IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 AS.No. 11 of 1999() ------------------- OS.298/1994 of PRL.SUB COURT,THRISSUR .................... APPELLANT(S): -------------- UMMER, AGED 55, S/O. THEKKATHVALAPPIL MUHAMMED, KARIKKAD VILLAGE AND DESOM, THALAPPILLY TALUK. BY ADV. SRI.VAKKOM N.VIJAYAN RESPONDENT(S): --------------- GANGADHARAN, AGED ABOUT 37, S/O. IPPANNIYIL THAMI, SHANMUGHAPURAM COLONY, KARIKKAD VILLAGE AND DESOM,. TALAPPILLY TALUK ADV. SRI.A.X.VARGHESE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/01/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID - - - - - - - - - - - - - - - - - - - A.S. NO. 11 OF 1999 - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of January, 2010 JUDGMENT The plaintiff in O.S No.298/1994 on the file of the principal Sub Court, Thrissur is the appellant. The suit for return of advance amount with interest was dismissed by the Court below. Hence this appeal. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. The plaint schedule property originally belonged to the defendant's father Thami. On 22.12.1990 Ext. A1 agreement of sale was executed between Thami and the plaintiff. Sri. Thami agreed to convey the plaint schedule property to the plaintiff for a sale consideration of Rs.1,00,000/-. On the date of agreement Rs.25,000/- was received as advance. For the reasons stated in the plaint, it is alleged that the execution of sale deed was postponed as agreed to by the parties. Subsequently, Thami died on 21.4.1993. The defendant, who is the son of Thami, succeeded the assets of Thami and he was in possession and A.S. NO. 11 OF 1999 2 enjoyment of the plaint schedule property. Since the defendant has no other building for residence, he requested the plaintiff not to insist for execution of the sale deed. It is averred that the defendant agreed to pay back the advance amount with interest. Hence, the suit was filed for the realisation of the advance amount of Rs.25,000/- with interest at 12% from 15.7.1991. 3. The defendant in the written statement denied the plaintiff's claim and contented that the plaintiff is not entitled to get any relief in the suit. He also denied the execution of sale agreement and receipt of Rs. 25,000/-. It is contented by the defendant that Thami executed the settlement deed marked as Ext.B1 in the year 1985 in his favour settling the plaint schedule property and the adjoining ten cents. Subsequently Thami cancelled Ext.B1 settlement deed in 1992. The validity of cancellation of the deed was challenged by the defendant in O.S.No.502/1992 before the Munsiff's Court, Chavakkad. By Ext.B2 judgment, the Civil Court held that the cancellation deed is null and void. 4. The Trial Court examined the issues on the basis of the oral and documentary evidence adduced by both sides. Ext.B1 settlement deed was executed by Thami in 1985 with respect to A.S. NO. 11 OF 1999 3 the plaint schedule property. As I said in the preceding paragraph, by Ext.B2 Judgment, the Civil Court held that the cancellation of settlement deed was invalid. The Court below examined the validity of Ext.B1 since the plaintiff is not a party in O.S.No.502/1992. On a reading of Ext.B1 Settlement Deed, the trial court held that the said deed is a gift deed and that the same was accepted by the defendant. Since Ext.B1 is a gift deed and accepted by the defendant, there was no subsisting right for Thami to enter into the agreement for sale with the plaintiff. In these circumstances, the trial court held that there is no merit in the contention of the plaintiff. The defendant, who is the donee of Ext.B1 Settlement Deed, deposed before the court that he had paid the land tax for the property. Ext.B2 judgment would also show that the defendant produced the tax receipts before the said court. The Civil Court in the earlier suit between the defendant and his father held that the donee had accepted the gift during the life time of the donor. In these circumstances, Thami, the father of the defendant, having no subsisting right over the property at the time of Ext.A1 agreement to alienate the property, therefore no validity can be attached to the sale agreement. More over the sale agreement is not binding on the A.S. NO. 11 OF 1999 4 defendant or the plaint schedule property. In the light of the above facts and circumstances, I do not find any reason to interfere with the findings entered by the court below. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE jma