IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 872 of 2006()
1. JOSE VARGHESE, AGED 48 YEARS,
... Petitioner
Vs
1. SALY THOMAS, AGED 43 YEARS,
... Respondent
2. JOHN VARGHESE, MEPURATHU HOUSE,
For Petitioner :SRI.ABRAHAM VAKKANAL
For Respondent :SRI.JOHN BRITTO
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/08/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. NO. 872 OF 2006
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Dated this the 24th day of August, 2007
JUDGMENT
First defendant in O.S.122/1995 on the file of
Munsiff Court, Ranny is the appellant. First
respondent is the plaintiff. Second defendant is
the third defendant. Second respondent died when
the suit was pending before the trial court. First
respondent instituted the suit seeking a decree for
declaration of title and for recovery of
possession. Case of first respondent was that the
plaint schedule property belong to her under Ext.A1
settlement deed executed by her husband, the
appellant, and she obtained possession of the
property on the date of Ext.A1 and since then she
has been in possession of the property and while so
in June 1990 appellant had gone abroad and the
father of the first respondent constructed the
building for her and still due to the interference
of the relatives of the appellant, she could not
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continue to live there and she was compelled to
leave the residence and live with her father and
in 1990 appellant returned back, but due to
difference of opinion between them he deserted her
and second defendant mother was only having
nominal right in the property. It was contended
that after first respondent started residing
with her father in 1990, appellant and other
respondents trespassed into the plaint schedule
property and reduced it into their possession and
though appellant cancelled Ext.A1 under Ext.B2, it
is not valid and under Ext.B2 appellant did not
derive any right and first respondent is therefore
entitled to a declaration of title as well as
decree for recovery of possession. Appellant
along with the deceased second defendant filed a
joint written statement admitting that first
respondent was his wife. It was contended that
after the marriage at different periods between
1983 to 1990 appellant was abroad and during that
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period till 1989 first respondent was residing
along with second defendant and family and
thereafter building was constructed in the plaint
schedule property by the appellant and under
Ext.A4 settlement deed appellant has title to the
plaint schedule property subject to the life intent
of second defendant and Ext.A1 settlement deed in
favour of first respondent happened to be executed
as he was under the belief that she will live with
him and though Ext.A1 was executed, first
respondent did not obtain possession of the
property and Ext.A1 did not come into effect and on
25.11.1990 when appellant returned back from abroad
first respondent and the child was not seen in the
house and appellant came to know that on 7.1.1990
she had gone along with neighbour Achankunju and is
living with him as husband and wife and therefore
on 12.9.1990 appellant complained to Sub Inspector
of Police, Ranny and Circle Inspector of Police and
appellant came to know that the relationship was
R.S.A.872/2006 4
broken and he executed Ext.B2 cancellation deed and
thereafter he filed O.P.(divorce) 9/94 and for
custody of the child O.P.(G & W) No.13/91 and as
Ext.A1 was cancelled by executing Ext.B2 on
22.6.1991, first respondent has no title to the
property and she is not entitled to the decree for
declaration or recovery of possession sought for.
Learned Munsiff on the evidence of Pws.1 to 3,
Dws.1 to 4, Exts.A1 to A4 and Exts.B1 to B4 granted
a decree for declaration of title and recovery of
possession. Appellant challenged the decree and
judgment before District Court, Pathanamthitta in
A.S.93/98. Learned District Judge on
reappreciation of evidence confirmed the findings
of learned Munsiff and dismissed the appeal. It
is challenged in the second appeal.
2. Learned counsel appearing for appellant was
heard.
3. The argument of learned counsel appearing
for appellant is that Ext.A1 is not a gift deed as
R.S.A.872/2006 5
interpreted by the courts below, but is only a
settlement deed as provided under section 2 (q) of
Kerala Stamp Act and as first respondent eloped
with a neighbour and did not fulfil the hopes of
appellant, he was compelled to execute Ext.B2
cancellation deed and therefore under Ext.A1 first
respondent cannot claim any title to the property.
It was argued that courts below should have found
on the evidence that Ext.A1 settlement deed did not
come into effect and was not acted upon and
accepted and first respondent did not obtain
possession of the property at all and therefore
findings of the courts below are to be set aside.
4. On hearing the learned counsel I do not
find any substantial question of law involved in
the appeal.
5. Though it was argued that Ext.A1 is not a
gift deed, except the nomenclature of the document
as a settlement deed, it is an outright gift deed,
as rightly found by the courts below. Learned
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Munsiff and learned District Judge on appreciation
of evidence, found that Ext.A1 gift deed was acted
upon and accepted. That factual finding cannot be
interfered by reappreciating the evidence in
exercise of the powers of this court under section
100 of CPC. Once Ext.A1 gift deed was accepted
and acted upon, by executing Ext.B2, the gift deed
cannot be cancelled and by such cancellation
appellant is not entitled to dispute the title of
the first respondent or claim any title. In such
circumstance, I find no reason to interfere with
the decree and judgment of the courts below.
Appeal is dismissed.
Learned counsel appearing for appellant then
argued that first appellant court did not rule out
the possibility of the construction of the building
in the plaint schedule property, at the expense of
the appellant and therefore appellant is to be
granted liberty to realise the amount so spent. It
is made clear that if appellant has constructed the
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building or contributed the amount for
construction of the building, the decree granted in
suit will not bar appellant from claiming the
amount, if he otherwise eligible.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006