Sahitha v. Sunil and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942** **RSA.No.66 OF 2021** **AS 238/2014 OF II ADDITIONAL DISTRICT COURT, THRISSUR** **OS 2377/2012 OF PRINCIPAL MUNSIFF COURT, THRISSUR** ## **nd APPELLANT/2 APPELLANT/4TH DEFENDANT:** **SAHITHA, AGED 36 YEARS W/O.PUTHUSSERY PRADEEP, PERAMBRA, KODAKARA, THRISSUR 680 689** **BY ADV. SRI.E.M.JOSEPH** ## **RESPONDENTS/RESPONDENTS/1ST APPELLANT/PLAINTIFF:** - **1 SUNIL, AGED 46, S/O.LATE THEKKETHARA SANKUKUTTY, ELAMTHURUTHY, MARATHANKKARA, THRISSUR 680 306** - **2 AMBIKA, AGED 64, W/O.LATE THEKKETHARA SANKUKUTTY, ELAMTHURUTHY, MARATHAKKARA, THRISSUR 680 306** - **3 SONIA, AGED 42, D/O.LATE THEKKETHARA SANKUKUTTY, ELAMTHURUTHY, MARATHAKKARA, THRISSUR 680 306** - **4 ARJUN KUMAR, AGED 38, S/O.LATE THEKKETHARA SANKUKUTTY, ELAMTHURUTHY, MARATHAKKARA, THRISSUR 680 306** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2021, THE COURT ON 16-03-2021 DELIVERED THE FOLLOWING:** R.S.A.No.66 of 2021 ..2.. ## **JUDGMENT** The appellant is the 2[nd] appellant in A.S.No.238/2014 on the file of the second Additional District Court, Thrissur (hereinafter referred to as 'the first appellate court') and the 4[th] defendant in O.S.No.2377/2012 on the file of the Principal Munsiff's Court, Thrissur (hereinafter referred to as 'the trial court'). The parties are hereinafter referred to as the plaintiff and defendant according to their status in the trial court unless otherwise stated. 2. The suit is for declaration of title, recovery of possession, partition and other reliefs. 3. The plaint averments in brief are hereinbelow:- The 1[st] defendant is the wife of Sankukutty, son of Ayyappan. The plaintiff, defendants 2 to 4 and late Sofiya are the children born to the 1[st] defendant in the wedlock with Sankukutty. The property described in the plaint schedule originally belonged to Ayyappan, son of R.S.A.No.66 of 2021 **==> picture [22 x 8] intentionally omitted <==** Sankukutty on a lease arrangement. Ayyappan applied to the Land Tribunal and obtained purchase certificate bearing No.179/1973. Thereafter, Ayyappan was in possession of the plaint schedule property. Ayyappan died. During his life time, he had executed a Will bearing registration No.21/76 of SRO, Ollukkara on his own free will and volition. On the death of Ayyappan, his right over the plaint schedule property devolved upon Sankukutty and Sankukutty became the owner in possession of the plaint schedule property. The plaintiff and the 3[rd] defendant are the male children of Sankukutty. Out of his love and affection towards the plaintiff and the 3[rd] defendant, Sankukutty voluntarily executed a settlement deed as per document No.2763/2000 of SRO, Kuttanellur and thereby settling the plaint schedule property to the plaintiff and the 3[rd] defendant. After the execution of the settlement deed the plaintiff and the 3[rd] defendant have R.S.A.No.66 of 2021 **==> picture [22 x 8] intentionally omitted <==** got equal right over the plaint schedule property and have been in possession and enjoyment of the plaint schedule property as absolute owners thereof. At the time of the execution of the settlement deed, the plaintiff and the 3[rd] defendant were on good terms. Subsequently, he conducted a marriage on 17.2.2004 without the consent of Sankukutty. Sankukutty was insisting thereafter that the plaintiff should return to his house. Within two days of the marriage of the plaintiff, Sankukutty had executed a cancellation deed as document No.810/2004 of the SRO, Kuttanellur cancelling the earlier settlement deed in favour of the plaintiff. On 30.3.2004, Sankukutty executed a settlement deed as document No.1670/2004 of SRO, Kuttanellur in favour of defendants 3 and 4. According to the plaintiff, he is entitled to ignore the cancellation deed bearing No.810/2004 of SRO, Kuttanellur and settlement deed bearing No.1670/2004 of SRO, Kuttanellur. Hence, R.S.A.No.66 of 2021 **==> picture [22 x 8] intentionally omitted <==** the plaintiff seeks declaration of title, recovery of possession and partition. 4. The defendants filed a joint written statement contending that the settlement deed No.2763/2000 of SRO, Kuttanellur is a sham document. It is their contention that Sankukutty had no intention to give the plaint schedule property to the plaintiff and the 3[rd] defendant only. The plaintiff or the 3[rd] defendant did not obtain possession of the plaint schedule property on the strength of document bearing No.2763/2000. The cancellation deed bearing No.810/2004 is valid and properly executed. Sankukutty was having right and authority to execute document No.810/2004. As a matter of fact, Sankukutty had executed a settlement deed No.2763/2000. The settlement deed bearing No.1670/2004 was executed voluntarily with a view to give the plaint schedule property to the defendants 3 and 4. After the execution of the said settlement deed, the R.S.A.No.66 of 2021 **==> picture [22 x 8] intentionally omitted <==** defendants 3 and 4 have been enjoying the plaint schedule property. The plaint schedule property is not partible. 5. Heard the learned counsel for the appellant. 6. Admittedly, the plaint schedule property originally belonged to one late Ayyappan. It is further admitted that he had executed a Will bequeathing the plaint schedule property to Sankukutty. On the demise of Ayyappan, Sankukutty became the absolute owner of the plaint schedule property. The plaintiff and defendants 2 to 4 are the children of late Sankukutty. The 1[st] defendant is the wife of Sankukutty. In the year 2000, Sankukutty had executed a settlement deed as per Ext.A1 in favour of the plaintiff and the 3[rd] defendant and thereby gifted the property to the plaintiff and the 3[rd] defendant. In the written statement filed by the defendants, they had no case that Ext.A1 is not a document executed by R.S.A.No.66 of 2021 **==> picture [22 x 8] intentionally omitted <==** Sankukutty. Ext.A2 would show that Sankukutty had executed Ext.A1. Going by Section 123 of the Transfer of Property Act, for the purpose of making a gift of immovable 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. Section 123 of the Transfer of Property Act specifically provides that for the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed or by delivery. 7. On a perusal of Ext.A1, it would show that there are clear words whereby the interest is transferred by the donor to the donee. Ext.A1 would show that Sankukutty had executed Ext.A1 out of love and affection towards the plaintiff and the 3[rd] defendant who are his male children. Ext.A1 would also show that the plaint schedule property was gifted to the plaintiff and the 3[rd] defendant by R.S.A.No.66 of 2021 **==> picture [22 x 8] intentionally omitted <==** Sankukutty as their share in the ancestral property. 8. In **Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker & others** [(1997) 2 SCC 255] the Apex Court held that the 'gift' means to transfer certain existing movable or immovable property voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee. The execution of a registered gift deed, acceptance of the gift and delivery of the property together make the gift complete. Thereafter, the donor is divested of his title and the donee becomes absolute owner of the property. 9. Going by Ext.A1, it is clear that Ext.A1 is a conditional gift with no recitals of acceptance and no evidence in proof of acceptance where possession remains with the donor as long as he is alive. There is also no evidence to show that Ext.A1 is incomplete gift and title R.S.A.No.66 of 2021 **==> picture [22 x 8] intentionally omitted <==** remains with the donor to cancel the gift. The evidence on record would show that the relationship between the plaintiff and his father was not cordial after 2004 on account of his marriage. Further, Sankukutty had filed two suits in the year 2007 against the plaintiff. The 3[rd] defendant is also a donee under Ext.A1. The gift deed was accepted by the plaintiff during the life time of the donor before the cancellation. Ext.A2 was executed on 19.2.2004 within two days from the date of the plaintiff's marriage. Ext.A5 clearly proves that after the execution of Ext.A1 deed mutation has been effected in the name of the plaintiff and the 3[rd] defendant. It is an indication that Ext.A1 gift deed was accepted by the plaintiff and the 3[rd] defendant. The recital in Ext.A1 document regarding divesting of right, title and interest of the executant confining the same in favour of the donee is sufficient to infer the acceptance of the gift. After the acceptance of R.S.A.No.66 of 2021 ..10.. Ext.A1 gift, that the donor had no right to execute Ext.A2. Hence, Exts.A2 and A3 are invalid. Accordingly, the trial court declared the right of the plaintiff and the 3[rd] defendant over the plaint schedule property as per Ext.A1. Non-production of Ext.A1 is not ground to non-suit the plaintiff especially when the 3[rd] defendant is arrayed as one of the defendants in the suit. Thus, the trial court is fully justified in declaring that Exts.A2 and A3 are invalid. Thus, the trial court divided the property into two equal shares and allotted one such share to the plaintiff. The findings are legal and proper. 10. A second appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the 4[th] defendant to re-agitate facts or to call upon the High R.S.A.No.66 of 2021 **==> picture [28 x 8] intentionally omitted <==** Court to re-analyse or re-appreciate evidence in a second appeal. In the case on hand, both the trial court and the first appellate court relied on the oral evidence of PWs.1 to 3, Exts.A1 to A5, Exts.B1 to B8 and DW1 to grant a decree for declaration of title, recovery of possession and partition. 11. On behalf of the appellant, it has strenuously been contended with considerable force that Ext.A1 was cancelled by the executant as per Ext.A2 cancellation deed. It was further contended that Exts.A2 and A3 had come into force. However, there is no contra evidence adduced by the 4[th] defendant to prove that Ext.A1 settlement deed No.2763/2000 had not come into effect. To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties R.S.A.No.66 of 2021 **==> picture [28 x 8] intentionally omitted <==** before it, if answered either way. As stated earlier, in a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact that the plaint schedule property belongs to the plaintiff and the 3[rd] defendant as per Ext.A1 settlement deed and Exts.A2 and A3 had no effect on the right of the plaintiff and 3[rd] defendant over the plaint schedule property is not open to challenge in second appeal, even if the appreciation of evidence is wrong. There is no debatable issue before this Court which is not covered by settled principles of law or precedents. 12. The trial court and the first appellate court examined the evidence on record at length and arrived at a reasoned conclusion that the plaintiff is entitled to get a decree for declaration of title over the plaint schedule property, recovery of possession and partition. The concurrent findings of facts of the trial court and the first R.S.A.No.66 of 2021 **==> picture [28 x 8] intentionally omitted <==** appellate court do not warrant interference in a second appeal. For the reasons discussed above, the R.S.A. is dismissed. There will be no order as to costs. Pending applications, if any, stand disposed of. **Sd/-** **N.ANIL KUMAR, JUDGE** skj