Illoth Valappil Ambunhi (D) By Lrs. vs Kunhambu Karanavan

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1429 OF 2011

ILLOTH VALAPPIL AMBUNHI (D) BY LRS. Appellant(s)

VERSUS

KUNHAMBU KARANAVAN Respondent(s)

JUDGMENT

INDIRA BANERJEE J.

1. This Appeal is against a Judgment dated 12th

March, 2009 in Second Appeal No. 229 of 1996 passed

by a Single Bench of the Kerala High Court, whereby

the High Court has set aside the concurrent decisions

of the Trial Court and the First Appellate Court and

declared that the suit property belongs to the

Chuzhali Bhagavathi Dharmadeva Bhandaram (hereinafter

referred to as ‘the Bhandaram’).

2. The High Court further declared that the deed of Signature Not Verified Digitally signed by NEELAM GULATI assignment dated 31st July, 1971 executed by Raman Date: 2019.10.14 16:23:42 IST Reason:

Aithan Ashari in favour of the appellant in respect

of the suit property was null and void and not 2

binding on the respondents and allowed the

respondents to recover possession of the suit

property for and on behalf of the the Bhandaram.

3. The facts giving rise to this Appeal are very

briefly enumerated 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 that

possession had been delivered, there was no evidence

of acceptance of the gift or of the Bhandaram being

in possession. No presumption of acceptance of the

gift could arise on the basis of the recital of

delivery of possession in the deed of gift as the

donee was only an inanimate body and there was no

evidence of any person accepting the gift or entering

into possession on its behalf.

4. The appellants contend that the gift did not

take effect and Raman continued in possession, paying

rent and revenue for the property in his name. He

later cancelled the gift by a deed of cancellation

dated 15th July, 1971 and sold the property to the

original appellant on 31st July, 1971. The original

appellant was given possession thereafter and he made 3

improvements to the suit property.

5. According to the appellants, on or about 7th

December, 1981, long after the original appellant had

purchased the suit property, the respondents being

the family members of Raman, and members of Kizhakke

Veethil Tarwad filed the instant suit for declaration

that the Deed of Cancellation and the deed of

transfer were invalid, null and void.

6. It was the case of the respondents that they

were owners of the Bhandaram which had come to own

the suit property by virtue of the deed of gift.

Upon execution of the deed of gift Raman had divested

himself of title to the suit property and hence was

incompetent to execute any further deed, transferring

the suit property to the appellants herein and/or

their predecessor in interest being the original

appellant.

7. The appellants contend that the appellants are

bonafide purchasers for value. They resisted the suit

contending that the gift had not taken effect, as the

same had not been accepted, and therefore Raman was

perfectly justified in cancelling the gift and

selling the property to the appellant.

8. On behalf of the appellants, it is argued that 4

the Trial Court went into detailed analysis of the

evidence, and came to the conclusion that the gift

executed by Raman had not taken effect, as it had not

been accepted. Accordingly the deed of cancellation

as well as the sale to the appellant were held to be

valid and the suit was dismissed. The findings of

the Trial Court were affirmed by the First Appellate

Court.

9. It is true, as rightly argued by learned senior

counsel appearing on behalf of the appellant, that

the High Court does not, in Second Appeal, embark

upon re-analysis of evidence and interfere with the

concurrent findings of facts. It is well settled

that the condition precedent for interference under

Section 100 of the CPC is the existence of a

substantial question of law.

10. What constitutes substantial question of law has

been settled by innumerable decisions of this Court.

Reference may be made to the Constitution Bench

decision in Sir Chunilal V. Mehta and Sons VS. The

Century Spinning and Manufacturing Co. Ltd. Reported

in AIR 1962 SC 1314.

11. In Chunilal (Supra), a Constitution Bench of

this Court held that the proper test for determining 5

whether a question of law raised in the case is

substantial would be, whether it is of general public

importance or whether it directly and substantially

affects the rights of the parties, and if so, whether

it is an open question in the sense that it has not

finally been settled by this Court or the Privy

Council or the Federal Court, or is not free from

difficulty, or calls for discussion of alternative

views. If the question is settled by the highest

Court, or the general principle to be applied in

determining the question are well settled and there

is mere question of applying those principles, or

that the plea raised is palpably absurd, the question

would not be a substantial question of law. In the

aforesaid case, the construction of the Managing

agency agreement was not only found to be a question

of law, but also neither simple, nor free from doubt

and accordingly the High Court was held to be in

error in refusing to grant the appellant a

certificate that the appeal involved a substantial

question of law.

12. Learned senior counsel appearing for the

Respondent has cited a very recent judgment of this

Court in Gurnam Singh (D) by LRs. and Other vs. Lehna 6

Singh (D) by LRs. reported in 2019(7) SCC 641, where

this Court re-affirmed that the jurisdiction of the

High Court to entertain a Second Appeal under Section

100 of the CPC after the 1976 amendment is confined

to a substantial question of law. Thus existence of a

“substantial question of law” is a sine qua non for

the exercise of jurisdiction under Section 100 of

the CPC.

13. In Gurnam Singh’s case (supra) this Court held

that in a Second Appeal under Section 100 of the CPC,

the High Court cannot substitute its own opinion for

that of the First Appellate Court, unless it finds

that the conclusions drawn by the Court were

erroneous being :

(1.) contrary to the mandatory provisions of the applicable law; or (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 factual finding gives rise to a

substantial question of law, attracting intervention

of the High Court under Section 100 of the CPC.

15. Learned senior counsel appearing for the

appellants referred to the substantial questions of 7

law framed by the High Court, and in particular, the

first question which reads as under:

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

16. Counsel submitted that the questions have been

framed on the patently erroneous premises that the

gift had been accepted, on behalf of the donee when,

in fact, both the Trial Court and the Appellate Court

had concurred in their finding that the gift had

never been accepted.

17. The other questions, i.e. whether the

cancellation deed being Ex.P11 was contrary to the

provisions of Section 126 of the Transfer of Property

Act, 1882, or whether the relief of declaration in

respect of the documents being Exh. P11 was barred by

limitation, or whether the appellant had perfected

title under Section 27 of the Limitation Act, cannot

be said to be substantial questions of law, but are

questions of fact, as argued by Counsel.

18. The first question may not have properly been

framed. Perhaps the question should have read-

whether the finding of the Trial Court with regard to

non acceptance of the deed of gift, confirmed in 8

appeal, was vitiated by perversity and if it was so

vitiated, whether the unilateral revocation of the

deed, by the donor, can be sustained in law.

19. A careful reading of the judgment of the High

Court under Appeal makes it absolutely clear that

those are the questions which have, in effect and

substance, been addressed. In our view, a mere error

in framing a question of law would not render a

judgment in Second Appeal liable to be set aside, if

it is found that a substantial question of law

existed and such substantial question of law has in

fact been answered by the High Court as in this case.

20. The High Court rightly took note of the recital

of the deed of gift which showed delivery of

possession to the donee. The recital of the deed

gift is as under:

“As described above, I hereby give possession of the under mentioned properties as gift for the expenses of the aforesaid Daiva Bhandram which belongs to over Tarward and in which I also have ownership rights.

Therefore from today onwards yourself and in our absence those in our Tarwad who follow the rites of Chuzhali Ayathan etc. shall have possession of the properties given in the schedule below and shall meet the expenses of the Dharmadaivam from the income from time to 9

time pay taxes and give me Rs.24/-towards my life interest before 30th of Kumbham every year from 1131 (M.E.). The said amount shall be given to me till my death and obtain receipt for the same. I will have no other rights on the property mentioned in the schedule except the aforesaid life interest.” The High Court further held :-:

“8. In the decisions relied on by the learned counsel for the respondent it has been held that there cannot be a presumption regarding acceptance of the gift, be it not onerous and that there must be some evidence to show that the gift was accepted during the life time of the donor but, what is stated in those decision is concerning the presumption as to the acceptance of the gift. But when the document itself recited that the possession of the property was given to the donee, then, a presumption of acceptance of gift would arise in favour of the donee.”

21. The proposition of law that when the document of

transfer by gift records delivery of possession, a

presumption of acceptance would arise, in the absence

of overt repudiation of the gift, by and/or on behalf

of the donee, is unexceptionable. As held by the High

Court, when the deed itself said that the possession

of the property was given to the donee, the burden of

proving, that the said recital was not correct, lay 10

on the party who asserted so. In our view, the law

has correctly been appreciated and enunciated by the

High Court.

22. The High Court took note of the recital to the

effect that Karnavan (Malingan Chuzhali Ashari)

acting on behalf of the Bhandaram was to enjoy the

property from the date of the gift, which was strong

evidence of transfer of possession.

23. The High Court rightly found that there was no

direction in the gift deed which made the gift

onerous as understood in Section 127 of the Transfer

of Property Act. In all fairness to the appellants,

this has not even been argued before the High court.

The gift not being onerous, there was no reason why

Malingan Chuzhali Ashari should not 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 all legal purposes. Hence, the acceptance of the gift as per Ext. A1 could be by any person on behalf of the donee. It is not disputed that Malingan Chuzhali Ashari was the Karnavan of the Tharawad during the time of Ext.A1 and that along with Malingan Chuzhali Ashari, the donor (Raman Aithan Ashari) was also a trustee of the Bhandaram.” 11

25. As noted by the High Court, there is no dispute

that Malingan Chuzhali Ashari and the donor Raman

were trustees of the Bhandaram (donee) at the time of

execution of deed of gift. The fact that nothing was

done by Raman or any other trustee of the Bhandaram

to repudiate the gift in itself shows that the deed

of gift was duly accepted by the Bhandaran.

26. The High Court rightly held that the Courts

below had proceeded on the wrong assumption that even

in spite of the recitals in Exh. A1, being the deed

of gift and the admitted facts of the case, the

burden of proof was on the respondents to show that

the gift had been accepted. The findings of the

Trial Courts and the First Appellate Court were based

on a wrong assumption of law regarding the possession

of an idol in the eye of law and the relevant

recitals in Exh. A1 (deed of gift).

27. The High Court rightly declined to accept the

findings of the Courts below that the deed of gift

had not been accepted during the lifetime of the

donor, in the absence of any evidence of non

acceptance of the same. The deed of gift did not

provide for reversion of the suit property to the

donor in case of failure to pay maintenance to the 12

donor in terms of the deed of gift. The High Court,

therefore arrived at the conclusion that Raman was

not competent to execute the deed of cancellation or

the deed of transfer, as he had ceased to be the

owner of the suit property.

28. In Md. Noorul Hoda vs. Bibi Raifunnisa & Ors.

reported in (1996 (7) SCC 767), this Court held that

Article 59 of the Limitation Act would be applicable

if a person affected is a party to a decree or an

instrument or a contract which was questioned by

initiation of a suit. Article 59 would apply to set

aside the decrees, instruments or contracts between

the parties inter se. However, in the case of a

person claiming title through a party to the decree

or instrument or contract who seeks to avoid the

instrument, contract or decree by a specific

declaration, the starting point of limitation under

Article 59 would be the date of knowledge 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 when a document is

valid, no question arises of its cancellation; when a 13

document is void, initiating a decree for setting

aside, the same would not be necessary as the same is

nonest in the eye of law as it would be a nullity.

30. In Prem Singh & Ors. (supra) this Court further

held that Article 59 of the Limitation Act deals only

when relief is claimed on the ground of fraud,

coercion, undue influence, mistake, etc. to avoid a

voidable transaction. Article 59 is attracted where

fraud, coercion, undue influence, mistake etc. have

to be proved. It would not apply to instruments

which are presumptively invalid.

31. The High Court held, and rightly, that Article

59 of the Limitation Act deals with suits for

cancellation for setting aside an instrument or

decree or for rescission of a contract and prescribes

a period of three years commencing from the time when

the fact entitling the plaintiff to have the

instrument or decree cancelled or set aside or the

contract rescinded is first known to him. So far as

Exh. A1 being the deed of gift is concerned, the

donor had no authority to revoke the same. Hence,

the subsequent documents were in themselves without

authority and null and void. The declaration was

only incidental to the title and possession of the 14

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 conditional and the

conditions had not been complied with. Furthermore

on facts it was found that the gift in the aforesaid

case was to take effect at a subsequent date. The

Judgment is distinguishable on facts.

33. In our view, the Second Appeal has rightly been

allowed by the High Court. The Appeal is therefore

dismissed.

34. Needless to mention that the Appellant will be

entitled to initiate such proceedings as the

Appellant may be advised, against the vendor for

damage and recovery of the consideration paid to him.

.............................J. (INDIRA BANERJEE)

.............................J. (SANJIV KHANNA)

NEW DELHI SEPTEMBER 19, 2019