IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 SA.No. 229 of 1998(B) --------------------- AS.40/1995 of II ADDL.SUB COURT,KOZHIKODE OS.38/1990 of ADDL.M.C.,KOZHIKODE-II .................... APPELLANT(S): -------------------- CHERUKAT VIJAYALAKSHMI, AGED 45 YEARS, D/O LAKSHMIKUTTY AMMA, RESIDING AT THIRUVANNUR, PANNIYANKARA AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON RESPONDENT(S): ----------------------- CHERUKAT GOPALAKRISHNA MENON, AGED 69 YEARS, S/O GOPALA MENON, RESIDING AT THIRUVANNUR, PANNIYANKARA AMSOM, DESOM, KOZHIKODE TALUK. ADV. SRI.B.G.BIDAN CHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- S.A No.229 OF 1998 -------------------------------- Dated this the 7th day of September 2010 JUDGMENT The second appeal is filed by the defendant in O.S No.38/1990 of the Additional Munsiffs Court, Kozhikode challenging the concurrent decision rendered by the court below granting a decree in favour of the respondent/plaintiff cancelling Ext.A2 gift deed in favour of the plaintiff/appellant. Plaintiff/respondent, in his suit, over and above seeking cancellation of Ext.A2 settlement deed executed by him in favour of the defendant sought for a decree of perpetual prohibitory injunction as well against the defendant to restrain her from trespassing upon or interfering with his possession and enjoyment over the plaint property. Though the trial court had granted a decree of injunction as well, the lower appellate court, in the appeal preferred by the appellant, taking note that she is residing in the building comprised in the schedule property, and further, by virtue of Ext.B1 settlement deed executed by her mother, she is a coowner of the property vacated that decree of injunction. However, the decree granted in favour of the plaintiff/respondent cancelling Ext.A2 settlement deed in favour of the appellant/defendant was confirmed by the lower appellate court also dismissing the appeal of the appellant challenging that part S.A No.229 OF 1998 - 2 - of the decree. Concurrent decision by the two courts granting the plaintiff the decree cancelling Ext.A2 settlement deed is challenged in this appeal. 2. Plaintiff is the maternal uncle of the defendant. Some of the undisputed facts involved in the case show that the property inclusive of the plaint property belonged to one Ramunni Menon, the maternal uncle of plaintiff. The defendant is admittedly a physically challenged lady who is a spinster, aged 36 years at the time when Ext.A2 settlement deed was executed in her favour. She is the daughter of Lakshmikutty Amma, the sister of the plaintiff. Ramunni Menon, maternal uncle of the plaintiff and also Lakshmikutty Amma, executed Ext.A1 will in favour of six persons, the children of his sister, bequeathing in their favour equally the properties covered by that will. One among the legatees under the will namely Unnikrishna Menon died issueless as a bachelor. His rights under the will also devolved upon the other legatees, plaintiff, Lakshmikutty Amma and her two sisters, namely Janakikutty Amma and Narayanikutty Amma and Ravunnikutty Menon (PW2). The will came into effect on the death of Unnikrishna Menon. But, admittedly the properties covered by the will remained as undivided with the legatees S.A No.229 OF 1998 - 3 - enjoying them as tenants in common. Plaintiff who obtained 1/5 right over the property under the bequest covered by Ext.A1 will and also later as a legal heir of his brother Unnikrishna Menon, executed Ext.A2 deed settling his share in the property in favour of the defendant. However, two years later, under Ext.A3 registered deed, he cancelled Ext.A2 settlement deed. 3. Suit was instituted against the defendant for a decree to cancel Ext.A2 gift deed contending that it has not come into effect, and for injunction against trespass as indicated earlier. The defendant resisted the suit contending that the gift accepted by her is not liable to be cancelled or revoked. The original of the gift deed, according to the defendant, was handed over to her soon after its registration. But, later, surreptitiously it was taken away by the plaintiff who also was an occupant of the residential building with her, situate in the plaint property when he had left that house after picking up a quarrel with some of the inmates. After execution of Ext.A2 settlement deed in her favour, the defendant contended, the plaintiff has no subsisting title, right or interest over the property. 4. On the issues settled over the pleadings of the parties, both sides let in oral and documentary evidence to substantiate S.A No.229 OF 1998 - 4 - their respective case. Plaintiff examined two witnesses including himself, as PW1 and PW2, and got exhibited Ext.A2 to A5 series. The defendant examined herself as DW1 and tendered Ext.B1 to B3 towards documentary evidence to substantiate her contentions raised in the suit. 5. PW2 is the brother of the plaintiff, who was an attesting witness to Ext.A2 registered settlement deed and also later, got it back from the Sub Registry office. He also supported the case of his brother, the plaintiff, that Ext.A2 settlement deed never came into effect and it was not accepted by the defendant. The evidence tendered by the plaintiff as PW1 and also his brother PW2 coupled with the revenue receipts and building tax receipts produced by the plaintiff persuaded the trial court to reach a conclusion that despite the execution of Ext.A2 registered settlement deed the plaintiff continued to retain title, possession and enjoyment over the property covered by that deed and that settlement deed was not accepted nor acted upon by the defendant. The defendant has not remitted any revenue charges or building tax in her name after Ext.A2 settlement deed was taken as a material circumstance by the trial court to conclude that there was no acceptance of the gift by the donee. Conclusion S.A No.229 OF 1998 - 5 - drawn as above by the trial court also found favour with the first appellate court, which also held that the materials placed on record unerringly show that Ext.A2 settlement deed was not accepted and acted upon and, so much so, the plaintiff is entitled to get a decree for concellation of that settlement deed. 6. The crucial question involved in the case whether there was acceptance of the gift by the donee, the defendant, when she is admittedly continuing in occupation of the property covered by Ext.A2 settlement deed with reference to the facts and circumstances as disclosed by other materials tendered in the case evidently was not scrutinised by both the courts below. Ext.B1 is a settlement deed executed by Lakshmikutty Amma, the mother of the defendant in her favour by which whatever property she got as a bequest under Ext.A1 will was settled in favour of the defendant. Ext.B1 settlement deed was executed by the mother of the defendant a few days after the execution of Ext.A2 settlement deed by the plaintiff in her favour. In Ext.B2, specific advertence is made to Ext.A2 settlement deed executed by the plaintiff in favour of the defendant which no doubt is an eloquent circumstance indicating beyond the shadow of doubt that the donee, the defendant, at least knew of Ext.A2 settlement deed in S.A No.229 OF 1998 - 6 - her favour from the date of execution of Ext.B1 deed. To consider the question whether there has been an acceptance of the gift by the donee, needless to point out, slightest evidence of such acceptance would be sufficient. In some cases, even silence may amount to acceptance of the gift provided the donee has enjoyed the gift in her favour. Perusing Ext.A2 gift deed executed by the plaintiff in favour of the defendant, it is seen, it is not coupled with any condition imposing an obligation on the donee to accept the gift subject to such condition. In other words, it is not at all an onerous gift. When it was not an onerous gift, the normal presumption is that the donee in whose favour such a gift has been made would be too willing to accept that gift once he or she comes to have knowledge of such gift. When Ext.B1 settlement deed spells out in unmistakable terms that the execution of Ext.A2 gift deed by the plaintiff in favour of the defendant was known to her mother also it presupposes that execution of Ext.A2 was not a concealed matter, but, a transfer with knowledge of other coowners as well. PW2 was an attesting witness to Ext.A2 settlement deed is yet another circumstance indicating that he too, another coowner of the property, knew of the settlement made by the plaintiff in favour of the defendant. When such be S.A No.229 OF 1998 - 7 - the case, at least two of the coowners knew of Ext.A2 before, and the defendant, the donee, under Ext.B1 settlement deed, at least from the date of execution of Ext.B1. To get the cancellation of Ext.A2 the plaintiff was bound to prove the special circumstances, if any, establishing that there was no acceptance of the Ext.A2 gift by the defendant. Not only that no such circumstance was pleaded in the plaint to prove the nonacceptance of the gift no material whatsoever was placed even to show that the donee despite knowing of the gift would not have accepted the deed in her favour. Remittance of building tax or revenue charges, as evidenced by Ext.A4 and A5 series, by the plaintiff has least significance and value where it is shown that he is the eldest member of the family and, further, an occupant in the building situate in the property which remained undivided under the enjoyment of all the coowners as tenants in common. Oral evidence tendered by the plaintiff as PW1 and PW2, his brother, the attesting witness, in Ext.A2 settlement deed, who later got back that deed from the Sub Registry Office, that the settlement deed in favour of the defendant has not been accepted by her cannot be given any merit or value when the facts and circumstances establish in unerring terms that she knew of the S.A No.229 OF 1998 - 8 - settlement deed at least when Ext.B1 settlement deed was executed by her mother in her favour. This was a case where the settlement deed made in her favour not being an onerous deed could be taken as having been accepted by her on having knowledge of the deed executed by the plaintiff in her favour. Perusing Ext.A2 settlement deed, it is also seen that the donor, the plaintiff, has unequivocally stated that after the execution of the deed he has no further right, title or interest over the property and, further, he is incompetent to question the validity of that document as well. Cancellation of that document by Ext.A3, two years later, is of no consequence at all. Where the plaintiff knew of Ext.A2 settlement deed at least when Ext.B1 was executed in her favour by her mother, with no circumstances indicating either by the terms of Ext.A2 deed or from the materials tendered, that despite having knowledge of Ext.A2 settlement deed there was nonacceptance by the donee, the irresistible conclusion has to be drawn that the settlement was accepted by her on its knowledge. Both the courts below have granted the decree impugned in favour of plaintiff on innocuous circumstances without appreciating the disputed question involved over the acceptance of the gift by the donee in accordance with the legal principles S.A No.229 OF 1998 - 9 - applicable to the case. The decree impugned in the appeal confirming the decree of the trial court is set aside. O.S No.38/1990 on the file of Munsiff's Court, Kozhikode shall stand dismissed. The appeal is allowed direcing both sides to suffer their costs. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A To Judge vdv