IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 RSA.No. 764 of 2011() --------------------- AS.74/2003 of SUB COURT, PAYYANNUR OS.166/1999 of MUNSIFF COURT, PAYYANNUR .................... APPELLANTS/APPELLANTS/PLAINTIFFS ----------------------------------------------------------- 1. MATTUMMAL SREEDHARAN, S/O.CHIRAYIL RAMAN, AGED 64 YEARS, AGRICULTURE,CHERUTHAZHAM AMSOM, DESOM, KANNUR DISTRICT. 2. PUTHIYAPURAYIL PADMAKSHI,D/O.KOTTAN, 49 YEARS, NO EMPLOYMENT, CHERUTHAZHAM AMSOM, DESOM, KANNUR TALUK. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.M.M.ANTO RESPONDENT(S):RESPONDENTS/DEFENDANTS ----------------------------------------------------------------------- 1. MATTUMMAL MADHAVI,D/O.CHIRAYIL RAMAN, 46 YEARS, NO EMPLOYMENT,P.O.CHENGAL, KANNUR TALUK, PAYANGADI.Pin.670 303. 2. MUTTUMMAL SREEMATHI, D/O.CHIRAYIL RAMAN, 45 YEARS, ERIPURAM,CHENGAL, ATHIYADAM, P.O.PAYANGADI, KANNUR DISTRICT.Pin.670 303. ADV. SRI.O.V.MANIPRASAD FOR CAVEATOR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 764 OF 2011 =========================== Dated this the 31st day of August,2011 JUDGMENT Plaintiffs in O.S.166/1999 on the file of Munsiff Court, Payyannur are the appellants. Defendants are the respondents. Plaint schedule properties are three items of properties. Item No.1 is 2.6 acres in R.S.No.748/2, item No.2 is 19 cents in R.S.No.730/9 and item No.3 is in 10 cents in R.S.No.720/5 of Cheruthazham village of Pazhayannur Taluk of Kannur District. Item No.1 of the plaint schedule property admittedly originally belonged to Parippayi Illath Cheriya Sankaran Namboodiri. Under document No.1856/1954, Chirayil Raman father of the appellants obtained it on lease from Sankaran Namboodiri. Raman in turn under Ext.A2/B1 settlement deed transferred 75 cents of the property in favour of the first RSA 764/2011 2 respondent. Under Exts.A3/B2 settlement deed Raman gifted 75 cents of the remaining property and his 8/15 shares in item No.2 and 3 of the plaint schedule properties in favour of the second respondent. The documents are respectively registered as document No.1049/1994 and 1050/1994. Subsequently first respondent transferred 5 cents out of the property obtained under Ext.B1, in favour of his son under Ext.B5 sale deed. Raman subsequently cancelled Exts.B1 and B2 under Exts.A4 and A5 cancellation deed Nos.1085/1995 and 1086/1995. Thereafter under Ext.A1 gift deed executed on 28.2.1997, he transferred item No.1 and his 8/15 shares in item No.2 and 3 of the plaint schedule properties in favour of the appellants. Appellants are claiming right and title over plaint schedule properties based on Ext.A1. It was contended that Ext.B1 and B2 were sham and nominal documents never intended to be acted upon and the father subsequently by Exts.A4 and A5 cancellation deeds, cancelled them and RSA 764/2011 3 therefore he has absolute right over the plaint schedule properties to transfer them in favour of the appellants under Ext.A1. Item No.2 and 3 of the plaint schedule properties were obtained jointly by Raman first appellant, Ramachandran and Kumaran. Raman under Ext.A1 gift deed transferred his right over 8/15 share in item No.2 and 3. Appellants contended that under Ext.A1 gift deed in addition to item No.1 8/15 share due to Raman in item 2 and 3 were also transferred in his favour and therefore he has right over the plaint schedule properties. When respondents attempted to pay the tax on the strength of Exts.B1 and B2, appellants filed a petition before the Tahsildar not to receive the tax as under Exts.B1 and B2 respondents did not derive any right. It is alleged that Tahsildar without considering the legal effect of Ext.B1, B2, A4 and A5 directed to receive the tax from the respondents. Though such an order is passed by the Tahsildar, it is not valid and binding on the plaint schedule properties. RSA 764/2011 4 Alleging that respondents attempted to trespass in the plaint schedule properties, suit was filed seeking a declaration that they have title to the plaint schedule properties under Ext.A1 gift deed and also a decree for injunction restraining respondents from trespassing into the plaint schedule properties. 2. Respondents resisted the suit contending that under Exts.B1 and B2 gift deeds father transferred the properties covered thereunder in favour of the respondents and the gifts were accepted and acted upon and once the gifts were accepted, the father had no right to cancel them and therefore Exts.A4 and A5 are not valid and father thereafter cannot execute Ext.A1, transferring the properties covered under Exts.B1 and B2 in favour of the appellants and appellants are not entitled to claim any right over the properties covered under Exts.B1 and B2 and therefore the suit is to be dismissed. 3. Learned Munsiff on the evidence found that RSA 764/2011 5 Exts.B1 and B2 gift deeds were executed by the father and respondents accepted them and thereafter father had no right to cancel the gifts or to execute another gift deed in favour of the appellants and therefore Exts.A4 and A5 are not valid and appellants cannot claim right or title under Ext.A1. It was found that appellants are not entitled to a decree for declaration or injunction. Suit was dismissed. Appellants challenged the decree and judgment before Sub Court Payyannur in A.S.74/2003. Learned Sub Judge on reappreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellants was heard. 5. Learned counsel appearing for the appellants did not challenge the factual findings of the courts below with regard to Exts.B1 and B2. But it was argued that item No.1 of the plaint schedule property is not exhausted by Exts.B1 and RSA 764/2011 6 B2 gift deeds and when respondents had not claimed any right over the remaining portions of item No.1 of the plaint schedule properties and there is no case that Ext.A1 gift is not valid in respect of the remaining property, courts below should not have dismissed the suit and should have granted a decree in respect of that portion of the property. Learned counsel therefore argued that even if the identification of the property is not proper, an opportunity is to be granted to identify the properties with reference to the original document by which Raman obtained the property and a decree for the remaining property, excluding the properties covered under Exts.B1 and B2, is to be granted. 6. Learned counsel for the respondents submitted that appellants did not raise a contention before the trial court or the first appellate court that they are in possession of the property covered by Ext.A1, excluding the properties covered under Exts.B1 and B2, and no RSA 764/2011 7 such restricted relief was sought for even before the first appellate court. It was argued that suit was instituted and was contested before the trial court and the first appellate court on the basis that Exts.B1 and B2 gift deeds were not intended to be acted upon and were not accepted by respondents the donees and therefore under Exts.A4 and A5 father is not competent to cancel the gifts and execute Ext.A1 gift deed. It was pointed out that there was no case that Ext.A1 is valid in respect of the remaining portion of item No.1 of the plaint schedule properties excluding the properties covered under Exts.B1 and B2. The respondents have not claimed any right over the property, other than the properties covered under Exts.B1 and B2 and the fractional share (8/15)over item No.2 and 3 of the plaint schedule properties gifted in favour of second respondent under Ext. B2 and therefore even with regard to the fractional shares in respect of item No.2 and 3, based on Ext.A1, appellants cannot claim any right. RSA 764/2011 8 7. As rightly pointed out by the learned counsel appearing for the respondents, the pleading in the plaint show that the case of the appellants was that Exts.B1 and B2 gift deeds were executed as sham and nominal documents and were never intended to be acted upon and were not acted or accepted and father Raman under Exs.A4 and A5 cancelled those gifts and hence father is competent to execute Ext.A1 gift deed in favour of the appellants and appellants have thus title over the plaint schedule properties. The cause of action alleged is also the execution of the cancellation deeds and Ext.A1 gift deed and the alleged attempt of the respondents to trespass into the plaint schedule properties covered under Exts.B1 and B2. There was no case for the appellants that respondents are claiming any right over the remaining properties covered under Ext.A1, excluding the properties covered under Ext.B1 and B2. Therefore the argument now put forth by the appellants was not a case which was RSA 764/2011 9 advanced before the trial court or the first appellate court. 8. It cannot be disputed that the properties transferred under Ext.B1 and B2 are not entire item No.1 of the plaint schedule properties. They are only portions of item No.1 of the plaint schedule properties. A decree for the remaining portion of item No.1 of the plaint schedule properties could be granted only on identifying the property obtained by Raman under document No.1856/1954 and the properties covered under Exts.B1 and B2 and fix the balance property. Learned counsel appearing for the appellants made available the reports and plans submitted by the Commissioner. The report dated 19.6.1999 (Ext.C1) shows that appellants wanted the Commissioner to identify item No.1 of the plaint schedule properties. When the Commissioner inspected the property, he identified the properties covered under Ext.B1 and B2 and demarcated them in Ext.C2 plan as plot ABCD and ADEF. The report shows that RSA 764/2011 10 when the Commissioner directed the appellants to point out item No.1 of the plaint schedule properties, he could not identify item No.1 of the plaint schedule properties. Though he had pointed out some portion, Commissioner could not identify the property. Appellants have also not produced the registered document 1856/1954, whereunder Raman obtained item No.1 of the plaint schedule property on lease from Sankaran Namboodiri. The document 1856/1954 was not produced before the courts below. Without identifying the property covered under document 1856/1954 and demarcating the properties covered under Exts.B1 and B2, the property which could be claimed by the appellants under Ext.A1, cannot be fixed or located. Without identifying and locating the remaining property, a decree as sought for by the learned counsel in respect of the remaining property covered under Ext.A1 cannot be granted. 9. True, respondents have not claimed any right over the remaining property of item No.1, excluding RSA 764/2011 11 the properties covered under Exts.B1 and B2. But that does not mean that appellants are entitled to a decree for declaration of title or injunction in respect of the remaining property, unless the remaining property is identified and located. Evidently as respondents did not claim any right or possession over the remaining property covered under Ext.A1 excluding the property covered under Ext.B1 and B2, such a case was not putforth before the court below. In such circumstances, I do not find any necessity to admit the appeal for that purpose. suffice to clarify that the suit is dismissed for the reason that appellants cannot claim any right under Ext.A1 over the properties covered under Ext.B1 and B2 which are valid gift deeds executed by Raman and accepted by the respondents and acted upon. As no substantial question of law is involved, the appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- RSA 764/2011 12 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006