IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 SA.No. 274 of 1999(G) --------------------- (Against the judgment and decree in A.S.No.127/90 dtd. 19-05-98 of the 1st Addl. District Judge's Court, Thiruvananthapuram against the judgment and decree in O.S.No.1410 of 1984 dtd. 18-3-89 of the 1st Addl. Munsiff's Court, Thiruvananthapuram) APPELLANTS/APPELLANTS/DEFENDANTS 2 TO 5 -------------------------------------------------------------------- 1. PARUKUTTY AMMA SARASWATHI AMMA RESIDING AT KOVILVILAKATHU VEEDU PUTHICHAKONAM MURI, DO. VILLAGE 2. JAYAKUMAR, S/O KRISHNAN NAIR KOVILVILAKATHU VEEDU PUTHICHAKONAM MURI 3. SATHEESH KUMAR, S/O KRISHNAN NAIR KOVILVILAKATHU VEEDU, PUTHICHAKONAM MURI 4. GIREESH KUMAR, S/O KRISHNAN NAIR KOVILVILAKATHU VEEDU PUTHICHAKONAM MURI BY ADV. SRI.R.S.KALKURA RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 TO 4 AND FIRST DEFENDANTS: ---------------------------------------------------------------------------------- 1. JANAKI AMMA PARUKUTTY AMMA RESIDING AT THERUVIL PARAMABA VEEDU THURUTHUMOOLA MURI, RANDAMADA VILLAGE (DIED) 2. JANAKI AMMA KAMALAMMA, THERUVILAPARAMBU VEEDU, THURUTHUMMOOLA MURI RANDAMADA VILLAGE 3. JANAKI AMMA RUGMINI AMMA (DIED) REP. BY HER SOLE LEGAL HEIR 6TH RESPONDENT. 4. JANAKI AMMA KRISHNAMMA, RESIDING AT THERUVILPARAMBU VEEDU, THURUTHUMMOOLA MURI, RANDAMADA VILLAGE 5. JANAKI AMMA RUDRAYAYANI AMMA RESIDING AT KOVILVILAKATHU VEEDU MANNAMMOOLA, PEROORKADA THIRUVANANTHAPURAM 6. AJAYAKUMAR, S/O RUGMINI AMMA KOVILVILAKATHU VEEDU MANNAMMOOLA, PEROORKADA THIRUVANANTHAPURAM ADDITIONAL RESPONDENT 7. SRI.KARTHIKEYAN MANNAMOLAMAYOORAM HOUSE PEROORKADA VILLAGE The representative of deceased 1st respondent is impleaded as additional 7th respondent as per order dated 28-05-02 in C.M.P.No.291/02. BY ADV. SRI.M.RAJASEKHARAN NAYAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/04/2008, THE COURT ON 31/03/2008 DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. S.A.NO.274 OF 1999 JUDGMENT 31ST MARCH 2008 PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - S.A.No. 274 OF 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of March, 2008. JUDGMENT The defendants in a suit for partition and redemption which was decreed concurrently by the trial court and the 1st appellate court are the appellants. Respondents 1 to 4 are the plaintiffs and the 5th respondent is the first defendant in the suit. The 6th respondent is the sole legal representative of the third respondent who died pending appeal. The parties will be referred to as they were in the trial court. 2. The case of the plaintiffs was that them, the first defendant and the husband of the second defendant and father of defendants 3 to 5 are all children of deceased LakshmiAmma Janaki Amma. The deceased Lakshmi Amma Janaki Amma executed Ext.A1 possessory mortgage in favour of Thanu Pillai Krishnan Nair in the year 1967. While the A schedule item was under the possession of the aforesaid mortgagee on 18/07/1968, the mortgagor Janaki Amma executed Ext.A3 gift deed with regard to her rights over both A schedule SA.No.274/99 2 property covered by the mortgage and B schedule property another item in favour of her daughters namely plaintiffs 1 to 4 and the first defendant. After the above gift on 07/07/1972, as per Ext.A2 Krishnan Nair s/o Janaki Amma took an assignment of A schedule property and reduced the same to his possession. On 21/01/1983 Smt. Janaki Amma died. Within an year her son Krishnan Nair also died. After the death of Janaki Amma the plaintiffs and the first defendant came to know that after Ext.A3 gift deed in their favour, on 24/12/1977 Janaki Amma executed one document purporting to cancel the gift deed and another document purporting to transfer her alleged right in respect of plaint A and B schedule items in favour of the second defendant who is the widow of Krishnan Nair. The plaintiffs alleged that the cancellation of Ext.A3 gift by Janaki Amma by a unilateral act does not affect their right in plaint A and B schedule properties under the gift deed and that the said cancellation ( Ext.A4) is without authority and consequently liable to be ignored. They also alleged that the subsequent sale deed namely Ext.A5 purporting to convey the right of Janaki Amma over plaint A and B schedule items in favour of the second defendant is a SA.No.274/99 3 void document in as much as, on the date of execution of that document, Janaki Amma had no manner of right or interest over those properties. In these circumstances, the plaintiffs instituted the suit for partition of plaint A and B schedule items into 5 shares and allotment of 4 out of those 5 shares to them and also for redemption of Ext.A1 mortgage in regard to those shares. They alternatively prayed that if there is any resistance from the side of the defendants to the plaintiff redeeming the mortgage only in part they may be permitted to redeem the whole mortgage on payment of the entire mortgage amount. The first defendant filed a written statement, and defendants 2 to 5 filed a separate joint written statement. The first defendant contended that Ext.A3 gift of the year 1968 had taken effect on the very day of its execution and hence thereafter barring a life estate over plaint B schedule property Janaki Amma had no manner of right over plaint A or B schedule items. That life interest also had come to an end upon her death on 21-01-1983. According to the first defendant, Smt.Janaki Amma was laid up with diseases and during that period she was not in a position to understand the effect of her actions. Taking advantage of SA.No.274/99 4 that situation Krishnan Nair managed to influence her to execute a document cancelling the gift deed of 1968 and also purporting to transfer her rights over plaint A and B schedule items to the second defendant who is his own wife. According to the defendant neither Janaki Amma nor the second defendant had any right over plaint A and B schedule items at any time after 18-07-1968, the date of Ext.A3 gift. In all respects the first defendant supported the claim of the plaintiffs. She wanted a decree to be passed in her favour in regard to her 1/5th share in plaint A and B schedule items. According to defendants 2 to 5, the main contestants, on 07/07/1992 their predecessor in interest namely Krishnan Nair took an assignment of Ext.A1 mortgage and was in possession of plaint A schedule property as a mortgagee. While so on 24/12/1977 Smt.Janaki Amma cancelled Ext.A3 gift deed and executed a sale deed in regard to both plaint A and B schedule items in favour of the second defendant. As per the sale deed the second defendant became the owner of both plaint A and B schedule items. It was contended that although in 1968 Janaki Amma executed Ext.A3 gift deed purporting to transfer her rights in respect of plaint A and B SA.No.274/99 5 schedule items in favour of her five daughters none of them accepted the gift and acted upon it. This state of affairs continued till the gift was revoked on 24/12/1977 as per Ext.A4 cancellation deed. The defendants therefore contended that the cancellation of the gift is valid in the eye of law and that the plaintiff is not entitled to challenge the same. They contended that upon the death of Janaki Amma and Krishnan Nair, they are in the possession of both plaint A and B schedule properties as absolute owners. Yet another contention raised by them was that they have effected improvements over plaint A schedule item. The value of which would come to Rs. 25,000/-. On the basis of the above pleadings, the learned Munsiff formulated the following issues: 1) Whether the suit is barred by limitation? 2) Whether the gift deed No.2934/68 is acted upon? 3) Whether the revocation deed and subsequent sale deed are valid binding? 4) Whether the plaintiffs are entitled to redeem the property as claimed in the plaint. SA.No.274/99 6 5) Whether the plaintiff is entitled to get partition as prayed for. 6) Reliefs and costs. 3. At trial, the evidence on the side of the plaintiffs consisted of oral evidence of PW1, PW2 and documents Exts.A1 to A5. On the side of defendants the same consisted of oral evidence of DW1 and Exhibits B1 and B2. Ext.A1 was the mortgage deed executed by Janaki Amma in favour of Krishnan Nair. Ext.P2 was the sale deed by Thanu Pillai Krishnan Niar in favour of Krishnan Nair, s/o Janaki Amma. Ext.A3 was the gift deed executed by Janaki Amma in favour of Krishnamma and others and Ext.A4 was the cancellation deed executed by Janaki Amma regarding gift deed and Ext.A5 is the sale deed executed by Janaki Amma in favour of Sarawathy Amma. PW1 was Parukutty Amma, the first defendant and PW2 was Rajasekharan Nair, a public man who claimed to have acquaintance with Lakshmi Amma Janaki Amma. DW1 was the second defendant Saraswathy Amma and Ext.B1 was the lease deed executed by Janaki Amma in SA.No.274/99 7 favour of Parukutty Amma and Ext.B2 was the hypothecation deed executed by Janaki Amma in favour of Gopalan Nair. 4. On an evaluation of the evidence the court below- the trial court decreed the suit allowing the partition of the plaint schedule properties and allotment of their 4/5th shares separately and redemption of their share in A schedule property free of mortgage on deposit of proportionate amount of the mortgage money. Alternatively, the court allowed the plaintiff to redeem the entire mortgage on deposit of entire mortgage money in case defendants 2 to 5 resist redemption in piece meal. Trial court also declared that Ext.A4 cancellation deed and Ext.A5 sale deed executed by Janaki Amma are not valid and on that basis court below set aside those documents. On a re-appreciation of the contentions and the evidence on record, the learned Additional District Judge who considered the appeal would concur with the trial court in all respects and accordingly dismissed the appeal. 5. Assailing the judgments and decrees of the courts below, the appellants urge in this second appeal that those judgments and decrees are the result of mis-construction of facts, pleadings,evidence, SA.No.274/99 8 circumstances and the law by the courts below. It is urged that Ext.A3 gift deed was never extended to be acted upon and that the same was never accepted and acted upon by the donee. It is urged that Ext.A4 and A5 documents were executed on 24/12/1977 and the suit having been instituted on 1984 for setting aside those documents is barred by limitation. It is urged that there is no evidence to establish the acceptance of the gift by the donees and that the plaintiffs who had the burden of proving acceptance of the gift deed has not discharged that burden by adducing cogent evidence. It is urged that a totally wrong construction has been placed on Ext.A4 for finding that Ext.A3 gift deed has come into effect. It is urged that since the donor has reserved to herself the right of possession and enjoyment over the same during her life time, no valid title would have been conferred upon the plaintiffs in view of Ext.A3. The court below failed to apply the principles enunciated in 1997 (1)KLT 340, wherein proof of delivery of the property to the donee and the acceptance of the possession of the property by the donee was held to be the essence of a gift coming into effect, it is urged. Exts. B1 and B2 produced on the side of the defence SA.No.274/99 9 was not properly construed by the courts below. These documents cut at the very root of the plaintiff's case that at the time of execution of Exts.A4 and A5, Janaki Amma was laid up, it is urged. The finding of the courts below that the defendants are not entitled to any amount by way of valuable on the ground that no evidence was adduced is unsustainable since it is at the final decree stage that persons claiming the value of improvements is called upon to adduce evidence, to prove that claim. It is suggested in the memorandum of appeal that the following substantial questions of law arise for determination in the second appeal. 1) Is the court below justified in decreeing the suit, when challenge against Exts.A4 and A5 are barred by law of limitation. 2) Is the court below justified in finding that Ext.A3 gift deed was accepted and acted upon by the donee, without any specific pleadings to that effect. 3) Were not the courts below wrong in holding that Ext.A3 gift had taken effect when the donor had reserved to herself the right of possession and enjoyment over the same during her life time. SA.No.274/99 10 4) Were not the courts below wrong in holding that Ext.A3 had taken effect when proof of delivery of the gifted property to the donee and acceptance of the same was totally lacking. 5) Have the courts below rightly applied the principles with regard to gifts as envisaged in 1997(1)KLT 340 SC. 6) Are the courts below correct in rejecting the claim of the defendants for value of the improvements, when the same was admitted by the plaintiffs. 6. I have heard the submissions of Sri.R.S.Kalkura, counsel for the appellants and those of Sri.M.Rajasekharan Nair, counsel for the respondents. Sri.R.S.Kalkura addressed me on the various grounds raised in the second appeal memorandum particularly on the substantial questions of law as suggested in the memo. Sri.R.S.Kalkura would draw my attention to Exts.A2, A3, A4 and A5 and Ext.B1 and B2. Sri.R.S.Kalkura would place reliance on the judgment of the Supreme Court in Baby Ammal v. Rajan Asari ( 1997(1)KLT 340(SC). Learned counsel also relied on the judgment of this court in Kunjikuttiamma v. Kunjikuttiamma ( 2001(1)KLT 797). Learned SA.No.274/99 11 counsel also relied on the judgment of this court in Omana v. Kesavan ( 2005(1)KLT 893) and the judgment in Rajamma v. Biswajith (2001(3)KLT 726) apart from relying on the judgment in Krishnan v. Vasu (1991(2)KLT SN 58). 7. Resisting the submissions of Sri.R.S.Kalkura very stiffly, Sri.M.Rajasekharan Nair would read out to me Exts.A3 and A4 again. Sri.M.Rajasekharan Nair places strong reliance on the judgment of a Division Bench of this court in Muhammad Pathummal Kadija Beevi v. Mohammed Pathummal ( 1958 KLT 23) which according to the learned counsel would apposite though decided in the context of Muhammedan Law. Sri.M.Rajasekharan Nair also relied on the judgment of a Division Bench in Ashia Ummal v. Vasanthi (1964 KLT 844 and that of another Division Bench in Janaki Alias Nangeli Amma v. Krishnan Nambissan ( 1958 KLT 516). Meeting the claim for value of improvements, the learned counsel relied on the judgment in Krishnak Nair v. Kunjan Pillai ( 1968 KLT 457). 8. I have considered the rival submissions addressed at the bar in the light of the ratio emerging from the various decisions cited. The SA.No.274/99 12 contention of the appellants that Ext.A1 gift deed was not intended to be acted upon and was not actually acted upon cannot be accepted. The Division Bench of this court in Muhammad Pathummal Kadija Beevi v. Mohammed Pathummal (1958 KLT 23) has clearly held that a clause in the Gift Deed that the Donees are to enjoy the properties with absolute rights after donor's death do not indicate that the gift is to come into effect only after the donor is dead and that the donor's reserving the right to take usufructs during his life time does not mean that possession is not given to the donees. Such a reservation is quite consistent with delivery of possession of the properties to the donees. The Division Bench of this court in Janaki Alias Nangeli Amma v. Krishnan Nambissan (1958 KLT 516) has given some guidelines as to the manner in which documents are to be interpreted. It is stated that document is to be read as a whole attempting to reconcile as far as possible the apparently irreconcilable clauses. If even then it is seen that there are two passages which are wholly irreconcilable and repugnant to each other, the subsequent clause in the instrument of transfer or gift, which is seen as SA.No.274/99 13 inconsistent with the nature of the gift or interest made by the earlier clause, has to be rejected as repugnant to the earlier clause. It is seen that on a perusal of the gift deed, which is subject matter of this case, that recital therein is some what similar to the gift deed which was considered by the Division Bench in Muhammad Pathummal Kadija Beevi's case (supra). The principles laid down by the Division Bench in Janaki Alias Nangeli Amma v. Krishnan Nambissan (1958 KLT 516) can be followed in this case also and interpreting the gift deed that it may be seen that there is an absolute gift in favour of the donors. Since the gifted property at that time was subject to an equitable usufructuary mortgage, delivery of actual physical possession was out of question. Even otherwise in view of the obvious position that the donor and donee were living together at the relevant time the principles of Muhamedan Law quoted with approval by the Division Bench in Ashia Ummal v. Vasanthi (1964 KLT 844) will assume significance. Paragraph 10 of the judgment in Ashia Ummal's case endorses that principle and it is held that when donor and donee are residing together the formal entry by the donee is not necessary to make the gift SA.No.274/99 14 complete. 9. The only question which now survives is whether the respondents' claim for value of improvements is allowable. It is found that in their written statement, respondents had claimed a sum of Rs.25,000/- towards the value of improvements. There is some evidence to indicate that the property which was paddy field at the time of entrustment has been reclaimed partially and that the reclaimed portion has been planted with as many as 17 coconut trees. The claim for value of improvement was turned down concurrently by the courts below on the reason that the respondents need not adduce any positive evidence for substantiating the claim and also on the reason that construction of bund on a portion of paddy filed and planting the same with coconut trees which amounts to conversion of the mortgaged property cannot be treated as improvement justifying the claim for value of improvements. Though no judicial precedents is referred to by the court below, it appears to me that the court below had in their judgment in Krishna K.Nair v. Kunjan Pillai (1968 KLT 457) wherein it has been held that” conversion of nilam into garden land SA.No.274/99 15 however desirable it may be from the point of view of a mortgagee or the tenant, is a substantial alteration of the character of the holding and cannot therefore be considered to be an improvement and that compensation cannot be allowed in respect of the work of reclamation of paddy field'. 10. But in this particular case I have every reason to believe that the respondents will be enjoying the benefits of the “improvements” - the reclamations made and the coconut trees which were started yielding once they come to have possession of the properties. When the learned counsel for the respondent was enquired whether the respondents will be cutting down the coconut trees and removing the `chiras' for the purpose of reconverting the property as paddy field, the counsel was not able to answer the query. Counsel would only submit that the claim for Rs.25,000/- is exorbitant and that an advocate commissioner deputed on the execution side has reported the value of the so called improvements to be below Rs.10,000/-. Taking all relevant inputs into account I am of the view that a sum of Rs.15,000/- can be awarded to the appellants towards value of SA.No.274/99 16 improvements effected by them provided they put the respondents in peaceful possession of the property within one month of the petitioner making available a copy of this judgment before the execution court. The result is that the judgment and decree under appeal will stand confirmed subject to the modification that a sum of Rs.15,000/- is paid by the respondent plaintiffs to the appellant on condition that the plaintiffs are put in peaceful possession of the property within one month of the date of a copy of this judgment produced before the execution court. If the respondent plaintiffs are not put in peaceful possession within the stipulated time the judgment and decree will stand confirmed without any modification. PIUS.C.KURIAKOSE JUDGE sv. SA.No.274/99 17