IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 SA.No. 776 of 1998(A) --------------------- AS.41/1996 of SUB COURT, QUILANDY OS.260/1994 of MUNSIFF'S COURT, QUILANDY .................... APPELLANT(S): (RESPONDENT/DEFENDANT): ---------------------------------------------------------------------- ATTAPURATH RAGHAVAN NAIR, S/O.ACHUTHAN NAIR, KUNIYIL HOUSE, EDAKKULAM DESOM, CHENGOTTU KAVU VILLAGE, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI.D.KRISHNA PRASAD, SRI.D.NARENDRANATH, SRI.JOJI VARGHESE, SRI.M.HARISHARMA, SRI.T.P.ELDHOSE. RESPONDENT(S): (APPELLANT/PLAINTIFF): ----------------------------------------------------------------- KEEZHANA GOPALAN NAIR, S/O.CHERIAMMA AMMA, KANHIKAVU DESOM, BALLUSSERY VILLAGE, KOYILANDY TALUK, KOZHIKODE DISTRICT. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.2225/1998 IN S.A.NO.776/1998 DISMISSED 9/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ---------------------------- S.A.No. 776 of 1998 --------------------------------- Dated this the 9th day of February, 2011 JUDGMENT The defendant in O.S.No.260/1994 before the Munsiff's Court. Koyilandy, who suffered a decree at the hands of the lower Appellate court is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. On the basis of Ext.A1 dated 12.01.1982 the plaintiff laid claim over the suit property. He alleged that he was in absolute possession and enjoyment of the property and he alleges that his right to take usufructs from the property is being interfered with the defendant and that had brought him to the court for appropriate relief. 3.. The defendant resisted the suit and contended that Ext.A1 sale deed is incapable of conferring any manner of right on the plaintiff since the vendor under the said document did not have title to the suit property. Pointing out that plaintiff's had no manner of right over the suit property and that the allegation of his being in possession was untrue, the defendant prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A7 from the side of the plaintiff. S.A.No. 776 of 1998 2 DWs 1 to 3 were examined and documents marked as Exts.B1 to B4 from the side of the defendant. The trial court on an appreciation of the evidence found that the plaintiff is not entitled to any relief and accordingly dismissed the suit. 5. Aggrieved, the plaintiff carried the matter in appeal as A.S.41/1996 before the Sub Court, Koyilandy. The lower appellate court chose to differ from the trial court and reversed the decree of the trial court and decreed the suit. 6. Notice has been issued on the following substantial questions of law: 1. Is not Ext.B1 really a family arrangement, which could be revoked by a document like Ext.B2. 2. Is not Ext.B1 capable of being cancelled by a document like Ext.B2. 3. When the donor under an alleged gift deed reserved her right to take income from the property and to reside in the house in the property and thereby retained possession thereof, can the gift deed be said to have come into effect by delivery of possession and acceptance thereof by the donee. 4. When the donor had retained possession of the property by reserving a right take income therefrom and to reside in the house in the property, can an assignment deed executed by the alleged donee during the life time of such donor, in favour of a third party, can have the effect of parting with exclusive possession of the property in favour of such third party. 5. Is not the non production of the original of the gift deed a clear indication of the fact that the alleged gift had S.A.No. 776 of 1998 3 not taken effect. 6. Whether under the facts and circumstances of the case, the lower appellate court has correctly read the recitals in Exts.B1 and B2 and also Exts. B3 and B4. 7. Are not the recitals in Ext.B2 admittedly executed by the donor coupled with the absence of clear evidence of possession of the property by the plaintiff, indicative of the fact that the plaintiff has not obtained any possession of the property under Ext.A1. 8. Whether under the facts and circumstances of the case, the impugned decree is sustainable. 7. The learned counsel appearing for the appellant contended that the lower appellate court was unjustified in interfering with the judgment and decree of the trial court. The lower appellate court has omitted to notice that the vendor under Ext.A1 laid claim to the suit property on the basis of Ext.B1 gift deed which has been subsequently cancelled by Ext.B2. Even assuming Ext.B1 was valid Unniamma Amma continued to be in possession and the recital in Ext.A1 cannot be correct. Unniamma Amma died only in the year 1994. Various other circumstances according to the learned counsel have been pointed out and accepted the trial court, which would show that the plaintiff had derived no manner of right over the suit property. These vital aspects were omitted to be noticed by the lower appellate court and that resulted in miscarriage of justice. S.A.No. 776 of 1998 4 8. Per contra the learned counsel appearing for the respondent pointed out that the lower appellate court has considered the matter in the proper perspective and has come to the right conclusion. No grounds are made out to interfere with the finding of the lower appellate court. 9. The lower appellate court found that Ext.B1 has come into effect that and therefore Ext.A1 executed by the donee under Ext.B1 is valid. The lower appellate court also found that the mere fact that mutation had not been effected and tax has not been paid since the date of Ext.B1 may not be much consequence since the donor had retained her right to remain the property and take income there from. On these premises the lower appellate court held in favour of the plaintiff. 10. The lower appellate court seems to be omitted to notice certain vital aspects. The evidence disclosed that Ext.B1 was cancelled by Ext.B2 dated 04.12.1985. It is true that the cancellation deed was executed after four years of the execution of Ext.B1 document by which Unniyamma Amma had gifted properties to the daughters Devaki Amma and Padmini Amma. However, one cannot omit to note that Ext.A1 is long after the cancellation deed. Ext.A1 is infact on 12.01.1987. Ext.A1 does not refer to Ext.B2 at all. A reading of Ext.A1 shows that Devaki Amma one of the donee under S.A.No. 776 of 1998 5 Ext.B1 had assigned the properties to her husband. The recitals in Ext.B1 need to be noticed. The vendor claimed that she is in actual possession of the property. The sale consideration is shown as Rs.2200/- which is said to have been received on the date of execution of the sale deed. There is no mention of fact that the document of gift conferred rights on the sister of the vendor namely Padmini Amma as well. The recital in Ext.A1 that possession is being handed over to the vendee namely, the plaintiff cannot be taken as true. It is an admitted fact that the donor under Ext.B1 continued to be in possession and enjoyment of the property since she had reserved her right to be in possession and to take income there from. 11.It is also significant to noticed that the gift deed namely Ext.B1 was produced by the defendant. 12. It may not be possible to ignore the cancellation deed namely Ext.B2. There is want of evidence to show that either the assignor under Ext.B1 or the plaintiff had actual possession of the property. At the risk of repetition one may noticed that Unniyamma Amma died only on 07.08.1994 and the suit was filed thereafter. In Ext.B2 clearly stated that even though Ext.B1 has been executed that has not taken effect and the title and possession continued with the donor. The lower appellate court has chosen to take the view that S.A.No. 776 of 1998 6 once a gift is executed and accepted, it is irrevocable. 13. There can be no doubt regarding the above principle. The question is whether that is applicable to the facts of the case. 14. As already noticed that there is nothing to show that the donees under Ext.B1 were put in possession in pursuance to the gift deed. As already mentioned Ext.A1 is after the Ext.B2 cancellation deed. There is no averments in the plaint at all that the cancellation deed is either bad in law or insufficient to deprive the rights of the donees. It is doubtful whether the Ext.B2 can be simply ignored. Another question may arises as to whether it is necessary to seek a declaration that Ext.B2 is not valid and binding. 15. PW2, the wife of PW1 the plaintiff, says that soon after the gift she took possession along with her sister. She is unable to give answers to several questions in the cross-examination. It is interesting to note that she says that she had received Rs.2500/- from her husband for the treatment of her mother and in lieu thereon the assignment was made under Ext.A1. This is the new case put forward at the time of the evidence. It becomes very clear that the recital of payment of consideration in Ext.A1 is not true. PW2 has stated that after the gift was executed, that is Ext.B1 deed kept by PW2. If that be so, the defendant could not have produced the same. It is surprising to note that the lower appellate court has not adverted S.A.No. 776 of 1998 7 to these aspects and simply on the premises that once a gift deed is executed that cannot be revoked and that is sufficient to confer the right on the donee. The question as to whether the gift has taken effect and the effect of the cancellation deed have not be considered. These aspects have material hearing on the ultimate fate of the suit. The result, the appeal is allowed, the judgment and decree of the lower appellate court is set aside and the matter is remanded to the lower appellate court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the lower appellate court on 29.03.2011. Office shall send back the records forthwith. The lower appellate court shall make every endeavour to dispose of the matter as early as possible. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln