IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 RSA.No. 768 of 2006(G) --------------------------- AS.99/2001 of PRINCIPAL SUB COURT,ATTINGAL OS.76/1998 of MUNSIFF COURT,ATTINGAL .................... APPELLANT IN R.S.A.-RESPONDENT IN A.S./PLAINTIFF IN O.S --------------------------------------------------------------------- GEETHA, D/O.VALLIYAMMAL, AGED 28 YEARS, MANAKKATTU VILA VEEDU, THEKKEVILA MURI, PALLIPPURAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.ADVOCATE) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS: APPELLANTS IN A.S./DEFENDANTS IN O.S ----------------------------------------------------------------- 1. NANUKUTTAN CHITTIYAR, S/O.SUBRAMANIAN CHETTIYAR, RESIDING AT PADANILATH VEEDU, KOONTHALLOOR VILLAGE, CHIRAYINKEEZHU TALUK. 2. SAROJAM D/O.NANUKUTTAN CHETTIYAR RESIDING AT THEVARATH VEEDU, KOONTHALLOOR VILLAGE, CHIRAYINKEEZHU TALUK. BY ADV. SRI.M.RAJASEKHARAN NAYAR SMT.K.N.RAJANI SMT.MANJUSHA MOHANDAS THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ----------------------------------------------------- R.S.A. No 768 of 2006 ----------------------------------------------------- Dated this the 26th August 2008 JUDGMENT The appellant in this Second Appeal is the plaintiff in O.S. No 76 of 1998 on the file of the Munsiff's Court, Attingal she having lost her case before the first appellate court, the first appellate court having reversed the decree granted in her favour by the trial court and dismissed the suit. 2. O.S. No 76 of 1998 was filed by the appellant against her father-in-law Nanukuttan Chettiyar, his daughter Sarojini and his son- in-law for declaration of title and possession and for injunction inter alia, on the following allegations:- 3. The plaintiff is the wife of deceased Babu, son of the first defendant. Second defendant is the first defendant's daughter and third defendant is his son-in-law being the husband of the second defendant. The schedule property originally belonged to deceased Babu, the husband of the plaintiff he having obtained the said property under Ext B1 gift deed executed by the first defendant. After obtaining the said property Babu constructed a building therein. RSA 768/06 2 On 31.10.1997 the said Babu married the plaintiff in accordance with the customary rites and ceremonies prevalent in their community and after marriage they were residing together in the building situated in the schedule property. While so, the said Babu met with an accident on 04.11.1997 and breathed his last on the same day. After the death of Babu, his father, the first defendant cancelled the gift deed executed by him in favour of Babu with the intention of recovering the property from the plaintiff and he made an attempt to take forcible possession of the schedule property from the plaintiff. After cancelling the gift deed he executed a settlement deed in relation to the schedule property in favour of his daughter, the second defendant, vide Ext. A10 dated 03.12.1997. Now the defendants are jointly attempting to take forcible possession of the property from the possession of the plaintiff on the strength of the cancellation deed executed by the first defendant and the settlement deed executed by him in favour of the second defendant. The cancellation deed as also the settlement deed are void ab initio and are only to be ignored and the first defendant has no right to execute such documents. Ext. B1 gift executed by the first defendant was accepted by Babu, the husband of the plaintiff and the property was in the possession RSA 768/06 3 and enjoyment of the plaintiff and her husband Babu. After the demise of Babu, the defendants forcibly entered into the building in the schedule property and have taken away the documents in relation to the schedule property from the house and presently they are attempting to evict the plaintiff forcibly from the schedule property and building and hence the suit. 4. The defendants resisted the suit by filing written statement raising inter alia, the following contentions:- The suit is not maintainable. It is incorrect to say that the schedule property belonged to Babu, the husband of the plaintiff. He had no right or possession over the said property. It is true that Ext. B1 gift deed was executed by the first defendant in favour of Babu as alleged but it has not come into effect and Babu had not accepted the same. The allegation that the plaintiff is the wife of Babu is not correct. He has not married the plaintiff and she is not the legally wedded wife of deceased Babu. It is true that Babu passed away on 04.11.1997. It is also true that first defendant has cancelled the gift deed executed by him and has executed settlement deed in favour of the second defendant. Those documents are valid as the gift deed executed by the first defendant in favour of Babu had not come into effect. The RSA 768/06 4 first defendant had every right to transfer the said property to the second defendant and the second defendant has obtained title and possession over the schedule property under Ext. A10 settlement deed. It is incorrect to say that plaintiff is in possession and is in residential occupation of the building in the schedule property. She is residing in her father's house. Plaintiff and deceased Babu have not resided together as husband and wife in the schedule property and the plaintiff has no manner of right at all in the schedule property. Schedule property was in the possession and enjoyment of the first defendant till the execution of Ext. A10 settlement deed in favour of the second defendant. Ever after the execution of Ext. A10 settlement deed second defendant is in possession and enjoyment of the schedule property. The suit is an experimental one without any bonafides and the plaintiff is not entitled to get any relief. On the above contentions defendants prayed for dismissal of the suit with costs. 5. On the above pleadings trial court raised necessary issues for trial and considering the case in the light of the pleadings and the evidence adduced at trial which consisted of the oral evidence of P.Ws 1 to 6 and D.Ws 1 and 2 and documentary evidence Exts. A1 RSA 768/06 5 to A12 and B1 to B4(a) as also Exts. X1 and X2, the trial court upheld the case of the plaintiff and decreed the suit declaring her title and possession over the schedule property and granting injunction against defendants restraining them from trespassing into the plaint schedule property and interfering with the peaceful possession and enjoyment of the same by the plaintiff. Defendants 1 and 2 filed A.S. No 99 of 2001 before the first appellate court assailing the decree and judgment passed by the trial court. The lower appellate court allowing the appeal reversed the judgment and decree passed by the trial court and dismissed the suit. Hence this Second Appeal by the aggrieved plaintiff. 6. The Second Appeal was admitted on the following questions of law formulated in the Memorandum of Appeal. A. Is not the finding of the lower appellate court that Ext B1 gift deed doesnot operate as a transfer of title in presenti vitiated by a misreading of the said document? B. Has not the appellant proved the due acceptance of Ext. B1 gift deed by her deceased husband and is the lower appellate court right in ignoring the tell-tale circumstances of the mutation having been effected in the name of the donee? RSA 768/06 6 C. In the tenor of Ext. B1 gift deed and in the light of its acceptance by the donee, is there any burden on the appellant to prove that the house was constructed by the donee? D. Has not the lower appellate court ignored the clinching admissions of the defence in concluding wrongly that the gift was not accepted? It is vehemently contended before me by the counsel for the appellant that Ext. B1 gift deed, registration copy of which is Ext. A1 has taken effect and thereunder Babu, husband of the plaintiff, has obtained title and possession over the schedule property effecting mutation in his name and paying tax and he was residing in the building in the said property along with the plaintiff and that in view of the gift having taken effect Ext. A8 cancellation deed as also the subsequent Ext. A10 settlement dated executed by the first defendant in favour of the second defendant are void and not of any consequence and that on the death of Babu the plaintiff has become the absolute owner in possession and enjoyment of the schedule property and the first appellate court has gone wrong in accepting the defendants' contention and dismissing the suit in reversal of the RSA 768/06 7 decree passed by the trial court. In support of his arguments he points out the recitals in Ext B1 gift deed and submits that Ext. B1 is a gift whereunder absolute right and possession is transferred to the donee in presenti except to the extent that life interest is reserved thereunder in favour of the donor and his wife. The operating portion of Ext B1 shows that subject to the conditions made mention of in Ext B1 the schedule property is given to the donee under absolute right with immediate effect permitting him also to effect all sorts of improvements thereon and to effect mutation and to pay tax. It further states that the donee may enjoy the property under absolute right and that the donor has relinquished all his rights over the schedule property inter alia, his title, possession etc. It is further mentioned in Ext B1 that schedule property stands in the name of the donor under patta No 1387. The description of the schedule property in Ext B1 further shows that in fact the property was measured and the links measurements are made mention of and that is suggestive that the executant wanted to give possession of the specified plot described thereunder to the donee. However as on the date of Ext B1 there is no building in the schedule property. But the description of the property in the schedule shows that the building, well, latrine, RSA 768/06 8 bath room etc. are all constructed thereon. Those structures can obviously be only constructions subsequent to the execution of Ext B1. 7. Ext B1 is dated 01.07.1994. Ext A2 shows that transfer of registry had been applied for by Babu on the basis of Ext B1 gift deed and accordingly mutation had been effected in his name assigning patta No 6486 in his favour and that he has paid tax in relation to the schedule property and that was as early as on 19.08.1995. This suggests that pursuant to the gift deed the donee has acted on the basis of Ext B1 and has got mutation effected in his name. There is no case for the defendants that they had put up any building in the schedule property. Obviously therefore the building that is in existence as on the date of suit could only be building put up by Babu, the husband of the plaintiff, after obtaining title over the property under Ext B1. 8. Marriage of the plaintiff with Babu was on 31.10.1997 and his death was on 04.11.1997, within a few days of his marriage. Though it is contended in the written statement that Babu had not entered into any legal marriage and that plaintiff is not the wife of Babu it is seen stated by the first defendant in Ext. A10 settlement RSA 768/06 9 deed that Babu died on the third day of his marriage. The first defendant or the second defendant has no case that Babu married anybody else other than the plaintiff. 9. It is the case of the plaintiff that she along with her husband Babu was residing in the schedule property till Babu passed away on 04.11.1997. Though an argument had been advanced on behalf of the respondent that mutation was also effected in the name of the donee Babu by the donor himself submitting application in that behalf it is seen from the recital in Ext. A8 cancellation deed that the said contention cannot be correct for the reason that in Ext A8 the recital is that if mutation had been effected in the name of Babu pursuant to Ext B1 that has to be cancelled and mutation has to be effected in his name, namely in the name of the executant, the first defendant. It is seen from Ext A12 letter dated 30.12.1997 issued by the Village Officer, Kizhuvilam Koonthalloor village to the plaintiff that she had applied for mutation being effected in her name of the schedule property on 25.11.1997 and that her application is being allowed. This means that immediately after three weeks of the death of Babu his widow the plaintiff had applied for mutation being effected in her name she being the sole heir of her husband Babu. Ext. A11 (a) RSA 768/06 10 shows that tax for the year 1997 has been paid by the plaintiff for the schedule property under patta No 6486 in the name of her husband and that after effecting mutation in her name under patta 7025 she has effected payment of tax on 02.02.1998 vide Ext. A11. It was in the meanwhile that after the plaintiff applied for mutation being effected in her name that Ext A8 cancellation deed was executed by the first defendant on 26.11.1997. 10. The above facts as evidenced by the documents produced would show that Ext B1 gift has taken effect immediately on its execution; that the schedule property has passed on to the donee, Babu thereunder; that accordingly the donee Babu constructed building thereon and the plaintiff and Babu were in residential occupation though only for a short while till the death of Babu on 04.11.1997 and that thereafter plaintiff is continuing in possession and enjoyment of the schedule property. The cancellation deed Ext A8 in the circumstances can have no effect at all to divest her rights and Ext A10 settlement in favour of the second defendant does not confer any right at all on the second defendant over the schedule property. Hence the finding of the first appellate court that Ext B1 gift deed has not come into effect is wrong and all findings consequent RSA 768/06 11 thereto and the verdict that Ext A10 settlement confers title on the second defendant etc. cannot be sustained. The decree of the first appellate court dismissing the suit in reversal of the decree passed by the trial court therefore deserves to be set aside and the decree passed by the trial court deserves to be restored. Substantial questions of law formulated stands answered in view of the discussions above. 11. In the result, allowing this appeal I set aside the decree and judgment passed by the first appellate court and restore the decree and judgment passed by the trial court in favour of the appellant- plaintiff. However, in the circumstances of the case, I direct the parties to suffer their own costs. Sd/- K.P. BALACHANDRAN Judge 26/08/2008 en [true copy] RSA 768/06 12