IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 SA.No. 914 of 2000(A) ------------------------------- AS.50/1998 of DISTRICT COURT, THRISSUR OS.59/1996 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT(S): APPELLANTS/DEFENDANTS --------------------------------------------------------------- 1. LALITHA, W/O.MACHINGAL PRABHAKARAN, CHAVAKKAD AMSOM, DESOM, CHAVAKKAD. 2. RAINAS, S/O. MACHINGAL PRABHAKARAN, CHAVAKKAD AMSOM, DESOM, CHAVAKKAD. BY ADV. SRI.RAJIT RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------------------- RAGHAVAN, S/O. VELU @ AMACHINGAL KUTTAPPAN, CHAVAKKAD AMSOM, DESOM, CHAVAKKAD. BY ADV. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.ANISH S.AMBADY SMT.BIJIMOL JOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.2404/2000 IN SA. 914/2000 DISMISSED 25/05/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- SA No.914 of 2000 ------------------------------------- Dated this the 25th day of May 2011 Judgment Faced by the concurrent findings against them, the defendants in OS No.59/96 before the Munsiff's Court, Chavakkad, have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Based on Ext.A1 dated 18.01.1992, a settlement deed said to have been executed by Ammini in favour of the plaintiff, he laid claim over the suit property. He pointed out that the defendants were trying to trespass into the suit property and therefore, he had to approach the court. 3. The defendants resisted the suit pointing out that even though Ext.A1 was executed by Ammini, it was the result of undue influence exerted by the plaintiff and so, it had not taken effect. More specifically, it was SA No.914/00 2 contended that possession of the property had not passed to the plaintiff and possession remained with Ammini. Ammini, thereafter, executed Ext.B1 Will, whereby she bequeathed the property to the second defendant. Pointing out that Ammini had also executed a cancellation deed, cancelling Ext.A1, it was contended that the plaintiff had no manner of right over the suit property. He, therefore, prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants examined DWS1 and 2 and had Exts.B1 to B5 marked. 5. The trial court, on an evaluation of the evidence on record, found that Ext.B2 was executed unilaterally by the defendants, therefore, it cannot have any binding effect on the plaintiff and there was no proper cancellation of Ext.A1 gift deed. It was also found that a short while before the execution of Ext.A1 document, SA No.914/00 3 another document was also executed by Ammini and hence, it could not be said that she was not in a position to execute Ext.A1 deed and accordingly decreed the suit in favour of the plaintiff. 6. In appeal by the defendants as AS No.50/98 before the District Court, Thrissur, the lower appellate court independently evaluated the evidence on record and came to the conclusion that the gift evidenced by Ext.A1 had been accepted and the cancellation deed is invalid. Holding so, the judgment and decree of the trial court were confirmed. 7. Notice is seen issued on the following questions of law raised in the second appeal : (a) Can Exhibit A1 be termed as a valid gift in the absence of any evidence of acceptance by the plaintiff ? (b) When the plaintiff claims a legal right on the basis of a gift deed, must he not prov the necessary ingredients to show that the gift deed has legal effect ? © Can the court discard the averments in Exhibit B2 SA No.914/00 4 executed by the donor to the effect that possession was not handed over to the donee as per Ext.A1 ? (d) If a gift deed is executed by fraud and misrepresentation, is the donor bound to give notice to the donee to cancel the gift deed ? (e) Is not the oral evidence adduced by the plaintiff against Exhibit B2 registered document, hit by Section 91 and Section 92 of the Evidence Act ? 8. The learned counsel for the appellants pointed out that the courts below have omitted to note two vital aspects which would show that Ext.A1 had not taken effect. First, according to the learned counsel, both the courts below have not appreciated the significance of Ext.B3 series and Ext.B4 document, which would show that even after the execution of Ext.A1 gift deed in favour of the plaintiff, Ammini continued to pay tax and that would show that possession had not passed to the plaintiff. It is also contended that merely because Ammini had executed a document, a short while prior to the execution of Ext.A1, that does not mean that Ext.A1 was not vitiated by undue SA No.914/00 5 influence. The contention was not based on the capacity of Ammini to execute the document, but it was one of undue influence exerted by the plaintiff to gain an advantage for himself. The learned counsel also drew attention of this court to a recital in the cancellation deed, which narrates the circumstances under which Ext.A1 deed was executed. It was, therefore, contended that the judgment and decree of the courts below are clearly unsustainable in law. 9. The learned counsel for the respondent, on the other hand, pointed out that both the courts below have concurrently found that Ext.A1 had taken effect and the gift had been accepted. The plaintiff had also produced evidence to show that he had paid tax pursuant to Ext.A1 document. The learned counsel went on to contend that the findings entered by both the courts below are based on evidence on record and are purely findings of facts and that no substantial questions of law arise for consideration in the second appeal. SA No.914/00 6 10. At the outset, it has to be said that the contentions raised by the learned counsel for the appellants are without any basis. Ext.A1 is the gift deed executed by Ammini in favour of the plaintiff. That relates to 10 cents of property. The recital in Ext.A1 shows that possession was actually handed over to the plaintiff. Further, the plaintiff had taken back the document from the registration office and had produced the same before the court. It is trite that very slight evidence is sufficient to prove acceptance of gift. Law does not insist for strict acceptance of gift deeds as in case of gifts under Mohamedan Law. The documents available show that possession was handed over to the plaintiff. 11. The mere fact that tax might have been paid in the name of the donor even after the execution of the gift deed, by itself is not a ground to conclude that possession had not passed to the donee. Moreover, the donee has also produced tax receipt which shows that he had paid tax in respect of the suit property. The mere payment of tax in SA No.914/00 7 the name of the donor by itself cannot be taken as a ground to hold that Ext.A1 has not taken effect. Both the courts below have, on an appreciation of the evidence on record, come to the conclusion that the gift had taken effect and the plaintiff was in possession of the suit property. There is nothing to show that the findings of the courts below are either perverse or unwarranted by the evidence on record. As rightly pointed out by the learned counsel for the respondents, they are findings of facts. No substantial questions of law arise for consideration in this second appeal. The second appeal is without any merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P.Bhavadasan, Judge sta SA No.914/00 8