Sarojini and others v. Damodaran Jayaprakash and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 SA.No. 34 of 1996(D) -------------------AS.134/1990 of ADDL. SUB COURT,ATTINGAL OS.229/1988 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S)/RESPONDENTS1, 2 & 4/DEFENDANTS1, 2 & 4: ------------------------------------------------------------------------------------ 1. SAROJINI, - DAUGHTER OF VELAYUDHAN, AGED 64, KIDANGUVILA KADAYIL, VANJARAMOODU, MUDAKKAL MURI, NELLANAD VILLAGE. 2. DAMODARAN PREMLAL, AGED 38 YEARS, OF DO. DO. 3. SHYLAJA, AGED 33 OF DO. DO. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S)/APPELLANTS & RESPONDENTS 3, 4 AND 6/ PLAINTIFFS & DEFENDANTS 3, 5 AND 6: ----------------------------------------------------------------------------------- 1. DAMODARAN JAYAPRAKASH, AGED ABOUT 50, CHERUKOTTUVILA VEEDU, KOONTHALLOOR, KIZHUVALAM VILLAGE, CHIRAYINKIL TALUK. 2. DAMODARAN JAYAPRAKASH, CALLED AS PRASANNA, AGED ABOUT 45, OF DO. DO. 3. THANKAMMA PAPPA CALLED AS SUBHASHINI, AGED ABOUT 40, POOVANVILA VEEDU, VALIYAKADA, SARKARA VILLAGE, CHIRAYINKIL TALUK. 4. MADHUJA, AGED ABOUT 35, KIDANGUVILA KADAYIL, MUDAKKAL MURI, NELLANAD VILLAGE. 5. PUSHPARAJAN, AGED ABOUT 51, VALUPACHIAYIL VEEDU, MELATTUKUZHI, VAMANAPURAM VILLAGE. 6. PUSHPARAJAN SURESH MURUKAN, AGED 23, OF DO. DO. ADV. SRI.M.BALAGOVINDAN FOR R1 TO R3 SRI.BIJU KURIAKOSE FOR R1 TO R3 SRI.M.N.MANOJ FOR R4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON 22/09/2011 DELIVERED THE FOLLOWING: ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 34 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of September, 2011. ## **JUDGMENT** First, second and fourth defendants in O.S.229 of 1988 before the Principal Munsiff's court, Nedumangad are the appellants. They suffered a decree at the hands of the lower appellate court. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 2. The plaintiffs and defendants 2 to 5 are siblings. Among them, plaintiffs 1 to 3 are the children of late Damodharan through his first wife. He had also another daughter by name Mangalakumari, who is no more and defendants 5 and 6 are her children. The first defendant is the second wife of Damodharan. The plaintiffs would claim that by virtue of Ext.A1 dated 31.8.1957, a deed said to have been executed by Damodharan in their favour, the plaintiffs as well as 2 S.A.34/1996. defendants 5 and 6 are entitled to the suit property. They effected mutation and have been paying tax in pursuance to the said deed. Damodharan died on 28.4.1988. Damodharan had retained a life interest and right of residence in the suit property. After the death of Damodharan, when the plaintiffs went to take possession, they were prevented by defendants 1 to 4 who set up a rival claim to the property. It is then they learnt that Damodharan had executed a cancellation deed cancelling Ext.A1 document and had created some other document in favour of defendants 1 to 4. The allegation in the plaint is that the cancellation deed is not valid in law and therefore the subsequent settlement deed in favour of defendants 1 to 4 is of no consequence. On the basis of these allegations, they laid the suit for necessary reliefs. 3. Defendants 1, 2 and 4 resisted the suit. The third defendant remained ex-parte. Defendants 5 and 6 filed a separate written statement supporting the plaintiffs. S.A.34/1996. 3 4. The contesting defendants in their written statement denied the allegations in the plaint. According to them, Ext.A1 had not been accepted by the beneficiaries therein and Damodharan continued to be in possession and ownership over the suit property. By Ext.A2 dated 10.4.1973 Damodharan had cancelled Ext.A1 settlement deed and thereafter had executed Ext.B2 settlement deed dated 18.12.1981 by which defendants 1 to 4 alone are beneficiaries. Eversince the marriage of the first defendant, she is residing in the building in the suit property along with defendants 2 to 4. The plaintiffs have no manner of right over the suit property. On the basis of these contentions they prayed for a dismissal of the suit. 5. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. Defendants had D.Ws.1 to 3 examined and Exts.B1 to B7 marked. The trial court on an evaluation of the evidence in the case came to the S.A.34/1996. 4 conclusion that Ext.A1 document had not been accepted by the donees and therefore the gift has not taken effect. Accordingly, the suit was dismissed. 6. The plaintiffs carried the matter in appeal as A.S. 134 of 1990 before the Sub Court, Attingal. The lower appellate court found that since mutation has been effected and tax has been paid, it cannot be said that Ext.A1 gift deed had not been accepted by the donees. Holding that the trial court was in error in negativing the gift, the lower appellate court reversed the judgment and decree of the trial court and passed a decree in favour of the plaintiffs. That brings the defendants before this court. 7. Notice is seen issued on the following questions of law: _“(a) Can the minors accept a gift if they are not represented by a guardian in the document._ - _(b) What is the effect of a cancellation deed of a gift if the same is executed before the acceptance of gift._ S.A.34/1996. 5 _(c) Can a gift deed in favour of minors be treated as come into effect on the date of execution of the same._ - _(d) Is not the donor entitled to cancel a gift if the same is not accepted by the donees._ - _(e) Is not the donor entitled to repudiate the gift executed by him and assert hostile possession by continuing in possession._ - _(f) Is not the suit barred by adverse possession and limitation._ - _(g) Cannot the defendants tack on their possession to the hostile possession of their predecessor._ - _(h) Has not the lower court misinterpreted Ext.A1 and wrongly and illegally held that it is a settlement deed and not a will deed.”_ 8. Learned counsel appearing for the appellants pointed out that both the courts below have erred in law in construing Ext.A1 document. Both the courts below, according to the learned counsel, started with the presumption that Ext.A1 is a gift deed or a a settlement deed. It is not so. The nomenclature of the document is S.A.34/1996. 6 “ന�ശയപത��” . According to the learned counsel, it only registers a decision taken by the executor and it does not by itself create any right in immovable property to the beneficiaries of the document. No interest is transferred to the beneficiaries under the said deed. The entire right over the suit property is retained by the executor and a reading of the document as a whole would clearly show that the property is to devolve on the persons mentioned therein after the death of the executor. In fact the core issue involved in the suit is construction of Exts.A1, A2 and B2 documents. Learned counsel also pointed out that the plaintiffs had produced only a copy of the deed said to have been executed by Damodharan in their favour. That constitutes only secondary evidence. Learned counsel went on to point out that unless foundation is laid for receipt of secondary evidence, the evidence could not have been entertained. In support of his contention, learned counsel relied on the decision reported in **Thampy T.V. v. Varkey Emmanuel** (2005(3) K.L.T. 144). In support of his S.A.34/1996. 7 contention that the document has to be read as a whole to understand the intention and the right procured under the document, learned counsel relied on the decisions reported **E.Mohammed v. Velayudhan** (1997 (1) K.L.J. 213) and **Krishnan Kumaran v. Mathew J. Mattom** (1957 K.L.T. 407). As far as the proposition whether the document construed is a settlement or testamentary document, learned counsel relied on the decision reported in **Varghese v. Achi Anna** (1956 K.L.T. SN 3). Learned counsel also pointed out that at best what could be said in favour of the plaintiffs is that they have effected mutation in respect of the property evidenced by Ext.A4, but that is after the cancellation deed. Learned counsel also pointed out that even assuming that there is a mutation in the relevant registers, that by itself will not confer title on the plaintiffs. In support of the said contention, learned counsel relied on the decision reported in **State of H.P. v. Keshav Ram** (AIR 1997 SC 2181). At any rate, according to learned counsel, even assuming that Ext.A1 is a gift deed, there is no 8 evidence to show that it has been accepted during the lifetime of the donor. If that is so, the gift is not valid. For the said proposition learned counsel relied on the decision reported in **Kamalakshy v. Madhavi Amma** (1980 K.L.T. 493). According to learned counsel for the appellants, these aspects have been omitted to be noticed by the courts below and the courts below have gone on the basis that Ext.A1 is a gift deed. If as a matter of fact it is not so, then it has to be ascertained as to what right has been conferred on the plaintiffs under Ext.A1 gift deed. Learned counsel went on to point out that these aspects have not been considered by both the courts below and that has resulted in passing an erroneous decree in favour of the plaintiffs. 9. Learned counsel appearing for the respondents on the other hand pointed out that the lower appellate court was perfectly justified in coming to the conclusion that Ext.A1 is a gift deed and that it has been accepted by the plaintiffs. Learned counsel went on to point out that at the time when Ext.A1 document was executed, the mother of S.A.34/1996. 9 the plaintiffs and Mangalakumari was not alive and it was the wish of Damodharan that the plaint schedule property should go to the plaintiffs and benefit should also be conferred on defendants 5 and 6. Learned counsel went on to point out that it is significant to notice that at the relevant time plaintiffs and deceased Mangalakumari were minors and were residing with their father. Therefore, there is no basis for saying that the gift was not accepted. It is trite, according to learned counsel, that in such a situation the law presumes the acceptance of the gift especially when the donees are minors. Learned counsel also pointed out that going by the recitals in Ext.A1 it is very clear that the executor, namely, Damodharan had retained a life estate over the suit property and also reserved a right of residence with him and if that be so, till his death he has reserved right in Ext.A1. Learned counsel emphasized that mutation has been effected and tax has been paid by the plaintiffs and that is further evidence of the fact that the gift has been accepted. Once it is shown that the gift has been accepted, S.A.34/1996. 10 then the cancellation deed is of no significance and so also Ext.B2 settlement deed in favour of defendants 1 to 4. In support of his contention that in such cases the proof of acceptance is very nominal, learned counsel relied on the decision reported in **Asokan v. Lakshmikutt** y (2008(1) K.L.T. 54). 10. It is not in dispute that Damodharan had executed Exts.A1, A2 and B2 documents. Ext.A1 is dated 31.8.1957. By that deed, according to the plaintiffs, Damodharan gifted the plaint schedule properties to them and to the mother of defendants 5 and 6, namely, Mangalakumari, who was no more then. As per Ext.A2 dated 10.4.1973 Damodharan invoking his power reserved under Ext.A1 seeks to revoke Ext.A1 and by Ext.B2 he conveyed the plaint schedule properties to defendants 1 to 4. The question would be as to what is the nature of right that is conferred under Ext.A1 and whether the cancellation deed, Ext.A2, is valid in law. If Ext.A2 is valid, then Ext.B2 is also valid. S.A.34/1996. 11 ## 11. In the decision reported in **Krishnan Kumaran's case** (supra) it was held as follows: _“The principle has been well settled that the meaning of any particular clause in gifts or wills is to be collected from the entire instrument and all its parts are to be construed with reference to each other. An before a provision is disregarded on the ground of repugnancy to the main provision, every attempt must be made to reconcile, if possible, the two provisions to see whether the main object of the transferor was to make an absolute transfer or only a restricted transfer.”_ ## 12. In the decision reported in **E.Muhammed's case** (supra) it was held as follows: _“While construing a document which is a mortgage by conditional sale or a sale with condition to repurchase, the intention of the parties should be decided by carefully considering and construing the recitals in the document and other attendant circumstances._ ” S.A.34/1996. 12 13. The principle is therefore clear that in construing a document, it has to be read as a whole, and as far as possible effect should be given to all the recitals in the deed. In other words, the attempt should be to give a harmonious construction to the various clauses in a deed, if possible. The law is well settled that if an absolute interest is created in the document, any subsequent restrictive clause in the same deed is not valid and binding and has no effect. One needs no authority for this proposition. The contention taken before this court by the learned counsel for the appellants is that Ext.A1 does not evidence transfer of any right or interest in immovable property, but only makes mention of a decision taken by Damodharan to have the property devolve on the plaintiffs after his death. 14. Both the courts below have gone on the premise that Ext.A1 is a gift deed. While the trial court held that there was no evidence of acceptance of the gift, the lower appellate court was of the view that the evidence shows that mutation changes have been effected and also S.A.34/1996. 13 tax has been paid by the plaintiffs, and that is a clear indication of acceptance. 15. The question is how far the above finding of the lower appellate court is correct. 16. One has to necessarily refer to Ext.A1 in this ” context. It is nomenclatured as “ന�ശയപത�� . The relevant recital in the document is as follows: “ഈ വസ���കള� ഇപ��ള�ള� ന�ങ��ള� പപര�ല പപ�ക� വരവ� ള�യ�ച� പടയ� വ�ങ�ള!�ളണ�.” 17. The argument advanced on behalf of the appellants is that a reading of Ext.A1 document does not show that any right as such has been transferred to the plaintiffs. It only enables them to effect mutation and get pattayam. All other rights in respect of the property is reserved with the donor. Learned counsel went on to point out that the document is not styled as a settlement deed or ” as a gift deed but only as a “ന�ശയപത�� . No where in the document, according to learned counsel, there is a mention that the possession had been handed over to the plaintiffs S.A.34/1996. 14 and deceased Mangalakumari. In fact it remained with Damodharan. This argument of the learned counsel for the appellants is countered by the learned counsel for the respondents by pointing out that the state of affairs as on Ext.A1 will have to be looked into. The plaintiffs and late Mangalakumari were minors and were residing with their father. In such case, if the father himself kept the document, and since minors are to be benefited by the document, acceptance of the gift is usually presumed and this is evidenced by the imputation effected and payment of tax. 18. Before going further, one may also refer to Ext.A2 document, which is the cancellation deed said to have been executed by Damodharan. The relevant clause reads as follows: “എള%റ ഭ�ര(യ�യ�ര �� !)നള)ര വ�പ,ജ�ല ��റയ�%.ഴ� പ0ശത� !, �വ�വ�ലന�ര�യണ� �ങമയ�ല എന�ക� ജ��ര�യ �5�കശ� മ�ഗ�! �മ�ര� , തപസ�% സ�ഭ�ഷ�ണ� ഇവര�ള� പപരക� എള%റ ജ.വ��പശഷ� .......ന���ലവരതകവ�ധ� S.A.34/1996. 15 വ(വസ ള�യ��� ഈ വ���കള� സ�ബന�ച� വ�മനപ�ര� സബ� രജ�സ�ത��ര ഓഫ�സ�ല 1957 ല ഒ��� പ�സ��!� 128 വ�ല(� 333 - 334 വശങ��ല 4902 ന�ബര�യ� ന)റ�ര)പ വ�ല പ�����വച� ഞ�% �ള� ഹ�ജര�ക� ഒര� ന�ശയപത�� രജ�സ�ത�റ�ക�ച� വച�ട�ണ�. അ�ന�സര�ച� പപ�ക� വരവ� ള�യ��� ഈ വസ���കളക� പമല പറഞ പപര�!�ര�ള� പപര�ല പടയ� വ�ങ����ന)മ�ത�� അവ!�ശള���ത�യ�ട�ള��� മറ� എ,� അവ!�ശങ��� എന�ക� വ(വസ ള�യ���ട�ള��മ�!���. എ��ല ! �റച�!�ലമ�യ� പമല പറഞപപര�!�ര എള%റ അന�സരണവ�ട� തപപ�ൃ(!� ��മസ�ച� വര�!യ�ണ�. !)��ള� ഈ വസ�� �ക��ല എന�ക �ള അന�ഭവ�വ!�ശവ�� ള!ട��ങ��ളല ��മസസ5��ന(വ �� പമല�റഞ പപര �!�ര ��സള���ത� എള%റ ജ.വ��� അധ:പ����കല ന�രനര� തപവരത�ച�വര�!യ�� ള�യ���. ഈ !�രണങ��ല�� എള%റ ഭ�വ� രകളയ !ര���യ�� �� ധനന�ശയ പത�ത�ല എന�ക� .......വച�ട�ള അധ�!�ര� വ�ന�പയ�ഗ�ച �� ..... ധനന�ശയ പത�� ഇ��ന�ല അ��ളയ റദ) ള�യ��� ഞ�% പ�രU സ���യ�ല വച�ര�ക���. ഇ�ന�സര�ച� ഈ വസ���ക��� ള!ട��� മ��ല�യ��� ഞ�% ഇ��മ��ല ക!വശ� വച� !ര� �.രത) സരU സ5��ന(മ�യന�ഭവ�ച� ള!�ള�� �� ന�ശയപത� തപ!�ര� ഈ വസ���കളക� പമല പറഞ പപര�!�ര�ള� പപര�ല പടയ� മ�റ�യ�ട�ളണങ�ല ഇ��ല തപ!�ര� പപ�ക�വരവ� ള�യ��� ��ളയ എള%റ പപര�ല പടയ� വ�ങ�!യ�� ള�യ����ണ�.” S.A.34/1996. 16 One important aspect in Ext.A2 is that in one place Ext.A1 is referred to as “ന�ശയപത��” , while in another portion, the same document is referred to as settlement deed. Learned counsel for the respondents pointed out that Ext.A2 cannot be given effect to since Ext.A1 is an absolute gift which had been accepted. 19. True, going by Ext.A1, it would appear that Damodharan had retained only a life interest and right of residence. It is also true that the plaintiffs have been given right to mutate and get pattayam. The obligation to pay tax for the property is retained by the donor. What creates difficulty in construing the document as a gift is the recital that the right of alienation ( വ�ത!യസ5��ന(�) enures to the donees only after the life time of Damodharan. Normally, if a gift is to be effected, the words used are 'ഇഷ0�ന�ധ�ര�' or 'ധനന�ശയ�ധ�ര�. ' Conspicuously enough in Ext.A1 neither of these words are used. It is in Ext.A2 while referring to Ext.A1 that there is a mention of Ext.A1 as 'ധനന�ശയ�ധ�ര�.' S.A.34/1996. 17 There is another problem also to be considered. Mutation is effected only after the cancellation deed dated 10.4.1973 evidenced by Ext.A2 document. The evidence would disclose that the beneficiaries under Ext.A1, who were minors, became major by 1972. The eldest among them had become a major in 1963. As per the evidence now available, it would appear that the minors were staying with their father, who is the donor under Ext.A1. Therefore, if Ext.A1 is to be construed as a gift deed, acceptance of the gift would be presumed. 20. The crux of the case is whether a vested right is created immediately on execution of Ext.A1 in favour of the plaintiffs with a postponed right of enjoyment or whether the right is to be vest with them on a future date, i.e., on the death of Damodharan. This aspect has not been considered by either of the courts below. 21. It is true that in Ext.A2 it is mentioned that “ഇ�ന�സര�ച� ഈ വസ���ക��� ള!ട��� മ��ല�യ��� ഞ�% ഇ��മ��ല ക!വശ� വച� !ര� �.രത) സരU സ5��ന(മ�യന�ഭവ�ച� ള!�ള�� �� S.A.34/1996. 18 ന�ശയപത� തപ!�ര� ഈ വസ���കളക� പമല പറഞ പപര�!�ര�ള� പപര�ല പടയ� മ�റ�യ�ട�ളണങ�ല ഇ��ല തപ!�ര� പപ�ക�വരവ� ള�യ��� ��ളയ എള%റ പപര�ല പടയ� വ�ങ�!യ�� ള�യ����ണ� “ indicating thereby that the executant takes possession on the date of Ext.A2. This is highlighted as an aspect by the learned counsel for the respondent to show that the gift under Ext.A1 has taken effect and the donees were in possession. How far such an interpretation can be put on a stray sentence is a matter which is open to serious doubt. As already noticed, the courts below have not considered the true impact and purport of Ext.A1 along with the recitals in Exts.A2 and B2. 22. Of course, mutation by itself is not evidence of title. In the decision reported in **State of H.P. v. Keshav Ram** (AIR 1997 SC 2181) it was held as follows: _“But at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs.”_ S.A.34/1996. 19 The entries in revenue records cannot form basis for declaration of title. 23. As regards the contention based on secondary evidence is concerned, learned counsel relied on the decision reported in **Thampy's case** (supra). The contention is without any substance whatsoever. The plaintiffs have explained as to how the original of Ext.A1 went into the hands of the defendants and there is no reason as to why the same should not be accepted. It was under such circumstances that they had produced Ext.A1 document, the certified copy of the deed executed by Damodharan. 24. However, as already noticed, true impact of the recitals in Ext.A1 has not been considered properly. The whole issue and the rival claims would depend upon the interpretation of the terms of Ext.A1 which, as already noticed, will have to be construed in the light of Ext.A2 also. If as a matter of fact the court is able to come to a conclusion that Ext.A1 is an absolute gift and it has been S.A.34/1996. 20 accepted, then, as rightly pointed out by the learned counsel for the respondents, Exts.A2 and B2 are of no consequence. In the light of the fact that these aspects have not been considered by the courts below, it is felt that a fresh look at the issues is necessary at the hands of the lower appellate court, which had assumed or presumed that Ext.A1 is a gift deed. In the result, this appeal is allowed, the impugned judgment and decree are set aside and the matter is remanded to the lower appellate court for fresh disposal in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 4.10.2011. Office will send back the records forthwith and forward a copy of this judgment to the lower appellate court. ## **P. BHAVADASAN, JUDGE** sb.