Velayudhan Pillai Sreekumar v. S. Sarojini Amma and Ramachandra Pillai

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA MONDAY, THE 3RD DAY OF APRIL 2017/13TH CHAITHRA, 1939 RSA.No. 757 of 2011 (F) ------------------------ AGAINST THE JUDGMENT AND DECREE DATED 23-09-2010 IN AS 30/2007 OF III ADDL.DISTRICT COURT, KOLLAM AGAINST THE JUDGMENT AND DECREE DATED DATED 11-12-2006 IN OS 32/2000 OF MUNSIFF-MAGISTRATE COURT, SASTHAMCOTTA APPELLANT/RESPONDENT/PLAINTIFF: ----------------------------------------------------- VELAYUDHAN PILLAI SREEKUMAR, CHANDRALAYAM, MANAKKARA MURI, SASTHAMCOTTA VILLAGE, FROM MAVILA VEEDU, KARUMTHOTTUVA MURI, SASTHAMCOTTA VILLAGE, KOLLAM. BY ADVS.SRI.RAM MOHAN.G. SRI.P.GOVIND SRI.MANU V. SRI.G.P.SHINOD ## RESPONDENTS/APPELLANTS/DEFENDANTS: --------------------------------------------------------------- 1. S.SAROJINI AMMA, CHANDRALAYAM, MANAKKARA MURI, SASTHAMCOTTA VILLAGE, KOLLAM.690315 2. RAMACHANDRAN PILLAI, CHANDRALAYAM, MANAKKARA MURI, SASTHAMCOTTA VILLAGE, KOLLAM. 690315 ## BY ADV. SRI.N.UNNIKRISHNAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-04-2017, ALONG WITH RSA. 936/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **[CR]** ## **B. KEMAL PASHA, J.** ................................................................ R.S.A. Nos. 757 & 936 of 2011 ............................................................... Dated this the 3[rd] day of April, 2017 ## **J U D G M E N T** Challenging the common judgment in A.S.No.30/2007 and A.S.No.77/2007 of the Additional District Court-III, Kollam, the plaintiff in O.S.32/2000 and the defendants in O.S.No.97/00 of the Munsiff's Court, Sasthamcotta have come up with these second appeals. The appellants in RSA 936/2010 are the wife and the other relatives of the appellant in RSA 757/2011. Both the suits were jointly tried. O.S.No.32/2000 was one for getting Ext.A4 cancellation deed set aside and for the declaration of title of the plaintiff over the plaint schedule property. The first defendant in the suit is the paternal aunt of the plaintiff. The 2[nd] defendant is R.S.A.Nos. 757 & 936 of 2011 -: 2 :- her husband. O.S.No.97/2000 was filed by the defendants in O.S.No.32/2000 as a suit for perpetual injunction restraining the defendants and their men from committing trespass into the plaint schedule property and from committing waste thereon. O.S.No.32/2000 was treated as the main case and the evidence was recorded in it. 2. On the side of the plaintiff PWs.1 to 3 were marked and Exts.A1 to A6 were marked. On the side of the defendants DW1 was examined and Exts.B1 to B13 were marked. The trial court decreed both the suits. 3. Appeals were filed before the lower appellate court as A.S.No.30/2007 and A.S.No.77/2007 respectively. The lower appellate court dismissed A.S.No.77/2007. At the same time, the lower appellate court allowed A.S.No.30/2007 by setting aside the judgment and decree passed by the trial court in O.S.No.32/2000 and by dismissing the suit. The parties are referred to hereunder, in the order in which they are referred to in O.S.No.32/2000. R.S.A.Nos. 757 & 936 of 2011 -: 3 :- 4. This Court admitted RSA 757/2011 on the following substantial questions of law: _“Is the finding of the lower appellate court that Ext.A2 is not a deed of gift contrary to law?”_ R.S.A.936/2011 also has been admitted on the very same substantial question of law raised in RSA 757/2011, when both the appeals were disposed of by a common judgment by the lower appellate court. 5. The case of the plaintiff is that the plaint schedule property having an extent of 9½ cents and the residential building thereon is the subject matter of Ext.B3 gift deed. The building in the plaint schedule property is named ' _Chandralayam'_ . According to the plaintiff, the plaintiff and his family were residing in _Chandralayam_ even prior to the execution of Ext.B3 along with the defendants, and they continued to reside there after the execution of Ext.B3 also. It is the further case of the plaintiff that on 27.02.1997, R.S.A.Nos. 757 & 936 of 2011 -: 4 :- defendants had accepted an amount of ₹1,00,000/- from the plaintiff by way of consideration for the plaint schedule property, and thereafter, instead of executing the sale deed, the first defendant had executed Ext.B3 gift deed only in favour of the plaintiff and the 2[nd] defendant. On 27.02.1997, when the defendants insisted for the payment of an amount of ₹50,000/- more, the plaintiff again paid an amount of ₹ 50,000/-. Again, the defendants demanded an amount of ₹ 1,00,000/- more. Since the plaintiff was not willing to make the said payment, the first defendant had executed Ext.A4 cancellation deed on 02.06.1999 thereby cancelling Ext.B3 gift deed. The plaintiff challenges the validity of Ext.A4 as well as seeks for a decree for getting it aside and also for getting his title over the plaint schedule property, declared. 6. The defendants contended that even though the nomenclature of Ext.B3 is that of a gift deed, what was intended to be executed was only a Will. According to the defendants, the terms in Ext.B3 clearly denote that it was R.S.A.Nos. 757 & 936 of 2011 -: 5 :- executed as a Will, and not as a gift deed. The receipt of amounts from the plaintiff has been denied. According to the defendants, Ext.B3 has never come into effect and therefore, the plaintiff is not entitled to the decree sought for. 7. O.S.No.97/2000 was filed against the father, wife and other relatives of the plaintiff in O.S.No.32/2000 seeking a decree of perpetual injunction against trespass and waste. 8. Heard the learned counsel for the appellants and the learned counsel for the respondents. 9. The learned counsel for the appellants has argued that the lower appellate court has committed a grave illegality in dismissing the suit and in setting aside the judgment and decree passed by the trial court in favour of the plaintiff. It has been argued that the lower appellate court has heavily weighed the fact that the possession of the property was not delivered to the plaintiff and therefore, Ext.B3 had never come into effect. According to the learned counsel for the plaintiff, delivery of possession in case of a R.S.A.Nos. 757 & 936 of 2011 -: 6 :- property transferred through a gift is required only in case of Muslim gifts and the same cannot be a condition to validate a Hindu gift. The learned counsel for the plaintiff is not presently challenging the concurrent judgments passed by both the courts below in O.S.No.97/2000. It has been submitted that the plaintiff does not want to commit trespass into the plaint schedule property or to commit any waste thereon. At the same time, it has been argued that through Ext.B3, transfer of the plaint schedule property by way of gift has been completed and therefore, Ext.A4 has no legal validity and that the first defendant had no right or authority to execute Ext.A4. 10. _Per contra_ , learned counsel for the defendants has argued that even according to the case of the plaintiff, Ext.B3 was not a gift whereas, it was intended to be a sale deed. It has been further argued that the conditions in Ext.B3 make it clear that it was intended as a Will and not as a gift. It is argued that any right in _presenti_ has not been R.S.A.Nos. 757 & 936 of 2011 -: 7 :- created in favour of the plaintiff through Ext.B3 and, therefore, it has to be interpreted as a Will even though its nomenclature is that of a gift. 11. The execution of Ext.B3 is admitted. Further, through the execution of Ext.A4 also, the defendant has clearly admitted the execution of Ext.B3. The question to be considered is whether the terms and conditions contained in Ext.B3 bring Ext.B3 within the category of a gift deed or a Will? The recitals in Ext.B3 show that the same was executed by the 1[st] defendant in favour of the plaintiff and the 2[nd] defendant. It makes it clear that the plaint schedule property was gifted by the 1[st] defendant in favour of the plaintiff and the 2[nd] defendant out of her love and affection towards them on the following terms and conditions. The donor along with her husband, who is the 2[nd] defendant, would continue to possess and enjoy the plaint schedule property and reside in the building situated in it. They would directly take the usufructs from the property for their R.S.A.Nos. 757 & 936 of 2011 -: 8 :- livelihood and that the plaintiff has no right or authority to restrict such user. The plaintiff shall mutate the property in his favour and from the date of execution of Ext.B3 onwards, he shall pay the tax for the property. The donee shall possess and enjoy the property after the lifetime of the defendants. 12. According to the learned counsel for the plaintiff, the aforesaid conditions will not bring Ext.B3 to the category of a Will; whereas, the aforesaid conditions are in conformity with a proper gift. As rightly pointed out by the learned counsel for the appellant, what has been reserved is the right of enjoyment of the property, the right to take usufructs from the property and the right to reside in the building in the property alone. There is no reservation of a power to alienate or encumber the property. The terms of the document clearly show that the title of the property has been transferred and passed on the date of execution of Ext.B3 itself. It has come out that subsequently, the plaintiff has R.S.A.Nos. 757 & 936 of 2011 -: 9 :- mutated the property in his favour and has been paying tax for the same. 13. The conditions incorporated in Ext.A4 for the cancellation of Ext.B3 are also important. In Ext.A4, the 1[st] defendant has made it clear that the plaintiff is her brother's son and the 2[nd] defendant is her husband. Through Ext.B3, the property has been gifted to the plaintiff. The 2[nd] defendant is shown as one of the donees when the enjoyment for life of the property and the right to reside in the building in the property has also been reserved in favour of the plaintiff and the 2[nd] defendant also. In Ext.A4, the 1[st] defendant has stated that she had executed Ext.B3 on the _bona fide_ belief that she would be maintained and looked after by the plaintiff/donee and the 2[nd] defendant, who is her husband. According to her, after the registration of Ext.B3, the plaintiff and the 2[nd] defendant have acted against the terms and conditions in Ext.B3 and harassed and humiliated her whereby she has suspected even loss of life. According R.S.A.Nos. 757 & 936 of 2011 -: 10 :- to her, therefore, she is of the wish and view that the deed of gift should not exist and further, that the gift deed has not come into effect and therefore, she wants to cancel Ext.B3. She has cancelled Ext.B3 through Ext.A4 and has further stated in Ext.A4 that she would possess, enjoy and pay tax for the plaint schedule property even retrospectively. 14. According to the 1[st] defendant, she had cancelled Ext.B3 through Ext.A4 when the plaintiff and the 2[nd] defendant have violated the terms and conditions incorporated in Ext.B3. Even though she has found fault with the 2[nd] defendant also, it is strange to note that she has made the 2[nd] defendant also the 1[st] plaintiff in O.S. No.97/2000. The question as to whether the delivery of possession of the property is an essential prerequisite for the making of a valid gift in case of immovable property by a Hindu has been clearly considered and decided by the Apex Court in _**Renikuntla Rajamma v. Sarwanamma** [2014 (3) KLT 469 (SC)]_ , wherein it was held in paragraph 19: R.S.A.Nos. 757 & 936 of 2011 -: 11 :- _“The recitals in the gift deed also prove transfer of absolute title in the gifted property from the donor to the donee. What is retained is only the right to use the property during the lifetime of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor.”_ 15. The dictum laid down by the Apex Court in _**Renikuntla Rajamma**_ ( _supra_ ) is clearly applicable to the facts and circumstances of the present case. Here, in this case, what has been reserved through Ext.B3 is the mere right to use the property and its enjoyment during the lifetime of the donor as well as her husband. The dictum clearly shows that the title of the property has been transferred on the execution of Ext.B3. 16. Learned counsel for the defendants has invited the attention of this Court to the decision in _**Narmadaben**_ _**Maganlal Thakker v. Pranjivandas Maganlal Thakker and**_ R.S.A.Nos. 757 & 936 of 2011 -: 12 :- _**others** [(1997) 2 SCC 255]_ , wherein it was held that in the execution of a registered gift deed, acceptance of the gift and delivery of the property, together make the gift complete. On going through the conditions in the gift involved in the decision in _**Narmadaben**_ ( _supra_ ), it seems that it was recited in it as follows: _“And by this gift deed, the limited ownership right will be conferred to you till I live.”_ It was on account of the said recital, it was held that an absolute ownership or title of the property was not transferred to the donee through the execution of the said gift deed. What was transferred through the said gift deed was the “limited ownership right”. The said aspect has been made clear by the Apex Court in its three Judge Bench decision in _**Renikuntla Rajamma**_ ( _supra_ ), wherein it was held that the decision in _**Narmadaben**_ ( _supra_ ) cannot be read to be an authority to the proposition that delivery of R.S.A.Nos. 757 & 936 of 2011 -: 13 :- possession is an essential requirement for making a valid gift. It was also held therein that in the case of a Muslim gift, delivery of possession is a prerequisite for the making of a valid gift of immovable property. In the case of Hindus, delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property. 17. Even though the learned counsel for the defendants has argued that the gift through Ext.B3 has not been accepted by the plaintiff, the circumstances point otherwise. It seems that all the stamp papers, in which Ext.B3 has been executed, were purchased in the name of the plaintiff. That itself denotes that there was proper acceptance of such a gift. Over and above it, it seems that the property was mutated and tax was paid by the plaintiff. Thereafter, on the execution of Ext.A4, a PV appeal was filed by the 1[st] defendant whereby the mutation was cancelled and the 1[st] defendant was permitted to pay the tax. When once the mutation was effected and tax was R.S.A.Nos. 757 & 936 of 2011 -: 14 :- paid, it cannot be said that the plaintiff had not accepted the gift. Ext.B5 is proceedings dated 20.12.2000 of the Revenue Divisional Offficer, Kollam in the PV appeal. Through Ext.B5, the mutation in favour of the plaintiff as PV 191/97 dated 10.03.1997 was cancelled on 20.12.2000. Therefore, there is no meaning in contending that the gift had not taken effect. When the gift came into effect through proper acceptance of the gift, the same could not have been cancelled through the execution of Ext.A4, without judicial intervention. 18. From the discussions made above, it has clearly come out that the impugned judgment and decree passed by the lower appellate court in A.S. No.30/2007 are not legally sustainable and the same are liable to be set aside. At the same time, this Court is of the view that any interference is not required in the concurrent findings entered by both the courts below in O.S. No.97/2000 and A.S. No.77/2007. R.S.A.Nos. 757 & 936 of 2011 -: 15 :- In the result, R.S.A. No.757/2011 is allowed and the judgment and decree passed by the lower appellate court in A.S. No.30/2007 are set aside. The judgment and decree passed by the Munsiff's Court, Sasthamcotta in O.S. No.32/2000 are revived and confirmed. R.S.A. No.936/2011 is dismissed. In the nature of these appeals, the parties shall bear their respective costs. All pending interlocutory applications in these appeals will stand closed. **Sd/- B. KEMAL PASHA, JUDGE.** ul/aks/- [True copy] P.S. to Judge.