IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 RSA.No. 797 of 2008() --------------------- AS.299/1998 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.2009/1996 of PRL.M.C.,TRIVANDRUM .................... APPELLANT:APPELLANT/DEFENDANT ------------------------------------------------- RADHA, D/O. KAMALAKSHY, RESIDING AT VADAKKEVEETIL VEEDU, VAYAKKELATHU MURI, KULATHOOR, ATTIPRA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT: RESPONDENT/PLAINTIFF ------------------------------------------------------- AMBUJAKSHY, D/O. KAMALAKSHY, RESIDING AT VADAKKEVELI VEEDU, VAYAKKELATHU MURI, KULATHOOR, ATTIPRA VILLAGE, THIRUVANANTHAPURAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.797 of 2008 ---------------------------------------- Dated this the 21st day of August, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No.299 of 1998 on the file of the III Additional District Judge, Thiruvananthapuram which arises from the judgment and decree in O.S. No. 2009/1996 on the file of the Principal Munsiff's Court, Thiruvananthapuram . The suit is filed for partition and injunction. The trial court passed a preliminary decree allowing the plaintiff to take separate possession of ½ share and restraining the defendant by a decree of injunction from causing the plaintiff's forcible dispossession from the property available for partition till actual partition is effected and separate possession of her share is given. The preliminary decree was confirmed in appeal by the lower appellate court. Hence the Second Appeal. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. The defendant in the suit is the appellant herein. 2. The plaint schedule property originally belonged to the mother of the plaintiff and defendant. She gifted the plaint schedule property as per Ext.A1 gift deed No.1308/1973 in favour of the plaintiff and defendant who are the daughters of the the donor reserving the life interest of the donor. The plaintiff effected mutation as per the direction in the said gift deed and accordingly she paid tax till 1995-96. There are two R.S.A.No.797 of 2008 -2- buildings in the plaint schedule property and the plaintiff is residing in one of the buildings and the defendant is residing in the other building. 30 Sq. metres of the property out of the plaint schedule property was acquired by the Government and the plaintiff received ½ of the award amount as per the decree in L.A.R. 85/1985. On getting knowledge that the defendant is attempting to take the entire yield from the plaint schedule property, the plaintiff approached the defendant and demanded partition of the plaint schedule property into two equal shares and to allot her ½ share in the plaint schedule property. But the defendant has not acceded to her demand. Hence the suit. 3. The suit was resisted by the defendant. According to the defendant Ext.A1 gift deed had not come into force and that their mother (donor) cancelled Ext.A1 gift deed by Ext.B1 cancellation deed dated 28.5.1979. Subsequently the donor executed Ext.B2 gift deed No.3864/1979 13.11.1979 in favour of the defendant and accordingly the defendant has got absolute right over the plaint schedule property and the property is in her exclusive possession and enjoyment. She also denied the averment that there are two buildings in the plaint schedule property and asserted that there is only one building and that she is residing in that building. The defendant admitted the acquisition of a portion of the plaint schedule property having an extent of 30 Sq.metres and further admitted that the plaintiff received ½ of the award amount in L.A.R.85/ 1985 .She also contended that the plaintiff is not entitled to get any of the reliefs and prayed for the dismissal of the suit. 4. The trial court examined the respective contentions of the R.S.A.No.797 of 2008 -3- parties on the basis of oral and documentary evidence .PW1, PW2, DW1,were examined and Exts A1 to A5 and B1 to B4. were marked. 5. As per Ext.A1 gift deed the plaint schedule property was gifted in favour of the plaintiff and defendant and they have accepted that gift and acted upon it. The trial court held that Ext.B1 cancellation deed dated 28.5.1979 which was executed by the mother of the parties(donor) after the acceptance of the gift made as per Ext.A1 by both parties, is void. The trial court further held that since Ext.A1 is valid, Ext.B2 did not confer any manner of right in favour of the defendant in respect of the plaint schedule property and therefore Ext.B2 has no legal footing. The trial court also concluded that the plaintiff and defendant have got equal right over the plaint schedule property. The Government granted ½ of the award amount, for the 30 Sq.metres acquired from the plaint schedule property, to the plaintiff on the basis of the documentary evidence produced by the parties that the parties to the suit are co-owners and in joint possession of the plaint schedule property. This is also another reason for the trial court to arrive at the above said conclusion. On the basis of evidence the trial court rightly held that the plaintiff is entitled to get an injunction against her forcible eviction till effecting actual partition and giving separate possession of her share. 6. In appeal, the lower appellate court also examined the contentions raised by the defendant/appellant. After perusing Ext.A1 gift deed the lower appellate court held that the same discloses that subject to the life interest of the donor she bequeathed her entire right over the plaint schedule property to the donees. The lower appellate court also R.S.A.No.797 of 2008 -4- found that nothing is specified anywhere in Ext.A1 that in the event of any contingency the donor is at liberty to revoke the gift, at the same time there are clear stipulations in Ext.A1 that the donees are entitled to effect valuable improvements in the property and pay tax after effecting mutation in their respective names. The lower appellate court also found that Ext.B1 revocation deed itself states that pursuant to Ext.A1 gift deed the donees effected mutation in their favour in revenue records. Thus the lower appellate court also agreed with the findings of the trial court and held that it cannot be said that the gift was not accepted by the donees and that the defendant/appellant is having co-ownership and joint possession along with the plaintiff in the plaint schedule property. I have heard the learned counsel for the defendant/appellant . I am of the view that the courts below rightly interpreted the documents produced by both parties. I am also of the view that the only conclusion possible in the facts and circumstances of this case is that the plaintiff and defendant are the co-owners and are in joint possession of the plaint schedule property. I find no reason to disagree with the findings of the courts below. I do not find that this is a fit case for invoking this Court's jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of the arises for consideration in this Second Appeal This appeal fails and accordingly dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A.No.797 of 2008 ---------------------------- JUDGMENT 21st August, 2009