Point of Law: In absence of any right for revocation of a gift deed in deed itself, unilateral execution of a cancellation deed to cancel gift deed is bad in law and is legally unsustainable.

JUDGMENT :

This Regular Second Appeal has been filed under Section 100 r/w Order XLII, Rule 1 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘CPC’ for short) by defendants 2, 3, 5, 8 and 7 in O.S. No. 173/2007 on the files of the Munsiff’s Court Kalpetta, challenging decree and judgment dated 28th February 2009 in the suit as well as decree and judgment in A.S. No. 9/2009 on the files of the Sub Court, Sulthan Bathery dated 15th June 2019. The respondents herein are the plaintiffs and defendants 4, 7, 6, 10 and 9.

2. Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the 1st respondent/ plaintiff. No others appeared.

3. I shall refer the parties in this Regular Second Appeal as ‘plaintiff’ and ‘contesting defendants’ for convenience.

4. As per order dated 20th November 2019, my learned predecessor formulated the following substantial question of law at the time of admitting this second appeal:-

“Having found that the plaintiffs had knowledge of Exts.B2 and B3 sale seeds executed by the mother subsequent to Ext.A18 cancellation deed, did not the courts below err in failing to consider whether the cancellation was accepted by the parties?”

5. In precise form, the case put up by the plaintiff before the trial court is that the plaintiff obtained title to property scheduled in the plaint as per document No. 1464/2000, which is styled as a settlement deed with the characteristics of a gift deed. Later, as per document No. 580/2003, the plaintiff unilaterally cancelled the same document and also executed a subsequent sale deed. The sum and substance of the case of the plaintiff is that since the gift deed could not be cancelled unilaterally, all the documents subsequent thereafter are void, and therefore, the plaintiff's title over the plaint schedule property sought to be declared on the strength of document No. 1464/2000.

6. The defendants appeared and contested the suit. The substance of the contention raised by the defendants is that gift deed No.1464/2000 was cancelled legally by the donor as per cancellation deed No. 580/2003 with the consent and knowledge of the plaintiff. It was contended further that the gift deed was not acted upon by the donee since donee did not accept the gift.

7. The trial court framed necessary issues and tried the case. During trial, the trial court recorded evidence. Plaintiff was examined as PW1 and Exhibits A1 to A22 series marked on the side of the plaintiff. The second defendant was examined as DW1, and Exts. B1 to B21 were marked on the side of the defendants.

8. On appreciation of evidence, after hearing both sides, the trial court decreed the suit as under:-

“In the result, the suit is decreed declaring that the plaintiff is the absolute owner in possession of the plaint schedule properties and restraining the defendants, their men and agents from interfering with the peaceful possession and enjoyment of the plaint schedule properties or committing any waste and damages therein or altering the nature and boundaries of the same. No costs.”

Though there was challenge against the trial court verdict, the appellate court also concurred the finding of the trial court and accordingly, the appeal also was dismissed.

9. In order to answer the substantial question of law raised herein, a perusal of Ext.A1 viz, document No.1464/2000, the title deed of the plaintiff is necessary. As per Ext.A1, the 1st defendant transferred her right in respect of the entire property covered therein by separately scheduling the properties as items A to F. Out of which, B schedule is the plaint schedule item given to the plaintiff. A perusal of the document would go to show further that though the nomenclature of the document is a settlement deed, the consideration is stated as “love and affection” and the document is to be treated as a gift deed, as rightly found by the trial court as well as the appellate court. The learned counsel for the contesting defendants also