Kerala High Court

Saraswathi Amma (Died) vs C.K.Ramakrishna Pillai (Died) on 6 March, 2024

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
            THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
     WEDNESDAY, THE 6TH DAY OF MARCH 2024/16TH PHALGUNA, 1945
                       RSA NO. 599 OF 2023
 AGAINST THE JUDGMENT AND DECREE DATED 24.03.2023 IN AS NO.119 OF
          2019 OF ADDITIONAL DISTRICT COURT- IV, KOLLAM
  ARISING OUT OF THE JUDGMENT AND DECREE DATED 29.06.2019   IN OS
        NO.19 OF 2011 OF ADDITIONAL MUNSIFF COURT, KOLLAM


APPELLANTS/APPELLANTS/DEFENDANTS:

    1     SARASWATHI AMMA (DIED)
          D/O LATE KUNJUKUTTY AMMA,
          NANDANAM, CHIRAKARA VEEDU,
          MARAVOOR MURI,
          EAST KALLADA VILLAGE, EAST KALLADA P.O.,
          KOLLAM DISTRICT, KERALA STATE,
          PIN - 691502

    2     SHEELA KUMARI
          AGED 49 YEARS
          D/O SARASAMMA AMMA, RESIDING AT NANDANAM,
          CHIRAKARA VEEDU, MARAVOOR MURI,
          EAST KALLADA VILLAGE, EAST KALLADA P.O.,
          KOLLAM DISTRICT, KERALA STATE., PIN - 691502

    3     SINDHU KUMARI
          AGED 47 YEARS
          D/O SARASAMMA AMMA, NANDANAM,
          CHIRAKKARA VEEDU, EAST KALLADA,
          EAST KALLADA P.O., KOLLAM
          NOW RESIDING AT RAJEEV BHAVAN,
          EDAVATTOM, PORIYICKAL JUNCTION KARUVELI P.O.,
          KOTTARAKKARA, KOLLAM DISTRICT., PIN - 691505

    4     SHEEJA MOL
          AGED 44 YEARS
          D/O SARASAMMA AMMA, NANDANAM,
          CHIRAKKARA VEEDU, EAST KALLADA,
          EAST KALLADA P.O., KOLLAM
          NOW RESIDING AT ROHINI NIVAS,
          KALLELI BHAGAM P.O., MARARITHOTTAM,
          KARUNAGAPPALLY, KOLLAM DISTRICT.,
          PIN - 690519
 RSA NO. 599 OF 2023
                            2


    5    ASHOK KUMAR
         AGED 60 YEARS
         S/O PRABHAKARAN PILLAI, NANDANAM,
         CHIRAKKARA VEEDU, EAST KALLADA,
         EAST KALLADA P.O., KOLLAM, PIN - 691502

         BY ADVS.
         S.V.RAJAN
         SHIBI.K.P.
         P.B.MALINI RAO
         SWETHA P. DILEEP
         SREENA B.S.
         KAILAS NATH
         DONA K.R.



RESPONDENTS/RESPONDENTS/PLAINTIFFS:

   1     C.K.RAMAKRISHNA PILLAI (DIED)
         (PLAINTIFF), S/O OF LATE KUNJAN PILLAI,
         CHIRAKARA VEEDU,MARAVOOR MURI,
         /NEVER RESIDED EAST KALLADA VILLAGE, EAST
         KALLADA P.O., KOLLAM TALUK, KOLLAM DISTRICT,
         KERALA STATE, PIN - 691502

   2     RAMA DEVI AMMA
         AGED 67 YEARS
         (ADDL. PLAINTIFF NO.2)
         W/O OF LATE C.K RAMAKRISHNA PILLAI,
         CHIRAKARA VEEDU, MARAVOOR MURI,
         /NEVER RESIDED EAST KALLADA VILLAGE,
         EAST KALLADA P.O., KOLLAM TALUK, KOLLAM
         DISTRICT, KERALA STATE, PIN - 691502

   3     HEMALETHA
         (ADDL. PLAINTIFF NO.3)
         D/O. THE LATE RAMAKRISHNA PILLAI,
         CHAITHRAM, MARUTHOOR KULANGARA THEKKU,
         KARUNAGAPPALLY P.O., KOLLAM., PIN - 691518

   4     JAYAKUMAR
         (ADDL. PLAINTIFF NO.4)
         S/O. THE LATE RAMAKRISHNA PILLAI,
 RSA NO. 599 OF 2023
                           3


         CHIRAKKARA VEEDU, MARAVOOR MURI,
         /NEVER RESIDED EAST KALLADA VILLAGE,
         EAST KALLADA P.O., KOLLAM., PIN - 691502

   5     SUMALETHA
         (ADDL. PLAINTIFF NO.5) D/O. THE LATE
         RAMAKRISHNA PILLAI, RAJESH BHAVAN,
         PERUNGALA P.O., KAYAMKULAM,, PIN - 690559

     THIS REGULAR SECOND APPEAL HAVING COME UP       FOR
ADMISSION ON 06.03.2024, THE COURT ON THE SAME       DAY
DELIVERED THE FOLLOWING:
 RSA NO. 599 OF 2023
                               4



                           JUDGMENT

Dated this the 6th day of March, 2024

This regular second appeal has been filed under

Section 100 and Order XII Rules 1 and 2 of the Civil

Procedure Code, challenging the judgment and decree dated

24.03.2023 in A.S.No.119/2019 on the files of the Additional

District Court-IV, Kollam, and also the judgment and decree

dated 29.06.2019 in O.S.No.19/2011 on the files of the

Additional Munsiff's Court, Kollam. Appellants herein are the

defendants and respondents herein are the plaintiffs in the

above Suit.

2. Heard the learned counsel for the appellants on

admission. Perused the verdicts under challenge.

3. I shall refer the parties in this regular second

appeal as " additional plaintiffs" and "additional defendants"

for convenience.

4. Originally, the suit was filed by the plaintiff,

asserting title over plaint item Nos.1 and 2 properties on the RSA NO. 599 OF 2023

strength of a settlement deed No.2569/1968 of Ezhukone

SRO, marked as Ext.A1 in this case. The specific case of

the plaintiff was that after execution of Ext.A1, the same was

cancelled by executing Ext.B2 cancellation deed

No.3083/1970 and thereafter, the property was released as

per Ext.B3 release deed No.3084/1970 in favour of the

defendant. The defendant raised counter claim while filing

written statement and sought the relief of injunction against

the plaintiff. Initially, as per ex parte decree dated

27.10.2012, the learned Munsiff dismissed the suit and

allowed the counter claim.

5. During the pendency of the litigation, the sole

plaintiff and sole defendant died and additional plaintiffs and

additional defendants continued the proceedings. Thereafter,

the ex parte decree was set aside and the trial court recorded

evidence. PW1 to PW6 examined on the side of the plaintiff

and Exts.A1 to A3 were marked. DW1 to DW3 were

examined and Exts. B1 to B19 were marked on the side of RSA NO. 599 OF 2023

the defendants. Exts.X1 series to X3 series and Ext.C1

series also were marked.

6. After analysing the evidence, the learned Munsiff

found that Ext.A1 gift deed became complete and thereby the

plaintiff obtained title over the plaint schedule property.

Accordingly, decree granted in favour of the plaintiff,

declaring that cancellation deed No.3083/1970 and release

deed No.3084/1970 as void.

7. In the decision in Ouseph Fernandez v.Teena

Ben, reported in 2023 KHC 833 : 2023 KER 77249, this

Court held that unilateral cancellation of gift deed, which is

complete, is not legally permissible. The relevant paragraphs

are as under:

"24. In the decision in Pavithran E.A. v. Erayi Arakkalath Neetha reported in [2023 KHC OnLine 704 : 2023 KER 66910], this Court considered the issue regarding unilateral cancellation/revocation of gift deed and its legality. In the said decision, it was held as under:

"Summarizing the question how far unilateral RSA NO. 599 OF 2023

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."

25. On reading the recitals in Ext.B1, the same deciphers the character of a gift deed and therefore, the courts below rightly found so. Coming to the legal effect of a cancellation 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. 599 OF 2023

8. In this matter, the execution of Ext.A1 was proved

by the plaintiff by examining PW1 to PW6. Since unilateral

cancellation of a gift deed is not legally permissible, the

cancellation deed marked as Ext.B2 and the release deed

subsequently executed in terms of the decree are void ab

initio and the same would not confer title upon the defendant.

Accordingly, the first appeal also was dismissed. Thus, it

appears that the trial court as well as the appellate court

rightly non-suited the defendant while granting decree in

favour of the plaintiff.

9. In view of the above discussions, concurrent

verdicts rendered by the trial court and the appellate court do

not require any interference by this Court.

10. In this case, in fact, the learned counsel for the

defendant failed to justify any substantial question of law

warranting admission of the second appeal. Order XLII Rule

2 provides thus:

RSA NO. 599 OF 2023

"2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100."

11. Section 100 of the C.P.C. provides that, (1) Save

as otherwise expressly provided in the body of this Code or

by any other law for the time being in force, an appeal shall

lie to the High Court from every decree passed in appeal by

any Court subordinate to the High Court, if the High Court is

satisfied that the case involves a substantial question of law.

(2) An Appeal may lie under this section from an appellate

decree passed ex parte. (3) In an appeal under this section,

the memorandum of appeal shall precisely state the

substantial question of law involved in the appeal. (4) Where RSA NO. 599 OF 2023

the High Court is satisfied that a substantial question of law

is involved in any case, it shall formulate that question. (5)

The appeal shall be heard on the question so formulated and

the respondent shall, at the hearing of the appeal, be allowed

to argue that the case does not involve such question.

Proviso says that nothing in this sub-section shall be deemed

to take away or abridge the power of the Court to hear, for

reasons to be recorded, the appeal on any other substantial

question of law, not formulated by it, if it is satisfied that the

case involves such question.

12. In the decision in Nazir Mohamed v. J. Kamala

and Others reported in [2020 KHC 6507 : AIR 2020 SC

4321 : 2020 (10) SCALE 168], the Apex Court held that:

The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial RSA NO. 599 OF 2023

question of law referring Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].

13. In a latest decision of the Apex Court in

Government of Kerala v. Joseph, reported in [2023 (5)

KHC 264 : 2023 (5) KLT 74 SC], it was held, after referring

Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC

179] (three - Judge Bench), as under:

For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well - established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court.

14. The legal position is no more res-integra on the

point that in order to admit and maintain a second appeal

under Section 100 of the C.P.C., the Court shall formulate

substantial question/s of law, and the said procedure is RSA NO. 599 OF 2023

mandatory. Although the phrase 'substantial question of law'

is not defined in the Code, 'substantial question of law'

means; of having substance, essential, real, of sound worth,

important or considerable. It is to be understood as

something in contradistinction with - technical, of no

substance or consequence, or academic merely. However, it

is clear that the legislature has chosen not to qualify the

scope of "substantial question of law" by suffixing the words