IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 54 of 2007()
1. VELAYUDHAN NAIR, S/O.GOPINATHAN PILLAI,
... Petitioner
Vs
1. MISHA NAIR, D/O.JAYAKUMARI PILLAI,
... Respondent
2. JAYAKUMARI PILLAI, D/O.GOPINATHAN PILLAI
3. KAMALAKUMARI PILLAI,
For Petitioner :SRI.P.B.SURESH KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :13/07/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. NO. 54 OF 2007
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Dated this the 13th day of July, 2007
JUDGMENT
Defendant in O.S.1071/1996 on the file of
Munsiff Court, Kollam is the appellant. Plaintiffs
are the defendants. Respondents instituted the suit
seeking a decree for declaration of title and
permanent prohibitory injunction. Plaint A
schedule property originally belonged to Gopinathan
Pillai. Under Ext.A7 settlement deed it was settled
in favour of appellant. He executed Ext.A2 gift
deed in favour of first respondent first plaintiff
providing right of residence to respondents 2 and
3/plaintiffs 2 and 3. Case of the appellant is
that Ext.A2 was executed as insisted by mother of
appellant and is road for undue influence exercised
by the mother and first respondent did not derive
any title under the gift deed and it was cancelled
under Ext.A5 cancellation deed. Respondents
contended that under Ext.A2 gift deed first
R.S.A.54/2007 2
respondent has title to the plaint schedule
property and Ext.A2 gift deed was accepted and
acted upon and though Ext.A5 cancellation deed was
executed it is not valid and binding and
respondents are entitled to the decree for
declaration and injunction. Appellant resisted
the suit contending that under ext.A2 gift deed
respondents did not obtain any right and under
Ext.A5 it was cancelled and therefore respondents
are not entitled to the decree sought for.
2. Learned Munsiff on the evidence of PW1,DWs.
1 and 2 and Exts.A1 to A7 and Exts.B1 to B6 granted
a decree holding that under Ext.A2 gift deed first
respondent has absolute right and other respondents
have right of residence and Ext.A5 cancellation
deed is not valid and therefore respondents are
entitled to the decree for declaration and
injunction. Appellant challenged the decree and
judgment before District Court, Kollam in
A.S.44/2001. Learned Additional District Judge on
reappreciation of evidence confirmed the findings
R.S.A.54/2007 3
of the learned Munsiff and dismissed the appeal.
It is challenged in the second appeal.
3. Learned counsel appearing for appellant
was heard.
4. The argument of learned counsel appearing
for appellant was that under Ext.A2 gift deed,
title of appellant was not divested or vested in
respondents and Ext.A2 only provides that title
will be transferred in favour of first respondent
on the death of the appellant alone and under
Ext.A5, the gift deed was cancelled and appellant
is entitled to cancel the gift deed and as
respondents have not obtained absolute right in the
property and the decree and judgment granted by
courts below are unsustainable. Learned counsel
also relied on the decision of the Apex Court in
Baby Ammal v. Rajan Asari 1997(1) KLT 340 and
argued that the gift deed considered in that case
was identical to Ext.A2 gift deed and therefore
findings of courts below are unsustainable.
5. On hearing the counsel, I do not find any
R.S.A.54/2007 4
substantial question of law involved in the appeal.
6. As against the gift deed considered by the
Apex Court in Baby Ammal’s case (supra) Ext.A2
gift deed shows that title of the donor appellant
was divested and vested with first respondent
donee. What is provided under Ext.A2 is that
during the life time of the donor, he has a right
of residence and also can take usufructs. It
recites that after the death of the donor, that
right also will devolve on the first respondent.
That does not mean that title of the donor was not
divested or not vested on the donee. There is no
prohibition against the alienation of the property
by the donee. From the recitals in Ext.A2 it is
clear that what was left with the donor was only
his right of residence and right to take the
usufructs. If so, it is not identical to the gift
deed considered by the Apex Court in Baby Ammal’s
case. Courts below rightly found that Ext.A2 was
not a conditional gift. Evidence also prove that
Ext.A2 was accepted and acted upon. Hence it
R.S.A.54/2007 5
cannot be cancelled by the donor as has been done
under Ext.A5. In the light of the factual findings
arrived at by the courts below concurrently
exercising the powers of this court under section
100 of Code of Civil Procedure, evidence cannot be
reappreciated and findings of the courts below
cannot be substituted by the findings of this
court. As no substantial question of law is
involved in the appeal, appeal is dismissed in
limine.
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