IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 AS.No. 457 of 2000() --------------------------- OS.518/1990 of PRL.SUB COURT,IRINJALAKUDA ,TSR-35 .................... APPELLANT/(PLAINTIFF) ----------------------------------- THOMAS, S/O KUNJICHARIYA, VADAKKUMBADAN HOUSE, PARIYARAM VILLAGE, ANTRAKKYAPADAM DASOM, MUKUNDAPURAM TALUK. BY ADV. SRI.P.R.VENKETESH RESPONDENT(S)/ (DEFANDANTS 1 & 3 TO 11) ---------------------------------------------------------------- 1. KOCHUVAREED,S/O KUNJICHARIYA, VADAKKUMBADAN, PARIYARAM VILLAGE,ANTRAKKYAPPADAM DESOM, MUKUNDAPURAM TALUK. 2. CHARIYA, S/O KOCHUVAREED, VADAKKUMBADAN HOUSE DO- VILLAGE, DO DASOM, MUKUNDAPURAM TALUK. 3. PAULOSE, S/O KOCHUVAREED, VADAKKUMBADAN HOUSE,P.O. MOTHIRAKKAANNY. 4. JOSEPH, S/O KOCHUVAREED, VADAKKUMBADAN HOUSE, P.O. KUTTIKKAD. 5. THOMAS, S/O KOCHUVAREED, VADAKKUMBADAN HOUSE, P.O. KUTTIKKAD. 6. THANKAMMA @ MERCY,W/O ANTO AND D/O KOCHUVAREED, KAIDHARATH HOUSE, POOMANGALM VILLAGE, ARIPALAM DASOM, KUKUNDAPURAM TALUK. 7. SR.VANEETHA (ANNIE) NUN, 44 YEARS, HOLY CROSS CONVENT, VATTUARY MADAMP.O. NAGARKOVIL, TAMIL NADU. 8. GRACY RAJAN W/O RAJAN P.P. PALAKKAL KUTTIKADAVU HOUSE, THRISSUR NEAR BISHOP'S HOUSE. 9. BR.JOSEPH, VAAKKUMBADAN, AGED 35, KALVARY ASRAM,POOTHOL(VIA) THRISSUR. 10. V.K. CHAKKAPPAN, AGED 49, POLICE, VADAKKUMBADAN HOUSE, ELINJIPPARA P.O. CHOUKKA. R1 TO R6, R8& R10 ADV. SRI.RENJITH THAMPAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING. AS.NO.457/2000 ORDER ON C.M.P.NO. 5033 OF 2000 IN A.S. NO. 457 OF 2000 DISMISSED 27/10/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S.TO.JUDGE M.N. KRISHNAN, J. ........................................... A.S.NO.457 OF 2000 ............................................. Dated this the 27th day of October, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Irinjalakuda in O.S.No.518/1990. The suit is one relating to two schedules of property namely A and B schedules. The first prayer is with respect to recovery of possession of the properties on the strength of the plaintiff's title and the second prayer is to grant mesne profits. The brief facts necessary for the disposal of the appeal are stated as follows: 2. The plaintiff and the first defendant are the children of one Kunjicheriya. The other defendants are the wife and children of the first defendant. The second defendant wife died during the pendency of the case and supplemental defendants 8 to 11 are also impleaded as the legal heir. The plaintiff is claiming right over the plaint A schedule property by virtue of a registered instrument executed by the father Kunjicheriya as per document No.2925 of 1979. According to the plaintiff, he is in possession of the said : 2 : A.S.NO.457 OF 2000 property from that date onwards and the father died in 1988. According to the plaintiff, B schedule property is a part of item 2 of the settlement deed executed in favour of the plaintiff in 1973 having a measurement of 10 cents which had also been unlawfully entered into by the defendants. According to the plaintiff, the father executed two documents in 1973 and later executed two rectification deeds in 1979. The rectification deed was only to correct the mistakes committed in 1973 document. Therefore the plaintiff prays for recovery of possession of A and B schedule properties. 3. The first defendant, on the other hand, would contend that the father executed a gift deed in favour of the defendants as document No.1539/73 and that the plaint A schedule property is forming part and parcel of that document and the father did not have any right or title subsequently to change the same by executing a rectification deed as alleged by the plaintiff. According to the defendants, the said documents are executed behind the back of the first defendant and it is invalid in law and : 3 : A.S.NO.457 OF 2000 therefore the plaintiff is not entitled to any relief. It is also contended that the plaintiff is also not entitled to any relief with respect to plaint B schedule property. 4. In the trial court Exts.A1 to A18, B1 and B2 were marked. PW1, DW1 and CW1 were examined. Exts.C1 to C3 were marked. On an analysis, the court found that the plaint A schedule property forms part of the gift deed executed in favour of the defendant in 1973 and therefore the father did not have any power to change the same. Therefore negatived the prayer with respect to the plaint A schedule. So far as B schedule is concerned the court has held that the property has not been properly identified with respect to the title and therefore disallowed the prayer also. It is against that decision, the plaintiff has come up in appeal. 5. Heard the learned counsel for the appellant as well as the respondents. Even as per the plaint, the plaintiff is claiming right over A schedule property by virtue of a rectification but alleged to be executed by the father of the plaintiff and the first defendant in 1979. Item 3 therein is the A schedule property. On the other hand, the defendants : 4 : A.S.NO.457 OF 2000 would contend that the plaint A schedule property was gifted in favour of the first defendant by virtue of Ext.A1 in the year 1973 and from that day onwards the first defendant is in possession and enjoyment of the property and therefore the subsequent deed executed by the father cannot have any validity. Though the second document of the year 1979 is executed as a rectification deed, in fact what was happened is that the property in that document is now said to be covered under the document in favour of the plaintiff in 1973. So the question that has to be considered in this case is whether the father did have the right to do so. Settlement deed is a gift. A gift becomes complete when there is an offer by the donor and acceptance by the donee and delivery of possession in favour of the donee by the donor. It is a compulsorily registerable document. 6. So far as this case is concerned, execution of the gift deed is admitted. The plaintiff as PW1 himself has admitted that the father had handed over possession of the property to the first defendant before registration of the document. So when plaintiff himself admits that by the : 5 : A.S.NO.457 OF 2000 1973 document the property had been given to the first defendant and he has accepted the same and he is put in possession, it becomes a complete gift. A gift can be revoked only as per Section 126 of the Transfer of Property Act. It is that donor and the donee may agree that on the happening of any specified event which does not depend on the Will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part at the mere Will of the donor, is void wholly or in part, as the case may be. It has also to be stated that another situation where a gift can be revoked is before a gift is accepted. There is no case for the plaintiff that any condition attached to the Will on the happening of which a right was reserved by the father to revoke the Will. Therefore the first part of Section 126 will not have any application. 7. Then the next question is whether there had been a complete gift as contemplated under law. The offer is proved and the acceptance is proved by the execution of the document and handed over the document and delivery of the : 6 : A.S.NO.457 OF 2000 possession is also admitted by the plaintiff from the box that even before the registration of the document, the first defendant was put in possession of the property settled in his favour in the year 1973. So it has to be held that the document of gift or settlement executed in favour of the first defendant has become a complete document and there are no circumstances reserved in order to revoke the gift. So whatever may be the nomen clature of the document stating that it is a rectification deed, in effect what has been done is to take away an item of the property gifted to the first defendant and placed it into the hands of the plaintiff. It is absolutely invalid in law and therefore as rightly decided by the trial court it has to be held that the plaintiff is not entitled to any right over A schedule property described in the plaint. So far as B schedule property is concerned, it is the case of the plaintiff that it forms part and parcel of item 2 of the 1973 settlement deed executed in his favour and it is of 10 cents in a corner. There was an attempt to identify the property. When the Commissioner visited the property, these 10 cents were shown as lying in fragment in : 7 : A.S.NO.457 OF 2000 different parts of the property. So there is no B schedule property identified by the Commissioner as alleged in the plaint. In the absence of such an identification, the court may not be able to find out the total extent of the property or the entitlement of recovery. 8. So I cannot find fault with the learned trial judge in dismissing the property with the B schedule. From these discussions I do not find any ground to interfere with the judgment and decree. The judgment and decree of the trial judge are confirmed and the appeal is dismissed directing the parties to bear their respective costs. Disposed of accordingly M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.457 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NO.457 OF 2000 ............................................. 27th day of October, 2010. J U D G M E N T