Meenakshi Ammal and Kumar v. Krishnan and Geetha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 6TH DAY OF FEBRUARY 2014/17TH MAGHA, 1935** ## **RSA.No. 1145 of 2011** **-----------------------------** **AGAINST THE JUDGMENT IN AS 61/2007 of SUB COURT, NEYYATTINKARA DATED 20-08-2011 AGAINST THE JUDGMENT IN OS 412/2006 of PRINCIPAL MUNSIFF COURT, NEYYATTINKARA, DATED 29-03-2007** **------------** ## **APPELLANT(S)/APPELLANTS/DEFENDANTS 1 & 2:** **-----------------------------------------------------------------------** ## **1. MEENAKSHI AMMAL,** - **W/O. LATE BHAGAVATHI APPAN, AGED 63 YEARS, MANCHADIVILAKATHU VEEDU, THALAYAL DESOM, ATHIYANNOOR VILLAGE, BALARAMAPURAM, THIRUVANANTHAPRUAM.** **2. KUMAR, S/O. LATE BHAGAVATHY APPAN, AGED 42 YEARS, RESDING AT -DO- DO.** **BY ADVS.SRI.BLAZE K.JOSE SMT.B.BINDU** **SMT.N.DEEPA** ## **RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:** **------------------------------------------------------------------** ## **1. KRISHNAN, S/O. CHUNDALAYANDI CHETTIYAR,** - **AGED 49 YEARS, RESIDING AT 9/1, THILAKAR STREET, NAGERCOIL, TAMILNADU - 629 001.** ## **2. GEETHA, W/O. KRISHNAN, AGED 39 YEARS, RESIDING AT -DO- DO.** ## **R1 & 2 BY ADVS. SRI.RAM MOHAN.G.** **SRI.G.P.SHINOD** **SRI.MANU V.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 1145 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 06[th] day of February, 2014 ## **J U D G M E N T** The subject matter of this second appeal is Ext.A1, gift deed No. 4866/2000 which the parents of the second defendant is alleged to have executed in favour of the second plaintiff. The core issue that arises is while the plaintiff would say that the gift has been accepted and acted upon, the defendant would say otherwise. 2. At the time of admission, the following substantial question of law was formulated: "When Exts. B6 and B8 the anterior title deeds of the plaint schedule property were produced by the defendants, and the plaintiffs did not pay any property tax or building tax or effect mutation, whether based on the recitals in Ext.A1 and oral evidence of first plaintiff one of the donees, courts below were justified in holding that Ext.A1 ## **R.S.A. No.1145/2011** **-2-** gift deed was accepted and acted upon and therefore plaintiffs have title to the plaint schedule property." 3. The plaintiffs sued on the basis of Ext.A1 gift deed for recovery of title and possession. The suit was resisted on the ground that the gift had not been accepted and there was subsequent cancellation of deed and thereafter, a deed in favour of the second defendant. It is also contended that no possession was given as in pursuance to Ext.A1 gift and the said gift has not been acted upon. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and had Exts. A1 to A4 marked on the side of plaintiffs. The defendants were satisfied by marking Exts. B1 to B11 documents. 5. On an appreciation of the materials before it, the trial court came to the conclusion that in view of the recitals contained in Ext.A1, regarding handing over of possession, **R.S.A. No.1145/2011** **-3-** nothing more remains to be considered. The possession will be deemed to have passed. Consequently, the trial court held that the gift has taken effect. Though the defendants appealed against the said judgment and decree in the suit in favour of the plaintiffs, the lower appellate court did not find any grounds to interfere with the judgment and decree of the trial court and confirmed the same. 6. The learned counsel appearing for the appellant contended that both the courts below have not appreciated the various circumstances brought out in evidence which would show that the gift had not been accepted. Both the courts, according to the learned counsel, were carried away by the fact that since the gift deed recites to have given possession of the property, that would be sufficient in law. According to the learned counsel, the question as to whether gift has been accepted or not is a question of fact depending upon the evidence adduced in each case. In the case on hand, except for production of Ext.A1 gift, there is absolutely ## **R.S.A. No.1145/2011** **-4-** no other evidence to show that plaintiffs have accepted Ext.A1 gift deed and had exercised any act of possession of the property. On the other hand, it is contended that the bakery that was being run in the property continued to be run by the parents of the second defendant and subsequently by the second defendant. The licence is in the name of the second defendant. The property tax, electricity charges, water charges are all being paid by him. There is absolutely no evidence at all to show that at any point of time, the plaintiffs have exercised any acts of possession over the property. In support of his contention that the gift had not been accepted, the learned counsel relied on the decision reported in **Asokan** v. **Lakshmikutty [2008 (1) KLT 54 (SC)]** , **Rajamma** v. **Biswajith [2001(3)KLT 726]** , **Cherukat Vijayalakshmi** v. **Cherukat Gopalakrishna Menon [ILR 2010 (4) Kerala 485]** , **Gopalakrishnan** v. . **Rajamma [2006 (4) KLT 377]** ## **R.S.A. No.1145/2011** **-5-** 7. Relying on the above decisions, the learned counsel pointed out that merely because, possession is said to have been given under the document, that by itself is not a criterion to come to the conclusion that the gift has been acted upon. No piece of evidence has been produced by the plaintiffs to show that in pursuance to the gift deed either showing mutation has been effected or he had received the original document in relation to the property which is the subject matter of gift. The learned counsel went on to point out that since the plaintiffs assail that the cancellation deed is not valid in law, it is for him to show that the gift deed had taken effect and going by the evidence on records, he has failed to discharge the said burden. Accordingly, it is contended that the courts below were in error in decreeing the same. 8. The learned counsel appearing for the respondents on the other hand contended that the court cannot omit to notice the fact that the doners were none other than the **R.S.A. No.1145/2011** **-6-** parents of the second plaintiff and it will be imprudent on the part of the daughter to throw out the parents as soon as gift deed is executed. The evidence on records clearly shows that it was the first plaintiff who had taken the document for registration, he had taken it back from the possession of Sub Registrar, he had produced it before the court at the time of trial and he kept the document in his possession. It is only normal and usual according to the learned counsel for the respondents that the parents who are conducting a business in the premises are allowed to continue the business. If the donee thought it proper and fit to occupy the premises only after the life time of the parents, there is nothing wrong with that conduct. Merely because, the business has been allowed to be continued in the premises that does not lead to a conclusion that the gift deed had not been acted upon. 9. It is also pointed out that the cancellation deed and the sale deed in favour of the second defendant are **R.S.A. No.1145/2011** **-7-** executed on the same day and that shows that cancellation was with oblique motive. Whatever that be, according to the learned counsel, both the courts below, who have appreciated the evidence in the case independently, have come to the conclusion that the gift has been accepted. According to the learned counsel, being a gift of a Hindu, the slightest evidence is sufficient to show that the gift has been accepted. If that test is to be applied, the fact that the document was taken for registration by the plaintiffs, it was got returned by the plaintiffs and kept them in their possession and also that he produced at the time of trial would clearly show that the gift has been accepted. So also the recital in Ext.A1 that possession has been given. 10. The mere fact that the business was allowed to be continued in the premises does not mean that the possession of the property was not taken. It was a permissive use as far as the second plaintiff is concerned. Again the learned counsel emphasized that the court shall ## **R.S.A. No.1145/2011** **-8-** not forget that the parties are close relatives and if as a matter of fact, the plaintiffs did not, as soon as the gift deed was executed, demand vacant possession, it could not be said that they had not taken possession in pursuance to the gift. The learned counsel relied on the decision reported in **Asokan** v. **Lakshmikutty [2008 (1) KLT 54 (SC)]** and **Parameswaran** v. **Lekshaman [2013 (1) KLT 487]** in support of his contention. 11. On going through the decisions relied on by both sides, it is seen that there is no straight jacket formula to ascertain whether the gift has been accepted or not. Each case depends upon its facts. The court has to consider the pleadings and the evidence in the case and appreciate it in the proper perspective to reach a conclusion whether the gift has been accepted. 12. Unlike in a Mohammedan Law, the need to prove delivery of possession in the case of Hindu gift is not so onerous. The slightest evidence to show that the possession **R.S.A. No.1145/2011** **-9-** has been handed over is sufficient to indicate that the gift has been accepted. It is no doubt true that handing over of possession is an essential ingredient for acceptance of a gift. 13. As rightly pointed out by the learned counsel for the respondents the court has to necessarily keep in mind the relationship between the parties at the time of considering whether possession has been obtained in pursuance to the gift. In the case on hand, Ext.A1 gift deed has been executed by the parents in favour of the second plaintiff. Even the plaintiffs admit that the bakery was being run in the premises by the parents. After the gift deed was executed, the plaintiffs let the parents continued their business and had an intention to occupy premises only after the lifetime of the parents. It cannot be said that it is unusual or unnatural conduct, on the other hand, it looks normal. 14. It is true that there is no evidence to show that the first plaintiff has effected mutation in pursuance to the gift ## **R.S.A. No.1145/2011** **-10-** nor has produced anything to show that he is paying the property tax. But those aspects are not sufficient to come to the conclusion that no possession was given to the plaintiff. 15. It is here that the circumstances which relied on by the plaintiffs assume importance. The gift deed was taken for registration by the plaintiffs, it was got returned by the plaintiffs, bakery was kept by him and also that he had the produced document in court. The plaintiffs have offered an explanation as to why the document title of the doner had not been obtained by him. Even assuming that the reason given by the plaintiffs may not be acceptable, one has to remember that the gift deed by the parents to the daughter and unless there are compelling reasons. There is no reason to suspect the title. 16. It was contended that in fact, the gift was intended only as a security for the amount due to the first plaintiff. Unfortunately for the defendants, there is neither pleading in that regard nor is there a suggestion to that effect to PW1. ## **R.S.A. No.1145/2011** **-11-** It is here, one has to notice that none from the side of defendants has mounted the box to speak about defence case. No reasons are also given. The documents produced by the defendants would show that they are carrying on the business in the premises for which satisfactory explanation has been offered by the plaintiffs. 17. In the decision relied on by the learned counsel for the appellants, it is true that it has been held that the passing of possession has to be proved. But there is no single criterion laid down to ascertain whether the possession has passed. Each of the decisions was rendered with respect to the facts of those cases. Of course, the burden is on the donee to show that the possession has been taken by him. But what should be the quantity of the evidence and quality of the evidence is the matter for determination in each case. When it is a gift between the members of the family, it is imprudent to expect technical dealings as in the matter of strangers and if as a matter of **-12-** ## **R.S.A. No.1145/2011** fact, even assuming that the gift deed had been retained by the doner, there has been instance in such case also it has been held that the gift has taken effect. But what is important is as far as the gift of Hindu gift is concerned, very slight evidence alone is sufficient to show that the possession has been taken. In the case on hand, apart from the circumstances mentioned above, there is also a recital in the gift deed that the possession has been handed over. 18. Faced with the above situation, the learned counsel for the appellants made fervent view for a remand to enable him to adduce evidence in support of his claim. After having given anxious consideration to various aspects it is felt that it will serve no purpose in the light of the contentions in the written statement. There is no suggestion to PW1 that Ext.A1 was executed as a security only and it was not intended to take effect. Nor is there a pleading in the written statement that it was executed as a security. A reading of the written statement though it mentioned that ## **R.S.A. No.1145/2011** **-13-** the gift had not taken effect, the reason for cancellation appears to be that the plaintiffs had not taken care of the parents of the second plaintiff. Further, the suit is of the year 2006. 19. The fact that defendants have produced documents to show that they paid property tax and paid electricity charges etc., is highlighted as an aspect to show that possession has not passed to the plaintiff. But the learned counsel appearing for the respondents pointed out that all the documents produced by the defendants in support of their contentions that the gift has not taken effect, are all subsequent to the execution of the sale deed in favour of the second defendant which were clandestinely obtained by the second defendant. If as a matter of fact, it was not so, they could have produced documents showing possession prior to the execution of the sale deed. 20. One must remember at this point that the period between the execution of the gift deed and the cancellation ## **R.S.A. No.1145/2011** **-14-** deed is only a few months. But whatever that be, since there is a recital in the document that the possession has been given, the mere fact that the parents were allowed to continue their business in the premises cannot _ipso facto_ cannot lead to a conclusion that the gift had not been accepted. ## 21. In the decision reported in **Parameswaran** v. **Lekshaman [2013 (1) KLT 487]** , it was held as follows: “The fact that possession had been given to the donee also raises a presumption of acceptance. While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. Even a silence may indicate as acceptance and that it is not necessary to prove any overt act in respect thereof as express acceptance is not necessary for completing the transaction of gift. It is true that in order to constitute a valid gift acceptance thereof is essential. But there may be various means to prove acceptance of a gift. The document may be handed over to the **-15-** ## **R.S.A. No.1145/2011** donee which in a given situation also amounts to a valid acceptance. Here the prior title deeds in respect of the property was handed over to the donee. That was one such act of acceptance. The other overt act of acceptance was that the donee himself obtained the original gift deed from a Registrar's office. The other fact is that he was residing in the house situated in the property in question. Therefore, the contention that there is no evidence of acceptance of the gift is found to be bereft any merit. The very averment made in the gift deed Ext.A2 that absolute possession was handed over to the donee subject to the right of residence of the donor would sufficiently indicate proof of acceptance thereof by the donee.” 22. As already stated, there is no formula as such to find out if possession has been handed over. Considering the relationship between the parties, certain facts which are already made mention of, shows that the possession has been given, there is no reason to take a different view from the view taken by the courts below that the gift has taken effect. ## **R.S.A. No.1145/2011** **-16-** 23. Further, as rightly pointed out by the learned counsel for the respondents the question as to whether the gift has been accepted or not is a question of fact to be arrived at on the basis of appreciation of the evidence. Both courts have concurrently found that the gift has been accepted and it has taken effect. It could not be said that the view is either perverse or is not warranted by evidence on record. It is a possible and plausible view. If that be so, interference in this second appeal under Section 100 of C.P.C. is not warranted. 24. The result is that this second appeal is without merits and is liable to be dismissed. 25. The learned counsel appearing for the appellant then prayed that some time may be granted for vacating the premises. 26. It is not disputed that the bakery business has been going on in the premises for a long time. It is reasonable to believe that it may take some time for the **-17-** ## **R.S.A. No.1145/2011** occupants to find an alternate premises. Considering the facts and circumstances of the case, it is felt that eight months time can be given to the defendants to vacate the premises. In the result, while confirming the judgment and decree of the courts below, defendants are given eight months time from the date of this judgment to vacate the premises provided on condition that the defendants file an affidavit before the trial court unconditionally undertaking to vacate the premises on or before the expiry of eight months from the date of this judgment. The affidavit shall be filed within two weeks from today. ## Sd/- **P.BHAVADASAN JUDGE** ds Time to vacate the premises is extended upto 15.10.2014, as per the order dated 26.09.2014 in I.A.2839/2014 in R.S.A.1145/2011. Sd/Registrar(Judicial)