IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 SA.No. 223 of 1996() -------------------- A.S.NO.30/1987 OF SUB COURT, KOTTARAKKARA O.S.NO.207/1984 OF MUNSIFF COURT, KOTTARAKKARA APPELLANT(S)/APPELLANTS 2 TO 6/DEFENDANTS (HEIRS OF DECEASED DEFENDANT NO.1 AND 3): -------------- 1. PONNAMMA WIFE OF KARTHIKEYAN, KARINGOTTU VEEDU FROM PATTATHIL VEEDU, KOTTATHALA KIZHAKKE MURI, MYLOM VILLAGE, KOTTARAKKARA. 2. KARTHIKEYAN ASOKAN, -DO- -DO- 3. KARTHIKEYAN LALU, -DO- -DO- 4. KARTHIKEYAN SUJATHA, -DO- -DO- 5. KARTHIKEYAN RAJENDRAN, -DO- -DO- BY ADV. SRI.C.V.VASUDEVAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- PARAMESWARAN PILLI BHASKARAN PILLAI, KARINGOTTU VEEDU, KOTTATHALA KIZHAKKE MURI, MYLOM VILLAGE, KOTTARAKKARA. ADV. SRI.B.GOPAKUMAR SRI G.SUKUMARA PILLAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.223 of 1996 -------------------------------------- Dated this the 10th day of March, 2010. JUDGMENT Appeal arises at the instance of defendant No.3 and legal representatives of deceased defendant No.1 challenging judgment and decree of learned Sub Judge, Kottarakka in A.S.No.30 of 1987 confirming judgment and decree of learned Munsiff, Kottarakkara in O.S.No.207 of 1984. Defendant No.1 expired during the pendency of the first appeal and his legal representatives are impleaded as additional appellants. Defendant No.2 expired on 8.9.1995 after the disposal of the appeal by the first appellate court and before filing the Second Appeal. Dispute concerned eight (8) cents of land which originally belonged to defendant No.2 as per settlement deed No.1784 of 1961, mother of plaintiff. While defendant No.2 was in possession and enjoyment of the property she executed Ext.B2, gift deed No.399 of 1974 dated 4.2.1974 in favour of plaintiff (Ext.A1 is the copy of the gift deed) according to the plaintiff, transferring title and possession of the said property in his favour though defendant No.2 reserved a right to take yield from the property and reside in the building situated thereon. Defendant No.2 has been residing in the building in the property along with the plaintiff. While so, defendant Nos.1 and 3, husband and wife were able to prevail upon defendant No.2 (who as per the amended plaint plaintiff would say was not having sound disposing state of mind) and caused SA No.223 of 1996 2 her to cancel Ext.B2, gift deed as per cancellation deed, Ext.B3 dated 9.4.1977. Following that a sale deed (Ext.B1 dated 15.03.1984) was got executed in the name of defendant Nos.1 and 3 concerning 7 cents (out of the said 8 cents) and building. Plaintiff would say that cancellation deed and the sale deed are invalid and do not affect his right, title and interest over the suit property as per Ext.B2, gift deed dated 4.2.1974. Plaintiff prayed for a declaration of his title and possession of plaint A and B schedule properties and injunction against defendant Nos.1 and 3 trespassing into the schedule properties and creating documents in respect of plaint B schedule property. Later, alleging that defendant Nos.1 and 3 trespassed into plaint B schedule property, plaint was amended to incorporate a prayer for recovery of possession of plaint B schedule property. Defendant Nos.1 and 3 contended that Ext.B2, gift deed itself is fraudulent and obtained by the plaintiff exercising undue influence on defendant No.2, his mother. Ext.B2, gift deed was executed on a condition that plaintiff would maintain defendant No.2. Plaintiff failed to maintain defendant No.2. Plaintiff never got possession or title over the property covered by Ext.B2 which did not also take effect. Hence cancellation deed as well as the sale deed in favour of defendant Nos.1 and 3 are valid. They claimed title and possession of plaint B schedule property as per Ext.B1, assignment deed. Defendant No.2 admitted execution of Ext.B2 in favour of the plaintiff and claimed that she has been staying with the plaintiff in the building in the suit property but wife of plaintiff obstructed her from taking yield from the suit property. Hence she SA No.223 of 1996 3 cancelled the gift deed as per Ext.B3, cancellation deed dated 9.4.1977. It is also her case that one Chandran Pillai and defendant No.1 fraudulently obtained Ext.B1, sale deed from her representing to her to that it is a deed of mortgage. Later it was learnt that Ext.B1 is a sale deed purported to be executed in favour of defendant Nos.1 and 3. Trial court came to the conclusion that Ext.B2 is a valid gift deed executed by defendant No.2 in favour of the plaintiff and that it conveyed right, title and interest of defendant No.2 over the suit property in favour of the plaintiff. Hence the subsequent cancellation of Ext.B2 as per Ext.B3 and the assignment of plaint B schedule in favour of defendant Nos.1 and 3 as per Ext.B1 are invalid. Trial court held that plaintiff had not got possession of the suit properties since even as per Ext.B2, defendant No.2 was to have possession and that defendant No.2 transferred possession of B schedule to defendant Nos.1 and 3 as per Ext.B1. Hence prayer for injunction against defendant Nos.1 and 3 was disallowed so far as plaint A schedule is concerned. Recovery of possession of plaint B schedule was disallowed since according to the trial court, in view of the reservation in Ext.B2 only defendant No.2 could ask for possession during her life time. But plaintiff was granted a decree for prohibitory injunction against defendant No.1 committing waste in the suit property and getting documents in respect of plaint B schedule property. Defendant Nos.1 and 3 took up the matter in appeal. It is while so that defendant No.1 died and his legal representatives were impleaded as additional appellants. First appellate court confirmed the finding, judgment and decree of SA No.223 of 1996 4 the trial court and dismissed the appeal and hence, the Second Appeal. It is after the dismissal of the appeal by the first appellate court and before filing of the Second Appeal that defendant No.2 expired on 8.9.1995. Plaintiff has now filed I.A.No.286 of 2010 requesting this Court to invoke power under Order 41 Rule 33 of the Code of Civil Procedure (for short, “the Code”) and grant relief to the plaintiff as regards recovery of possession of plaint B schedule. 2. Following substantial questions of law are framed for a decision: i. Whether courts below have gone wrong in not holding that Ext.B2, gift deed is invalid for want of proper attestation under Section 3 and non- compliance of Section 123 of the Transfer of Property Act (for short, the Act”)? ii. Have not the courts below gone wrong in not holding that Ext.B2 had not taken effect and hence did not affect right, title and interest of defendant No.2 in the suit property? iii. Have not the courts below gone wrong in not holding that Ext.B2, gift deed was validly cancelled by defendant No.2 for non-compliance of the conditions mentioned therein? iv. Could the plaintiff be given decree for recovery of possession of plaint B schedule property taking into account the subsequent events? 3. It is contended by learned counsel for appellants/defendant No.3 and other legal representatives of deceased defendant No.1 that finding of the courts below that Ext.B2 is a valid gift is not sustainable since the courts below SA No.223 of 1996 5 have overlooked the fact that it is not a gift deed validly executed complying with the provisions under Sections 3 and 123 of the Act. According to the learned counsel there is no proper attestation for Ext.B2. It is contended that evidence on record would show that Ext.B2 was never accepted or acted upon by the respondent/plaintiff and hence it cannot affect right, title and interest of defendant No.2 which, after validly cancelling Ext.B2 has been conveyed to defendant Nos.1 and 2 as per Ext.B1, sale deed dated 15.3.1984. Learned counsel contended that in the circumstances finding of the courts below that respondent has title over the suit property is erroneous. It is contended by the learned counsel that at this stage when defendant Nos.1 and 3 have effected valuable improvements in the property it will be unjust to invoke Order 41 Rule 33 of the Code to grant recovery of possession of plaint B schedule in favour of the respondent, he having not challenged that part of the decree of the trial court either by filing an independent appeal or cross objection in A.S.No.30 of 1987. Learned counsel for respondent in response would contend that so far as title of the respondent is concerned courts below concurrently on the facts, circumstances and evidence found in his favour and it involved no substantial question of law as urged in the memorandum of appeal. There is also no reason to interfere with that finding of the courts below. It is contended that courts below were under the impression that since as per Ext.B2, gift deed defendant No.2 (the donor) reserved a right to possess and enjoy the suit property and she had conveyed possession of plaint B schedule to defendant Nos.1 and 3, SA No.223 of 1996 6 respondent/plaintiff could not recover possession of plaint B schedule during her life time. Trial court was of the view that only defendant No.2 could recover possession of plaint B schedule during her life time. Now that defendant No.2 expired on 8.9.1995, defendant Nos.1 and 3 have no conceivable right to remain in possession of plaint B schedule and hence notwithstanding that no independent appeal or cross objection has been preferred against that part of the decree of the trial court which went against the respondent it is within the power of this Court to invoke the power under Order 41 Rule 33 of the Code and grant relief to the respondent without driving the parties to another round of litigation involving waste of time, energy and money. Learned counsel has placed reliance on the decision in V.M.Mathew v. Eliswa & others (1988 (1) KLT 310) and Oriental Insurance Co. Ltd. v. Mary Pushpam (1996 (1) KLT 806). 4. Challenge is made to the validity of Ext.B2 on the ground that there is no proper attestation. Contention is that it is attested by only one witness. First appellate court has adverted to this contention raised before it and held that the document (Ext.B2) is properly attested (the relevant portion of Ext.B2 is extracted in the judgment of the first appellate court). The argument regarding want of proper attestation comes from the use of expression “witness” in singular in Ext.B2. But Ext.B2 shows that after the word “witness” (in singular), one Velayudhan Achari Kochukunjacharry has signed as witness No.1. A scribe SA No.223 of 1996 7 can also be an attesting witness. Whether it is so, is a question of fact. Ext.B2 itself shows that the scribe has signed as “second witness” (to the execution of Ext.B2). That the scribe is described as “second witness” indicates that he is witness No.2, next to witness No.1 for execution of the document. “Singular' includes plural also. Hence in the facts and circumstances the expression “witness” should be understood as meaning the plural “witnesses”. Attestation by the scribe and another witness on the facts and circumstances stated above satisfied the requirements of Section 3 of the Act and hence it could not be contended that Ext.B2 is not a valid document as required under Section 123 of the Act. Hence that contention of the appellants has to fail. 5. So far the contention that Ext.B2 has not taken effect is concerned, the argument of the learned counsel is that as per Ext.B2 and as admitted by the respondent/plaintiff as PW1 he was not to get possession of the suit property during the life time of the donor (defendant No.2) and evidence on record shows that Ext.B2, original gift deed was produced by defendant Nos.1 and 3. 6. True, transfer of possession is an indication of acceptance of the gift but I am unable to think that it is the only indication to prove acceptance of the gift. Deferring possession to the donee to a future date is not something which is unheard in law relating to the gift of immovable property. Following Ashia Ummal v. Vasanthi (1964 KLT 844) it was held in Alima Ummal v. Aluma Ummal (1988 (2) KLT SN.11) that when the donor SA No.223 of 1996 8 and donee were residing in the same property and the donor reserved the right to take profits till his death, the gift is not invalid. The Supreme Court in K.Balakrishnan v. K.Kamalam and others (AIR 2004 SC 1257) has held that title and ownership in property can be gifted without its possession and right of enjoyment. Question is whether the donor intended to divest himself of his right, title and interest and possession conveyed the same in favour of the donee which the latter has accepted. In this case defendant No.2 as per Ext.B2 conveyed her right, title and interest in favour of respondent on the date of Ext.B2 itself and the donor (defendant No.2) has permitted the donee (respondent/plaintiff) to effect mutation of the property in his name which reinforces the fact that right, title and interest of the donor were conveyed in favour of the donee on the date of Ext.B2 itself. Ext.A2, receipt for payment of revenue by the respondent on 3.4.1984 shows that mutation of the property was changed in the name of the respondent. That is as authorised by Ext.B2. Ext.B3, cancellation deed also shows that mutation had been changed in the name of the respondent in that, deceased defendant No.2 states in Ext.B2 that she will be transferring mutation of the property in her name. A further fact revealed is that Ext.B2 was got registered by the respondent himself. That indicated acceptance of the gift. It is true that possession of the property was not given to the respondent at the time of Ext.B2 reason being that the donor reserved a right to possess and enjoy the same during her life time. Possession retained by the donor was in accordance with the conveyance of her right, title SA No.223 of 1996 9 and interest over the suit property in favour of the donee and the recital in Ext.B2 that she will possess and enjoy the property till her death. It is not as if she was possessing the same under her own title. Respondent was to get possession on the death of the donor (deceased defendant No.2). Hence the mere fact that donor retained possession of the property which can only be taken as to be taken possession by the respondent on the death of the donor (defendant No.2) does not make Ext.B2 anything less than a valid gift. The mere fact that original of Ext.B2 was produced by defendant Nos.1 and 3 is also not a ground to presume that gift had not taken effect. I must bear in mind that respondent and defendant No.2, the donee and donor were atleast for sometime residing together in the same building in the suit property which was the subject matter of gift. Defendant No.2 thereafter executed Ext.B1, sale deed in favour of defendant Nos.1 and 3 in respect of plaint B schedule property. Defendant No.2 who was staying with respondent/plaintiff could have collected Ext.B2 and handed over the same to defendant Nos.1 and 2. 7. It is also settled position of law that so far as a gift which is not onerous is concerned only slight evidence is sufficient to prove its acceptance. Defendant Nos.1 and 3 have a contention that plaintiff had to look after defendant No.2 and that Ext.B2, gift deed was executed subject to that condition which plaintiff did not comply. On going through Ext.B2, I do not find any condition imposed on plaintiff subject to which the gift was made. It is true that there is a recital in Ext.B2 that plaintiff has to maintain defendant No.2, the SA No.223 of 1996 10 mother but that is not a condition subject to which the gift was made. That can only be taken as a direction or pious wish expressed by defendant No.2. Such direction or expression of wish subsequent to a valid assignment of the property by way of gift has no validity or binding force under law. In Brijendra Singh v. State of M.P.(2008(1) KLT 54) there was a gift in favour of the son with a condition to pay certain amount to his sister at the time of marriage. The Supreme Court held that it was not an onerous gift which could be cancelled for non-compliance of the condition. Ext.B2 cannot be treated as a conditional gift deed so that for non-compliance of the condition it could be cancelled by defendant No.2. Hence cancellation of Ext.B2 (as per Ext.B3, cancellation deed) in respect of the suit property and the subsequent assignment of plaint B schedule property in favour of defendant Nos.1 and 3 as per Ext.B1 are invalid and cannot affect title of plaintiff over the suit property acquired as per Ext.B2 as rightly found by the courts below. The challenge to the finding of the courts below as to the invalidity of Exts.B1 and B3 has to fail. 8. Now the question is whether invoking power under Order 41 Rule 33 of the Code plaintiff has to be given relief with respect to plaint B schedule. Trial court disallowed plaintiff's prayer for recovery of possession of plaint B schedule from defendant Nos.1 and 3 for the mere reason that in tune with the reservation made by defendant No.2 in Ext.B2, she was entitled to be in possession of plaint B schedule during her life time and hence so fas as she is alive only she could recover possession from defendant Nos.1 and 3 and not SA No.223 of 1996 11 respondent/plaintiff. Indisputably plaintiff has not challenged that part of judgment and decree of the trial court either by way of an independent appeal or cross objection in A.S.No.30 of 1987. But there is a reason for that. According to the trial court, respondent/plaintiff could not recover possession of the plaint B schedule property during the life time of defendant No.2 in view of the reservation contained in Ext.B2 for possession and enjoyment of the property by her. Now that defendant No.2 expired on 8.9.1995 (after the first appellate court disposed of A.S.No.30 of 1987) that situation no more remains. After the death of defendant No.2, respondent/plaintiff is entitled to take possession of plaint B schedule. The question is whether defendant Nos.1 and 3 who are found to have no semblance of right over plaint B schedule should be allowed to continue enjoyment of plaint B schedule property keeping its rightful owner outside for the mere reason that the rightful owner - respondent/plaintiff has not challenged that part of the judgment and decree of the trial court against him at a time when defendant No.2 was alive and he could not have, on his own got possession of plaint B schedule as the trial court has held. Should the parties be driven to another round of litigation? Order 41 Rule 33 of the Code empowers court of appeal, which should include the second appellate court also to pass any decree or make any order which ought to have been passed or made by the court of first instance even in favour of a respondent who could have, but did not prefer an appeal or cross objection. The rule is intended to do complete justice between parties and to avoid multiplicity of suits. The decisions SA No.223 of 1996 12 in V.M.Mathew v. Eliswa and others and Oriental Insurance Co. v. Mary Pushpam (supra) have taken that view. It is a different matter, whether trial court should have subject to the life interest of defendant No.2 allowed respondent/plaintiff to recover possession of plaint B schedule from defendant Nos.1 and 3 and whether respondent/plaintiff could have successfully challenged that part of the decree against him. This Court has to take note of the subsequent event - death of defendant No.2 - which even on the view taken by the trial court enables the respondent/plaintiff to get possession of plaint B schedule. This court cannot, ignoring the factual and legal position and the death of defendant No.2 in the meantime, allow appellants/defendant No.3 and other legal representatives of defendant No.1 to be in unlawful possession of plaint B schedule and keep the rightful owner out of possession and instead ask him to file a separate suit and get possession of plaint B schedule. The provisions of Order 41 Rule 33 of the Code which is founded on the principle of justice, equity and good conscience should come to the rescue of respondent/plaintiff. On the facts and circumstances I am satisfied that this is a fit case to invoke the power under Order 41 Rule 33 of the Code. Therefore invoking that power I allow the respondent/plaintiff to recover possession of plaint B schedule property from the appellants/defendant No.3 and other legal representatives of defendant No.1 subject to their right to get value of improvements as found by the trial court and which is not under challenge. Resultantly Second Appeal fails and it is dismissed. I.A.No.286 of 2010 is SA No.223 of 1996 13 allowed and accordingly respondent/plaintiff is given a decree for recovery of possession of plaint B schedule from the appellants/defendant No. 3 and other legal representatives of defendant No.1 subject to their right to get value of improvements from respondent/plaintiff as found by the trial court which shall be ascertained in execution proceedings. Parties shall suffer their cost in this appeal. C.M.P.No.567 of 1996 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.223 of 1996 14 Thomas P. Joseph, J. S.A.No.223 of 1996 JUDGMENT 10th March, 2010.