IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 RSA.No. 398 of 2008() --------------------- AS.93/2004 of DISTRICT COURT, KOTTAYAM OS.318/1998 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANTS/APPELLANT/1ST & 3RD DEFENDANTS ------------------------------------------------------------ 1. VASAPPAN, S/O.NARAYANAN, AGED 59, MAZHUVANCHERIL, KURICHY KARA, KURICHY VILLAGE, KOTTAYAM. 2. SARADA, W/O.SREEDHARAN, AGED 65, PUTHUPARAMBIL, THRIKODITHANAM KARA, CHANGANACHERRY, KOTTAYAM. BY ADV. SRI.C.S.MANILAL SRI.C.S.SUNIL RESPONDENT(S): PLAINTIFF & 2ND 4TH AND 5TH DEFENDANTS ----------------------------------------------------- 1. MOHANAN, S/O.RAGHAVAN, AGED 55, MAZHUVANCHERIL PUTHUPARAMBIL, KADAMANCHIRA, PUTHUPARAMBIL, THRIKODITHANAM, CHANGANACHERRY. 2. PANKIAMMA, W/O.KARUNAPPAN, AGED 56, ASWINI SADANAM, PARAL KARA, VAZHAPPALLY WEST VILLAGE, CHANGANACHERRY. 3. CHINNAMMA KURIYAN, W/O.KURIAN, AGED 68, KAYAPURATHU PUTHUPARAMBIL, THRIKODITHANAM, CHANANCHERRY. 4. MOHANAN, MAZHUVANCHERIL PUTHUPARAMBIL, THRIKODITHANAM KARA, CHANGANACHERRY. ADV. SRI.M.P.MADHAVANKUTTY FOR R.1,2 SRI.SABU S.KALLARAMOOLA FOR R3 & R4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 398 of 2008 * * * * * * * * * * * * * * * * * * Dated: 19-01-2009 JUDGMENT Defendants 1 and 3 in O.S. No. 318 of 1998 on the file of the Munsiff's Court, Changanassery are the appellants in this Second Appeal. The said suit instituted by the first respondent herein by name Mohanan was one for declaration of title over plaint schedule item No.1 and for fixation of boundary and also for a perpetual injunction consequential to the main reliefs. 2. Both the courts have granted a decree as prayed for. Hence, this Second Appeal. 3. The following are the questions of law formulated in the memorandum of Second Appeal:- i) Whether the finding of the Courts below to the effect that a Gift of immovable property can be accepted by the sister of the mother of the minor plaintiff while the natural guardian father is alive ? ii) Is the Gift in question in this case (Ext.A1) is void due to its acceptance by a de facto guardian other than the natural guardian of a Hindu minor due to the interdict of Section 11 of Hindu Minority and Guardianship Act ? iv) Whether Section 6 and 11 of the Hindu Minority and Guardianship Act R.S.A. NO. 398 of 2008 -:2:- overrides any other provisions of law in the matter of guardianship of Hindu minors and in which event, the acceptance of a Gift as contemplated by Section 123 of the Transfer of Property Act contemplating acceptance of gift to which, the former provisions be read into for the purpose of considering the legality or otherwise of the Gift ? 4. The learned counsel appearing for the appellants re- iterated the contentions of the appellants. The following are the facts which have been concurrently found by the courts below:- 15 cents of land belonged one Sumathi who is no more. Sumathi had an elder brother by name Vijayan who is also no more. Defendants 1 and 2 are respectively the younger brother and younger sister of Sumathi who had only one son , the plaintiff. During her lifetime, Sumathi executed a registered gift deed dated 14-10-1961. Plaint schedule item No. 1 admeasuring 3.750 cents was gifted by Sumathi to her son the plaintiff who was then a minor, described as the 'D' schedule property under Ext.A1. Plaint schedule item No. 2 again admeasuring 3.750 cents was gifted by Sumathi as the 'C' schedule to Ext.A1 to her younger sister the 2nd defendant. Plaint schedule item No. 3 admeasuring 3.750 cents was gifted by Sumathi as the B schedule to Ext.A1 to her younger brother the first defendant. Plaint schedule item No. 4 again admeasuring 3.750 cents was gifted by Sumathi to her elder brother Vijayan as the A schedule under Ext.A1. Subsequently the 2nd defendant sold plaint schedule item No. 2 corresponding to “C” Schedule under Ext.A1 gift deed to her elder brother the first R.S.A. NO. 398 of 2008 -:3:- defendant as per Ext.A3 sale deed dated 2-11-1982. Thereafter, as per Ext.A4 sale deed dated 23-5-1994 the first defendant sold plaint schedule item No. 2 corresponding to the C schedule in Ext.A1 gift deed to the 3rd defendant who is a stranger. But the property which was put in possession of the 3rd defendant under Ext.A4 sale deed was not plaint schedule item No. 2 but the plaint schedule item No. 1 corresponding to the D schedule to Ext.A1 gift deed. It was with regard to this property that the plaintiff filed the suit in the year 1998 seeking declaration of title, recovery of possession, fixation of boundary and for consequential injunction. The suit was resisted by the appellants contending inter alia that the 2nd defendant who was the maternal aunt of the plaintiff and to whom plaint schedule item No. 2 was gifted under Ext.A1 gift deed as the plaint C schedule thereto had also accepted the gift of plaint schedule item No. 1 (D schedule of Ext. A1) . gifted by Sumathi to her minor son the plaintiff and that the rights of the plaintiff over the plaint schedule item No. 1 were lost by adverse possession and limitation. The said contention has been repelled by both the courts. Even according to the first defendant as per Ext.A3 sale deed he only purchased the “C” schedule property under Ext.A1 gift deed which corresponds to plaint schedule item No. 2 from the 2nd defendant to whom the said property was gifted under Ext.A1. 5. Thus after Ext.A3 sale deed the first defendant could have possessed only B and C schedule properties under Ext.A1 R.S.A. NO. 398 of 2008 -:4:- corresponding to plaint schedule item nos. 3 and 2 respectively. Thereafter the first defendant claims to have sold the C schedule property (plaiant schedule item No. 2) to the 3rd defendant as per Ext.A4 sale deed dated 23-4-1994. Neither the second defendant nor the first defendant had any case that the 2nd defendant who purportedly accepted the gift of the plaint schedule item No. 1 on behalf of the plaintiff had transferred her possession of the same to the first defendant. The first defendant also had no case that as per Ext.A4 sale deed, the property sold was not the 'C' schedule under Ext.A1 corresponding to the plaint schedule item No. 2 but was the plaint schedule item No. 1 corresponding to the D schedule property under Ext.A1 which was gifted to the plaintiff. Under these circumstances, the contention of the appellants that they had perfected their title over plaint schedule item No. 1 by adverse possession and limitation was rightly repelled by the courts below . No doubt, even though under Ext.A4 sale deed dated 23- 5-1994 the property which the first defendant sold to the 3rd defendant was the plaint schedule item No. 2 corresponding to the “C” schedule to Ext.A1 the property which was actually put in possession of the 3rd defendant was the plaint schedule item No. 1 corresponding to D schedule to Ext.A1 gift deed. Thus, D3 got possession of plaint schedule item No. 1 only in the year 1994. Of course, the defendants had a case that the plaintiff was in possession of 'C' schedule property under Ext.A1 corresponding to plaint schedule item No. 2 . But then, admittedly, the 3rd defendant has instituted O.S. 198 of 2000 for recovery of possession of the R.S.A. NO. 398 of 2008 -:5:- plaint “C” schedule property against the plaintiff. Moreover, in the present suit, we are not concerned about the plaint schedule item No. 2 corresponding to the C schedule property under Ext.A1 gift deed. The finding that the plaintiff has title over the plaint schedule item No. 1 corresponding to the D schedule to Ext. A1 gift deed has been rightly recorded by the courts below. Similarly, the finding that the title of the plaintiff over plaint schedule item No. 1 is not lost by adverse possession and limitation also does not warrant interference , particularly, in the light of the recent decision of the Apex Court in P.T. Munichikkanna Reddy and Others v. Revamma and Others - 2007 (6) SCC 59 . No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed. Dated this the 19th day of January 2009. Sd/- V. RAMKUMAR, (JUDGE) /true copy/ ani.