Research › Search › Judgment

Madras High Court · body

2022 DIGILAW 1245 (MAD)

G. Ayyappan Nair (died) v. Pappa

2022-06-07

R.VIJAYAKUMAR

body2022
JUDGMENT (Prayer in SA(MD).No.300 of 2004: Second Appeals are filed under Section 100 of Civil Procedure Code, against the judgment and decree of the Court of the District Judge, Kanyakumari District at Nagercoil made in A.S.No.90 of 2003 dated 10.02.2004 reversing the judgment and decree passed in O.S.No.41 of 1992 dated 06.01.2003 on the file of the Court of Subordinate Judge, Padmanabhapuram. Prayer in SA(MD).No.306 of 2004: Second Appeals are filed under Section 100 of Civil Procedure Code, against the judgment and decree of 2/33 SA.(MD).Nos.300 and 306 of 2004 the Court of the District Judge, Kanyakumari District at Nagercoil made in A.S.No.86 of 2003 dated 10.02.2004 setting aside the judgment and decree passed in O.S.No.52 of 1997 dated 06.01.2003 on the file of the Court of Subordinate Judge, Padmanabhapuram.) Common Judgment: S.A(MD).No.300 of 2004: The above second appeal arises out of O.S.No.41 of 1992 on the file of the Subordinate Court, Padmanabhapuram. The said suit was filed for the relief of declaration of title over 'A' and 'B' schedule properties and for recovery of possession of 'A' schedule property from the defendants. The said suit was decreed as prayed for by the trial Court. Defendants 1, 2 and 6 filed A.S.No.90 of 2003 before the District Court, Kanyakumari at Nagercoil. The learned First Appellate Judge reversed the judgment and decree of the trial Court and dismissed the suit. As against the same, the plaintiff has filed SA(MD).No.300 of 2004. 2. S.A(MD).No.306 of 2004: The above second appeal arises out of O.S.No.52 of 1997 on the file of Subordinate Court, Padmanabhapuram. The said suit was filed for the relief of permanent injunction restraining the defendants from disturbing the possession of the plaintiff. The said suit was dismissed by the trial Court. As against the same, plaintiffs 2 and 3 have filed A.S.No. 86 of 2003 before the District Court, Kanyakumari at Nagercoil. The learned District Judge was pleased to allow the appeal and decreed the suit as prayed for. As against the same, the third defendant had filed SA(MD).No.306 of 2004. 3. Pleadings in SA(MD).No.300 of 2004: 3(i). The said suit was filed by one Ayyappan Nair contending that the suit 'A' schedule as well as 'B' schedule properties originally belonged to his maternal uncle namely Krishna Pillai. As against the same, the third defendant had filed SA(MD).No.306 of 2004. 3. Pleadings in SA(MD).No.300 of 2004: 3(i). The said suit was filed by one Ayyappan Nair contending that the suit 'A' schedule as well as 'B' schedule properties originally belonged to his maternal uncle namely Krishna Pillai. According to the plaintiff, his parents had passed away, when he was very young and he was brought up by his maternal uncle. Out of love and affection, the said Krishna Pillai has executed a gift deed of 'A' schedule property in favour of the plaintiff on 07.02.1981 under Exhibit A3. According to the plaintiff, he is the owner of 'B' schedule property. At the instance of his uncle Krishna Pillai, the plaintiff has executed a sale deed in favour of Krishna Pillai for 'B' schedule property on 07.02.1981 under Exhibit A1. On the strength of the said sale deed, the said Krishna Pillai has executed a gift deed in favour of his sister Rudrani Amma under Exhibit A6 on 07.02.1981. 3(ii).The plaintiff has further contended that on various occasions when Krishna Pillai had fallen ill, he and his wife have taken care of Krishna Pillai by admitting him in hospital. The plaintiff was maintaining very cordial relationship with Krishna Pillai. However, the first defendant who entered the house as servant maid had induced Krishna Pillai to cancel the gift deed executed in favour of the plaintiff and Krishna Pillai's sister Rudrani Amma. Accordingly, Krishna Pillai has executed a unilateral cancellation deed by cancelling Exhibit A3 gift deed and the said cancellation deed was registered on 12.07.1989 and marked as Exhibit B6. Thereafter, Krishna Pillai has executed a gift deed in favour of the first defendant under Exhibit B9 on 24.07.1989. The said Krishna Pillai had passed away on 31.01.1992 Based upon the gift deed under Exhibit B9, the first defendant has sold 'A' schedule property in favour of the sixth defendant under Exhibit B19 on 11.07.1996. 3.(iii).The plaintiff has further contended that the gift deed was voluntarily executed by Krishna Pillai in his favour under Exhibit A3 and thereafter, the said gift deed has also been accepted and acted upon. Thereafter, the plaintiff has become absolute owner of 'A' schedule property. The said Krishna Pillai has no right to cancel the gift deed in favour of the plaintiff and to execute another gift deed in favour of the first defendant. Thereafter, the plaintiff has become absolute owner of 'A' schedule property. The said Krishna Pillai has no right to cancel the gift deed in favour of the plaintiff and to execute another gift deed in favour of the first defendant. Hence, the plaintiff had prayed for declaration of title over 'A' and 'B' schedule properties and recovery of possession of 'B' schedule property from the defendants. 4. The defendants had filed a written statement contending that after execution of the gift deed in favour of the plaintiff, the plaintiff or his family members did not take care of the said Krishna Pillai. The plaintiff never looked after Krishna Pillai. The defendants had further contended that Krishna Pillai had executed the gift deed in favour of the plaintiff and Rudrani Amma only under the bonafide impression that they will look after him. However after execution of the gift deed, those relatives hated Krishna Pillai. The defendants had further contended that though the document is styled as a gift deed, it is only a Will. The said Krishna Pillai had reserved his right of enjoyment during his life time and hence, the said document could only be treated as a Will. Since Exhibit A3 document is only a Will, the testator had every right to cancel the same during his life time and hence, the cancellation of Exhibit A3 under Exhibit B6 is valid in the eye of law. Once the cancellation of Exhibit A3 is valid, the plaintiff had got no right or title over the suit schedule property. 5. The first and second defendants had further contended that after cancellation of gift deed in favour of the plaintiff, voluntarily the said Krishna Pilai has executed a gift deed in favour of the first defendant. They further contended that during his life time, the said Krishna Pillai had filed O.S.No.623 of 1990 which was renumbered as O.S.No.52 of 1997 seeking permanent injunction over 'A' schedule property. In the said suit, Krishna Pillai has contended that Exhibit A3 is only a Will and hence, he is entitled to cancel the same. Since Krishna Pillai has executed Exhibit B9 gift deed in favour of the first defendant, the first defendant and her family members are entitled to be in possession of the same. Hence, the defendants prayed for dismissal of the suit. 6. Since Krishna Pillai has executed Exhibit B9 gift deed in favour of the first defendant, the first defendant and her family members are entitled to be in possession of the same. Hence, the defendants prayed for dismissal of the suit. 6. The sixth defendant who is the purchaser from the first defendant had filed an independent written statement supporting the case of the first defendant. 7. Pleadings in SA(MD).No.306 of 2004: 7(i).The said suit was filed by Krishna Pillai and Pappa who is the first defendant in O.S.No.41 of 1992. In the said suit, Krishna Pillai had contended that he had executed a document in favour of Ayyappan Nair (plainitff in O.S.No.41 of 1992). The said document could only be termed as a Will, since he has reserved a right of enjoyment of the property during his life time. He had further contended that the second plaintiff namely Pappa is to be considered as his wife and she alone is taking care of his medical needs. He had further contended that after execution of the gift deed, neither the third defendant Ayyappan Nair nor his family members took care of him and hence, he was constrained to cancel the Will executed in favour of Ayyappan Nair. He had further contended that with full consent and knowledge, he has executed Exhibit B9 gift deed in favour of the second plaintiff Pappa. He further contended that the plaintiff in O.S.No.41 of 1992 and his sister Rudrani Amma are attempting to dispossess him from the suit schedule properties and hence, he prayed a decree for permanent injunction. 7(ii). The defendants had filed a written statement contending that Exhibit A3 is not a Will, but only a gift deed. Though right of enjoyment was reserved during the life time of Krishna Pillai, the said document cannot be termed as a Will. Since Exhibit A3 is a settlement deed, the plaintiff Krishna Pillai, has no right to cancel the said document. In the written statement, the defendants have also disputed the relationship of the first plaintiff with the second plaintiff. He had further contended that the defendants had never wanted to dispossess of the first plaintiff during his life time. Hence, the defendants have prayed for dismissal of the suit. 8. Findings of the trial Court. 8(i). Both the suits were tried together and a common evidence was recorded by the Subordinate Court, Padmanabhapuram. He had further contended that the defendants had never wanted to dispossess of the first plaintiff during his life time. Hence, the defendants have prayed for dismissal of the suit. 8. Findings of the trial Court. 8(i). Both the suits were tried together and a common evidence was recorded by the Subordinate Court, Padmanabhapuram. After considering oral and documentary evidence, the trial Court arrived at a finding that Exhibit A3 document is a gift deed and there is no condition imposed in the said document that the plaintiff namely Ayyappan Nair should maintain Krishna Pillai. The said Krishna Pillai has not reserved any power to revoke the said document. Hence, cancellation of Exhibit A3 gift deed under Exhibit B6 is not valid in the eye of law. Since cancellation is not valid in the eye of law, the plaintiff namely Ayyappan Nair is the absolute owner of 'A' schedule property. When the plaintiff is the absolute owner of 'A' schedule property, Krishna Pillai has no right to execute Exhibit B9 gift deed in favour of the first defendant and consequentially, the sale deed executed by the first defendant in favour of the sixth defendant under Exhibit B19 is also not valid. The trial Court further found that the plaintiff has not proved that Exhibit B9 gift deed was executed by Krishna Pillai in favour of the first defendant by exercising undue influence and coercion. Based upon the said findings, the trial Court decreed the suit in favour of the plaintiff as prayed for. 8(ii).Since the trial Court has held that Exhibit A3 gift deed cannot be revoked by Krishna Pillai, the suit filed by Krishna Pillai for permanent injunction in O.S.No.52 52 of 1997 was dismissed. 9. Findings of the First Appellate Court: 9(i). The First Appellate Court arrived at a finding that the right of enjoyment of the property was not given to the Ayyappan Nair under Exhibit A3 during the life time of Krishna Pillai. That apart, the original of Exhibit A3 gift deed was also not handed over to Ayyappan Nair. Only a registration copy has been marked on the side of the Ayyappan Nair. That apart, Ayyappan Nair has not mutated his name in the revenue records, based upon the said gift deed. The plaintiff namely Ayyappan Nair was also not entitled to create any encumbrance over the property during the life time of donor. Only a registration copy has been marked on the side of the Ayyappan Nair. That apart, Ayyappan Nair has not mutated his name in the revenue records, based upon the said gift deed. The plaintiff namely Ayyappan Nair was also not entitled to create any encumbrance over the property during the life time of donor. Based upon the said findings, the First Appellate Court arrived at a conclusion that Exhibit A3 has not been acted upon. 9(ii).The First Appellate Court further held that since right of enjoyment was reserved with the donor during his life time without conferring any right of encumbrance on the donee, Exhibit A3 could only be construed to be a Will which is liable to be cancelled at the instance of Krishna Pillai. The First Appellate Court reversed the findings of the trial Court that Exhibit A3 is a gift deed and arrived at a finding that it is only a Will. Since Exhibit A3 is only a Will, the cancellation of the said document by Krishna Pillai under Exhibit B6 is perfectly valid and hence, the plaintiff namely Ayyappan Nair would not be entitled to a decree for recovery of title and permanent injunction for both 'A' and 'B' schedule properties. On the other hand, Ayyappan Nair has not proved that Exhibit B9 gift deed in favour of the first defendant in O.S.No.41 of 1992 was executed by Krishna Pillai under undue influence or coercion. The execution of the said document has been admitted by the Krishna Pillai in his plaint averments in O.S.No.52 of 1997. Hence, the plaintiffs in O.S.No.52 of 1997 are entitled to a decree for permanent injunction. 10. The judgments of the First Appellate Court in both the appeals are challenged in S.A(MD).Nos.300 and 306 of 2004 before this Court. Both the second appeals were admitted on the following substantial questions of law: “1. Whether the finding of the lower appellate Court that Exhibit A3 is a will and not a gift is correct when the transfer conveyed title to the property to the transferee on the date of document and directed transferee to change patta in his name and pay tax. 2. Whether the finding of the lower appellate Court that Exhibit A3 is a will and not a gift is correct when the transfer conveyed title to the property to the transferee on the date of document and directed transferee to change patta in his name and pay tax. 2. When the trial Court has given findings that the cancellation deeds B6 and B7 and settled deed B9 in favour of Pappa are not valid whether the appellate Court is right in allowing the appeal without reversing the findings of the trial Court on valid grounds? 3. Whether plaintiffs in O.S.No.52 of 1997 are entitled to decree for injunction without proving right to possession of the suit property? 4. If all the documents executed by Krishnapillai and Ayyappan Nair at Parassala are not valid on the ground that the transferrer had no property in Kerala, whether the First Appellate Court is right in giving a decree in favour of the plaintiff in O.S.No.52 of 1997 on the basis of Exhibit B9. 5. Whether the First Appellate Court is right in not formulating all the necessary points for consideration as provided under Order 41 Rule 31 of C.P.C.?” 11. The learned Senior Counsel appearing for the appellants had contended that Exhibit A3 could only be construed to be a gift deed. Merely reserving the right of enjoyment during the life time of the donee, cannot convert a gift deed into a Will. According to the learned Senior Counsel, the gift deed has been acted upon and hence, the donor has no right whatsoever to unilaterally cancel the said document under Exhibit B6 after a period of 8 years. The learned Senior Counsel attacks Exhibit B6 cancellation deed on the ground that the said document has been executed under undue influence and coercion of the first defendant namely Pappa who started living with Krishna Pillai. The learned Senior Counsel further contended that since Exhibit A3 gift cannot be revoked, Exhibit B6 cancellation deed is not legally valid. The plaintiff Ayyappan Nair continues to be the absolute owner of the suit schedule properties. When Ayyappan Nair is the owner of the suit schedule properties, Krishna Pillai has no right or title to execute Exhibit B9 gift deed in favour of the first defendant. 12. The plaintiff Ayyappan Nair continues to be the absolute owner of the suit schedule properties. When Ayyappan Nair is the owner of the suit schedule properties, Krishna Pillai has no right or title to execute Exhibit B9 gift deed in favour of the first defendant. 12. The learned Senior Counsel for the appellants further contended that since Exhibit B9 gift deed is not valid, consequentially the sale deed executed by the first defendant in favour of the sixth defendant under Exhibit B9 also not valid. According to the learned Senior Counsel, the plaintiff has established his title over both the schedule of properties. Since the donor has reserved his right to be in possession of the suit schedule properties during his life time, he has not filed a suit for recovery of possession during the life time of Krishna Pillai. Now the defendants in the suit are the strangers to the properties who are in possession and hence, they have sought for recovery of possession of suit schedule properties. 13. The learned Senior Counsel further contended that the cancellation deed under Exhibit B6 and the gift deed in favour of the first defendant under Exhibit B9 have been executed at Parassala and hence, the said documents are void documents. He further contended that the said Krishna Pillai did not have any property within the jurisdictional limits of Parassala Sub Registrar Office and hence, these documents have been executed in order to commit a fraud upon registration. Hence, the said document could only be a void document. When Exhibits B6 and B9 are eschewed as void documents, the plaintiff is entitled to a decree for declaration of title and recovery of possession. The learned Senior Counsel relied upon the judgments of our High Court reported in 2003 (1) CTC Page 539 ( M.Manoharadhas Vs.C.Arumughaperumal Pillai and another) and CDJ 1987 MHC 236 ( M.Mohamed Kassim & others Vs.C.Rajaram & others) to impress upon the Court that a document registered at Parassala could be construed to be a void document if it is proved that the property alleged to be gifted does not belong to the donor. The learned Senior Counsel relied upon a judgment of the Hon'ble Supreme Court reported in (2014) 9 SCC 445 ( Renikuntla Rajamma Vs. The learned Senior Counsel relied upon a judgment of the Hon'ble Supreme Court reported in (2014) 9 SCC 445 ( Renikuntla Rajamma Vs. K.Sarwanamma) to contend that as far as Hindus are concerned, to retain life interest during the life time of donor in a gift deed, will not change the character of the document into a Will. He further relied upon (2007) 13 SCC 210 ( Asokan Vs.Lakshmikutty and others) to contend that the possession of the original of Exhibit A3 gift deed is immaterial, when donor has remained silent for nearly 8 years from the date of execution of Exhibit A3 and cancellation of the same under Exhibit B6. The learned Senior Counsel further relied upon a judgment of our High Court reported in 2014 (3) MWN (Civil) 42 (G.Arumugham Vs.M.Rajasekaran and others) to contend that where a document is a bilateral document, one of the parties to the document cannot unilaterally cancel the same. In case, such a cancellation is executed, it is void in the eye of law. 14. In the present case, a gift deed has been executed by Krishna Pillai under Exhibit A3 on 07.02.1981 but after a period of 8 years, the same has been unilaterally cancelled under Exhibit B6 on 12.07.1989. The learned Senior Counsel appearing for the appellants further contended that the there is no clause under Exhibit A3 gift deed empowering the donor to revoke the gift in favour of Ayyappan Nair. Hence, viewed from any angle, the cancellation/revocation of the gift deed under Exhibit B6 is not valid in the eye of law. The learned Senior Counsel further relied upon a judgment of our High Court reported in 2011 (1) CTC 694 ( Gopi and another Vs. H.David and others) to contend that Exhibit B6 cancellation deed and Exhibit B9 gift deed in favour of Pappa have been executed at Parassala where the donor did not have any property. The property that is mentioned as a security under these documents was not actually available within the Sub Registration District of Parassala. Hence, according to the learned Senior Counsel, these two documents have to be construed as void documents on the ground that a fraud on registration has been perpetrated by the deceased Krishna Pillai. The property that is mentioned as a security under these documents was not actually available within the Sub Registration District of Parassala. Hence, according to the learned Senior Counsel, these two documents have to be construed as void documents on the ground that a fraud on registration has been perpetrated by the deceased Krishna Pillai. The learned Senior Counsel further contended that the trial Court after properly appreciating the oral and documentary evidence, arrived at a finding that Exhibit A3 is a gift deed without any revocation clause. The said finding has not been reversed by the First Appellate Court, but the First Appellate Court has arrived at a finding that Exhibit A3 is not a gift deed at all, but only a Will. Hence, he prayed for allowing the second appeals and to restore the judgments and decrees of the trial Court. 15. Per contra, the learned counsel appearing for the respondents had contended that though Exhibit A3 has been named as a gift deed, the Court could not be carried away by the name or heading assigned to a particular document. He further contended that the donor has reserved his right of enjoyment over the suit schedule properties during his life time. Though the donee namely Ayyappan Nair was given liberty to mutate the revenue records in his name during the life time of Krishna Pillai, the donee has not chosen to mutate the revenue records in his name for nearly 8 years. This will clearly demonstrate that Exhibit A3 document even assuming to be a gift deed, has not been accepted by the donee and it has not been acted upon by both parties. 16. The learned counsel for the respondents had further contended that the original of Exhibit A3 gift deed has been retained by the donor. The donor has also reserved his right to create encumbrance over the gifted property up to an extent of Rs.5,000/- during his life time. He further contended that there is no proof or evidence to show that the said gift was accepted by the donee namely Ayyappan Nair. If really the donee had accepted the document, he would have mutated the revenue records in his name as per recital in the said document. The donee has not performed any act in furtherance of Exhibit A3 alleged gift deed. If really the donee had accepted the document, he would have mutated the revenue records in his name as per recital in the said document. The donee has not performed any act in furtherance of Exhibit A3 alleged gift deed. A cumulative effect of all the above said circumstances will clearly indicate that Exhibit A3, even assuming to be a gift deed, has not been acted upon. That apart, the act of the donor in not handing over the original to the donee and reserving his right of enjoyment during his life time will clearly indicate that the said document is a Will and only a Will which is cancelled. Hence, he contended that since Exhibit A3 is only a Will, the said document was rightly cancelled by Krishna Pillai under Exhibit B6. 17. The learned counsel appearing for the respondents further contended that there are no pleadings in the plaint attacking Parassala registration of Exhibit B6 cancellation deed and Exhibit B9 gift deed. When there are no pleadings to the said effect, the said issues cannot be raised at the second appeal stage. He further pointed out that the alleged gift deed in favour of the plaintiff has also been executed only at Parassala. 18. The learned counsel for the respondents further contended that 'B' schedule property which was originally owned by Ayyappan Nair was sold in favour of Krishna Pillai under Exhibit A1 sale deed dated 07.02.1981. Based upon the said sale deed, Krishna Pillai has executed a gift deed in favour of his sister Rudrani Amma under Exhibit A6 on 07.02.1981. Now the plaintiff has sought for recovery of possession of 'B' schedule property which has been gifted to Rudrani Amma by Krishna Pillai. The plaintiff has not chosen to implead Rudrani Amma in the suit. That apart, the plaintiff has not even challenged his sale deed under Exhibit A1 said to have been executed by him in favour of Krishna Pillai. Without challenging Exhibit A1 sale deed and Exhibit A6 gift deed, the prayer for recovery of possession over 'B' schedule property is not maintainable in the eye of law. 19. The learned counsel for the respondents further contended that the said Krishna Pillai had filed O.S.No.52 of 1997 (O.S.No.623 of 1990) during his life time before the District Munsif Court, Padmanabhapuram on 28.08.1990. 19. The learned counsel for the respondents further contended that the said Krishna Pillai had filed O.S.No.52 of 1997 (O.S.No.623 of 1990) during his life time before the District Munsif Court, Padmanabhapuram on 28.08.1990. In the plaint, he has clearly contended that Exhibit A3 document is a Will and he has got every right to cancel the same. Krishna Pillai had further contended that he has voluntarily and with full knowledge and consent, has cancelled the gift deed and thereafter, executed Exhibit B9 gift deed in favour of his wife Pappa. Thereafter, Krishna Pillai had passed away on 31.01.1992. During the life time of Krishna Pillai, Ayyappan Nair had remained silent and did not file his written statement in O.S.No.52 of 1997. Ayyappan Nair had filed his written statement in O.S.No.52 of 1997 only on 17.02.1992. 20. The learned counsel for the respondents further contended that even though Krishna Pillai has initiated a suit on 28.08.1990, the present suit by Ayyappan Nair in O.S.No.51 of 1992 has been filed only on 23.03.1992, two months after the date of death of Krishna Pillai. During the life time of Krishna Pillai, the plaintiff has not chosen to challenge any one of the actions of Krishna Pillai. The learned counsel for the respondents further contended that though the cancellation deed was executed on 12.07.1989, Ayyappan Nair has chosen to challenge the same only in March 1992. The sister of Krishna Pillai had already challenged the cancellation deed and Ayyappan Nair was aware of the said cancellation even in the year 1989. He further contended that the plaintiff namely Ayyappan Nair had obtained a certified copy of Exhibit A3 even in March 1990 after the cancellation of the said gift deed. However, he has not chosen to challenge the same during the life time of Krishna Pillai. 21. A combined effect of the above said circumstances will clearly indicate that Exhibit A3 even assuming to be a gift, has not been acted upon by the parties. Hence, he prayed for dismissal of the second appeal. 22. I have carefully considered the submissions made on either side. 23. 'A' schedule property in O.S.No.41 of 1992 is the suit property in O.S.No.52 of 1997. O.S.No.41 of 1992 being comprehensive suit, this Court proceeds to consider the merits of the said suit which would clearly decide the result of O.S.No.52 of 1997. 24. 22. I have carefully considered the submissions made on either side. 23. 'A' schedule property in O.S.No.41 of 1992 is the suit property in O.S.No.52 of 1997. O.S.No.41 of 1992 being comprehensive suit, this Court proceeds to consider the merits of the said suit which would clearly decide the result of O.S.No.52 of 1997. 24. Admittedly, the suit schedule properties were originally owned by one Krishna Pillai who is the maternal uncle of one Ayyappan Nair. The said Ayyappan Nair lost his parents during his early days and he was brought up by his maternal uncle Krishna Pillai. The said Krishna Pillai has executed a gift deed in favour of Ayyappan Nair with regard to 'A' schedule property under Exhibit A3 on 07.02.1981. On the same day, Ayyappan Nair has executed a sale deed in respect of 'B' schedule property in favour of Krishna Pillai under Exhibit A1. Based upon Exhibit A1 sale deed, Krishna Pillai has executed a gift deed in favour of his sister Rudrani Amma under Exhibit A6 on 07.02.1981. Thereafter, some dispute arose between Krishna Pillai and Ayyappan Nair and thereafter, the said Krishna Pillai has unilaterally cancelled the gift deed under Exhibit B6 on 12.07.1989. After cancelling the said gift deed, Krishna Pillai has executed another gift deed in favour of the first defendant Pappa on 24.07.1989 under Exhibit B9. The said Krishna Pillai had filed O.S.No.623 of 1990 before District Munsif Court, Padmanabhapuram for the relief of permanent injunction as against Ayyappan Nair and his sister Rudrani Amma. The said suit was transferred to the Subordinate Court, Padmanabhapuram and renumbered as O.S.No.52 of 1997. The said suit was filed on 28.08.1990. Krishna Pillai had passed away on 31.01.1992. Thereafter, Ayyappan Nair chose to file O.S.No.41 of 1992 seeking declaration of title over 'A' and 'B' schedule properties and for recovery of possession of 'B' schedule property. The said suit was filed on 23.03.1992. While both the suits were pending, the first defendant in O.S.No.41 of 1992 Pappa had sold 'A' schedule property in favour of the sixth defendant on 11.07.1996 under Exhibit B19. The above said facts are not in dispute. 25. It is the contention of the appellants/legal heirs of Ayyappan Nair that Exhibit A3 document is a gift deed and there is no clause enabling the donor to cancel the said document. The above said facts are not in dispute. 25. It is the contention of the appellants/legal heirs of Ayyappan Nair that Exhibit A3 document is a gift deed and there is no clause enabling the donor to cancel the said document. Hence, cancellation of Exhibit A3 gift deed in favour of Ayyappan Nair under Exhibit B6 is not legally valid. Consequentially, the gift deed executed by Krishna Pillai under Exhibit B9 in favour of the first defendant and the sale deed executed by the first defendant in favour of the sixth defendant under Exhibit B19 were not valid in the eye of law. However, the respondents have contended that Exhibit A3 cannot be construed to be a gift, but it could only be interpreted to be a Will. The respondents have further contended that the testator is entitled to cancel the document and execute further documents in favour of the first defendant. The respondents had further contended that even assuming that Exhibit A3 is a gift deed, the same was not acted upon by the parties and it was not even accepted by the donee namely Ayyappan Nair. 26. The entire case now revolves around the question whether Exhibit A3 is a gift deed or a Will ?. Even assuming that Exhibit A3 is a gift deed whether it has been accepted by Ayyappan Nair or acted upon by both the parties?. 27. A careful perusal of Exhibit A3 indicates that it has been assigned a heading as a gift deed. A perusal of the recital in the gift deed demonstrates that the donor namely Krisha Pillai has retained the right of enjoyment of 'A' schedule property during his life time. The donor has also retained his right to create encumbrance over gifted property up to an extent of Rs.5,000/-. In case, if the encumbrance is not cleared during the life time of donor, the same has to be discharged by the donee. The donor has given liberty to the donee to mutate the revenue records during his life time. These are the main recitals of the alleged gift deed. 28. The learned counsel for the respondents has relied upon a judgment of Hon'ble Kerala High Court reported in (2005) 1 KLT 893 ( Omana Vs. The donor has given liberty to the donee to mutate the revenue records during his life time. These are the main recitals of the alleged gift deed. 28. The learned counsel for the respondents has relied upon a judgment of Hon'ble Kerala High Court reported in (2005) 1 KLT 893 ( Omana Vs. Kesavan) to impress upon the Court that where right to encumber the property is retained by the donor, the said document cannot be construed to be a gift deed. The learned counsel for the respondents has also relied upon a judgment of our High Court reported in 2001 (2) CTC 277 (R.Jamuna Bai Vs.M.A. Anusuya and three others) to impress upon the Court when there is no proper proof for acceptance of the gift, the gift is not valid. 29. The learned counsel for the respondents also relied upon the judgment of the Hon'ble Supreme Court reported in (1997) 2 SCC 255 ( Naramadaben Maganlal Thakker Vs. Pranjivandas Maganlal Thakker and others) to contend that when there is no acceptance by the donee, it could not operate as a gift. That apart, absolute transfer of ownership in a gifted property in favour of the donee is absent in the present case and hence, gift is not a valid in the eye of law. The learned counsel for the respondents further contended that the said judgment has been approved by the Hon'ble Supreme Court in a judgment reported in (2014) 9 SCC 445 ( Renikuntla Rajamma Vs. K.Sarwanamma). 29(A). The Hon'ble Supreme Court in its judgment reported in (2014) 9 SCC 445 ( Renikuntla Rajamma Vs. K.Sarwanamma) has held that the retention of right to enjoy the property during the life time of the donor, does not change the character of a gift deed into a Will. In the present case, the donor namely Krishna Pillai has retained his right of enjoyment during his life time. In view of the above Supreme Court Judgment, this Court can safely arrive at a finding that Exhibit A3 document is only a gift and not a Will. Now, let us consider whether the said Exhibit A3 gift deed has been validly executed and it has been accepted by the donee namely Ayyappan Nair or not. In view of the above Supreme Court Judgment, this Court can safely arrive at a finding that Exhibit A3 document is only a gift and not a Will. Now, let us consider whether the said Exhibit A3 gift deed has been validly executed and it has been accepted by the donee namely Ayyappan Nair or not. The following factors in the present case are relevant for considering the issue whether a gift has been validly executed or it has been acted upon by the parties. (i).The original of Exhibit A3 gift deed has been retained by the donor. The donee namely Ayyappan Nair has filed only a certified copy of the said gift deed as Exhibit A3. On the other hand, the original of Exhibit A3 has been filed on the side of the defendants and marked as Exhibit B3. (ii).The donor has retained his right to create encumbrance over the gifted property up to an extent of Rs.5,000/- during his life time. This right to create encumbrance will clearly establish that there is no transfer of absolute title from the donor to the donee in the gifted property. (iii).As per recital in the gift deed, the donee is entitled to mutate his name in the revenue record even during the life time of the donor. However, the donee has not chosen to mutate the revenue records in his name for nearly 8 years till the gift deed was cancelled by the donor. (iv).The other gift deeds which were cancelled by Krishna Pillai on the same day were challenged by the respective beneficiaries in two different suits during the life time of Krishna Pillai. In the present case, the plaintiff has not chosen to challenge the cancellation of the said gift deeds during the life time of Krishna Pillai. Though the donor Krishna Pillai has initiated a suit for permanent injunction on 28.08.1990 itself, the donee has chosen to file a suit for declaration of title only on 23.03.1992 after the death of Krishna Pillai. (v). A cumulative reading of the above said factors will clearly indicate that though Exhibit A3 is a gift deed, no absolute title has been transferred by the donor in favour of the donee. Except interested witnesses of the donee, no other independent witness has been examined to prove that the donee has accepted the gift. (v). A cumulative reading of the above said factors will clearly indicate that though Exhibit A3 is a gift deed, no absolute title has been transferred by the donor in favour of the donee. Except interested witnesses of the donee, no other independent witness has been examined to prove that the donee has accepted the gift. There is no proper explanation whatsoever from the side of the Ayyappan Nair why he has not mutated the revenue records in his name ( though permitted in the gift deed) during the life time of donor. These factors naturally constrain the Court to arrive at a conclusion that the gift deed not only being invalid in the eye of law, but has not been acted upon by the parties. (vi). The plaintiff namely Ayyappan Nair has questioned the voluntariness and mental capacity of Krishna Pillai in executing Exhibit B9, the gift deed in favour of the second defendant Pappa. The donor under Exhibit B9 namely Krishna Pillai has specifically admitted the execution of Exhibit B9 gift deed in Paragraph Nos.3 and 4 of the plaint in O.S.No.52 of 1997. When the executor himself has admitted the execution of Exhibit B9 gift deed, it is a proof of execution of Exhibit B9 gift deed in view of Section 70 of Indian Evidence Act 1872. Hence the plaintiff in O.S.No.52 of 19977 has established the right to be in possession of the suit schedule properties. 30. Though the said Ayyappan Nair has questioned the signature of Krishna Pillai in the plaint in O.S.No.52 of 1997, Ayyappan Nair has not chosen to let in any oral or documentary evidence to dispute the signature of Krishna Pillai. Except his interested witnesses, Ayyappan Nair has not examined any one to question the signature of Krishna Pillai. Ayyappan Nair has also not chosen to send the signature for expert opinion. Though it was contended that Krishna Pillai was not in a good state of mind, no one was examined to prove the same. In fact, Ayyappan Nair has chosen to file a written statement raising these contentions only after the death of Krishna Pillai. Krishna Pillai had filed O.S.No.52 of 1997 on 28.08.1990 and he died only on 31.01.1992. Though it was contended that Krishna Pillai was not in a good state of mind, no one was examined to prove the same. In fact, Ayyappan Nair has chosen to file a written statement raising these contentions only after the death of Krishna Pillai. Krishna Pillai had filed O.S.No.52 of 1997 on 28.08.1990 and he died only on 31.01.1992. But Ayyappan Nair has chosen to file a written statement only on 17.02.1992 immediately after the date of death of Krishna Pillai questioning the mental capacity of Krishna Pillai, This raises doubt in the minds of the Court with regard to the attempted pleadings of the Ayyappan Nair. 31. Since the gift deed executed in favour of Ayyappan Nair by Krishna Pillai is held to be not a valid gift in the eye of law, the plaintiff will not be entitled to a decree for declaration of title based upon the said gift deed. 'B' schedule property has been sold away by Ayyappan Nair under Exhibit A1 in favour of Krishna Pillai in the year 1981. The said sale deed has not been challenged by Ayyappan Nair. Based upon the said sale deed, Krishna Pillai has also executed a settlement deed in favour of his sister Rudrani Amma. The said Rudrani Amma has not been made as a party to the present suit. Hence, the prayer for declaration of title and recovery of possession with regard to 'B' schedule property is not at all maintainable. 32. The trial Court has erroneously arrived at a finding that the gift deed is irrevocable without properly appreciating the fact that the gift deed itself is not valid in the eye of law. However, the First Appellate Court has arrived at a finding that the gift deed is not valid in the eye of law in view of non-acceptance by the donee and other attendant circumstances. 33. Though the learned counsel for the appellants had contended that the cancellation deed under Exhibit B6 and gift deed under Exhibit B9 have been executed at Parassala and hence, they are invalid documents, the plaintiff has not produced any documentary evidence whatsoever to prove that some fictitious properties were included in these documents to get them registered before Parassala. 33. Though the learned counsel for the appellants had contended that the cancellation deed under Exhibit B6 and gift deed under Exhibit B9 have been executed at Parassala and hence, they are invalid documents, the plaintiff has not produced any documentary evidence whatsoever to prove that some fictitious properties were included in these documents to get them registered before Parassala. In fact, Exhibit A3 gift deed in favour of the plaintiff has also been registered before Parassala and naturally, the cancellation of the said document will be made before Sub Registrar Office, Parassala only. Though Exhibit B9 gift deed in favour of the first defendant (Pappa) is said to include a fictitious property as Item No.3, the plaintiff has not chosen to produce any document to show that the said item is a fictitious property and Exhibit B9 has been executed with an intention to commit a fraud on registration. Without any documentary evidence, this Court is not in a position to consider the said submissions made by the learned Senior Counsel appearing for the appellants. 34. In view of the above said discussions, all the substantial questions of law are answered as against the appellants. The judgments and decrees of the First Appellate Court are confirmed and the Second Appeals are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.