Ramachandran Nair v. Raghavan Nair and Others (RSA No.445 of 2004)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941** ## **RSA.No.445 of 2004** **AGAINST THE DECREE & JUDGMENT IN AS 94/1996 of II ADDITIONAL DISTRICT COURT,PALAKKAD** **AGAINST THE DECREE & JUDGMENT IN OS 97/1992 of SUB COURT, OTTAPPALAM** ## **APPELLANT/5TH DEFENDANT:** **RAMACHANDRAN NAIR, S/O KALI AMMA KUTTIKKATTU KIZHAKKETHIL, ALANGAD AMSOM, VETTEKKARA DESOM, OTTAPPALAM TALUK, P.O.VETTEKKARA, KADAMPAZHIPPURAM.** **BY ADV. SRI.SABU GEORGE** ## **RESPONDENTS/PLAINTIFF/DEFENDANTS 1 TO 4: & LEGAL REPRESENTATIVES** ## **OF 2 TO 4** |**4**|| |---|---| |**1**|**RAGHAVAN NAIR**| ||**S/O.KALI AMMA,KUTTIKKATTU KIZHAKKETHIL, ALANGAD**| ||**AMSOM, VETTEKKARA DESOM, OTTAPALAM TALUK,**| ||**P.O.VETTEKKARA, KADAMPAZHNIPPURAM.**| |**2**|**RAMANKUTTY NAIR (DIED).**| |**3**|**KUNHILAKSHMI AMMA (DIED).**| |**4**|**UNNIKRISHNAN NAIR (DIED).**| |**5**|**PANKAJAKSHI AMMA**| ||**D/O.KALI AMMA, MELETHIL VEEDU, P.O.VENGASSERI,**| ||**AMABALAPARA, OTTALAPPALAM.(DIED, LEGAL HEIRS**| ||**IMPLEADED)**| |**6**|**KALYANIKUTTY AMMA**| ||**W/O.RAMANKUTTY NAIR, RESIDING AT NO.5. 8TH STREET,**| ||**PERIYA NAGAR, GINDI, CHENNAI.**| **RSA.No.445 of 2004 2** - **7 MANOMANI D/O. RAMANKUTTY NAIR, -DO- - DO-** - **8 VIJAYALAKSHMI D/O.RAMANKUTTY NAIR, -DO- -DO-** - **9 RAJAN S/O.RAMANKUTTY NAIR, -DO- -DO-** - **10 SUNDARESWARAN S/O.RAMANKUTTY NAIR, -DO- -DO-** - **11 RAJESWARAN S/O.RAMANKUTTY NAIR L/6, RAJ BHAVAN, RAJ BHAVAN P.O., CHENNAI - 22.** **12 SUBDRA AMMA D/O.KUNHILAKSHMI AMMA PUSHPA NIVAS, ADAKKAPUTHUR, CHERPULASSERY, OTTAPPALAM.** - **13 VIJAYANARAYANAN S/O.KUNJILAKSHMI AMMA TELEPHONE EXCHANGE, TIRUPURA, TAMIL NADU.** - **14 RADHA D/O.KUNJILAKSHMI AMMA NOW RESIDING AT GANGASREE, KULAKKADU P.O., ADAKKAPUTHUR, CHERPULASSERY, PALAKKAD.** - **15 PANKAJAKSHY AMMA W/O.LATE UNNIKRISHNAN NAIR, SRAMBIKKAL HOUSE, VETTEKKARA P.O., KADAMPAZHIPPURAM, OTTAPPALAM.** - **16 MOHAN S/O.UNNIKRISHNAN NAIR -DO- - DO-** - **17 RAGHAVAN S/O.UNNIKRISHNAN NAIR -DO- -DO-** - **18 VIJAYALAKSHMI D/O.UNNIKRISHNAN NAIR -DO- - DO-** **RSA.No.445 of 2004 3** **19 RAJALAKSHMI D/O.UNNIKRISHNAN NAIR -DO- -DO-** ## **20 ADDITIONAL RESPONDENTS** ## **INDIRA,** **AGED 60 UEARS, D/O.PANKJAKSHY AMMA, VELLOOR HOUSE, MUTHUKURISSY, THACHAMPARA P.O., MANNARKAD, PALAKKAD.** - **21 MANIKANDAN,** **AGED 58 YEARS, S/O.PANKAJAKSHY AMMA, MELETHIL VEEDU, VANGASERI P.O., AMBALAPARA, OTTAPPALAM TALUK, PALAKKAD, PIN-679 516.** ## **22 SANKARANARAYANAN,** **AGED 50 YEARS, S/O.PANKAJAKSHY AMMA, MELETHIL VEEDU, VANGASERI P.O., AMBALAPARA, OTTAPPALAM TALUK, PALAKKAD, PIN-679 516.** *** LEGAL HEIRS OF DECEASED 5TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 20 TO 22 AS PER ORDER DATED 24.07.2019 IN I.A.NO.3/2019.** ## **BY ADVS.** **SRI.PUSHPARAJAN KODOTH FOR R1, R20, R21, R22 SRI.K.JAYESH MOHANKUMAR FOR R1, R20, R21, R22 SRI.T.SETHUMADHAVAN (SR.) FOR R1, R20, R21, R22** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No.445 of 2004 4** **CR** ## **JUDGMENT** A suit for partition ended in a preliminary decree both in the Trial Court and in the First Appellate Court. The 5[th] defendant came up with this appeal against the said decree and judgment of both the courts below. 2. Admittedly, the property in issue originally belonged to the father of plaintiff and the defendants. According to the plaintiff, it was devolved upon them equally after the demise of father. _Per contra_ the 5[th] defendant contended that, no such property was left out by the father, as it was given to him on an earlier occasion by executing Ext.B1 settlement deed. Both the courts below found that Ext.B1 document was not accepted by the 5[th] defendant and a preliminary decree for partition was granted with respect to the plaint schedule property as the one left out by the deceased father, against which the 5[th] defendant came up with this appeal. **RSA.No.445 of 2004 5** 3. The following questions came up for consideration : 1) What actually amounts to a settlement deed and whether it would constitute a gift as defined under Section 122 of the Transfer of Property Act ? 2) Whether it is necessary to call for and examine one of the attesting witnesses to prove the due execution of a gift/a settlement deed, unless the same is denied by the person by whom it purported to have been executed ? 3) Whether the proviso to Section 68 of the Indian Evidence Act would be available to all persons who are interested in denying the execution of a document and whether the decision drawn by a single Bench of this Court in **Rudrayani Devaki (Died) and others v. A.Rajeswari and others ( 2018 (4) KHC 134)** is bad in law in view of the Division Bench decision rendered in **Kannan Nambiar v. Narayani Amma and Others ( 1984 KHC 284)** ? 4) When there is a document of alienation whether a suit for partition without seeking to set aside the same would be maintainable ? ## **RSA.No.445 of 2004 6** 5) Whether a gift which was accepted after the death of donor would be void in the eye of law ? Is there any difference in the legal position if the donee dies before acceptance of the gift ? 6) What would be the legal position when there is a deemed notice of execution of the gift by the operation of Section 3 of the Transfer of Property Act and whether the deemed notice under Section 3 of Transfer of Property Act would amount to acceptance of a gift as mandated under Section 122 of Transfer of Property Act ? 4. It is a suit for partition simplicitor without seeking to set aside Ext.B1 settlement deed, a registered deed of settlement alleged to have been executed by the father. It was submitted by the learned counsel for the respondent/plaintiff that it is not at all necessary to seek for setting aside the document or to declare their title over the property and a simple suit for partition would lie. _Inter alia_ it was also contended that DW2, the 5[th] defendant while in the box had admitted that ## **RSA.No.445 of 2004 7** he came to know about the execution of Ext.B1 gift deed after the death of the donor, his father, as such there cannot be any acceptance of the gift during the life time of the donor and the gift would stand as void by virtue of Section 122 of the Transfer of Property Act and hence there is no necessity for setting aside a void document and a mere suit for partition would stand. It was also contended that inorder to prove due execution of a settlement deed, examination of one of the attesting witnesses cannot be avoided and relied on the decision rendered by a Division Bench of this Court in **Kannan Nambiar v. Narayani Amma and Others** **( 1984 KHC 284)** and submitted that the decision drawn in **Rudrayani Devaki (Died) and others v. A.Rajeswari and others ( 2018 (4) KHC 134)** rendered by a Single Bench of this court did not reflect the correct legal position and hence requires reconsideration. 5. Before going into the said question, it is necessary to have some understanding with respect to what actually amounts to Ext.B1 document styled **RSA.No.445 of 2004 8** as a settlement deed and whether it would constitute a gift of immovable property as defined under Section 122 of Transfer of Property Act, 1882. 6. The expression 'settlement' is not defined anywhere in the Transfer of Property Act. The substantive definition is given under Section 2(b) of the Specific Relief Act, which is extracted below for reference: “2(b)”settlement” means an instrument [other than a will or codicil as defined by the Indian Succession Act, 1925 (39 of 1925)] whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed to be disposed of.” (emphasis supplied) 7. There cannot be any 'consideration' by way of money or otherwise, for a deed of settlement other than the love and affection of the executant towards the beneficiary. A deed of gift can be given to any person irrespective of whether the beneficiary is a legal heir or a dependent. But the ## **RSA.No.445 of 2004 9** 'settlement' as defined under Section 2(b) of the said Act defines the persons to whom it can be given without referring the persons or their status, but by inclusion of two sets of words i.e. 'devolution of successive interest' and 'destination'. The words 'devolution of successive interest' defines the persons to whom the property can be given, which stands for the legal heirs of the executant. But the word 'destination' would stand for all persons inclusive of legal heirs and dependents. So there can be two sets of beneficiaries to a settlement deed as defined under Section 2(b) of the said Act - (1) legal heirs of the executant (2) all persons inclusive of legal heirs and dependents of the executant. In both the case, to effectuate a settlement as defined under Section 2(b) of the Act, there need not be any 'consideration' other than the love and affection of the settlor towards the beneficiary. As such it would satisfy the ingredients which would constitute a 'gift' as defined under Section 122 of the Transfer of Property Act. ## **RSA.No.445 of 2004 10** 8. I am afraid a very strange argument was advanced by the learned counsel for the respondent that a mere production of original of registered gift deed will not discharge the initial burden to prove its due execution and that the examination of one of the attesting witnesses cannot be avoided. It was further submitted that proviso to Section 68 of the Indian Evidence Act is applicable to 'all persons' denying the due execution of gift/settlement and that the earlier decision rendered by this court in **Rudrayani Devaki** 's case (supra) by a single Bench of this court (authored by me) requires reconsideration by relying on a Division Bench decision of this court in **Kannan** **Nambiar** 's case (supra), wherein by relying on the decisions of the Allahabad High Court AIR 1932 Alhabad 320 and the High Court of Tripura AIR 1955 Tripura 70 it was held that “ there is no doubt that not only the executant but also all person who are interested in denying the execution of document are entitled to invoke the aid of proviso to Section 68 of the Evidence Act.” But a contrary ## **RSA.No.445 of 2004 11** view was taken by this court in **Rudrayani Devaki'** s case (supra) without noticing the legal position laid down in **Kannan Nambiar** 's case (supra) by a Division Bench of this Court. The Apex Court had laid down the legal position in **Surendra Kumar v. Nathulal** ( 2001 KHC 1547 = (2001) 5 SCC 46 = AIR 2001 SC 2040) in paragraph 12 that “on a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not ” specifically denied its execution . In view of the above said decision of the Apex Court, the decision rendered by the Division Bench of this Court in **Kannan Nambiar** 's case (supra)cannot be held as good law. 9. Explanation 1 attached to the expression 'a person is said to have notice' under Section 3 of Transfer of Property Act says that where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such ## **RSA.No.445 of 2004 12** property or any part of or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration provided that the instrument has been registered and its registration is completed in the manner prescribed in the Registration Act, 1908 and the Rules made thereunder. When a deed of gift or a settlement duly registered and entered in the registers kept for its registration and when registration was completed in the manner prescribed in the Registration Act, 1908 and the Rules made thereunder, any person acquiring immovable property or share or interest in any such property shall have a deemed notice of registration of document in their favour. The constructive notice embodied under Section 3 of the Transfer of Property Act would come into play giving notice of execution and registration of the gift/settlement deed to the beneficiaries thereunder. Admittedly the gift has been executed and registered in accordance with the law in force by entering the same in the registers kept by the registering authority. As such the **RSA.No.445 of 2004 13** same amounts to constructive notice to all beneficiaries under the document. Then comes the question whether constructive notice would amount to acceptance of gift made thereunder. It is now settled that a mere knowledge regarding execution of a document of gift/settlement to the beneficiary would amount to acceptance. But the expression 'knowledge' cannot be substituted in the place of 'deemed notice' by the operation of statutory provision. The expression 'knowledge' stands for actual notice perceivable by sense and not for deemed notice by the operation of a statutory provision. To resolve the issue, whether a deemed notice would constitute acceptance of gift, it is necessary to analyse the requirement under Section 122 of the Transfer of Property Act constituting a valid gift, which is as follows: “122. **”Gift” defined** - “Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. **RSA.No.445 of 2004 14** **Acceptance when to be made** - Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.” (emphasis supplied) 10. Inorder to constitute a valid gift, it should be accepted during the lifetime of the donor and while he is still capable of giving. The gift would stand void only when the donee dies before acceptance. That does not mean that the gift would stand void when the donor dies before its acceptance. The construction of Section 122 of the Transfer of Property Act itself would show that the gift would stand void only in case the donee dies before its acceptance and the same is included as a rider in a separate paragraph under the sub-head 'Acceptance when to be made' to Section 122 of Transfer of Property Act. The necessary corollary is that when the donor dies before the acceptance of the gift, the gift would stand as incomplete and not void and hence a suit ## **RSA.No.445 of 2004 15** for partition without seeking to set aside the settlement deed cannot be maintained. But when donee dies before its acceptance, the gift would be void and no legal consequence would flow out of it, necessarily, there is no necessity to seek for setting aside the document. In the instant case the donor passed away before getting actual notice of factum of execution of Ext.B1 gift in favour of the defendants. So the gift even going by Section 122 of Transfer of Property Act would stand as incomplete and not as void. As such, unless there is a prayer to set aside the registered document, Ext.B1, a simple suit for partition cannot be maintained. 11. There is nothing in the section to show that the acceptance under Section 122 of the Transfer of Property Act should be express. No express acceptance is necessary for completing a gift and it is the well accepted proposition of law. Even silence on the part of donee is sufficient to infer that the gift was accepted. The only requirement is that the donee must know ## **RSA.No.445 of 2004 16** about the gift which was executed and registered. As discussed earlier, a deemed notice would not constitute the mental element to be exercised by the donee to accept a gift. But at the same time, Section 3 and Section 122 of the Transfer of Property Act being the provisions contained in the same Act, there cannot be an interpretation repugnant to the other. A harmonious interpretation which would effectuate both the provision has to be adopted. A conflict between various provisions should be avoided while interpreting each and every provision contained in the same Act [ See **Jagadish Singh v. Lt.Governor Delhi and others ( AIR 1997 SC 2239)** ]. Section 3 of Transfer of Property Act gives rise a constructive notice to the beneficiaries regarding the document of transfer of immovable property in their favour. Then comes the question what is the purpose of the constructive notice incorporated under Section 3 of the Transfer of Property Act, would it not operate against a gift in the matter of 'acceptance' when the document executed and ## **RSA.No.445 of 2004 17** registered in accordance with the mandate under Section 17 of the Registration Act and what would be the purpose of 'deemed notice' under Section 3 of Transfer of Property Act. There cannot be any mental element exercising acceptance of a gift unless there is 'actual knowledge' perceivable by sense regarding the execution and registration of the gift. But at the same time, since there is a deemed notice to the beneficiary to the gift of immovable property, it is not advisable to insist for an actual notice in the matter of acceptance of gift, otherwise, the deemed notice under Section 3 of Transfer of Property Act would become redundant and purposeless and that might not be the legislative intention while incorporating a deemed notice on registration of document of transfer of immovable property to the beneficiaries thereunder. 12. Further, as discussed in earlier paragraphs a simple suit for partition without seeking to set aside the document of alienation, Ext.B1 is not maintainable and the time available ## **RSA.No.445 of 2004 18** for setting aside the said document now stood elapsed. Both the trial court and the first appellate court went wrong in applying the legal position in its correct perspective. It is liable to be set aside. I do so by allowing this appeal. The appeal is allowed. The decree and judgment of both the courts below are set aside. The suit is dismissed. No costs. **Sd/-** ## **P.SOMARAJAN** SV **JUDGE**