IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 SA.No. 733 of 2000(D) ------------------------------- AS.167/1997 OF PRINCIPAL SUB COURT, KOZHIKODE OS.514/1993 OF ADDITIONAL MUNSIFF COURT, KOZHIKODE-II .................... APPELLANT/APPELLANT/3RD DEFENDANT: ---------------------------------------------------------------- AYOTH SUNDARAN, S/O.AYYAPPAN, CHEVAYOOR AMSOM, CHEVAYOOR DESOM, KOZHIKODE TALUK. BY ADV. SRI.T.P.VARGHESE, SRI.PHILIP T VARGHESE. RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 & 2: ------------------------------------------------------------------------------------------------------ 1. KOLASSERY VELAYUDHAN, S/O.PERAVAKUTTY, KARAKUNNUMMAL HOUSE, NELLIKODE AMSOM, KOVOOR DESOM, KOZHIKODE TALUK. 2. KARAKKUNNUMMAL RADHA, D/O.PERAVAKUTTY, KARAKUNNUMMAL HOUSE, NELLIKKODE AMSOM, KOVOOR DESOM, KOZHIKODE TALUK. 3. KERAKKUNNUMMAL GOPALAN, H/O.KARAKKUNNUMMAL RADHA, KARAKKUNNUMMAL HOUSE, NELLIKODE AMSOM, KOVOOR DESOM, KOZHIKODE TALUK. R1 BY SRI.M.C.SEN, SENIOR ADVOCATE, ADV. SRI.M.P.SREEKRISHNAN, SMT.SHAHNA KARTHIKEYAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. ------------------------------------- SA No.733 of 2000 ------------------------------------- Dated this the 3rd day of June 2011 Judgment The third defendant in OS No.514/93, who lost before the courts below, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. According to the plaintiff, he was enjoying the property which was obtained by him under Ext.A1 partition deed of the year 1983. While so, his mother executed Ext.A3 settlement deed dated 22.09.1989, by which he obtained the plaint schedule property. Eversince the date of Ext.A3, he has been in absolute possession and enjoyment of the same. It is alleged in the plaint that on 15.08.1983, the third defendant attempted to trespass into the suit property and that necessitated the suit. 3. Defendants 1 and 2 resisted the suit pointing out that the plaintiff had no manner of right over the suit SA 733/00 2 property. Though they admitted that the gift deed was executed by their mother in favour of the plaintiff, the contention was that it was not acted upon and the property continued to be in the possession of the mother of the plaintiff. Later, she executed Ext.B3 cancellation deed and thereafter, she assigned 8 cents of property to the first defendant and in the remaining 4.5 cents, she put up a shed and is residing there. They also pointed out that without the mother on the party array, the suit is not maintainable. On the basis of these contentions, they prayed for dismissal of the suit. 4. The third defendant by a separate written statement, contended that Ext.A3 is not a gift as enjoined under the Transfer of Property Act, but it is only a Will. According to him, even after the execution of Ext. A3, the donor continued to be in possession and enjoyment of the property and therefore, even assuming it is a gift deed, it has not come into effect. By Ext.B3 document, Ext.A3 was cancelled. 8 cents was assigned by the mother of the SA 733/00 3 plaintiff which was purchased by the third defendant as per Ext.B1 dated 15.04.1993. Since then, he has been in absolute possession and enjoyment of the same. On the basis of these contentions, he prayed for dismissal of the suit. 5. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A9 from the side of the plaintiff. The defendants had DWs 1 to 3 examined and had Exts.B1 to B7 marked. CW1 was examined as court witness and Exts.C1 and C2 commissioner's report and plan were also marked. 6. The trial court, on an evaluation of the evidence, came to the conclusion that Ext.A3 had been acted upon and the cancellation deed is not valid. Holding that the plaintiff was not in possession of the suit property, the suit was decreed. SA 733/00 4 7. The third defendant carried the matter in appeal as AS No.167/97 before the Sub Court, Kozhikode. The lower appellate court, after evaluating the evidence on record, chose to agree with the trial court and dismissed the appeal. That brings the third defendant before this court. 8. In this second appeal, notice is seen issued on the following questions of law : 1.In a suit in which the validity of a deed and its subsequent cancellation deed are substantially in issue, is not the executant of these deeds a necessary party to the suit ? 2.Has not the courts below erred in holding that Exhibit B3 cancellation deed is not valid in the eye of law in the suit without the executant of the said deed in the party array ? 3.Is not the plaintiff claiming injunction against interference with this peaceful possession and enjoyment bound to prove his exclusive possession over the property ? SA 733/00 5 4.When the executant retains control over the property till her death with absolute right to collect the usufructs, is not the document a will ? 5.When Exhibit A3 deed provides for gift on fulfilment of certain obligations, is not the conveyance an onerous gift as defined under Section 127 of the Transfer of Property Act ? 6.Does not the donor of an onerous gift have liberty to cancel the gift at any time before the donee discharges his obligations as per the said gift ? 9. The learned counsel for the appellant pointed out that Ext.A3 is not a gift deed, but it is only a Will and even assuming it is a gift, it is a conditional gift and unless the conditions are satisfied, it cannot be given effect to. It is also contended that there was nothing to show that the plaintiff was in actual possession of the property and he was in enjoyment of the same. Emphasis was laid on the fact that without the mother on the party array, the suit could not have proceeded with. It is also contended that SA 733/00 6 the plan produced does not indicate that it relates to the plaint schedule property. These aspects have been overlooked by the courts below and that has resulted in an erroneous decision. 10. Per contra, the learned counsel for the respondents contended that there is no merit in the contention that Ext.A3 document is a Will. The difference between a Will and a gift is well settled. While gift inter alia transfers the rights to another person with immediate effect, Will takes effect on a future date, i.e., on the death of the executor. Construing Ext.A3, it could be seen that rights were created in persanti and therefore, it is only a gift. In support of the said contention, the learned counsel relied on the decision reported in Amar Singh v. Gosai (AIR 1972 Gujarat 74). As regards the acceptance, according to the learned counsel, only very slight evidence is required since the contesting defendants have no case that it is onerous gift. To show that the gift has been accepted, the learned counsel relied on the recital in the SA 733/00 7 document and also the fact that tax has been paid in respect of the property. In support of the said submission, the learned counsel placed reliance on the decision reported in Ambujakshyamma v. Kesavan Kamalasanan (2010(3) KLT SN 10). The learned counsel went on to point out that even assuming that the gift contained a condition and that condition was not fulfilled, yet, that does not mean that the gift has not taken effect or that it has been cancelled. The remedy is something else. In support of the said contention, the learned counsel relied on the decision reported in Asokan v. Lakshmikutty (2008(1) KLT 54 (SC). Relying on the decision in Gopalakrishnan v. Rajamma (2006(4) KLT 377), the learned counsel contended that the donor of the gift has to approach the court for revocation of a gift deed. In the case on hand, the learned counsel pointed out that both the courts below have concurrently found that the gift has taken effect and the plaintiff was in possession and enjoyment of the SA 733/00 8 property. Being a suit for injunction, according to the learned counsel, the only question is whether the plaintiff has been successful in showing that he has been in possession of the property as on the date of the suit. The finding of the court below that the gift had taken effect was arrived at, on an evaluation of the evidence. They are pure questions of fact and no questions of law arise for consideration in the second appeal. 11. One must say that there is considerable force in the submissions made by the learned counsel for the respondents. As rightly pointed out by the learned counsel for the respondents, a reading of Ext.A3, which is an admitted document, will clearly show that it is intended to take effect immediately and possession was immediately given to the plaintiff. Of course, there are two conditions contained in the deed. They are (1) that the donor retains the right to take usufructs from the property and (2) that the plaintiff is to pay a certain sum of money to his sisters on the death of his mother. Probably, it may be the second SA 733/00 9 condition that gave rise to the contention that it is a Will. The mere fact that such a condition is imposed, it does not make the document a Will for the simple reason that rights are seen to be created forthwith and the property is divested from the donor and vested in the donee immediately. 12. The defendants have no consistent case regarding the revocation of the gift. At one stage, their case was that the gift was not accepted, in another stage, they would say that the condition was not complied and therefore, the gift has not taken effect. The reason given for cancellation in Ext.B3 is absolutely different. As rightly pointed out by the learned counsel for the respondents, there is no consistent case for the defendants and there is nothing to show that the gift has not taken effect. 13. The plaintiff has produced evidence to show that he has exercised acts of possession over the property gifted to him under Ext.A3. The commissioner's report would show that there is a latrine in the disputed property. SA 733/00 10 Even though the defendants have a case that it was put up by the mother of the plaintiff, there is no evidence to show that it was so. A reading of Ext.B3 cancellation deed would show that the reason for cancellation of the deed was that the plaintiff obstructed the donor from taking usufructs from the property. No other reason is stated in the document. There is nothing in the document which would indicate that either the gift has not taken place or it is a sham document. In fact, Ext.B3 would show that the donor accepted Ext.A3 document. It was the above facts which persuaded the courts below to come to the conclusion that he is in possession of the suit property. Again, Ext.A3 is a gift deed in the year 1989 and the cancellation is of the year 1992, i.e., three years after the execution of the gift deed. 14. All these facts indicate that the plaintiff's apprehension of trespass by the defendants is genuine and he is justified in moving the court for appropriate reliefs. As rightly pointed out by the learned counsel for the respondents, the conclusions arrived at by the lower court SA 733/00 11 are based on evidence on record and they are questions of fact. No substantial questions of law arise for consideration in the second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. No order as to costs. P.Bhavadasan, Judge sta SA 733/00 12