Saraswathi Amma (dead) and others v. C.K. Ramakrishna Pillai (dead) and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 6[TH] DAY OF MARCH 2024/16TH PHALGUNA, 1945** **RSA NO. 599 OF 2023** **AGAINST THE JUDGMENT AND DECREE DATED 24.03.2023 IN AS NO.119 OF 2019 OF ADDITIONAL DISTRICT COURT- IV, KOLLAM ARISING OUT OF THE JUDGMENT AND DECREE DATED 29.06.2019 IN OS NO.19 OF 2011 OF ADDITIONAL MUNSIFF COURT, KOLLAM** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **1 SARASWATHI AMMA (DIED) D/O LATE KUNJUKUTTY AMMA, NANDANAM, CHIRAKARA VEEDU, MARAVOOR MURI, EAST KALLADA VILLAGE, EAST KALLADA P.O., KOLLAM DISTRICT, KERALA STATE, PIN - 691502 2 SHEELA KUMARI AGED 49 YEARS D/O SARASAMMA AMMA, RESIDING AT NANDANAM, CHIRAKARA VEEDU, MARAVOOR MURI, EAST KALLADA VILLAGE, EAST KALLADA P.O., KOLLAM DISTRICT, KERALA STATE., PIN - 691502 3 SINDHU KUMARI AGED 47 YEARS D/O SARASAMMA AMMA, NANDANAM, CHIRAKKARA VEEDU, EAST KALLADA, EAST KALLADA P.O., KOLLAM NOW RESIDING AT RAJEEV BHAVAN, EDAVATTOM, PORIYICKAL JUNCTION KARUVELI P.O., KOTTARAKKARA, KOLLAM DISTRICT., PIN - 691505 4 SHEEJA MOL AGED 44 YEARS D/O SARASAMMA AMMA, NANDANAM, CHIRAKKARA VEEDU, EAST KALLADA, EAST KALLADA P.O., KOLLAM NOW RESIDING AT ROHINI NIVAS, KALLELI BHAGAM P.O., MARARITHOTTAM, KARUNAGAPPALLY, KOLLAM DISTRICT., PIN - 690519** **RSA NO. 599 OF 2023** **2** **5** **ASHOK KUMAR AGED 60 YEARS S/O PRABHAKARAN PILLAI, NANDANAM, CHIRAKKARA VEEDU, EAST KALLADA, EAST KALLADA P.O., KOLLAM, PIN - 691502** **BY ADVS. S.V.RAJAN SHIBI.K.P. P.B.MALINI RAO SWETHA P. DILEEP SREENA B.S. KAILAS NATH DONA K.R.** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** - **1 C.K.RAMAKRISHNA PILLAI (DIED) (PLAINTIFF), S/O OF LATE KUNJAN PILLAI, CHIRAKARA VEEDU,MARAVOOR MURI, /NEVER RESIDED EAST KALLADA VILLAGE, EAST KALLADA P.O., KOLLAM TALUK, KOLLAM DISTRICT, KERALA STATE, PIN - 691502** - **2 RAMA DEVI AMMA AGED 67 YEARS (ADDL. PLAINTIFF NO.2) W/O OF LATE C.K RAMAKRISHNA PILLAI, CHIRAKARA VEEDU, MARAVOOR MURI, /NEVER RESIDED EAST KALLADA VILLAGE, EAST KALLADA P.O., KOLLAM TALUK, KOLLAM DISTRICT, KERALA STATE, PIN - 691502** **3 HEMALETHA (ADDL. PLAINTIFF NO.3) D/O. THE LATE RAMAKRISHNA PILLAI, CHAITHRAM, MARUTHOOR KULANGARA THEKKU, KARUNAGAPPALLY P.O., KOLLAM., PIN - 691518** **4 JAYAKUMAR (ADDL. PLAINTIFF NO.4) S/O. THE LATE RAMAKRISHNA PILLAI,** **RSA NO. 599 OF 2023** **3** **CHIRAKKARA VEEDU, MARAVOOR MURI, /NEVER RESIDED EAST KALLADA VILLAGE, EAST KALLADA P.O., KOLLAM., PIN - 691502** **5 SUMALETHA** **(ADDL. PLAINTIFF NO.5) D/O. THE LATE RAMAKRISHNA PILLAI, RAJESH BHAVAN, PERUNGALA P.O., KAYAMKULAM,, PIN - 690559** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO. 599 OF 2023** **4** ## **JUDGMENT** Dated this the 6[th] day of March, 2024 This regular second appeal has been filed under Section 100 and Order XII Rules 1 and 2 of the Civil Procedure Code, challenging the judgment and decree dated 24.03.2023 in A.S.No.119/2019 on the files of the Additional District Court-IV, Kollam, and also the judgment and decree dated 29.06.2019 in O.S.No.19/2011 on the files of the Additional Munsiff's Court, Kollam. Appellants herein are the defendants and respondents herein are the plaintiffs in the above Suit. 2. Heard the learned counsel for the appellants on admission. Perused the verdicts under challenge. 3. I shall refer the parties in this regular second appeal as “ additional plaintiffs” and “additional defendants” for convenience. 4. Originally, the suit was filed by the plaintiff, asserting title over plaint item Nos.1 and 2 properties on the **RSA NO. 599 OF 2023** **5** strength of a settlement deed No.2569/1968 of Ezhukone SRO, marked as Ext.A1 in this case. The specific case of the plaintiff was that after execution of Ext.A1, the same was cancelled by executing Ext.B2 cancellation deed No.3083/1970 and thereafter, the property was released as per Ext.B3 release deed No.3084/1970 in favour of the defendant. The defendant raised counter claim while filing written statement and sought the relief of injunction against the plaintiff. Initially, as per _ex parte_ decree dated 27.10.2012, the learned Munsiff dismissed the suit and allowed the counter claim. 5. During the pendency of the litigation, the sole plaintiff and sole defendant died and additional plaintiffs and additional defendants continued the proceedings. Thereafter, the _ex parte_ decree was set aside and the trial court recorded evidence. PW1 to PW6 examined on the side of the plaintiff and Exts.A1 to A3 were marked. DW1 to DW3 were examined and Exts. B1 to B19 were marked on the side of **RSA NO. 599 OF 2023** **6** the defendants. Exts.X1 series to X3 series and Ext.C1 series also were marked. 6. After analysing the evidence, the learned Munsiff found that Ext.A1 gift deed became complete and thereby the plaintiff obtained title over the plaint schedule property. Accordingly, decree granted in favour of the plaintiff, declaring that cancellation deed No.3083/1970 and release deed No.3084/1970 as void. 7. In the decision in **Ouseph Fernandez v.Teena Ben,** reported in **2023 KHC 833 : 2023 KER 77249** , this Court held that unilateral cancellation of gift deed, which is complete, is not legally permissible. The relevant paragraphs are as under: _“24. In the decision in Pavithran E.A. v. Erayi Arakkalath Neetha reported in [2023 KHC OnLine 704 : 2023 KER 66910], this Court considered the issue regarding unilateral cancellation/revocation of gift deed and its legality. In the said decision, it was held as under:_ _“Summarizing the question how far unilateral_ **RSA NO. 599 OF 2023** **7** _cancellation/revocation of a gift deed, is legally permissible, it has to be held that unilateral cancellation/revocation of a gift deed, which is complete, is not legally permissible and such cancellation/revocation is void. The exemptions are the contingencies dealt under S.126 of the TP Act; which are as under:- i. The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; ii. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.”_ _25. On reading the recitals in Ext.B1, the same deciphers the character of a gift deed and therefore, the courts below rightly found so. Coming to the legal effect of a cancellation deed, thereby a registered settlement deed was cancelled, the law applies to a gift would apply. To be vivid, a settlement deed which is complete, could not be cancelled unilaterally, unless the settlement deed itself provides right of cancellation to the settler on happening of contingencies dealt in the settlement deed itself. Therefore, unilateral cancellation deed executed to cancel a registered settlement deed is void, unless the same is as authorized by the deed itself at the volition of the settler.”_ **RSA NO. 599 OF 2023** **8** 8. In this matter, the execution of Ext.A1 was proved by the plaintiff by examining PW1 to PW6. Since unilateral cancellation of a gift deed is not legally permissible, the cancellation deed marked as Ext.B2 and the release deed subsequently executed in terms of the decree are void ab initio and the same would not confer title upon the defendant. Accordingly, the first appeal also was dismissed. Thus, it appears that the trial court as well as the appellate court rightly non-suited the defendant while granting decree in favour of the plaintiff. 9. In view of the above discussions, concurrent verdicts rendered by the trial court and the appellate court do not require any interference by this Court. 10. In this case, in fact, the learned counsel for the defendant failed to justify any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: **RSA NO. 599 OF 2023** **9** _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 11. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where **RSA NO. 599 OF 2023** **10** the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 12. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial_ **RSA NO. 599 OF 2023** **11** _question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 13. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge** Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 14. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is **RSA NO. 599 OF 2023** **12** mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial _question of law” by suffixing the words “of general importance”_ as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. **RSA NO. 599 OF 2023** **13** 15. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 16. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. 17. All interlocutory applications pending in this second appeal stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr