IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 RSA.NO. 938 OF 2004() ------------------------------- (A.S. NO.11 OF 1996, DISTRICT COURT, PATHANAMTHITTA AGAINST O.S. NO.131 OF 1995, MUNSIFF'S COURT, RANNY APPELLANT - APPELLANT - RESPONDENT: ----------------------------------------------------------- AMBUJAKSHYAMMA, D/O. NARAYANIAMMA PADIKAPARAMBIL, VALIYAKULAM, CHERUKULANJI MURI, VADASSERIKARA VILLAGE. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE RESPONDENTS – APPELLANTS - DEFENDANTS: --------------------------------------------------------------- 1. KESAVAN KAMALASANAN, S/O. NARAYANI AMMA, PEEDIKAPARAMBIL, VALIAKULAM, CHERUKULANJI MURI, VADASSERIKARA VILLAGE. 2. AMBUJAKSHY KAMALASANAN, WIFE OF KESAVAN KAMALASANAN, PEEDIKAPARAMBIL, VALIAKULAM, CHERUKULANGI MURI, VADASSERIKARA VILLAGE. ADV. SRI.JACOB P.ALEX FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ================================= R.S.A. NO.938 of 2004 ================================= Dated this the 26th day of March, 2010 J U D G M E N T Suit property, it is not disputed originally belonged to Narayani amma, mother of appellant and respondent No.1. While so, she executed Ext.B1, settlement deed No.4197 of 1984 dated 13.12.1984 purporting to transfer her right in the suit property in favour of respondent No.1 but ofcourse reserving a right to take usufructs from the property and to reside in the building that may be constructed in the said property during her lifetime. After about two years on the premise that conduct of respondent No.1 towards her has changed she chose to cancel Ext.B1, settlement deed as per Ext.A2, cancellation deed No.2362 of 1986 dated 22.5.1986. That was followed by her executing Ext.A1, settlement deed No.495 of 1992 dated 5.3.1992 in favour of the appellant allegedly transferring her right, title and interest. In the year, 1995 apprehending trespass by respondents appellant filed O.S. No.131 of 1995 seeking declaration of her title and possession of the suit property and for prohibitory injunction. R.S.A. No.938 of 2004 -: 2 :- Respondents resisted the suit and made a counter claim contending that appellant has no title or possession of the suit property and that it belonged and is in the possession of respondents as per Ext.B1. It is their contention that Ext.A1, settlement deed No.495 of 1992 is void since the mother who executed that document had no right, title, interest or possession to be conveyed to the appellant. Counter claim prayed for declaration of title and possession of respondent No.1 in the suit property and decree for prohibitory injunction against appellant trespassing into it. Appellant filed replication contending that Ext.B1 had not taken effect and the same was cancelled as per document No.2362 of 1986. Hence mother was competent to execute Ext.A1, settlement deed in her favour. Learned Munsiff was of the view that Ext.B1 has not taken effect, it was validly cancelled by the executant as per cancellation deed No.2362 of 1986 and hence she had authority, right, title and interest over the suit property to convey the same to the appellant as per Ext.A1. Accordingly counter claim was dismissed and suit was decreed. Aggrieved, respondent took up the matter in appeal. Learned District Judge held that since Ext.B1 had taken effect and by R.S.A. No.938 of 2004 -: 3 :- that document executant had conveyed whatever right she had over the suit property in favour of respondent No.1 though reserving a life interest as aforesaid, she could not cancel Ext.B1 or transfer the property in favour of the appellant as per Ext.A1. Validity and binding nature of Ext.B1 was upheld. Consequently judgment and decree of the trial court were reversed and respondents were given a decree as prayed for in the counter claim. Suit ended in dismissal. That judgment and decree are under challenge in this Second Appeal at the instance of appellant/plaintiff. 2. The following substantial question of law is framed for a decision. When the assignor in Ext.B1 has reserved certain rights which included a right to join in the document of encumbrance or transfer to be effected by the donee and not having effected mutation in favour of the donee and further conduct of donor in executing Ext.A2 cancellation deed and subsequent settlement deed is the first appellate court right in holding that Ext.B1 is an absolute transfer? R.S.A. No.938 of 2004 -: 4 :- Learned Senior Advocate harping upon the above question and relying on the decision of the Supreme Court in Baby Ammal v. Rajan Asari (1997 [1] KLT 340 (SC) and Subbegowda [dead] by Lr. V. Thimmegowda [dead] by Lrs. (JT 2004 [5] SCC 274) contended that Ext.B1 is not an absolute transfer of property in favour of respondent No.1, conditions imposed in Ext.B1 would show that there was no absolute transfer and that at any rate there was no transfer of possession of the property in favour of respondent No1. According to the learned Senior Advocate Ext.B1 not being an absolute transfer in favour of respondent No.1, its executant was competent to cancel the same as per Ext.A2 and convey her right, title, interest and possession to the appellant as per Ext.A1. Learned counsel for respondent No.1 supporting the judgment and decree of the first appellate court would contend that even recital in Ext.B1 is sufficient to show transfer of right, title, interest and possession of the executant in favour of respondent No1, which is reinforced by Ext.A2, cancellation deed and that the cancellation is invalid. It followed that subsequent settlement as per Ext.A1 is void as R.S.A. No.938 of 2004 -: 5 :- the executant had no authority to create any such document. 3. To understand the rival contentions it is necessary to refer to the relevant document. In Ext.B1, settlement deed admittedly executed by the mother in favour of respondent No.1 it is stated that to meet the livelihood of respondent No.1 and on account of her love and affection to him the property referred to therein together with whatever rights executant had is conveyed to respondent No.1. The deed further states that from then onwards property shall be possessed by respondent No.1 effecting mutation in his name. There is however a reservation in favour of the executant that she will have right to take income from the suit property and reside in the building if any constructed in the said property, during her lifetime. It is also stated that in case any document is to be created (by respondent No.1) in respect of the suit property junction of the executant is also required. Then comes Ext.A2 almost two years thereafter stating that she had executed Ext.B1 in favour of respondent No.1 but she had not handed over possession of the property to respondent No.1 and on account of change of face of respondent No.1 she thought it appropriate to cancel Ext.B1 and hence it is cancelled. It is R.S.A. No.938 of 2004 -: 6 :- thereafter that in the year 1992 Ext.A1, settlement deed was executed in favour of appellant. If Ext.B1 settlement deed is valid and came into effect and if no power of revocation is retained by the executant then the question of its unilateral cancellation as per Ext.A2 does not arise. In Baby Ammal v. Rajan Asari (supra) relied on by the learned Senior Advocate for the appellant it is stated that in the matter of gift under Section 122 of the Transfer of Property Act (for short, “the Act”) proof of delivery of gifted property to the donee and its acceptance of possession is required. There, reference was made to the relevant recital that, “all the right to enjoy the property and the right to reside in the building will remain with me during my lifetime and Rajan Asari will derive the said rights with full freedom after my lifetime”. In paragraph 5 of the decision it is stated that a reading of the document would indicate that the appellant had retained title to the enjoyment of the property during her lifetime as full owner with all rights. In that circumstance it was held that there must be proof of delivery and acceptance of possession of the gifted property. In that case both the title and possession in respect of the property remained with the executant and there was no R.S.A. No.938 of 2004 -: 7 :- acceptance of possession by the executive in the light of the above recital. Consequence of the above recital was that there was no acceptance of the gift and hence there was no valid gift. In Subbegowda (Dead) by Lr. v. Thimmagowda (dead) by Lrs. (supra) it is stated that transfer of property or a creation of interest may be accompanied by conditions, covenants or restraints. A restraint or a limitation has the effect of curtailing the quantum of the estate affected thereby. It is also stated that a conditional transfer or a settlement accompanied by conditions is not unknown to law of real property. There reference is made in paragraph 5 to the decision in Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer (AIR 1953 SC 7). The Supreme Court in that case after referring to the facts of the case that words though descriptive of a heritable and alienable estate in the donee and connoting full propriety rights may not have been used with the intention of conferring absolute rights if there could be something in the context or in the surrounding circumstances to permit such an inference being drawn. That was a case where there was restrictions as to transfer of possession in favour of the donee. R.S.A. No.938 of 2004 -: 8 :- 4. In the present case on hand going by Ext.B1 as I stated there is an absolute transfer of right, title, interest and possession of the executant in favour of respondent No.1 as is evident from the fact that executant had divested herself of all her right including possession and conveyed it to respondent No.1 from then onwards to possess and enjoy same effecting mutation in his name subject ofcourse to the life interest reserved in favour of the donor. Learned Senior Advocate attempted to point out a distinction in Ext.B1 in that what is stated in Ext.B1 is only an agreement to transfer possession but it is not as if there is transfer of possession in presenti. That interpretation, I am unable to accept. For, the recital in Ext.B1 is that the executant divested herself of fall her right in the property including possession and conveyed it as per Ext.B1 to respondent No.1. This is further clear from the subsequent recital in Ext.B1 that from the date of Ext.B1 onwards respondent No.1 could possess and enjoy the property. Exhibit B1 in my view amounts to an absolute transfer of right, title, interest and possession of the executant in favour of respondent No.1. The reservation made in Ext.B1 does not in any way affect the absolute right created in favour R.S.A. No.938 of 2004 -: 9 :- of respondent No.1, that reservation being only for enjoyment of the property by the donor and to reside in the building which may be constructed (by respondent No.1) in the suit property which is not uncommon to the law of gift. Nor am I inclined to think that the statement in Ext.B1 that in case respondent No.1 wanted to create document in respect of the suit property junction of executant is required cut down the absolute estate created in favour of respondent No.1 as a repugnant clause. Firstly that is a matter arising between respondent No.1 and the donor and secondly, question would also arise whether such restriction is valid, there having been an absolute transfer in favour of respondent No.1 and that condition being repugnant to that absolute estate. I must also bear in mind that the said clause even authorised respondent No.1 to transfer the property (as its absolute owner) but it is only that since a life interest is reserved, junction of the donor is also required. 5. As regards acceptance of Ext.B1, the document is produced by respondent No.1 in the trial court from his possession which the appellant also has not disputed and Ext.B1 also says that document was produced for registration R.S.A. No.938 of 2004 -: 10 :- by respondent No.1. It is trite law that when a gift is not onerous only slight evidence is sufficient for its acceptance. In appropriate cases even the recital in the document regarding divesting of right, title and interest of the executant and conveying the same in favour of the donee is sufficient to infer acceptance of the gift (See Kamakshy Ammal v. Rajalakshmi - AIR 1995 Madras 415, Asokan v. Lakshmikutty – 2008 [1] KLT 54 (SC) and Gireesh Chandra Babu v. Divisional Forest Officer – 2009 [2] KLT SN 88 (Case No.88) SC). It is further to be noted that in this case it is after about two years of Ext.B1 that Exhibit A2, cancellation deed was executed. First appellate court on evidence found that the settlement was accepted by respondent No.1. That being a finding of fact based on oral and documentary evidence no substantial question of law is involved. It follows that there was absolute transfer of right, title, interest and possession of the executant in favour of respondent No.1. Exhibit B1 is not a conditional gift so that on the non-fulfillment of the conditions the executant could have cancelled the same. No right of revocation is also reserved with R.S.A. No.938 of 2004 -: 11 :- the executant. In such circumstances except through due process of court executant could not unilaterally cancel it as held in Gopalakrishnan v. Rajamma (2006 [4] KLT 377). It follows that Ext.A2 cancellation deed is of no value and does not in any way affect the right, title, interest and possession of respondent No.1 in the suit property. If that be so purported conveyance of right in favour of appellant as per Ext.A1 does not in any way bind respondent No.1 or the suit property and it did not confer any right on the appellant to ask for a declaration or injunction. First appellate court has taken note of these aspects in the correct perspective in holding that respondent No.1 is entitled to the decree prayed for. Substantial question of law framed is answered in the above line. Resultantly, Second Appeal is dismissed. No costs. Interlocutory Application Nos.1637 of 2004 and 391 of 2010 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv