This second appeal challenged a title suit decreeing a gift deed. The Court held that the below courts' factual findings regarding the gift deed's validity and acceptance by donees could not be re-agitated on facts, thus dismissing the appeal.
Second Appeal dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936
RSA.No. 1040 of 2006 ( )
(AGAINST THE JUDGMENT IN AS.NO. 41/1999 OF ADDL.DISTRICT COURT, PATHANAMTHITTA DATED 30-09-2005)
(AGAINST THE JUDGMENT IN OS.NO. 581/1990 OF MUNSIFF COURT, PATHANAMTHITTA DATED 29-08-1998)
APPELLANT(S)/APPELLANTS:
1. DAMODARAN ACHARI,
HINDU, AGED 70 YEARS, S/O. RAMAN ACHARI, RESIDING AT MELEMANNIL, VALLIKODE -, KOTTAYAM VILLAGE,KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. (DIED)
*ADDL.A2. CHELLAMMA,AGED 60 YEARS, W/O. DAMODHARAN ACHARI, MELEMANNIL HOUSE, VALLIKODE KOTTAYAM, KOZHENCHERRY TALUK.
2/-
sts
-2-
RSA.NO.1040/2006
*ADDL.A8. MRS. INDIRA, AGED 39 YEARS, D/O.LATE DAMODHARAN ACHARI, VELLARA MURUPPEL HOUSE, THAZHOM.P.O., MALAYALAPPUZHA, PATHANAMTHITTA.
*ADDL.A2 TO A8 ARE IMPLEADED AS THE LR'S OF THE DECEASED SOLE APPELLANT VIDE ORDER DATED 25/3/2010 IN IA.NO.852/2010.
BY ADDL.A2 TO A8 ADV.SRI.N.N.SASI
RESPONDENT(S):
R1. PONNAMMA, HINDU, AGED 75 YEARS, D/O. KALYANI, RESIDING AT SREENILAYAM, KORATTIKKATTU MURI, MANNAR VILLAGE, CHENGANNOOR TALUK, ALAPPUZHA DISTRICT.
*ADDL.R2. M.R.THANKAPPAN ACHARI,HINDU, AGED 60 YEARS,
VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.
*THE SECOND APPELLANT IS HEREBY TRANSPOSED AS THE ADDITIONAL RESPONDENT IN THE APPEAL VIDE ORDER DATED 24/1/07 IN RSA.NO.1040/06 & CMAPPL.NO.767/06.
R1 BY ADVS. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.N.K.KARNIS SRI.LATHEESH SEBASTIAN R2 BY ADV. SRI.R.SANTHOSH BABU
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-09-2014, THE COURT ON 20-10-2014 DELIVERED THE FOLLOWING:
sts
RSA.NO.1040/2006
APPENDIX
PETITIONER'S ANNEXURES:
ANNEX A ORGINAL COPY OF MEDICAL CERTIFICATE DATED 9/11/06. ANNEX B COPY OF THE RESURVEY PLAN ISSUED BY VILLAGE OFFICER, VALLICODE-KOTTAYAM
ANNEX C COPY OF THE 'THANDAPER RECORD' ISSUED BY VILLAGE OFFICER VALLICODE-KOTTAYAM.
RESPONDENT'S ANNEXURES:
| ANNEX R1 | COPY OF THE OBJECTION FILED BY THE APPELLANTS IN E.P.15 OF 2006 IN O.S.581/90 BEFORE THE MUNSIFF'S COURT, PATHANAMTHITTA DATED 21/3/2006 |
|---|---|
| **ANNEX R1(A) ** | COPY OF THE OBJECTION FILED BY THE APPELLANTS IN E.P.15/2006 IN O.S.581/90 BEFORE THE MUNSIFF'S COURT, PATHANAMTHITTA DATED 26/7/2006 |
| **ANNEX R1(B) ** | COPY OF THE OBJECTION FILED BY THE APPELLANTS IN E.P.15/2006 IN O.S.581/90 ON THE FILES OF THE MUNSIFF'S COURT, PATHANAMTHITTA DATED 28/10/2006. |
/TRUE COPY/
P.A.TO.JUDGE
sts
A.V.RAMAKRISHNA PILLAI, J.
= = = = = = = = = = = = = = R.S.A No.1040 of 2006
= = = = = = = = = = = = = = = Dated this the 20th day of October, 2014
JUDGMENT
The defendants are the appellants.
RSA.1040/2006
-:2:-
RSA.1040/2006
-:3:-
with this background, they have come up before this Court.
learned Senior Counsel for the respondent.
property on the basis of Ext.A1 executed by the father of the respondent and the appellants. The main contention raised by the appellants was that Ext.A1 document did not come into effect and it was the result of fraud perpetuated by the respondent over the father. They would contend that till the death of the father, he was dealing with the property as if it were his own and, therefore, there is absolutely no reason to believe that Ext.A1 document was executed by the father in favour of the respondent with the knowledge that it was a gift deed.
RSA.1040/2006
-:4:-
gift deed has been accepted or not is a pure question of fact and in the light of the concurrent finding entered into by the courts below on that question, the same cannot be re-agitated here. Though the learned counsel for the appellants relied on the decision of the High Court of Punjab and Haryana in Tirath v. Manmohan Singh and others (AIR 1981 Punjab and Haryana 174), the same will not help the appellant in the light of para
(10) of the judgment which is extracted below:
“As regards the contention that the gift was not complete as there was no delivery of possession to the donees I do not find any merit therein. Once it is held that Smt. Banti had become the full owner of the suit land, the plaintiffs have no right to challenge her alienation and as such the suit cannot be held to be maintainable. In any case, the gift-deed has been signed by the donees in token of their acceptance of the same and it is only the donor who could object to the delivery of possession. If the donor supports that a valid gift was made, then non delivery of possession if any, becomes immeterial. Section 123 of the Transfer of Property Act, provides that for the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. In the present case, the compliance with that provision has been
RSA.1040/2006
-:5:-
made and under the circumstances the non-delivery of possession, if any, is of no consequence, particularly when the plaintiffs have no right to challenge the gift itself. “
the appellants have no case that the respondent was in a position to dominate the Will of their deceased father. It was contended that their father has signed Ext.A1 document as he was made to believe that it was a document in connection with a chitty transaction. The court below relying on Ext.B1 has observed that the deceased father of the parties was literate.
As the appellant is agitating a pure question of fact, this Court is of the view that the scope of interference of this Court in second appeal is little. Therefore, the appeal fails and accordingly, it is dismissed. No order as to costs.
Sd/A.V.RAMAKRISHNA PILLAI JUDGE
krj
/True Copy/
P.A to Judge
3 issues framed by the court
Whether the gift deed was executed fraudulently without consideration.
Whether the delivery of possession is necessary for a valid gift deed when the donee accepts it.
Whether this Court can interfere with findings on facts regarding gift deed acceptance.
Colour shows how this judgement treated each authority
Tirath v. Manmohan Singh and othersExplained¶69
AIR 1981 Punjab and Haryana 174 · Who else cites this
DAMODARAN ACHARI wwwRepresentedByOthers
PONNAMMA
M.R.THANKAPPAN ACHARI
M.R.THANKAPPAN ACHARI
A.V.RAMAKRISHNA PILLAI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
