Allowed

Latheef v. Prasanna Kumari

Kerala HC16 Feb 2018FAO (RO)/295/2013

Case brief

AI extract

What is this about?

Appeals against an order remanding a title suit. The High Court held the plaintiff failed to prove acceptance of the gift, deemed it ineffective, validated the father's subsequent cancellation and sale deeds, and restored the lower appellate court's judgment dismissing the plaintiff's suit.

What did the court decide?

The remand order is set aside; the lower appellate court's judgment is restored; the plaintiff's title prayer is not allowed.

Latheef Vs Prasanna Kumari — Succession and Inheritance | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW

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FRIDAY, THE 16TH DAY OF FEBRUARY 2018 / 27TH MAGHA, 1939

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FAO (RO).No. 295 of 2013

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-------------------------

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AGAINST THE JUDGMENT DATED 30-05-2013 IN AS 82/2011 OF DISTRICT JUDGE, ALAPPUZHA IN JUDGMENT DATED 23-08-2011 IN OS 117/2008 OF THE COURT OF THE SUBORDINATE JUDGE,CHERTHALA

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APPELLANTS/RESPONDENTS 2 & 3/DEFENDANTS 2 & 3:

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1 LATHEEF,

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S/O.YUSAF HAJI, AGED ABOUT 40, MATTATHIL CHEMMANTHATTA P.O.,

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PAZHUNNANA DESOM, CHOWWANNOOR VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT.

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2 M.Y.ABDULLA HAJI, S/O.YUSAF HAJI,AGED ABOUT 50,

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MATTATHIL CHEMMANTHARA P.O.,

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PAZHUNNANA DESOM, CHOWANNOOR VILLAGE, TALAPPILLY

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TALUK, THRISSUR DISTRICT.

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BY ADVS.SRI.P.K.IBRAHIM

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SMT.K.P.AMBIKA SMT.A.A.SHIBI

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RESPONDENTS/APPELLANT & RESPONDENT NO.1/PLAINTIFF & DEFENDANT NO.1:

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1. PRASANNA KUMARI,

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W/O.SREEKUMAR, AGED 38, SREEHARI, ADUVASSERIKARA, KUNNUKARA

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VILLAGE, PARUR TALUK, ERNAKULAM - 683 524, FROM SANKARA

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VILASATHU, PANAVALLY VILLAGE AND MURI,

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CHERTHALA TALUK, ALAPPUZHA DISTRICT.

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2. SUKUMARA PILLAI,

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S/O.PADMANABHA PILLAI, AGED ABOUT 43, AISWARYA, AROOR VILLAGE AND

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MURI, CHERTHALA TALUK, ALAPPUZHA DISTRICT - 688 534.

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R-R1 BY ADV. SRI.V.S.CHANDRASEKHARAN

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R-R1 BY ADV. SRI.M.V.DAS

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R-R1 BY ADV. SMT.LEKSHMI SWAMINATHAN

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R-R1 BY ADV. SMT.SWAPNA.S.A.

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER ALONG WITH FAO(RO)NO.305 OF 2013 HAVING BEEN FINALLY HEARD ON 16-02-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.ABRAHAM MATHEW,J

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FAO(RO).NOS.295 & 305 OF 2013

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Dated this the 16^th day of February, 2018

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COMMON JUDGMENT

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These two appeals arise from the order passed by the District Judge, Alappuzha in A.S.82/2011 by which he remanded the suit to the trial court so that the plaintiff may amend the plaint incorporating the prayer of recovery of possession of property.

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The appellants in F.A.O.295/2013 are defendants 2 and 3 and the appellant in F.A.O.305/2013 is the 1^st defendant. The 1^st respondent in both appeals is the plaintiff.

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The plaintiff and the 1^st defendant are children of one Padmanabha Pillai. The plaint A schedule property along with other properties were in his ownership and possession. On 12.3.2004 he executed a gift deed in favour of the plaintiff in respect of the plaint schedule properties. He executed gift deeds in favour of the 1^st defendant and other sons also on the same day. On 18.6.2004 he executed a deed by which he cancelled all the gift deeds. Later, he

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FAO(RO).NOS.295 & 305 OF 2013 2

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executed sale deed No.2649/2006 in favour of the 3^rd defendant and sale deed No.2650/2006 in favour of the 2^nd defendant. The suit is instituted on the allegation that after the execution of the gift deed in favour of the plaintiff the plaint A schedule property has been in her ownership and possession and her father (donor) had no right to cancel the gift deed and the cancellation deed, and the subsequent sale deeds in favour of defendants 2 and 3 are void. The 3^rd defendant has made some constructions in the plaint A schedule property. This structure is described in plaint B schedule property. The prayers in the suit are declaration of plaintiff's right, title, interest and possession of the plaint A schedule property, mandatory injunction directing the 3^rd defendant to demolish and remove the plaint B schedule construction made by him in A schedule property and for a perpetual injunction restraining trespass and interference with the plaintiff's peaceful possession and enjoyment of the property. The 1^st and 3^rd defendant filed separate written statements. They contended that suit is barred by the law of limitation and is bad for non joinder of necessary parties. They further contended that the gift deed in favour of the plaintiff had not come into effect and she was never in possession of the property; cancellation deed and the subsequent sale deeds in favour of defendants 2 and 3

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FAO(RO).NOS.295 & 305 OF 2013 3

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are valid; before the death of Padmanabha Pillai, he executed a Will by which he has bequeathed his properties to all his children. Defendants 1 and 3 prayed for dismissal of the suit.

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The trial court found that the suit is not barred by the law of limitation, but it is bad for non joinder of necessary parties. It also found that the claim of the plaintiff that she is in possession of plaint A schedule property is false and in the absence of a prayer of recovery of possession she is not entitled to any relief. The trial court dismissed the suit. In the appeal the learned Sessions Judge took the view that there is no evidence to show that the gift was not accepted by the plaintiff and so it is valid and the donor Padmanabha Pillai had no right in the property after the execution of the gift deed and the cancellation deed and the sale deeds executed by him later do not bind the plaint A schedule property. At the request of the learned counsel for the plaintiff the learned District Judge remanded the case to enable the plaintiff to file an amendment application incorporating the prayer for recovery of possession.

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These appeals were disposed of on 4.12.2014. Later, the judgment was reviewed (vide order in R.P.No.799 of 2015 and R.P.No.139 of 2015).

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FAO(RO).NOS.295 & 305 OF 2013 4

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The following questions of law have been formulated for

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hearing.

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Whether the first appellate court failed to address the

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relevant issues ?

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Was the first appellate court justified in passing the order of remand though evidence was sufficient to dispose of the appeal on merits ?

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Heard.

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The essential question that arises for consideration is whether Ext.A1 Gift Deed executed by plaintiff's father Padmanabha Pillai had come into effect when the latter executed Ext.A2 cancellation deed. The learned District Judge took the view that there is no evidence to show that the gift was not accepted by the plaintiff. In a suit for declaration of title based on a gift deed, the burden is on the plaintiff to prove that he accepted the gift and the gift came into effect. The view taken by the learned District Judge is wrong. As he took this wrong view he did not even properly examine the evidence regarding acceptance of the gift by the plaintiff. After taking note of Section 3 of the Transfer of Property Act he has observed that registration of the gift deed itself was a notice to the plaintiff and it cannot be said that she

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FAO(RO).NOS.295 & 305 OF 2013 5

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was not aware of the execution of the document. This view is perverse. The District Judge also is of the view that possession of the donor who was the father of the donee was only on behalf of the donee as she was residing 60 Kms away from the plaint A schedule property. There is no such presumption he had no material before him to hold that the donor possessed the property on behalf of the donee.

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It is necessary to examine the evidence regarding the acceptance of the gift by the plaintiff though neither the trial court nor the appellate court has discussed it properly. The donor Padmanabha Pillai and his wife have 4 children. Only the plaintiff and the 1^st defendant are parties to the suit. It is not in dispute that it was a divided house. Padmanabha Pillai had filed suit against one of his sons Unnikrishnan; the 1^st defendant filed E.P.73/2008 in O.S.770/2004 against his brother Unnikrishnan. Ext.A1 gift deed was executed on 12.3.2004. Ext.A2 cancellation deed was executed on 18.6.2004. Exts.A3 and A4 sale deeds in favour of the 2^nd and 3^rd defendants were executed on 18.9.2006. Padmanabha Pillai died on 26.9.2007. He was above 80 years old at the relevant time.

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It has come out in the evidence of PW1(the plaintiff) Padmanabha Pillai was a capable man and he used to take decisions

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FAO(RO).NOS.295 & 305 OF 2013 6

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even without consulting his wife, let alone his children. According to PW1 he was not an honest man.

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The plaintiff filed an affidavit in lieu of her examination in chief. It is bereft of any facts which are relevant or material. Even in the absence of cross examination I doubt whether a decree could be passed in her favour on the basis of her examination in chief.

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There is no dispute that the original gift deed is not in the custody of the plaintiff. Neither in the plaint, nor in the examination in chief there is a whisper about its custody. In her cross-examination she said that after the execution of the deed her father handed it over to her. She added that on the same day she handed over the document to the 1^st defendant to effect mutation in her favour (page 25); after a few moments she said that only after a few days she entrusted the document to the 1^st defendant (page 26). It is also in her evidence that it is only after one month she gave the document to the 1^st defendant (page 24). Earlier she had another version. Which is that she handed over the document within three months from the date of its registration (page 13). She has no doubt that after handing over the document to the 1^st defendant she did not get it back. But in her cross examination she further stated that on 18.6.2004, the day on which Padmanabha

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FAO(RO).NOS.295 & 305 OF 2013 7

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Pillai executed the cancellation deed she as well as the other donees was in custody of the gift deeds. She reiterated it later. Thereafter, she modified her statement. Her evidence regarding custody of the document is inconsistent and contradictory. It is quite clear that the document was never in her custody.

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The evidence of PW1 that she gave her father Rs.10,000/to purchase stamp paper is not at all believable and it appears to be false.

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In her cross examination PW1 stated that immediately after

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the execution of the gift deed the donor put her in possession of the property and she took usufructus from it. The coconut climber plucked coconuts and thereafter, she took income from the property two or three times; the coconut climber is no more. At another moment she said that till his death her father used to give her income. But on another occasion she said that the 1^st defendant used to give her income. All her statements with regard to her possession of the property are inconsistent and unbelievable.

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Neither in the pleadings nor in the examination in chief the plaintiff has a case that she had rented out the shop room in the plaint A schedule property. Her cross-examination was conducted on

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FAO(RO).NOS.295 & 305 OF 2013 8

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different dates. At the fag end of her cross-examination, for the first time she disclosed that she had rented out the shop room to PW3, Robinson. Ext.A5 is said to be the lease deed executed by him in her favour on 5.5.2004. It was for 11 months. This document was produced more than 3 years after the suit was instituted and 4 months after the evidence of the plaintiff (PW1) was first recorded. There is no explanation for the delay in its production. This document was not tendered in evidence when she was in the box; it was produced on the last day of her examination (21.6.2011). It was tendered through PW3.

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The document is said to be in his handwriting. He claims to have written the document on the basis of another lease deed the plaintiff gave him. The inconsistent and contradictory statements made by PW3 in the witness box make it very clear that he is an untrustworthy witness. His evidence regarding his residence betrays his dishonesty. Towards the end of his cross-examination he said that the room was taken on rent for the company in which he was working as an employee. But he has no doubt that there is no entry in the accounts of the company to prove payment of rent.

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The testimony of DW1 that the stamp vendor who is shown to have sold the stamp papers of Ext.A5 lease deed has been accused

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FAO(RO).NOS.295 & 305 OF 2013 9

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in several forgery cases and his licence was cancelled was not challenged in this cross-examination. The evidence in the case proves that PW3 had filed a suit against the 1^st defendant. There was enmity between them. I have no doubt that Ext.A5 is not a genuine document.

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The evidence discussed above complies me to hold that the plaintiff never got custody of the gift deed. She did not effect mutation in her favour; nor did she pay tax. She never took income from the properties. She did not get possession of the property at any point of time. The irresistible conclusion is that she did not accept the gift and the gift did not come into effect.

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Since the gift in favour of the plaintiff did not come into effect the donor Padmanabha Pillai did not lose his title and Ext.A1 cancellation deed executed by him is valid. The subsequent sale deeds, Exts.A3 and A4, executed in favour of the 2^nd and 3^rd defendant also are valid.

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The prayer of the plaintiff is to declare her title under Ext.A1 gift deed. Since the gift deed did not come into effect, she never got title to the property. Her prayer for declaration of her title cannot be allowed. She has never been in possession of the property. The reliefs of declaration and injunction based on possession also cannot

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FAO(RO).NOS.295 & 305 OF 2013 10

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be allowed.

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The approach made by the learned District Judge is totally wrong. He did not address the issues which arose for consideration. The legal aspect considered by him is irrelevant. There is no justification for his setting aside the judgment and the decree of the lower court and remanding the suit. His judgment is liable to be set aside. The points are found in favour of the appellants.

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In the result, these appeals are allowed. The judgment of the learned District Judge is set aside. The decree of the lower court is

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restored.

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K.ABRAHAM MATHEW JUDGE

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FAO(RO).NOS.295 & 305 OF 2013 11

Latheef v. Prasanna Kumari

Case brief

What is this about?

What did the court decide?

Latheef v. Prasanna Kumari

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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