ILLOTH VALAPPIL AMBUNHI (D) BY LRS. versus KUNHAMBU KARANAVAN on 19 September 2019

670

SUPREME COURT REPORTS

[2019] 13 S.C.R.

ILLOTH VALAPPIL AMBUNHI (D) BY LRS.

A

v.

KUNHAMBU KARANAVAN

(Civil Appeal No. 1429 of 2011)

B

SEPTEMBER 19, 2019

[INDIRA BANERJEE AND SANJIV KHANNA, JJ.]

Suit – Cancellation of gift deed and deed of transfer –Declaration for – One ‘R’ executed a deed of gift in favour oftheCrespondents – The deed of gift stated that possession was delivered– ‘R’ later cancelled the gift by a deed of cancellation and soldthe property to the original appellants – According to theappellants, the possession of the suit property was given to themand long after the original appellant had purchased the suitproperty, the respondents filed a suit for declaration that deed ofDcancellation and the deed of transfer were invalid, null and void– Respondents claimedthat they were the owners of the suitproperty by virtue of the deed of gift – Trial court held that giftdeed executed had not taken effect, as it was not accepted anddeed of cancellation as well as the sale to the appellant were heldEto be valid and suit was dismissed – This was affirmed by the FirstAppellate Court as well – However, the High Court set aside theconcurrent decisions of the Trial court and the First Appellate Courtand allowed the respondents to recover possession of the suitproperty – On appeal, held: The proposition of law that when adocument of transfer by gift records delivery of possession, aFpresumption of acceptance would arise, in the absence of overtrepudiation of the gift, by and/or on behalf of the doneee, isunexceptionable – The High Court rightly held that when the deeditself said that the possession of the property was given to thedonee, the burden of proving, that the said recital was not correct,Glaid on the party who asserted so – The High Court also rightlydeclined to accept the findings of the courts below that the deedof gift was not accepted during the lifetime of the donor, in theabsence of any evidence of non acceptance of the same – The deedof gift did not provide for reversion of the suit property to theHdonor in case of failure to pay maintenance to the donor in terms of the deed of gift – Further the donor had no authority to revokethe deed of gift – Hence, the subsequent documents were inthemselves without authority and null and void – The secondappeal was rightly allowed by the High Court.

Code of Civil Procedure 1908 – s.100 – Error in framing aquestion of law – Held: A mere error in framing a question of lawwould not render a judgment in second appeal liable to be setaside, if it is found that a substantial question of law existed andsuch substantial question of law has in fact been answered by theHigh Court.

Dismissing the appeal, the Court

HELD: 1. The proposition of law that when the documentof transfer by gift records delivery of possession, a presumptionof acceptance would arise, in the absence of overt repudiationof the gift, by and/or on behalf of the donee, is unexceptionable.As held by the High Court, when the deed itself said that thepossession of the property was given to the donee, the burdenof proving, that the said recital was not correct, lay on the partywho asserted so. In view of this Court, the law has correctlybeen appreciated and enunciated by the High Court.[Para 21][677-G]

2. The High Court took note of the recital of the gift deedto the effect that respondent acting on behalf of the donee wasto enjoy the property from the date of the gift, which was strongevidence of transfer of possession. As noted by the High Court,there is no dispute that respondent and the donor ‘R’ weretrustees of the (donee) at the time of execution of deed of gift.The fact that nothing was done by ‘R’ or any other trustee ofthe donee to repudiate the gift in itself shows that the deed ofgift was duly accepted by the donee. [Paras 22 and 25] [677-H;678-A-D-E]

3. The High Court rightly held that the Courts below hadproceeded on the wrong assumption that even in spite of therecitals in Exh. A1, being the deed of gift and the admitted factsof the case, the burden of proof was on the respondents to showthat the gift had been accepted. The findings of the Trial Courtsand the First Appellate Court were based on a wrong assumption A

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Aof law regarding the possession of an idol in the eye of law andthe relevant recitals in Exh. A1 (deed of gift). [Para 26] [678-F]

4. The High Court rightly declined to accept the findingsof the Courts below that the deed of gift had not been acceptedduring the lifetime of the donor, in the absence of any evidenceBof non-acceptance of the same. The deed of gift did not providefor reversion of the suit property to the donor in case of failureto pay maintenance to the donor in terms of the deed of gift.The High Court, therefore arrived at the conclusion that ‘R’ wasnot competent to execute the deed of cancellation or the deedCof transfer, as he had ceased to be the owner of the suitproperty. [Para 27] [678-G-H; 679-A]

5. The High Court held, and rightly, that Article 59 of theLimitation Act deals with suits for cancellation for setting asidean instrument or decree or for rescission of a contract andDprescribes a period of three years commencing from the timewhen the fact entitling the plaintiff to have the instrument ordecree cancelled or set aside or the contract rescinded is firstknown to him. So far as Exh. A1 being the deed of gift isconcerned, the donor had no authority to revoke the same.EHence, the subsequent documents were in themselves withoutauthority and null and void. The declaration was only incidentalto the title and possession of the donee and hence Article 59had no application. [Para 31] [679-F-G]

Sir Chunilal V. Mehta and Sonsv.The CenturyFSpinning and Manufacturing Co. Ltd.AIR 1962 SC1314 : [1962] Suppl. SCR 549 – followed.

Gurnam Singh (D) by LRs. and Otherv. Lehna Singh(D) by LRs. (2019) 7 SCC 641 – relied on.

GS. Sarojini Amma v. Velayudhan Pillai Sreekumar(2018) SCC Online SC 2200 – distinguished.

Md. Noorul Hoda v. Bibi Raifunnisa & Ors.(1996) 7SCC 767 : [1995] 6 Suppl. SCR 110 ;Prem Singh &Ors. v. Birbal & Ors.(2006) 5 SCC 353 : [2006] 1HSuppl. SCR 692 – referred to.

Case Law Reference

[1962] Suppl. SCR 549followedPara 10(2019) 7 SCC 641reliedPara 12[1995] 6 Suppl. SCR 110referred toPara 28[2006] 1 Suppl. SCR 692referred toPara 29

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1429of 2011.

From the Judgment and Order dated 12.03.2009 of the HighCourt of Kerala at Ernakulam in S. A. No. 229 of 1996 (B).

V. Giri, P. N. Ravindran, Sr. Adv., T. G. Narayanan Nair,S. Sukumaran and Amit Sharma, Advs. for the Appellants.

K. Rajeev, Shinoj K. Narayanan, A. Karthik, Badusha Sulaimanand Ankit Jaglan, Advs. for the Respondent.

The Judgment of the Court was delivered by INDIRA BANERJEE J.

1. This Appeal is against a Judgment dated 12[th] March, 2009 inSecond Appeal No. 229 of 1996 passed by a Single Bench of the KeralaHigh Court, whereby the High Court has set aside the concurrentdecisions of the Trial Court and the First Appellate Court and declaredthat the suit property belongs to the Chuzhali Bhagavathi DharmadevaBhandaram (hereinafter referred to as ‘the Bhandaram’).

2. The High Court further declared that the deed of assignmentdated 31st July, 1971 executed by Raman Aithan Ashari in favour ofthe appellant in respect of the suit property was null and void and notbinding on the respondents and allowed the respondents to recoverpossession of the suit property for and on behalf of the the Bhandaram.

3. The facts giving rise to this Appeal are very brieflyenumerated hereinafter:

Raman Aithan Ashari, hereinafter referred to as Raman,executed a deed of gift of the said property in favour of the Bhandaram.According to the appellants, though the deed of gift stated thatpossession had been delivered, there was no evidence of acceptanceof the gift or of the Bhandaram being in possession. No presumption A

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Aof acceptance of the gift could arise on the basis of the recital ofdelivery of possession in the deed of gift as the donee was only aninanimate body and there was no evidence of any person acceptingthe gift or entering into possession on its behalf.

4. The appellants contend that the gift did not take effect andBRaman continued in possession, paying rent and revenue for theproperty in his name. He later cancelled the gift by a deed ofcancellation dated 15[th] July, 1971 and sold the property to the originalappellant on 31[st] July, 1971. The original appellant was given possessionthereafter and he made improvements to the suit property.

C5. According to the appellants, on or about 7[th] December, 1981,long after the original appellant had purchased the suit property, therespondents being the family members of Raman, and members ofKizhakke Veethil Tarwad filed the instant suit for declaration that theDeed of Cancellation and the deed of transfer were invalid, null andvoid.D

6. It was the case of the respondents that they were owners ofthe Bhandaram which had come to own the suit property by virtue ofthe deed of gift. Upon execution of the deed of gift Raman had divestedhimself of title to the suit property and hence was incompetent toexecute any further deed, transferring the suit property to the appellantsEherein and/or their predecessor in interest being the original appellant.

7. The appellants contend that the appellants are bonafidepurchasers for value. They resisted the suit contending that the gift hadnot taken effect, as the same had not been accepted, and thereforeRaman was perfectly justified in cancelling the gift and selling theFproperty to the appellant.

8. On behalf of the appellants, it is argued that the Trial Courtwent into detailed analysis of the evidence, and came to the conclusionthat the gift executed by Raman had not taken effect, as it had notbeen accepted. Accordingly the deed of cancellation as well as the saleGto the appellant were held to be valid and the suit was dismissed. Thefindings of the Trial Court were affirmed by the First Appellate Court.

9. It is true, as rightly argued by learned senior counsel appearingon behalf of the appellant, that the High Court does not, in SecondAppeal, embark upon re-analysis of evidence and interfere with theHconcurrent findings of facts. It is well settled that the condition precedent for interference under Section 100 of the CPC is theexistence of a substantial question of law.

10. What constitutes substantial question of law has been settledby innumerable decisions of this Court. Reference may be made tothe Constitution Bench decision in Sir Chunilal V. Mehta and SonsVS. The Century Spinning and Manufacturing Co. Ltd.Reportedin AIR 1962 SC 1314.

11. In Chunilal (Supra), a Constitution Bench of this Court heldthat the proper test for determining whether a question of law raisedin the case is substantial would be, whether it is of general publicimportance or whether it directly and substantially affects the rights ofthe parties, and if so, whether it is an open question in the sense that ithas not finally been settled by this Court or the Privy Council or theFederal Court, or is not free from difficulty, or calls for discussion ofalternative views. If the question is settled by the highest Court, orthe general principle to be applied in determining the question are wellsettled and there is mere question of applying those principles, or thatthe plea raised is palpably absurd, the question would not be a substantialquestion of law. In the aforesaid case, the construction of the Managingagency agreement was not only found to be a question of law, but alsoneither simple, nor free from doubt and accordingly the High Court washeld to be in error in refusing to grant the appellant a certificate thatthe appeal involved a substantial question of law.

12. Learned senior counsel appearing for the Respondent hascited a very recent judgment of this Court in Gurnam Singh (D) byLRs. and Othervs. Lehna Singh (D) by LRs. reported in 2019(7)SCC 641, where this Court re-affirmed that the jurisdiction of the HighCourt to entertain a Second Appeal under Section 100 of the CPC afterthe 1976 amendment is confined to a substantial question of law. Thusexistence of a “substantial question of law” is a sine qua non for theexercise of jurisdiction under Section 100 of the CPC.

13. In Gurnam Singh’s case (supra) this Court held that in aSecond Appeal under Section 100 of the CPC, the High Court cannotsubstitute its own opinion for that of the First Appellate Court, unless itfinds that the conclusions drawn by the Court were erroneous being :

(1.) contrary to the mandatory provisions of the applicable law; or AB

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A(2) contrary to the law as pronounced by this Court; or

(3) based on inadmissible evidence or no evidence.

14. It is now well settled that perversity in arriving at a factualfinding gives rise to a substantial question of law, attracting interventionBof the High Court under Section 100 of the CPC.

15. Learned senior counsel appearing for the appellants referredto the substantial questions of law framed by the High Court, and inparticular, the first question which reads as under:

Whether Exh. A1 -gift deed having been accepted on behalf ofCthe donee could be revoked by the donor unilaterally?

16. Counsel submitted that the questions have been framed onthe patently erroneous premises that the gift had been accepted, onbehalf of the donee when, in fact, both the Trial Court and the AppellateCourt had concurred in their finding that the gift had never beenDaccepted.

17. The other questions, i.e. whether the cancellation deed beingEx.P11 was contrary to the provisions of Section 126 of the Transferof Property Act, 1882, or whether the relief of declaration in respectEof the documents being Exh. P11 was barred by limitation, or whetherthe appellant had perfected title under Section 27 of the Limitation Act,cannot be said to be substantial questions of law, but are questions offact, as argued by Counsel.

18. The first question may not have properly been framed.FPerhaps the question should have read- whether the finding of the TrialCourt with regard to non acceptance of the deed of gift, confirmed inappeal, was vitiated by perversity and if it was so vitiated, whether theunilateral revocation of the deed, by the donor, can be sustained in law.

19. A careful reading of the judgment of the High Court underGAppeal makes it absolutely clear that those are the questions whichhave, in effect and substance, been addressed. In our view, a mereerror in framing a question of law would not render a judgment inSecond Appeal liable to be set aside, if it is found that a substantialquestion of law existed and such substantial question of law has in factHbeen answered by the High Court as in this case.

20. The High Court rightly took note of the recital of the deedof gift which showed delivery of possession to the donee. The recitalof the deed gift is as under:

“As described above, I hereby give possession of the undermentioned properties as gift for the expenses of the aforesaidDaiva Bhandram which belongs to over Tarward and in which Ialso have ownership rights.

Therefore from today onwards yourself and in our absence thosein our Tarwad who follow the rites of Chuzhali Ayathan etc. shallhave possession of the properties given in the schedule belowand shall meet the expenses of the Dharmadaivam from theincome from time to time pay taxes and give me Rs.24/-towardsmy life interest before 30[th] of Kumbham every year from 1131(M.E.). The said amount shall be given to me till my death andobtain receipt for the same. I will have no other rights on theproperty mentioned in the schedule except the aforesaid lifeinterest.”

The High Court further held :-:

“8. In the decisions relied on by the learned counsel for therespondent it has been held that there cannot be a presumptionregarding acceptance of the gift, be it not onerous and that theremust be some evidence to show that the gift was accepted duringthe life time of the donor but, what is stated in those decision isconcerning the presumption as to the acceptance of the gift. Butwhen the document itself recited that the possession of theproperty was given to the donee, then, a presumption ofacceptance of gift would arise in favour of the donee.”

21. The proposition of law that when the document of transferby gift records delivery of possession, a presumption of acceptancewould arise, in the absence of overt repudiation of the gift, by and/oron behalf of the donee, is unexceptionable. As held by the High Court,when the deed itself said that the possession of the property was givento the donee, the burden of proving, that the said recital was not correct,lay on the party who asserted so. In our view, the law has correctlybeen appreciated and enunciated by the High Court.

22. The High Court took note of the recital to the effect thatKarnavan (Malingan Chuzhali Ashari) acting on behalf of the AB

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ABhandaram was to enjoy the property from the date of the gift, whichwas strong evidence of transfer of possession.

23. The High Court rightly found that there was no direction inthe gift deed which made the gift onerous as understood in Section 127of the Transfer of Property Act. In all fairness to the appellants, thisBhas not even been argued before the High court. The gift not beingonerous, there was no reason why Malingan Chuzhali Ashari shouldnot have accepted the gift on behalf of the Bhandaram.

24. The High Court held:

“It is indisputable that an idol is to be treated as a minor for allClegal purposes. Hence, the acceptance of the gift as per Ext.A1 could be by any person on behalf of the donee. It is notdisputed that Malingan Chuzhali Ashari was the Karnavan of theTharawad during the time of Ext.A1 and that along with MalinganChuzhali Ashari, the donor (Raman Aithan Ashari) was also atrustee of the Bhandaram.”D

25. As noted by the High Court, there is no dispute that MalinganChuzhali Ashari and the donor Raman were trustees of the Bhandaram(donee) at the time of execution of deed of gift. The fact that nothingwas done by Raman or any other trustee of the Bhandaram to repudiateEthe gift in itself shows that the deed of gift was duly accepted by theBhandaran.

26. The High Court rightly held that the Courts below hadproceeded on the wrong assumption that even in spite of the recitals inExh. A1, being the deed of gift and the admitted facts of the case, theFburden of proof was on the respondents to show that the gift had beenaccepted. The findings of the Trial Courts and the First Appellate Courtwere based on a wrong assumption of law regarding the possession ofan idol in the eye of law and the relevant recitals in Exh. A1 (deed ofgift).

27. The High Court rightly declined to accept the findings of theGCourts below that the deed of gift had not been accepted during thelifetime of the donor, in the absence of any evidence of non acceptanceof the same. The deed of gift did not provide for reversion of the suitproperty to the donor in case of failure to pay maintenance to the donorin terms of the deed of gift. The High Court, therefore arrived at theHconclusion that Raman was not competent to execute the deed of cancellation or the deed of transfer, as he had ceased to be the ownerof the suit property.

28. In Md. Noorul Hodavs. Bibi Raifunnisa & Ors. reportedin (1996 (7) SCC 767), this Court held that Article 59 of the LimitationAct would be applicable if a person affected is a party to a decree oran instrument or a contract which was questioned by initiation of a suit.Article 59 would apply to set aside the decrees, instruments or contractsbetween the parties inter se. However, in the case of a person claimingtitle through a party to the decree or instrument or contract who seeksto avoid the instrument, contract or decree by a specific declaration,the starting point of limitation under Article 59 would be the date ofknowledge of the fraud and/or illegality which renders the decree and/or instrument and/or other document void.

29. In Prem Singh & Ors. vs. Birbal & Ors. Reported in 2006(5) SCC 353, cited on behalf of the appellant, this Court held that whena document is valid, no question arises of its cancellation; when adocument is void, initiating a decree for setting aside, the same wouldnot be necessary as the same is nonest in the eye of law as it wouldbe a nullity.

30. In Prem Singh & Ors. (supra) this Court further held thatArticle 59 of the Limitation Act deals only when relief is claimed onthe ground of fraud, coercion, undue influence, mistake, etc. to avoid avoidable transaction. Article 59 is attracted where fraud, coercion, undueinfluence, mistake etc. have to be proved. It would not apply toinstruments which are presumptively invalid.

31. The High Court held, and rightly, that Article 59 of theLimitation Act deals with suits for cancellation for setting aside aninstrument or decree or for rescission of a contract and prescribes aperiod of three years commencing from the time when the fact entitlingthe plaintiff to have the instrument or decree cancelled or set aside orthe contract rescinded is first known to him. So far as Exh. A1 beingthe deed of gift is concerned, the donor had no authority to revoke thesame. Hence, the subsequent documents were in themselves withoutauthority and null and void. The declaration was only incidental to thetitle and possession of the donee and hence Article 59 had no application.

32. In S. Sarojini Amma vs. Velayudhan Pillai Sreekumar(2018 SCC Online SC 2200)this Court found on facts that the gift was A

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Aconditional and the conditions had not been complied with. Furthermoreon facts it was found that the gift in the aforesaid case was to takeeffect at a subsequent date. The Judgment is distinguishable on facts.

33. In our view, the Second Appeal has rightly been allowed bythe High Court. The Appeal is therefore dismissed.

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34. Needless to mention that the Appellant will be entitled toinitiate such proceedings as the Appellant may be advised, against thevendor for damage and recovery of the consideration paid to him.

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Ankit Gyan

Appeal dismissed.

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