Rajan K. & Aniyankunju E. v. Laly Yohannan and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ``` THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 ``` ## **`RP NO. 1231 OF 2022`** ## **`AGAINST THE JUDGMENT DATED 29.112018 IN WP(C) NO.37908/2018 OF HIGH COURT`** ## **`OF KERALA`** ## **`REVIEW PETITIONERS/THIRD PARTIES SEEKING REVIEW:`** ``` 1RAJAN K. AGED 59 YEARS, S/O. KUNJAPPY E., THALUVACHIRA HOUSE, MANIYAR P.O., PUNALUR, KOLLAM DISTRIT. 2ANIYANKUNJU E., AGED 51 YEARS, S/O. KUNJAPPY E., POIKAVILA PUTHENVEEDU, THAZHAMEL, ANCHAL P.O., KOLLAM DISTRICT. ``` ``` BY ADVS. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) A.R.DILEEP P.J.JOE PAUL MANU SRINATH RAJAN G. GEORGE ``` ## **`RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 4:`** ``` 1LALY YOHANNAN AGED 51 YEARS, W/O. LATE JAMES, LALU MANDIRAM, VELIYAM VILLAGE, MEEYANNUR P.O, KOTTARA, KOLLAM DISTRICT-691537. 2STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 3TAHSILDAR, TALUK OFFICE, KOTTARAKARA, KOLLAM DISTRICT-691506. 4THE DISTRICT REGISTRAR (GENERAL) OFFICE OF THE DISTRICT REGISTRAR(GENERAL), NEAR COLLECTORATE, KOLLAM DISTRICT-691013. 5THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, ANCHAL, KOLLAM DISTRICT-691306 BY ADV SREEDEVI KYLASANATH ``` ``` SRI. SAIGI JACOB PALATTY-SR. GP ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 02.02.2023, ALONG WITH RP.157/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ``` THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 ``` ## **`RP NO. 157 OF 2020`** ## **`AGAINST THE JUDGMENT DATED 29.112018 IN WP(C) NO.37908/2018 OF HIGH COURT`** ## **`OF KERALA`** ## **`REVIEW PETITIONER/THIRD PARTY:`** ``` ROSAMMA W/O RAJU, AGED 50 YEARS, POIKAVILA PUTHEN VEEDU, THAZHAMEL MURI, ANCHAL VILLAGE, PUNALUR TALUK, KOLLAM DISTRICT (NOW RESIDING AT RINOY BHAVAN, MULAVANA VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT). BY ADVS. K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA SMT.ANUPAMA JOHNY SMT.P.MAYA SMT.K.S.SUDHA SRI.SREE GOVIND ``` ## **`RESPONDENTS/PETITIONER & RESPONDENTS:`** ``` 1LALI YOHANNAN, W/O. LATE JAMES, AGED 48, LALU MANDIRAM, VELIYAM VILLAGE, MEEYANNUR P.O., KOTTARA, KOLLAM-691537. 2STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. 3THE TAHSILDAR TALUK OFFICE, KOTTARAKKARA, KOLLAM - 691506. 4THE DISTRICT REGISTRAR (GENERAL) OFFICE OF THE DISTRICT REGISTRAR (GENERAL), NEAR COLLECTORATE, KOLLAM - 691013. 5THE SUB REGISTRAR OFFICE OF THE SUB REGISTRAR, ANCHAL, KOLLAM - 691306. * ADDL. R6SAJI.M. (3RD PARTY) AGED 36 YEARS,S/O. BABU,MUNDAPLACKAL,EDAMULACKAL P.O.,KOLLAM DISTRICT- 691306. *(ADDL.R6 IMPLEADED AS PER ORDER DATED 29/6/2021 IN IA 5/2020) BY ADV MANSOOR ALI ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 02.02.2023, ALONG WITH RP.1231/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **ALEXANDER THOMAS, J.** **-----------------------------------------------------** Review Petition No.1231 of 2022 & Review Petition No.157 of 2020 _[arising out of judgment dated 29.11.2018 in W.P.(C) No.37908/2018 ]_ **--------------------------------------------** Dated this the 02[nd] day of February, 2023 ## **O R D E R** The learned counsel appearing for the petitioners in the first Review Petition (R.P.) submits that the review petitioners are the brothers of one late James, in whose favour their mother had settled the subject property by the settlement deed, which was later said to be cancelled by the mother. They would contend that the settlement deed in favour of James is, in substance and essence, only a gift deed and the same can be cancelled at any time unilaterally by the donor, if the subject property covered by the gift is not accepted by the donee. That, in the facts of this case, the donee (James) had never accepted the gift during his life time and he passed away later. They would argue that, since the donee-James had never accepted subject property, which is the subject gift during his life time, the settlement deed/gift deed is, in effect, void and therefore, the settler/donor (mother) had every legal 2 Review Petition No.1231 of 2022 & Review Petition No.157 of 2020 right to cancel the settlement deed, which is only a formality and the cancellation deed was also effected. They would also argue that, since the gift was never accepted by the donee, the subject property of the gift will stand reverted to the donor-mother. 2. Whereas, the sole petitioner in the second R.P. would contend that the said party is the sister of the donee (James) and daughter of the donor (mother). 3. Further, the petitioner’s in the first R.P. (who are the other two sons of the donor-mother) would contend that after the cancellation deed, their mother had bequeathed the subject property, covered by the settlement deed/cancellation deed, by a registered Will in favour of these two petitioners and that a part of the property was also bequeathed by the mother to the daughter of the deceased James. Whereas the petitioner in the second R.P. would contend that no valid Will was executed by the mother during her life time and that therefore, after the death of the mother, it is a case of intestate succession and therefore, the subject properties of the late mother are liable to be partitioned and that she (daughter) has filed a suit for partition, which is pending. 3 Review Petition No.1231 of 2022 & Review Petition No.157 of 2020 4. The further submissions of the writ petitioner would broadly contend that the law is well settled that the settlement deed could never have been cancelled unilaterally by a cancellation deed, as has been done in the instant case. The Writ petitioner would place reliance on the decisions of this Court, as in the case in _**Pavakkal Noble John & Anr. v. State of Kerala & Ors.**_ [2010 (3) KLT 941] as well as the decision of the Division Bench of this Court, rendered as per the order dated 14.03.2018 in I.A. No.227/2018 in Mat. Appeal No.778/2012 & I.A. No.2336/2015 in Mat. Appeal No.16/2013, _**Hamsa P.A. v. District Registrar General, Kozhikode & Ors.**_ [2011 (3) KLT 64]. Whereas, it is contended that the very cancellation of the settlement deed effected unilaterally by the mother is ultravires, void, etc. 5. Whereas the learned counsel appearing for the writ petitioner would point out that, after the impugned judgment in this writ petition (civil), the right of the subject property was vested with the writ petitioner as well as her daughter and later, the writ petitioner had settled her share of the subject property to her daughter and the daughter then became the sole and absolute owner of the entire 4 Review Petition No.1231 of 2022 & Review Petition No.157 of 2020 subject property. Later, the mother had sold the entire subject property to other third parties. Further, it also appears that there was further sale of the property by the subsequent owners. 6. This Court is now apprised that the two petitioners in the first R.P. have filed a suit as O.S. No.359/2019 before the Munsiff’s Court, Punalur, for fixation of boundary of the subject property, based on the registered Will, said to have been executed by the deceased mother. 7. Further, this Court was also told that the sole applicant in the second R.P. has filed OS No.341/2018 before the Munsiff’s Court, Punalur, seeking for partition of the entire subject property, said to be owned by the mother, which is said to be the subject property, covered by the settlement deed/cancellation deed. 8. In that regard, the learned counsel appearing for the writ petitioner would also point out that both the abovesaid suits have been filed by the abovesaid review petitioners, after the rendering of the impugned judgment dated 29.11.2018 in this W.P.(C). 9. The learned Advocates appearing for the review petitioners would point out that their parties were unaware about the abovesaid 5 Review Petition No.1231 of 2022 & Review Petition No.157 of 2020 judgment as they were not made parties. 10. Further, applicants in both the leave applications would urge that they may be given liberty to raise all their contentions in the respective suits, in accordance with law, uninfluenced by the impugned judgment, etc. 11. After hearing both sides, this Court is given to understand that, after the rendering of the impugned judgment in this W.P.(C) on 29.11.2018, the share of the writ petitioner was sold by her to her daughter. Later, the daughter has transferred the entirety of the property to third parties and further, it also appears that there has been subsequent transfers as well. 12. The abovesaid contentions urged by the review petitioners have been resisted by the writ petitioner. 13. The learned counsel appearing for the writ petitioner would also contend that the subject property was duly accepted by the writ petitioner’s husband-James, during his life time. 14. That apart, it is contended that there is no question of unilateral cancellation of the settlement deed, etc. 15. After hearing both sides, it is to be noted that the abovesaid 6 Review Petition No.1231 of 2022 & Review Petition No.157 of 2020 contentions of the review petitioners are now placed before this Court, as those persons have not been made parties in the writ petition. 16. The learned counsel appearing for the writ petitioner would also point out that, in view of the subsequent developments, the prayers in both the suits have become practically infructuous, as the really affected persons are the new purchasers who have not been brought on record in these respective suits. The said plea is opposed by the review petitioners. 17. This Court need not get into the merits of the respective suits, filed by the review petitioners. 18. It is made clear that all contentions available in law to both sides could be raised in the pending suits and the suit may be decided, untrammeled by the observations and findings in the impugned judgment in the writ petition (civil). 19. The applicability or otherwise of the dictum laid down in the aforecited decisions, to the facts of the present cases, may be examined and decided by the civil court in accordance with law, during the adjudication process. 7 Review Petition No.1231 of 2022 & Review Petition No.157 of 2020 With these observations and directions, both the review petitions will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Skk//06022023