Kerala High Court
Narayani Thankamma vs C.Surendran on 8 April, 2010
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 202 of 2008()
1. NARAYANI THANKAMMA
... Petitioner
Vs
1. C.SURENDRAN, RESIDING AT KUZHIVILA
... Respondent
2. T.VASANTHY,
For Petitioner :SRI.L.MOHANAN
For Respondent :SRI.S.MOHAMMED AL RAFI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/04/2010
O R D E R
THOMAS P. JOSEPH, J.
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R.S.A.No.202 of 2008
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Dated this the 8th day of April, 2010.
JUDGMENT
This appeal was brought up by the legal representative of deceased defendant No.1 who consequent to the death of defendant No.1 got herself impleaded as the additional appellant No.2 before the first appellate court. She died pending this Second Appeal. Thereon, respondent No.2 who is otherwise a legal representative of the deceased appellant was, as per order dated 25.3.2010 transposed as additional appellant No.2.
2. Respondent No.1/plaintiff sued for a declaration of his title over the suit property and for prohibitory injunction to restrain deceased defendant No.1 and respondent No.2 who is now transposed as additional appellant No.2 from trespassing into the suit property. He claimed that the suit property was settled by his father, deceased defendant No.1 in his favour as per Ext.B2, settlement deed No.2161 of 1980 (CC of which is Ext.A1). By that settlement deed, A schedule property therein was settled in favour of the transposed additional appellant No.2. (Suit property is B schedule in Ext.B2) Respondent No.1 was in enjoyment of the suit property since Ext.B2. He was in custody of the original settlement deed (Ext.B2). While the transposed additional appellant No.2 took deceased defendant No.1 with her, deceased defendant No.1 took Ext.B2, the original settlement deed also with him. Thereafter deceased defendant No.1 RSA No.202/2008 2 executed Ext.B1, registered document of 1998 as per which Ext.B2 was cancelled. Deceased defendant No.1 was trying to execute a new document with respect to the suit property and hence the suit for declaration and prohibitory injunction. The transposed additional appellant No.2 (defendant No.2 in the trial court) remained exparte. Deceased defendant No.1 contended that the settlement deed has not taken effect and that there is no such property as stated in the plaint schedule. He claimed that he is in possession of six cents described in the plaint schedule and that the original settlement deed was in his custody. The transposed additional appellant No.2 conducted an automobile workshop for which she has constructed a shed in the said property with the permission of deceased defendant No.1. Respondent No.1/plaintiff fraudulently effected mutation of the property and paid tax. He had no right, title, interest or possession over the suit property. Learned Munsiff held that respondent No.1/plaintiff has title and possession over the suit property as per Ext.B2 and that the cancellation deed executed by deceased defendant No.1 is not valid and consequently granted decree in favour of respondent No.1/plaintiff. Deceased defendant No.1 preferred the appeal. During the pendency of the appeal he died. Thereon his wife (mother of respondent No.1 and transposed additional appellant No.2) got herself impleaded as additional appellant No.2. First appellate court confirmed the finding, judgment and decree of the trial court. Hence the Second Appeal. It is during the pendency of this appeal that original appellant died and thereon being a legal representative of the appellant, respondent No.2/defendant No.2 was transposed as additional appellant No.2. RSA No.202/2008 3 The substantial questions of law raised in the memorandum of appeal are whether the courts below were legally correct in construing Ext.B2 as a gift conveying right, title and interest in the suit property in presenti and whether the finding of the courts below that respondent No.1/plaintiff has title over the suit property is legally justifiable. Learned counsel for transposed additional appellant No.2 contends that findings of the courts below are erroneous in that Ext.B2 would only show that right was conferred on respondent No.1 and transposed additional appellant No.2 in respect of only a coconut tree while the land and the rest of coconut trees remained with deceased defendant No.1 which was to go to the benefit of the beneficiaries under Ext.B2 only after his death. Therefore Ext.B2 cannot be construed as a settlement or gift as the courts below thought. It is also the contention of the learned counsel that no specific issue was framed by the trial court as to whether Ext.B2 is a settlement or gift, or is only a Will as contended by deceased defendant No.1. Learned counsel for respondent No.1 would support the findings of the courts below.
3. It is true that trial court has not framed a specific issue as to whether Ext.B2 is a gift/settlement or a Will but issue No.1 framed by the learned Munsiff is whether respondent No.1 has title over the suit property as alleged by him which necessarily involved a decision whether Ext.B2 conveyed title in favour of respondent No.1. Therefore mere fact that a specific issue as suggested by the learned counsel was not framed, is not a ground to interfere with the concurrent finding entered by the courts below. RSA No.202/2008 4
4. Question is whether courts below are legally correct in holding that Ext.B2 is a settlement deed conveying title in presenti over the suit property in favour of respondent No.1 and additional appellant No.2. To consider this question reference to Ext.B2 is required (a copy of Ext.B2 has been given to me for perusal). As per Ext.B2, A schedule therein was settled in favour of additional appellant No.2. In Ext.B2 it is recited thus, " 1- 2- .
4262- ."
A reading of the recital in Ext.B2 according to learned counsel for transposed additional appellant No.2 would how that what is conveyed as per Ext.B2 is only right over one coconut tree each in favour of respondent No.1 and additional appellant No.2. But, I find myself unable to accept that contention. The earlier portion of recital extracted above shows that the properties scheduled in Ext.B2 RSA No.202/2008 5 along with one coconut tree each (which includes the suit property) were transferred to the beneficiaries under Ext.B2 but, the executant (deceased defendant No.1) reserved his right of enjoyment of the coconut trees standing thereon except two trees the right over which also was given to respondent No.1 and additional appellant No.2. This is further clear from the fact that deceased defendant No.1, executant has permitted respondent No.1 and additional appellant No.2 to effect mutation of the respective properties in their favour and obtain purchase certificates. Unless title of the suit property was conveyed to respondent No.1 he would not have been authorised to effect mutation and obtain purchase certificate. That, respondent No.1 effected mutation in his name and paid revenue is not disputed in that the contention raised by deceased defendant No.1 is that respondent No.1 did so fraudulently. It is also apposite to refer to Ext.B1, cancellation deed. There, the reason stated for cancellation is non-payment of revenue and non-compliance of condition in Ext.B2. I am unable to find Ext.B2 as a conditional settlement or gift. Thus, Ext.B1 also shows that there was in fact transfer of right, title, interest and possession of the property in favour of the beneficiaries under Ext.B2.
5. It is settled position of law that so far as a gift/settlement which is not onerous is concerned, only slight evidence of its acceptance is sufficient. In appropriate cases even the recital in the document as to transfer of right, title, interest and possession would be sufficient to show its acceptance (See Asokan v. Lakshmikutty (2008 (1) KLT 54) and Abdul Rahiman v. RSA No.202/2008 6 Abdul Zabar (2009 (2) KLT SN No.88 (Case No.88) SC). The mere fact that enjoyment of some of the fruit bearing coconut trees was reserved with and its enjoyment by the beneficiaries under Ext.B2 was deferred until the death of the executant (deceased defendant No.1) is not by itself sufficient to show that the settlement has not taken effect. It has been held by this Court in Gopalakrishnan v. Rajamma (2006 (4) KLT 377) that when the gift/settlement has taken effect and it is not conditional and no power for revocation is reserved with the executant, revocation can only be through the court. In the circumstances courts belows are legally and factually correct in holding that Ext.B2 amounted to a settlement of the suit property in favour of respondent No.1 and it was accepted and acted upon. Hence Ext.B1, cancellation deed is not valid. It followed that respondent No.1 is entitled to the reliefs prayed for. I do not find any substantial question of law involved in the matter requiring admission.
Resultantly, Second Appeal is dismissed in limine.
THOMAS P.JOSEPH, Judge.
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