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2023 DIGILAW 788 (KER)

E. A. Pavithran v. Erayi Arakkalath Neetha

2023-10-12

A.BADHARUDEEN

body2023
JUDGMENT : This Regular Second Appeal has been filed under Section 100 r/w Order XLII, Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short) by defendants 2, 3, 5, 8 and 7 in O.S. No. 173/2007 on the files of the Munsiff’s Court Kalpetta, challenging decree and judgment dated 28th February 2009 in the suit as well as decree and judgment in A.S. No. 9/2009 on the files of the Sub Court, Sulthan Bathery dated 15th June 2019. The respondents herein are the plaintiffs and defendants 4, 7, 6, 10 and 9. 2. Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the 1st respondent/ plaintiff. No others appeared. 3. I shall refer the parties in this Regular Second Appeal as ‘plaintiff’ and ‘contesting defendants’ for convenience. 4. As per order dated 20th November 2019, my learned predecessor formulated the following substantial question of law at the time of admitting this second appeal:- “Having found that the plaintiffs had knowledge of Exts.B2 and B3 sale seeds executed by the mother subsequent to Ext.A18 cancellation deed, did not the courts below err in failing to consider whether the cancellation was accepted by the parties?” 5. In precise form, the case put up by the plaintiff before the trial court is that the plaintiff obtained title to property scheduled in the plaint as per document No. 1464/2000, which is styled as a settlement deed with the characteristics of a gift deed. Later, as per document No. 580/2003, the plaintiff unilaterally cancelled the same document and also executed a subsequent sale deed. The sum and substance of the case of the plaintiff is that since the gift deed could not be cancelled unilaterally, all the documents subsequent thereafter are void, and therefore, the plaintiff's title over the plaint schedule property sought to be declared on the strength of document No. 1464/2000. 6. The defendants appeared and contested the suit. The substance of the contention raised by the defendants is that gift deed No.1464/2000 was cancelled legally by the donor as per cancellation deed No. 580/2003 with the consent and knowledge of the plaintiff. It was contended further that the gift deed was not acted upon by the donee since donee did not accept the gift. 7. The trial court framed necessary issues and tried the case. It was contended further that the gift deed was not acted upon by the donee since donee did not accept the gift. 7. The trial court framed necessary issues and tried the case. During trial, the trial court recorded evidence. Plaintiff was examined as PW1 and Exhibits A1 to A22 series marked on the side of the plaintiff. The second defendant was examined as DW1, and Exts. B1 to B21 were marked on the side of the defendants. 8. On appreciation of evidence, after hearing both sides, the trial court decreed the suit as under:- “In the result, the suit is decreed declaring that the plaintiff is the absolute owner in possession of the plaint schedule properties and restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the plaint schedule properties or committing any waste and damages therein or altering the nature and boundaries of the same. No costs.” Though there was challenge against the trial court verdict, the appellate court also concurred the finding of the trial court and accordingly, the appeal also was dismissed. 9. In order to answer the substantial question of law raised herein, a perusal of Ext.A1 viz, document No.1464/2000, the title deed of the plaintiff is necessary. As per Ext.A1, the 1st defendant transferred her right in respect of the entire property covered therein by separately scheduling the properties as items A to F. Out of which, B schedule is the plaint schedule item given to the plaintiff. A perusal of the document would go to show further that though the nomenclature of the document is a settlement deed, the consideration is stated as “love and affection” and the document is to be treated as a gift deed, as rightly found by the trial court as well as the appellate court. The learned counsel for the contesting defendants also conceded Ext.A1 as a gift deed. 10. The learned counsel for the contesting defendants argued that, even though unilateral cancellation of a gift deed is not legally permissible and the same is indicted by the rider under Section 126 of the Transfer of Property Act, 1882 (hereinafter referred to as ‘TP Act’), the matter of acceptance of the cancellation deed by the plaintiff to be considered in the light of the subsequent conduct and attending circumstances. According to the learned counsel for the contesting defendants, the said circumstances would indicate that the gift was not accepted by the donee and the donee virtually accepted and acted upon the Ext.A18 cancellation deed, as per the recitals in the subsequent documents marked as Exts. B2 and B3. Therefore, the finding of the trial court declaring title of the plaintiff over the plaint schedule property based on Ext. A1 gift deed and confirmation of the said finding by the appellate court are illegal and the same would require revisit at the hands of this court. 11. In rebuttal, the learned counsel for the plaintiff submitted that unilateral cancellation/revocation of a gift deed is not legally permissible, and the acceptance of a gift is a matter that must be inferred from the available evidence. It is pointed out that when the gift deed records delivery of possession, a presumption of acceptance would arise unless there is clear and overt repudiation of the gift by and/ or on behalf of the donee is unexceptional. When the deed itself said that the possession of the property was given to the donee, the burden of proving that the said recital was not correct, lay on the party who asserted so. In this connection, he has placed decision of the Apex Court in 2019 KHC 5629 Illoth Valappil Ambunhi (D) by Lrs v. Kunhambu Karanavan In the said decision in paragraph No. 21 the Apex Court observed so. Further, in paragraph No. 29 the Apex Court held as under:- “29. In Prem Singh & Ors. vs. Birbal & Ors. reported in 2006 (5) SCC 353 , cited on behalf of the appellant, this court held that when a document is valid, no question arises of its cancellation; when a document is void, initiating a decree for setting aside, the same would not be necessary as the same is nonest in the eye of law as it would be a nullity.” 12. Similarly, another decision of this court in 2010 (3) KHC 879 Pavakkal Noble John and Another v. Kerala State and Others has been placed to contend that a sale deed executed and registered cannot be cancelled unilaterally. Similarly, another decision of this court in 2010 (3) KHC 879 Pavakkal Noble John and Another v. Kerala State and Others has been placed to contend that a sale deed executed and registered cannot be cancelled unilaterally. A three Bench decision of the Apex Court reported in 2014 KHC 4466 Renikuntla Rajamma (D) by LRs v. K. Sarwanamma which dealt with transfer of property by gift as provided under Sections 122 and 123 of the TP Act also has been placed wherein the Apex Court held as under:- “A conjoint reading of S.122 and S.123 of the Act makes it abundantly clear that "transfer of possession" of the property covered by the registered instrument of the gift duly signed by the donor and attested as required is not a sine qua non for the making of a valid gift under the provisions of Transfer of Property Act, 1882. Judicial pronouncements as to the true and correct interpretation of S.123 of the T.P. Act have for a fairly long period held that S.123 of the Act supersedes the rule of Hindu Law if there was any making delivery of possession an essential condition for the completion of a valid gift. A full bench comprising five Hon'ble Judges of the High Court of Allahabad has in Lallu Singh v. Gur Narain and Others, AIR 1922 All. 467 referred to several such decisions in which the provisions of S.123 have been interpreted to be overruling the Hindu Law requirement of delivery of possession as a condition for making of a valid gift. Insofar as the gifts of immovable property are concerned, S.123 makes transfer by a registered instrument mandatory. This is evident from the use of word "transfer must be effected" used by Parliament in so far as immovable property is concerned. In contradiction to that requirement the second part of S.123 dealing with gifts of movable property, simply requires that gift of movable property may be effected either by a registered instrument signed as aforesaid or "by delivery". The difference in the two provisions lies in the fact that in so far as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. The difference in the two provisions lies in the fact that in so far as the transfer of movable property by way of gift is concerned the same can be effected by a registered instrument or by delivery. Such transfer in the case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the Legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property.” 13. It was also held in the above decision that delivery of the possession is not an essential condition for making a valid gift of immovable property and when the donor reserves the right in his property during the donor’s lifetime, the said condition shall not affect the ownership in favor of the donee in any manner. 14. Reverting back, first of all, to find the essentials to constitute a valid gift under Section 122 of the TP Act, the decision of the Apex Court reported in (2007) 13 SCC 210 , Asokan v. Lakshmi Kutti is apposite to refer. In the said decision the Apex Court analyzed the essentials in Paragraph Nos. 13 to 16 as under: “13. We have noticed the terms of the deeds of gift. Ex-facie, they are not onerous in nature. The definition of "gift" contained in Section 122 of the Transfer of Property Act provides that the essential elements thereof are: (i) absence of consideration; (ii) the donor; (iii) the donee; (iv) the subject-matter; (v) the transfer; and (vi) the acceptance. 14. Gifts do not contemplate payment of any consideration or compensation. It is, however, beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance. The fact that possession had been given to the donee also raised a presumption of acceptance. (See Sanjukta Ray v. Bimelendu Mohanty, AIR 1997 Ori. 131 , Kamakshi Ammal v. Rajalakshmi , AIR 1995 Mad. 415 and Samrathi Devi v. Parasuram pandey, AIR 1975 Pat. 140 ). 15. Concept of payment of consideration in whatever form is unknown in the case of a gift. It should be a voluntary one. It should not be subjected to any undue influence. 16. While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. It is not a case that the appellant was not aware of the recitals contained in deeds of gift. The very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometimes indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift.” 15. That apart, in the decision reported in (2021) 3 SCC 459 , AIR 2021 SCC 394 in Daulat Singh (dead) through LRS. v. State of Rajasthan, the Apex Court relied on Asokan's Case (Supra) and held that execution of gift deed duly registered and attested in accordance with Section 123 of the TP Act and acceptance of such case makes the gift of the immovable property complete and thereby the donor is divested of the title or interest being gifted and the donee becomes the owner of the same. Thus the legal position as regards the essentials of a valid gift dealt under Sections 122 and 123 of the TP Act are execution, registration and acceptance by the donee during the life time of the donor. Delivery of possession may be one mode to prove acceptance and an express acceptance is not necessary for completing the gift. 16. Thus the legal position as regards the essentials of a valid gift dealt under Sections 122 and 123 of the TP Act are execution, registration and acceptance by the donee during the life time of the donor. Delivery of possession may be one mode to prove acceptance and an express acceptance is not necessary for completing the gift. 16. Coming to the question; whether unilateral cancellation/revocation of a gift deed is legally permissible?, Section 126 of the TP Act assumes significance. The same provides as under:- When gift may be suspended or revoked.-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; but 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. 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. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice. 17. In the decision reported in (2010) 15 SCC 207 Thota Ganga Laxmi v. State of A.P., the Apex court considered the legality of a cancellation deed whereby a sale deed was cancelled and in Pragraph No. 4 observed as under:- “In our opinion, there was no deed for the appellants to approach the civil court as the said cancellation deed dated 04.08.2005 as well as registration of the same was wholly void and non est and can be ignored altogether. For illustration, if A transfers a piece of land to B by a registered sale deed, then, if it is not disputed that A had the title to the land, that title passes to B on the registration of the sale deed (retrospectively from the date of the execution of the same) and B then becomes owner of the land. If A wants to subsequently get that sale deed cancelled, he has to file a civil suit for cancellation or else he can request B to sell the land back to A but by no stretch of imagination, can a cancellation deed be executed or registered. If A wants to subsequently get that sale deed cancelled, he has to file a civil suit for cancellation or else he can request B to sell the land back to A but by no stretch of imagination, can a cancellation deed be executed or registered. This is unheard of in law.”. 18. In the decision reported in 2022 (2) KHC 628 , 2022 (2) KLT 540 , Suresh Babu S R and Othrs v. Beena and Othrs. a learned Single Bench of this Court held that in the absence of any right for revocation of a gift deed in the deed itself, unilateral execution of a cancellation deed to cancel the gift deed is bad in law and is legally unsustainable. 19. 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 Section 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. 20. It is argued by the learned counsel for the appellants/contesting defendants that the lower courts also considered the subsequent conduct, particularly referring to Exts. A20 to A22 series documents, in order to assess the genuine nature of Ext. A1, even though those documents were tendered in evidence during cross-examination of DW1, without providing the defendants with an opportunity to cross-examine the plaintiff regarding its authenticity. According to the learned counsel for the contesting defendants, the appellate court addressed this question and found that the said course of action adopted by the trial court is not legal. However, the appellate court also concurred with the view of the trial court that when Ext.A1 gift deed cannot be cancelled unilaterally, on the finding that by virtue of Ext.A1 deed, absolute title upon the plaintiff was conferred and therefore, all the subsequent documents generated thereafter also became void and the same shall not confer any right upon the parties. 21. 21. The question now arises is as to what extent the subsequent conduct and attending circumstances would help the contesting defendants to justify the cancellation/revocation deed. To put it otherwise, did not the courts below err in failing to consider whether the cancellation was accepted by the parties, in view of the fact that the plaintiffs had knowledge of Exts.B2 and B3 sale seeds executed by the mother subsequent to Ext.A18 cancellation deed, it has to be found that, Exts.B2 and B3 sale deeds are documents executed on 08.10.2004 after the execution of Ext.A1 gift deed. Accordingly, concluding the matter in controversy, it is held that the title perfected by the plaintiff in respect of plaint schedule property based on Ext.A1 gift deed taken effect on the date of its execution, since Ext.A1 does not provide revocation of the gift deed, in any way. Therefore, subsequent execution of Exts. B2 and B3 by the mother of the plaintiff, though the same is known to the plaintiff, the same has no legal consequences and the same in no way read as acceptance of Ext.A18, cancellation deed by the plaintiff, in any manner. Therefore, the trial court rightly granted the decree in favour of the plaintiff and the same is confirmed by the appellate court. Therefore, the said concurrent verdicts do not require any interference at the hands of this court. In the result, this regular second appeal fails and is dismissed accordingly. All interlocutory application also stands dismissed.