Case: ILLOTH VALAPPIL AMBUNHI (D) BY LRS Vs. KUNHAMBU KARANAVAN

3. The facts giving rise to this Appeal are very briefly enumerated hereinafter: Raman Aithan Ashari, hereinafter referred to as Raman, executed a deed of gift of the said property in favour of the Bhandaram. According to the appellants, though the deed of gift stated that possession had been delivered, there was no evidence of acceptance of the gift or of the Bhandaram being in possession. No presumption of acceptance of the gift could arise on the basis of the recital of delivery of possession in the deed of gift as the donee was only an inanimate body and there was no evidence of any person accepting the gift or entering into possession on its behalf.The appellants contend that the gift did not take effect and Raman continued in possession, paying rent and revenue for the property in his name. He later cancelled the gift by a deed of cancellation dated 15 th July, 1971 and sold the property to the original appellant on 31 st July, 1971. The original appellant was given possession thereafter and he made improvements to the suit property.According to the appellants, on or about 7 th December, 1981, long after the original appellant had purchased the suit property, the respondents being the family members of Raman, and members of Kizhakke Veethil Tarwad filed the instant suit for declaration that the Deed of Cancellation and the deed of transfer were invalid, null and void.It was the case of the respondents that they were owners of the Bhandaram which had come to own the suit property by virtue of the deed of gift. Upon execution of the deed of gift Raman had divested himself of title to the suit property and hence was incompetent to execute any further deed, transferring the suit property to the appellants herein and/or their predecessor in interest being the original appellant.

Reasoning:
19. A careful reading of the judgment of the High Court under Appeal makes it absolutely clear that those are the questions which have, in effect and substance, been addressed. In our view, a mere error in framing a question of law would not render a judgment in Second Appeal liable to be set aside, if it is found that a substantial question of law existed and such substantial question of law has in fact been answered by the High Court as in this case.The proposition of law that when the document of transfer by gift records delivery of possession, a presumption of acceptance would arise, in the absence of overt repudiation of the gift, by and/or on behalf of the donee, is unexceptionable. As held by the High Court, when the deed itself said that the possession of the property was given to the donee, the burden of proving, that the said recital was not correct, lay on the party who asserted so. In our view, the law has correctly been appreciated and enunciated by the High Court.The High Court took note of the recital to the effect that Karnavan (Malingan Chuzhali Ashari) acting on behalf of the Bhandaram was to enjoy the property from the date of the gift, which was strong evidence of transfer of possession.The High Court rightly found that there was no direction in the gift deed which made the gift onerous as understood in Section 127 of the Transfer of Property Act. In all fairness to the appellants, this has not even been argued before the High court. The gift not being onerous, there was no reason why Malingan Chuzhali Ashari should not have accepted the gift on behalf of the Bhandaram.As noted by the High Court, there is no dispute that Malingan Chuzhali Ashari and the donor Raman were trustees of the Bhandaram (donee) at the time of execution of deed of gift. The fact that nothing was done by Raman or any other trustee of the Bhandaram to repudiate the gift in itself shows that the deed of gift was duly accepted by the Bhandaran.The High Court rightly held that the Courts below had proceeded on the wrong assumption that even in spite of the recitals in Exh. A1, being the deed of gift and the admitted facts of the case, the burden of proof was on the respondents to show that the gift had been accepted. The findings of the Trial Courts and the First Appellate Court were based on a wrong assumption of law regarding the possession of an idol in the eye of law and the relevant recitals in Exh. A1 (deed of gift).The High Court rightly declined to accept the findings of the Courts below that the deed of gift had not been accepted during the lifetime of the donor, in the absence of any evidence of non acceptance of the same. The deed of gift did not provide for reversion of the suit property to the donor in case of failure to pay maintenance to the donor in terms of the deed of gift. The High Court, therefore arrived at the conclusion that Raman was not competent to execute the deed of cancellation or the deed of transfer, as he had ceased to be the owner of the suit property.The High Court held, and rightly, that Article 59 of the Limitation Act deals with suits for cancellation for setting aside an instrument or decree or for rescission of a contract and prescribes a period of three years commencing from the time when the fact entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded is first known to him. So far as Exh. A1 being the deed of gift is concerned, the donor had no authority to revoke the same. Hence, the subsequent documents were in themselves without authority and null and void. The declaration was only incidental to the title and possession of the donee and hence Article 59 had no application.In S. Sarojini Amma vs. Velayudhan Pillai Sreekumar (2018 SCC Online SC 2200) this Court found on facts that the gift was conditional and the conditions had not been complied with. Furthermore on facts it was found that the gift in the aforesaid case was to take effect at a subsequent date. The Judgment is distinguishable on facts.In our view, the Second Appeal has rightly been allowed by the High Court.It is true, as rightly argued by learned senior counsel appearing on behalf of the appellant, that the High Court does not, in Second Appeal, embark upon re-analysis of evidence and interfere with the concurrent findings of facts. It is well settled that the condition precedent for interference under Section 100 of the CPC is the existence of a substantial question of law.It is now well settled that perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the CPC.The first question may not have properly been framed. Perhaps the question should have read- whether the finding of the Trial Court with regard to non acceptance of the deed of gift, confirmed in appeal, was vitiated by perversity and if it was so vitiated, whether the unilateral revocation of the deed, by the donor, can be sustained in law.