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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. Somarajan, J.
Ammini Kuruvila and Ors. – Petitioners
Versus
Kunjumol Charly and Ors. – Respondents
FAO (RO) NO. 7 OF 2020
Decided On : 16-09-2021
Civil Law – Evidence Act – Section 90 - Suit for partition -Plaintiffs claims that their predecessor-in-interest Annamma Paulose obtained the property by virtue of Ext.A4 sale deed based on an earlier document of gift, Ext.A3. The contention of the defendants is that Ext.A3 gift deed is ab initio void and never came into effect and as such, the sale deed executed based on Ext.A3 gift deed has no legal validity -Whether a registered deed of gift and subsequent deed of sale can be avoided under Section 123 of the Transfer of Property Act without the intervention of a competent court? What would be the legal position when the document of gift appears to be signed by two attesting witnesses? What would be the legal effect of a registered sale deed of the property covered by an earlier gift deed, if it was allowed to continue for a long period more than the period of limitation without any challenge and what would be legal effect of the delivery of possession of property effected in furtherance of the deed of sale, even if the prior title deed, the gift was found to be invalid? Whether the trial court and the first appellate court are justified in concluding that both the documents are invalid overlooking the period of limitation, that too, without a properly instituted suit
Finding of the Court:
A document of gift having only one attesting witness would be void ab initio, but when there are atleast two attesting witnesses to the document, the document would not stand as ab initio void on the ground that one among the witnesses did not possess the required animus testandi. A deed of gift having only one witness would be void ab initio and a nullity in its very inception, but a deed of gift having two witnesses would not by itself stand ab initio void or a nullity in its very inception on the ground that one among the attesting witnesses did not possess the required animus testandi, for which there should be an adjudication in a properly instituted suit for declaration. There are lot of differences between a document which is ab initio void or nullity in its very inception, which can be either avoided or ignored by the parties without the intervention of a competent court from that of a voidable document at the option of any of the parties to which adjudication by a competent court is an indispensable requirement and in the absence of a properly instituted suit within the permissible period of limitation, the document would stand valid and legal- alleged status of the attesting witnesses was taken into consideration after the lapse of more or less 42 years, that too, after the death of both the attesting witnesses. The lapse of more than 42 years and the death of both the attesting witnesses by that time were not even addressed. It is so unfortunate that both the trial court and the first appellate court failed to consider the legal impact of Section 90 of the Evidence Act- The fact that the gift deed was acted upon by exercising the right and ownership over the property by executing a registered deed of transfer by way of sale in the year 1981 was also overlooked by both the courts below. Till that time, nobody came up with any suit challenging its validity and by that time, a period of 12 years elapsed. The possession of property given under the gift deed and under the subsequent sale deed and its legal consequences was also not addressed- Court below ought to have passed a preliminary decree by allowing partition by metes and bounds and separation of 1/7th share each to the plaintiffs 1 to 3 and 1/7th share jointly to plaintiffs 4 to 6 in the suit.
Result: Appeal allowed
JUDGMENT :
A suit for partition was dismissed by the trial court on the ground that Ext.A3 gift deed and Ext.A4 sale deed are invalid. Ext.A4 sale deed is of the year 1981 (9.7.1981) and the prior document, Ext.A3 gift deed is of the year 1969 (29.12.1969). The plaintiffs claims that their predecessor-in-interest Annamma Paulose obtained the property by virtue of Ext.A4 sale deed based on an earlier document of gift, Ext.A3. The contention of the defendants is that Ext.A3 gift deed is ab initio void and never came into effect and as such, the sale deed executed based on Ext.A3 gift deed has no legal validity.
2. Indisputably, no suit for setting aside Ext.A3 gift deed and subsequent sale deed was filed at any point of time within the period of limitation or till date. Even in the present suit, no counter claim was raised for any relief of declaration, except a contention that Ext.A3 gift deed is invalid and not came into effect due to non-compliance of requirement of attestation by two witnesses as mandated under Section 123 of the Transfer of Property Act.
3. The trial court accepted the contention raised by the defendants and found that both Exts.A3 gift deed and Ext.A4 sale deed are invalid and dismissed the suit for partition without a counter claim for the said relief, that too, overlooking the period of limitation. The first appellate court went along with the trial court and committed the very same mistake and found that there is no valid gift deed as claimed under Ext.A3 and as such, the subsequent sale under Ext.A4 is also invalid, but remanded the case back to the trial court to address the genuineness of Ext.B8 Will of the year 1983, against which the plaintiffs came up in appeal. The essential questions came up for consideration are:
(2) What would be the legal position when the document of gift appears to be signed by two attesting witnesses?
(3) What would be the legal effect of a registered sale deed of the property covered by an earlier gift deed, if it was allowed to continue for a long period more than the period of limitation without any challenge and what would be legal effect of the delivery of possession of property effected in furtherance of the deed of sale, even if the prior title deed, the gift was found to be invalid?
(4) Whether the trial court and the first appellate court are justified in concluding that both the documents are invalid overlooking the period of limitation, that too, without a properly instituted suit?
4. It is a suit for partition of the year 2011, wherein no counter claim was raised challenging the validity of either Ext.A3 gift deed of the year 1969 or the subsequent sale of the year 1981 (Ext.A4). But both the documents were allowed to continue without a suit instituted for either setting aside those documents or its cancellation or for a declaration, for a period of more than 40 years (as on the date of present suit). No challenge was raised against the gift deed or its validity at any point of time on the abovesaid alleged ground of noncompliance of mandate under Section 123 of the Transfer of Property Act. It is so unfortunate that in the present suit also, no such relief was raised by way of counter claim or no separate suit was filed in that behalf. But both the courts below entered into a finding in a simple suit for partition that the abovesaid two documents are invalid.
5. In order to execute a valid gift deed, there should be two attesting witnesses. In Ext.A3, there are two attesting witnesses. Even a persual of the said document would clearly show that there are two attesting witnesses to the document. The contention raised by the defendants is that one among them is a scribe and not an attesting witness. It is not the number of attesting witnesses, which is under challenge, but the status of one of t
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