IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 RSA.No. 849 of 2008() AS.32/2001 of ADDL. DISTRICT COURT, PATHANAMTHITTA OS.1/1995 of MUNSIFF COURT, RANNI .................... APPELLANTS/APPELLANTS/DEFENMDANT:- 1. MARIAMMA PHILIP, W/O LATE T.M. PHILIP, THADEETHARAYIL HOUSE, EDAPPAVOOR, KOTTATHOOR, AYROOR VILLAGE, 2. SHYLA PHILIP, D/O LATE T.M. PHILIP, THADEETHARAYIL HOUSE, EDAPPAVOOR, KOOTATHOOR, AYROOR VILLAGE. 3. SHINE PHILIP, S/O THADEETHARAYIL HOUSE, EDAPPAVOOR, KOTTATHOOR, AYROOR VILLAGE. BY ADV. SRI.M.NARENDRA KUMAR SRI.S.MOHANAN RESPONDENTS/RESPONDENTS/DEFENDANT:- 1. THANKAMMA THOMAS, THADEETHARAYIL HOUSE, EDAPPAVOOR, KOTTATHOOR, AYROOR VILLAGE, NOW RESIDING AT NO.17, 5TH AVK - 2ND STREET, GOKULAM COLONY, KHAIPUDAR P.O., COIMBATORE -42. 2. ALICE, THADEETHARAYIL HOUSE, EDAPPAVOOR, KOTTATHOOR, AYROOR VILLATE - NOW RESIDING AT NO.17, 5TH AVK - 2ND STREET, GOKULAM COLONY, KHAIPUDAR P.O., COIMBATORE -42. 3. DAISY, THADEETHARAYIL HOUSE, EDAPPAVOOR, KOTTATHOOR, AYROOR VILLATE - NOW RESIDING AT NO.17, 5TH AVK - 2ND STREET, GOKULAM COLONY, KHAIPUDAR P.O., COIMBATORE -42. 4. ROSLIN, THADEETHARAYIL HOUSE, EDAPPAVOOR, KOTTATHOOR, AYROOR VILLAGE, - NOW RESIDING AT NO. 17, 5TH AVK – 2ND STREET, GOKULAM COLONY, KHAIPUDAR P.O., COIMBATORE – 42. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 849 of 2008 ========================== Dated this the 16th day of January, 2009. JUDGMENT The legal representatives of the sole defendant in O.S. No. 1 of 1995 on the file of the Munsiff's Court, Ranny are the appellants in this Second Appeal. The said suit instituted by the sole defendant was one for declaration of title and recovery of possession with mesne profits of the plaint schedule property admeasuring one acre of land with a building thereon. The plaint schedule property belonged to Saramma, the mother of the plaintiff and the defendant, who were the two sons of Saramma. As per Ext.A1 gift deed dated 27.07.1982, Saramma had gifted the plaint schedule property in favour of the plaintiff. Subsequently, six years thereafter, Saramma executed Ext.B1 Cancellation deed dated 10.11.1988 purporting to cancel Ext.A1 gift deed. Thereafter, she executed Ext.B3 settlement deed dated 17.04.1993 settling the plaint schedule property in favour of the defendant who was her other son. Since even after the death of Saramma, the defendant did not move out of the R.S.A. No. 849/2008 : 2 : property including the house, the suit was filed for declaration of title and recovery of possession with mesne profits. Both the courts have decreed the suit as prayed for. Hence this Second Appeal. 2. The following are the questions of law formulated in the memorandum of Second Appeal. i) Whether the courts below are correct in holding that Ext.A1 gift was accepted by the donee? ii) Whether the recitals in the cancellation deed, Ext. B1, executed by the donor are admissions sufficient to conclude that there is no acceptance of Exhibit – A1 gift deed? Iii) Whether Ext.A1 gift deed is a conditional gift, whereby the donor retained title and possession? iv) Whether Exhibit B1 cancellation deed is valid, if Ext.A1 is a conditional gift? 3. The learned counsel appearing for the appellants made his submissions reiterating the contentions of the defendant. 4. I am unable to accept the above submissions. The courts below have concurrently found that Ext.A1 gift deed executed by the mother in favour of the plaintiff was accepted by the plaintiff and has been acted upon. The courts below have further found that the plaintiff had effected mutation and had R.S.A. No. 849/2008 : 3 : paid tax as evidenced by Ext.A2(e) tax receipt which was prior to Ext.B1 cancellation deed. Even the defendant examined as DW1 confessed that Ext.A1 gift deed was acted upon. If so, Saramma who died on 02.03.1994, could not have executed Ext.B1 cancellation deed on 10.11.1988. Consequently, Ext.B3 settlement deed settling the very same property in favour of the defendant also cannot have any legal effect. The suit was rightly decreed by the courts below. The findings recorded by the courts below are pure findings of fact. 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 Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 16th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 849/2008 : 4 :