J. ARUNDHATHY K. ALIAS ``` ``` RESPONDENTS/RESPONDENTS 1, 4 TO 6, 9 TO 12, 14 TO 19 AND 22 TO 32/PLAINTIFF AND ADDITIONAL DEFENDANTS 4 TO 6, 10 TO 13, 15 TO 20, 23 TO 33: ``` |**`1`**|**`CHINNAMMA`**| |---|---| ||**`AGED 62 YEARS`**| ||**`W/O.POULOSE, MANAKKAKUDY HOUSE, AIMURY KARA,`**| ||**`KOOVAPPADYVILLAGE, PIN - 683544`**| |**`2`**|**`CHINNAMMA`**| ||**`AGED 76 YEARS`**| ||**`D/O.PAILY, POOKKOTTUVADAKKE MUTHUKADAN HOUSE, PAZHANGANAD`**| ||**`KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`3`**|**`GEORGE`**| ||**`AGED 74 YEARS`**| ||**`S/O.PAILY, POOKKOTTUVADAKKE MUTHUKADAN HOUSE, PAZHANGANAD`**| ||**`KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`4`**|**`SARAMMA`**| ||**`AGED 68 YEARS`**| ||**`D/O.PAILY, POOKKOTTUVADAKKE MUTHUKADAN HOUSE, PAZHANGANAD`**| ||**`KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| ``` RSA NO. 130 OF 2024 2 ``` |**`5`**|**`CHINNAMMA`**| |---|---| ||**`AGED 67 YEARS`**| ||**`D/O.CHERIAN, KUTTANAL HOUSE, ERAPPURAMPARA KARA,`**| ||**`PATTIMATTOM VILLAGE, PIN - 683562`**| |**`6`**|**`MARY`**| ||**`AGED 52 YEARS`**| ||**`D/O.CHERIAN, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`7`**|**`ABY`**| ||**`AGED 50 YEARS`**| ||**`S/O.CHERIAN, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`8`**|**`JOBY`**| ||**`AGED 47 YEARS`**| ||**`S/O.CHERIAN, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAG, PIN - 683562`**| |**`9`**|**`BABY`**| ||**`AGED 67 YEARS`**| ||**`W/O.ABRAHAM, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`10`**|**`BASIL`**| ||**`AGED 38 YEARS`**| ||**`S/O.ABRAHAM, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`11`**|**`BENSIL`**| ||**`AGED 46 YEARS`**| ||**`S/O.ABRAHAM, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`12`**|**`PAULOSE`**| ||**`AGED 58 YEARS`**| ||**`S/O.KURIAKKO, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`13`**|**`CHINNAMMA`**| ||**`AGED 67 YEARS`**| ||**`D/O.KURIAKKO, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`14`**|**`LISSY`**| ||**`AGED 57 YEARS`**| ||**`D/O.KURIAKKO, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| ``` RSA NO. 130 OF 2024 3 ``` |**`15`**|**`SOOSANNA`**| |---|---| ||**`AGED 76 YEARS`**| ||**`W/O.PAULOSE, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`16`**|**`DEEPA`**| ||**`AGED 42 YEARS`**| ||**`D/O.PAULOSE, POOKKOTTUVADAKKE MUTHUKADAN HOUSE,`**| ||**`PAZHANGANAD KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`17`**|**`MARY JACOB`**| ||**`AGED 65 YEARS`**| ||**`MUTHUKADAN HOUSE, VYTTILA P.O., BHAGATH SING ROAD,`**| ||**`ERNAKULAM, PIN - 682019`**| |**`18`**|**`JERRY M. JACOB`**| ||**`AGED 29 YEARS`**| ||**`MUTHUKADAN HOUSE, VYTTILA P.O., BHAGATH SING ROAD,`**| ||**`ERNAKULAM, PIN - 682019`**| |**`19`**|**`SOSAMMA`**| ||**`AGED 77 YEARS`**| ||**`W/O.YACOB, POOKKOTTUVADAKKE MUTHUKADAN HOUSE, PAZHANGANAD`**| ||**`KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`20`**|**`SHEELU`**| ||**`AGED 50 YEARS`**| ||**`D/O.YACOB, POOKKOTTUVADAKKE MUTHUKADAN HOUSE, PAZHANGANAD`**| ||**`KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`21`**|**`JILU`**| ||**`AGED 47 YEARS`**| ||**`D/O.YACOB, POOKKOTTUVADAKKE MUTHUKADAN HOUSE, PAZHANGANAD`**| ||**`KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`22`**|**`ANEETHA`**| ||**`AGED 44 YEARS`**| ||**`D/O.YACOB, POOKKOTTUVADAKKE MUTHUKADAN HOUSE, PAZHANGANAD`**| ||**`KARA, KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`23`**|**`K.V. KURIAKOSE`**| ||**`AGED 82 YEARS`**| ||**`S/O K.K. VARKEY, KALAPURACKAL HOUSE, POYYAKKUNNAM KARA,`**| ||**`KIZHAKKAMBALAM P.O., KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| |**`24`**|**`K.C. VARGHESE`**| ||**`AGED 84 YEARS`**| ||**`S/O.K.K. CHACKO, KALAPURACKAL HOUSE, POYYAKKUNNAM KARA,`**| ||**`KIZHAKKAMBALAM P.O., KIZHAKKAMBALAM VILLAGE, PIN - 683562`**| ## **`RSA NO. 130 OF 2024 4`** ``` 25K.V.SUJA AGED 58 YEARS ``` ``` D/O.K.K. PAULOSE, KALAPURACKAL HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM P.O., KIZHAKKAMBALAM VILLAGE, PIN - 683562 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 130 OF 2024 5 ``` ## **JUDGMENT** Dated this the 22[nd] day of March, 2024 8[th] defendant in O.S.No.505/2013 on the files of the Munsiff Court, Perumbavoor, assails decree and judgment in the above case, as confirmed by the learned Sub Judge, Perumbavoor in A.S.No.44/2022. 2. Heard the learned counsel for the appellant/8[th] defendant on admission. 3. I have perused trial court as well as appellate court judgments. 4. Originally, suit was filed by Chinnamma, who is the wife of Poulose, claiming 5/6 share over the plaint schedule property, contending that Poulose obtained the same on the strength of a gift deed No.4508/1987 and he died _intestate_ . Accordingly, the case of the plaintiff before the trial court was that the remaining share would go to the mother of Poulose. 5. Initially, the mother filed written statement and ``` RSA NO. 130 OF 2024 6 ``` disputed the gift deed in favour of Poulose, mainly contending that, by virtue of the cancellation deed No.2813/ 87, the so called gift was cancelled by Varkey, who is the executant of the gift deed in favour of Poulose. Soon after the death of the 1[st] defendant, additional defendants 3, 5, 7, 8, 9, 12, 13, 15, 16, 17 and 18 adopted the contention raised by the 1[st] defendant and defendant Nos.8 and 18 filed an additional written statement, contending that the suit was barred by limitation. 6. Trial court recorded evidence. PW1 was examined and Exts.A1 to A3 series were marked on the side of the plaintiff. DW1 was examined and Exts.B1 and B2 series were marked on the side of the defendant. Finally, the trial court granted decree as under: _In the result, the preliminary decree is hereby passed._ _1. The plaint schedule property shall be divided into 4 equal shares by metes and bounds._ _2. Out of which, the plaintiff is to be allotted with such 2/4 share over the property (one half share_ ``` RSA NO. 130 OF 2024 7 ``` _entitled to by the plaintiff). The defendants 31 to 33 are to be jointly allotted with 1/4 such share over the property and the other defendants are to be allotted with 1/4 share over the property jointly._ _3. Share of defendants will be allotted on payment of requisite court fee._ _4. Any of the parties can file an application for passing a final decree._ _5. Costs of the suit shall come out of the estate._ _6. Suit is adjourned sine die._ 7. The appellate court also concurred the finding of the trial court. 8. In this matter, Ext.A1 is the original settlement deed No.4508/1987, executed by Varkey in favour of Poulose as on 31.12.1987. It is true that, as on 17.8.1988, by executing Ext.B1 cancellation deed, Varkey cancelled the settlement deed. 9. It is argued by the learned counsel for the 8[th] defendant/appellant that, since Ext.A1 was not acted upon and no mutation also effected in view of Ext.A1, Ext.A1 settlement deed has no legal effect. Therefore, ``` RSA NO. 130 OF 2024 8 ``` the property shall be dealt as the property held by Varkey and the partition shall be in between the legal heirs of Varkey. 10. To be on the crux of the matter, the trial court as well as the appellate court found that Ext.A1 came into force and unilateral cancellation of settlement deed or gift deed is not legally permissible in view of the bar under Section 126 of the Transfer of Property Act, 1882. 11. In the decision in **Sivarajan** v. **Jagadamma** reported in **[2024 (1) KHC 600]** , this Court held that _it is the settled law that once a gift deed is acted upon and become complete, the absolute title would vest upon the donee and the donor seized to be the absolute owner. In such situation, the donor has no salable interest thereafter over the property. Therefore, execution of Ext.B3 sale deed after executing Ext.A1cannot have any legal effect at all and the same is a void document. It is true that a contention seen raised to the effect that Ext.A1 was not acted upon by the plaintiffs, but it is perceivable that the plaintiffs themselves produced_ ``` RSA NO. 130 OF 2024 9 ``` _Ext.A1 before the Courts below._ 12. In this matter, as per Ext.A1 settlement deed, Poulose perfected title, since the document was found to be acted upon by the trial court as well as the appellate court. 13. Since unilateral cancellation of a settlement deed or gift deed is not legally permissible, Ext.B1 is of no legal effect. If so, the trial court and the appellate court rightly found that Poulose obtained right on the strength of Ext.A1 and accordingly, partition was allowed, as sought for by the plaintiff, as extracted hereinabove. 14. In this case, in fact, the learned counsel for the appellant/8[th] defendant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated**_ _**by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial_ ``` RSA NO. 130 OF 2024 10 ``` _question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 15. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the ``` RSA NO. 130 OF 2024 11 ``` respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 16. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of_ _law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 17. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5)** ``` RSA NO. 130 OF 2024 12 ``` **KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001** **(3) SCC 179]** (three – Judge Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 18. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, ``` RSA NO. 130 OF 2024 13 ``` it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 19. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this Regular Second Appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this Regular Second Appeal, stand dismissed. Registry shall inform this matter to the trial court as ``` RSA NO. 130 OF 2024 14 ``` well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb