IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 398 of 2008()
1. VASAPPAN, S/O.NARAYANAN, AGED 59,
... Petitioner
2. SARADA, W/O.SREEDHARAN, AGED 65,
Vs
1. MOHANAN, S/O.RAGHAVAN, AGED 55,
... Respondent
2. PANKIAMMA, W/O.KARUNAPPAN, AGED 56,
3. CHINNAMMA KURIYAN, W/O.KURIAN,
4. MOHANAN, MAZHUVANCHERIL PUTHUPARAMBIL,
For Petitioner :SRI.C.S.MANILAL
For Respondent :SRI.M.P.MADHAVANKUTTY
The Hon'ble MR. Justice V.RAMKUMAR
Dated :19/01/2009
O R D E R
V. RAMKUMAR, J.
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R.S.A. NO. 398 of 2008
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Dated: 19-01-2009
JUDGMENT
Defendants 1 and 3 in O.S. No. 318 of 1998 on the file of the
Munsiff’s Court, Changanassery are the appellants in this Second
Appeal. The said suit instituted by the first respondent herein by
name Mohanan was one for declaration of title over plaint schedule
item No.1 and for fixation of boundary and also for a perpetual
injunction consequential to the main reliefs.
2. Both the courts have granted a decree as prayed for.
Hence, this Second Appeal.
3. The following are the questions of law formulated in the
memorandum of Second Appeal:-
i) Whether the finding of the Courts below to the effect that a Gift of
immovable property can be accepted by the sister of the mother of the
minor plaintiff while the natural guardian father is alive ?
ii) Is the Gift in question in this case (Ext.A1) is void due to its
acceptance by a de facto guardian other than the natural guardian of a
Hindu minor due to the interdict of Section 11 of Hindu Minority and
Guardianship Act ?
iv) Whether Section 6 and 11 of the Hindu Minority and Guardianship Act
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overrides any other provisions of law in the matter of guardianship of
Hindu minors and in which event, the acceptance of a Gift as contemplated
by Section 123 of the Transfer of Property Act contemplating acceptance of
gift to which, the former provisions be read into for the purpose of
considering the legality or otherwise of the Gift ?
4. The learned counsel appearing for the appellants re-
iterated the contentions of the appellants. The following are the
facts which have been concurrently found by the courts below:-
15 cents of land belonged one Sumathi who is no more.
Sumathi had an elder brother by name Vijayan who is also no more.
Defendants 1 and 2 are respectively the younger brother and
younger sister of Sumathi who had only one son , the plaintiff.
During her lifetime, Sumathi executed a registered gift deed dated
14-10-1961. Plaint schedule item No. 1 admeasuring 3.750 cents
was gifted by Sumathi to her son the plaintiff who was then a
minor, described as the ‘D’ schedule property under Ext.A1. Plaint
schedule item No. 2 again admeasuring 3.750 cents was gifted by
Sumathi as the ‘C’ schedule to Ext.A1 to her younger sister the 2nd
defendant. Plaint schedule item No. 3 admeasuring 3.750 cents was
gifted by Sumathi as the B schedule to Ext.A1 to her younger
brother the first defendant. Plaint schedule item No. 4 again
admeasuring 3.750 cents was gifted by Sumathi to her elder
brother Vijayan as the A schedule under Ext.A1. Subsequently the
2nd defendant sold plaint schedule item No. 2 corresponding to “C”
Schedule under Ext.A1 gift deed to her elder brother the first
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defendant as per Ext.A3 sale deed dated 2-11-1982. Thereafter, as
per Ext.A4 sale deed dated 23-5-1994 the first defendant sold
plaint schedule item No. 2 corresponding to the C schedule in
Ext.A1 gift deed to the 3rd defendant who is a stranger. But the
property which was put in possession of the 3rd defendant under
Ext.A4 sale deed was not plaint schedule item No. 2 but the plaint
schedule item No. 1 corresponding to the D schedule to Ext.A1 gift
deed. It was with regard to this property that the plaintiff filed the
suit in the year 1998 seeking declaration of title, recovery of
possession, fixation of boundary and for consequential injunction.
The suit was resisted by the appellants contending inter alia that
the 2nd defendant who was the maternal aunt of the plaintiff and to
whom plaint schedule item No. 2 was gifted under Ext.A1 gift deed
as the plaint C schedule thereto had also accepted the gift of
plaint schedule item No. 1 (D schedule of Ext. A1) . gifted by
Sumathi to her minor son the plaintiff and that the rights of the
plaintiff over the plaint schedule item No. 1 were lost by adverse
possession and limitation. The said contention has been repelled
by both the courts. Even according to the first defendant as per
Ext.A3 sale deed he only purchased the “C” schedule property
under Ext.A1 gift deed which corresponds to plaint schedule item
No. 2 from the 2nd defendant to whom the said property was gifted
under Ext.A1.
5. Thus after Ext.A3 sale deed the first defendant could
have possessed only B and C schedule properties under Ext.A1
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corresponding to plaint schedule item nos. 3 and 2 respectively.
Thereafter the first defendant claims to have sold the C schedule
property (plaiant schedule item No. 2) to the 3rd defendant as per
Ext.A4 sale deed dated 23-4-1994. Neither the second defendant
nor the first defendant had any case that the 2nd defendant who
purportedly accepted the gift of the plaint schedule item No. 1 on
behalf of the plaintiff had transferred her possession of the same
to the first defendant. The first defendant also had no case that as
per Ext.A4 sale deed, the property sold was not the ‘C’ schedule
under Ext.A1 corresponding to the plaint schedule item No. 2 but
was the plaint schedule item No. 1 corresponding to the D
schedule property under Ext.A1 which was gifted to the plaintiff.
Under these circumstances, the contention of the appellants that
they had perfected their title over plaint schedule item No. 1 by
adverse possession and limitation was rightly repelled by the courts
below . No doubt, even though under Ext.A4 sale deed dated 23-
5-1994 the property which the first defendant sold to the 3rd
defendant was the plaint schedule item No. 2 corresponding to the
“C” schedule to Ext.A1 the property which was actually put in
possession of the 3rd defendant was the plaint schedule item No. 1
corresponding to D schedule to Ext.A1 gift deed. Thus, D3 got
possession of plaint schedule item No. 1 only in the year 1994. Of
course, the defendants had a case that the plaintiff was in
possession of ‘C’ schedule property under Ext.A1 corresponding to
plaint schedule item No. 2 . But then, admittedly, the 3rd defendant
has instituted O.S. 198 of 2000 for recovery of possession of the
R.S.A. NO. 398 of 2008 -:5:-
plaint “C” schedule property against the plaintiff. Moreover, in the
present suit, we are not concerned about the plaint schedule item
No. 2 corresponding to the C schedule property under Ext.A1 gift
deed. The finding that the plaintiff has title over the plaint schedule
item No. 1 corresponding to the D schedule to Ext. A1 gift deed has
been rightly recorded by the courts below. Similarly, the finding
that the title of the plaintiff over plaint schedule item No. 1 is not
lost by adverse possession and limitation also does not warrant
interference , particularly, in the light of the recent decision of the
Apex Court in P.T. Munichikkanna Reddy and Others v. Revamma
and Others – 2007 (6) SCC 59 . No question of law, much less, any
substantial question of law arises for consideration in this Second
Appeal. The questions of law formulated in the memorandum of
appeal also do not arise for consideration in this Second Appeal
which is accordingly dismissed.
Dated this the 19th day of January 2009.
Sd/- V. RAMKUMAR,
(JUDGE)
/true copy/
ani.