Kerala High Court
Savithri vs Ramesh on 12 August, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936
RSA.No. 1387 of 2013 ()
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AS 424/2007 of ADDITIONAL DISTRICT COURT, IRINJALAKUDA
IN OS 503/2006 of PRL.SUB COURT,IRINJALAKUDA
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APPELLANTS/APPELLANTS/DEFENDANTS :
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1. SAVITHRI, W/O. THAYYIL APPU & PAPPU, AGED 77 YEARS,
VADAMA DESOM, VADAMA VILLAGE, MUKUNDAPURAM TALUK,
PIN - 680736
2. ANITHA, D/O. THAYYIL APPU @ PAPPU, AGED 55 YEARS,
(W/O. PUNCHAPARAMBIL NADARAJAN), KARUMATHRA DESOM,
KARUMATHRA VILLAGE, MUKUNDAPURAM TALUK, PIN-680123.
3. LALITHA, D/O. THAYYIL APPU @ PAPPU, AGED 48 YEARS,
(W/O. LLLIKKAL SUBRAMANYAN), PADIJARE CHALAKUDY DESOM,
PADINJARE CHALAKUDY VILLAGE, MUKUNDAPURAM TALUK-680307.
BY ADVS.SRI. V.V.N. MENON
SRI. A.C. DEVY
RESPONDENT/RESPONDENT/PLAINTIFF :
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RAMESH, S/O. THAYYIL APPU & PAPPU, AGED 46 YEARS,
VADAMA DESOM, VADAMA VILLAGE, MUKUNDAPURAM TALUK-680736.
BY ADV. SRI.SHAJI THOMAS
BY ADV. SRI.N.NAGARESH
BY ADV. SRI.BINU PAUL
BY ADV. SRI.T.V.VINU
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 12-08-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BP
P.BHAVADASAN, J.
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R.S.A. No. 1387 of 2013
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Dated this the 12th day of August, 2014
J U D G M E N T
The issue involved in this second appeal is regarding the validity and genuineness of Ext.A1 document, a gift deed said to have been executed by the first defendant in favour of the plaintiff in the case. Both the courts below on an appreciation of the evidence in the case, found Ext.A1 dated 23.02.1995 to be a valid document, whereby, vested right was created in favour of the plaintiff in the suit by the first defendant with a postponed right of enjoyment and possession.
2. It seems that the property originally belonged to the husband of the first defendant in the suit. On his death, the property devolved on the plaintiff and the defendant in the suit. A partition deed was executed whereby, 1.74 acres of land was given to the plaintiff and 30 cents was allotted to the first defendant. It is significant to notice that in the R.S.A. No. 1387 of 2013 -2- partition deed, there is a specific recital that the daughters had relinquished their rights over the property and they chose not to take any share in the property at all. Subsequently, on the very day on which the partition deed was executed, Ext.A1 document was also seen to have executed by the mother, who is the first defendant in the suit, in favour of the son gifting away the property she obtained as per the partition deed.
3. Later on, it appears that the first defendant chose to cancel Ext.A1 document by Ext.A4 document and then executed another document Ext.A3, dated 24.12.2006 in favour of the daughters. Assailing the cancellation deed and the document in favour of the daughters, suit was laid by the son, the plaintiff in the suit.
4. The defendants filed a common written statement. The main ground urged was that Ext.A1 is a Will and not a gift deed as alleged in the plaint and that has not taken effect since the testator was alive as on the date of filing of R.S.A. No. 1387 of 2013 -3- the suit. It is also contended that it was a fraudulent document brought about by the plaintiff concealing the true facts from the donor namely the first defendant and making her to believe that she was actually signing in the partition deed which was executed on the same day. Pointing out that, by virtue of Ext.A1 gift deed, which was subsequently cancelled by Ext.A4 document, the plaintiff derived no rights over the property covered by Ext.A1 and they prayed for a dismissal of the suit.
5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants had DW 1 examined.
6. On an appreciation of the evidence in the case, both the courts below came to the conclusion that Ext.A1 is the valid document creating a vested interest in favour of the plaintiff and cancellation deed is bad in law. The suit R.S.A. No. 1387 of 2013 -4- was decreed which was confirmed in appeal.
7. The learned counsel appearing for the appellants contended that both the partition deed as well as Ext.A1 are fraudulent documents and which were executed by incompetent persons. As the properties originally belonged to the father of the first defendant, on his death, it devolved equally on the first defendant and her children. It was contended on behalf of the appellant that the daughters are not parties to the partition deed and they are not bound by the same. The partition deed is bad in law. It is also contended that it is clear from the sequence of events that Ext.A1 document gifted in favour of the plaintiff was a fraudulent document and that the signature of the first defendant on that document was obtained by making her believe that she was executing a partition deed. The learned counsel went on to point out that the result of the fraud played by the plaintiff is that the daughters have been deprived of their legitimate share in the suit property which R.S.A. No. 1387 of 2013 -5- devolved on them also consequent on the death of their father. It is also contended that a proper reading of Ext.A1 document would show that it is only a Will and not a gift as found by both the courts below. No possession of the property is given and the donor retains rights over the property. That being the position, there is nothing to show that gift has been accepted and possession has been delivered. In view of that fact also Ext. A1 cannot be treated as good in law. If that be so, the cancellation deed and the subsequent assignment in favour of the daughters are valid.
8. The learned counsel appearing for the respondent on the other hand contended that all the persons who are entitled to a share consequence on the death of the husband of the first defendant were parties to the partition deed and it is significant to notice according to the learned counsel, that in the joint written statement filed by the defendants, they do not assail the partition deed at all. That the parties stand by the partition deed is further fortified by the fact R.S.A. No. 1387 of 2013 -6- that Ext.A3 settlement deed in favour of the daughters is executed on the basis of the partition deed and if that be so, the claim of defendants now that the partition deed was a fraudulent document cannot stand. Nowhere in the written statement it is pointed out by the contesting defendants that partition deed is bad in law and does not bind the 2nd and 3rd defendants at all. In fact, a reading of the joint written statement would show that they stand by the partition deed and their only case seems to be that Ext.A1 was got executed on the same day by playing fraud on the first defendant. The learned counsel went on to point out that a close reading of Ext.A1 would show that interest and rights in the property have been transferred in favour of the plaintiff by the first defendant and she had reserved only a life interest in her favour. That is a well known mode of gift of a property whereby the donor reserves right to take income from the property. But that does not mean that the gift has not taken effect. Both the courts below on an R.S.A. No. 1387 of 2013 -7- appreciation of the evidence have come to the conclusion that Ext.A1 has taken effect and that is good in law. Exercising the jurisdiction under Section 100 of C.P.C., the learned counsel points out that there is no ground to interfere with the judgment and decree of the courts below.
9. After having heard the learned counsel on both sides, and after having perused the records now available, it is found that there is considerable force in the submissions made by the learned counsel for the respondent.
10. First of all, Ext.A1 document gift deed in favour of the son executed by the first defendant is in the year 1995 to be more precise, dated 23.02.1995. As rightly pointed out by the learned counsel for the respondent, in the joint written statement filed by defendants 1 to 5 that is the mother and her daughters, there is no grievance that the partition deed executed by the sharers was an invalid document and that no share was given to the daughters. It seems that daughters relinquished their rights in favour of R.S.A. No. 1387 of 2013 -8- the plaintiff and the first defendant. From the joint written statement, it can be seen that in fact, the defendants stand by the partition deed and their only grievance is that Ext.A1 was got executed on the same day by playing fraud on the first defendant.
11. Ext.A1 is the gift deed in favour of the plaintiff. That Ext.A1 relates to the property obtained by the first defendant in the partition is an admitted fact going by the written statement of defendants in the suit.
12. Two fold contentions are raised against Ext.A1. (1) It is only a Will and therefore the testator is competent to cancel the Will and (2) No rights have passed under Ext.A1 document.
13. On a reading of Ext.A1, both the courts below have come to the conclusion that it is a gift in praesenti with a future right of possession and enjoyment and therefore it could not be said that Ext.A1 is a Will.
R.S.A. No. 1387 of 2013 -9-
14. On going through the records, it is seen that Ext. A1 creates interest in praesenti in favour of the plaintiff though the right of enjoyment and possession is postponed to future dates. The terms of the document squarely fall within Section 19 of the Transfer of Property Act and it cannot be treated as contingent deed though so treated by the trial court. A vested interest once have been created cannot be taken away by a subsequent document.
15. As regards the competency of the first defendant to execute the document, there cannot be any dispute because, the partition deed is accepted by the defendant is clear from their written statement. Further, the cancellation deed comes 11 years after the execution of the gift deed. It is difficult to believe that the donor would not have known about the execution of Ext.A1 for such a long time.
16. On going through the recital in Ext.A1, it is seen that the donor has reserved the right to take income from the property and to retain possession during her life time. R.S.A. No. 1387 of 2013 -10- But there is a clear recital to the effect that she has given up her right of alienation of the suit property that any alienation in future has to be as a joint venture between the plaintiff and the first defendant. It is also seen that the plaintiff was given right to effect mutation and also to enjoy the property after life time of the donor. As already noticed, it cannot be treated as a contingent gift but only as a document creating a vested interest in the property in praesenti with postponed right or enjoyment . Merely because there is a postponement of possession and enjoyment, that does not derogate from the right created in favour of the plaintiff.
17. Both the courts below have eloborately analyzed the evidence and have come to the conclusion that Ext.A1 is a valid document and there are no vitiating elements proved by the defendants to set aside the said document. Consequently the courts below were also of the opinion that Exts.A3 and A4 cannot have any sanction of law. R.S.A. No. 1387 of 2013 -11-
18. As rightly pointed out by the learned counsel for the respondent, the findings entered into by the courts below are on appreciation of the evidence in the case and are pure questions of fact. No substantial question of law arises for consideration in this second appeal.
This appeal is without merits and is accordingly dismissed in limne.
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P.BHAVADASAN JUDGE ds //True Copy// P.A. To Judge