Kerala High Court
P.N. Sathya Narayanan vs A. Beenakumari on 11 February, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:10845
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
MAT.APPEAL NO. 522 OF 2014
AGAINST THE JUDGMENT DATED 11.04.2013 IN OP NO.6 OF 2013 OF
FAMILY COURT, VADAKARA
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APPELLANT/RESPONDENT:
P.N. SATHYA NARAYANAN,
S/O.NARAYANAN NAMBOOTHIRI, AGED 43 YEARS, TEACHER,
PEESAPPLLIMANA,PORAVOOR AMSOM, DESOM, KARIKKAD VILLAGE,
THALAPPILLI TALUK, THRISSUR DISTRICT.
BY ADVS.
SRI.LINDONS C.DAVIS
SMT.E.U.DHANYA
SRI.P.B.KRISHNAN
RESPONDENT/PETITIONER:
A. BEENAKUMARI,
D/O.A GOVINDAN NAMBOODIRI, AGED 37 YEARS, TEACHER,
AMBILI ILLAM(HOUSE)KADAMERI AMSOM, AYANCHERI DESOM,
VATAKARA TALUK, KOZHIKODE DISTRICT-PIN-673524.
BY ADVS.
SRI.T.KRISHNAN UNNI (SR.)
SRI.VINOD RAVINDRANATH
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
11.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
SHOBA ANNAMMA EAPEN, JJ.
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Mat. Appeal No.522 of 2014
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Dated this the 11th day of February, 2025
J U D G M E N T
Sathish Ninan, J.
The original petition filed by the wife against the
husband, for declaration of title over the plaint
schedule property under Ext.A1 Gift Deed, and for
declaration that Ext.B1 Cancellation Deed is null and
void, was decreed by the Family Court. The husband is in
appeal. For the sake of convenience, the parties are
hereinafter referred to as "the husband" and "the wife".
2. On 18.02.2010, the husband executed Ext.A1 Gift
Deed in respect of the plaint schedule property in
favour of the wife. The parties fell apart. On
20.12.2010, the husband executed Ext.B1 Cancellation
Deed purporting to cancel Ext.A1 gift. Thereupon the
wife has filed the present Original Petition seeking
declaration of her title under Ext.A1 Gift Deed and
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contending that Ext.B1 cancellation deed is null and
void.
3. In the written statement filed by the husband it
was contended that Ext.A1 was not accepted or acted
upon. It was contended that Ext.A1 was executed for the
purpose of availing a Bank loan. A counter claim was
also raised seeking a declaration that Ext.A1 is a sham
document.
4. On the materials, the Family Court held that
Ext.A1 gift is a valid document and that it was accepted
by the donee-the wife. It was held that the gift having
taken effect, Ext.B1 cancellation executed subsequently
is of no avail.
5. We have heard learned counsel Sri.P.B.
Subramoniam on behalf of the appellant-husband and
learned Senior Counsel Sri.T.Krishnanunni on behalf of
the respondent-wife.
6. The point that arises for determination in this
appeal are: -
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(i) Is the finding of the Family Court that Ext.A1 gift has
taken effect, supported by the evidence on record?
(ii) Is the frame of the suit bad for non-incorporation of a
prayer for recovery of possession?
7. Law is well settled that, with regard to
acceptance of gift only very slight evidence is
necessary. Even the mere knowledge of the donee of a
gift in his favour, is sufficient to find acceptance of
the gift, since a man would only be too eager to promote
his own interests (See: K.Balakrishnan v. K. Kamalam (2004) 1 SCC 581,
Asokan v. Lakshmikutty and Others (2007) 13 SCC 210), Sulekha Devi v. Ajith Kumar
2015 SCC OnLine Ker 27053, Kuttian Padmini v. Nelliyullaparambath Mathu & Ors.
(2014) 1 KLT (SN 82) 58, Bini Anilkumar v. Bhaskaran 2009(3) KLT 753, Narayani
Bhanumathi and Ors. v. Karthyayani Lelitha Bhai 1973 KLT 961).
8. Ext.A1 is the original Gift Deed. It has been
produced by the wife from her custody. The husband does
not have a case that the wife was unaware of the gift.
In the light of the law as noticed above, it could only
be held that Ext.A1 gift was accepted by the donee-wife.
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There is no serious attempt by the appellant to contend
to the contrary.
9. The main argument of the learned counsel for the
appellant is that, the wife having failed to prove her
possession over the property, was bound to sue for
recovery of possession. In the light of the proviso to
Section 34 of the Specific Relief Act, a mere suit for
declaration could not be maintained. The learned counsel
relied on the judgments in Venkataraja v. Vidyane Doureradjaperumal
[(2014) 14 Supreme Court Cases 502], Arulmigu Chokkanatha Swamy Koil Trust v.
Chandran [AIR 2017 SC(W) 1034], to support his contention. The
learned Senior Counsel for the respondent-wife would on
the other hand contend that, it is the specific case of
the wife that pursuant to the gift she is in possession
of the property. The husband who contended to the
contrary ought to have proved otherwise.
10. Ext.A1 acknowledges handing over of the
possession of the property to the donee. It recites
thus:-
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"F\n-¡p-Å k-a-Øh-Im-i-ssI-h-i-§Ä k-ln-Xw C-Xn-\mð
Rm³ \n-§Ä-¡v [-\\nÝ-bw sN-bv-Xv X-ón-cn-¡póp. ta-
emð ]-«n-I-bn-se h-l-I-fn³-tað F-\n-¡v bm-sXm-c-h-Im-i-
ssIhi_m²y-Xbpw tXÀ-¨bpw tNm-Zyhpw Cñ."
The recitals are unambiguous regarding handing over of
possession. Therefore, the presumption is that
possession was handed over to the donee. Of course, it
is a rebuttable presumption and it is for the person who
contends otherwise to prove that the recital is not
correct and that possession has not been handed over.
The burden is on such person who alleges that the
recital is factually correct. We are supported in the
above by judgments of the Apex Court and this Court in
Asokan v. lakshmikutty & Ors. (2007 (13) SCC 210), Alavi and Ors. v.
Aminakutty Umma and Ors. (1985 KLJ 22).
11. In the Original Petition it is pleaded that the
gift was accepted and the possession of the property is
with the wife. As PW1 she asserted her possession over
the property. In her cross-examination, PW1 has asserted
that Ext.A1 property is lying separated from the
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remaining property of the husband's family by "mud bunds
- a¬Inf". She claimed that she had dug a well in the
property and had planted mango trees, mahagani etc. in
the property.
12. Though the burden is on the husband to prove
that in spite of Ext.A1 gift he retained possession of
the property, no evidence is adduced but for his ipse
dixit. Exts.B3 to B5 tax receipts are of no avail for
the reason that they are after Ext.B1 Cancellation Deed.
Suffice to notice that the husband has not discharged
his burden to prove that the possession was not handed
over to the donee and that the recitals in Ext.A1 Gift
Deed to the contrary is not correct.
13. Incidentally it is noticed that no objection
was raised before the Family Court with regard to the
frame of the suit. In Venkataraja's case supra, the Apex
Court held thus :-
"24. A mere declaratory decree remains non-executable in
most cases generally. However, there is no prohibition upon a party
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from seeking an amendment in the plaint to include the unsought
relief, provided that it is saved by limitation. However, it is obligatory
on the part of the defendants to raise the issue at the earliest. (Vide
Parkash Chand Khurana v. Harnam Singh (1973) 2 SCC 484 and
State of M.P. v. Mangilal Sharma (1998) 2 SCC 510)"
At any rate, in the case at hand it having been held
that the donee-wife is in possession of the property
under Ext.A1 gift, the said issue does not arise at all.
We do not find any reason to upturn the decree and
judgment of the Family Court. The appeal fails and is
dismissed. No costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
kns/-
//True Copy//
P.S. To Judge
