Ouseph Fernandez v. Teena Ben and Thresia Bennappan

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 RSA NO. 1214 OF 2015 ``` ``` AGAINST THE JUDGMENT IN AS.NO.124/2013 OF ADDITIONAL DISTRICT COURT - ``` ``` V, THIRUVANANTHAPURAM ``` ``` OS.NO.1480/2007 OF III ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM ``` ## **`APPELLANT/APPELLANT/2ND DEFENDANT:`** ``` OUSEPH FERNANDEZ AGED 48 YEARS S/O.MARSHEL FERNANDEZ, SANKETHAM, THYVILAKOM PURAYIDOM, ST.DOMINIC VETTUKADU, ST.XAVIER'S COLLEGE (P.O.), THIRUVANANTHAPURAM. BY ADVS. SRI.GOPAKUMAR R.THALIYAL SRI.V.MADHURIPAN PILLAI ``` ## **`RESPONDENTS/RESPONDENTS 1 & 2 & PLAINTIFFS:`** ``` 1TEENA BEN AGED 35 YEARS D/O.THRESIA BENNAPPAN, RESIDING AT KODALIPPARAKKAL VEEDU, ST.DOMINIC'S ST.XAVIER'S COLLEGE (P.O.), KAMUKARA MURI, MENAMKULAM VILLAGE, THIRUVANANTHAPURAM, PIN 695005. 2THRESIA BENNAPPAN AGED 60 YEARS RESIDING AT KODALIPPARAKKAL VEEDU, ST.DOMINIC'S ST.XAVIER'S COLLEGE (P.O.), KAMUKARA MURI, MENAMKULAM VILLAGE, THIRUVANANTHAPURAM, PIN 695005. BY ADVS. SRI.V.SURESH R.HARIKRISHNAN (H-308) G.SUDHEER(K/000467/1992) SMRITHI S.S.(K/1674/2018) ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2023, THE COURT ON 7.12.2023 DELIVERED THE FOLLOWING: ``` ``` RSA NO. 1214 OF 2015 2 ``` ## **CR** ## **JUDGMENT** Dated this the 7[th] day of December, 2023 This second appeal has been filed by the appellant, who is the second defendant in O.S.No.1480/2007 on the files of Additional Munsiff Court-III, Thiruvananthapuram, under Section 100 and Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter). 2. The appellant assails decree and judgment in the above suit, dated 28.2.2013 and the appellate decree and judgment, dated 12.3.2015 in A.S.No.124/2013 on the files of the Additional District Court – V, Thiruvananthapuram. 3. Respondents herein are the plaintiffs in the suit. 4. Heard the learned counsel for the appellant and the learned counsel appearing for the respondents. 5. I shall refer the parties in this appeal as ‘plaintiffs’ and ‘2[nd] defendant’, for convenience. 6. As per order, dated 17.11.2015, my predecessor admitted this appeal on the questions of law posed in the second ``` RSA NO. 1214 OF 2015 3 ``` ## appeal. 7. Plaintiffs filed the suit seeking declaration of their title over the plaint schedule property and also recovery of possession of the same, on the strength of title. According to the plaintiffs, plaintiffs obtained title over the plaint schedule property on the strength of a settlement deed No.1986/1995 of Kazhakkoottam SRO, executed by one Bennappan, who is the father of the 1[st] plaintiff and husband of the 2[nd] plaintiff. The further contention raised by the plaintiffs is that, subsequently, the 1[st] defendant, who is the mother of Bennappan, cancelled the settlement deed No.1695/1995, which was executed by her, in favour of Bennappan, as per cancellation deed No.2647/1996 and later, executed a sale deed No.554/2007, in favour of the 2[nd] defendant. According to the plaintiffs, the cancellation deed as well as the subsequent sale deed are null and void. Therefore, plaintiffs prayed to declare the said documents are null and void. Later, the plaint was amended seeking recovery of possession of the property from the 2[nd] defendant. 8. Defendants 1 and 2 jointly filed written statement ``` RSA NO. 1214 OF 2015 4 ``` admitting the relationship between the parties in the plaint. According to the defendants, Bennappan violated the terms of the settlement deed and he did not care the whereabouts of the mother. Accordingly, the settlement deed in favour of Bennappan was cancelled and the 2[nd] defendant got title and possession over the plaint schedule property, in view of sale deed No.554/2007. 9. The court below raised necessary issues and recorded evidence. No oral evidence let in by the parties. Evidence confined to that of documents marked as Exts.A1 to A3 on the side of the plaintiffs. Exts.B1 to B4 were marked on the side of the defendants. The trial court addressed the rival contentions on the basis of evidence tendered and finally granted decree as under: _“In the result, the suit is decreed._ _(1) It declared that the cancellation deed No.2647/96 and sale deed No.554/2007 of SRO, Kazhakuttom are Null and Void and those documents do not affect the title and possession of the plaintiff over the plaint scheduled property._ _(2) It declared that the plaintiffs have absolute right over the plaint scheduled property by virtue of settlement deed No.1986/95 of SRO, Kazhakoottam._ ``` RSA NO. 1214 OF 2015 5 ``` _(3) The plaintiffs are allowed to recover possession of the plaint scheduled property from the 2[nd] defendant on the basis of their title, through the process of law._ _In the facts and circumstances of the case there will be no orders as to cost.”_ 10. Even though appeal as A.S.No.124/2013 was filed before the District Court, Thiruvananthapuram, the same also was dismissed. 11. On hearing both sides, substantial questions of law to be precised are as under: _1. What is the legal effect of a cancellation deed executed to cancel a document with nomenclature ‘settlement deed’?_ _2. Whether Ext.B1, relied upon by the plaintiffs conferred title upon Bennappan?_ 12. In this case, originally, the property belonged to the 1[st] defendant, who is none other than the mother of Bennappan. Ext.B1 is document No.1695/1995 executed by the 1[st] defendant in favour of Bennappan. Later, Bennappan executed settlement deed No.1986/1995 of Kazhakkoottam SRO, marked as Ext.A1/Ext.B2 in favour of the plaintiffs and thereby, transferred ``` RSA NO. 1214 OF 2015 6 ``` his entire rights in favour of plaintiffs he got on the strength of Ext.B1. 13. However, after execution of Ext.A1/Ext.B2 in favour of the plaintiffs, the 1[st] defendant cancelled Ext.B1, in favour of Bennappan, by executing cancellation deed No.2647/1996, marked as Ext.A2/Ext.B3. After executing Ext.A2/Ext.B3, the 1[st] defendant executed sale deed No.554/2007, marked as Ext.A3/Ext.B4 in favour of the 2[nd] defendant and transferred the property in favour of the 2[nd] defendant. 14. It is argued by the learned counsel for the 2[nd] defendant that, even though as per Ext.B1, 1[st] defendant transferred right over her in favour of Bennappan and the same is subject to the conditions imposed therein and right of alienation is provided in Ext.B1 only after the death of the 1[st] defendant. The learned counsel also argued that, Ext.B1 was considered as a gift deed by the trial court as well as the appellate court, but it should have been read as a settlement deed. According to the learned counsel for the 2[nd] defendant, though unilateral revocation/cancellation of a gift deed is not legally permissible, revocation of a settlement ``` RSA NO. 1214 OF 2015 7 ``` deed is legally permissible. Therefore, by execution of Ext.A2/Ext.B3 cancellation deed, the right, if any, given in favour of Bennappan, stands revoked and thereafter, in view of Ext.A3/Ext.B4, the 2[nd] defendant perfected title and possession over the plaint schedule property. The learned counsel placed decision of the Apex Court in **Kokilambal** v. **Raman** reported in **[2005 (2) KLT 1007 (SC)]** , to contend that when the testator executing settlement deed in favour of the beneficiary, reserving right to enjoy property jointly during their lifetime and also to alienate the property jointly, the same does not make the beneficiary as absolute owner of the property and on the death of the beneficiary, testator can transfer the property by a fresh deed of settlement. 15. I have gone through the judgment with reference to the facts dealt therein. In **Kokilambal** (supra), the Apex Court examined the recitals in the settlement deeds and considered the case. The relevant paragraph of the said decision is as under: _“In this background, we have to examine the settlement deeds created by Kokilambal in favour of the deceased Varadan. The recitals of the settlement deeds i.e. A-1 and A-2_ ``` RSA NO. 1214 OF 2015 8 ``` _as reproduced above, clearly says that since Kokilambal had no son and her husband Manicka Mudaliyar during his life time has bestowed his love and affection on Varadan, the son of his elder sister, and therefore, out of love and affection, she has settled that the income derived from the properties i.e. Door No.43, Kakkaran Basin Road, shall be enjoyed by herself and Varadan, till her life time and after her demise, it shall be enjoyed by Varadan absolutely. She further authorised him to collect the rental income of the aforesaid house and pay the corporation and land tax, repairs etc. and the remainder rental amount shall be enjoyed by herself and Varadan in moiety. The appellant No.1 further settled that she would not alienate the property but both of them reserve the right to alienate the property jointly. Therefore, this settlement in no uncertain terms lays down that the properties in question will vest absolutely after the death of the appellant No.1 and during their life time, both will enjoy the usufructs but Varadan would collect the rental income of the aforesaid property. It is further mentioned that both will have the right to alienate the property in question jointly. These conditions are very clear, Varadan would have acquired the absolute right over the property after the death of Kokilambal. Even during their life time if the property was to be alienated then the same would be alienated by them jointly meaning thereby that the appellant No.1 continued to hold the property during her life time and both of them were permitted to enjoy the usufructs of that property. These settlement deeds in our opinion, clearly make out that Varadan was not made absolute owner of the property during_ ``` RSA NO. 1214 OF 2015 9 ``` _the life time of the settlor, Kokilambal.”_ The said recitals would go to show that the Apex Court considered settlement deeds, where Kokilambal had settled the income derived from the properties to be enjoyed by herself and Varadan, who is the beneficiary of the settlement deeds till her lifetime and after her demise, which would be enjoyed by Varadan absolutely. Further, the settlement deeds in no uncertain terms stipulated that properties in question would vest absolutely after the death of Kokilambal and during their life time, both would enjoy the usufructs. The further averment in the settlement deeds was that, both would have the right to alienate the property in question jointly alone. 16. On the above facts, the Apex Court held that the settlement deeds considered in the said case in no way made Varadan as the absolute owner of the property during the lifetime of settlor, Kokilambal and accordingly, it was held that after the death of Varadan, the settlee, Kokilambal could very well transfer the property by another settlement deed. 17. In view of the above contention, I have gone through ``` RSA NO. 1214 OF 2015 10 ``` the legible copy of Ext.B1 provided by the learned counsel for the 2[nd] defendant for perusal of this Court, which is not opposed by the other side. The same are as under: നീ എന്റെ അതിജീവിതകാലക്ഷേ പാർഥം നിന്ന ോട് എനിക്കുള്ള വാത്സല്യം പ്ര തിഫലമാക്കി എന്റെ വക ഇതിലെ പട്ടികയിൽ ചേ ർക്കുന്നവസ്തുവകകൾനിനക ഇപ്പ ോഴേ ഉടമസ്ഥതപ്പെടുത്തി പ്ര മാണം ചെ യ്യണമെ ന എനിക്കുണ്ടായ ആഗ്ര ഹവും നിശ്ചയവും അനുസരിച്ചു പട്ടികവസ്തുവകകളുള്ളതിനാൽ നിനക്കായി ഉടമസ്ഥതപ്പെടുത്തി ഈ ധനനിശ്ചയാധാരം തന്നിരിക്കുന്നു _._ ഇതനുസരിച്ചുപട്ടികവസ്തുവിനുഇപ്പ ോൾ തന്നെനിന്റെ പേ രിൽപ പോക്കുവരവ് ചെ യ്യിച്ചുപട്ടയം പിടിച്ചുക കൊള്ളണം _._ ഇപ്പ ോൾ വസ്തുവകകൾ ഞാൻ കൈ വശംവചചഅനുഭവിച്ചുംകെ ട്ടിടത്തിൽതാമസിച്ചും വരുന്നതുംമേ ലുംഎന്റെ ജീവിതാവസാനംവരെ യുംവസ്തു കൈ വശംവച്ചും ആദായങ്ങൾ എടുത്തു സ്വതന മായി വിനിയയോഗിച്ചും കെ ട്ടിടത്തിൽ താമസിച്ചുംനടക്കുന്നതും ആണ് _._ എന്റെ താമസത്തിനു തടസ്സം വരാത്തവിധം നിനക്കും ഇപ്പ ോഴേ കെ ട്ടിടത്തിൽ കുടിതാമസിച്ചുക കൊള്ളാവുന്നതാണ് _._ എന്റെ കാലാനന്തരം അനുഭാവവും താമസവും അവകാശം കിട്ടി ഈ ആധാരപ്ര കാരം നിനകകസിദ്ധിക്കുന്നതുംഅതുമുതൽ കെ ട്ടിടംഉൾപ്പടെയുള്ള പട്ടികവസ്തുവകകൾ മുഴുവൻനീ കൈ വശം വച്ചനുഭവിച്ചും പരിപൂർണാവകാശിയായും വിക്ര ിയാദിസർവ്വസ്വാതന ാധികാരസമേ തവും വാണ്ക കൊള്ളേ ണ്ടതാകുന്നു _._ 18. In the decision in **Gopalakrishnan** v. **Rajamma** reported in **[2006 (4) KLT 377]** , this Court considered the difference between gift and settlement deed with reference to ``` RSA NO. 1214 OF 2015 11 ``` Section 122 r/w Section 126 of the Transfer of Property Act, 1882 (for short, ‘the T.P. Act’ hereinafter) and the definition of settlement deed as defined in the Kerala Stamp Act (for short, ‘the Stamp Act’ hereinafter). In paragraph No.17 of the said judgment, it was held as under: _17. Although Exts.A-2, A-3 and A-4 are all settlement deeds styled as "dhananishchayadharam", all those documents are transactions of gift falling under S.122 of the Transfer of Property Act. The T.P. Act does not define or specifically deal with "settlement deeds". The said word is, however, defined under the Kerala Stamp Act to inter alia mean a nontestamentary disposition in writing of movable or immovable properties made for the purpose of distributing the property of the settler among his family members or those for whom he desires to provide or for the purpose of providing for some person dependent on him. (Vide District Collector v. Shahul Hameed & Anr. (1991 (1) KLJ 530) and the judgment dt. 28-62006 by a Division Bench of this Court in A.S.589/1992). However, a gift envisaged by S.122 of the T.P. Act is not restricted to members of the family of the settler or persons dependent on him. Ext.A-3 settlement deed does not reserve in the settler/ mother any right of revocation. Had there been any such right reserved and the deed was revoked in exercise of such right, then the position would have been different (Vide Subbegowda v. Thimmegowda (AIR 2004 2428). In the case on hand, Ext.A-3 is claimed to have been revoked by the settler on the ground of fraud and_ ``` RSA NO. 1214 OF 2015 12 ``` _misrepresentation by executing Ext.A-4 settlement deed. There cannot be any dispute, and indeed it was not disputed also before me, that the settlement deeds with which we are concerned in this litigation are gift deeds pure and simple falling under S.122 of the T.P. Act.”_ ## 19. In the decision in **Subbegowda** v. **Thimmegowda** reported in **[(2004) 9 Supreme Court Cases 734]** , the Apex Court considered a settlement deed and held as under: _“Though called a settlement deed, what was the intention of the executant behind executing the deed? The question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into - to the extent permissible - the prevailing circumstances which persuaded the author of the document to execute it. If the executant intended to transfer property the court would lean in favour of holding the transferee having been vested with interest in the property._ _Where an intention to transfer property within the meaning of Section 5 of the Transfer of Property Act, 1882 cannot be spelled out, the document will be given effect to as it reads and as is explicit from what is set out in the deed itself. For the interpreter of documents it is common knowledge that a transfer of property or a creation of interest therein may be accompanied by conditions, covenants or restraints. Condition may be condition_ ``` RSA NO. 1214 OF 2015 13 ``` _precedent – a condition which must be performed before the grant or alienation takes effect to create an interest in property, or may be condition subsequent - a condition which has an effect of enlarging or defeating the interest already created or vested. A conditional transfer or a settlement accompanied by conditions is not unknown to the law of real property. It is permissible in law to annex or encumber any grant or alienation with condition or limitation which will operate and the court will give effect to it unless there is some provision of law which annuls or invalidates such condition, restraint or limitation. None has been brought to our notice._ _Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, AIR 1953 SC 7; Philip John Plasket Thomas v. CIT, AIR 1964 SC_ _587, relied on_ _A comprehensive reading of the document shows that the settlement as per the terms of the document was not a transfer of property in favour of the adopted son; it was merely an arrangement or at best an entrustment of the scheduled property to his adopted son and the latter's natural father for the purpose of proper management without obstruction by anyone else including himself so that the welfare of himself, his wife and his children - especially the unmarried daughters - was assured. It is clear from the oral evidence adduced by the plaintiff that his wishes were not fulfilled. Though the pleas of fraud and undue influence vitiating the execution of deed are not substantiated, yet there can be no denying of the fact that N and his natural father did not come up to those expectations of T which had_ ``` RSA NO. 1214 OF 2015 14 ``` _persuaded him as primary and essential considerations for the execution of the deed. Nothing prevented T from cancelling such settlement and depriving N and his natural father from management over the scheduled property. Though at the end of the main document T has used the expression like permitting the settlee to enjoy the property and also for the right of sale and gift relating to property being conferred and the settlee and his heirs also going on enjoying the property but this stray sentence at the end of the document cannot be read in isolation dissected from the earlier part of the document which in very many words clearly demonstrates the intention of the executant of entrusting the management only of the scheduled property to N and his natural father._ _There is no recital in the deed which may be read or be capable of being construed as a demise in praesenti vesting absolute title of the property in N in present or in future. Whatever was given to N and his natural father by the deed was capable of being cancelled or revoked under the power of revocation expressly reserved by T to himself. Thus the deed does not amount to transferring the scheduled property to N. It was only an arrangement, called "settlement" with the power of revocation expressly reserved to the author, subject to which reservation the arrangement was intended to come in effect. It has not been the case of the appellant nor could it have been, that the scheduled property was gifted by T to N. The High Court has rightly formed an opinion that the deed could be revoked.”_ ``` RSA NO. 1214 OF 2015 15 ``` 20. In the case at hand, the trial court as well as the appellate court held that Ext.B1 is a gift deed and the same conferred title upon Bennappan and the only right reserved as per Ext.A1 is right of enjoyment and residence insofar as the executant is concerned. It is true that, after conferring ownership in the name of Bennappan, the executant reserved right of enjoyment as well as right of residence in the property. Thereafter, it was covenanted that, till her death, the right to enjoy the property and reside in the plaint schedule building would be upon the executant and the settlee would get the said right also after her death including right of alienation. 21. In the decision in **Balan A. and Others** v. **Thanka and Others** reported in **[2013 (2) KHC 643 : 2013 (2) KLT 789 : ILR 2013 (2) Ker.797 : 2013 (2) KLJ 780]** , this Court considered a similar question wherein also, after executing a document with nomenclature ‘settlement deed’, a condition was imposed to the effect that the beneficiary would be not having any right of alienation of the property till the death of the executant. This Court, after considering the said question, held as under: ``` RSA NO. 1214 OF 2015 16 ``` _“Some of the relevant terms occurring in Ext. A10 are necessary to be quoted here. One of the recital is to the effect "my entire right of property shown in the schedule is hereby given to you without any consideration". There is also the recital that the right to take income from the property shown in the schedule to Ext. A10 was reserved in favour of the donor/settlor. There is a recital in Ext. A10 that in the said property there was a house constructed by Appunni. The document would further recite that the donee Appunni was looking after the donor and so she was having special love and affection towards him. It was further stated that she had also expressed her full confidence in and belief that the donee Appunni would maintain and look after her even till her death and that was the reason why the said document (Ext. A10) was executed by her in favour of Appunni. It was specifically recited that she is/would be not having any right of alienation till her death in respect of the properties shown therein. But at the same time it was stated that till her death she had the right to take income from the property and for that purpose to keep possession also. So far as the case on hand is concerned, there could be no difficulty to hold that the document executed confers the right in praesenti and it is not intended to take effect on the death of the executant. The mere reservation of life interest with the settlor/donor to take income from the property during her life time does not postulate that the document in question is a Will but on the other hand the document bespeak the character of a gift. If it is a testamentary bequest then it would be revocable but if on the other hand it is a gift conveying the property in_ ``` RSA NO. 1214 OF 2015 17 ``` _praesenti it would be irrevocable. The irrevocability of the disposition would run counter to the plea that is a Will. Though the nomenclature of the document may not be much decisive still that also is one of the circumstances to hold that the document intended to be executed was a settlement deed and not a Will, the appellants contend. so far as the case on hand is concerned, Ext. A10 is very clear, definite and certain that there is a divestiture of title in praesenti. The recitals in Ext. A12 would only support the case of the plaintiffs that as per Ext. A10 there was a divestiture of title in praesenti; that is, as on the date of Ext. A10 itself. The taking of income alone was postponed. The fact that she had retained her right to take income is not a stipulation inconsistent with a deed of gift. In the result, this Second Appeal is allowed. In reversal of the decree and judgment of the Courts below, a decree is passed declaring that Ext. A12 cancellation deed No. 1278/85 and the subsequent gift deed No. 73/1986 are invalid, inoperative and non est. It is also declared that the plaintiffs are the absolute owners of the plaint schedule property. A decree for prohibitory injunction is also passed restraining respondents 2 to 5 and their men from trespassing into or otherwise interfering with the plaintiffs right or possession over the plaint schedule property.”_ 22. In the decision in **Saramma Ittoop and Others** v. **Kunjamma Kuruvilla and Others** reported in **[2006 KHC 821 : ILR 2006 (3) Ker.272 : 2006 (2) KLJ 836 : 2006 (3) KLT SN 75],** a learned Single Judge of this Court discussed the ``` RSA NO. 1214 OF 2015 18 ``` ## distinction between a ‘settlement’ and ‘gift’ and held as under: _16. The distinction between a ‘settlement’ and ‘gift’, is thin. A settlement can be revoked if the conditions stipulated therein are not fulfilled. A ‘gift’ can be suspended or revoked by the donor only if there is such an agreement between the donor and donee that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked. A gift, which the parties agree shall be revocable wholly or in part at the mere will of the donor, is void wholly or in part, as the case may be, as provided in S.126 of the Transfer of Property Act. Under Art.31 of the Schedule to the Kerala Stamp Act, ‘gift’ is an instrument, “not being a settlement or will or transfer”. Art.51 therein provides for stamp duty for the revocation of settlement. In Deputy Collector v. Shahul Hameed and another (1991 (1) KLJ 530), the distinction between a ‘gift’ and a ‘settlement’ is stated thus: “In other words, many settlement deeds may be gift deed; but all gifts need not necessarily be settlements. Some documents may satisfy the requirements of both gift and settlement.” Going by any test, Ext.A1 does not satisfy the requirement of a ‘settlement’ or a ‘gift’._ 23. As far as the difference between a ‘gift deed’ defined under Section 122 of the T.P. Act and ‘settlement’ defined under ``` RSA NO. 1214 OF 2015 19 ``` Section 2(q) of the Stamp Act, the difference is too narrow. The essentials to complete a gift is, transfer of movable or immovable property voluntarily and without consideration by the donor to the donee and accepted by or on behalf of the donee. The donee can be either a member of the family or a dependent or even a third party. Coming to settlement deed, the same also is nontestamentary disposition in writing of movable or immovable property made, (i) in consideration of marriage, (ii) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or (iii) for any religious or charitable purpose. So, insofar as settlement is concerned, a narrow difference to be read out from Section 2(q) of the Stamp Act is, the same could be effected among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, inclusive of in consideration of marriage or for any religious or charitable purpose. In all other respects, the legal effect of settlement deed and gift is one and the same and some documents may satisfy the ``` RSA NO. 1214 OF 2015 20 ``` requirements of both gift and settlement. 24. In the decision in **Pavithran E.A.** v. **Erayi Arakkalath Neetha** reported in **[2023 KHC OnLine 704 : 2023 KER 66910]** , this Court considered the issue regarding unilateral cancellation/revocation of gift deed and its legality. In the said decision, it was held as under: _“Summarizing the question how far unilateral cancellation/revocation of a gift deed, is legally permissible, it has to be held that unilateral cancellation/revocation of a gift deed, which is complete, is not legally permissible and such cancellation/revocation is void. The exemptions are the contingencies dealt under S.126 of the TP Act; which are as under:- i. The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; ii. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.”_ 25. On reading the recitals in Ext.B1, the same deciphers the character of a gift deed and therefore, the courts below rightly found so. Coming to the legal effect of a cancellation ``` RSA NO. 1214 OF 2015 21 ``` deed, thereby a registered settlement deed was cancelled, the law applies to a gift would apply. To be vivid, a settlement deed which is complete, could not be cancelled unilaterally, unless the settlement deed itself provides right of cancellation to the settler on happening of contingencies dealt in the settlement deed itself. Therefore, unilateral cancellation deed executed to cancel a registered settlement deed is void, unless the same is as authorized by the deed itself at the volition of the settler. 26. On reading Ext.B1, the same is nothing but a gift deed. As I have already pointed out hereinabove, the absolute ownership of the property covered by Ext.B1 was transferred in favour of Bennappan, reserving the right of the donor to enjoy the property and reside in the plaint schedule building till her death and nothing more. Therefore, the title conferred upon Bennappan, on the basis of Ext.B1, was complete on the date of its execution. 27. Therefore, the execution of Ext.A2/Ext.B3 cancellation deed by the 1[st] defendant, is non-est in law. Therefore, the subsequent sale deed, Ext.A3/Ext.B4, in favour of the 2[nd] defendant, is also non-est. ``` RSA NO. 1214 OF 2015 22 ``` In view of the matter, the trial court rightly granted decree in favour of the plaintiffs and the appellate court concurred the said finding and the said verdicts do not require any interference at the hands of this Court. Accordingly, this regular second appeal stands dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb