Sasidharan Achari v. Ramachandran Achari and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA,** **1944** **RSA NO. 247 OF 2014** **AGAINST THE JUDGMENT AND DECREE DATED 12.02.2014 IN R.F.A. NO.88/2004 OF SUB COURT, KOTTARAKKARA AGAINST THE JUDGMENT AND DECREE DATED 07.01.2004 IN O.S. NO.207/2000 OF MUNSIFF'S COURT, KOTTARAKKARA APPELLANT/RESPONDENT/PLAINTIFF:** SASIDHARAN ACHARI AGED 48 YEARS SON OF GOPALANACHARI, ANIZHAM, FROM PARAVILA PUTHEN VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK. BY ADVS. SRI.JOHNSON GOMEZ SRI.S.BIJU ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** 1 RAMACHANDRAN ACHARI AGED 56 YEARS SON OF GOPALANACHARI, INDEEVARAM, FROM PARAVILA VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK. 2 SIVARAMANACHARI AGED 53 YEARS SON OF GOPALANACHARI, GOKULAM, FROM PARAVILA VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK. 3 KRISHNANKUTTY ACHARI AGED 46 YEARS SON OF GOPALANACHARI, AWATHI, AMBALAPPURAM MURI, KOTTARAKKARA VILLAGE, FROM PARAVILA VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK. RSA No.247 of 2014 2 4 JARARDHANAN ACHARI AGED 34 YEARS SON OF GOPALANACHARI, PARAVILA PUTHEN VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK. 5 GOPALANACHARI AGED 81 YEARS PARAVILA PUTHEN VEEDU, MUTTARA MURI, ODANAVATTOM VILLAGE, KOTTARAKKARA TALUK. (EXPIRED DURING THE PENDENCY OF THE REGULAR FIRST APPEAL) BY ADVS. SRI.P.B.KRISHNAN - R1 TO R4 SRI.P.M.NEELAKANDAN - R1 TO R4 SRI.SABU GEORGE - R1 TO R4 SRI.P.B.SUBRAMANYAN - R1 TO R4 SRI BALAKRISHNA IYER (SR)-RESPONDENTS. **THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 09.01.2023, THE COURT ON 19.01.2023 DELIVERED THE FOLLOWING:** RSA No.247 of 2014 3 ## **JUDGMENT** Dated this the 19[th] day of January, 2023 This Regular Second Appeal has been directed against the judgment and decree in R.F.A.No.88/2004 on the file of Subordinate Judge's Court, Kottarakkara, which in turn arise out of the judgment and decree in O.S.No.207/2000 on the file of Munsiff's Court, Kottarakkara. 2. Plaintiff is the appellant. Suit is one for declaration of tile, possession putting up boundaries and also for injunction. (Parties would hereafter be referred as per their status before the trial court). Plaintiff obtained plaint schedule property by virtue of Settlement Deed No.899/93 executed by his father, the 5[th] defendant. Defendants 1 to 4 are his siblings. Defendants 1 to 4 were also given shares under the Settlement Deed. Plaintiff took possession of the property and is enjoying the same. In 1994 plaintiff constructed a residential building in the RSA No.247 of 2014 4 scheduled property and is residing therein with family. The plaint schedule property is separated from the neighbouring properties by survey stones and temporary boundary bunds. The suit has been filed when the defendants attempted to trespass upon the plaint schedule property and destroy the boundary bunds. 3. Defendants filed written statement denying that plaintiff obtained title and possession over the plaint schedule property by virtue of Settlement Deed No.899/93. Plaintiff mutated the property influencing the revenue authorities. Execution of Settlement Deed No.899/93 by the 5[th] defendant is admitted. Possession of property has not been transferred though Ext.A1 Settlement Deed was executed. 5[th] defendant is in possession of the entire property. He has cancelled the Settlement Deed and executed another settlement deed in favour of defendants 1 to 4. So the plaintiff is not entitled to get a decree on the strength of Ext.A1 settlement deed. 4. PWs 1 and 2 examined and Exts.A1 to A6 were marked from the side of the plaintiff. DW1 examined from side of the defendants. ( **Exts.C1 to C3 were also** RSA No.247 of 2014 5 ## **marked** ). 5. The learned trial judge on evaluating the facts, circumstances and evidence found that Ext.A1 Settlement Deed has come into effect and plaintiff got title and possession over the plaint schedule property subject to the life interest of the 5[th] defendant. Hence, the suit is decreed as prayed for. Against which, the defendants filed appeal and the first appellate court by the impugned judgment found that Ext.A1 is not a valid gift and no right, title or interest was devolved upon the plaintiff based upon Ext.A1. Hence the judgment and decree passed by the court below is reversed and suit is dismissed. Aggrieved by the judgment and decree passed by the first appellate court the plaintiff approaches this Court in Second Appeal. 6. At the time of admission, the following substantial question of law has been formulated. _Is the finding of the lower appellate court that Ext.A1, Gift Deed has not taken effect merely because the donor chose to retain a right to take income from the property during his lifetime, is correct._ 7. Notice was issued to the respondents. Lower RSA No.247 of 2014 6 court records were called for and both sides were heard. 8. According to the learned counsel for the appellant the gift deed Ext.A1 has already been acted upon by the plaintiff and he has paid tax by effecting mutation and constructed a building in the plaint schedule property and he is enjoying the property. It is also his contention that Ext.A4 sale deed was executed by the 5[th] defendant, father along with one of his siblings and sold a portion of the property covered by Ext.A1 gift deed and hence the 5[th] defendant is estopped from contending that the gift has not come into effect. 9. The learned counsel for the respondents on the other hand fully supports the judgment and decree passed by the 1[st] Appellate Court and seeks for dismissal of the appeal. 10. On perusing Ext.A1 gift deed, it could be seen that the recitals in Ext.A1 would clearly go to show that the ownership of the respective sharers provided in Ext.A1 is given to the respective shares and they were also given right to pay tax and mutate the property allotted to them and accordingly the plaintiff was given the 3[rd] schedule in RSA No.247 of 2014 7 Ext.A1. The only stipulation therein is to take income during the life time of the 5[th] defendant and to cut and remove the trees. That would show that his life interest has been reserved. 11. So also in the year 1994, as per Ext.A4 5[th] defendant along with one of the sharers in Ext.A1 has sold the property to a 3[rd] party. In which it has been specifically stated that the full ownership has been given to the 1[st] party(son) as per Ext.A1 settlement deed and that property absolutely belongs to him and the life interest has been created in his favour. Hence, they jointly sold ten cents of property out of the property settled in 4[th] schedule in Ext.A1. So, Ext.A4 actually estop the 5[th] defendant from contending that as per Ext.A1 ownership of the property has not been divested to the parties in Ext.A1. In this context learned counsel for the appellant bring to my attention **W.P.** **(MD) Nos.6889/2020 and connected cases in Sasikala** **v. Revenue Divisional Officer and Others** . In that decision the ambit and scope of Section 126 of the Transfer of Property Act and the power of cancellation of gift or settlement deed has been dealt within detail. RSA No.247 of 2014 8 ## 12. Para No.42 reads thus: _“Section 126 of the Transfer of Property Act recognizes the power of revocation where the donor reserves a right to suspend or revoke the gift on happening of any specified event. However, the illustrations clarifies that the revocation should be with the assent of the donee and it shall not be at the will of donor as a gift revocable at the mere Will of the donor is void. The Sub- registrar cannot decide whether there was consent for revocation outside the document. If the donor by himself reserves a right to revoke the gift at his Will without the assent by donee, the gift itself is void. Since we are dealing with unilateral cancellation, the power of registration of cancellation or revocation of gift deed cannot be left to the discretion or wisdom of registering authority on facts which are not available or descernible from the deed of gift. When the power of revocation is reserved under the document, it is permissible to the registering officer to accept the document revoking the gift for registration only in cases where the following conditions are satisfied;_ _(a) There must be an agreement between the donor and donee that on the happening of a specified event which does not depend on the Will of the donor the gift shall be suspended or revoked by the donor._ _(b) Such agreement shall be mutual and expressive and seen from the document of gift._ RSA No.247 of 2014 9 _(c) Cases which do not fall under Section 126 of Transfer of Property Act, unless the cancellation of Gift or Settlement is mutual, the registering JEB authority shall not rely upon the self serving statements or recitals in the cancellation deed. For example questioning whether the gift deed was accepted or acted upon cannot be decided by the registering authority for the purpose of cancelling the registration of gift or settlement deed.”_ _“43.The donor must specifically reserves such right to suspend or revoke the gift deed with the consent of donee to attract Section 126 of the Transfer of Property Act. Unless the agreement is mutual, expressed in the recitals, the Registering Authority cannot accept the document for registration......”_ ## Para No.44 reads thus: _“From the discussions and conclusions we have reached above with reference to various provisions of Statutes and precedents, we reiterate the dictum of Hon'ble Supreme Court in Thota Ganga Laxmi and Ors.vs- Government of Andhra Pradesh & Ors., reported in (2010) 15 SCC 207 and the Full Bench of this Court in Latif Estate Line India Ltd., case, reported in AIR 2011 (Mad) 66 and inclined to follow the judgment of three member Bench of Hon'ble Supreme Court in Veena_ RSA No.247 of 2014 10 _Singh's case reported in (2022) 7 SCC 1 and the judgment of two member Bench of Hon'ble Supreme Court in Asset Reconstruction Company (India) Ltd., case, reported in 2022 SCC On-line SC 544 for the following propositions:_ _(a) A sale deed or a deed of conveyance other than testamentary dispositions which is executed and registered cannot be unilaterally cancelled._ _(b) Such unilateral cancellation of sale deed or a deed of conveyance is wholly void and non est and does not operate to execute, assign, limit or extinguish any right, title or interest in the property._ _(c) Such unilateral cancellation of sale deed or deed of conveyance cannot be accepted for registration._ _(d) The transferee or any one claiming under him or her need not approach the civil Court and a Writ Petition is maintainable to challenge or nullify the registration._ _(e) However, an absolute deed of sale or deed of conveyance which is executed by the transferor may be cancelled by the Civil Court at the instance of transferor as contemplated under Section 31 of Specific Relief Act._ _(f) As regards gift or settlement deed, a deed of revocation or cancellation is permissible only in a case which fall under Section 126 of Transfer of Property Act, and the Registering_ RSA No.247 of 2014 11 _Authority can accept the deed of cancellation of gift for registration subject to the conditions specified in para 42 of this judgment._ _(g) The legal principles above stated by us cannot be applied to cancellation of Wills or power of Attorney deed which are revocable and not coupled with interest.”_ ## 13. **Daulat Singh (D) Thr.Lrs. v. The State of Rajasthan & Ors.** (Civil Appeal No.5650 of 2010) is further relied on. Para No.22 was highlighted by the learned counsel which reads thus: _“A three-Judge Bench of this Court in the case of Naramadaben Maganlal Thakker V. Pranjivandas Maganlal Thakker, (1997) 2 SCC 255 had held that:_ _**6** . Acceptance by or on behalf of the donee must be made during the lifetime of the donor and while he is still capable of giving._ _**7. It would thus be clear that 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 the absolute owner of the property.”**_ 14. The learned counsel for the respondents also fairly RSA No.247 of 2014 12 bring to my attention **Kuttian Padmini v. Nelliyullaparambath Mathu and Ors. [2014 (1) KLJ 816]** Para No.10 was highlighted by the learned counsel, it has been provided therein thus: _“in order to constitute a valid gift the most pivotal requirement is acceptance by the donee. But no particular mode is prescribed under law as to what is the requirement needed to prove acceptance. Circumstances surrounding the execution of the deed and also what transpired thereafter would through light whether the gift has been accepted or not. A gift in order to become valid has to be accepted during the life time of the donor. When the gift is not onerous the normal presumption under law is that even knowledge of that gift by the donee can be treated as sufficient to hold that there was acceptance. When a benefit is conferred on one person and it is not coupled with any condition requirement fulfillment of some obligation from him it is prudent to hold that he would received such benefit provided he has knowledge of it........”_ 15. In this case, the 5[th] defendant executed the gift in favour of the plaintiff and other siblings and subsequent to the execution of the gift in the year 1994, Ext.A4 sale deed was also executed by the 5[th] defendant along with one of the shareres to whom schedule No.4 in the gift deed has RSA No.247 of 2014 13 been alloted, selling the property of ten cents and there is specific mention in Ext.A4 that the property has been obtained by the first party in Ext.A4 as per Ext.A1 document subject to the life interest of the second party the father. So that is a strong circumstance pointing the absolute disposition of the property covered by Ext.A1 to the respective sharers. Moreover, the plaintiff is none other than the son of the 5[th] defendant the donor. So he was also quite aware of the execution of the gift and the gift is also not an onerous one. Subsequent to the execution of the gift the plaintiff mutated the property in his name and paid tax and the house also constructed in the property covered by the gift. Ext.A2 and Ext.A2(a) property tax receipts dated 28.04.1999 and 24.11.2003 . Ext.A3 and A3(a) are building tax receipts dated 30.06.1999 and 27.11.2003. Ext.A5 is possession certificate dated 28.11.2003. 16. According to the learned counsel for the respondents/defendants, Ext.A1 was cancelled on 23.04.1999 and the documents produced by the plaintiffs are subsequent to the execution of the cancellation deed. But curiously enough the cancellation deed has not been RSA No.247 of 2014 14 produced by the defendants. 17. The defendants also have no case that any of the contingencies provided under Section 126 of the Transfer of Property Act, attract for enabling the 5[th] defendant to revoke the gift. In **Subramonian Asari v. Kanni Ammal Velamma [1952 KLT 686]** it has been held thus: _“in order to attract the provisions of Section 126 of the Transfer of Property Act, the conditions to be satisfied are (1) that the donor and the donee must have agreed that the gift shall be suspended or revoked on the happening of a specified event, (2) such event must be one which does not depend on the will of the donor, (3) that the donor and the donee must have agreed to the condition at the time of accepting the gift and (4) that the condition should not be illegal or immoral and should not be repugnant to the estate created under the gift._ _After conferring an absolute estate in favour of the donee, the legal incidents of such an estate cannot be controlled or regulated by the donor....................”_ 18. In the present case, there is no such condition imposed in Ext.A1 gift for enabling the 5[th] defendant to revoke or suspend the gift. 19. So the documents produced from the side of RSA No.247 of 2014 15 plaintiff would prove that the gift deed has been acted upon and plaintiff taken possession of the property in pursuance of Ext.A1 and mutated the property in his name and constructed a house thereon and is residing therein with family. Hence, Ext.A1 has been acted upon and came into effect. Hence, trial court rightly decreed the suit as prayed for. First Appellate Court on a wrong appreciation of facts and law reversed the well considered judgment and decree passed learned Munsiff and hence it is liable to be set aside. In the result, this regular second appeal is allowed and judgment and decree passed by the 1[st] Appellate Court is set aside and that of the learned Munsiff is restored. In the facts and circumstance, there is no order as to costs. **Sd/M.R.ANITHA** **JUDGE** SMF