IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 RSA.No. 749 of 2009(S) ---------------------- AS.55/2008 of SUB COURT, PERUMBAVOOR OS.129/2003 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2: --------------------------------------------------- 1. MADHAVI, AGED 51, D/O.KUNJAN, INJAJKALAYIL HOUSE NOW RESIDING AT VAZHAPPILLIL HOUSE KAITHAKKADU KARA, PATTIMATTOM VILLAGE. 2. MINI, D/O.KUNJAN, INJAJKALAYIL HOUSE NOW RESIDING AT VAZHAPPILLIL HOUSE KAITHAKKADU KARA, PATTIMATTOM VILLAGE. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENTS/PLAINTIFFS AND DEFENDANTS 3 TO 7: ----------------------------------------------------------- 1. GOURI, AGED 71 YEARS W/O.MADHAVAN, VAZHAPPILLY HOUSE KAITHAKKADU KARA PATTIMATTOM VILLAGE. 2. GOPALAKRISHNAN, AGED 42 YEARS, S/O.MADHAVAN, VAZHAPPILLY HOUSE KAITHAKKADU KARA PATTIMATTOM VILLAGE. 3. SIVAN, AGED 39 YEARS, S/O.MADHAVAN, VAZHAPPILLY HOUSE KAITHAKKADU KARA PATTIMATTOM VILLAGE. 4. GEETHA, AGED 33 YEARS, D/O.MADHAVAN, VAZHAPPILLY HOUSE KAITHAKKADU KARA PATTIMATTOM VILLAGE AND W/O.REJI, PAZHAMPILLI HOUSE, KARUKAPPILLY KARA, AIKKANADU VILLAGE. RSA.No. 749 of 2009(S) 2 5. NARAYANAN, AGED 84 YEARS, S/O.KUNJAN, VAZHAPPILLY HOUSE, KAITHAKKADU KARA, PATTIMATTOM VILLAGE. 6. SUPRAN, AGED 79 YEARS, S/O.KUNJAN, VAZHAPPILLY HOUSE, KAITHAKKADU KARA, PATTIMATTOM VILLAGE. 7. BALAN, AGED 74 YEARS, S/O.KUNJAN, VAZHAPPILLY HOUSE, KAITHAKKADU KARA, PATTIMATTOM VILLAGE. 8. THANKAMMA, AGED 77 YEARS, W/O.NARAYANAN, KAKKATTUKUDY HOUSE, KAITHAKKADU KARA, PATTIMATTOM VILLAGE. 9. MEENAKSHI, AGED 72 YEARS, W/O.NARAYANAN, KAKKATTUKUDY HOUSE, KAITHAKKADU KARA, PATTIMATTOM VILLAGE. ADV. SRI.T.A.UNNIKRISHNAN FOR CAVEATOR SRI.T.A.UNNIKRISHNAN FOR CAVEATOR SRI.P.P.BIJU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ----------------------------------- R.S.A.No.749 of 2009 ------------------------------------- Dated this the 24th day of July, 2009 JUDGMENT The defendants 1 and 2 in O.S.No.129 of 2003 on the file of the Munsiff's Court, Perumbavoor are the appellants. The appeal is directed against the judgment and decree in A.S.No.55 of 2008 on the file of the Sub Court, Perumbavoor. The suit is for declaration of title and recovery of possession. The suit was decreed and the same was confirmed in appeal. Hence, the second appeal. 2. The first plaintiff and plaintiffs 2 to 4 are the wife and children of deceased Madhavan. According to the plaintiffs the property which originally belonged to late Madhavan was gifted in favour of plaintiffs 2 to 4 as per Ext.A1 settlement deed of 1977. It is further alleged that the property is in possession and enjoyment of plaintiffs 2 to 4 and the deceased Madhavan till the death of Madhavan on 25/11/1999. Item 3 of plaint schedule property which belonged to the mother of deceased Madhavan. On her death her children orally partitioned the property. That deceased Madhavan obtained 3 cents out of item No.3 in the partition and the said property is Item No.3. The plaintiffs R.S.A.No.749 of 2009 2 contended that they are in possession and enjoyment of Item No3 as well. It is also averred in the plaint that there is a residential house in Item No.2 and that deceased Madhavan renovated the said building, the teashop in item No.1 and dismantled the residential house in Item No.2 in the year 1986. 3. According to the plaintiff, the first defendant is not the legally wedded wife of deceased Madhavan and second defendant is not his daughter. The suit was filed stating that the defendants 1 and 2 forcibly occupied the possession of the plaint schedule properties at the instigation of defendants 3,4 and 5. The suit was filed for declaration of the title over 3 items of properties and for recovery of possession. The defendants contented that the Ext.A1 settlement deed is not with respect to item Nos.1 and 2 of plaint schedule properties and even assuming that it is in respect of the said items, since the donee has not accepted the gift deed and therefore plaintiff's claim of title on the strength of Ext.A1 with respect to item No.3 cannot stand. It is contended that item No.3 is not covered by gift deed and is in possession and enjoyment of the defendants for the last R.S.A.No.749 of 2009 3 several years. According to the defendants, the deceased Madhavan and the first plaintiff separated their status as husband and wife and that it is recorded in the compromise decree passed by civil suit. Subsequent to their separation, the deceased Madhavan married the first defendant and the second defendant is born in their wedlock. 4. Before the trial court, the parties adduced oral and documentary evidence. PWs.1 to 4, Dws.1 and 2, Exts.A1 to A13, Exts.B1 to B3, C1, C1(a), C1(c) and C1(d) are marked. The trial court elaborately considered the question as to whether the plaintiffs have title over the plaint schedule items and whether they are entitled to the reliefs sought for or not. After examining, the evidence on record and after discussing the oral evidence adduced by the parties, the trial court held that the circumstances and conduct of the parties positively indicates that minor donee has accepted the gift and circumstances shows that there is an implied acceptance. The very fact that the life estate is reserved for the father in Ext.A1 gift deed, also go to show that the father continued to possess the property taking R.S.A.No.749 of 2009 4 usufructs for and on behalf of the minors. The suit was filed immediately after the death of deceased Madhavan. 5. The plaintiffs admitted that defendants 1 and 2 are in possession of items 1 to 3. It is proved that deceased Madhavan executed Ext.A1 gift deed with respect to item Nos.1 and 2 in favour of plaintiffs 2 to 4. The trial court accepted the versions of the plaintiffs and held that plaintiffs 2 to 4 accepted the gift and resided in the property and therefore plaintiffs are having title over plaint A schedule items 1 and 2. With respect to item No.3 the court held that the plaintiffs failed to adduce satisfactory evidence to prove title and therefore the plaintiffs are not entitled to declaration of title and recovery of possession of item No.3. The trial court decreed the suit in part as stated above and passed a consequential injunction. 6. The appellate court at the instance of defendants 1 and 2 re-appreciated the evidence and concluded that the plaintiffs who are the wife and children of deceased Madhavan are entitled to recover plaint schedule items 1 and 2. The appellate court also considered the commissioners report and R.S.A.No.749 of 2009 5 plan. C1 and C1(a) to shows that the plaintiffs are having title for the yellow shaded portion shown in Ext.C1(a) plan. The appellate court agreed with the findings of the trial court and held that the plaintiffs are entitled to the reliefs only in respect of item Nos.1 and 2 and not in respect of item No.3. 7. The question is whether the title passes to the donees under Ext.A1 was considered by the fact-finding courts in detail. At the execution of Ext.A1 settlement deed the plaintiffs 2 to 4 are minors. The father executed settlement deed in favour of the minor children and reserved the life estate in his favour. Naturally he is expected to continue in possession and enjoyment of the properties for the purpose of taking usufructs of the property and also for protecting the property for and on behalf of the minors after executing Ext.A1. It is natural that the father continued possession, but such possession can only be considered as possession for and on behalf of his minor children who are donees and beneficiaries of Ext.A1. If the intention of the father is not to pass title to the donees there is no reason why he had executed the settlement deed. He himself has R.S.A.No.749 of 2009 6 executed the settlement deed and he himself has possessed the property and improved the property which shows that his possession and enjoyment is for and on behalf of the minor. Therefore, it is very clear that the minor children had accepted the gift by implication. I find that the findings entered by the courts below are on the correct lines. I find no reason to interfere with the orders passed by the courts below. No sufficient grounds are made out by the appellants to invoke the jurisdiction under Section 100 of C.P.C. No question of law much less any substantial question of law arises for consideration in this appeal. Hence the appeal is dismissed in liminie. 8. Learned counsel for the defendants/appellants requested this court that the appellants are in occupation of the items 1 and 2 for the last several decades and requested this court to grant sufficient time for vacating the properties in order to find out alternate accommodation. The request being reasonable is accepted. One year period is granted to the appellants to hand over possession of the plaint items 1 and 2 on R.S.A.No.749 of 2009 7 condition that the appellants shall file an undertaking in the form of an affidavit agreeing to hand over vacant possession of items 1 and 2 within the time fixed by this court. The affidavit shall be filed before the execution court within a period of 3 weeks from today. If an undertaking is so given the execution court shall be keep in abeyance execution proceeding for a period of one year. HARUN-UL-RASHID, JUDGE skj.