IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 SA.No. 291 of 1995(B) --------------------- AS.55/1986 of SUB COURT,KOTTARAKKARA OS.129/1983 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANTS:ADDL.RESPONDENTS 2 & 3: LRS OF PLAINTIFF: ------------------------------------------------------------------------------------------------- 1. NANI, W/O.CHELLAPPAN, KOLLUVILA THEKKETHIL THOTTUMKARA VEEDU, MATHILIL CHERRY, THRIKKADAVOOR, KOLLAM DISTRICT. 2. AMBIKA, ...DO...DO.... BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) RESPONDENTS: APPELLANTS:DEFENDANTS: -------------------------------------------------------------------- 1. CHELLAMMA, PARAKKETTU VEEDU, AMBALAMKUNNU, POOYAPPALLY, FROM CHALUVILA VEEDU, EDAKKODU, EZHUKONE VILLAGE. 2. KARUMBAN SARNGADHARAN,...DO.... 3. NARAYANAN PURUSHOTHAMAN, ..DO... 4. KOCHIKKA SANTHA, ...DO... R1 TO R4 BY ADV. SRI.C.V.VASUDEVAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO. 291 OF 1995 ------------------------------------------ Dated 14th March 2008 J U D G M E N T Legal heirs of plaintiff in O.S.129/1983 on the file of Munsiff court, Kottarakara are the appellants. Respondents are defendants in the suit. Suit was instituted for declaration of title and recovery of possession. Plaint schedule property admittedly originally belonged to Ayyan Karumban as per registered partition deed No.3516/1120. Kochayya Kochikka is his wife and Bhargavi the daughter. Ext.A2 gift deed was executed on 13/3/1963 in favour of Kochikka and Bhargavi. Under Ext.A2 properties were gifted to the wife and daughter. Subsequently under Ext.A1 sale deed dated 9/6/1983, the donees assigned the property in favour of the plaintiff. Plaintiff is claiming title to the plaint schedule property under Ext.A1. Karumban subsequent to Ext.A2, canceled Ext.A2 by executing Ext.B10 registered cancellation deed dated 23/6/1975. Later he executed Ext.B1 settlement deed in favour of respondents 1 and 2. SA 291/95 2 First respondent is alleged to be his concubine and second respondent his son. Later under Ext.B11 sale deed dated 7/6/1983 respondents 1 and 2 sold the property in favour of respondents 3 and 4 who are in possession of the plaint schedule property. Suit is filed for declaration of title of appellant under Ext.A1 and for recovery of possession of the property from the respondents. Appellants contended that under Ext.A2 sale deed Karumban gifted the property and the gift deed was accepted by the donees Kochikka and Bhargavi and they paid tax under Ext.A3 receipt and that gift thereafter cannot be cancelled by Karumban and under Ext.B1 respondents 1 and 2 did not derive any title. It was contended that under Ext.A2 property was already transferred in favour of the wife and daughter and it was accepted and so Karumban is not competent to execute Ext.B1 settlement deed and under Ext.B1 deed respondents 1 and 2 or under Ext.B11 sale deed executed by them, respondents 3 and 4 did not derive title to the property and as title vests with plaintiff under Ext.A1 he is entitled to the decree for declaration of title and for recovery of possession. Respondents contended that though Ext.A2 document was executed, it was not acted upon or accepted and Karumban SA 291/95 3 continued in possession of the property and Ext.A2 it was later canceled under Ext.A10 and Karumban is competent to cancel Ext.A2 and execute Ext.B1 settlement deed and plaintiff being the assignee of the wife and children of Karumban, he is not entitled to claim any title to the property and suit is to be dismissed. 2. Learned Munsiff on the evidence of Pws.1 to 3, Dws.1 to 3, Exts.A1 to A3, B1 to B13 upheld the case of plaintiff that Ext.A2 is a gift deed and gift was accepted by the donees and held that as it was accepted and acted upon, donor Karumban is not competent to execute Ext.A10 cancellation deed and respondents 1 and 2 did not get any title under Ext.A1 and as their assignees respondents 3 and 4 had no title. As plaintiff has title a decree declaring the title and recovery of possession was granted. Respondents challenged the decree and judgment before Sub court, Kottarakara in A.S.55/1986. Learned Sub Judge on re-appreciation of evidence found that though Ext.A2 is styled as a gift deed, it is only a Will and no right in present was transferred to the wife and children and under Ext.A2 title will vest with the donees only on the death of the donor Karumban and Karumban is competent to cancel Ext.A2 under Ext.A10 and SA 291/95 4 execute Ext.B1 settlement deed and therefore plaintiff is not entitled to the decree granted by the trial court. Appeal was allowed. Judgment of the trial court was set aside. It is challenged in the second appeal. 3. Second appeal was admitted formulating following substantial questions of law. Whether first appellate court was correct in interpreting Ext.A2 as not a gift deed but a testamentary document based on certain sentences in the document without looking into the document as a whole. 4. Learned counsel appearing for appellants and respondents were heard. 5. Learned counsel appearing for appellants vehemently argued that the first appellate court did not properly appreciate Ext.A2 and relying on certain recitals in Ext.A2, without appreciating the document as a whole, found that no right in presenti was transferred in favour of the wife and daughter of Karumban. It is argued that under Ext.A2 Karumban transferred his right and title to the wife and daughter and he only retained joined possession till his death and so the finding of the first appellate court is not sustainable. Learned counsel SA 291/95 5 appearing for respondents argued that as rightly found by the first appellate court under Ext.A2 the title of the executent Karumban was not divested and title would vest with the wife and daughter only after the death of the executent and it is not a gift but only be a Will and appellants cannot claim any title to the plaint schedule property and suit was rightly dismissed. 6. The only question for consideration is whether Ext.A2 is a gift deed or is only a testamentary document. Ext.A2 was executed by the husband in favour of his wife and daughter on 13/3/1963. Relevant recitals in Ext.A2 was quoted by the first appellate court. It was found that under Ext.A2 the title of the first respondent was not transferred in presenti to his wife and daughter and instead there is specific recital that the title will vest on them only on the death of the executent and hence it is not a gift deed. 7. If Ext.A1 is to be treated as gift under the document, title which vested with Karumban is to be divested in presenti and to be vested with the donees, his wife and daughter. Ext.A2 shows that the mutation is to be effected only after death of the executent and not earlier. Even the liability to pay tax by the wife and SA 291/95 6 daughter would arise only after the death of the executent Karumban. As rightly found by the first appellate court, it is absolutely clear from Ext.A2 that there was no divesting of title in presenti from Karumban or vesting of that title on his wife and daughter. Though it is styled as gift deed, in effect it is not gift and could only to be interpreted as a testamentary document. If that so, as rightly found by the first appellate court Karumban is competent to cancel the same or transfer the property, as done under Ext.B1. As Karumban has absolute right over the property till his death and that title was not divested under Ext.A2, he is competent to execute Ext.B1 settlement in favour of respondents 1 and 2 and they in turn are entitled to transfer it in favour of respondents 3 and 4 under Ext.B11 sale deed. As the wife and daughter of Karumban could claim title only, if the plaint schedule property was remained with Karumban at the time of his death, and before that property was transferred by Karumban under Ext.B1, respondents 1 and 2, wife and daughter cannot claim title to the property. So also under Ext.A1 sale deed executed by respondents 1 and 2, appellant is not entitled to claim title to the property. First appellate SA 291/95 7 court rightly dismissed the suit. Appeal fails and is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 291/95 8 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.291 OF 1995 14th March 2008 ============================