IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 RSA.NO. 1025 OF 2008(Y) ----------------------------------- AS.72/2005 OF DISTRICT COURT, PATHANAMTHITTA OS.125/2001 OF MUSNIFF COURT,ADOOR .................... APPELLANT – APPELLANT – DEFENDANT: ------------------------------------------------------- JOY, S/O. GEORGE, PLAVUMILKUNNATHIL VEEDU, KODUMON MURI, KODUMON VILLAGE, ADOOR TALUK. BY ADV. SRI.JOHN BRITTO SRI.C.A.RAJEEV RESPONDENT - RESPONDENT – PLAINTIFF: ----------------------------------------------------------- JOY MATHEW, VALLYAYYATHU PUTHEN VEEDU, KODUMON MURI, KODUMON VILLAGE, ADOOR TALUK. ADV. SRI.MANUEL KACHIRAMATTAM FOR R SMT.MERRY GEORGE THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009 ALONG WITH RSA NO. 1026 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 1025 OF 2008 AND R.S.A. NO.1026 OF 2008 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 21st day of December, 2009 J U D G M E N T --------------------- Parties are referred to as plaintiff and defendants as in O.S. No.125 of 2001 for convenience. 2. Defendant Nos.1 and 2 are husband and wife. Plaintiff is the nephew of defendant No.2. Defendant No.3 is the nephew of defendant No.1. Suits concerned four items of properties – plaint A to D schedules described in O.S. No.125 of 2001. Plaint C schedule in O.S. No.125 of 2001 originally belonged to defendant Nos.1 and 2. Plaint A, B and D schedules in that suit originally belonged to defendant No.1. Defendant Nos.1 and 2 are old and issueless. They executed Ext.B2, settlement deed (defendant Nos.1 and 2 dispute the nature of the transaction) in respect of plaint A to D schedules in favour of the plaintiff in O.S. No.125 of 2001. According to the plaintiff, he got title over the said properties as per Ext.B2 though possession of the properties remained with defendant Nos.1 and 2 for effective enjoyment of the life interest they created over the R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 2 :- said properties. While so defendant Nos.1 and 2 cancelled Ext.B2 by Ext.B3, cancellation deed dated 25.1.2001 and following that defendant No.1 executed Ex.B21, assignment deed in favour of defendant No.3 in respect of plaint A, B and D schedule properties. Plaintiff would say that cancellation deed and the assignment deed (Exts.B3 and B21) are void since on execution of Ext.B2 in favour of the plaintiff, defendant Nos.1 and 2 ceased to have any right or title over the suit properties and hence they were neither competent to cancel the same nor assign the properties in favour of defendant No.3. He therefore, filed O.S. No.125 of 2001 for declaration of title, that Ext.B3, cancellation deed and Ext.B21, assignment deed are void and for injunction against trespass into the suit properties. Defendant Nos.1 and 2 contended that gift in favour of plaintiff was conditional on his properly looking after defendant Nos.1 and 2, plaintiff did not comply with the condition and instead he has been harassing defendant Nos.1 and 2 and in that situation they cancelled Ext.B2 as per Ext.B3, cancellation deed dated 25.1.2001. They also claimed that they were in possession and enjoyment of the properties as before. Defendant No.3 contended that since five years before Ext.B21 he has been in possession of plaint A, B and D schedules (in respect of which Ext.B21 was executed) as a tenant R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 3 :- under defendant Nos.1 and 2 and is in possession and enjoyment of plaint A, B and D schedules even after Ext.B21. Defendant No.3 filed O.S. No.133 of 2001 against plaintiff in O.S. No.125 of 2001 seeking declaration of his title and possession of plaint A, B and D schedules on the strength of Ext.B21, assignment deed. Learned Munsiff found that Ext.B2 is not valid since it did not comply with Section 122 of the Transfer of Property Act (for short, “the Act”) in so far as the document is not attested by two witnesses, Ext.B2 has not taken effect, plaintiff in O.S. No.125 of 2001 had not acquired any right over plaint A to D schedules as per Ext.B2 and hence it was well within the power of defendant Nos.1 and 2 to cancel that settlement deed as per Ext.B3 and convey title and possession of plaint A, B and D schedules to defendant No.3 as per Ext.B21. O.S. No.125 of 2001 was dismissed and defendant No.3 was granted a decree as prayed for in O.S. No.133 of 2001. Plaintiff in O.S. No.125 of 2001 who is defendant in O.S. No.133 of 2001 challenged the common judgment before the learned District Judge. Learned District Judge was of the view that finding of learned Munsiff that Ext.B2 is hit by Sec.122 of the Act is not correct in so far as there is proper attestation of Ext.B2 but concurred with other findings entered by learned Munsiff and dismissed the appeals. That R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 4 :- common judgment and decree are under challenge in these Second Appeals. 3. Following substantial questions of law are framed for a decision: (i) Whether finding of courts below that notwithstanding Ext.B2, defendant Nos.1 and 2 had absolute right over the properties is legally correct. (ii) Whether finding of trial court that Ext.B2 had not taken effect and that plaintiff in O.S. No.125 of 2001 has no possession over the suit properties is legally correct. (iii) Has not courts below committed grave illegality in not considering whether the clause in Ext.B2, reserve right of defendant Nos.1 and 2 to create fresh document. It is contended by learned counsel for plaintiff that courts below were carried away by the contention raised by defendant Nos.1 and 2 that plaintiff had not looked after them which was the condition for execution of Ext.B2 but Ext.B2 does not provide any such R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 5 :- condition and hence findings of courts below are not correct. Learned counsel also submitted that finding of the courts below that title remained with defendant Nos.1 and 2 is not correct. According to the learned counsel it is only that as per Ext.B2, possession of plaint A to D schedules remained with defendant Nos.1 and 2 for the limited purpose of enjoyment of life interest reserved by them and that did not include a right to transfer possession to third parties. Learned counsel has placed reliance on the decisions in Bhanumathi v. Lelitha Bai (1973 KLT 961), Gopalakrishnan v. Rajamma (2006 [4] KLT 377) and Asokan v. Lakshmikutty 2008 [1] KLT 54 (SC). Learned counsel for defendant Nos.1 and 2 contended that on a reading of Ext.B2 it is clear that it did not transfer right, title or interest in favour of the plaintiff. According to the learned counsel Ext.B2 is only a Will which was to take effect after death of defendant Nos.1 and 2 and hence it was well within the power of defendant Nos.1 and 2 to cancel Ext.B2 and transfer right, title, interest and possession in favour of defendant No.3. Alternatively it is argued that at any rate courts below are justified in holding that the gift or settlement as per Ext.B2 was conditional on plaintiff looking after and maintaining R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 6 :- defendant Nos.1 and 2, that condition was not complied and hence it was well within the power of defendant Nos.1 and 2 to revoke Ext.B2 as per Ext.B3 and execute Ext.B21. 4. It is true that if the gift or settlement as the case may be is conditional and the donor or the settler as the case may be, has reserved a right to cancel the transaction in case the condition is not fulfilled, it is well within the power of the donor or settler to cancel the transaction. Contention raised by learned counsel for plaintiff is that Ext.B2 does not provide any such condition and that averments regarding the alleged condition comes only in the written statement filed in O.S. No.125 of 2001 by defendant Nos.1 and 2. According to the learned counsel in the circumstances first appellate court was not justified in placing reliance on the decision in Subbegowda v. Thimmegowda (AIR 2004 SC 2428). 5. On going through Ext.B2 it would appear that defendant Nos.1 and 2 retained possession of plaint A to D schedules since they had reserved a life interest over the said properties. But it is seen from Ext.B21 that possession of plaint A, B and D schedule properties in O.S. No.125 of 2001 is recited to have been transferred to defendant No.3 on the date of Ext.B21. I do not R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 7 :- forget that defendant Nos.1 and 2 claimed that even before and after Ext.B21 they continued to be in possession of the properties but at another stage they claimed that even before Ext.B21 they had put defendant No.3 in possession of plaint A, B and D Schedules. Defendant No.3 also made a similar contention regarding possession based on an alleged tenancy created five years before Ext.B21 but according to the learned counsel for plaintiff Ext.B21 does not show any such possession by defendant No.3. 6. It is seen from the plaint in O.S. No.125 of 2001 and written statement in O.S. No.133 of 2001 that plaintiff proceeded on the basis that he continues to be in possession of plaint A to D schedules and accordingly prayed for declaration of title and injunction. So far as possession is concerned plaintiff did not produce any receipt for payment of revenue. Of course plaintiff has a contention that he was not able to pay revenue since he was abroad during the relevant time. Exhibit B22 is the only receipt for payment of revenue produced by defendant No.3 subsequent to Ext.B21 and prior to the institution of the suit. All other receipts for payment of revenue produced on the side of defendants come from defendant Nos.1 and 2. That may not help defendant No.3 since being in possession of the property as life estate holders it was R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 8 :- possible for defendant Nos.1 and 2 to pay revenue. I have gone through the judgments of the courts below and find that no serious consideration has been given to the question as to who actually is in possession of the suit properties. Learned Munsiff has merely observed that Ext.B2 does not confer valid right, title or interest over the suit properties in favour of plaintiff, defendant Nos.1 and 2 have executed Ext.B21 and defendant No.3 is in possession of the properties. But learned Munsiff has not referred the alleged inconsistency in the pleadings of defendant Nos.1 to 3 regarding the time and manner in which possession of plaint A, B and D schedule properties was allegedly transferred to defendant No.3. At this stage learned counsel for plaintiff requested that plaintiff may be given an opportunity to incorporate an alternative prayer for recovery of possession (subject to the life interest of defendant Nos.1 and 2) in case it is found that plaint A, B and D schedule properties are in the possession of defendant No.3. 7. It is also seen that courts below did not consider the question whether Ext.B2 is a conditional gift reserving right for the donor to cancel it and whether it was possible for defendants to raise a contention that the gift was conditional when the document itself did not stipulate any such condition. Courts below also did not R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 9 :- consider whether recitals in Ext.B2 revealed transfer of title in favour of the plaintiff and whether, when the document itself did not confer power of revocation in favour of the donor, he could cancel the gift (ofcourse after its acceptance) except through the process of court. 8. Learned counsel for defendant Nos.1 and 2 submitted that Ext.B2 is only a Will and that defendants may be given an opportunity to amend the written statement accordingly. In the circumstances stated above I consider it appropriate to remit the cases to the trial court so that parties have an opportunity to make appropriate amendments to their pleadings. Hence I am not pronouncing verdict on the issue whether Ext.B2 conveyed right, title or interest in favour of plaintiff in O.S. No.125 of 2001. I set aside the findings entered by the courts below on all points so that the matter can be re-agitated in the trial court afresh after properly amending the pleadings. Resultantly, Second Appeal is allowed by way of remand. Judgment and decree of the courts below are set aside. Suits are remitted to the trial court for fresh disposal after giving both sides opportunity to amend their pleadings and adduce further evidence, if any. It is directed that until learned Munsiff passed appropriate orders there will be an interim order of injunction restraining R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 10 :- respondents/defendant Nos.1 to 3 from creating documents in respect of the suit properties, inducting third parties into possession or committing waste in the said properties. Learned Munsiff shall pass appropriate orders in case any application for injunction as above stated is made before him, untrammeled by the order I have issued. Registry shall send back the records to the trial court immediately. Parties shall appear in the trial court on 15.02.2010. Interlocutory application Nos.2304 and 2306 of 2008 shall stand closed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 11 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 =================== J U D G M E N T 21ST DECEMBER, 2009 R.S.A. NO. 1025 OF 2008 & R.S.A. NO. 1026 OF 2008 -: 12 :-