Sivarajan and Richu v. Jagadamma, Somarajan and Vasantha Kumari

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 RSA NO. 562 OF 2022`** ``` AGAINST THE DECREE AND JUDGMENT DATED 14.06.2022 IN A.S.NO.62/2015 ON THE FILES OF THE SUB COURT, NEYYATTINKARA ARISING FROM THE DECREE AND JUDGMENT DATED 12.12.2014 IN O.S.NO.255/2011 ON THE FILES OF THE ADDITIONAL MUNSIFF COURT-II, NEYYATTINKARA ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** - **`1 SIVARAJAN AGED 58, S/O DIVAKARAN, RAJ BHAVAN, PULINKUDI, KOTTUKAL P.O., THIRUVANANTHAPURAM - 695501.`** - **`2 RICHU, AGED 28, S/O SIVARAJAN, RAJ BHAVAN, PULINKUDI, KOTTUKAL P.O., THIRUVANANTHAPURAM - 695501. BY ADV A.S.SHAMMY RAJ`** ## **`RESPONDENTS/RESPONDENTS/PLAINTIFFS:`** - **`1 JAGADAMMA D/O RUGMINI, THERIVILA VEEDU, THEKKEKONAM, KOTTUKAL P.O., THIRUVANANTHAPURAM - 695501.`** - **`2 SOMARAJAN, S/O VELAPPAN, THERIVILA VEEDU, THEKKEKONAM, KOTTUKAL P.O., THIRUVANANTHAPURAM - 695501.`** - **`3 VASANTHA KUMARI, D/O JAGADAMMA, THERIVILA VEEDU, THEKKEKONAM, KOTTUKAL P.O., THIRUVANANTHAPURAM-695501. BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH`** ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` R.S.A. No. 562 of 2022 ``` ``` 2 ``` ## **“C.R”** ## **JUDGMENT** ## **Dated this the 6[th] day of December, 2023** This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.65 of 2015 dated 14.06.2022 on the files of the Court of the Sub Judge, Neyyattinkara arose from decree and judgment in O.S. No.255 of 2011 dated 12.12.2014 on the files of the Court of the Additional Munsiff-II, Neyyattinkara. The appellants herein are defendants and respondents are plaintiffs Nos. 1 to 3 in O.S. No. 255 of 2011. 2. Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondents. 3. The parties in this appeal will be referred as ‘plaintiffs’ and ‘defendants’ hereinafter for convenience. 4. At the time of admission, as per order dated ``` R.S.A. No. 562 of 2022 ``` ``` 3 ``` 19.09.2022, my learned predecessor formulated the following substantial questions of law: 1. Whether Ext.A1 gift deed was acted upon by the plaintiff? 2. Whether Rukmani Amma had any salable interest over plaint schedule property after execution of Ext.A1 gift deed? 3. Whether the suit filed by the plaintiff is barred by the limitation? 4. Whether Ext.A1 is a will styled as gift as contended by the defendant? 5. The plaintiffs filed suit to declare their title over plaint C and D schedule properties and to recover possession of the same. Mesne profit also was claimed. According to the plaintiffs, the property originally belonged to the mother of the 1[st] plaintiff by name Rugmini Amma. Later, the Rugmini Amma executed gift deed No.4100/1958 in favour of the 1[st] plaintiff and her husband. The said property, having an extent of 32[1] /2 is plaint A schedule property. Out of which the 1[st] plaintiff and her husband sold 10 cents of property on the southern side and the same is plaint B schedule property. As per the gift deed, it was ``` R.S.A. No. 562 of 2022 ``` ``` 4 ``` covenanted between the donor and donee that the donor had life interest over the property and accordingly Rugmini Amma continued residence in the plaint D schedule property till her death on 12.09.2007. Later it was understood that a deed of conveyance was created by the 1[st] defendant by fraud, influencing Rugmini Amma, in favour of the 2[nd] defendant. 6. The defendants resisted the suit claiming title over plaint C and D schedule items on the strength of sale deed No.1259/1995 executed by Rugmini Amma in favour of the 2[nd] defendant. 7. The trial court raised necessary issues and tried the matter. Ext.A1 marked on the side of the plaintiffs. Exts.B1 to B11 marked on the side of the defendants. Exts.C1 and C1(a) were also marked as Court exhibits. Finally, the suit was decreed as under: In the result, the suit is decreed as follows:- 1) It is hereby declared that the plaintiffs have right and title over plaint C and D schedule properties. ``` R.S.A. No. 562 of 2022 ``` ``` 5 ``` 2) The defendants are hereby directed to surrender the vacant possession of plaint C and D schedule properties to the plaintiffs within two months from this date failing which the plaintiffs are entitled to evict them through process of law. 3) The plaintiffs are entitled to recover Rs.350/- per year as mesne profit for three years from the date of filing of suit or till the plaintiffs are put in possession of plaint schedule property whichever earlier. 8. Though appeal was filed before the Appellate Court, the same was dismissed after confirming the verdict of the trial court as per judgment dated 14.06.2022 in A.S. No.65/2015. 9. Coming to the substantial questions of law, it is vehemently argued by the learned counsel for the defendants that the suit is barred by limitation. According to the learned counsel, the mother died as on 12.09.2007 and the suit filed only on 07.03.2011. A suit to declare title should have been filed within a period of three years from the date when the cause of action first occurred. Therefore, ``` R.S.A. No. 562 of 2022 ``` ``` 6 ``` the suit is barred by limitation is the submission of the learned counsel for the defendants. 10. In order to substantiate this contention, the learned counsel placed a decision of the Apex Court reported in **[2011 KHC 4834 : 2011 (9) SCC 126 : AIR 2011 SC 3590 : 2011 (4) SCC (Civ) 484 : 2011 (182) DLT 597] Khatri Hotels Private Limited and Another v. Union of India and Another** . In paragraph No.27 the said decision the Apex Court held as under: 27. While enacting Art. 58 of the 1963 Act, the legislature has designedly made a departure from the language of Art. 120 of the 1908 Act. The word 'first' has been used between the words 'sue' and accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued. ``` R.S.A. No. 562 of 2022 ``` ``` 7 ``` 11. Resisting this contention the learned counsel for the plaintiffs submitted that the relevant Article that would govern the present suit is not Article 58 of the Limitation Act, 1963, but Article 65 of the Limitation Act. He also pointed out that the Appellate Court addressed the question in this regard and found that the suit is not barred by limitation. In so far as the question of limitation is concerned, as per the narration in Ext.A1, it could be gathered that plaint A schedule property was gifted in favour of the 1[st] plaintiff and her husband and the right to enjoy the property with right to reside therein were reserved in the name of the donor till her death. 12. Though, this Court raised a substantial question of law as to whether Ext.A1 is a will deed styled as gift deed, on perusal of Ext.A1, it could be gathered that the entire right upon the property was gifted in favour of the 1[st] plaintiff and her husband and only life interest to enjoy the same and reside in the house were reserved in the name of donor. Therefore, there is no reason to hold that Ext.A1 is a will and Ext.A1 is a gift deed. ``` R.S.A. No. 562 of 2022 ``` ``` 8 ``` 13. In this matter, the suit was filed seeking two reliefs jointly. One is for declaring title over plaint C and D schedule properties and the another is for recovery of possession over the same. Article 58 of the Limitation Act, 1963 deals with “to obtain any other declaration” and the period provided is three years and the starting point of limitation is “when the right to sue first accrues”. At the same time, Article 65 of the Limitation Act deals with suit “for possession of immovable property or any interest therein based on title”, the period provided is twelve years “when the possession of the defendant becomes adverse to the plaintiff”. Reading the reliefs sought for in the plaint herein, it is held that the period of limitation in so far as the present suit is governed is under Article 65 of the Limitation Act and not under Article 58 of the Limitation Act. If so, the suit filed on 07.03.2011 after the death of Rugmini Amma as on 12.09.2007 is well within the period of limitation and the said contention of the learned counsel for the defendants is found against. 14. It is the settled law that once a gift deed is acted ``` R.S.A. No. 562 of 2022 ``` ``` 9 ``` upon and become complete, the absolute title would vest upon the donee and the donor seized to be the absolute owner. In such situation, the donor has no salable interest thereafter over the property. Therefore, execution of Ext.B3 sale deed after executing Ext.A1 cannot have any legal effect at all and the same is a void document. It is true that a contention seen raised to the effect that Ext.A1 was not acted upon by the plaintiffs, but it is perceivable that the plaintiffs themselves produced Ext.A1 before the Courts below. That would go to show that Ext.A1 gift deed was acted upon though the right of Rugmini Amma to reside in the plaint schedule property and to enjoy the same alone were reserved. Therefore, Ext.A1 become complete and Rugmini Amma did not have any salable interest over the plaint schedule property as on the date of execution of Ext.B3. Therefore, Ext.B3 would not confer any title upon the defendants. 15. Answering the substantial questions of law as herein above discussed, it is held that the suit filed by the plaintiffs for declaring title and for recovery of possession ``` R.S.A. No. 562 of 2022 ``` ``` 10 ``` of plaint C and D schedule property must succeed as rightly found by the trial court and confirmed by the Appellate Court. Therefore, there is no reason to interfere with the concurrent verdicts challenged in this regular second appeal. Therefore, the appeal deserves dismissal. 16. In the result, the regular second appeal stands dismissed. All interlocutory application also stands dismissed. **Sd/-** ## **A. BADHARUDEEN** **JUDGE** SK