RSA No. 1040/2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936** ## **RSA.No. 1040 of 2006 ( )** **------------------------(AGAINST THE JUDGMENT IN AS.NO. 41/1999 OF ADDL.DISTRICT COURT, PATHANAMTHITTA DATED 30-09-2005)** **---------------** **(AGAINST THE JUDGMENT IN OS.NO. 581/1990 OF MUNSIFF COURT, PATHANAMTHITTA DATED 29-08-1998)** **------------** **APPELLANT(S)/APPELLANTS:** **----------------------------------------------** ## **1. DAMODARAN ACHARI,** **HINDU, AGED 70 YEARS, S/O. RAMAN ACHARI, RESIDING AT MELEMANNIL, VALLIKODE -, KOTTAYAM VILLAGE,KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. (DIED)** - ***2. M.R.THANKAPPAN ACHARI,** **HINDU, AGED 60 YEARS, S/O. RAMAN ACHARI, RESIDING AT MELEMANNIL, VALLIKODE-KOTTAYAM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. (TRANSPOSED AS SECOND RESPONDENT)** - ***ADDL.A2. CHELLAMMA,AGED 60 YEARS,** **W/O. DAMODHARAN ACHARI, MELEMANNIL HOUSE, VALLIKODE KOTTAYAM, KOZHENCHERRY TALUK.** ***ADDL.A3. SANTHOSHKUMAR, AGED 37 YEARS, S/O. LATE DHAMODHARAN ACHARI.** ***ADDL.A4. PRASAD.M.D., AGED 35 YEARS, S/O.LATE DHAMODHARAN ACHARI. -DO- -DO-** ***ADDL.A5. PRAKASH.M.D., AGED 31 YEARS, S/O. LATE DAMODHARAN ACHARI. -DO- -DO-** ***ADDL.A6. PRADEEPKUMAR, AGED 29 YEARS, S/O.LATE DAMODHARAN ACHARI.** ***ADDL.A7. KU. ANITHA, AGED 27 YEARS, D/O. LATE DAMODHARAN ACHARI. -DO- -DO-** **2/-** **sts** **-2-** ## **RSA.NO.1040/2006** ## ***ADDL.A8. MRS. INDIRA, AGED 39 YEARS,** **D/O.LATE DAMODHARAN ACHARI, VELLARA MURUPPEL HOUSE, THAZHOM.P.O., MALAYALAPPUZHA, PATHANAMTHITTA.** ***ADDL.A2 TO A8 ARE IMPLEADED AS THE LR'S OF THE DECEASED SOLE APPELLANT VIDE ORDER DATED 25/3/2010 IN IA.NO.852/2010.** **BY ADDL.A2 TO A8 ADV.SRI.N.N.SASI** **RESPONDENT(S):** **----------------------------** ## **R1. PONNAMMA,** **HINDU, AGED 75 YEARS, D/O. KALYANI, RESIDING AT SREENILAYAM, KORATTIKKATTU MURI, MANNAR VILLAGE, CHENGANNOOR TALUK, ALAPPUZHA DISTRICT.** ## ***ADDL.R2. M.R.THANKAPPAN ACHARI,HINDU, AGED 60 YEARS,** **S/O.RAMAN ACHARI, MELEMANNIL VELLICODE- KOTTAYAM VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** ***THE SECOND APPELLANT IS HEREBY TRANSPOSED AS THE ADDITIONAL RESPONDENT IN THE APPEAL VIDE ORDER DATED 24/1/07 IN RSA.NO.1040/06 & CMAPPL.NO.767/06.** **R1 BY ADVS. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.N.K.KARNIS SRI.LATHEESH SEBASTIAN R2 BY ADV. SRI.R.SANTHOSH BABU** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2014, THE COURT ON 20-10-2014 DELIVERED THE FOLLOWING:** **sts** ## **RSA.NO.1040/2006** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX A ORGINAL COPY OF MEDICAL CERTIFICATE DATED 9/11/06.** **ANNEX B COPY OF THE RESURVEY PLAN ISSUED BY VILLAGE OFFICER, VALLICODE-KOTTAYAM** **ANNEX C COPY OF THE 'THANDAPER RECORD' ISSUED BY VILLAGE OFFICER VALLICODE-KOTTAYAM.** ## **RESPONDENT'S ANNEXURES:** **ANNEX R1 COPY OF THE OBJECTION FILED BY THE APPELLANTS IN E.P.15 OF 2006 IN O.S.581/90 BEFORE THE MUNSIFF'S COURT, PATHANAMTHITTA DATED 21/3/2006** **ANNEX R1(A) COPY OF THE OBJECTION FILED BY THE APPELLANTS IN E.P.15/2006 IN O.S.581/90 BEFORE THE MUNSIFF'S COURT, PATHANAMTHITTA DATED 26/7/2006 ANNEX R1(B) COPY OF THE OBJECTION FILED BY THE APPELLANTS IN E.P.15/2006 IN O.S.581/90 ON THE FILES OF THE MUNSIFF'S COURT, PATHANAMTHITTA DATED 28/10/2006.** ## **/TRUE COPY/** **P.A.TO.JUDGE** **sts** ## A.V.RAMAKRISHNA PILLAI, J. = = = = = = = = = = = = = = ## R.S.A No.1040 of 2006 = = = = = = = = = = = = = = = Dated this the 20[th] day of October, 2014 ## JUDGMENT The defendants are the appellants. 2. The respondent filed the original suit before the Munsiff's Court, Pathanamthitta, for declaration of title and recovery of possession of plaint item having an extent of 38 cents which according to her was obtained by Ext.A1 gift deed, said to have been executed by her deceased father. 3. The appellants are her younger brothers. The appellants contended that Ext.A1 gift deed was obtained by misrepresentation. According to them, though the gift deed is said to have been executed on 5.6.1971, they were residing in the plaint item in a separate residence, since 1967 onwards. They also contended that their father, till his death, was residing with the first appellant in the said property and they were also permitted to reside in the plaint item as if, it were owned by the father. RSA.1040/2006 **-:2:-** 4. They further contended that the respondent was given all her share at the time of her marriage, about 20 years prior to the alleged execution of Ext.A1 gift deed. Their contention is that at the most, she is entitled to the one-third share of the plaint item. The appellants further contended that as per the revenue records, the property is still in the name of her father and as the appellants are not having any other property, they are entitled to Kudikidappu right. 5. The trial court after raising proper issues for trial referred the issue regarding Kudikidappu right for consideration of the Land Tribunal concerned. The Land Tribunal found that the appellants are not entitled to Kudikidappu right. Thereafter the parties went for trial wherein PWs.1 and 2 and DWs.1 to 3 were examined, and Exts.A1 and A2 series were marked. The trial court after considering the evidence, including the reference order decreed the suit holding that Ext.A1 has come into effect and the respondent is the absolute owner in possession of the plaint schedule property. RSA.1040/2006 **-:3:-** 6. Though the appellants took the matter in appeal before the District Court, Pathanamthitta, it was without success. It is with this background, they have come up before this Court. 7. I have heard the learned counsel for appellants and the learned Senior Counsel for the respondent. 8. The respondent claimed title to the plaint schedule property on the basis of Ext.A1 executed by the father of the respondent and the appellants. The main contention raised by the appellants was that Ext.A1 document did not come into effect and it was the result of fraud perpetuated by the respondent over the father. They would contend that till the death of the father, he was dealing with the property as if it were his own and, therefore, there is absolutely no reason to believe that Ext.A1 document was executed by the father in favour of the respondent with the knowledge that it was a gift deed. 9. The trial court as well as the lower Appellate Court on a consideration of the evidence, came to the conclusion that the gift deed has been executed by the respondent. Whether Ext.A1 RSA.1040/2006 ## **-:4:-** gift deed has been accepted or not is a pure question of fact and in the light of the concurrent finding entered into by the courts below on that question, the same cannot be re-agitated here. Though the learned counsel for the appellants relied on the decision of the High Court of Punjab and Haryana in Tirath v. Manmohan Singh and others (AIR 1981 Punjab and Haryana 174), the same will not help the appellant in the light of para (10) of the judgment which is extracted below: “As regards the contention that the gift was not complete as there was no delivery of possession to the donees I do not find any merit therein. Once it is held that Smt. Banti had become the full owner of the suit land, the plaintiffs have no right to challenge her alienation and as such the suit cannot be held to be maintainable. In any case, the gift-deed has been signed by the donees in token of their acceptance of the same and it is only the donor who could object to the delivery of possession. If the donor supports that a valid gift was made, then non delivery of possession if any, becomes immeterial. Section 123 of the Transfer of Property Act, provides that for the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. In the present case, the compliance with that provision has been RSA.1040/2006 ## **-:5:-** made and under the circumstances the non-delivery of possession, if any, is of no consequence, particularly when the plaintiffs have no right to challenge the gift itself. “ 10. As rightly pointed out by the lower Appellate Court, the appellants have no case that the respondent was in a position to dominate the Will of their deceased father. It was contended that their father has signed Ext.A1 document as he was made to believe that it was a document in connection with a chitty transaction. The court below relying on Ext.B1 has observed that the deceased father of the parties was literate. As the appellant is agitating a pure question of fact, this Court is of the view that the scope of interference of this Court in second appeal is little. Therefore, the appeal fails and accordingly, it is dismissed. No order as to costs. Sd/- A.V.RAMAKRISHNA PILLAI JUDGE krj /True Copy/ P.A to Judge