IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 RFA.No. 273 of 2003() --------------------- OS.474/1995 of ADDL.SUB COURT,N.PARAVUR .................... APPELLANT/2ND DEFENDANT -------------------------------------------- 1. UNNIKRISHNAN, AGE 49, S/O.GOURIAMMA KAIPPILLY HOUSE, CHERAI MURI )( DIED AND LRS IMPLEADED PALLIPPURAM VILLAGE ADDL.2ND APPELLANT 2. MALATHYKUTTY AMMA, AGED 55 W/O.UNNIKRISHNAN KAIPPILLIL (SREEVIHAR) UDAYANAPURAM PO VAIKKOM – 686 143 (LRS OF DECEASED SOLE APPELLANT IS IMPLEADED AS ADDL.2ND APPELLANT AS PER ORDER DATED 30.11.2009 ON IA NO.1706/09) BY ADV. SRI.DINESH R.SHENOY RESPONDENTS/PLAINTIFF & DEFENDANTS 1 AND 3 TO 5 ---------------------------------------------------------------------------------- 1. MALATHY AGED 40, W/O.MARIDAS KAIPPILLY HOUSE , CHERAI MURI, PALLIPPURAM VILLAGE 2. JANAKI AMMA, AGED 72, D/O.PARUKUTTY AMMA KAIPPILLY HOUSE, CHERAI MURI PALLIPPURAM VILLAGE (DIED) 3. K SANTHA, D/O.GOURI AMMA KAIPPILLY HOUSE, CHERAI MURI, PALLIPPURAM VILLAGE 4. K.SARADA, D/O.GOURI AMMA -DO- (PRESENT ADDRESS KAIPPILLY VEEDU NEAR GOVT HIGH SCHOOL, ELAMKUNNAPUZHA PALLIPPURAM VILLAGE RFA 273/03 -2- 5. K VIJAYALAKSHMI, D/O.GOURI AMMA, -DO- (PRESENT ADDRESS C/O.RADHA DEVI, ANANTHAVADY MALANKARA PO, CHENGANNOOR) ADDL.R6 SREEKUMAR K U, AGED 32, HCL CONNECT LTD, ITSM DEPT, A10, II SECTOR – 3 NOIDA, UP 201 301 ADDL.R7 SREELATHA K U, C/O.P B DIVAKARAN PATHIYARIL HOUSE, KAIPPANJERY ROAD IRUMPANAM – 682 309 (LRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.R6 AND R7 VIDE ORDER DT.30.11.2009 ON IA 1706/09) ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- RFA No.273 of 2003 ------------------------------------- Dated this the 16th day of November 2011 Judgment Aggrieved by the judgment and decree dated 30.06.2003 in OS No.474/95 of the Sub Court, North Paravur, the second defendant in the suit has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Before going further, one aspect may be noticed. During the pendency of the suit before the trial court, the third defendant died and his legal heirs were brought on the party array as additional defendants 3 to 5. During the pendency of the appeal before this court, the appellant also died and his legal heirs have been brought on the party array as additional second appellant and additional respondents 6 and 7. 3. The plaintiff and the second defendant are siblings. The first defendant is the sister of their mother. It RFA 273/03 2 appears that she had gifted the plaint schedule property as per Ext.A2 to the plaintiff in the suit. The allegation is that later on, the gift after it had been accepted, was cancelled by execution of Ext.A4 cancellation deed and subsequently, Ext.A5 sale deed executed by the first defendant in favour of the second defendant. Alleging that once the gift had been accepted, cancellation is not permissible and therefore, Exts.A4 and A5 are not valid in law, a suit for declaration was laid. 4. The suit was resisted by the first defendant. She disputed that though the gift had taken effect, she was not competent to cancel the same. According to her, when she had returned from the hospital, she was approached by the plaintiff who pretended to look after her affairs and made her believe that after the construction of the house by the second defendant which was going on at the relevant time, he would shift his residence and that the first defendant will have to be looked after by the plaintiff. Thus, persuaded by the plaintiff, the first defendant claims that RFA 273/03 3 she was made to understand that a Will is to be executed bequeathing the property to the plaintiff. Believing the version of the plaintiff, she was taken to the Registration Department and the document was executed. Later on, she came to know that fraud has been played on her and therefore, she executed Ext.A4 cancellation deed. It is pointed out by her that she had no intention to give any property to the plaintiff during her life time and her intention was only to bequeath the property to the plaintiff after her death. Contending that the allegations in the plaint to the contrary are incorrect, she prayed for dismissal of the suit. 5. The second defendant in his written statement, remains satisfied by denying the allegations made against him in the plaint. He also adopted the other contentions raised by the first defendant. 6. On the above pleadings, necessary issues were raised. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendant had DWs 1 and 2 RFA 273/03 4 examined and Exts.B1 to B5 marked. 7. On an appreciation of the evidence in the case, the trial court came to the conclusion that Ext.A2 was executed under the circumstances made mention of by the plaintiff and the same had been accepted. Therefore, the cancellation was bad in law and so was the consequent sale deed. Accordingly, the suit was decreed. It is the said judgment and decree that are assailed in this appeal. 8. The following questions of law arise for consideration in this appeal. 1. Is the execution of the gift deed vitiated due to any reason ? 2. Has Ext.A2 been accepted ? 3. Do the judgment and decree of the court below call for any interference ? 9. It will be convenient to consider the issues together since the evidence is common. 10. The learned counsel for the appellant pointed out that the court below has erred in law in holding RFA 273/03 5 that Ext.A2 is a gift deed. Attention was drawn to the recital in the deed that if, during the lifetime of the donor, any assignment is to be made, it has to be with the consent and participation of the donor. This condition is repugnant to the concept of gift and therefore, Ext.A2 cannot be treated as a gift deed. It is then pointed out that it was specifically disputed that the first defendant had in fact intention to execute the deed of gift and if that be so, the plaintiff was bound to prove the gift in accordance with Section 68 of the Indian Evidence Act by examining at least of the attesting witnesses and since that has not been done, the plaintiff ought to have been non-suited. For the above proposition, the learned counsel relied on the decisions in Mallo v. Bakthawari (AIR 1985 Allahabad 160) and Dhiren Bailung v. Bhutuki (AIR 1972 Gauhati 44). Referring to the evidence of PW1, it was pointed out that one Sudha was aware of all the transactions between the parties and in the nature of the contentions taken by the first RFA 273/03 6 defendant, in order to establish that a gift was in fact taken place, that person ought to have been examined. As of now, there is only the interested testimony of PW1 and that is totally insufficient to uphold the gift deed. It was also contended that there was absolutely no evidence to show that the gift has been accepted so as to make the gift complete. If that be so, the cancellation deed which is executed within a few months of execution of the gift deed, is valid and binding on the plaintiff. These vital aspects, according to the learned counsel have been omitted to be noticed by the lower court and that has resulted in an erroneous decree being passed. It was also contended that the gift deed is vitiated by fraud and misrepresentation. 11. Per contra, the learned counsel for the respondents pointed out that none of the above contentions has any merit or basis. The gift deed itself says that possession has been handed over and it is necessary to remember that the plaintiff was residing with the donor and was looking after her affairs. Very slight evidence is RFA 273/03 7 therefore, sufficient to show that the gift has been accepted. The learned counsel went on to point out that the fact that the original of the gift deed has been produced by the plaintiff itself is sufficient to show that the gift has been accepted. In support of his contentions, the learned counsel for the respondents relied on the decision in Gopalakrishnan v. Rajamma (2006(4) KLT 377). It was contended on behalf of the respondents that since the execution of the deed is admitted, Section 68 of the Evidence Act is not applicable to the case on hand and the plea based on S.68 of the Evidence Act has necessarily to fail. The plea of undue influence, fraud etc. are belied by the recital in Ext.A4 which is the cancellation deed said to have been executed by the first defendant. None of those grounds now raised by the first and second defendant finds a place in Ext.A4 and Ext.A4 gives altogether a different reason for cancellation of the gift. It is, therefore, very evident that the reasons now put forward for holding that the gift is not valid or that the first defendant had no RFA 273/03 8 intention to execute the gift, are clear after-thoughts. Accordingly, it is contended that there is no merit in the appeal and it is only to be dismissed. 12. Ext.A2 is the deed of gift which is in favour of the plaintiff. There is no dispute regarding the title of the donor to the suit property. Ext.A2 gift deed makes mention of the fact that possession has been given to the donee and also the reason for executing the deed of gift. It is true that the donor has reserved a life interest in respect of the property and it is also stated therein that if any assignment is to be made during the lifetime of the donor, it has to be with the consent and participation of the donor. 13. The learned counsel for the appellant raised a contention that the recital to the effect that any assignment can be made only with the consent of the donor makes the document a Will rather that a gift. It is extremely difficult to accept the said contention. A reading of Ext.A2 leaves one in no doubt that possession is handed over forthwith, reserving life interest alone and no other RFA 273/03 9 right is retained by the donor. The donee is given the power to own, possess and enjoy the property, subject to the life interest of the donor. By no stretch of imagination, it can be treated as a Will. 14. In the written statement filed by the first defendant, the main contention taken is that she was made to believe at the time of execution of Ext.A2 that she was executing a Will by which she was inclined to bequeath the property to the plaintiff. Later on, when the property was sold to and money was about to be given by the second defendant, the plaintiff objected and pointed out that the property belong to her. It was at that point of time that the first defendant realised that she had been taken for a ride. 15. The first defendant reiterates the above stand in the written statement during her evidence also. But, unfortunately for her, the recital in Ext.A4 stands in her way. Ext.A4 was executed, going by the pleadings, after coming to know that the first defendant had been defrauded. If, as a matter of fact, the reasons for RFA 273/03 10 cancellation of the gift deed were those as stated in the written statement and spoken to by DW1, that would have certainly found a place in Ext.A4 16. One may now have a look at Ext.A4 document. It mentions that the donee was residing with the donor looking after her and was dependent on her. But, at a later point of time, the donee began to behave indifferently and expressed her non-inclination to accept any benefit from the donor and therefore, the first defendant was cancelling the gift deed earlier executed in favour of the plaintiff. 17. Two things are clear from the document. One is that she accepts that she had executed the gift deed or in other words, Ext.A2 stands admitted. The second thing is that the reason given at the time of filing the written statement and at the time of evidence is not the reason stated in Ext.A4. If, as a matter of fact, what is claimed by the defendants at the time of filing the written statement and at the time of evidence is true, certainly, RFA 273/03 11 those facts would have found a place in Ext.A4. It cannot be simply brushed aside by labelling it as a mischief of the scribe of the document. One must remember that the plea is one of fraud and misrepresentation. These are vitiating elements. It is well settled that the burden in such cases is on the person who pleads fraud and misrepresentation so as to vitiate the document. There is no independent evidence adduced by the defendant to show that the document is vitiated by fraud or misrepresentation. Apart from that fact, as already noticed, the plea of undue influence, fraud etc. are belied by the recital in Ext.A4 and so the plea raised by defendants 1 and 2 that Ext.A2 is vitiated by fraud and collision cannot be countenanced. 18. It is in this context that the decision relied on by the learned counsel for the appellant needs to be noticed. Before going into that aspect, it is necessary to refer to S.68 of the Indian Evidence Act, which reads as follows : RFA 273/03 12 “68. Proof of execution of document required by law to be attested – If a document is required by law to be attested, it shall not be used a s evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.” A reading of the above provision shows that a document which, in law, needs to be attested, shall not be used in evidence until the attesting witness has been called for the purpose of attestation of the document. However, the RFA 273/03 13 proviso says that except in the case of Will in the case of a document which is registered under the Indian Registration Act, it shall not be necessary to call the attesting witness unless its execution by the person by whom it purports to have been executed is specifically denied. 19. In the case on hand, the above section is not attracted for two reasons : (1) the document is a registered document and (2) the execution of Ext.A2 is admitted by the donor. 20. In the decision in Mallo v. Bakthawari (supra), it is held as follows : 11. According to Section 123 of the Transfer of Property Act, gift deed is required to be attested at least by two witnesses. In AIR 1932 All 527 (Lachman Singh v. Surendra Bahadur Singh) two questions were frame do be answered by the Full Bench, First was when a mortgagee sues to enforce his mortgage and execution and attestation of the deed are not admitted, what RFA 273/03 14 must the mortgagee prove in order to obtain a decree ? The Full Bench of this Court answered that question thus “Where a mortgagee sues to enforce his mortgage and the execution of the deed are not admitted, the mortgagee need prove only this much that mortgagor signed the document in he presence of an attesting witness and one man attested the document provided the document on the face of it bears the attestation of more than one person, but if the validity of the mortgage be specifically denied, in the sense that the document did not effect a mortgage in law then it must be proved by the mortgagee that the mortgage deed was attested by at least two witnesses. ............................................................................ 13. In AIR 1972, Gauh 44, it was held that the Attestation and Execution are two different acts, one following the other in the order stated. RFA 273/03 15 Attestation is meant to ensure that the executant was a free agent and not under pressure nor subject to fraud while executing the same.” 21. In the decision in Dhiren Bailung v. Bhutuki (supra), it has been held as follows : “10. Undisputedly, attestation and execution are two different acts, one following the other in the order stated. Attestation of a document obviously is meant to ensure that the executant was a free agent and not under pressure, nor subject to fraud while executing the same. The reason behind the legislative imperative, set out in Section 68, Evidence Act, to call at least one attesting witness for proof of an attestable document appears to be that he is a witness best suited to tell the court about the circumstances under which the document was executed inasmuch as he was a witness RFA 273/03 16 appointed or agreed upon by the parties to speak to the circumstances of its execution before any controversy had arisen between them. Therefore, what is more vital for the court to determine is whether the document requiring attestation had been executed in an upright manner. The attesting witnesses can help the court best in formulating its opinion about the execution of the document. This conclusion is reinforced by what is stated in the proviso to Sec.68 of the Evidence Act in respect of documents, save wills, which have been registered. Qua such documents the law dispenses with the requirement (mentioned in the body of the section) to call at least one attesting witness to prove the execution of compulsory attestable documents. Obviously, this exception was made as the genuineness of execution gets credibility from the registration of RFA 273/03 17 the document concerned. Therefore, in my opinion, the provisions set out in the body of Section 68 were adopted only to ensure sanctity of the execution of such solemn documents as wills, gift deeds and mortgage deeds. Further, it will be noticed, attestation is insisted upon the provisions of the Transfer of Property Act. However, the document relied upon by a party has to be proved in accordance with the provisions of he Evidence Act and if the requirements of the Evidence Act are satisfied, the document shall be taken to have been proved. This does not amount to saying that the prescribed attestation is a dispensable formality. What I mean to say is that if the party interested is establishing a compulsory attestable document can prove it in the manner enjoined by the Evidence Act, then that document can, to sue the words of Section 68, 'be used as RFA 273/03 18 evidence' and if it can be used as evidence then nothing more remains to be done by the party interested in utilising it unless of course on the rest of the issues raised between the parties that document has to be jettisoned as of no legal consequence.” 22. It is true that the attestation made mention of in Section 68 has a purpose to serve. Apart from the fact that the attesting witness should sign the document, it also lends assurance of the due execution of the document. The attesting witnesses swear to the effect that the document was in fact executed by the executor in their presence and that he was aware of the contents of the documents. 23. No doubt, if the document is disputed, the above section would have been attracted. But, as already stated, a reading of Ext.A4 shows that the donor has admitted execution of Ext.A2 gift deed, but was cancelling the deed on certain grounds. In the light of the said facts, it is unnecessary to summon any attesting witnesses to RFA 273/03 19 prove due execution of Ext.A2 document. The principle laid down in the above decisions can have no application to the facts of this case. 24. Now, coming to the question of acceptance of Ext.A2 document, as rightly pointed out by the learned counsel for the respondents, very slight evidence alone is required for acceptance of the gift deed except in the case of Mohammedan gifts. In the decision in Kunjukuttiamma v. Kunjukuttiamma (2001(1) KLT 797), this court had occasion to lay down the essential ingredients of a gift, the relevant portion of which reads as follows : “The only question to be decided in this appeal is whether the court below was right in coming to the conclusion that Ext.B1 gift deed was executed and has been accepted by the donee ? Admittedly, the plaint schedule properties belonged to Kunjikutty Amma as per the partition deed of the year 1969 evidence by RFA 273/03 20 Ext.A1. Ext.B1 is the settlement deed alleged to have been executed by Kunjikutty Amma in favour of the plaintiff and the first defendant. S.122 of the Transfer of Property Act defines gift. It reads as follows : 'Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another called the donee and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.' S.123 deals with the manner of execution of the gift deed. If the purpose is for making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. By reading Ss122 and 123, it can be seen that in order to execute a valid gift, the RFA 273/03 21 following elements are to be proved (1) It must be a voluntary transfer (2) The gift must be accepted by the donor during the lifetime of the donee (3) The gift must be effected by a registered document and it must be attested by two attestors. if all the above elements are fulfilled, there will be a valid gift, if not it will have no legal consequence.” 25. In the case on hand, it has to be noticed that all the above ingredients are satisfied. In the decision in Gopalakrishnan v. Rajamma (supra), the question of acceptance of the gift was considered and it was held as follows : “The provision in S.126 of the T.P.Act enabling the revocation of a gift in the same manner in which a contract could be rescinded as made since the donor could not but for the aid provision, avoid the transfer by recourse to Ss.19 and 19A of the Indian Contract Act, 1872. RFA 273/03 22 This is because those provisions of the Contract Act apply only to agreements. Reciprocity, which is the hallmark of an agreement is absent in a gift. A gift is a gratuitous transfer which cannot be treated as an agreement for want of mutuality. That is presumably why an express provision was made in S.126 of the T.P. Act. Therefore, even for revoking a gift, the provisions in the Contract Act pertaining to rescission of contracts will have to be resorted to. There cannot be the rescission of a contract by a unilateral act of repudiation or cancellation without the intervention of the court. The relevant Article governing suits for rescission of a contract is also Art.59. Thus, in a case where after the acceptance of he gift, if the donor wants to revoke the same by resorting to S.126 of the T.P.Act, the donor will