Kerala High Court
Kunjikuttiamma vs Kunjikuttiamma on 5 February, 2001
Author: D. Sreedevi
Bench: D. Sreedevi
JUDGMENT D. Sreedevi, J.
1. This appeal is directed against the decree and judgment in A.S. No. 46/84 of District Court, Alappuzha, which was filed against the decree the judgment in O.S.No.62/83 of Additional Munsiff's Court, Cherthala. The plaintiff before the trial court is the appellant.
2. The plaintiff field the above suit for partition. According to the plaintiff, the plaint schedule properties belonged to Karthyayani Amma Kunjikutty Amma, the mother of the plaintiff and the first defendant. The second defendant is the son of her predeceased daughter Nandini Amma and the third defendant is the widow and defendants 4 and 5 are the children of her predeceased son Ramachandran Nair.Kunjikutty Amma died on 26.11.1982. On her death the properties devolved on the plaintiff and the defendants. The plaintiff and defendant 1 and 2 are entitled to 1/4 share each and others are entitled to one share jointly.
3. The first defendant resisted the suit contending that Kunjikutty Amma gifted the plaint schedule items, except item No. 3 to the first defendant under Ext.B1 gift deed. Item No.3 was given to the plaintiff. As the first defendant is in possession and enjoyment of plaint schedule items except item No.3, the suit for partition is not maintainable. The second defendant supporting the plaint claim claimed his share.
4. The trial court, after taking evidence, passed a preliminary decree for partition allowing the plaintiff to partition her 1/4 share over the property. Aggrieved by the said decree and judgment the first defendant has filed A.S. 46/84 before the District Court, Alappuzha. The learned District Judge set aside the finding of the trial court regarding the plaint schedule items 1 to 3 and the suit was dismissed in respect of plaint schedule items other than item No.3. Aggrieved by the said decree and judgment, this appeal is filed by the plaintiff.
5. The substantial question of law involved in this case is the following:
Is not the finding of the Court below that the plaintiff had accepted Ext.B1 gift during the life time of Kunjikutty Amma wrong in law, especially in view of the fact that due attestation of the same has not been proved?
6. The only question to be decided in this appeal is whether the court below was right in coming to the conclusion that Ext. B1 gift deed was executed and has been accepted by the donee? Admittedly, the plaint schedule properties belonged to Kunjikutty Amma as per the partition deed of the year 1969 evidenced by Ext.A1. Ext.B1 is the settlement deed alleged to have been executed by Kunjikutty Amma in favour of the plaintiff and the first defendant. S. 122 of the Transfer of Property Act defines gift. It reads as follows:
"Gift is transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of he donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving."
S.123 deals with the manner of execution of the gift deed. If the purpose is for making a gift of immoveable property must be effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. By reading Ss.122 and 123, it can be seen that in order to execute a valid gift, the following elements are to be proved: (1) It must be a voluntary transfer. (2) The gift must be accepted by the donor during the lifetime of the donee. (3) The gift must be effected by a registered document and it must be attested by two attestors. If all the above elements are fulfilled, there will be a valid gift, if not it will have no legal consequence.
7. The definite case of the plaintiff is that Ext.B1 gift deed is a fraudulent document and that it has not been accepted by the donee till the date of death of Kunjikutty Amma. The plaintiff would state that she was not aware of the gift deed till the written statement was filed by the first defendant. The first defendant would despose that she accompanied Kunjikutty Amma to the Sub Registry Office for the purpose of executing the gift deed. Admittedly, Kunjikutty Amma was 77 year old on the date of execution of Ext. B1. It is also seen that she was ailing for about 4 years prior to the date of her death. So the burden is heavy on the part of the first defendant to prove that the said gift was a gift executed by Kunjikutty Amma exercising her own free will. The plaintiff would allege that as Kunjikutty Amma was suffering from ailments, she was not capable of understanding things. Admittedly, the first defendant was residing with Kunjikutty Amma. It is also admitted that Kunjikutty Amma was undergoing treatment.
8. According to the first defendant Kunjikutty Amma was not suffering from any ailment before January 1983. But in cross-examination DW2 has admitted that she was undergoing treatment from Dr. Prabhakaran. PW2 is a tree climber of the plaintiff, defendant and kunjikutty Amma. PW3 was also a worker in the paint schedule properties. Both of them have deposed that Kunjikutty Amma was not in sound health. The second defendant is the grand child of Kunjikutty Amma, who used to visit Kunjikutty Amma and at times stays with her. Ext. B1 goes to show that 20 cents of nilam was allotted to the plaintiff and 81 cents of garden land was allotted to the first defendant. 20 cents of land is not lying as a barren land, Kunjikutty Amma was ailing and she was 77 years of age at the time of execution of the document. The first defendant was permanently residing with her. In the above background the evidence of the defendants has to be looked into.
9. In the replication the plaintiff has stated that the gift deed is not voluntary, fraudulent and the same has not come into effect. Since the donor is old and infirm, the first defendant has to establish that she was not in a position to dominate the will of the mother. DW2 has stated that all of a sudden Kunjikutty came to her house and asked her to accompany her to the Sub Registry Office. She agreed and went along with her and walked to some distance, took a taxi and went to the document writer's office and got the document drafted. Then they went to the Sub Registry Office, Kalavoor from where the gift deed was registered. According to DW2, Kunjikutty Amma did not consult her with regard to the details of gift. DW3 is an atterstor to Ext. B1. He has deposed that he has come to the document writer's office for writing another document. He has also deposed that when he went to the document writer's office, the first defendant and her mother were sitting tin that office. He states that he was told by them that they have come to execute a settlement deed. According to him, Kunjikutty Amma was healthy and was speaking coherently. He also states hat he has seen Kunjikutty Amma putting her signature in the document. Thereafter, he and the other witnesses put their signatures. According to him, at the time when Kunjikutty Amma put her signature, he and other attesting witnesses were present. The first defendant was also present there a bit away from Kunjikutty Amma.
10. DWs 3 and 4 deposed that Kunjikutty Amma was healthy at the time of executing the document. She was also healthy enough to climb the stairs, as the scribe's office was in the upstair portion of a building. It is also relevant to note that the first defendant has not signed the document as an attestor. The document was not presented for registration by the first defendant. Kunjikutty Amma herself went to the office of the scribe and got the document back. DW2 stated that she was not aware of the document till the same was handed over to her. The plaintiff's case is that in spite of the execution of the document, Kunjikutty Amma was taking the yield from the properties. The tree climber has deposed that Kunjikutty Amma was taking the income from the properties till her death. There is absolutely nothing on record to show that the first defendant has obtained possession over the properties before the death of the donor. If the gift deed was actually accepted by the first defendant, she would have taken he yield from the property and she would have effected mutation and paid the tax. Ext. B1 authorise the donee to effect mutation and to pay tax. Eventhough DW2 ha stated that she has paid tax, no tax receipt is forthcoming. These are all circumstances that goes against the first defendant.
11. It is true that the first defendant has produced the original title deed. As Kunjikutty Amma was residing with the first defendant, custody of the document is not at all relevant to prove that the gift deed was accepted and that it has taken effect. In order to create a valid gift, there must be two attesting witnesses. Only one attesting witness was examined in this case. That witness deposed that he has seen the second attesting witness signing the document. From this, it can be seen that the defendant failed to establish that the gift deed was attested by two attesting witnesses. Regarding the word 'Attested' the Supreme Court in the decision reported in M.L.Abdul Jabbar Sahib v. H. Venkata Sastri and sons (AIR 1969 SC 1147) held as follows:
"The word "attested", occurs in S. 3, T.P. Act, as part of the definition itself. To attest is to bear witness to a fact. The essential conditions of a valid attestation under S. 3 of T.P. Act are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attenstandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g. to certify that he is a scribe or a identifier or a registering officer, he is not an attesting witness."
12. Thus, from the evidence adduced, it can be seen that there is nothing to show that the gift was validly attested and the same was accepted by the donee. But, the learned District Judge came to the conclusion that as the gift deed was produced by the first defendant, it ha to be held that the gift has taken effect. That finding is perverse. By the production of the gift deed, after the death of the donor especially when the donor the donee were residing together, it cannot be said that the gift has been accepted by the donee. The learned District Judge went wrong in holding that the gift deed was accepted by the donee and that it has been validly executed by deceased Kunjikutty Amma. There is absolutely nothing on record to show as to why Kunjikutty Amma disinherited her grand son. Moreover, the gift also appears to be uncaucionable as barren land was allotted to the plaintiff and good yielding land was allotted to the first defendant. The question of law is answered in favour of the plaintiff.
13. In the result, the appeal is allowed and the decree and judgment appealed against are set aside and the decree and judgment of the trial court are restored to file.