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ABDUL SALAM versus SALMA BEEVI KHADEEJA BEEVI

High Court of Kerala

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ABDUL SALAM v. SALMA BEEVI KHADEEJA BEEVI - SA No. 872 of 1994 [2007] RD-KL 15348 (10 August 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA No. 872 of 1994()

1. ABDUL SALAM
... Petitioner

Vs

1. SALMA BEEVI KHADEEJA BEEVI
... Respondent

For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.)

For Respondent :SRI.G.P.SHINOD

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :10/08/2007

O R D E R

M.SASIDHARAN NAMBIAR,J.

S.A.NO.872 OF 1994

Dated, this the 10th day of August, 2007



JUDGMENT

First defendant in O.S.176 of 1984 on the file of Munsiff Court, Nedumangad is the appellant. First respondent is the plaintiff and second respondent the second defendant. First respondent instituted the suit seeking a decree for declaration of title, possession and injunction with an alternative prayer for recovery of possession in case it is found that respondents are in possession of the property. The case of the first respondent was that plaint schedule property originally belonged to deceased Mohamed Kannu, the father of first respondent and under Ext.A1 settlement deed dated 16.10.1978, Mohamed Kannu gifted the property in favour of the first respondent and the gift deed was acted upon and accepted and since then first respondent S.A.No.872/1994 2 is the absolute owner in possession of the property and after the death of the father of first respondent, appellant attempted to trespass into the plaint schedule property and it was resisted and on enquiry, first respondent was made to understand that appellant along with other relatives caused the father to cancel Ext.A1 by executing Ext.B1cancellation deed and subsequently caused to execute Ext.B2 settlement deed fraudulently and by virtue of Ext.B1 or B2 respondents did not derive any right and first respondent has title and possession to the property. A decree for declaration of title and possession was sought. It was contended that if or any reason it is to be found that any portion of the property is in possession of the defendants, first respondent is entitled to a decree for recovery of possession of the property. Appellant filed a written statement contending that first respondent did not have any right on the plaint schedule property and Ext.A1 S.A.No.872/1994 3 settlement deed did not take effect and it was got executed by undue influence by Jalaludeen, the husband of the first respondent and Mohammed Kannu cancelled the fraudulent settlement deed by executing Ext.B1 on 25.10.1978 and subsequently he executed Ext.B2 settlement deed in favour of Peerummal, the daughter of first respondent and also in favour of appellant. It was contended that as per the partition deed No.2558/1123, Mohamed Kannu and his brother Ismail Pillai obtained properties in R.S.No.540, 552 and 553 and at that time there was an oral partition in between Ismail Pillai and Mohamed Kannu whereunder the entire 85 cents in Survey No.359/3 and 50 cents in Sy. No.355/1 along with other properties were allotted to Ismail Pillai and 1 acre 22 cents in Sy.No.355/1 along with other properties were allotted to Mohamed Kannu and Ismail Pillai and Mohamed Kannu jointly executed a gift deed in respect of 2 acres in favour of the second respondent adjusting the share due to S.A.No.872/1994 4 Mohamed Kannu and Ismail Pillai had executed a registered will dated 10.10.1977 in favour of appellant and Mohamed Kannu executed a registered will in respect of his properties in favour of the daughter of the first respondent and Ext.A1 gift deed was got executed by undue influence of Jalaludeen and first respondent has no title to the property and therefore suit is to be dismissed.

2. Learned Munsiff on the evidence of PW1, DW1 and Exts.A1 to A4, B1 to B4 found that Ext.A1 settlement deed was accepted and acted upon and thereafter it cannot be cancelled under Ext.B1 cancellation deed and therefore under Ext.B2 appellant is not entitled to claim any right. It was found that first respondent has title to the property covered under Ext.A1 settlement deed. It was further found that out of the 50 cents in item No.4 of the plaint schedule property, Mohamed Kannu had only half right and the remaining half right vested with Ismail pillai S.A.No.872/1994 5 and therefore first respondent can claim only half right, which was available to Mohamed Kannu. The suit was decreed declaring title of the first respondent in respect of item Nos. 1 to 3 and one half of item No.4 of the plaint schedule properties as well as her possession in respect of items 1 and 2. A decree for injunction in respect of those properties was also granted. In view of the declaration of the title in respect of item No.3 of plaint schedule property a decree for recovery of possession of that item, from the appellant who in possession of the property, was also granted. Appellant challenged the decree and judgment before District Court, Thiruvananthapuram in A.S.200/1987. Learned Additional District Judge on appreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.

3. Appeal was admitted formulating the following substantial questions of law. S.A.No.872/1994 6 1) Whether courts below erred in upholding Ext.A1 gift deed without proof of all the essentials of avalid gift? 2) Whether first appellate court gone wrong in applying the decision in Alavi v. Aminakutty? 3)Whether courts below were correct in holding that Ext.A1 gift deed cannot be revoked or holding that first respondent has title under Ext.A1 gift deed.?

4.Learned counsel appearing for appellant and first respondent were heard.

5.The arguments of learned counsel appearing for appellant is that findings of courts below that Ext.A1 gift deed was accepted by the donee and acted upon and under Ext.B1 cancellation deed are cannot be cancelled is unsustainable on the evidence on record. It was argued that donee first respondent was not examined and on her behalf her husband was examined as PW1 and evidence of PW1 shows that the donee was unaware of the gift deed and came to know about the gift S.A.No.872/1994 7 deed only 5 years thereafter and within ten days of execution of Ext.A1, the gift deed was cancelled by executing Ext.B1 and the cancellation was before the donee came to know about the gift deed and therefore courts below should not have found that Ext.A1 gift deed was acted upon. It was also argued that in the light of the evidence, first appellate court is not justified in drawing the presumptions drawn by this court in Alavi v. Aminakutty (1984 KLT SN.61) and first respondent cannot claim title under Ext.A1, when it was cancelled under Ext.B1 and B2 settlement deed was executed. It was also argued that courts below did not properly appreciate the contentions raised by the appellant. It was pointed out that what was claimed by the appellant in the written statement was that at the time of 1123 partition, there was an oral partition of the properties by Mohamed Kannu and his younger brother Ismail Pillai whereunder the entire item No.3 of the plaint S.A.No.872/1994 8 schedule property and 50 cents of item No.4 were allotted to the share of Ismail Pillai and Mohamed Kannu was not allotted any portion of item No.3 of the plaint schedule property and therefore under Ext.A1, even if the gift deed was accepted and acted upon, Mohamed Kannu cannot transfer any portion of item No.3 and therefore under Ext.A1 first respondent did not derive any right over item No.3 and decree for declaration of title and recovery of possession of that property is unsustainable. Learned counsel argued that in the light of the contentions even if there is no sufficient evidence, an opportunity may be granted to adduce further evidence and for that purpose case may be remanded.

6.Learned counsel appearing for first respondent submitted that case of the appellant was that there was an oral partition whereunder item No.3 was exclusively allotted to the share of Ismail Pillai and there is no evidence to S.A.No.872/1994 9 prove any such an allotment in the partition between the brothers and no attempt was made before the courts below to prove such an oral partition and in such circumstances case may not be remanded. It was also argued that as found by the courts below Ext.A1 gift deed was accepted and acted upon and evidence of PW1 was clarified in reexamination and courts below rightly appreciated the evidence and there is no reason to interfere with the findings of fact and therefore appeal is only to be dismissed.

7. Though learned counsel appearing for appellant vehemently argued on the title of Mohamed Kannu over item No.3 of the plaint schedule property, based on the oral partition and allotment of entire item No.3 in favour of Ismail Pillai, it is seen from the records that no attempt was made before the trial court or first appellate court to establish that there was such an allotment of the entire 85 cents in survey No.359/3 in favour of Ismail Pillai. It S.A.No.872/1994 10 is admitted case that the total extent in Survey No.359/3 is 95 cents and after alienation 85 cents was with Ismail Pillai and his elder brother Mohamed Kannu. Under Ext.A1 Mohamed Kannu had gifted only 41 = cents in R.S.359/3 in favour of first respondent. The remaining extent, which is more than half of the item, was left with Ismail Pillai. Though it was argued that as per an oral partition the entire item No.3 was allotted to Ismail Pillai, there was no evidence to prove any such an oral partition or allotment. True, courts below found that there was an oral partition between Mohamed Kannu and Ismail Pillai. But that will not enable the appellant to contend that Mohamed Kannu did not get any portion of the property in item No.3. The burden is heavily on the appellant to establish that there was such an oral partition as set up in the written statement. The only evidence adduced is that of DW1. Evidence of DW1 reveals that he has no knowledge about the S.A.No.872/1994 11 oral partition. He has stated that he is deposing on the oral partition, because Ismail was found in possession of the property. If there was such an oral partition and allotment of item No.3 in favour of Ismail pillai, appellant should have adduced sufficient evidence. In the light of the evidence, it cannot be said that Ismail Pillai has title to the entire 85 cents in R.S.359/3 and Mohamed Kannu did not have any right over any portion of that property. Considering the fact that under Ext.A1, only less than half of the extent available in R.S.No. 359/3 was gifted by Mohamed Kannu as the property belonging to him and existence of an oral partition was accepted by the courts below and admitted by the parties, and the extent of the property is less than half of the total extent available in the property, I do not find any reason to remand the case to prove the allotment under the oral partition canvassed by the appellant. It is more so because S.A.No.872/1994 12 appellant has no case before the first appellate court or before this court that sufficient opportunity was not granted to adduce necessary evidence.

8. Then the crucial question is whether Ext.A1 gift deed was acted upon. The trial court and first appellate court on appreciating the evidence found that Ext.A1 gift deed was accepted and acted upon. The argument of learned counsel appearing for appellant is that the donee was not examined and evidence of PW1, her husband was that donee was unaware of the gift deed and she came to know about the gift deed only five years thereafter and therefore there was no evidence to prove acceptance of the gift by the donee. That portion of the evidence of PW1 was clarified in reexamination. PW1 deposed that he was not referring about Ext.A1 but with regard to the document executed in favour of the appellant. As rightly found by first appellate court, when Ext.A1 gift deed itself specifically mentions S.A.No.872/1994 13 that the property covered thereunder has been handed over to the donee, there is a presumption that Ext.A1 gift deed was accepted and acted upon. No sufficient contra evidence was adduced. In such circumstance, appreciation of evidence by the courts below, on the question of acceptance of Ext.A1 gift deed, which is a finding of fact cannot be said to be perverse warranting reappreciation of evidence or substitution of the finding of this court to that of the court below. Courts below rightly drawn the presumption as indicated by this court in Alavi's case (supra). As easements of a valid gift were proved, courts below rightly upheld the title under Ext.A1. There is no merit in the appeal. The appeal is dismissed. No costs. M.SASIDHARAN NAMBIAR

JUDGE

Tpl/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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