IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH FEBRUARY 2010 / 16TH MAGHA 1931 RSA.No. 1248 of 2009() ---------------------- AS.200/2006 of DISTRICT COURT, PALAKKAD OS.93/2001 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/ APPELLANT/PLAINTIFF: ----------------------------- ANDAVAN, S/O. PARUKUTTY NEITHIARAMMA, RESIDING AT KONDAPADATH, AKATHETHARA AMSOM, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP RESPONDENTS/ RESPONDENTS/DEFENDANTS: -------------------------- 1. JANAKI, W/O. RAMAN NAIR, RESIDING AT RAILWAY QUARTERS, RAILWAY COLONY, AKATHETHARA AMSOM, PALAKKAD TALUK. 2. MEENA, D/O. SUBADHRA, RESIDING AT ITTERY ROAD, PAZHANI ADIVARAM, TAMILNADU. 3. PUSHPA, W/O. BALAN, RESIDING AT PUTHIYEDATH, ERATHIKKAL POST, KOZHIKODE TALUK. 4. MALLIKA, D/O. SUBADRA, RESIDING AT ETTARI ROAD, PAZHANI, ADIVARAM, TAMILNADU. 5. VIJAYA, D/O. SUBADRA, RESIDING AT ETTARI ROAD, PAZHANI ADIVARAM, TAMKILNADU. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2010, ALONG WITH RSA NO. 1290 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.Nos.1248 & 1290 of 2009 --------------------------------------- Dated this 05th day of February, 2010 COMMON JUDGMENT These second appeals arise from common judgment and decree in O.S.Nos.93 of 2001 and 357 of 2000 of the court of learned Sub Judge, Palakkad. O.S.No.357 of 2000 is the leading case and hence the parties are referred to as plaintiffs and defendant as in that case. 2. The short facts of the cases are: Plaint schedule item No.1 in O.S.No.357 of 2000 originally belonged to the father of plaintiffs and defendant, Kunju Menon as per document No.267 of 1961 while item No.2 was purchased by Parukutty Neithiaramma, mother of plaintiffs and defendant as per document No.497 of 1976. Later, Kunju Menon and his wife, Parukutty Nethiaramma obtained purchase certificate for the suit properties in O.A.No.1755 of 1970. Kunju Menon bequeathed his property (item No.1) in favour of his wife who later executed Ext.A1, gift deed dated 31-05-1984 in favour of plaintiffs reserving a right for her to reside in the house in item No.1. Plaintiffs say that they accepted the gift and it took effect. While so the mother (Parukutty Nethiaramma) at a time when she was staying with the defendant under undue influence cancelled Ext.A1, gift deed and executed Ext.B1, Will dated 26-09- 1992 bequeathing the schedule properties in favour of defendant R.S.A.Nos.1248 and 1290 of 2009 2 (Parukutty Nethiaramma died on 05-04-1998). Plaintiffs say that cancellation and bequest are invalid since Parukutty Nethiaramma had no right, title, interest or possession of the suit properties to be cancelled or bequeathed in favour of defendant. Plaintiffs sought for declaration of their title and recovery of possession with mesne profits. Defendant in O.S.No.357 of 2000 filed O.S.No.93 of 2001 against the plaintiff in the former suit for decree of prohibitory injunction to protect his possession on the strength of the Will executed by Parukutty Nethiaramma. He claimed that the mother executed Ext.A1, gift deed on the belief that plaintiffs would look after her but that was not done. She had to file M.C.No.101 of 1992 against plaintiff No.2 seeking maintenance. The mother continued to be in possession and enjoyment of the suit properties. She had no intention to gift the properties to the plaintiffs. Trial court found that cancellation of Ext.A1, gift deed is not valid, plaintiffs have title over the suit property on the strength of Ext.A1 which had taken effect and accordingly granted decree in their favour in O.S.No.357 of 2000. Consequently O.S.No.93 of 2001 was dismissed. First appellate court has confirmed the findings, judgment and decree and hence these second appeals at the instance of defendant in O.S.No.357 of 2000 (R.S.A.No.1290 of 2009) and plaintiff in O.S.No.93 of 2001 (R.S.A.No.1248 of 2009). Learned Senior Advocate appearing for the appellant would urge the following substantial questions of law for consideration; whether courts R.S.A.Nos.1248 and 1290 of 2009 3 below are justified in holding that Ext.A1 is not a conditional gift in the light of the decision in Naramadaben Maganlal Thakker Vs. Pranjivandas Maganlal Thakker (1997(2) SCC 255) and; whether courts below erred in holding that cancellation of Ext.A1 is invalid. Learned Senior Advocate placing reliance on the above decision and the decision in Subbegowda Vs. Thimmegowda (2004(9) SCC 734) contended that Ext.A1 is a conditional gift, the condition was not performed by respondents-donees and hence the donor (Parukutty Nethiaramma) was competent to cancel the same. Learned Senior Advocate has taken me through Exts.A1 and A4 the gift deed and cancellation deed. 3. In Subbegowda Vs. Thimmegowda (supra) it is stated about the power of the executant to cancel the settlement deed and it is stated that it would depend on the intention of the executant which can be found from terms of the document and prevailing circumstances. It is also stated that a conditional transfer or settlement accompanied by conditions is permissible. In paragraph 9 of the decision it is held that a conditional transfer or settlement accompanied by conditions is not unknown to law and that it is permissible in law to annex or encumber any grant or alienation with condition or limitation which will operate and the court will give effect to it unless there is some provision of law which annuls or invalidates such conditions, restraint or limitation. In Naramadaben Maganlal R.S.A.Nos.1248 and 1290 of 2009 4 Thakker Vs. Pranjivandas Maganlal Thakker (supra) it is held that when the gift is conditional and the donor retained possession and enjoyment of the property during his lifetime, a subsequent deed executed by the donor within a month of canceling the settlement deed for non fulfillment of the conditions subject to which gift was made is valid. Learned Senior Advocate referred me to the observations in paragraph 7 of the decision where it is stated that when the gift deed conferred only a limited right upon the donee and it was conditional, it is open to the donor to cancel the gift for non performance of the condition. Now question is whether the contention of the appellant based on the above decision can be accepted. 4. So far as Ext.A1, gift deed is concerned it is seen from the document that the donor (Parukutty Nethiaramma) has conveyed her right, title, interest and possession of the suit properties absolutely in favour of the donees (respondents-plaintiffs in O.S.No.357 of 2000 and defendants in O.S.No.93 of 2001). She has divested herself of all her right, title, interest and possession subject to the reservation that she will have a right to reside in the house in the suit properties. It is stated in Ext.A1 that respondents-donees will have the right to dispose of the property absolutely (of course, subject to the right of residence for donor in the house in question) and that they could effect mutation of the properties and pay revenue. Thus going by Ext.A1, there is an absolute transfer of right, title, interest and possession of donor in R.S.A.Nos.1248 and 1290 of 2009 5 favour of respondents-donees and what is retained by the donor is only a right to reside in the house in question. Learned Senior Advocate has referred me to clause 3 of Ext.A1 where donor has expressed her belief that respondents-donees would maintain her as before. According to learned Senior Advocate reading clause 3 of Ext.A1 would show that it was subject to a condition of maintenance of the donor that the gift was made and that condition is violated and hence it was open to the donor to cancel the gift. Learned Senior Advocate has also taken me through Ext.A4, copy of cancellation deed where the donor has stated so. But on going through Ext.A1, in particular clause 3 therein relied by the appellant I find myself unable to agree with the argument of learned Senior Advocate. What I find in clause 3 of Ext.A1 is only the expression of a belief by the donor that respondents-donees would maintain her as before. Further down it is stated that the donor wanted to transfer the properties by way of gift in favour of respondents-donees and for accomplishment of that desire, she has executed the gift deed. I am unable to understand clause 3 of Ext.A1 as providing a condition for the gift. Ext.A1 is not a conditional gift nor does it reserve any right of cancellation with the donor. The donor, at the time of executing the gift deed may have had the belief that respondents would maintain her as before, but that is different from saying that the gift is conditional on the respondents-donees maintaining the donor. R.S.A.Nos.1248 and 1290 of 2009 6 5. It is then contended by learned Senior Advocate that the subsequent conduct of the donor must also be taken into account. Learned Senior Advocate submitted that on the failure of respondents- donees to maintain her, the donor (mother) had to file a petition before the learned Magistrate seeking maintenance under section 125 of Code of Criminal Procedure. Subsequent conduct can be admitted in evidence against the maker of the document and not in his favour as held in Raghavan Vs. Chirutha (1991(2) KLT 385, pr.5). Hence filing of maintenance petition by the donor subsequently cannot be taken in her favour to hold that Ext.A1, gift deed is conditional. So far as acceptance of the gift is concerned, it has come in evidence that respondents-donees effected mutation in their names and are paying tax for the land and building in question as proved by Exts.A2 and A3 (even before the death of the donor). This court has held that so far as a gift which is not onerous is concerned only slight evidence of its acceptance is sufficient and even the recital in the gift deed in such situations is sufficient (See Asokan Vs. Lakshmikutty (2008(1) KLT 54) and City Montessori School Vs. State of U.P (2009(2) KLT S.N. 8). It is also held by this court in Picha Gangadharan Vs. Pachi Kamalakshy and Others (1993(2) KLJ 974) and Gopalakrishnan Vs. Rajamma (2006(4) KLT 377) that once the gift is accepted donor in the absence of any clause enabling him to do so, cannot cancel the gift. Cancellation in such situations can only be R.S.A.Nos.1248 and 1290 of 2009 7 through the process of court. In the above factual and legal position cancellation of Ext.A1 as rightly found by the courts below is illegal and did not affect the gift as per Ext.A1. Ext.A4, cancellation deed and Ext.B1, Will subsequently executed by the donor have no legal effect. Decisions relied on by learned Senior Advocate have no application to the facts of the case. On going through the judgments under challenge and hearing learned Senior Advocate appearing for the appellant I do not find any substantial question of law involved in the second appeal requiring decision. Resultantly these second appeals fails and are accordingly dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/