IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 RSA.No. 950 of 2010() --------------------- AS.166/2006 of DISTRICT COURT, PATHANAMTHITTA OS.70/2006 of MUNSIFF COURT,PATHANAMTHITTA .................... APPELLANT/2ND APPELLANT/3RD DEFENDANT --------------------------------------------------------- M.P.KURIAN, AGED 56, S/O.PHILIPOSE, MAPPUTHUNDIYIL VEEDU, PERUMPETTY MURI AND VILLAGE. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR RESPONDENT(S): --------------- 1. ALICE MATHAI, AGED 66, W/O.MATHAI, MAPPUTHUNDIYIL VEEDU, PERUMPETTY MURI AND VILLAGE. 2. SHEELA THOMAS, AGED 39, MAPPUTHUNDIYIL VEEDU, PERUMPETTY MURI AND VILLAGE. 3. SHEEBA THOMAS, AGED 35, MAPPUTHUNDIYIL VEEDU, PERUMPETTY MURI AND VILLAGE. 4. SHINU SHEETHU MATHEW, AGED 27, MAPPUTHUNDIYIL VEEDU, PERUMPETTY MURI AND VILLAGE. 5. AMMINI ABRAHAM, AGED 66, VADAKKEDEATHU, KANGAZHA P.O., KOTTAYAM. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.950 OF 2010 -------------------------------- Dated this the 12th day of October 2010 JUDGMENT Appellant is the additional third defendant in O.S No.70/2006 on the file of the Munsiff Court, Pathanamthitta. The above suit was one for declaration of title, injunction and recovery of possession. Sole plaintiff and also the first defendant passed away during the pendency of the suit before the trial court. The respondents 2 to 4 had been impleaded as additional plaintiffs 2 to 4 as the legal heirs of the plaintiff and second and third defendants already in the suit, along with another impleaded additional 4th defendant, as the legal heirs of the deceased first defendant. 2. Late Mathai, the plaintiff in the suit was the son of the first defendant. Additional second defendant is his widow and additional defendants 3 and 4 are the other two children of the first defendant who passed away pending suit. Admittedly, first defendant had executed Ext.A1 settlement deed in favour of the plaintiff, Mathai (late), in respect of the plaint schedule properties, three items. That settlement deed was executed reserving the right of the donor and also his wife, first and additional second defendant respectively, to take the yield from the properties and reside in the family house situate in one of the above items. After R.S.A No.950 OF 2010 - 2 - the acceptance of Ext.A1 deed, and such settlement came into effect, it is the case of the plaintiff that the first defendant executed B1 cancellation deed. On the same day of execution of B1 cancellation deed, the first defendant executed another settlement deed B2 in respect of item No.2 property in favour of the additional third defendant. Pursuant to such deeds, the additional third defendant trespassed upon item No.2 and reduced that property into his possession, according to the plaintiff. Impeaching B1 cancellation deed and also B2 settlement deed as void, inoperative and not binding, the plaintiff laid the suit for declaration of his title over the plaint properties item Nos.1 to 3, for recovery of item No.2 from additional third defendant and also a decree of injunction against that defendant from committing waste in that property. Defendants 1 to 3 filed a joint written statement resisting the suit claims contending that A1 was subject to certain conditions, enabling the donor to cancel the deed on breach of any of such conditions. A1 settlement deed was subject to the condition that the plaintiff should maintain and look after the first and additional second defendant, his parents. That condition was violated and, further, the plaintiff had assaulted those defendants and forcibly ejected them from the residential building, and thereupon, the first defendant R.S.A No.950 OF 2010 - 3 - executed B1 deed cancelling Ext.A1 was the case of the defendants. B2 settlement deed executed pursuant to B1 cancellation deed, it was contended, was valid and unimpeachable. Possession and enjoyment of item No.2 property with the defendants was admitted. The defendants contending that B1 and B2 are valid and binding on the plaintiff questioned his entitlement to seek the reliefs canvassed in the suit. 3. The trial court, after appreciating the pleadings and also the materials tendered in the case, which consisted of PW1 and PW2 and Exts. A1 to A8 for the plaintiffs and also DW1 to DW3 and Exts.B1 and B3 for the defendants, concluded that A1 was an outright gift and not a conditional gift liable to revocation. Observing that there was no reservation in the deed enabling the donor to revoke the gift in the event of any obstruction caused to the defendants 1 and 2 in the enjoyment of the residential building or taking yield from the properties, it was held that even in the event of any such acts by the donee, the plaintiff, causing injury to the defendants 1 and 2, the gift is not liable to be revoked after it came into effect. Taking into account A2, A3 and A4, the tax receipts, evidencing payment of revenue charges over the items covered by A1 deed by the plaintiff, after effecting mutation in his name, and also A8 agreement, it was concluded R.S.A No.950 OF 2010 - 4 - that there was acceptance of the gift and also delivery of the property. Possession over item No.2 property with the defendants being found unauthorised, plaintiffs were allowed to have its recovery on the basis of their title, and also granting the injunction applied for against the defendants. 4. The decree, as above, passed by the trial court, was challenged by defendants 2 and 3 preferring an appeal as A.S No.166/2006 before the Additional District Court, Pathanamthitta. The lower appellate court, after reappreciating the evidence concurring with the findings entered by the trial court, upheld the decree granted to the plaintiffs and dismissed the appeal. The decision so rendered in favour of the additional respondents 1 to 3/additional plaintiffs, is challenged by the appellant/second defendant, in this appeal. 5. I heard the counsel for the appellant on the entertainability of this second appeal which has been filed impeaching the correctness of the findings and decision rendered concurrently by the two courts below. The main thrust of attack levelled against the findings of the courts below is that the interpretation placed over A1 to conclude that it is not an onerous gift was made ignoring the conditions specifically incorporated in such document. The donor/the first defendant, according to the R.S.A No.950 OF 2010 - 5 - learned counsel, had an absolute right to cancel A1 deed in the event of breach of conditions specifically incorporated under that deed and that being so, B1 cancellation deed and B2 settlement deed executed by him, later, were proper, valid and correct. In examining the challenge mooted by the counsel that A1 was an onerous gift, and so much so, on breach of the condition stipulated, it could be cancelled by the donor two material circumstances borne out by that deed, over which there was no dispute, as could be seen from the judgment of the courts below, have much significance. There was an outright delivery of possession of the properties covered by A1 deed in favour of the donee, the first plaintiff, is amply demonstrated by the statement incorporated in the deed directing the donee to have possession after effecting mutation in his name and pay revenue charges and enjoy the property as its title holder. The trial court, in para 12 of its judgment, has quoted the recital in A1 deed which amply demonstrate that there was delivery of property to the donee. The other material circumstance is that there was no reservation in the A1 deed enabling the donor to cancel it even in the event of any breach on the part of the donee to maintain and look after his parents, the donor and his wife, or in causing obstruction to them in enjoying the property, which was reserved for life with them in R.S.A No.950 OF 2010 - 6 - the deed. Even assuming that it was a condition under the deed and not a pious wish once the gift had been accepted by the donee and delivery of possession handed over to him, with the title, unequivocally, divested in his favour, the donee has no right to revoke or cancel the gift by a unilateral act of his own. After acceptance of the gift even if it was an onerous gift, and the breach thereof could be canvassed as a ground for revocation, the donor can get it revoked only through court and not on his volition as the title over the property had already passed over to the donee. Though the learned counsel for the appellant has raised a challenge that A1 was not a settlement deed but only an arrangement or entrustment of the property with the first plaintiff, which could be cancelled by the donor I do not find any merit in that line of attack projected against the concurrent decision rendered by the court below. The intention of the executant, the donor, in A1 could be clearly seen from the recital, which finds expression in para 12 of the judgment of the trial court. There was an outright transfer of the title and possession over the property in favour of the donee without any condition whatsoever other than the pious wish expressed that the donee should maintain his parents, the donor and his wife. The concurrent findings entered by the courts below on the disputed issues R.S.A No.950 OF 2010 - 7 - involved in the suit are found to be proper, legal and correct and in accordance with the settled legal principles of law. No question of law leave alone any substantial question of law emerge for consideration in the present appeal, and as such, it is not liable to be received on file. Appeal is devoid of any merit , and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv