IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 RSA.No. 1121 of 2007 ------------------------ AS.345/2006 of D.C. & SESSIONS COURT, ERNAKULAM OS.279/1997 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT: IST RESPONDENT/IST DEFENDANT ----------------------------------------------------- KOCHUMUHAMMED ,S/O.KARUVILLY VEETTIL KUNJUPILLA, PERUMANI KARA, VENGOLA ARAKKAPPADY VILLAGE, KUNATHUNADU TALUK. BY ADV. SRI.S.SHYAM SRI.N.K.KARNIS RESPONDENTS: APPELLANT & RESPONDENTS 2 AND 3/ PLAINTIFF & DEFENDANTS 2 AND 3 ------------------------------------------------------------- 1. MAKKAR, AGED 41 YEARS,S/O. CHEMMALAKKUDY THACHIYIL VEETTIL, NEENAKKUNJU,CHELAKULAM KARA PATTIMATTOM VILLAGE, KUNNATHUNADU TALUK. 2. ABDUL REHIMAN, AGED 37,S/O. KARUVILLY VEETTIL ABDULKHADER,MEPRATHUPADY KARA DO. VILLAGE. 3. PATHUMMA, AGED 50 YEARS, W/O. KARUVILLY MUKALORKUDY VEETTIL ALIYAR PERUMANI KARA, DO..VILLAGE. BY ADV. SRI.RAJIV NAMBISAN FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------ R.S.A. No 1121 of 2007 ------------------------------------------------ Dated this the 21st July 2008 JUDGMENT The first defendant in O.S.No 279 of 1997 on the file of the Munsiff's Court, Perumbavoor is the appellant. The first respondent filed O.S. No 279 of 1997 aforesaid for recovery of possession of the schedule property on the strength of title and for injunction, both mandatory and prohibitory, against the appellant and respondents 2 and 3 inter alia, on the allegation that the schedule property belongs to him he having purchased it from one Ahammad Aliyar under Ext A1 sale deed of the year 1996; that he has been residing at a distance of 5 kilometres away from the schedule property, that on 20.05.1997 when he visited the property it was found that defendants are constructing a building removing the shed that was in existence therein and on questioning the defendants they intimidated him, that the third defendant is the former wife of his vendor Aliyar and defendants 1 and 2 are her brothers, that they have no right to enter into the property and hence the suit. 2. Defendants filed written statement resisting the suit. According RSA 1121/07 2 to them the property belonged to Aliyar and he gifted the property in favour of the third defendant under Ext B1 gift deed of 1977; that after the execution of the gift deed Aliyar was having no right over the property and he had no right to execute Ext A1 sale deed in favour of the plaintiff, that the third defendant sold the property in favour of the first defendant and first defendant is having right to effect constructions in the schedule property and the plaintiff has no cause of action for the suit. 3. The trial court raised necessary issues for trial and considering the case in the light of also the evidence adduced at trial which consisted of the oral evidence of P.Ws 1 to 3 and documentary evidence Exts. A1 and A2, Exts B1 to B4, Exts. C1 and C1(a) and Exts X1 to X12, dismissed the suit. The first respondent- plaintiff assailed the said dismissal filing A.S. No 345 of 2006 before the first appellate court and the first appellate court allowed the appeal and decreed the suit with costs in reversal of the decree of dismissal passed by the trial court. Hence this Regular Second Appeal by the aggrieved first defendant. 4. It is vehemently contended before me by the learned counsel for the appellant that the recital in Ext B1 would go to show that RSA 1121/07 3 possession of the property had been given to the donee, the third respondent, and that therefore no further proof was required to establish that the gift had taken effect and when that be so, Aliyar had no right to execute Ext A1 sale deed in favour of the first respondent-plaintiff and that the appeal therefore should have been dismissed by the first appellate court concurring with the dismissal of the suit by the trial court. 5. Admittedly schedule property belonged to Aliyar. Third defendant was the former wife of Aliyar. She claims title over the schedule property under Ext B1 gift deed executed by Aliyar in her favour. On the other hand the first respondent-plaintiff claimed title under Ext A1 sale deed executed by Aliyar in his favour subsequent to execution of Ext B1 gift deed in favour of the third defendant. The question therefore is as to whether Ext B1 gift deed in favour of the third defendant had taken effect. If it has taken effect Aliyar had no right to execute Ext A1 in favour of the first respondent-plaintiff and the plaintiff will not get any right under Ext A1. The right claimed by the first defendant under Pathumma does not however arise for consideration as he is transferee pendente lite and is bound by the decision in this suit. RSA 1121/07 4 6. The question is as to whether there is acceptance of gift by the donee, the third defendant and whether delivery of possession of the schedule property which is the subject matter of the gift by the donor to the donee is present as under Mohammedan law taking possession of the gifted property is necessary to complete the gift. Unless donor physically gives that possession of the property in favour of the donee the gift cannot be valid. It is true that as contended by the appellant's counsel, the recitals in the gift would tend to show that possession of the schedule property was given to the donee and that the donor has parted with possession of that property. However that cannot be conclusive proof when evidence is there to the contrary in the case. Ext B1 gift deed does not contain anything to show that it was accepted by Pathumma, the third defendant. Though the gift deed was executed in 1977 by Aliyar in favour of his wife, the third defendant Pathumma, their marriage did not last for long. Pathumma filed petition claiming maintenance under Section 125 of the Code of Criminal Procedure against Aliyar in the year 1979 evidenced by Ext X3 petition. The allegation in Ext X3 showed that the marriage between Aliyar and Pathumma lasted only for a short span as they lived together only for RSA 1121/07 5 five months and when she became pregnant she was ill treated and was ousted from the house of Aliyar in 1977 and thereafter she was residing in the house of her brother where she gave birth to a child on 17.12.1977. The first appellate court observed that in paragraph 8 of the complaint it is alleged that the property covered by gift deed executed by Aliyar in her favour is retained by Aliyar himself and Aliyar is taking profit therefrom and she has no means of livelihood. This clearly shows that despite the execution of Ext B1 Aliyar continued to be in possession of the schedule property and he was taking yield therefrom. It is also seen observed by the first appellate court that in Ext X4 deposition given by Pathumma the third defendant, she has admitted that she had not been put in possession of the schedule property covered by the gift deed. It is all the more worthy to note that third defendant had not entered the witness box to swear that she has come into possession of the schedule property pursuant to Ext B1 gift deed executed in her favour by Aliyar. Thus it is clear as found by the lower appellate court, that Ext B1 gift deed has not taken effect. If Ext B1 has not taken effect Aliyar continues to be the owner of the property covered by Ext B1 and Ext A1 sale deed executed by him in favour of Makkar RSA 1121/07 6 the first respondent-plaintiff vests in him absolute title over the schedule property. The decree passed by the first appellate court allowing the appeal and decreeing the suit filed by the first respondent-plaintiff cannot therefore be faulted. There is absolutely no merit in this appeal and there is no question of law and much less any substantial question of law arising for consideration by this court in this Second Appeal. In the result, confirming the decree passed by the lower appellate court decreeing the suit, I dismiss this R.S.A in limine refusing admission. Sd/- K.P.BALACHANDRAN Judge 21/7/08 en [true copy]