Kerala High Court
Thankappan vs V.Chellappan on 5 February, 2020
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941
RSA.No.422 OF 2008
AGAINST THE JUDGMENT AND DECREE DATED 29-09-2007 IN AS 106/2001 OF
ADDITIONAL DISTRICT COURT, PATHANAMTHITTA
AGAINST THE JUDGMENT AND DECREE DATED 31-07-2001 IN OS 391/1998
OF MUNsIFF COURT, ADOOR
APPELLANT/RESPONDENT/DEFENDANT:
THANKAPPAN
ELAMTHADATHIL KIZHAKKETHIL, MUNDAPPALLY MURI,
PERINGANAD VILLAGE,
PATHANAMTHITTA DISTRICT.
BY ADVS.
DR.PAULY MATHEW MURICKEN
SRI.V.PHILIP MATHEW
RESPONDENT/APPELLANT/PLAINTIFF:
V.CHELLAPPAN,
BAIJU BHAVAN (PULIPARAMBIL),
CHUNAKKARA KIZHAKKUMMURI,
CHUNAKKARA VILLAGE FROM ELAMTHADATHIL KIZHAKKETHIL,
MUNDAPPALLY MURI,PERINGANADU VILLAGE.
R1 BY ADV. SRI.K.S.MANU PUNUKKONNOOR
R1 BY ADV. SRI.P.SREEKUMAR
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No.422 OF 2008 2
CR
JUDGMENT
What actually constitute a 'conditional gift' and whether the reservation of right or interest and right to encumber the property for a specified amount would make the document a conditional gift is the question came up for consideration.
2. The dispute involved is with respect to the construction of Ext.A1 gift deed which according to the plaintiff is a conditional gift. Ext.A1 gift deed is of the year 1963. After the expiry of 34 years, the donor cancelled the same unilaterally under Ext.B2 of the year 1997 and executed a Will, Ext.B3. The suit for partition was dismissed by the trial court, but in appeal, a preliminary decree for partition was granted.
3. In Ext.A1 gift, a life interest of the donor and his wife Velumbi was reserved. A right to encumber the property to an extent of Rs.200/- and Rs.100/- each was also reserved. The various clauses incorporated in Ext. A1 gift of the year 1963 includes a RSA.No.422 OF 2008 3 right given to the donee to effectuate mutation and transfer of ownership over the property from the date of its execution. A mere reservation of life interest with the donor or with the wife of donor and a right to encumber the property to a specified amount, though amounts to a condition attached with the gift, it is only a liability cast upon the subject of the gift and not a condition which would decide the validity of the gift.
4. The expression 'conditional gift' stands for 'a condition precedent to effectuate a gift' and not a 'condition attached with the gift or a liability or reservation made therein'. A condition which would decide the fate of gift and a condition imposed over the subject of the gift ( immoveable property) are different and govern different fields. There can be a condition governing the factum of gift and also there can be a condition imposed on the subject of the gift. A condition governing factum of gift is a condition precedent and the gift would stand as conditional gift. A condition imposing a liability over the subject of the gift ( immoveable property) is only a condition RSA.No.422 OF 2008 4 attached with the subject of the gift and it will not affect the factum of gift given. A condition precedent should be understood as the one which would effectuate a gift on its happening and not the liability imposed over the subject of the gift. When there is a condition precedent, the gift would not come into operate till the happening of that condition. Necessarily, a condition precedent should be understood as the one imposed by the donor which would happen in future, so as to effectuate or not to effectuate the gift thereunder. A gift may be made conditionally or it may be made contingent upon the happening of an event. In both the cases, it should be a condition precedent, which would decide whether the gift would come into effect or not. A liability imposed or a reservation made therein in favour of the donor should not be understood as a condition precedent to effectuate a valid gift. Ext.A1 gift deed hence is not a conditional gift. What is incorporated therein is only a liability and a reservation made by the donor over the property and the same would not make the gift as a conditional gift.
RSA.No.422 OF 2008 5
5. On coming into the question whether the gift was actually accepted and came into effect, the authority given to the donee to mutate the property in the name of donee by divesting title to the property and to effect transfer of ownership from the date of its execution would itself show that the title was divested on the date of its execution. The deed of cancellation was executed after the expiry of 34 years from the date of its execution. By that time, the property was mutated by the donee and was paying basic tax. All these amounts to acceptance of gift. As such, the legal position settled by the Apex Court in Naramadaben Maganlal Thakker v. Pranjivandas Maganal Thakker and Ors. [ (1997) 2 SCC 255] will not improve the case advanced by the appellant. Even otherwise, by virtue of operation of Section 3 of Transfer of Property Act and the definition given to the expression 'when a person is said to have notice' would constitute a constructive notice to the beneficiary under the document and this court has laid down the legal position in Ramachandran Nair v. Raghavan Nair ( 2019(3) KLT 831 = 2019(4) KHC 671). Inorder to RSA.No.422 OF 2008 6 complete a valid gift of immoveable property, it is not necessary that the person should take possession of the property, except in the case of Mohammedan gift.
Yet another ground also raised that the person who was holding life interest over the property, Velumbi, the wife of executant, was not made as a party to the suit. It is not at all necessary to include the person who is holding life interest over the property as a party to the suit for partition. In the instant case, she passed way during the pendency of the appeal. As such it has no much relevance. No other substantial question of law involved. Appeal fails, dismissed. No costs.
Sd/-
P.SOMARAJAN JUDGE sv