IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 RSA.No. 182 of 2007(E) ---------------------- RFA.58/2003 of D.C. & SESSIONS COURT,KOLLAM OS.30/2006 of ADDL.MUNSIFF COURT, KOLLAM .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------ JOSEPH JASEENTH, S/O.JASEENTH, AGED 46 YEARS, KURISHADI KIZHAKKATHIL, KARIKODE, MANGAD VILLAGE, KOLLAM. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENTS/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------- 1. FRANCISKA THANKACHAN, SIJU BHAVAN, KILIKOLLOOR, KALLUMTHAZHAM, KOLLAM. 2. ALPHONSA JOSEPH, KIZHAKKEPUTHEN VEEDU, ERAVIPURAM, THEKKUMBHAGAM, KOLLAM. 3. PLACID.J., S/O.JASEENTH, NO.35, 4TH MAIN ROAD, VERAMAN CROSS ROAD, RAMAMURTHY NAGAR, DORAI VANI NAGAR, BANGALORE. 4. ROBERT JASEENTH, S/O.JASEENTH, KIZHAKKEPUTHEN VEEDU, ERAVIPURAM, THEKKUMBHAGAM, KOLLAM. 5. MARY SINDHU, D/O.FRANCISCA, PLAMOODU HOUSE, BEACH ROAD, KOLLAM. ADV. SRI.JOHN BRITTO FOR R1 & 5 SRI.B.MOHANLAL FOR R.2 SRI.C.A.RAJEEV FOR R1 & 5 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 182 of 2007 ---------------------------------------- Dated this the 24th day of June, 2009 JUDGMENT The second Appeal is directed against the judgment and decree in R.F.A. No. 58/2003 on the file of the District Court, Kollam which arises from the decree and judgment in O.S. No. 30/2006 on the file of the Additional Munsiff's Court, Kollam. The suit filed for declaration and partition was dismissed by the trial court and confirmed in appeal by the lower appellate court. Hence the Second Appeal . The plaintiff in the suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff and defendants 1 to 4 are brothers and sisters. The 5th defendant is the daughter of the 1st defendant. It is the case of the plaintiff that he and defendants 1 to 4 are entitled to get 1/5 th share each. The plaint schedule property w has been left behind by Smt.Elizabeth Netto, the mother of the plaintiff and defendants 1 to 4. According to the Plaintiff, when he approached defendants 1, 2 and 5 with a request to partition the plaint schedule property and to allot his 1/5 th share, defendants 1 and 2 denied the said request and also denied his title over the property . The defendants 1 and 2 have claimed title over the plaint schedule property by virtue of Exts. B1 and B2 gift deeds. At the same time the plaintiff contended that the defendants 1 and 2 forged Exts B1 R.S.A. No.182 of 2007 -2- and B2 gift deeds in respect of the plaint schedule property in favour of themselves and the plaint schedule property is liable to be partitioned among the plaintiff and defendants 1 to 4 after declaring that the said documents are void. 3. The defendants 1 and 5 filed a joint written statement contending interalia that the suit is not maintainable and the same is filed by the plaintiff in collusion with defendants 2 to 4 with the sole object of obtaining an exparte order of injunction against themselves. They contended that Exts. B1 and B2 gift deeds were voluntarily executed by their mother at her own will with the knowledge of plaintiff and other defendants. 4. The 2nd defendant filed a separate written statement contending that the plaint schedule property was in the possession and enjoyment of his mother till her death on 20-12-1973. According to her, the averment in the plaint that the gift deeds were forged by defendants 1 and 2 is false, that she never intended to forge a document to defeat the right of her brothers, that the plaintiff is not entitled to partition the plaint schedule property, that the gift deeds and the exchange deeds are valid and lawful and they are not liable to be declared as void. She also contended that the plaint schedule properties are not measured and boundaries are fixed and the properties are in the possession of the 2nd defendant. 5. The 3rd defendant in his written statement supported the case of the plaintiff and prayed for the partition of the plaint schedule property R.S.A. No.182 of 2007 -3- after setting aside Exts B1 and B2 gift deeds. 6. On the side of the plaintiff, PW1 was examined and Exts. A1 to A3 were marked. On the side of the defendants DWs 1 to 5 were examined and Exts. B1 to B9 were marked. 7. The trial court after evaluating the oral and documentary evidence adduced by the parties held that defendant Nos. 1 and 2 accepted Exts. B1 and B2 gift deeds, that the 1st defendant was aware of the execution of the same immediately after its execution, that the plaintiff has no case in the plaint that defendants 1 and 2 have not accepted those gift deeds. It is held by the trial court that Exts. B1,and B2 gift deeds, B7 Exchange deed and B8 settlement deed are valid documents and not liable to be set aside. 8. Before the lower appellate court also the plaintiff raised the very same contentions. After referring to Sections 122 and 123 of the Transfer of Property Act , the lower appellate court held that a gift may be made of certain existing movable or immovable property,that the gift made should be accepted by the donee and that acceptance must be during the life time of the donor while he/she is still capable of giving. The lower appellate court also held that Section 123 of the Transfer of Property Act also stipulates that if the donee dies before acceptance, the gift is void and a gift of immovable property can be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. The lower appellate also relied on Sections 68 and 69 of the Indian Evidence Act before coming to such a conclusion. The lower appellate R.S.A. No.182 of 2007 -4- court also concluded that Exts. B1 and B2 documents satisfied all the requirements of law and those documents contains the signatures of the donor and two attesting witnesses . The learned appellate judge noted the fact that even according to PW1's version the signatures of Smt. Elizabeth Netto, the executant , in Exts. B1 and B2 gift deeds are similar and held that the trial court is perfectly justified in upholding the validity of those documents. From the oral evidence of PW1, DW3 and DW4 the lower appellate court drew an inference that Exts. B1 and B2 gift deeds are executed by Smt. Elizabeth Netto herself and not by anybody else by impersonation. 9. In the above circumstances the fact finding courts rightly held that the plaintiff is not entitled to a declaration and partition. The findings of the courts below are based on facts, evidence and circumstances and cannot be interfered with by invoking Section 100 of the C.P.C. No question of law much less any substantial question of law arises for consideration in the appeal. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No. 182 of 2007 ---------------------------- JUDGMENT 24th June, 2009