IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1305 of 2008()
1. BHASKARAN NAIR,
... Petitioner
2. BHAGYANATHAN, S/O.RATNAMMA, VALSALA
Vs
1. CHINNAKUTTAN NAIR,
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :20/03/2009
O R D E R
K.P. Balachandran, J.
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R.S.A.No.1305 of 2008
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JUDGMENT
The defendants in O.S.No.530/97 on the file of
the Munsiff’s Court, Palakkad are the appellants in
this Regular Second Appeal filed against the
concurrent verdicts passed by the courts below in
favour of the respondent/plaintiff, who is the
brother of the first appellant.
2. The suit O.S.No.530/97 aforesaid was
instituted by the respondent/plaintiff for
declaration and injunction and in the alternative
for declaration and recovery of possession on the
strength of his title over the scheduled property
and the building, inter alia, on the following
allegations:
The plaint schedule property, having an extent
of 99 cents, with a residential building therein
belong to Madhavikutty Amma, the mother of the
respondent/plaintiff and and first appellant/first
defendant, having been allotted to her share under
RSA 1305/08 2
Partition Deed No.1433/72 of SRO, Kadampazhipuram;
that under Exhibit A1 gift deed dated 28.12.1978
she gifted the said property in his favour; that
the gift has been accepted by him and he is in
possession and enjoyment of the scheduled property
paying building tax and property tax; that as per
the said gift deed, the donor has reserved her
right to reside in the property till her death and
except that right, she has no other right over the
scheduled property ever after execution of Exhibit
A1 gift deed; that Madhavikutty Amma was residing
along with his wife and children in the building in
the scheduled property till 1995, as he was at
Andhra Pradesh in connection with his job; that
while so, in 1995, the first appellant/first
defendant threatened his wife and children and they
had to shift their residence to his wife’s house at
Agaloor; that thereafter Madhavikutty Amma stayed
with her other son and she passed away on
29.6.1996; that even prior to two years of her
death, she was very weak and sickly and taking
RSA 1305/08 3
advantage of that situation and by exercising
fraud, the first appellant/first defendant managed
to get Exhibit B2 cancellation deed executed on
3.8.1995 by Madhavikutty Amma purporting to cancel
Exhibit A1 gift in his favour and also got a will
executed on the same day and on 4.8.1995, he got
executed Exhibit B4 power of attorney in favour of
the first appellant/first defendant and on the
strength of Exhibit B4, he executed Exhibit B9 sale
deed in favour of the second appellant/second
defendant, who is his son-in-law, assigning the
assumed rights of Madhavikutty Amma in favour of
the second appellant/second defendant; that
Madhavikutty Amma had no right to set aside or
cancel Exhibit A1 gift deed executed in his favour
and the appellants/defendants have not obtained any
right over the scheduled property based on the
documents brought into existence by them. On the
above allegations the respondent/plaintiff prayed
for a decree declaring his title and possession
over the scheduled property and for an injunction
RSA 1305/08 4
restraining the appellants/defendants from
trespassing into the scheduled property and the
building and later, by amendment, it is submitted,
a prayer was also incorporated seeking for recovery
of possession of the scheduled property from the
appellants/defendants on the strength of the title
on the allegation that they have reduced the
property to their possession forcibly.
3. Appellants/defendants resisted the suit
filing written statement contending that though
Exhibit A1 gift deed was executed by Madhavikutty
Amma in favour of the respondent/plaintiff, she
never intended to part with her possession nor did
she transfer the property to the respondent/
plaintiff and possession was not delivered over to
the respondent/plaintiff and the respondent/
plaintiff has not accepted the gift; that Exhibit
A1 is a sham document brought into existence for
the purpose of showing it as security for availing
of a loan for the respondent/plaintiff and Exhibit
A1 gift deed had not come into force and had never
RSA 1305/08 5
been acted upon; that later, when the respondent/
plaintiff tried to misuse Exhibit A1 document,
Madhavikutty Amma cancelled the said document by
Exhibit B2 and the matter was intimated to the
respondent/plaintiff by registered notice, but the
respondent/plaintiff has not taken any steps
questioning the validity of cancellation deed
during the life time of Madhavikutty Amma and she
continued in possession and enjoyment of the
property till her death; that the respondent/
plaintiff’s wife or children never resided in the
scheduled property and they never looked after the
affairs of Madhavikutty Amma; that the first
appellant/first defendant was looking after the
affairs of Madhavikutty Amma and has spent
considerable amounts for treating her; that it is
considering all those aspects that Madhavikutty
Amma set aside Exhibit A1 gift deed vide Exhibit B2
and executed Exhibit B3 will in favour of the first
appellant/first defendant of her own free will and
volition and with sound disposing state of mind;
RSA 1305/08 6
that thereafter on 20.3.1998, Madhavikutty Amma
executed sale deed in favour of the second
appellant/second defendant and sold the property to
him for a total consideration of Rs.50,000/-; that
the second appellant/second defendant has paid the
building tax and land tax after purchase of the
scheduled property; that the second appellant/
second defendant is in possession of the scheduled
property and the respondent/plaintiff has no
possession thereof and even after execution of
Exhibit A1 gift, Madhavikutty Amma continued in
possession of the property and her possession
continued till the property was put in their
possession; that even if the respondent/plaintiff
had any right over the scheduled property by virtue
of Exhibit A1 gift deed, it is lost by adverse
possession and limitation; that the respondent/
plaintiff is not entitled to any declaration,
injunction or recovery of possession and that the
suit has to be dismissed with costs.
RSA 1305/08 7
4. On the above pleadings, the trial court
raised necessary issues for trial and considering
the evidence adduced at trial, which consisted of
oral evidence of PWs 1 to 3 and DWs 1 to 6 and
documentary evidence Exhibits A1 to A15, B1 to B14
and Exhibits X1 to X4, decreed the suit declaring
title of the respondent/plaintiff over the
scheduled property by virtue of Exhibit A1 gift
deed and directing the appellants/defendants to
surrender vacant possession of the scheduled
properties to the respondent/plaintiff and also
directed to pay costs to the respondent/plaintiff.
The appellants/defendants filed A.S.No.13/02 before
the District Court, Palakkad and the learned
Additional District Judge, vide judgment dated
6.8.2008, dismissed the appeal with costs
confirming the correctness of the verdict of the
trial court. Hence, this Regular Second Appeal by
the appellants/defendants assailing the concurrent
verdicts passed by the courts below.
RSA 1305/08 8
5. It is vehemently contended before me by the
learned counsel for the appellants that there is
absolutely no evidence of the respondent/plaintiff
having accepted the gift and come into possession
of the scheduled property pursuant to Exhibit A1
gift deed; that the respondent/plaintiff is not
shown to have paid the building tax ever after 1978
till 1994, which suggests that Exhibit A1 gift deed
has not come into force; that when the gift has not
come into force, the donor was competent to cancel
Exhibit A1 gift deed executing Exhibit B2
cancellation deed and that the respondent/
plaintiff, in the circumstances, should not have
been granted decree as prayed for.
6. Counsel for the appellants/defendants has
placed before me a photostat copy of Exhibit A1
gift deed for perusal. The recitals in Exhibits A1
show that the donor has thereunder relinquished all
her rights and released possession of the scheduled
property and the building gifted thereunder to the
donee, the respondent/plaintiff and that the donne
RSA 1305/08 9
is further authorised, from the date of the said
gift deed, to effect cultivations therein, to
effect mutation in his name and to pay tax and to
enjoy the property with all rights of alienation.
As regards the life interest reserved in her
favour, it is further specified that she will not
be having any right over the scheduled property
except to have residence in the building in the
scheduled property and that there is no encumbrance
or other charges over the property. Even before the
cancellation admitted to be effected by Exhibit B2
executed on 3.8.1995, it is seen that the
respondent/plaintiff has effected mutation in his
name and was paying building tax, though the
receipts produced in evidence thereof are only from
6.1.1992 onwards, but, however, that has no
bearing, as the suit is instituted only in 1997 and
the delay in effecting the mutation will not have
the effect of gift not coming into force. After
having released all the rights, except to have
residence during her life time, in the building in
RSA 1305/08 10
the scheduled property, the donor has absolutely no
other right, as the gift takes effect immediately
and she has no right thereafter to cancel the said
gift. Further, it is seen that Exhibit B3 will also
is got executed on the same day of execution of
Exhibit B2 on 3.8.1995, wherein, the beneficiary is
the first appellant/first defendant and on the very
next day, namely, on 4.8.1995, Exhibit B4 power of
attorney is executed in favour of the first
appellant/first defendant by the donor Madhavikutty
Amma and on the strength of the said power of
attorney, the first appellant/first defendant
executes Exhibit B9 sale deed in relation to the
scheduled property in favour of his own son-in-law,
when Exhibit A1 has come into force, as rightly
found by the courts below on a proper appreciation
of the evidence adduced in the case, with which I
also agree, the donor had no right to cancel the
said gift deed. There is no merit in the contention
that Exhibit B2 calcellation deed is valid or that
on the strength of Exhibit B4, power of attorney,
RSA 1305/08 11
the first appellant/first defendant was competent
to assign the scheduled property in favour of the
second appellant/second defendant by Exhibit B9
sale deed dated 20.3.1997. The question as to
whether Exhibit A1 has taken effect is more a
question of fact and that has been found on
evidence concurrently by both the courts below in
favour of the respondent/plaintiff. There is no
question of law and much less, any substantial
question of law, as is attempted to be formulated,
arising for consideration by this Court in this
Regular Second Appeal.
In the circumstances, I dismiss this Regular
Second Appeal in limine.
20th March, 2009 (K.P.Balachandran, Judge)
tkv