Appeal against decree in partition suit. Court held gift incomplete rather than void when donor died before acceptance. Deemed notice does not equal acceptance. Suit for partition without setting aside alienation deed was not maintainable. Appeal allowed, lower decrees set aside.
Decree and judgment of courts below set aside; suit dismissed; no 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 P.SOMARAJAN
WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941
RSA.No.445 of 2004
AGAINST THE DECREE & JUDGMENT IN AS 94/1996 of II ADDITIONAL DISTRICT COURT,PALAKKAD
AGAINST THE DECREE & JUDGMENT IN OS 97/1992 of SUB COURT, OTTAPPALAM
APPELLANT/5TH DEFENDANT:
RAMACHANDRAN NAIR, S/O KALI AMMA KUTTIKKATTU KIZHAKKETHIL, ALANGAD AMSOM, VETTEKKARA DESOM, OTTAPPALAM TALUK, P.O.VETTEKKARA, KADAMPAZHIPPURAM.
BY ADV. SRI.SABU GEORGE
RESPONDENTS/PLAINTIFF/DEFENDANTS 1 TO 4: & LEGAL REPRESENTATIVES OF 2 TO 4
1 RAGHAVAN NAIR
S/O.KALI AMMA,KUTTIKKATTU KIZHAKKETHIL, ALANGAD AMSOM, VETTEKKARA DESOM, OTTAPALAM TALUK, P.O.VETTEKKARA, KADAMPAZHNIPPURAM.
6 KALYANIKUTTY AMMA
W/O.RAMANKUTTY NAIR, RESIDING AT NO.5. 8TH STREET, PERIYA NAGAR, GINDI, CHENNAI.
RSA.No.445 of 2004 2
7 MANOMANI D/O. RAMANKUTTY NAIR, -DO- - DO8 VIJAYALAKSHMI D/O.RAMANKUTTY NAIR, -DO- -DO9 RAJAN S/O.RAMANKUTTY NAIR, -DO- -DO10 SUNDARESWARAN S/O.RAMANKUTTY NAIR, -DO- -DO11 RAJESWARAN S/O.RAMANKUTTY NAIR L/6, RAJ BHAVAN, RAJ BHAVAN P.O., CHENNAI - 22. 12 SUBDRA AMMA D/O.KUNHILAKSHMI AMMA PUSHPA NIVAS, ADAKKAPUTHUR, CHERPULASSERY, OTTAPPALAM. 13 VIJAYANARAYANAN S/O.KUNJILAKSHMI AMMA TELEPHONE EXCHANGE, TIRUPURA, TAMIL NADU. 14 RADHA D/O.KUNJILAKSHMI AMMA NOW RESIDING AT GANGASREE, KULAKKADU P.O., ADAKKAPUTHUR, CHERPULASSERY, PALAKKAD. 15 PANKAJAKSHY AMMA W/O.LATE UNNIKRISHNAN NAIR, SRAMBIKKAL HOUSE, VETTEKKARA P.O., KADAMPAZHIPPURAM, OTTAPPALAM. 16 MOHAN S/O.UNNIKRISHNAN NAIR -DO- - DO17 RAGHAVAN S/O.UNNIKRISHNAN NAIR -DO- -DO18 VIJAYALAKSHMI D/O.UNNIKRISHNAN NAIR -DO- - DO-
RSA.No.445 of 2004 3
19 RAJALAKSHMI
D/O.UNNIKRISHNAN NAIR
-DO- -DO-
20 ADDITIONAL RESPONDENTS
INDIRA,
AGED 60 UEARS, D/O.PANKJAKSHY AMMA, VELLOOR HOUSE, MUTHUKURISSY, THACHAMPARA P.O., MANNARKAD, PALAKKAD.
21 MANIKANDAN,
AGED 58 YEARS, S/O.PANKAJAKSHY AMMA, MELETHIL VEEDU, VANGASERI P.O., AMBALAPARA, OTTAPPALAM TALUK, PALAKKAD, PIN-679 516.
22 SANKARANARAYANAN,
AGED 50 YEARS, S/O.PANKAJAKSHY AMMA, MELETHIL VEEDU, VANGASERI P.O., AMBALAPARA, OTTAPPALAM TALUK, PALAKKAD, PIN-679 516.
*** LEGAL HEIRS OF DECEASED 5TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 20 TO 22 AS PER ORDER DATED 24.07.2019 IN I.A.NO.3/2019.**
BY ADVS.
SRI.PUSHPARAJAN KODOTH FOR R1, R20, R21, R22 SRI.K.JAYESH MOHANKUMAR FOR R1, R20, R21, R22 SRI.T.SETHUMADHAVAN (SR.) FOR R1, R20, R21, R22
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No.445 of 2004 4
CR
JUDGMENT
A suit for partition ended in a preliminary
decree both in the Trial Court and in the First Appellate Court. The 5th defendant came up with this appeal against the said decree and judgment of both the courts below.
belonged to the father of plaintiff and the defendants. According to the plaintiff, it was devolved upon them equally after the demise of father. Per contra the 5th defendant contended that, no such property was left out by the father, as it was given to him on an earlier occasion by executing Ext.B1 settlement deed. Both the courts below found that Ext.B1 document was not accepted by the 5th defendant and a preliminary decree for partition was granted with respect to the plaint
schedule property as the one left out by the
deceased father, against which the 5th defendant came up with this appeal.
RSA.No.445 of 2004 5
consideration :
Rudrayani Devaki (Died) and others v. A.Rajeswari and others ( 2018 (4) KHC 134) is bad in law in view of the Division Bench decision rendered in
Kannan Nambiar v. Narayani Amma and Others ( 1984 KHC 284) ?
RSA.No.445 of 2004 6
RSA.No.445 of 2004 7
he came to know about the execution of Ext.B1 gift
deed after the death of the donor, his father, as
such there cannot be any acceptance of the gift during the life time of the donor and the gift would stand as void by virtue of Section 122 of the
Transfer of Property Act and hence there is no necessity for setting aside a void document and a mere suit for partition would stand. It was also contended that inorder to prove due execution of a settlement deed, examination of one of the attesting witnesses cannot be avoided and relied on the decision rendered by a Division Bench of this Court in Kannan Nambiar v. Narayani Amma and Others ( 1984 KHC 284) and submitted that the decision drawn in Rudrayani Devaki (Died) and others v. A.Rajeswari and others ( 2018 (4) KHC 134) rendered by a Single Bench of this court did not reflect the correct legal position and hence requires reconsideration.
to what actually amounts to Ext.B1 document styled
RSA.No.445 of 2004 8
as a settlement deed and whether it would
constitute a gift of immovable property as defined under Section 122 of Transfer of Property Act, 1882.
anywhere in the Transfer of Property Act. The substantive definition is given under Section 2(b)
of the Specific Relief Act, which is extracted
below for reference:
instrument [other than a will or codicil as defined by the Indian Succession Act,
1925 (39 of 1925)] whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed to be disposed of.”
(emphasis supplied)
other than the love and affection of the executant
towards the beneficiary. A deed of gift can be
given to any person irrespective of whether the beneficiary is a legal heir or a dependent. But the
RSA.No.445 of 2004 9
'settlement' as defined under Section 2(b) of the
said Act defines the persons to whom it can be given without referring the persons or their
status, but by inclusion of two sets of words i.e. 'devolution of successive interest' and 'destination'. The words 'devolution of successive interest' defines the persons to whom the property
can be given, which stands for the legal heirs of the executant. But the word 'destination' would stand for all persons inclusive of legal heirs and
dependents. So there can be two sets of
beneficiaries to a settlement deed as defined under
Section 2(b) of the said Act - (1) legal heirs of the executant (2) all persons inclusive of legal heirs and dependents of the executant. In both the case, to effectuate a settlement as defined under Section 2(b) of the Act, there need not be any 'consideration' other than the love and affection
of the settlor towards the beneficiary. As such it
would satisfy the ingredients which would
constitute a 'gift' as defined under Section 122 of the Transfer of Property Act.
RSA.No.445 of 2004 10
advanced by the learned counsel for the respondent that a mere production of original of registered gift deed will not discharge the initial burden to prove its due execution and that the examination of one of the attesting witnesses cannot be avoided. It was further submitted that proviso to Section 68
of the Indian Evidence Act is applicable to 'all persons' denying the due execution of gift/settlement and that the earlier decision rendered by this court in Rudrayani Devaki 's case (supra) by a single Bench of this court (authored by me) requires reconsideration by relying on a Division Bench decision of this court in Kannan Nambiar 's case (supra), wherein by relying on the decisions of the Allahabad High Court AIR 1932 Alhabad 320 and the High Court of Tripura AIR 1955 Tripura 70 it was held that “ there is no doubt that not only the executant but also all person who are interested in denying the execution of document are entitled to invoke the aid of proviso to Section 68 of the Evidence Act.” But a contrary
RSA.No.445 of 2004 11
view was taken by this court in Rudrayani Devaki' s case (supra) without noticing the legal position laid down in Kannan Nambiar 's case (supra) by a Division Bench of this Court. The Apex Court had laid down the legal position in Surendra Kumar v. Nathulal ( 2001 KHC 1547 = (2001) 5 SCC 46 = AIR 2001 SC 2040) in paragraph 12 that “on a plain reading of the proviso, it is manifest that a registered deed of gift can be received in evidence without examining one of the attestors if the person who has executed the deed of gift has not specifically denied its execution”. In view of the above said decision of the Apex Court, the decision rendered by the Division Bench of this Court in
Kannan Nambiar 's case (supra)cannot be held as good law.
of Transfer of Property Act says that where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such
RSA.No.445 of 2004 12
property or any part of or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration provided that the instrument has been registered and its registration is completed in the manner prescribed in the Registration Act, 1908 and the Rules made thereunder. When a deed of gift or a settlement duly registered and entered in the registers kept for its registration and when registration was completed in the manner prescribed in the Registration Act, 1908 and the Rules made thereunder, any person acquiring immovable property or share or interest in any such property shall have a deemed notice of registration of document in
their favour. The constructive notice embodied under Section 3 of the Transfer of Property Act would come into play giving notice of execution and registration of the gift/settlement deed to the beneficiaries thereunder. Admittedly the gift has been executed and registered in accordance with the law in force by entering the same in the registers
kept by the registering authority. As such the
RSA.No.445 of 2004 13
same amounts to constructive notice to all
beneficiaries under the document. Then comes the question whether constructive notice would amount to acceptance of gift made thereunder. It is now settled that a mere knowledge regarding execution of a document of gift/settlement to the beneficiary would amount to acceptance. But the expression 'knowledge' cannot be substituted in the place of 'deemed notice' by the operation of statutory provision. The expression 'knowledge' stands for actual notice perceivable by sense and not for deemed notice by the operation of a statutory provision. To resolve the issue, whether a deemed notice would constitute acceptance of gift, it is
necessary to analyse the requirement under Section 122 of the Transfer of Property Act constituting a valid gift, which is as follows:
“122. ”Gift” defined - “Gift” is the
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 the donee.
RSA.No.445 of 2004 14
Acceptance when to be made - Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance,
the gift is void.”
should be accepted during the lifetime of the
donor and while he is still capable of giving. The
gift would stand void only when the donee dies before acceptance. That does not mean that the
gift would stand void when the donor dies before its acceptance. The construction of Section 122 of the Transfer of Property Act itself would show
that the gift would stand void only in case the donee dies before its acceptance and the same is included as a rider in a separate paragraph under
the sub-head 'Acceptance when to be made' to
Section 122 of Transfer of Property Act. The
necessary corollary is that when the donor dies before the acceptance of the gift, the gift would
stand as incomplete and not void and hence a suit
RSA.No.445 of 2004 15
for partition without seeking to set aside the
settlement deed cannot be maintained. But when donee dies before its acceptance, the gift would be void and no legal consequence would flow out of it, necessarily, there is no necessity to seek for setting aside the document. In the instant case the donor passed away before getting actual notice of factum of execution of Ext.B1 gift in favour of the defendants. So the gift even going by Section 122 of Transfer of Property Act would stand as incomplete and not as void. As such, unless
there is a prayer to set aside the registered document, Ext.B1, a simple suit for partition cannot be maintained.
that the acceptance under Section 122 of the Transfer of Property Act should be express. No express acceptance is necessary for completing a gift and it is the well accepted proposition of
law. Even silence on the part of donee is sufficient to infer that the gift was accepted. The only requirement is that the donee must know
RSA.No.445 of 2004 16
about the gift which was executed and registered.
As discussed earlier, a deemed notice would not
constitute the mental element to be exercised by
the donee to accept a gift. But at the same time,
Section 3 and Section 122 of the Transfer of
Property Act being the provisions contained in the
same Act, there cannot be an interpretation repugnant to the other. A harmonious
interpretation which would effectuate both the provision has to be adopted. A conflict between
various provisions should be avoided while
interpreting each and every provision contained in
the same Act [ See Jagadish Singh v. Lt.Governor
Delhi and others ( AIR 1997 SC 2239) ]. Section 3
of Transfer of Property Act gives rise a
constructive notice to the beneficiaries regarding the document of transfer of immovable property in their favour. Then comes the question what is the
purpose of the constructive notice incorporated under Section 3 of the Transfer of Property Act, would it not operate against a gift in the matter
of 'acceptance' when the document executed and
RSA.No.445 of 2004 17
registered in accordance with the mandate under
Section 17 of the Registration Act and what would be the purpose of 'deemed notice' under Section 3 of Transfer of Property Act. There cannot be any
mental element exercising acceptance of a gift unless there is 'actual knowledge' perceivable by sense regarding the execution and registration of
the gift. But at the same time, since there is a deemed notice to the beneficiary to the gift of immovable property, it is not advisable to insist for an actual notice in the matter of acceptance
of gift, otherwise, the deemed notice under Section 3 of Transfer of Property Act would become redundant and purposeless and that might not be
the legislative intention while incorporating a deemed notice on registration of document of transfer of immovable property to the
beneficiaries thereunder.
paragraphs a simple suit for partition without seeking to set aside the document of alienation,
Ext.B1 is not maintainable and the time available
RSA.No.445 of 2004 18
for setting aside the said document now stood elapsed. Both the trial court and the first appellate court went wrong in applying the legal position in its correct perspective. It is liable to be set aside. I do so by allowing this appeal.
The appeal is allowed. The decree and judgment of both the courts below are set aside. The suit is dismissed. No costs.
Sd/-
P.SOMARAJAN
JUDGE
SV
3 issues framed by the court
Whether settlement deed constitutes a gift under Section 122 of Transfer of Property Act.
Whether deemed notice under Section 3 of Transfer of Property Act amounts to acceptance of gift.
Whether suit for partition without setting aside alienation document is maintainable.
Colour shows how this judgement treated each authority
Rudrayani Devaki (Died) and others v. A.Rajeswari and othersDistinguished¶96
Rudrayani Devaki (Died) and others v. A.Rajeswari and others (2018 (4) KHC 134)
Kannan Nambiar v. Narayani Amma and OthersDistinguished¶96
Kannan Nambiar v. Narayani Amma and Others (1984 KHC 284)
Surendra Kumar v. NathulalDistinguished¶96
Surendra Kumar v. Nathulal (2001) 5 SCC 46 · Who else cites this
Jagadish Singh v. Lt. Governor Delhi and othersReferred¶142
Jagadish Singh v. Lt. Governor Delhi and others (AIR 1997 SC 2239) · Who else cites this
3 provisions across 2 enactments
Ramachandran Nair
Raghuavan Nair
Legal Heirs of Respondents 2 to 4
Legal Heirs of 5th Respondent
Indira
Manikandan
P. Somarajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
