IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 S.A.No. 344 of 1998(G) --------------------- ( AS.210/1994 of SUB COURT, PALA OS.86/1988 of MUNSIFF COURT, PALA) APPELLANTS/APPELLANTS/PLAINTIFFS: --------------------------------------------- 1. AMMINI, D/O. NARAYANAN, ELAVUMMOTTIL, CHAMPAKARA, KARUKACHAL. 2. RAJAMMA, MANJAKKAL, MURIKKANAD, PULIYANNUR. BY ADV. SRI.RAJEEV V.KURUP RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------------------------------------- 1. JANAKI, WIFE OF NARAYANAN, THALAPATHADATHIL PIZHAKU, RAMAPURAM, PALAI. 2. SARASWATHY, D/O. JANAKI, OF -DO- -DO- 3. SARANGADHARAN, S/O. NARAYANAN, OF -DO- -DO- ADV. SRI.A.K.AVIRAH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A.No. 344 of 1998(G) J U D G M E N T WHEN THE SECOND APPEAL WAS TAKEN UP FOR HEARING, THERE WAS NO REPRESENTATION. THE SECOND APPEAL IS DISMISSED FOR DEFAULT. 15.10.2008 K.T. SANKARAN, JUDGE. lk K.T. SANKARAN, J. ................................................... S.A. No. 344 OF 1998 ................................................... Dated this the 15th October, 2008 J U D G M E N T P.BHAVADASAN, J. ------------------------------------- SA No.344 of 1998 ------------------------------------- Dated this the 2nd day of June 2011 Judgment The disappointed plaintiffs are the appellants. Their suit for declaration of title and possession was dismissed by the trial court and it was confirmed in appeal. The brief facts necessary for the disposal of the appeal are as follows : 2. The plaintiffs laid claim to the suit property, on the basis of Ext.A1 dated 10.03.1975, which was a settlement deed executed by their father by which the plaintiffs were given plaint A and B schedule which are shown as items 1 and 2 to the plaint. It is stated that the plaintiffs and defendants 2 and 3 are the children of deceased Narayanan. First defendant is the third wife of Narayanan. Plaintiffs are the children in the first wife, the second defendant is the daughter of the first defendant and the third defendant is the son in the second wife. It is SA 344/98 2 claimed in the plaint that since the plaintiffs were residing far away from the suit property, the third defendant was entrusted with management of the property on their behalf. Narayanan expired on 14.12.1987. The defendants, who have no right over the suit property, were trying to take profits from the plaint schedule property. Therefore the suit was laid for declaration of title and possession. 3. The third defendant chose to remain ex parte and the suit was contested by defendants 1 and 2, who filed a joint written statement. They resisted the suit, pointing out that Ext.A1 settlement deed had not taken effect and that was subsequently cancelled by Narayanan by Ext.B2 dated 13.03.1976 and a fresh settlement deed was executed as per Ext.B3 dated 17.03.1976. In Ext.B3, Narayanan had preserved 27 cents of property, which, he later transferred to the first defendant as per Ext.B4. It was pointed out by them that Ext.A1 settlement executed by Narayanan had never taken effect and the plaintiffs had never been in possession of the suit property. On the SA 344/98 3 above contentions, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were framed by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Ext.A1 from the side of the plaintiffs. The defendants had DW1 examined and Exts.B1 to B5 marked. 5. The trial court, on an appreciation of the evidence found that Ext.A1 has not taken effect and the cancellation by virtue of Ext.B2 is also binding on the plaintiffs. Accordingly,the suit was dismissed . 6. The plaintiffs carried the matter in appeal as AS No.210/94 before the Sub Court, Pala. The lower appellate court, on an independent evaluation of the evidence, concurred with the trial court and dismissed the appeal. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether the plea of the contesting defendants respondents 1 and 2 are hit by Section 91 of the SA 344/98 4 Evidence Act ? 2.Whether the production of the original gift deed by the donee itself is sufficient to prove the acceptance of the gift during the life time of the donor ? 3.Whether the subsequent cancellation of a gift after acceptance, by a unilateral deed stating that the original gift deed had not taken place, can be taken into account to hold that the gift has not been accepted ? 4.Whether the appellate court had misconstrued the evidence on record and acted upon surmises and conjectures to hold that the gift deed Ext.A1 has not been accepted by the donees ? 5.In the absence of an explanation in the written statement by the contesting defendants with regard to the custody of the original gift deed can the defendant be heard to say at a latter stage that the original deed was taken unlawfully ? 8. The learned counsel for the appellant contended that the counts below were not justified in taking SA 344/98 5 the view that Ext.A1 has not taken effect. It was contended that Ext.A1 was produced by the plaintiff. That was sufficient to show that the gift evidenced by it has taken effect and that the plaintiffs have been enjoying possession of the property eversince the execution of the said document. The acceptance of gift is evidenced by the handing over of Ext.A1 by their father. These vital aspects have been omitted to be noticed by the lower appellate court and that has resulted in miscarriage of justice. 9. The learned counsel appearing for the respondents pointed out that a close reading of the evidence would reveal that the man behind the suit is none other than the third defendant, who has an axe to grind against the second defendant. According to the third defendant, who was examined as PW2, Ext.A1 was handed over to the plaintiff by the second defendant and that belies the version given by the plaintiffs that it was handed over to them by their father. Both the courts below have considered the evidence in considerable detail and SA 344/98 6 have come to identical conclusion. The findings are based on evidence on record and it is pointed out that they are essential questions of fact. According to the learned counsel, no substantial questions of law arise for consideration in the second appeal and it is only to be dismissed. 10. Narayanan, by virtue of Ext.A1 document dated 10.03.1975, allotted A schedule property to the first plaintiff, B schedule property to the second plaintiff, C schedule property to the third defendant and D schedule property was kept by himself. The case of the plaintiffs is that the gift deed namely Ext.A1 was handed over to them by Narayanan and they had taken possession of the suit property and the gift had come into effect. The evidence disclose that the plaintiffs are residing far away from the suit property and there is nothing to show that they have been in possession of the property. Of course, they have given an explanation that since they are residing far away, the third defendant was entrusted with the management of SA 344/98 7 the affairs of the property. There is also nothing to show that the plaintiffs have paid any tax for the suit property, which would show that the gift deed had taken effect. PW1 in her evidence has stated that it was Narayanan, who had handed over Ext.A1 to her. Both the courts below have noticed that the relationship between the plaintiffs and late Narayanan was far from happy and since the death of the mother of the plaintiffs, they had been under the care of their uncle. Ext.B1 letter admittedly sent by the first plaintiff to the Advocate shows the nature of relationship between the parties. The third defendant, as rightly noticed by the courts below, remained ex parte and willingly came to give evidence on behalf of the plaintiffs and he was examined as PW2. Though he supported the plaintiffs, he stated that it was he who handed over Ext.A1 to the plaintiffs. That demolishes the claim of the plaintiffs that it was Narayanan, who handed over Ext.A1 to them. As already noticed, there is nothing to show that the plaintiffs have either taken possession of the suit property nor is there anything to SA 344/98 8 show that they have been in possession of the suit property. 11. Further, the recitals in Exts.B2 and B3 would clearly indicate that Ext.A1 was kept by Narayanan himself and neither the property nor the document was ever handed over to them. As rightly noticed by the courts below, the suit seems to be filed at the instance of the third defendant. The said defendant was not at all happy with Narayanan in marrying the first defendant. Whatever that be, there is nothing to show that the plaintiffs had accepted the gift and they had been in possession and enjoyment of the property. As rightly pointed out by the learned counsel for the respondents, the findings entered by the courts below are based on appreciation of evidence and there is nothing to show that the findings are either perverse or unwarranted by the evidence on record. No substantial questions of law arise for consideration in this second appeal. The appeal is without any merits whatsoever and it is accordingly dismissed. However, there will be no order SA 344/98 9 as to costs. P.Bhavadasan, Judge sta SA 344/98 10