Second appeal against concurrent decrees granting declaration of title and recovery of possession. The court held that the settlement deed was in fact a gift deed transferring title in praesenti, and its unilateral cancellation was void. The second appeal was dismissed.
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. BADHARUDEEN
THURSDAY, THE 7TH DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945
RSA NO. 1214 OF 2015
AGAINST THE JUDGMENT IN AS.NO.124/2013 OF ADDITIONAL DISTRICT COURT - V, THIRUVANANTHAPURAM
OS.NO.1480/2007 OF III ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM APPELLANT/APPELLANT/2ND DEFENDANT:
OUSEPH FERNANDEZ
AGED 48 YEARS
S/O.MARSHEL FERNANDEZ, SANKETHAM, THYVILAKOM PURAYIDOM,
ST.DOMINIC VETTUKADU, ST.XAVIER'S COLLEGE (P.O.),
THIRUVANANTHAPURAM.
BY ADVS.
SRI.GOPAKUMAR R.THALIYAL
SRI.V.MADHURIPAN PILLAI
RESPONDENTS/RESPONDENTS 1 & 2 & PLAINTIFFS:
1TEENA BEN
AGED 35 YEARS
D/O.THRESIA BENNAPPAN, RESIDING AT KODALIPPARAKKAL VEEDU,
ST.DOMINIC'S ST.XAVIER'S COLLEGE (P.O.), KAMUKARA MURI,
MENAMKULAM VILLAGE, THIRUVANANTHAPURAM, PIN 695005.
2THRESIA BENNAPPAN
AGED 60 YEARS
RESIDING AT KODALIPPARAKKAL VEEDU, ST.DOMINIC'S
ST.XAVIER'S COLLEGE (P.O.), KAMUKARA MURI, MENAMKULAM
VILLAGE, THIRUVANANTHAPURAM, PIN 695005.
BY ADVS.
SRI.V.SURESH
R.HARIKRISHNAN (H-308)
G.SUDHEER(K/000467/1992)
SMRITHI S.S.(K/1674/2018)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
21.11.2023, THE COURT ON 7.12.2023 DELIVERED THE FOLLOWING:
RSA NO. 1214 OF 2015 2
CR
JUDGMENT
Dated this the 7th day of December, 2023
This second appeal has been filed by the appellant, who is the second defendant in O.S.No.1480/2007 on the files of Additional Munsiff Court-III, Thiruvananthapuram, under Section 100 and Order XLII Rule 1 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter).
RSA NO. 1214 OF 2015 3
appeal.
RSA NO. 1214 OF 2015 4
admitting the relationship between the parties in the plaint. According to the defendants, Bennappan violated the terms of the settlement deed and he did not care the whereabouts of the mother. Accordingly, the settlement deed in favour of Bennappan was cancelled and the 2nd defendant got title and possession over the plaint schedule property, in view of sale deed No.554/2007.
the basis of evidence tendered and finally granted decree as under:
“In the result, the suit is decreed.
(1) It declared that the cancellation deed No.2647/96 and sale deed No.554/2007 of SRO, Kazhakuttom are Null and Void and those documents do not affect the title and possession of the plaintiff over the plaint scheduled property.
(2) It declared that the plaintiffs have absolute right over the plaint scheduled property by virtue of settlement deed No.1986/95 of SRO, Kazhakoottam.
RSA NO. 1214 OF 2015 5
(3) The plaintiffs are allowed to recover possession of the plaint scheduled property from the 2nd defendant on the basis of their title, through the process of law.
In the facts and circumstances of the case there will be no orders as to cost.”
1. What is the legal effect of a cancellation deed executed to cancel a document with nomenclature ‘settlement deed’?
2. Whether Ext.B1, relied upon by the plaintiffs conferred title upon Bennappan?
RSA NO. 1214 OF 2015 6
his entire rights in favour of plaintiffs he got on the strength of Ext.B1.
RSA NO. 1214 OF 2015 7
deed is legally permissible. Therefore, by execution of Ext.A2/Ext.B3 cancellation deed, the right, if any, given in favour of Bennappan, stands revoked and thereafter, in view of Ext.A3/Ext.B4, the 2nd defendant perfected title and possession over the plaint schedule property. The learned counsel placed decision of the Apex Court in Kokilambal v. Raman reported in [2005 (2) KLT 1007 (SC)] , to contend that when the testator executing settlement deed in favour of the beneficiary, reserving right to enjoy property jointly during their lifetime and also to alienate the property jointly, the same does not make the beneficiary as absolute owner of the property and on the death of the beneficiary, testator can transfer the property by a fresh deed of settlement.
“In this background, we have to examine the settlement deeds created by Kokilambal in favour of the deceased Varadan. The recitals of the settlement deeds i.e. A-1 and A-2
RSA NO. 1214 OF 2015 8
as reproduced above, clearly says that since Kokilambal had no son and her husband Manicka Mudaliyar during his life time has bestowed his love and affection on Varadan, the son of his elder sister, and therefore, out of love and affection, she has settled that the income derived from the properties i.e. Door No.43, Kakkaran Basin Road, shall be enjoyed by herself and Varadan, till her life time and after her demise, it shall be enjoyed by Varadan absolutely. She further authorised him to collect the rental income of the aforesaid house and pay the corporation and land tax, repairs etc. and the remainder rental amount shall be enjoyed by herself and Varadan in moiety. The appellant No.1 further settled that she would not alienate the property but both of them reserve the right to alienate the property jointly. Therefore, this settlement in no uncertain terms lays down that the properties in question will vest absolutely after the death of the appellant No.1 and during their life time, both will enjoy the usufructs but Varadan would collect the rental income of the aforesaid property. It is further mentioned that both will have the right to alienate the property in question jointly. These conditions are very clear, Varadan would have acquired the absolute right over the property after the death of Kokilambal. Even during their life time if the property was to be alienated then the same would be alienated by them jointly meaning thereby that the appellant No.1 continued to hold the property during her life time and both of them were permitted to enjoy the usufructs of that property. These settlement deeds in our opinion, clearly make out that Varadan was not made absolute owner of the property during
RSA NO. 1214 OF 2015 9
the life time of the settlor, Kokilambal.”
The said recitals would go to show that the Apex Court considered settlement deeds, where Kokilambal had settled the income derived from the properties to be enjoyed by herself and Varadan, who is the beneficiary of the settlement deeds till her lifetime and after her demise, which would be enjoyed by Varadan absolutely. Further, the settlement deeds in no uncertain terms stipulated that properties in question would vest absolutely after the death of Kokilambal and during their life time, both would
enjoy the usufructs. The further averment in the settlement deeds was that, both would have the right to alienate the property in question jointly alone.
RSA NO. 1214 OF 2015 10
the legible copy of Ext.B1 provided by the learned counsel for the 2nd defendant for perusal of this Court, which is not opposed by the other side. The same are as under:
നീ എന്റെ� അതിജീവിതകാലക്ഷേ�പാർഥം നിക്ഷേ�ാട് എനിക്കുള്ള വാത്സല്യം പ്രപതിഫലമാക്കി എന്റെ� വക ഇതിറെല പട്ടികയിൽ ക്ഷേ#ർക്കു�വസ്തുവകകൾനിനക ് ഇക്ഷേ'ാക്ഷേ( ഉടമസ്ഥതറെ'ടുത്തി പ്രപമാണം റെ#യ്യണറെമ�് എനിക്കുണ്ടായ ആപ്ര0ഹവും നിശ്ചയവും അനുസരിച്ചു പട്ടികവസ്തുവകകളുള്ളതിനാൽ നിനക്കായി ഉടമസ്ഥതറെ'ടുത്തി ഈ ധനനിശ്ചയാധാരം ത�ിരിക്കു�ു . ഇതനുസരിച്ചു പട്ടികവസ്തുവിനു ഇക്ഷേ'ാൾ തറെ�നിന്റെ�ക്ഷേപരിൽക്ഷേപാക്കുവരവ് റെ#യ്യിച്ചു പട്ടയം പിടിച്ചു റെകാള്ളണം . ഇക്ഷേ'ാൾ വസ്തുവകകൾ ഞാൻ കൈകവശംവച ് ചഅനുഭവിച്ചുംറെകട്ടിടത്തിൽതാമസിച്ചും വരു�തുംക്ഷേമലുംഎന്റെ�ജീവിതാവസാനംവറെരയുംവസ്തു കൈകവശംവച്ചും ആദായങ്ങൾ എടുത്തു സ്വതപ്രAമായി വിനിക്ഷേയാ0ിച്ചും റെകട്ടിടത്തിൽ താമസിച്ചുംനടക്കു�തും ആണ് . എന്റെ� താമസത്തിനു തടസ്സം വരാത്തവിധം നിനക്കും ഇക്ഷേ'ാക്ഷേ( റെകട്ടിടത്തിൽ കുടിതാമസിച്ചുറെകാള്ളാവു�താണ് . എന്റെ�കാലാനAരം അനുഭാവവും താമസവും അവകാശം കിട്ടി ഈ ആധാരപ്രപകാരം നിനക ് കസിദ്ധിക്കു�തുംഅതുമുതൽ റെകട്ടിടംഉൾ'റെടയുള്ള പട്ടികവസ്തുവകകൾ മു(ുവൻനീ കൈകവശം വച്ചനുഭവിച്ചും പരിപൂർണാവകാശിയായും വിപ്രകിയാദിസർവ്വസ്വാതപ്രAാധികാരസക്ഷേമതവും വാണ് റെകാക്ഷേള്ളണ്ടതാകു�ു .
18. In the decision in Gopalakrishnan v. Rajamma
reported in [2006 (4) KLT 377] , this Court considered the difference between gift and settlement deed with reference to
RSA NO. 1214 OF 2015 11
Section 122 r/w Section 126 of the Transfer of Property Act, 1882 (for short, ‘the T.P. Act’ hereinafter) and the definition of settlement deed as defined in the Kerala Stamp Act (for short, ‘the Stamp Act’ hereinafter). In paragraph No.17 of the said judgment, it was held as under:
17. Although Exts.A-2, A-3 and A-4 are all settlement deeds styled as "dhananishchayadharam", all those documents are transactions of gift falling under S.122 of the Transfer of Property Act. The T.P. Act does not define or specifically deal with "settlement deeds". The said word is, however, defined under the Kerala Stamp Act to inter alia mean a nontestamentary disposition in writing of movable or immovable properties made for the purpose of distributing the property of the settler among his family members or those for whom he desires to provide or for the purpose of providing for some person dependent on him. (Vide District Collector v. Shahul Hameed & Anr. (1991 (1) KLJ 530) and the judgment dt. 28-62006 by a Division Bench of this Court in A.S.589/1992). However, a gift envisaged by S.122 of the T.P. Act is not restricted to members of the family of the settler or persons dependent on him. Ext.A-3 settlement deed does not reserve in the settler/ mother any right of revocation. Had there been any such right reserved and the deed was revoked in exercise of such right, then the position would have been different (Vide Subbegowda v. Thimmegowda (AIR 2004 2428). In the case on hand, Ext.A-3 is claimed to have been revoked by the settler on the ground of fraud and
RSA NO. 1214 OF 2015 12
misrepresentation by executing Ext.A-4 settlement deed. There cannot be any dispute, and indeed it was not disputed also before me, that the settlement deeds with which we are concerned in this litigation are gift deeds pure and simple falling under S.122 of the T.P. Act.”
“Though called a settlement deed, what was the intention of the executant behind executing the deed? The question of construction of a document is to be decided by finding out the intention of the executant, firstly, from a comprehensive reading of the terms of the document itself, and then, by looking into - to the extent permissible - the prevailing circumstances which persuaded the author of the document to execute it. If the executant intended to transfer property the court would lean in favour of holding the transferee having been vested with interest in the property.
Where an intention to transfer property within the meaning of Section 5 of the Transfer of Property Act, 1882 cannot be spelled out, the document will be given effect to as it reads and as is explicit from what is set out in the deed itself. For the interpreter of documents it is common knowledge that a transfer of property or a creation of interest therein may be accompanied by conditions, covenants or restraints. Condition may be condition
RSA NO. 1214 OF 2015 13
precedent – a condition which must be performed before the grant or alienation takes effect to create an interest in property, or may be condition subsequent - a condition which has an effect of enlarging or defeating the interest already created or vested. A conditional transfer or a settlement accompanied by conditions is not unknown to the law of real property. It is permissible in law to annex or encumber any grant or alienation with condition or limitation which will operate and the court will give effect to it unless there is some provision of law which annuls or invalidates such condition, restraint or limitation. None has been brought to our notice.
Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, AIR 1953 SC 7; Philip John Plasket Thomas v. CIT, AIR 1964 SC
587, relied on
A comprehensive reading of the document shows that the settlement as per the terms of the document was not a transfer of property in favour of the adopted son; it was merely an arrangement or at best an entrustment of the scheduled property to his adopted son and the latter's natural father for the purpose of proper management without obstruction by anyone else including himself so that the welfare of himself, his wife and his children - especially the unmarried daughters - was assured. It is clear from the oral evidence adduced by the plaintiff that his wishes were not fulfilled. Though the pleas of fraud and undue influence vitiating the execution of deed are not substantiated, yet there can be no denying of the fact that N and his natural father did not come up to those expectations of T which had
RSA NO. 1214 OF 2015 14
persuaded him as primary and essential considerations for the execution of the deed. Nothing prevented T from cancelling such settlement and depriving N and his natural father from management over the scheduled property. Though at the end of the main document T has used the expression like permitting the settlee to enjoy the property and also for the right of sale and gift relating to property being conferred and the settlee and his heirs also going on enjoying the property but this stray sentence at the end of the document cannot be read in isolation dissected from the earlier part of the document which in very many words clearly demonstrates the intention of the executant of entrusting the management only of the scheduled property to N and his natural father.
There is no recital in the deed which may be read or be capable of being construed as a demise in praesenti vesting absolute title of the property in N in present or in future. Whatever was given to N and his natural father by the deed was capable of being cancelled or revoked under the power of revocation expressly reserved by T to himself. Thus the deed does not amount to transferring the scheduled property to N. It was only an arrangement, called "settlement" with the power of revocation expressly reserved to the author, subject to which reservation the arrangement was intended to come in effect. It has not been the case of the appellant nor could it have been, that the scheduled property was gifted by T to N. The High Court has rightly formed an opinion that the deed could be revoked.”
RSA NO. 1214 OF 2015 15
RSA NO. 1214 OF 2015 16
“Some of the relevant terms occurring in Ext. A10 are necessary to be quoted here. One of the recital is to the effect "my entire right of property shown in the schedule is hereby given to you without any consideration". There is also the recital that the right to take income from the property shown in the schedule to Ext. A10 was reserved in favour of the donor/settlor. There is a recital in Ext. A10 that in the said property there was a house constructed by Appunni. The document would further recite that the donee Appunni was looking after the donor and so she was having special love and affection towards him. It was further stated that she had also expressed her full confidence in and belief that the donee Appunni would maintain and look after her even till her death and that was the reason why the said document (Ext. A10) was executed by her in favour of Appunni. It was specifically recited that she is/would be not having any right of alienation till her death in respect of the properties shown therein. But at the same time it was stated that till her death she had the right to take income from the property and for that purpose to keep possession also. So far as the case on hand is concerned, there could be no difficulty to hold that the document executed confers the right in praesenti and it is not intended to take effect on the death of the executant. The mere reservation of life interest with the settlor/donor to take income from the property during her life time does not postulate that the document in question is a Will but on the other hand the document bespeak the character of a gift. If it is a testamentary bequest then it would be revocable but if on the other hand it is a gift conveying the property in
RSA NO. 1214 OF 2015 17
praesenti it would be irrevocable. The irrevocability of the disposition would run counter to the plea that is a Will. Though the nomenclature of the document may not be much decisive still that also is one of the circumstances to hold that the document intended to be executed was a settlement deed and not a Will, the appellants contend. so far as the case on hand is concerned, Ext. A10 is very clear, definite and certain that there is a divestiture of title in praesenti. The recitals in Ext. A12 would only support the case of the plaintiffs that as per Ext. A10 there was a divestiture of title in praesenti; that is, as on the date of Ext. A10 itself. The taking of income alone was postponed. The fact that she had retained her right to take income is not a stipulation inconsistent with a deed of gift. In the result, this Second Appeal is allowed. In reversal of the decree and judgment of the Courts below, a decree is passed declaring that Ext. A12 cancellation deed No. 1278/85 and the subsequent gift deed No. 73/1986 are invalid, inoperative and non est. It is also declared that the plaintiffs are the absolute owners of the plaint schedule property. A decree for prohibitory injunction is also passed restraining respondents 2 to 5 and their men from trespassing into or otherwise interfering with the plaintiffs right or possession over the plaint schedule property.”
KLT SN 75], a learned Single Judge of this Court discussed the
RSA NO. 1214 OF 2015 18
distinction between a ‘settlement’ and ‘gift’ and held as under:
16. The distinction between a ‘settlement’ and ‘gift’, is thin. A settlement can be revoked if the conditions stipulated therein are not fulfilled. A ‘gift’ can be suspended or revoked by the donor only if there is such an agreement between the donor and donee that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked. A gift, which the parties agree shall be revocable wholly or in part at the mere will of the donor, is void wholly or in part, as the case may be, as provided in S.126 of the Transfer of Property Act. Under Art.31 of the Schedule to the Kerala Stamp Act, ‘gift’ is an instrument, “not being a settlement or will or transfer”. Art.51 therein provides for stamp duty for the revocation of settlement. In Deputy Collector v. Shahul Hameed and another (1991 (1) KLJ 530), the distinction between a ‘gift’ and a ‘settlement’ is stated thus: “In other words, many settlement deeds may be gift deed; but all gifts need not necessarily be settlements. Some documents may satisfy the requirements of both gift and settlement.” Going by any test, Ext.A1 does not satisfy the requirement of a ‘settlement’ or a ‘gift’.
RSA NO. 1214 OF 2015 19
Section 2(q) of the Stamp Act, the difference is too narrow. The essentials to complete a gift is, transfer of movable or immovable property voluntarily and without consideration by the donor to the donee and accepted by or on behalf of the donee. The donee can be either a member of the family or a dependent or even a third party. Coming to settlement deed, the same also is nontestamentary disposition in writing of movable or immovable property made, (i) in consideration of marriage, (ii) for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or (iii) for any religious or charitable purpose. So, insofar as settlement is concerned, a narrow difference to be read out from Section 2(q) of the Stamp Act is, the same could be effected among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, inclusive of in consideration of marriage or for any religious or charitable purpose. In all other respects, the legal effect of settlement deed and gift is one and the same and some documents may satisfy the
RSA NO. 1214 OF 2015 20
requirements of both gift and settlement.
“Summarizing the question how far unilateral cancellation/revocation of a gift deed, is legally permissible, it has to be held that unilateral cancellation/revocation of a gift deed, which is complete, is not legally permissible and such cancellation/revocation is void. The exemptions are the contingencies dealt under S.126 of the TP Act; which are as under:- i. The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; ii. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.”
RSA NO. 1214 OF 2015 21
deed, thereby a registered settlement deed was cancelled, the law applies to a gift would apply. To be vivid, a settlement deed which is complete, could not be cancelled unilaterally, unless the settlement deed itself provides right of cancellation to the settler on happening of contingencies dealt in the settlement deed itself. Therefore, unilateral cancellation deed executed to cancel a registered settlement deed is void, unless the same is as authorized by the deed itself at the volition of the settler.
RSA NO. 1214 OF 2015 22
In view of the matter, the trial court rightly granted decree in favour of the plaintiffs and the appellate court concurred the said finding and the said verdicts do not require any interference at the hands of this Court.
Accordingly, this regular second appeal stands dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed.
Registry shall inform this matter to the trial court as well as the appellate court, forthwith.
Sd/- A. BADHARUDEEN JUDGE
Bb
2 issues framed by the court
Whether a cancellation deed executed unilaterally to cancel a registered settlement deed is legally valid when the settlement deed conferred absolute title in praesenti?
Whether Ext.B1, a document styled as a settlement deed but found to be a gift deed, conferred title upon the beneficiary?
Colour shows how this judgement treated each authority
Kokilambal v. RamanReferred¶14
[2005 (2) KLT 1007 (SC)]
Gopalakrishnan v. RajammaReferred¶18
[2006 (4) KLT 377]
Subbegowda v. ThimmegowdaReferred¶19
[(2004) 9 Supreme Court Cases 734]
Balan A. and Others v. Thanka and OthersRelied on¶21
[2013 (2) KHC 643 : 2013 (2) KLT 789 : ILR 2013 (2) Ker.797 : 2013 (2) KLJ 780] · Who else cites this
Saramma Ittoop and Others v. Kunjamma Kuruvilla and OthersReferred¶22
[2006 KHC 821 : ILR 2006 (3) Ker.272 : 2006 (2) KLJ 836 : 2006 (3) KLT SN 75] · Who else cites this
Pavithran E.A. v. Erayi Arakkalath NeethaApplied¶24
[2023 KHC OnLine 704 : 2023 KER 66910]
5 provisions across 3 enactments
Ouseph Fernandez
Teena Ben
Thresia Bennappan
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court