IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 SA.No. 229 of 1996(B) --------------------- AS.5/1991 of SUB COURT, HOSDURG OS.293/1981 of MUNSIFF COURT, HOSDURG .................... APPELLANT(S)/APPELLANTS/PLAINTIFFS 1 AND 3: -------------- 1. [CHUZHALI RAMAN KARNAVAN, AGED 77 YEARS, S/O.MALINGAN ELAYA ASHARY AND MANICKOM AMMA, HINDU, AGRICULTURIST, RESIDING IN KANHANGAD VILLAGE, HOSDURG TALUK, POST KANHANGAD (SOUTH).] DIED 2. V.V.KANNAN ACHARY, S/O.KANNAN VISHWAKARMA AGED 71 YEARS, CARPENTER, RESIDING AT MOONAMKUTTY THAYALE VEEDU IN NILESHWAR VILLAGE, HOSDURG TALUK, POST NILESHWAR. (*)ADDL. APPELLANT NO.3: KUNHAMBU KARANAVAN, AGED 89 YEARS, S/O.KIZHAKKE MANIKKOTTYELUTHU AMBU ACHARI, VATTAPPOIL O.P., NILESHWAR. ADDL.APPELLANT NO.3 IMPLEADED AS CHUZHALI KARANAVAN OF THE CHUZHALI BHAGAVATHI DHARMADEVA BHANDARAM AS PER ORDER DATED 28.6.1999 ON CMP NO.2438/1998. BY ADV. SRI.KODOTH SREEDHARAN SRI.THANKACHAN K.PAUL RESPONDENT(S)/RESPONDENT/DEFENDANT: --------------- ILLOTH VALAPPIL AMBUNHI, AGED 67 YEARS, S/O.KARICHI AMMA, HINDU, AGRICULTURIST, RESIDING AT PALAKKAT IN NILESHWAR VILLAGE, HOSDURG TALUK, POST NILESHWAR. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.2.2009, THE COURT ON 12.3.2009 DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.229 of 1996 -------------------------------------- Dated this the day of March, 2009. JUDGMENT Substantial questions of law arising for a decision in this appeal at the instance of the appellants/plaintiffs who successively lost in both the courts are:- (i) Whether Ext.A1, gift deed having been accepted on behalf of the donee could be revoked by the donor unilaterally? (ii) Whether Ext.B11, cancellation deed is contrary to the provisions of Section 126 of the Transfer of Property Act (for short, “the Act”)? (iii) Whether relief of declaration as regards Ext.B11 is barred by limitation? (iv) Whether the respondent has perfected title under Section 27 of the Limitation Act? 2. Facts necessary for consideration of this appeal are:- the property scheduled (50 cents in survey No.87/1A of Nileshwar Village) along with another 25 cents originally belonged to Sri. Mannampuram Kavil Bhagavathi Devaswom on jenm. The suit property was taken on moolageni right by Chuzhali Kizhakke Veettil Raman Aithan Ashari as per an unregistered vellola marupattom of 9th SA No.229/1996 2 Kumbhom, 1005 (M.E.) and since then, he was in enjoyment of the said property paying rent to the jenmi. While so, Raman Aithan Ashari gifted that property in favour of Chuzhali Bhagavathi Dharmadeva Bhandaram (for short, “the Bhandaram”) represented by Kizhakke Veettil Malingan Chuzhali Ashari as per Ext.A1, gift deed dated 11.7.1955. According to the appellants, since then the Bhandaram was in possession and enjoyment of the suit property and after the death of Malingan Chuzhali Ashari, Raman Aithan Ashari (the donor) was allowed to take the income from the suit property on behalf of the Bhandaram and he was in possession and enjoyment of the suit property on behalf of the tharawad of the appellants. After the death of Raman Aithan Ashari, appellant No.1 is the Chuzhali Karnavan and appellant No.2 is Karnavan of kizhakke Veettil Tharawad. They got information that the respondent obtained assignment of moolageni right of Raman Aithan Ashari with a view to defraud the Bhandaram. The assignment deed dated 31.7.1971 (Ext.A2 is its copy) executed by Raman Aithan Ashari in favour of the respondent is fraudulent and collusive. Raman Aithan Ashari has no right to execute such a document in favour of the respondent. Appellants therefore, prayed for declaration of their title, that the assignment in favour of respondent is null and void and for recovery of possession of the suit property with mesne profits. Respondent denied that appellants are members of the Kizhakke Veettil Tharawad. He also denied the status of the appellants as claimed in the plaint. No such Bhandaram SA No.229/1996 3 is in existence and the appellants have no title over the suit property. 75 cents including the suit property originally belonged to Kizhakke Veettil Raman Aithan Ashari (under the jenmi Mannampuram Kavil Bhagavathi Devaswom). It is contended that Ext.A1, gift deed had not taken effect and nor was intended to take effect. Bhandaram never got right, interest or possession of the suit property. Hence Ext.A1 was cancelled by Raman Aithan Ashari as per Ext.B11, cancellation deed dated 27.7.1971. Thereafter the suit property was assigned to the respondent as per Ext.B1 (Ext.A2 is its copy), assignment deed dated 31.7.1971. Respondent has also obtained the jenm right of the property as per order in O.A.No.2384 of 1975 and effected improvements. It is contended that the title if any of the appellants is lost by adverse possession and the law of limitation. Learned Munsiff framed issues among other things whether Ext.A1, gift deed has taken effect and whether the title if any claimed by the appellants is lost by adverse possession and limitation. Learned Munsiff found that Ext.A1 has not taken effect and hence, its cancellation as per Ext.B11 is valid. Consequently it was found that Raman Aithan Ashari was competent to assign the suit property in favour of the respondent as per Ext.B1 and hence, the prayer for recovery is not allowable. First appellate court concurred with the findings of the learned Munsiff and confirmed the judgment and decree. Hence this Second Appeal. SA No.229/1996 4 3. Learned counsel for appellants contended that the finding entered by the courts below that Ext.A1 was not accepted by the donee is erroneous in that, courts below failed to note that the gift as per Ext.A1 was in favour of the Bhandaram which, for all legal purposes should be treated as a minor and hence, acceptance of the gift by the Bhandaram is not warranted. According to learned counsel even at the time of Ext.A1, Raman Aithan Ashari (donor) was one of the trustees of the Bhandaram and after Malingan Chuzhali Ashari who was then the Karnavan, Raman Aithan Ashari became the Karnavan and in that capacity he possessed the suit property for and on behalf of the Bhandaram. According to learned counsel, in the light of the recitals in Ext.A1 onus of proof was on the respondent to show that Ext.A1 was not accepted or acted upon. It is also contended that Ext.A1 does not provide for its revocation by the donor and in the absence of any such power, its revocation could have been done only through a court. Further contention is that so far as Ext.A1 remained valid, its cancellation by Raman Aithan Ashari as per Ext.B11 is invalid and consequently, Ext.B1, assignment deed could not confer any right on the respondent. Appellants therefore, prayed that recovery as prayed for be granted. Learned counsel for respondent contended that the finding entered by the courts below that Ext.A1 was not accepted is a finding of fact which this Court is not required to interfere in a Second Appeal. It is contended that at any rate, the relief sought in respect of Ext.B11 is barred by limitation since the suit was admittedly SA No.229/1996 5 filed after three years of Ext.B11. Learned counsel placed reliance on Article 59 of the Limitation Act. The further contention is that there is no presumption regarding acceptance of gift even if it is not onerous and there is no evidence to show that Ext.A1 was accepted. According to the learned counsel it is not pleaded and proved when exactly Malingan Chuzhali Ashari died. In the absence of evidence accepting the gift during the lifetime of Malingan Chuzhali Ashari Ext.B11, cancellation deed dated 27.7.1971 and the subsequent assignment (Ext.B1) in favour of the respondent should stand. 4. The relevant recitals in Ext.A1, gift deed dated 11.7.1955 read thus: SA No.229/1996 6 Respondent has a contention that the gift as per Ext.A1 is in favour of Malingan Chuzhali Ashari and not in favour of Bhandaram and hence appellants have no locus standi to institute the suit. Though the respondent had denied that appellants are members of the tharawad referred to in the plaint, learned Munsiff found against that contention and, since no substantial question of law is involved in that finding made after consideration of the evidence on record, it is SA No.229/1996 7 not required for this Court to go into the correctness of that finding. Though in the preamble of Ext.A1 it is stated that the gift is executed in the name of Malingan Chuzhali Ashari, recitals in Ext.A1 which I have extracted above and even what is stated by Raman Aithan Ashari himself in Ext.B11, cancellation deed would make it abundantly clear that the gift was in favour of the Bhandaram though, the document was executed in the name of then Karnavan of the tharawad, Malingan Chuzhali Ashari. In Bishwanath v. Radha Ballabhji [AIR 1967 SC 1044] the Supreme Court has said that even a worshiper can file a suit in respect of the property of the idol. Therefore, the contention that the appellants have no locus standi to institute the suit cannot be accepted. 5. It is true that in Ext.A1, there is a direction that the donee must pay maintenance to the donor (Raman Aithan Ashari) at the rate of Rs.24/- per year. But, that direction cannot be taken as making the gift “onerous” as understood in Section 127 of the Act and in all fairness, it is not so argued also on behalf of the respondent. That can only be understood as a direction following an out right gift as per Ext.A1. The decisions in Gangadhara Iyer v. K.S.Iyer [AIR (39) 1952 TC 47] and Asokan v. Lakshmikutty [2008 (1) KLT 54 - SC] support that view. Ext.A1 does not reserve to the donor any right of revocation of the gift for any reason whatsoever, not to say about the non- compliance of the direction for maintenance. Ext.B11, cancellation deed would SA No.229/1996 8 also show that the cancellation of Ext.A1 was not for non-compliance with the direction contained in Ext.A1. On the other hand, cancellation is for the reason that Ext.A1 had not taken effect. Since as I stated that Ext.A1 does not also enable the donor to cancel the gift for non-compliance of the direction contained therein, the revocation of the gift for any such reason, if at all permissible could only have been through a court of law unless, the cancellation is justified for the reason that it was not accepted by the donee. 6. It is indisputable that an idol is to be treated as a minor for all legal purposes. Hence, the acceptance of the gift as per Ext.A1 could be by any person on behalf of the donee. It is not disputed that Malingan Chuzhali Ashari was the Karnavan of the tharawad during the time of Ext.A1 and that along with Malingan Chuzhali Ashari, the donor (Raman Aithan Ashari) was also a trustee of the Bhandaram. It is contended by the respondent and, the courts below also found that there is no evidence to show that the gift was accepted by or on behalf of the donee at any time during the life time of donor (Raman Aithan Ashari). Learned counsel for the respondent, placing reliance on the decisions in Nani Amma Janaki Amma v. Kesava Kurup Gopala Kurup & Others [1969 KLR 355], Narayani Bhanumathi v. Lelitha Bhai [1973 KLT 961], Kakkacherra v. Chiyyayi [1988 (2) KLT 910], G.K.Krishnan v. K.Vasu and Others [1992 (1) KLJ 144] and Baby Ammal v. Rajan Asari [1997(1) KLT 340] SA No.229/1996 9 contended that unlike in English Law, there is no presumption of acceptance of gift even if it is not onerous and hence, the court cannot start with the presumption that Ext.A1 not being onerous was accepted by or on behalf of the donee. Learned counsel contended that Ext.B4 series and Ext.B5 series would show that donor has been paying the rent and revenue inspite of Ext.A1 which indicated that he was asserting right over the property as its absolute owner. It is also contended by the learned counsel that there is no evidence to show that at any point of time acting upon Ext.A1, rent or revenue was paid on behalf of the donee during the life time of Malingan Chuzhali Ashari or Raman Aithan Ashari (the donor). Learned counsel referred to me the evidence of PWs 1 and 2 in that regard. 7. Courts below found that though there was a direction for payment for the maintenance of the donor at the rate of Rs.24/- per year, the evidence of PWs 1 and 2 would show that the income derived from the yielding coconut trees in the suit property was very meager, not in any manner sufficient to meet the maintenance expenses payable to the donor as stated in Ext.A1 and that there is no evidence of payment of rent and revenue for the suit property or, maintenance to the donor as stipulated in Ext.A1. SA No.229/1996 10 8. In the decisions relied on by the learned counsel for the respondent it has been held that there cannot be a presumption regarding acceptance of the gift, be it not onerous and that there must be some evidence to show that the gift was accepted during the life time of the donor but, what is stated in those decisions is concerning the presumption as to the acceptance of the gift. But when the document itself recited that the possession of the property was given to the donee, then, a presumption of acceptance of gift would arise in favour of the donee. It was so held by a Division Bench of the Madras High Court in Kamakshi Ammal v. Rajalakshmi [AIR 1995 Madras 415]. The Supreme Court in K.Balakrishnan v. Kamalam [AIR 2004 SC 1257] held that when the gift is in favour of a minor created by the mother, natural guardian and she retained possession and the right of enjoyment, ownership of property by minor can be presumed by silent acceptance. In Asokan v. Lakshmikutty referred supra, it was held that:- “Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of SA No.229/1996 11 acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raises a presumption of acceptance. (See Sanjukta Ray v. Bimelendu Mohanty (AIR 1997 Ori.131), Kamakshi Ammal v. Rajalakshmi (AIR 1995 Mad. 415) and Samrathi Devi v. Parsuram Pandey (AIR 1975 Pat.140). Concept of payment of consideration in whatever form is unknown in the case of a gift. It should be a voluntary one. It should not be subjected to any undue influence. While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. It is not a case that the appellant was not aware of the recitals SA No.229/1996 12 contained in deeds of gift. The very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometime indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift.” Reference was made to a decision of this Court in Alavi v. Aminakutty & Others [1984 KLT SN 61) where it was held that: “It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that SA No.229/1996 13 possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donees”. (underline supplied) Therefore, though there is no presumption regarding acceptance of gift though not onerous, when the deed itself said that possession of the property is given to the donee, then, there is a presumption regarding its acceptance and the burden of proving that the said recital is not correct lay on the party who asserted so. 9. In this case, Ext.A1 states that: (underline supplied) SA No.229/1996 14 The further recital in Ext.A1 that from the day of Ext.A1 itself, the then Karnavan (Malingan Chuzhali Ashari) acting on behalf of the Bhandaram was to enjoy the property strengthened the recital regarding transfer of possession as per Ext.A1. I stated that Ext.A1 is not a onerous gift. There is no case or evidence that Malingan chuzhali Ashari was unaware of the gift. There is also no reason why Malingan Chuzhali Ashari should not have accepted the gift on behalf of the Bhandaram. In that circumstance there is no reason why the donee had not accepted the gift. It is pertinent to note that Ext.A1, the original gift deed was produced by the appellants from their custody. 10. Ext.A1 states and, it is not disputed also that Malingan Chuzhali Ashari as well as Raman Aithan Ashari, the donor were trustees of the Bhandaram (donee) during the time of Ext.A1. Exts.B4, B4(a) and B4(b) are receipts for payment of rent to the jenmi till 1.1.1951 , ie., before Ext.A1. Ext.B4 (c) is a receipt dated 9.7.1971 for payment of rent to the jenmi and that ofcourse come after Ext.A1 but just a few days before Exts.B11 and B1, respectively. Ext.B2 is a registered melpattam deed dated 15.7.1971 executed by Raman Aithan Ashari in favour of the respondent granting lease in favour of him over the suit property. In Ext.B2 there is no reference to Ext.A1 or, its alleged non-acceptance by the donee. Then comes to Ext.B11, cancellation deed dated 27.7.1971 and following that, Raman Aithan Ashari executed SA No.229/1996 15 Ext.B1, assignment deed dated 31.7.1971 in favour of the respondent. In Ext.B1 also there is no reference to Ext.A1 or its cancellation by Ext.B11. I stated that Ext.B4(c) is a receipt dated 9.7.1971, ie., a few days before Ext.B2, dated 15.7.1971. In Ext.B4(c) dated 9.7.1971 the rent for the period from 1132 to 1145 M.E. is seen paid. According to the respondent, Ext.B4 series and Ext.B5 series were given to him by Raman Aithan Ashari at the time of assignment of property as per Ext.B1. But, the respondent was also not able to produce receipts for payment of rent or revenue after 1.1.1951 and before Ext.B4(c) dated 9.7.1971. Moreover in Ext.B11 dated 27.7.1971 and Ext.B1, dated 31.7.1971, Raman Aithan Ashari has stated that rent and revenue were paid. In the light of the recital in Ext.A1 that possession of the property was given to the donee as on the date of Ext.A1 itself and the Karnavan was authorised to pay rent/revenue on behalf of the donee and also taking into account the fact that even on the date of Ext.A1, Raman Aithan Ashari was also a trustee of the Bhandaram and he later became Karnavan of the tharawad following the death of Malingal Chuzhali Ashari, in the absence of any contrary intention proved by acceptable evidence, payment of rent/revenue by Raman Aithan Ashari can only be understood as in his capacity either as trustee of the Bhandaram or as the Karnavan of the tharawad. Those payments do not indicate that Raman Aithan Ashari, in derogation of the gift asserted individual right over the suit property. Respondent has not succeeded in rebutting the SA No.229/1996 16 presumption of acceptance of gift in view of the recitals in Ext.A1 and the circumstances stated above. The courts below have not approached the issue in the correct perspective and instead, threw the burden of proof on the appellants. 11. Learned counsel for respondent then contended that at any rate, the finding of the courts below regarding non-acceptance of the gift as per Ext.A1 is a finding of fact which this Court is not required to interfere in Second Appeal as no substantial question of law is involved. No doubt, finding regarding the acceptance of gift is one of fact but in this case, courts below have proceeded on the wrong assumption that even inspite of the recitals in Ext.A1 and the admitted facts of the case which I have stated above as to the fiduciary relationship between the donor and donee at the time of Ext.A1, burden of proof was on the appellants to show that the gift was accepted, no evidence in that line was adduced and on the other hand, evidence revealed that Raman Aithan Ashari was in possession of the suit property. That finding is based on a wrong assumption of law regarding the position of an idol in the eye of law and the relevant recitals in Ext.A1. Therefore, this Court is justified in interfering with the finding of fact entered by the courts below. SA No.229/1996 17 12. On consideration of the entire matter, I am unable to accept the finding of the courts below that gift as per Ext.A1 was not accepted during the life time of donor and hence the donor was competent to execute Exts.B1, B2 and B11. 13. It is contended by the learned counsel for the respondent placing reliance on the decisions in Collector of Bombay v. Bombay Corporation (AIR (38) 1951 SC 469) and State of West Bengal v. The Dalhousie Institute Society (AIR 1970 SC 1778) that in this case since there is no evidence when actually Malingan Chuzhali Ashari died, though the suit is filed after ten years of Ext.B1, assignment deed dated 31.7.1971 the possession of the suit property with Raman Aithan Ashari must be taken as in his individual capacity as the owner, that possession can be tacked on with the possession of the respondent and thus, respondent has perfected title by adverse possession and limitation under Section 27 of the Limitation Act. This contention is also difficult to be accepted since I stated that there is no evidence that Raman Aithan Ashari was holding the property at any time after Ext.A1 in derogation of the gift made thereby or asserted his independent right over the suit property. Concededly, the suit is filed just ten years after execution of Ext.B1, assignment deed dated 31.7.1971. SA No.229/1996 18 14. Yet another contention advanced by the learned counsel for respondent is that at any rate, since a declaration is sought by the appellants that Ext.B1, assignment deed dated 31.7.1971 executed by Raman Aithan Ashari in favour of the respondent is null and void, Article 59 of the Limitation Act would apply and hence, the suit filed in the year 1981 is not maintainable. Learned counsel contends that going by the evidence of PWs 1 and 2, appellants were aware of Ext.B1 even before three years preceding the institution of the suit. Article 59 of the Limitation Act deals with suits for cancellation or setting aside an instrument or decree or for the rescission of a contract and prescribes a period of three years commencing from the time when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him. Article 59 of the Limitation Act deals with declaration or setting aside of the document which are not ab initio void. In so far as Ext.A1 stands, the donor had no authority to revoke it in the way it was done as per Ext.B11 and assign the property as per Ext.B1. When Ext.B1 is created