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VELAYUDHAN NAIR, S/O.GOPINATHAN PILLAI v. MISHA NAIR, D/O.JAYAKUMARI PILLAI - RSA No. 54 of 2007  RD-KL 13076 (13 July 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMRSA No. 54 of 2007()
1. VELAYUDHAN NAIR, S/O.GOPINATHAN PILLAI,
1. MISHA NAIR, D/O.JAYAKUMARI PILLAI,
2. JAYAKUMARI PILLAI, D/O.GOPINATHAN PILLAI
3. KAMALAKUMARI PILLAI,
For Petitioner :SRI.P.B.SURESH KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
R.S.A. NO. 54 OF 2007
Dated this the 13th day of July, 2007
Defendant in O.S.1071/1996 on the file of Munsiff Court, Kollam is the appellant. Plaintiffs are the defendants. Respondents instituted the suit seeking a decree for declaration of title and permanent prohibitory injunction. Plaint A schedule property originally belonged to Gopinathan Pillai. Under Ext.A7 settlement deed it was settled in favour of appellant. He executed Ext.A2 gift deed in favour of first respondent first plaintiff providing right of residence to respondents 2 and 3/plaintiffs 2 and 3. Case of the appellant is that Ext.A2 was executed as insisted by mother of appellant and is road for undue influence exercised by the mother and first respondent did not derive any title under the gift deed and it was cancelled under Ext.A5 cancellation deed. Respondents contended that under Ext.A2 gift deed first R.S.A.54/2007 2 respondent has title to the plaint schedule property and Ext.A2 gift deed was accepted and acted upon and though Ext.A5 cancellation deed was executed it is not valid and binding and respondents are entitled to the decree for declaration and injunction. Appellant resisted the suit contending that under ext.A2 gift deed respondents did not obtain any right and under Ext.A5 it was cancelled and therefore respondents are not entitled to the decree sought for.
2. Learned Munsiff on the evidence of PW1,DWs. 1 and 2 and Exts.A1 to A7 and Exts.B1 to B6 granted a decree holding that under Ext.A2 gift deed first respondent has absolute right and other respondents have right of residence and Ext.A5 cancellation deed is not valid and therefore respondents are entitled to the decree for declaration and injunction. Appellant challenged the decree and judgment before District Court, Kollam in A.S.44/2001. Learned Additional District Judge on reappreciation of evidence confirmed the findings R.S.A.54/2007 3 of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal.
3. Learned counsel appearing for appellant was heard.
4. The argument of learned counsel appearing for appellant was that under Ext.A2 gift deed, title of appellant was not divested or vested in respondents and Ext.A2 only provides that title will be transferred in favour of first respondent on the death of the appellant alone and under Ext.A5, the gift deed was cancelled and appellant is entitled to cancel the gift deed and as respondents have not obtained absolute right in the property and the decree and judgment granted by courts below are unsustainable. Learned counsel also relied on the decision of the Apex Court in Baby Ammal v. Rajan Asari 1997(1) KLT 340 and argued that the gift deed considered in that case was identical to Ext.A2 gift deed and therefore findings of courts below are unsustainable.
5. On hearing the counsel, I do not find any R.S.A.54/2007 4 substantial question of law involved in the appeal.
6. As against the gift deed considered by the Apex Court in Baby Ammal's case (supra) Ext.A2 gift deed shows that title of the donor appellant was divested and vested with first respondent donee. What is provided under Ext.A2 is that during the life time of the donor, he has a right of residence and also can take usufructs. It recites that after the death of the donor, that right also will devolve on the first respondent. That does not mean that title of the donor was not divested or not vested on the donee. There is no prohibition against the alienation of the property by the donee. From the recitals in Ext.A2 it is clear that what was left with the donor was only his right of residence and right to take the usufructs. If so, it is not identical to the gift deed considered by the Apex Court in Baby Ammal's case. Courts below rightly found that Ext.A2 was not a conditional gift. Evidence also prove that Ext.A2 was accepted and acted upon. Hence it R.S.A.54/2007 5 cannot be cancelled by the donor as has been done under Ext.A5. In the light of the factual findings arrived at by the courts below concurrently exercising the powers of this court under section 100 of Code of Civil Procedure, evidence cannot be reappreciated and findings of the courts below cannot be substituted by the findings of this court. As no substantial question of law is involved in the appeal, appeal is dismissed in limine. M.SASIDHARAN NAMBIAR
M.SASIDHARAN NAMBIAR, J.W.P.(C).NO. /06
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