Allowed

Ananda Marga Pracharaka Sangham v. Narayanan Bhattathiripad

Kerala HC7 Mar 2019RSA/1094/2003

Case brief

AI extract

What is this about?

In an appeal against a suit for recovery of possession, the High Court held that the disputed document was a valid gift deed transferring title. The Court allowed the appeal, setting aside the decrees of lower courts and dismissed the suits without costs, noting the suit was filed to bypass limitation periods.

What did the court decide?

Appeal allowed. Decrees and judgments of trial and first appellate courts set aside. Both suits dismissed without costs.

Ananda Marga Pracharaka Sangham Vs Narayanan Bhattathiripad — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY ,THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940

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RSA.No. 1094 of 2003

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AGAINST THE DECREE & JUDGMENT DATED 16-07-2003 IN AS 254/2001 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM

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AGAINST THE DECREE & JUDGMENT DATED 24-07-2001 IN OS 1870/1998 OF PRINCIPAL MUNSIFF COURT,ERNAKULAM

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APPELLANT/APPELLANT/DEFENDANT:

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ANANDA MARGA PRACHARAKA SANGHAM, REPRESENTED BY P.PADMANABHAN, SON OF MADHAVAN NAIR, AGED 54, PADMASAROVAR, PONEKKARA, EDAPPALLY NORTH VILLAGE, POWER OF ATTORNEY HOLDER OF THE SECRETARY, ANANDA MARGA PRACHARAKA SANGHAM HEAD QUARTERS, ANANDA NAGAR, PURULIA DISTRICT, WEST BENGAL. (POWER OF ATTORNEY IS PRODUCED IN THE SUIT AND MARKED AS EXHIBITS B1)

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BY ADVS.

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SRI.T.K.VENUGOPALAN SRI.SHIBU JOSEPH

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RESPONDENT/RESPONDENT/PLAINTIFF:

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1 NARAYANAN BHATTATHIRIPAD, SON OF LATE NARAYANAN BHATTATHIRIPAD, KURUMOOR MANA, PONETH ROAD, KALOOR DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK

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*** EXPIRED. LEGAL HEIR IMPLEADED**

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ADDL.2ND RESPONDENT IMPLEADED

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RENJITH ALIAS CHITHARANJAN, S/O.NARAYANAN BHATTATHIRIPAD, KURUMOOR MANA, PONETH ROAD, KALOOR, KOCHI-17

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LEGAL HEIR OF THE DECEASED SOLE RESPONDENT IS IMPLEADED AS THE ADDITIONAL SECOND RESPONDENT AS PER ORDER DATED 07.03.2019 IN I.A. 42/2014.

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BY ADVS.

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SRI.M.A.SUNILKUMAR- R1

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SRI.V.SANKARA RAJA - R1

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SRI.S.VINOD BHAT, SRI. LEGITH T KOTTAKKAL, SRI. K.SHAJI MATHEW & KUMARI ANAGHA LAKSHMI RAMAN -ADDL.R2

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 1094 of 2003 2

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JUDGMENT

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A suit for declaration that the defendant ceased to

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have the right to hold the property namely, the immovable property scheduled in the plaint having 10 cents and for its recovery of possession was granted by both the trial court and the first appellate court. It was taken up before this court by the defeated defendant.

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The plaintiff's predecessor was the owner of the property having 10 cents scheduled in the plaint. It was given under a gift to one Ananda Marga Pracharaka Sangham a registered body in the year 1971 under Ext.A1. The original of the said document produced and marked as Ext.B2. The contention of the plaintiff is that Ext.A1 document is not a gift. It is only a licence to hold the property by the defendant Anandha Margha Pracharaka Sangham represented by its

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RSA.No. 1094 of 2003 3

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office bearers. There is a provision in Ext.A1 to repossess the property when there is violation of the object of the gift under the document. Both the courts below upheld the contention raised by the plaintiff and

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decreed the suit granting a declaration that the defendant has no right to possess the property and granted a recovery of possession of the property. The questions came up for consideration in this appeal are:

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i) Whether a right to repossess immovable property reserved in a gift when the object of the gift either violated or failed would alter the character of gift as a mere licence to hold the property ?

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ii) Is it amount to creation of a trust when a

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specific object was made mention in the gift deed ?

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iii) What would be the effect of non-incorporation of a relief to declare the nature of the document and what would be the effect of its non-challenge ?

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iv) Whether the trial court and the first appellate

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court went wrong in appreciating the legal question in its correct perspective and whether it has resulted in

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RSA.No. 1094 of 2003 4

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miscarriage of justice ?

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The suit document Ext.A1 original of which produced and marked as Ext.B2 of the year 1971 admittedly executed by the plaintiff. There is no dispute with respect to its execution and registration.

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What is advanced by the appellant is that it is not at

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all a gift but in substance, it is only a licence. A perusal of the document would show that the document was named as a gift deed executed by the plaintiff in favour of the defendant. The name of document mentioned

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as ‘Dhana Adharam’ which stands for gift deed. The possession of the property was also diverted under that document to the defendant, the donee with a right to hold, possess and enjoy the property. A right to make improvements and a right to construct permanent structures and buildings also given under that document to the donee. It further recited that the plaintiff, the executant will not have any right to challenge the possession or the improvements or construction over the property or enjoyment thereof after the execution of

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RSA.No. 1094 of 2003 5

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the said document. The value of the property is assessed at Rs.100/-for the purpose of its registration and it was effected through a registered document naming the document as gift deed. The learned counsel for the respondent canvased attention of this court into Section 8 of the Transfer of Property Act and the various commentaries made by Mulla on the subject for canvasing an argument that possession alone will not be the criteria to adjudicate the nature of transaction whether it is a licence or a document coupled with interest. In the instant case, from Ext.A1 the intention of the executant donor is very much clear from its content. The document is named as gift deed, exclusive possession was handed over to the donee with the right to hold the property, enjoy the property and improve the property and to construct building therein. A right to construct structures and building over the property also given under the document with a clause that the donor will not have any right to challenge or question the right already passed under the document to

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RSA.No. 1094 of 2003 6

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the defendant donee. This would clearly shows that

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the entire title and interest was transferred over the immovable property under Ext.A1 document and hence, necessarily it would be a gift deed in all respects.

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The learned counsel took support from a

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subsequent clause incorporated in the document by which the donor has reserved a right to repossess the property in the event violation of object of the trust.

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The clause will not in any way affect the gift already

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given under the first part of the document. On the other hand, the condition would itself shows that the donor has reserved a right to repossess the property, only in the event of violation of purpose of trust or frustration of trust. Then the document can only be treated as a composite document by which when the object of the gift is failed, the donor will have the right to get back the property. It is really a dedication to the defendant which is a religious body

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among the Hindus. So the document can only be treated as a composite document.

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RSA.No. 1094 of 2003 7

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In order to seek a declaration that a document

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is not a gift but a licence the time available is only

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12 years when the declaration is coupled with some other relief such as recovery of possession etc. The 12 years period had been lapsed at the time when the suit was brought into existence in the year 1998 more specifically on 5.11.1998. Then comes the question whether the period of limitation can be bypassed by avoiding a declaration on that behalf. That is what actually done by the plaintiff without seeking a declaration in the suit.

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Lastly, the learned counsel for the respondent submitted that a remand of the matter to the trial court so as to explore the benefit under Section 126 of the Transfer of Property Act cannot be avoided if this court found the document as a valid gift. I could not find any merits in the said contention. As discussed earlier, the suit was filed with mischievous intention and there is an attempt to bypass the period of limitation available to the party by excluding a relief

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RSA.No. 1094 of 2003 8

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for declaration of actual nature of the document in

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question. In any view of the matter, the decree and judgment rendered by both the trail court and the first appellate court cannot be sustained as there is failure

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on their part to apply the legal position in its correct perspective and that has resulted in miscarriage of justice.

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Appeal allowed. Decree and judgment of both the trial court and the first appellate court are set aside. Both the suits are dismissed, but without cost

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of suits, first appeal and second appeal.

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// TRUE COPY // PA TO JUDGE

Ananda Marga Pracharaka Sangham v. Narayanan Bhattathiripad

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Ananda Marga Pracharaka Sangham v. Narayanan Bhattathiripad

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