Kerala High Court
Jose Mathew vs Lucy on 5 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
RSA NO. 1039 OF 2019
AGAINST THE JUDGMENT AND DECREE DATED 22.01.2019 IN AS NO.64 OF
2015 OF SUBORDINATE JUDGE'S COURT, PALA ARISING OUT OF THE
JUDGMENT AND DECREE DATED 21.03.2015 IN OS NO.2 OF 2012 OF MUNSIFF
COURT, PALA
APPELLANTS/APPELLANTS/ADDL.DEFENDANTS 5, 2 AND 4:
1 JOSE MATHEW
AGED 64 YEARS
S/O.MATHAI, POOVARANI.P.O., POOVARANI VILLAGE,
MEENACHIL TALUK, NOW RESIDING AT NARITHOOKKIL HOUSE,
PULLARGODU.P.O., KALIKAVU, MALAPPURAM.
2 JOHN,
AGED 59 YEARS
S/O.MATHAI, POOVARANI KARA, POOVARANI VILLAGE,
MEENACHIL TALUK
3 THRESIAMMA
AGED 58 YEARS
D/O.MATHAI, POOVARANI KARA, POOVARANI VILLAGE,
MEENACHIL TALUK, NOW RESIDING AT DGS FLAT NO.285
VIKASPURI, NEW DELHI 18, REP BY POWER OF ATTORNEY
HOLDER JOSE MATHEW, NARITHOOKKIL HOUSE,
PULLARGODU.P.O., KALIKAVU, MALAPPURAM
BY ADV BABY THOMAS
RESPONDENTS/RESPONDENTS 2,3,ADDL.RESPONDENTS 4,5 AND
6/ADDL.DEFENDANTS 3 AND 6, ADDL.PLAINTIFFS 2, 3 AND 4:
1 ANNAMMA
AGED 87 YEARS
W/O.MATHAI, NARITHOOKKIL KUTTIKKATTU HOUSE,
POOVARANI.P.O., POOVARANI VILLAGE, MEENACHI TALUK,
KOTTAYAM-686577
2 MARY SEBASTIAN
W/O.SEBASTIAN, VADAKKEL HOUSE, UPPUTHURA VILLAGE,
UDUMBANCHOLA TALUK, IDUKKI DISTRICT-685505
3 ADDL.LUCY
AGED 53 YEARS
W/O.MATHEW, NARITHOOKKIL KUTTIKKATTU HOUSE,
2
R.S.A.Nos.1039 and 1088 of 2019
POOVARANI.P.O., POOVARANI VILLAGE, MEENACHIL
TALUK, KOTTAYAM-686577
4 ADDL.SARIGA ANN MATHEWS,
AGED 24 YEARS
D/O.MATHEW, NARITHOOKKIL KUTTIKKATTU HOUSE,
POOVARANI.P.O., POOVARANI VILLAGE, MEENACHIL
TALUK-686577, KOTTAYAM
5 ADDL.SANITHA MARIA MATHEWS
AGED 18 YEARS
D/O.MATHEW, NARITHOOKKIL KUTTIKKATTU HOUSE,
POOVARANI.P.O., POOVARANI VILLAGE, MEENACHIL
TALUK, REP. BY POWER OF ATTORNEY HOLDER JOHN,
S/O.CHACKO, THOPPIL HOUSE, INDUSTRIAL ESTATE.P.O.,
CHANGANACHERRY TALUK, CHANGANACHERRY VILLAGE,
KOTTAYAM-686101
BY ADV P.C.HARIDAS, R4
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 05.06.2024, ALONG WITH RSA.1088/2019, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
3
R.S.A.Nos.1039 and 1088 of 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
RSA NO. 1088 OF 2019
AGAINST THE JUDGMENT AND DECREE DATED 22.1.2019 IN AS NO.62
OF 2015 OF SUBORDINATE JUDGE'S COURT, PALA ARISING OUT OF
THE JUDGMENT AND DECREE DATED 21.03.2015 IN OS NO.41 OF 2012
OF MUNSIFF COURT, PALA
APPELLANTS/APPELLANTS/ADDL.DEFENDANTS 5, 2 AND 4:
1 JOSE MATHEW
AGED 64 YEARS
S/O. MATHAI, NARITHOOKKIL KUTTIKKATTU HOUSE,
POOVARANI P.O., POOVARANI VILLAGE, MEENACHIL
TALUK, NOW RESIDING AT NARITHOOKKIL HOUSE,
PULLARGODU P.O., KALIKAVU,
MALAPPURAM - 676 527
2 JOHN
AGED 60 YEARS
S/O. MATHAI, POOVARANI KARA, POOVARANI VILLAGE,
MEENACHIL TALUK - 686 577
3 THRESIAMMA
AGED 58 YEARS
D/O MATHAI, POOVARANI KARA, POOVARANI VILLAGE,
MEENACHIL TALUK, NOW RESIDING AT DGS FLAT NO.285
VIKASPURI, NEW DELHI 18, REP. BY POWER OF ATTORNEY
HOLDER JOSE MATHEW, NARITHOOKKIL HOUSE, PULLARGODU
P.O., KALIKAVU, MALAPPURAM - 676 525
BY ADV BABY THOMAS
RESPONDENTS/RESPONDENTS/ADDL.PLAINTIFFS 2 TO 4 AND
ADDL.DEFENDANTS 3 AND 6:
1 LUCY
W/O. MATHEW, NARITHOOKKIL KUTTIKKATTU HOUSE,
POOVARANI P.O., POOVARANI VILLAGE,
MEENACHIL TALUK - 676 525
4
R.S.A.Nos.1039 and 1088 of 2019
2 SARIGA ANN MATHEWS
AGED 24 YEARS
D/O. MATHEW, NARITHOOKKIL KUTTIKKATTU HOUSE,
POOVARANI P.O., POOVARANI VILLAGE,
MEENACHIL TALUK - 676 525
3 SANITHA MARIA MATHEWS
AGED 18 YEARS
D/O. MATHEW, NARITHOOKKIL KUTTIKKATTU HOUSE,
POOVARANI P.O., POOVARANI VILLAGE,
MEENACHIL TALUK - 676 525
* 4 ANNAMMA (DIED) (LRs RECORDED)
AGED 87 YEARS
W/O. MATHAI, NARITHOOKKIL KUTTIKKATTU HOUSE,
POOVARANI P.O., POOVARANI VILLAGE,
MEENACHIL TALUK - 676 525
(* APPELLANTS 1 TO 3, RESPONDENTS 1 TO 3 AND 5 ARE
RECORDED AS LEGAL HEIRS OF DECEASED R4 AS PER
ORDER DATED 21.3.2024 IN IA 2/2024.)
5 MARY SEBSTIAN
AGED 67 YEARS
W/O. SEBASTIAN, VADAKKEL HOUSE, UPPUTHURA VILLAGE,
UDUMBANCHOLA TALUK, IDUKKI DISTRICT - 685 554
BY ADV P.C.HARIDAS, R1 AND R2
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 05.06.2024, ALONG WITH RSA.1039/2019, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
5
R.S.A.Nos.1039 and 1088 of 2019
C.S.SUDHA, J.
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R.S.A.Nos.1039 and 1088 of 2019
-------------------------------------------
Dated this the 5th day of June 2024
JUDGMENT
These second appeals under Section 100 read with
Order XLII Rule 1 CPC have been filed against the common
judgment dated 22/01/2019 in A.S.No.62/2015 and
A.S.No.64/2015 on the file of the Subordinate Judge's Court, Pala,
which appeals were against the judgment and decree dated
21/03/2015 in O.S.No.2/2012 and O.S.No.41/2012 on the file of
Munsiff Court, Pala. The parties and the documents will be
referred to as described in the suits.
2. Both the suits were filed by the sole plaintiff Mathew
through his power of attorney. Mathew died during the pendency
of the suits and hence his legal representatives were impleaded as
R.S.A.Nos.1039 and 1088 of 2019
additional plaintiffs 2 to 4. O.S.No.41/2012 was filed seeking
cancellation of Ext.A5 cancellation deed executed by the first
defendant cancelling Ext.A1 settlement deed in favour of the
plaintiff. The first defendant is the father of the plaintiff and the
second defendant. According to the plaintiff, the plaint schedule
property having an extent of 1.53 acres belonged to the first
defendant. The first defendant had a liability of ₹1 lakh over the
property. As requested by the first defendant, the plaintiff cleared
the liability. On clearing the liability, the first defendant executed
Ext.A1 settlement deed no.1833/95, SRO, Meenachil, in his favour
with respect to the plaint schedule property. Ext.A1 settlement
deed was accepted by the plaintiff, who constructed a house therein
in the place of an old house in the property in which house, the
parents of the plaintiff are residing. The first defendant, the
brother of the plaintiff, used to extort money from him. Now the
attempt of the second defendant is to trespass into the property and
take possession of the same. As per the settlement deed, a right to
R.S.A.Nos.1039 and 1088 of 2019
cut and remove the trees in the plaint schedule property, if found
necessary, was reserved in favour of the first defendant. The
second defendant purchased 10 cents of property adjacent to the
plaint schedule property. Now his attempt is to encroach into the
plaint schedule property and cut and remove the trees standing in
the property. Hence the plaintiff filed O.S.No.2/2012 seeking a
decree of injunction against the defendants. The plaintiff has
received reliable information that the defendants are also planning
to alienate the plaint schedule property. As part of the said move,
the first defendant executed Ext.A5 cancellation deed dated
25/01/2012 cancelling Ext.A1 settlement deed. The first defendant
had no right to execute Ext.A5 cancellation deed because Ext.A1
settlement deed had already been accepted by the plaintiff long
back.
3. Both the defendants entered appearance. However, the
first defendant passed away during the pending of the proceedings
and before filing the written statement. Additional defendants 3 to
R.S.A.Nos.1039 and 1088 of 2019
6 were impleaded as the legal representatives of the first defendant.
According to the defendants, Ext.A1 is not a settlement deed, but a
Will. The first defendant happened to execute the said Will in
favour of the plaintiff as the former was under the belief that the
latter would take care of him. However, the plaintiff failed to look
after his parents and hence the first defendant was constrained to
execute Ext.A5 cancellation deed. The allegation that the first
defendant had financial liability and that it was the plaintiff who
had cleared the liabilities, was denied. The allegation of attempt to
trespass into the property was also denied by the defendants. The
first defendant had never cut and removed or attempted to cut and
remove any trees standing in the plaint schedule property. The
first defendant as per Ext.B2 Will dated 01/02/2012 has bequeathed
the property in favour of the defendants. The property is now in
the possession of the first defendant and hence the plaintiff has no
right in the same.
4. O.S.No.2/2012 was filed by the plaintiff seeking a
R.S.A.Nos.1039 and 1088 of 2019
decree of permanent prohibitory injunction for restraining the
defendants from committing any waste in the property or alienating
the same in favour of third persons. The defendants have raised
the same contentions as raised in the earlier suit.
5. Necessary issues were raised by the trial court. The
parties went to trial on the basis of the aforesaid pleadings. Joint
trial was conducted and O.S.No.41/2012 was taken as the main
case. PW1 was examined and Exts.A1 to A9 were marked on the
side of the plaintiffs. DWs.1 to 4 and Exts.B1 to B3 were marked
on the side of the defendants. The trial court on an appreciation of
the oral and documentary evidence and after hearing both sides,
decreed both the suits finding that Ext.A1 settlement deed had been
accepted by the plaintiff long back and hence the first defendant
had no right to execute Ext.A5 cancellation deed. The court also
rejected the contention of the defendants that Ext.A1 is a Will.
Aggrieved, the defendants filed first appeal, that is,
A.S.Nos.62/2015 and 64/2015 against the judgment and decree.
R.S.A.Nos.1039 and 1088 of 2019
The first appellate court confirmed the judgment and decree of the
trial court. Hence, the defendants have come up in second appeal.
6. Heard the learned counsel for the defendants/appellants.
7. It was submitted by the learned counsel for the
defendants that both the courts grossly erred in finding that Ext.A1
is infact a settlement deed and not a Will. The intention of the first
defendant was only to execute a Will, which is established by the
testimony of PW4. However, on a total misappreciation of
evidence, both the courts arrived at a wrong decision in favour of
the plaintiffs which requires to be reserved, goes the argument.
8. The recitals relied on by the defendants to contend that
Ext.A1 is a Will, is the reservation of life interest of the first
defendant and his wife in the property. The right of the first
defendant and his wife to reside in the plaint schedule property
during their lifetime was reserved. As per the deed they were also
given the right to take usufructs and if necessary cut down the trees
R.S.A.Nos.1039 and 1088 of 2019
in the property. It is also stated that the plaintiff would get the
right to assign the property only after the death of the parents.
However, there is also a recital to the effect that the plaintiff is to
take possession, effect mutation and to pay tax for the property.
Therefore, on a combined reading of the entire recitals in Ext.A1
deed, the courts found Ext.A1 to be a settlement deed. As rightly
held by both the courts merely because life interest of the first
defendant and his wife had been reserved, that would not make
Ext.A1 a Will. Ext.A1 is dated 28/04/1995. Exts.A6 and A9 tax
receipts dated 01/06/1996 and 23/12/2011 respectively and Ext.A7
possession certificate dated 09/07/1996, which documents are not
seen disputed, show that the plaintiff had acted on the recitals in
Ext.A1 to the effect that he can take possession, effect mutation
and pay tax for the property. Therefore the courts were certainly
right in holding that Ext.A1 is in fact a settlement deed and not a
Will. On a proper and correct appreciation of the evidence, the
courts also found that Ext.A1 settlement deed had been accepted by
R.S.A.Nos.1039 and 1088 of 2019
the plaintiff during the life time of the donor, namely, the first
defendant.
9. Admittedly, after the execution of Ext.A1, 17 years
thereafter, the first defendant, father, executed Ext.A5 cancellation
deed dated 25/01/2012 and pursuant to the same, executed Ext.B2
Will dated 01/02/2012 in favour of his other son, the second
defendant. The specific contention of the defendants in the written
statement is that Ext.A1 was executed in favour of the plaintiff by
the first defendant-father on the belief that the former would look
after him. But after the execution of Ext.A1, plaintiff neglected to
look after his parents and hence the first defendant was constrained
to cancel Ext.A1 settlement deed. Section 126 of the Transfer of
Property Act refers to the contingencies in which the gift
deed/settlement deed can be suspended or revoked. It says that 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
R.S.A.Nos.1039 and 1088 of 2019
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. Therefore, only on the aforesaid grounds, a
gift/settlement deed can be cancelled. Defendants have no case
that any of the grounds in Section 126 are made out in the case on
hand. Once a gift is complete, the same cannot be rescinded. The
subsequent conduct of a donee cannot be a ground for recision of a
valid gift (See Asokan v. Lakshmikutty, (2007)13 SCC 210).
10. In the aforesaid circumstances, I find that both the
courts were right in holding that the first defendant had no
authority to execute Ext.A5 cancellation deed and therefore were
right in decreeing both the suits. There is no infirmity or perversity
in the findings of the trial court or the first appellate court calling
for an interference by this Court. As no substantial questions of
law arise, the appeal is liable to be dismissed in limine and hence I
R.S.A.Nos.1039 and 1088 of 2019
do so.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA
JUDGE
ami/
