PARAMESWARA KURUP NARAYANA PILLAY v PARAMESWARA KURUP KUNJURAMAN PILLAY, PARAMESWARA KURUP BALAKRISHNA PILLAY, PARAMESWARA KURUP MADHAVAN PILLAY, PARAMESWARA KURUP RADHAKRISHNAN PILLAY, PARAMESWARAN KURUP RAGHAVAN PILLAY

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA,** ## **1944** ## **RSA NO. 364 OF 2005** **AGAINST THE JUDGMENT IN AS 25/1995 OF SUB COURT,KOTTARAKKARA AGAINST THE JUDGMENT AND DECREE IN OS 159/1988 OF MUNSIFF** ## **COURT, KOTTARAKKARA** ## **APPELLANTS/RESPONDENTS/PLAINTIFFS:** - 1 PARAMESWARA KURUP NARAYANA PILLAY(DIED) AJAYA BHAVAN, ALAYAMON MURI, ALAYAMON P.O., PATHANAPURAM TALUK. - 2 D.KAMALAMMA, AJAYA BHAVAN ALAYAMON MURI, ALAYAMON VILLAGE. - 3 NARAYANA PILLAY AJAYA KUMAR AJAYA BHAVAN, ALAYAMON MURI, ALAYAMON VILLAGE. BY ADV SRI.K.L.NARASIMHAN ADV SRI.PREM NAVAZ ## **RESPONDENTS/APPELLANTS,2ND RESPONDENT/DEFENDANTS:** - 1 PARAMESWARA KURUP KUNJURAMAN PILLAY RESIDING AT MANJAZHIKATHU VEEDU, KUDAVATTOR MURI, VELIYAM VILLAGE, KOTTARAKKARA TALUK. - 2 PARAMESWARA KURUP BALAKRISHNA PILLAY RESIDING AT MANJAZHIKATHU VEEDU, KUDAVATTOR MURI, VELIYAM VILLAGE, KOTTARAKKARA TALUK. - 3 PARAMESWARA KURUP MADHAVAN PILLAY RESIDING AT MANJAZHIKATHU VEEDU, KUDAVATTOR MURI, VELIYAM VILLAGE, KOTTARAKKARA TALUK. - 4 PARAMESWARA KURUP RADHAKRISHNAN PILLAY RESIDING AT MANJAZHIKATHU VEEDU, KUDAVATTOR MURI, VELIYAM VILLAGE, KOTTARAKKARA TALUK. - 5 PARAMESWARAN KURUP RAGHAVAN PILLAY RESIDING AT MANJAZHIKATHU VEEDU, KUDAVATTOR MURI, VELIYAM VILLAGE, KOTTARAKKARA TALUK, EMPLOYED AS CLERK IN THE MILITARY FARM, BOINPALLY P.O., SECUNDARABAD 500 003 BY ADV SRI.G.S.REGHUNATH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Sathish Ninan, J. ============================== R.S.A No.364 of 2005 ========================== Dated this the 7[th] day of December, 2022** ## **JUDGMENT** The plaintiff in a suit for declaration of title and recovery of possession, and for a declaration that Ext B1 Cancellation Deed and Ext B2 Sale Deed are void, is the appellant. The suit though decreed by the trial court, was dismissed in appeal. 2. The plaintiff and the defendants are siblings. They are children of one Parameswara Kurup. The plaint schedule property has an extent of 67 cents. It belonged to the father Parameswara Kurup. He executed Ext A1 Gift Deed of the year 1965 in favour of the plaintiff. According to the plaintiff, on the death of the father, the defendants interfered with his possession over the plaint schedule property. Thereupon, on enquiries he came to know that the father had executed Ext B1 Cancellation Deed of the year 1983 and Ext B2 Sale Deed of the year 1984 whereunder he R.S.A No.364 of 2005 -: 2 :- purported to convey the property to defendants 2 to 5. It is accordingly that the suit is filed for declaration that Ext B1 Cancellation Deed and Ext B2 Sale Deed are void, for declaration of title of the plaintiff over the plaint schedule property under Ext A1 Gift Deed, and for recovery of possession. 3. The defendants contended that Ext A1 gift deed had not taken effect; that the possession of the property was never handed over to the petitioner; and that the original of Ext A1 Gift Deed was with the father, but was taken away by the plaintiff when he came for the father's funeral rites. They further claimed Ext B1 Cancellation Deed and Ext B2 Sale Deed to be valid. 4. The trial court held that Ext A1 gift deed had taken effect and that the title vests with the plaintiff. Consequently, Ext B1 Cancellation Deed and Ext B2 Sale Deed were held to have no effect on the title of the plaintiff over the plaint schedule property. Accordingly, the suit was decreed. On appeal, the appellate court held that Ext A1 gift has not taken R.S.A No.364 of 2005 -: 3 :- effect and that Ext B1 and Ext B2 are valid. Accordingly, the suit was dismissed. 5. Heard the learned counsel Sri.Prem Navaz on behalf of the appellant and Sri.G.S.Reghunath on behalf of the respondents on the following substantial questions of law: “ _(i) Is Ext A1 a Gift or a Will?_ - _(ii) If Ext A1 is a Gift Deed, is there any evidence to show that the gift_ _had taken effect prior to Ext B1 cancellation deed?_ - _(iii) Is the cancellation of Ext A1 gift valid?”_ 6. Sri.G.S.Reghunath, learned counsel appearing for the respondents contend that, Ext A1 is only a Will intended to take effect after the death of the father. Therefore, Ext A1 could not vest any title with the plaintiff during the life time of the father. In the light of Ext B1 cancellation deed and ExtB2 Sale Deed by the father, the plaintiff does not have title over the property, it is contended. 7. A reading of Ext A1 document indicates that, there has been vesting of interest over the property R.S.A No.364 of 2005 -: 4 :- thereunder _in presanti_ . The donee – plaintiff was directed to effect mutation of name in revenue records and pay tax from the date of execution of Ext A1. The father – executant retained the right to take usufructs from the property during his life time. However, the plaintiff – donee was permitted to improve the property from the date of Ext A1 along with the donor – the father. Therefore, it admits of no doubt that, Ext A1 is a Gift Deed and not a Will as contended by the defendants. Substantial Question of Law No. _(i)_ is answered accordingly. 8. A reading of Ext A1 Gift Deed shows that, it is not an onerous gift. To prove the acceptance of a gift which is not onerous, very slight evidence is sufficient. Even mere knowledge of gift, by the donee, is sufficient to infer acceptance of the gift since, a person could only be too anxious to promote his own interests. Possession of the original Gift Deed by the donee is sufficient proof of its acceptance _(_ _**Narayani Bhanumathi v. Lalitha Bhai (1973 KLT 961), VV Janaki v**_ R.S.A No.364 of 2005 -: 5 :- _**Puthiya Purayil Paru (AIR 1986 Ker 110), Kakkacherra v. Chiyyayi (1988 (2) KLT 910), Asokan v. Lakshmikutty ((2007) 13 SCC 210), Kuttian Padmini v. Nelliyallaparambath Mathu (2014 (1) KHC 759)**_ 9. In the case at hand, the original Gift Deed, Ext A1, has been produced by the plaintiff from his custody. The defendants have set up a case that, after execution of Ext A1 the original was retained by the father, and that the plaintiff had taken it away when he went to the house for the funeral rites of the father. However, it is very difficult to accept the contention. According to the defendants, after execution of Ext.A1, the father did not inform it to any one including the plaintiff and the defendants. It is so stated in paragraphs 4 and 7 of the written statement. Admittedly, the plaintiff was not residing in that house at that time. It could not be explained by the defendants as to how the plaintiff came to know about the Gift Deed, that it was kept at any particular place in the house, and how without the knowledge of anyone the plaintiff took away the document R.S.A No.364 of 2005 -: 6 :- therefrom. Admittedly no complaint was lodged by anyone regarding alleged removal of Ext A1, from the house. But for the bald allegation, there is no evidence to support the plea. 10. So also, the very recitals in Ext B1 Cancellation Deed would indicate that the plaintiff was aware of the gift and that the gift was accepted. In Ext B1 it is recited that, after execution of the Gift Deed, the plaintiff failed to take care of the interests of the father, thus necessitating the execution of Ext B1 cancellation. Apart from the above, there is yet another circumstance to find that the plaintiff was aware of the gift and that the gift was accepted. It is not in dispute that some works were done in the property to prevent soil erosion. The said work was done on availing loan and subsidy from Soil Conservation Department. Ext X1 is the measurement book maintained by the authority in the said regard. It is not in dispute that Ext X1 relates to the property in question. Ext X1 contains the signature of the plaintiff. PW2 is the R.S.A No.364 of 2005 -: 7 :- contractor through whom the work was done. He has deposed that the works were done by the plaintiff. In fact, there is a pointed suggestion to PW2 that amounts were paid to PW2 by the plaintiff he being the eldest son, thus implying that it was the plaintiff who paid the amount. The mere fact that there is some difference in the year of doing the soil conservation work as mentioned in the plaint and as seen in Ext X1 is insignificant. 11. The mere fact that after Ext A1, the property was not mutated in favour of the plaintiff, is not of much significance in the present case since, the father had reserved the right to take income from the property and the father and son were residing together. The mere fact that subsequently the plaintiff shifted his residence with his family is not of any consequence while deciding the question of acceptance of gift. 12. Though the first appellate court has considered it fatal that the plaintiff did not mount the box, it is to be noted that, his wife was examined as PW1 and that R.S.A No.364 of 2005 -: 8 :- she has deposed that he is sick and bed ridden since the year 1992. Though the learned counsel for the respondent relied on the decision in **Sarojini Amma S v. Velayudhan Pillai Sreekumar (AIR 2018 SC 5232)** to contend that, a gift cannot take effect without transfer of possession. As noticed supra, the recitals in the Ext.A1 Gift Deed itself indicate that, under the document the plaintiff was put in joint possession of the property. It is also to be borne in mind that delivery of possession is a mandatory requirement only under a Mohammedan gift. The case dealt with in the judgment referred to above was the case of a conditional gift and does not apply to the facts of the present case. The evidence on record sufficiently establishes the acceptance of Ext A1 gift by the plaintiff during the life time of the donor - father. 13. The trial court appreciated the evidence in its entirety and held that the gift was duly accepted by the plaintiff. The first appellate court has failed to appreciate the relevant materials and circumstance as R.S.A No.364 of 2005 -: 9 :- noted supra, which has led to an erroneous finding. Ext A1 gift having been accepted and taken effect, Ext B1 cancellation deed is of no significance and cannot affect the validity of Ext A1 gift or the title obtained by the plaintiff thereunder. Substantial questions of law Nos. _(ii) and (iii)_ are answered accordingly. 14. Having found that Ext A1 gift is valid and that Ext B1 cancellation deed cannot affect the title conveyed under Ext A1, necessarily Ext B2 Sale Deed could not convey any rights in favour of the defendants. Therefore, the plaintiff is entitled to get recovery of possession on the strength of his title. The trial court was right in having decreed accordingly. In the result, the Regular Second Appeal is allowed. The decree and judgment of the first appellate court is set aside and that of the trial court is restored. Sd/- **Sathish Ninan, Judge** vdv