IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 RSA.No. 781 of 2005 --------------------------------- AS.1/2004 of ADDL. DISTRICT COURT, THODUPUZHA OS.194/2002 of MUNSIFF CIURT, THODUPUZHA .................... APPELLANT/APPELLANT/DEFENDANT: SMT. BHAVANI AMMA, W/O. LATE SANKARAN NAIR, AGED 81 YEARS, RESIDING AT SOMAPURATH HOUSE, CHITTOOR KARA, MANAKADU VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.A.K.MADHAVAN UNNI SRI.SREELAL N.WARRIER RESPONDENT/RESPONDENT/PLAINTIFF: MR.GIREESAN, S/O.LATE SANKARAN NAIR, SOMAPURATH HOUSE, CHITTOOR KARA, MANAKADU VILLAGE, THODUPUZHA TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- R.S.A.No. 781 of 2005 --------------------------- JUDGMENT The defendant/mother, who lost her contention concurrently in the courts below and suffered defeat at the hands of her son, who was the plaintiff in the suit, is the appellant. The respondent is the plaintiff in that suit-O.S.No. 194/02 on the file of the Munsiff's Court, Thodupuzha. He is deaf and dumb. 2. The suit was one for cancellation of a cancellation deed, cancelling a settlement deed executed by his mother, the appellant/defendant, in his favour. The trial court, though disallowed the prayer for injunction, granted a decree in favour of the respondent/plaintiff declaring that Exhibit A1 deed cancelling Exhibit A2 settlement deed is void. The defendant filed A.S.No.1/04 before the District Court, Thodupuzha and the said appeal was dismissed by the first appellate court concurring with the findings of the trial court. Hence, this RSA 781/05 2 Regular Second Appeal. 3. The case of the respondent/plaintiff in the plaint is that the scheduled property of 66 cents was obtained by him under Exhibit A2 settlement deed, executed by his mother, the defendant and that was cancelled by her under Exhibit A1 after about thirteen years of the settlement deed. According to the the respondent/plaintiff, as per the partition deed his father Sankaran Nair and the defendant jointly obtained one acre and thirty two cents of property and a house therein; that during the life time of Sankaran Nair, he executed a will with respect to another property of one acre and twenty cents in his favour; that during family arrangements Sankaran Nair gave the said one acre and twenty cents to another son Sudhakaran on consensus that one acre and thirty two cents owned jointly by him and the defendant will be given to the plaintiff as his family share; that in view of the said arrangement and understanding Sankaran RSA 781/05 3 Nair executed a registered will bequeathing his half share in the one acre and thirty two cents in favour of the plaintiff and the defendant by Exhibit A2 settlement deed gifted her half share to the plaintiff; that the plaintiff accepted the gift and effected improvements in the property and he had also renovated the tharavad house by using his own funds, though he was paying the land tax in the name of the defendant herself; that Sankaran Nair, the father of the plaintiff, died in 1993 and the plaintiff obtained his half share in the one acre thirty two cents consequent on the death of the father as per the will; that when Exhibit A2 settlement deed was executed, the defendant had reserved her life interest in the property and also the right to reside in the house; that there was also provision in the settlement deed that she also should be made a party to all transactions concerning the scheduled property during her life time; that however, subsequently, the relationship RSA 781/05 4 between the plaintiff and the defendant got strained and the defendant shifted her residence to Tripunithura, where her youngest daughter is staying; that subsequently, in 2002, she executed Exhibit A1 purporting to cancel Exhibit A2; that gift once made and accepted by the plaintiff has become absolute and the mother has, therefore, no power to cancel the said gift and that Exhibit A1 cancellation deed is void. Hence the suit for declaration that Exhibit A1 deed purportedly cancelling Exhibit A2 is void. 4. The appellant/defendant contended that execution of Exhibit A2 settlement deed had not been disclosed to the plaintiff and that was not intended to be acted upon and the property continued to be in exclusive possession of the defendant; that there was no consensus as regards the scheduled property as alleged by the plaintiff; that the gift deed was executed with a view that the plaintiff would look after the defendant; that RSA 781/05 5 the plaintiff never took possession of the scheduled property; that the improvements in the property were made by the defendant; that the plaintiff was residing with the defendant with her permission; that the defendant remitted the tax and that it was due to ill-treatment by the plaintiff and his wife that the defendant had to reside with her youngest daughter at Tripunithura. 5. It is after considering the rival contentions in the light of the evidence adduced at trial, which consisted of oral evidence of PWs 1 to 4 and DW1 and documentary evidence Exhibits A1 to A11 and B1 to B6 that the trial court decreed the suit as already stated and the first appeal was also being dismissed concurring with the findings of the trial court. 6. In this appeal filed by the defendant against the concurrent verdicts of the courts below, the contentions that are advanced in the appeal memorandum and formulated as substantial RSA 781/05 6 questions of law are that Exhibit A2 settlement deed is more in the nature of a will rather than a gift deed; that the plaintiff was not at all aware of Exhibit A2 and therefore, there is no question of Exhibit A2 being accepted by the plaintiff and its coming into force and that for reason of non compliance of Section 123 of the Transfer of Property Act regarding attestation, Exhibit A2 itself cannot be considered to be valid. 7. It is submitted by the counsel for the appellant that he is not advancing any argument based on Section 123 of the T.P. Act to canvass for the contention that Exhibit A2 settlement deed has not come into force and that his only contention is that concurrent findings of the courts below to the effect that Exhibit A2 settlement deed has come into force is not based on any legal evidence, but on the recitals in Exhibit A2 and that the question as to whether the settlement deed has come into force or not is a matter to be decided on evidence RSA 781/05 7 independent of the recitals in the document and therefore, the findings of the courts below are not sustainable. 8. It is seen that before the trial court, the plaintiff has adduced oral and documentary evidence by examining the wife of the plaintiff as plaintiff is a deaf and dumb man as also by examining his brother and two other workers and on the defence side there was only the interested testimony of the appellant/defendant. It is seen that the plaintiff has produced land tax receipts as well as building tax receipts evidencing payment of tax, though it be in the name of the defendant herself. It is evaluating the entire evidence in the case that the courts below have concurrently come to the conclusion that Exhibit A2 has come into effect and that therefore, it is not liable to be cancelled by the unilateral act of the appellant/defendant by executing Exhibit A1. The contention that is advanced before me by the learned counsel for the RSA 781/05 8 appellant, in the circumstances, is not a question of law and much less, a substantial question of law to be considered in this second appeal by this Court. In the result, I dismiss this Regular Second Appeal in limine, refusing admission. 5th June, 2008 (K.P.Balachandran, Judge) tkv