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1 - 10 of 18 (0.21 seconds)Article 58 in Constitution of India [Constitution]
Article 59 in Constitution of India [Constitution]
Union Of India vs Ibrahim Uddin & Anr on 17 July, 2012
14(i). The learned Senior Counsel Shri
S.P.Balakrishnan vehemently argued on the
maintainability of the declaratory relief. He
contended that the wife had not sought possession
and the declaratory relief without seeking
possession cannot be granted by the Family Court.
We find this argument legally untenable in the
light of Section 34 of the Specific Relief Act,
1963. The wife could have sought recovery of
possession only if she could seek further relief
of possession. Admittedly, husband retained
possession and the right to enjoy property, in the
gift deed itself. The possessory right and the
right to enjoy property would be available to the
wife only after the demise of the husband.
Mat.Appeal Nos.1180/2015,
623/2016 & 984/2017
-:22:-
Therefore, wife cannot seek relief of possession
during the life time of the husband. The facts
being so, the precedents, Executive Officer,
Arulmigu Chokkanatha Swamy Koil Trust,
Virudhunagar v. Chandran & Ors (supra) and Union
of India v. Ibrahim Uddin & Anr. (supra) relied
upon by the learned Senior Counsel appearing for
the husband have no bearing on this case. The
above precedents are related to declaratory suits
where possession could have been sought and the
plaintiff did not ask for restoration of
possession of property. In those cases it was
held that a suit for declaration without
consequential reliefs is not maintainable.
S.Sarojini Amma vs Velayudhan Pillai Sreekumar on 26 October, 2018
In Sarojini Amma S. v. Velayudhan
Pillai Sreekumar [2018 KHC 6847], the Apex Court
upheld cancellation of the gift deed on the
premise that there was no completed gift of the
property. It was a case where the gift itself
would take effect only after the death of the
donor and her husband and it was also a
conditional gift deed. In such circumstances, the
Apex Court held that the cancellation deed
executed was valid. It is also to be noted in the
above case that there was no recital of acceptance
of the gift deed nor was there any evidence of
proof of acceptance of the gift deed.
C.Vijayalakshmi vs C.Gopalakrishna Menon on 7 September, 2010
13(v). The learned Single Judge of this Court
in Vijayalakshmi C. v. C.Gopalakrishna Menon [2010
(4) KHC 111] opined that when it was not an
onerous gift, the normal presumption is that the
donee in whose favour such a gift has been made
would be willing to accept the gift deed once he
or she comes to have knowledge of such gift. Some
of the other precedents relied upon by the learned
counsel Shri R.S.Kalkura is not referred here as
it has not much relevance for consideration of the
facts involved.
Pavakkal Noble John vs Kerala State on 3 September, 2010
13(vi). The Apex Court in Thota Ganga Laxmi
v. Government of Andhra Pradesh [2011 (3) KLT 345
(SC)] and this Court in Noble John v. State of
Kerala [2010 (3) KLT 941], and Hamsa P.A. v.
District Registrar General, Kozhikode and Others
[2011 (3) KHC 342 (DB)] frowned upon registration
of unilateral cancellation deed.
Executive Officer, Arulmigu ... vs Chandran & Ors on 10 February, 2017
14(i). The learned Senior Counsel Shri
S.P.Balakrishnan vehemently argued on the
maintainability of the declaratory relief. He
contended that the wife had not sought possession
and the declaratory relief without seeking
possession cannot be granted by the Family Court.
We find this argument legally untenable in the
light of Section 34 of the Specific Relief Act,
1963. The wife could have sought recovery of
possession only if she could seek further relief
of possession. Admittedly, husband retained
possession and the right to enjoy property, in the
gift deed itself. The possessory right and the
right to enjoy property would be available to the
wife only after the demise of the husband.
Mat.Appeal Nos.1180/2015,
623/2016 & 984/2017
-:22:-
Therefore, wife cannot seek relief of possession
during the life time of the husband. The facts
being so, the precedents, Executive Officer,
Arulmigu Chokkanatha Swamy Koil Trust,
Virudhunagar v. Chandran & Ors (supra) and Union
of India v. Ibrahim Uddin & Anr. (supra) relied
upon by the learned Senior Counsel appearing for
the husband have no bearing on this case. The
above precedents are related to declaratory suits
where possession could have been sought and the
plaintiff did not ask for restoration of
possession of property. In those cases it was
held that a suit for declaration without
consequential reliefs is not maintainable.