P.K. Devayani Amma and D. Savitha v. V.N. Kesavan Nampoothiri and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 15TH DAY OF SEPTEMBER 2017/24TH BHADRA, 1939 RSA.No. 1014 of 2007 (D) ------------------------- AGAINST THE JUDGMENT AND DECREE DATED 28.03.2007 IN AS NO. 27/2002 of SUBORDINATE JUDGE'S COURT, THIRUVALLA AGAINST THE JUDGMENT AND DECREE DATED 21.01.2002 IN OS NO. 205/1995 of MUNSIFF COURT, THIRUVALLA APPELLANTS/RESPONDENT NOS 1 & 9/DEFENDANT NOS 2 AND 10: ----------------------------------------------------- 1. P.K.DEVAYANI AMMA, MONIPPALLIL LEKSHMI NIVAS, KAVUMBHAGAM MURI, PERINGARA VILLAGE. 2. D.SAVITHA, MONIPPALLIL LEKSHMI NIVAS, KAVUMBHAGAM MURI, PERINGARA VILLAGE. BY ADV. SRI.S.SUBHASH CHAND RESPONDENTS/APPELLANTS 2 TO 8/PLAINTIFF & ADDITIONAL DEFENDANTS 3 TO 9: ------------------------------------------------------- 1. V.N.KESAVAN NAMPOOTHIRI, AGED 51, VADAKKE THOTTASSERI ILLAM, THIRUVAMPADY MURI,, KAVUMBHAGAM VILLAGE. - 2. SAVITHRI ANTHARJANAM, VADAKKE THOTTASSERI ILLAM, THIRUVAMPADY MURI, KAVUMBHAGAM VILLAGE. (EXPIRED. LRS RECORDED) 3. SARASWATHI ANTHARJANAM, THOTTUVA MARANGATTU ILLAM, CHIRALATTUKARA MURI, THRIKKARIYOOR MURI, KOTHAMANGALAM TALUK. 4. RADHAMANI ANTHARJANAM, AYAKKANATTU MADAM, MATHILBHAGAM MURI, THIRUVALLA VILLAGE. 5. LEELAMANI ANTHARJANAM, KIZHAKKEKARAKKATTILLAM, PERINGOL MURI, KAVUMBHAGAM VILLAGE. 6. KMUSUMA KUMARI, KALLAMPALLIL ILLATHU, NANGYARKULANGARA P.O., MAVELIKKARA VILLAGE. 7. SUSHAMMA KUMARI, NILAMA SOMAN NAGAR, KARAMANA P.O., THIRUVANANTHAPURAM. RSA.No. 1014 of 2007 (D) 2 8. LALITHAMBIKA ANTHARJANAM, VARANAKKOTTU ILLAM, CHUNAKKARA P.O., MAVELIKKARA. *IT IS RECORDED THAT RESPONDENT NO.1 AND 3 TO 8 ARE THE LRS OF DECEASED R2 AS PER ORDER DATED 30.10.2009 IN MEMO DATED 6.10.2009. R3 TO 8 BY ADVS. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN R1 BY ADVS. SRI.P.R.VENKETESH SRI.K.S.BHARATHAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.08.2017 ALONG WITH RSA. NO.339/2011, THE COURT ON 15-09-2017 DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J. -------------------------------------R.S.A. Nos.1014 of 2007 and 339 of 2011 -------------------------------------Dated this the 15[th] day of September, 2017** ## **COMMON JUDGMENT** These appeals are preferred by the plaintiff in O.S.No.697 of 2002 before the Munsiff's Court, Thiruvalla and the defendants 2 and 10 in O.S.No.205 of 1995 before the same court. Sole appellant in R.S.A.No.339 of 2011 is the 1[st] appellant in R.S.A.No.1014 of 2007. 2[nd] appellant in the above second appeal is none other than the daughter of the 1[st] appellant. 2. Since common questions arise in both these second appeals and decision in one case will impact the other, I have heard these matters together and disposed by this common judgment. 3. The substantial questions of law formulated in R.S.A.No.1014 of 2007 read as follows: _“1. When the trial court on the evidence found that Ext.A1 is not a valid gift deed as it was not executed in the presence of two attesting witnesses as provided under section 123 of Transfer of Property Act whether first appellate court was justified in accepting Ext.A1 without considering that question._ _2. When Ext.A1 shows that the donor retained possession of the property gifted thereunder_ 2 RSA Nos.1014 of 2007 & 339 of 2011 _whether on the evidence on record first appellate court was justified in holding that Ext.A1 gift deed was accepted and acted upon and therefore cannot be cancelled under Ext.A5.”_ 4. The substantial question of law formulated in R.S.A.No.339 of 2011 reads as follows: _“When the correctness of Ext.B28 judgment in A.S.27 of 2002 on the file of Sub Court, Thiruvalla is challenged before this court and is pending as R.S.A.No.1014 of 2007, whether the first appellate court was justified in accepting the said judgment as additional evidence and deciding the appeal in accordance with the decision in Ext.B28 judgment.”_ 5. O.S.No.205 of 1995 is a suit filed for setting aside Exts.A5 and A6 documents. 1[st] respondent is the plaintiff in the suit. According to the plaintiff, his father (original 1[st] defendant) executed Ext.A1 gift deed dated 02.09.1968 in his favour in respect of 2.42 acres of property. Plaintiff contended that his father had an illicit relationship with the 1[st] appellant and on her insistence, father cancelled Ext.A1 gift deed as per Ext.A5 cancellation deed. Thereafter Ext.A6 sale deed was executed in 1[st] appellant's favour transferring 60 cents of property. According to the plaintiff, he had accepted Ext.A1 gift deed and therefore the original 1[st] defendant was not having any authority to cancel the same. It is the further 3 RSA Nos.1014 of 2007 & 339 of 2011 contention of the plaintiff that Ext.A5 cancellation deed was suppressed by his father and the 1[st] appellant. He came to know about the same only from the written statement filed by his father in O.S.No.192 of 1993. Thereafter, within three years he filed the suit challenging the cancellation deed and also the sale deed executed by his father in favour of the 1[st] appellant. Defendants 2 and 10 filed a joint written statement opposing the suit claim. According to them, Ext.A1 gift never came into effect. 10[th] defendant is the daughter born to deceased original 1[st] defendant (father of the plaintiff). Plaintiff never bothered to look after affairs of the family. All the female children were married away by the original 1[st] defendant and in order to meet the expenses, the property was mortgaged in a Primary Co-operative Agricultural Development Bank. 1[st] appellant gave money to her husband for closing the loan account. In view of that consideration, Ext.A6 sale deed was executed by deceased Narayanan Nampoothiri in favour of the 1[st] appellant. The suit is barred by limitation. 6. Trial court after considering Exts.A1 to A7 and testimony of two witnesses on the side of the plaintiff and Exts.B1 to B13 and testimony of two witnesses on the side of the defendant, dismissed the suit. Plaintiff took up the matter in appeal before the Court of Subordinate Judge, Thiruvalla as A.S.No.27 of 2002. The lower appellate court after reappreciating the evidence disagreed with the trial court and allowed the appeal. Exts.A5 and A6 documents were declared to be void and they were 4 RSA Nos.1014 of 2007 & 339 of 2011 set aside. 7. O.S.No.697 of 2002 is a suit filed by the 1[st] appellant (2[nd] defendant in O.S.No.205 of 1995). The suit is one for fixation of boundary and injunction. Plaintiff therein (1[st] appellant) contended that she is the second wife of deceased Narayanan Nampoothiri (original 1[st] defendant). He had executed Ext.A1 sale deed in favour of the plaintiff in O.S.No.205 of 1995. Defendants 1 and 3 to 8 who are the children of deceased Narayanan Nampoothiri through his first wife tried to trespass upon the property because there was no definite boundary to separate the plaint schedule property from rest of the property. Therefore the suit was filed. 8. The contesting defendants opposed the suit by contending that the 9[th] defendant is not the daughter of deceased Narayanan Nampoothiri. According to them, defendants 1 and 3 to 8 are the children of deceased Narayanan Nampoothiri. Narayanan Nampoothiri had created a gift in favour of the 1[st] defendant and he had no assignable right to execute Ext.A1 sale deed in favour of the plaintiff. Plaintiff is not entitled to any relief. This suit was also decreed by the trial court. The judgment and decree were carried in appeal before the Court of Subordinate Judge, Thiruvalla as A.S.No.19 of 2007. The learned Sub Judge after reappreciating the evidence allowed the appeal and dismissed the suit. Hence the plaintiff is in appeal. 9. The decision in R.S.A.No.339 of 2011 will depend on the 5 RSA Nos.1014 of 2007 & 339 of 2011 finding relating to Ext.A6 document involved in R.S.A.No.1014 of 2007. 10. Learned counsel for the appellants contended that the lower appellate court seriously erred in declaring Exts.A5 and A6 void. It is the definite case of the 1[st] respondent that his father had executed Ext.A1 gift deed in respect of 2.42 acres of property in the year 1968 in his favour. It is his further assertion that he was put in possession of the property and he was enjoying the same. Later he came to know from the written statement filed by his father in another suit that the document had been cancelled and a sale deed had been executed in favour of the 1[st] appellant, who was a concubine of his father. Admittedly the relationship between deceased Narayanan Nampoothiri (father of the 1[st] respondent) and the 1[st] appellant was established during the subsistence of his marriage with Savithri Antharjanam (2[nd] defendant in O.S.No.697 of 2002). Learned counsel for the appellants contended that long co-habitation can be taken as an indicator for presuming a marriage between Narayanan Nampoothiri and 1[st] appellant. This contention, though attractive, is fallacious. Presumption of marriage arising out of long co-habitation can be drawn only when both the parties were not married at the time of commencement of the cohabitation. In otherwords, benefit of the presumption can be conferred only if two unmarried persons start living together for a long time. In this case, admittedly, deceased Narayanan Nampoothiri married Savithri Antharjanam and seven children were born in the relationship. Nobody has 6 RSA Nos.1014 of 2007 & 339 of 2011 a case that Narayanan Nampoothiri divorced Savithri Antharjanam before starting co-habitation with 1[st] appellant. Therefore, theory of long cohabitation propounded by the learned counsel for the appellants will be of no avail to cloath the 1[st] appellant with status of a wife. Admittedly the relationship between Narayanan Nampoothiri and 1[st] appellant started after commencement of the Hindu Marriage Act, 1955. The Act specifically prohibits a second marriage during the currency of a subsisting marriage. The presumption of marriage arising out of long co-habitation cannot be stretched to defeat the provisions in the Hindu Marriage Act, 1955. It is therefore clear that the lower appellate court was right in holding that the 1[st] appellant cannot claim the status of a wife. 11. Another argument advanced by the learned counsel for the appellants is that by virtue of Section 16 of the Hindu Marriage Act, the daughter (2[nd] appellant in R.S.A.No.1014 of 2007) born to Narayanan Nampoothiri through 1[st] appellant should be presumed to be an illegitimate daughter entitled to share in his property. This contention cannot be accepted for two reasons. Firstly, no marriage between Narayanan Nampoothiri and 1[st] appellant was pleaded or attempted to be proved. In order to attract Section 16 of the Hindu Marriage Act, mere co-habitation for a long time in contravention of Hindu Marriage Act will not be sufficient. A Division Bench of this Court in **Jayachandran v. Valsala (2016 (2) KHC 177)** has considered the scope and applicability of Section 16 of the Hindu 7 RSA Nos.1014 of 2007 & 339 of 2011 ## Marriage Act and held thus: _14. For a host of reasons, we are unable to accept these contentions of the learned counsel for the respondents. Firstly, Section 16 of the Act confers legitimacy of children of void and voidable marriages. In other words, Sub-section (1) of Section 16 of the Act deals with a marriage, which is null and void under Section 11 of the Act and Sub-section (2) therein deals with a voidable marriage annullable under Section 12 of the Act. The legal distinction between void and voidable marriages will have to be borne in mind. It may be true that a void marriage does not exist in the eye of law. Nevertheless, a voidable marriage operates with full vigour and has legal effect, if not annulled by taking recourse to Section 12 of the Act. These two types of marriages are dealt with in Section 16 of the Act. Well settled principle of interpretation of statute is that the intention of the legislature must be found in the words used by the legislature itself. Supreme Court in_ _**Reserve Bank of India v. Peerless General Finance and Investment Co.(AIR 1987 SC 1023)** held:_ _“Interpretation must depend on the text and context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation_ 8 RSA Nos.1014 of 2007 & 339 of 2011 _is best, which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted.”_ _Viewing from any perspective, we are unable to think that the legislature intended no legal consequence for using the expression “marriage”, which may be null and void, in Section 16 of the Act._ _15. Secondly, the Hindu Marriage Act, 1955 is an Act to amend and codify the law relating to marriage among Hindus. The legislature did not venture to define the expression “marriage” in the Act, rightly so, because the intent and purport of the term was well known to a civilised society. Section 4 of the Act speaks about the overriding effect of the Act on any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act. It declares that they shall cease to have effect with respect to any matter for which provision is made in the Act. Section 5 of the Act deals with the conditions for a Hindu marriage. Section 7 of the Act says about the ceremonies for a Hindu Marriage. It says that a Hindu marriage may be solemnized in accordance with the customary rites or ceremonies of either party thereto. If such rites and ceremonies include “saptapadi”, the marriage becomes complete and binding when the seventh_ 9 RSA Nos.1014 of 2007 & 339 of 2011 _step is taken. On a reading of Section 11 of the Act, it is clear that any marriage solemnized after the commencement of the Act shall be null and void, if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5 of the Act. It further says that it may be so declared by a decree of nullity on a petition presented by either party to the marriage. It is fundamental that for declaring a thing to be non est in the eye of law, the thing must exist. Conversely, no legal declaration can be made in respect of a thing which does not exist. For example, an assignment deed executed by a person who is not sui juris, either on account of his minority or mental illness, is undoubtedly a void document. To declare that it is a void document, it must have been executed. Black hole theory in the realm of Astronomy that no matter, including an electromagnetic radiation, such as light, can exist in a black hole due to strong and excessive gravitational effect, has no application in the field of law. Therefore the contention of the learned counsel for the respondents that whether a void marriage is performed or not is immaterial for the purpose of Section 16 of the Act is unacceptable._ _16. Thirdly, the proposition that no marriage need be pleaded or proved to attract Section 16 of the Act is paradoxical to the object of the enactment. Even though Section 16 of the Act_ 10 RSA Nos.1014 of 2007 & 339 of 2011 _is held to be a beneficial legislation, it cannot be stretched that far. The object of the Act is to protect children born to Hindus, once it is proved that they performed the ceremony of a marriage, in whatever form it be, although ultimately it may later turn out to be a void marriage.”_ Secondly, if Ext.A1 gift deed executed by Narayanan Nampoothiri in favour of the 1[st] respondent had been completed and effectuated in all respects, there is no transferable right remained with Narayanan Nampoothiri to execute Ext.A6 sale deed. It is the definite case of the 1[st] respondent in his pleadings as well as in evidence that in 1968 itself the gift was accepted during the life time of the donor and all the ingredients in Section 123 of the Transfer of Property Act, 1882 have been completed. On a perusal of Ext.A1 gift deed it can be seen that the donor had reserved a right to take usufructs for his sustenance and for maintenance of his family. That will not make the gift invalid, as such reservation is permissible under law. Regarding the acceptance of a gift, a Division Bench of this Court had an occasion to consider the nature of evidence required in **Kanhirakottil Mani** ## **v. Madhavi (2017 (1) KHC 854)** . The relevant portion reads as follows: _“24. Well settled proposition is that evidence bearing on the question of acceptance of a gift will have to be appreciated in the background of the circumstances relating to the execution of the gift deed. It is also clear from precedents that_ 11 RSA Nos.1014 of 2007 & 339 of 2011 _where there is slightest evidence of such acceptance, it would be sufficient. There may be cases where the circumstances themselves eloquently speak about the acceptance. However, if the facts and circumstances established by evidence in a given case run contrary to the presumption of acceptance of a gift, the onus shifts back to the person asserting that the gift had been accepted during life time of the donor and while he was capable of giving. In otherwords, the recitals in a gift deed that the donor has given possession of the properties to the donee and the latter has accepted the gift will create only a rebuttable presumption. If the facts and circumstances proved in a given case are inconsistent with the presumption of acceptance, then the donee becomes obliged to establish that the gift had been accepted during life time of the donor and while he was capable of giving. We are of the definite view that the presumption drawable from the recitals in a document in favour of acceptance of gift cannot be regarded as an irrebuttable presumption or a conclusive proof. The legal concepts like conclusive proof and irrebuttable presumption on one hand and rebuttable presumption on the other are well known and clearly distinct. A party challenging a gift deed is free to let in evidence under Proviso (1) to Section 92 of the Evidence Act, 1872 to establish that the gift was not accepted_ 12 RSA Nos.1014 of 2007 & 339 of 2011 _during life time of the donor. Whether a gift in a given case had been accepted as provided under Section 122 of the Act is therefore a question of fact to be decided with reference to the facts and circumstances established in each case. This principle is unassailable.”_ 12. Ext.A5 cancellation deed was executed only in the year 1979 by deceased Narayanan Nampoothiri and assignment (Ext.A6) in favour of the 1[st] appellant was made only on 04.07.1979. Learned counsel on both sides took me through the pleadings and evidence in this case. I am of the definite view that the lower appellate court is perfectly justified in finding that Ext.A1 gift deed was acted upon and all the formalities required under the statute for completion of the gift had been done and also the gift had come into effect. If that be so, deceased Narayanan Nampoothiri had no authority left over the property to execute Ext.A6 sale deed in favour of the 1[st] appellant. To this extent, I find the lower appellate court is correct in its finding. 13. Learned counsel for the appellants strongly contended that the sale deed in favour of PW2 was executed by both Narayanan Nampoothiri and his son, the 1[st] respondent. It was executed on 14.02.1986. According to the learned counsel the appellants, if the 1[st] respondent had obtained absolute right, why would his father join the document? Learned counsel for the respondents answered this query by contending that since RSA Nos.1014 of 2007 & 339 of 2011 13 Narayanan Nampoothiri had retained a life estate, the purchaser must have insisted on his juncture to avoid complications in future. This explanation is logical and I find nothing improper in deceased Narayanan Nampoothiri and 1[st] respondent jointly executing the sale deed. 14. Another contention raised is regarding the bar of limitation. According to the learned counsel for the appellants, the suit is barred by limitation. It has been clearly pleaded in O.S.No.205 of 1995 that the plaintiff came to know about Exts.A5 and A6 only when such a contention was raised in the year 1992 by his father in another suit. Admittedly within three years from the date of the other suit the present suit was filed. It has been specifically pleaded and proved that he had no prior knowledge about the cancellation deed though it was executed in the year 1979. This assertion of the 1[st] respondent has not been controverted either in crossexamination or by adducing independent evidence. Therefore, the question of limitation now raked up cannot be sustained. 15. Learned counsel for the appellants relied on **Omana v. Kesavan (2005 (1) KLT 893)** . It has been held in the decision, based on the facts therein, that when a donor executing a conditional gift deed and retaining possession and enjoyment and also the right to mortgage the property during his life time, it can be presumed that there was no valid gift. The facts and circumstances in that case are totally different from the facts in this case and hence the principles therein cannot be applied here. First 14 RSA Nos.1014 of 2007 & 339 of 2011 of all, it has to be borne in mind that Ext.A1 is not a conditional gift. It is an outright gift with a stipulation made by the donor reserving his right to take usufructs during his life time. Therefore, the decisions relating to conditional gifts cannot be applied in this case. So much so, the principle in **Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker ((1997) 2 SCC 255)** is also not applicable. 16. Learned counsel for the appellants relied on **Baby Ammal v. Rajan Asari ((1997) 2 SCC 636)** to contend a proposition that in the absence of proof of delivery and acceptance of possession of gifted property, the deed in question cannot be construed to be a gift deed. On a reading of the facts in the decision would show that the recitals in the deed indicated that the appellant had retained title to the enjoyment of the property during her lifetime as full owner with all rights. But in Ext.A1 gift deed what was reserved is only the right to take income from the property. Therefore the principles in the above decision cannot be applied in this case. 17. Learned counsel for the respondents relying on **Renikuntla Rajamma v. K.Sarwanamma ((2014) 9 SCC 445)** contended that delivery of possession to donee is not an essential condition after the amendment to Section 129 of the Transfer of Property Act in the year 1929. Even if the donor during his life time retained possession and right to receive rent and profits from the property, the gift is presumed to be a valid one. RSA Nos.1014 of 2007 & 339 of 2011 15 The pleadings and evidence in this case coupled with the principles borne out from the binding precedents take me to an irresistible conclusion that the lower appellate court is right in deciding the appeals against the appellants. Reasons stated are valid and legally correct. Therefore, I find no merit in both the appeals. Substantial questions of law framed in the appeals are decided against the appellants. Appeals are hereby dismissed. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** ## **cks**