IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 RSA.No. 705 of 2009() --------------------- AS.199/2007 of SUB COURT, PERUMBAVOOR OS.44/2005 of MUNSIFF COURT, KOLENCHERRRY .................... APPELLANT/APPELLANT/ADDL.DEFENDANT No.4: -------------------------------------------- SAROJINI, D/O. VALLON, THERUKUZHIYIL HOUSE, MARANGATTULLY KARA THIRUVANIOYOOR VILLAGE, KUNNATHUNANDU TALUK. BY ADV. SRI.SAJEEV KUMAR K.GOPAL SMT.AMBIKA RADHAKRISHNAN RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1,2 &3: ----------------------------------------------------------------------- 1. VASANTHAM W/O. SAJI, AGED 34 YEARS, PEEDIKAPARAMBKIL HOUSE, KUIZHIKAD KARA, PUTHENCRUZ VILLAGE. 2. DISTRICT COLLECTOR, CIVILS STATION KAKKAND, ERNAKULAM FOR KERALA GOVERNMENT. 3. TAHSILDAR, OF KUNNATHUNAD TALUK, TALUK OFFICE, PERUMBAVOOR. 4. VILLAGE OFFICER, VILLAGE OFFICE, THIRUVANIYOOR VILLAGE. ADV. SRI.LAL GEORGE FOR R1 GOVERNMENT PLEADER : L G SURESH BABU FOR R2 TO R4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.705 of 2009 --------------------------------------- Dated this 15th day of October 2009 JUDGMENT Respondent No.1 appears through advocate Lal George. 2. The mother, aggrieved by concurrent findings entered by the courts below that she executed Ext.A1, gift deed No.479/1/2004 dated 24-01-2004 in favour of her daughter, respondent No.1 has come up in second appeal challenging that concurrent finding and raising by way of substantial questions of law whether due execution of Ext.A1 has been proved, whether it has been accepted and acted upon and whether courts below are justified in granting decree in favour of respondent No.1 on the strength of gift deed. According to respondent No.1, at the eve of her marriage with a person who belonged to a different community, appellant had offered to give her 5 cents of land as and when demanded and executed Ext.A7, agreement dated 15-05-1991. Later, appellant executed Ext.A1, gift deed in her favour conveying right, title, interest and possession of the suit property in her favour. On the strength of that gift deed, he approached respondent Nos.2 to 4, revenue officials to effect mutation of the property in her name but, they refused on the ground that some petition has been preferred by the appellant. Initially, the suit was filed for a decree for mandatory injunction to direct respondent Nos. 2 to 4 to effect mutation of the property in favour of respondent No.1. R.S.A.No.705 of 2009 2 Later, in view of the contentions raised by respondent Nos.2 to 4 appellant was impleaded as additional defendant No.4 and the plaint was amended to incorporate a prayer for cancellation of Ext.A8, cancellation deed executed by appellant revoking the gift deed in favour of respondent No.1. Respondent Nos.2 to 4 resisted the suit contending that they did not effect mutation of the property in favour of respondent No.1 in view of the objection raised by appellant. Appellant contended that there was no gift deed in favour of respondent No.1 and that the document was got executed by her fraudulently. She claimed that she continued to be in possession of the suit property and cancelled the same as per revocation deed, the copy of which is Ext.A8. Learned Munsiff found that appellant executed the gift deed in favour of respondent No.1, it took effect and hence the revocation is not valid. Accordingly, the decree was granted cancelling the cancellation deed and directing respondent Nos.2 to 4 to effect mutation of property in the name of respondent No.1. The first appellate court confirmed the decree and dismissed the appeal and hence the second appeal. Learned counsel for appellant asserting the substantial questions of law as raised in the memo of appellant as above stated, contended that appellant being an illiterate lady burden of proving due execution of Ext.A1 lay on respondent No.1, that burden has not been discharged and placed reliance on the decision in Krishnan Vs. Rajesh 2001(1) KLT Case No.25 (Page 23)). It is also R.S.A.No.705 of 2009 3 contended by learned counsel that appellant continues to be in possession of the suit property and there is no evidence to show that the gift deed was accepted or, took effect. Respondent No.1 contended that in the light of concurrent findings entered by the courts below on facts no substantial question of law is involved and the appeal does not merit admission. 3. Ext.A1 is the gift deed under challenge. Going by the contentions raised by the appellant and evidence given by her, its execution as such is not disputed though according to her, respondent No.1 got it fraudulently executed. The circumstances stated is that she had met with an accident in the year 1993, suffered fracture on the leg and she was given internal fixation. While so, she was awarded Rs.50000/- as compensation by the Motor Accident Claims Tribunal. That amount was utilised by respondent No.1 to sent her husband abroad. Appellant was advised to remove the internal fixation. She had no money with her. She then approached respondent No.1 with a request to avail a loan from the Co-operative Bank. To facilitate that, Ext.A1 was executed in the name of respondent No.1 so that, the property could be pledged with the bank and loan raised. So far as Ext.A7, agreement dated 15-05-1991 is concerned, contention of appellant is that respondent No.1, at the eve of her marriage with her lover threatened that unless the agreement is executed she will commit suicide and in such a situation appellant happened to execute R.S.A.No.705 of 2009 4 Ext.A1. She stated so as DW1. On the other hand, respondent No.1 has given evidence about the due execution of Exts.A1 and A7. She denied that any amount was taken from appellant to sent her husband abroad. She claimed that her husband was working in the FACT and therefrom he was sent abroad. PW2 is the scribe and one of the attesting witness in Ext.A1. She has given evidence that it was the appellant who has instructed her to prepare Ext.A1 and accordingly, Ext.A1 was drafted. She has also given evidence about appellant signing Ext.A1 and herself signing so as a witness. Ext.A2 is the certificate dated 14-03-2005 issued to respondent No.1 from the office of the Sub Registrar to enable her to effect mutation of property in her name. Respondent No.1 issued notice (Ext.A3 is its copy) to respondent Nos.2 to 4 requesting them to effect mutation. Exts.A4 and A5 are produced to show that the notice was served on respondent Nos.2 to 4. It is admitted by respondent Nos.2 to 4 also that with a request to effect mutation of the property, respondent No.1 had approached them but they refused in view of objection raised by the appellant. Ext.A1 is not an onerous gift. Time and then it has been held that so far as a gift deed which is not onerous is concerned only slight evidence is requested to prove its acceptance. Even the recital in the gift deed as to transfer of possession and the donor divesting himself of all his right, title and interest in the property is sufficient to prove acceptance of the gift. In this case, respondent No.1 has given R.S.A.No.705 of 2009 5 evidence as PW1 that pursuant to Ext.A1, she got possession of the property. Appellant has given contra evidence as DW1 but that evidence was not accepted by the courts below. There is no evidence to show that it was under the circumstance pleaded by the appellant that Ext.A1 was executed. On the other hand, Ext.A1 shows that even as on 15-05-1991 appellant had expressed her desire to give a portion of her property to respondent No.1 for her livelihood. The mere contention that Ext.A1 was executed under threat from respondent No.1 is not sufficient. 4. In the trial court appellant produced Exts.B1 and B2. Ext.B1 is a tax receipt dated 07-06-2008 and Ext.B2, possession certificate dated 05-02-2005. No doubt, Ext.B2 comes after Ext.A1 dated 24-01-2004, but it is not clear how the Village Officer could issue such a certificate notwithstanding Ext.A1 which stated that possession was transferred to respondent No.1. It may be that since mutation was not effected in the name of respondent No.1 during that time, Village Officer issued Ext.B2, possession certificate. So far as Ext.B1, tax receipt is concerned, it is much after the institution of the suit. Hence Exts.B1 and B2 are not sufficient to show that appellant retained possession of the suit property notwithstanding Ext.A1. 5. On the decision relied by learned counsel for appellant supra, that was a case of an illiterate woman executing the document and it was held that the burden is on those who claim right under the R.S.A.No.705 of 2009 6 document to prove that the document was not vitiated by fraud and undue influence. It has also come in evidence and learned Munsiff observed in para 20 of the judgment that the appellant has studied up to the 9th standard. It is not as if she is old or illiterate so that the principle stated in Krishnan Vs. Rajesh 2001(1) KLT Case No.25 (Page 23)) would apply. On going through the judgment under challenge and hearing both sides, I find that the decision is rendered on the facts of the case and after analyzing the evidence on record. On the finding of fact, High Court could interfere in second appeal only when it is based on no evidence or when the finding is perverse. I do not find any such situation on the facts and evidence of this case. No substantial question of law arise for a decision requiring admission of this appeal. The second appeal therefore is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/