P.V. RAMANI vs THANKAMMA - 2024-02-15

O R D E R

Leave granted.

2. Heard Mr. Manoj V George, learned counsel appearing for the appellant. The office report dated 14.02.2024 indicates that service of notice is complete on all the respondents and the learned counsel for the appellant would submit that respondents have never appeared despite service of notice.

3. The appellant is one of the 3 daughters of Velu Achari. Her husband Chandran filed the O.S. No. 255 of 1999 seeking declaration of Title over the suit property and also permanent injunction against his father-in-law (Velu Achari) and his brother-in-law (P.V. Parameswaran). The second Suit i.e. O.S. No. 268 of 1999 was filed by P.V. Parameswaran seeking title declaration, injunction against trespass and the eviction of his father (Velu Achari) from the suit land as well.

4. The concerned land was owned by Velu Achari and he made a registered deed of settlement on 22.09.1992 (Exhibit A/6) settling his property in four equal shares, amongst his son Karunakaran and three daughters (including the appellant P.V. Ramani). In the said Exhibit A/6 deed, it was mentioned that Velu Achari had already allocated shares to his other son P.V. Parameswaran. The Exhibit A/6 deed came to be revoked on 28.10.1995 but on the same date, i.e., 28.10.1995, the second settlement deed (Ex.A/8) was executed whereunder the concerned properties were equally divided amongst the three daughters of Velu Achari. The property in Schedule B was settled with the second daughter P.V. Ramani – the appellant herein.

5. Following the aforesaid settlement, the appellant executed a registered sale deed on 23.05.1997 (Exhibit A/1) selling the Schedule B property in favour of her husband-Chandran. In the sale deed, the appellant mentioned that the Schedule B property was in her possession and that she is paying the taxes on the same on the basis of the settlement granted to her by her father.

6. Notwithstanding the further transactions of the Schedule B property by P.V. Ramani on 23.05.1997, the father Velu Achari purportedly executed a revocation deed on 18.07.1997 (Ex.B/1), recalling the second settlement deed made on 28.10.1995, for the three daughters (including daughter P.V. Ramani). On the same date (18.07.1997), the father Velu Achari purportedly executed a sale deed (Ex.B/2) in favour of his other son P.V. Parameswaran conveying his entire property to the son, overlooking the fact that he had already executed the settlement deed on 28.10.1995 in favour of his three daughters including the appellant – P.V. Ramani, who in turn had sold the Schedule B property on 23.05.1997 to Chandran.

7. As the purchaser of the Schedule B property, Chandran filed the O.S. No. 255 of 1999 claiming title and possession and seeking a decree of permanent injunction against his father-in-law and brother-in-law - Velu Achari and P.V. Parameswaran respectively. The brother-in-law – P.V. Parameswaran shortly thereafter, filed O.S. No. 268 of 1999 claiming title over the same property as well as the eviction of Velu Achari. In the second Suit, the father and the daughters together with Chandran (P.V. Ramani’s husband), who filed the O.S. No. 255 of 1999, were respectively arrayed as defendants.

8. The learned Munsif after framing separate issues for both Suits in his common judgment (28.06.2002) concluded as under:

“18. On going through the evidence, I find that DW1 has cancelled Ext A6 by executing Ext A7 deed. As already stated, there is no convincing and acceptable evidence to prove that Ext A6 has come into effect. Since the donees have failed to take possession of their properties as per Ext A6, DW1 has every right to cancel the said deed by executing Ext A7 deed. Accordingly I find that Ext A6 has not come into force and it is an invalid document. At the same time, it has come out in evidence that DW1 executed Ext A8 gift deed on 28.10.95 and the same was accepted by the donees. The version of PW1 coupled with Exts A1 to A5 would prove that aspect. The contention of the 1st defendant to the effect that the wife of PW1 has misrepresented facts and that he happened to put his signature in Ext A8 document under misrepresentation does not hold good as there is nothing in the evidence to prove the same. In fact DW1 had full knowledge regarding the execution of Ext A8 and he put his signature in it after knowing its contents. The said gift deed was accepted by the donees. So DW1 has no right to cancel the same. Accordingly I am not in a position to accept the plea of the 1st defendant in this respect. Since Ext B1 was executed after accepting Ext A8 by the donees, the same cannot bind upon the right of parties. Accordingly I find that Ext A8 is a valid document. It is seen from the records that the wife of Pw1 has accepted the gift and effected mutation and there- after transferred the said property to her husband by virtue of Ext A1 sale deed. He is turn effected mutation and is paying basic tax for the same. The records produced before Court would substantiate the same. So Ext A1 is a valid document as the wife of Pw1 has got absolute right to transfer the property to her husband. The version of PW1 shows that he is the owner of plaint schedule property and the defendants have no manner of right over the same. It is also seen from his version that D1 is residing with the permission of PW1. Hence the defendants in OS 255/99 have no manner of right to create any document pertaining to the plaint property and those documents are not binding (sic) upon the plaint item or on the right of plaintiff in OS 255/99. Since the property is in the possession and ownership of Pw1. D2 in OS 255/99 is not entitled for an injunction as prayed for. Accordingly these issues are found against the plaintiff in OS 268/99.

19. Issue No. (i) in Os 255/99 In view of the findings on issue Nos. (i) to (ii) in OS 268/99, I hold that plaintiff has (sic) got absolute right over the plaint property and further that defendants in OS 268/99 have no manner of right over the same and hence they have no right to create any documents pertaining to the property. The evidence of Pw1 shows that D1 has executed Ext. B1 deed by which he cancelled Ext A8. But I have already found that Ext A8 is a valid document and D1 had no right to cancel the gift deed after its acceptance. Further it cannot be said that Ext A8 is a will and the same was created without the free consent of the 1st defendant. It could be seen from the evidence that D1 has sold the property to D2 by executing Ext B2 sale deed. The said deed is an invalid as D1 has no right to transfer the property at the time of its transfer. Here Ext B2 has executed without any authority it as such the same will not bind upon the right of Pw1. Since the defendants are acting against the interest of plaintiff after the execution of the so-called documents creating right to them on the property, plaintiff is entitled to get a declaration of his title and possession over the plaint item as the act of the defendants had created a cloud upon the right of Pw1. Accordingly I am in full agreement with the plea taken by the plaintiff in this respect. Therefore, this issue is found in favour of plaintiff in OS 255/99.

20. Issue No. (ii) in Os 255/99.

The. plaintiff herein sought for a permanent injunction restraining the 2nd defendant from trespassing in the property or committing any waste and mischief thereon by stating that D2 under the guise of the ownership created by him fraudulently attempting to trespass upon the plaint item in order to defeat the right of Pw1. Here plaintiff is the owner of the property. He is residing therein with his family. He allowed D1 and his daughter to reside there. But the 2nd defendant had no manner of right over the property. Since he obtained the property fraudulently and without having any authority, his attempt is an invasion upon the right of the plaintiff. The version of Pw1 reveals the apprehension entertained by him. So he is entitled to het an injunction as prayed for. Therefore this issue is found in favour of plaintiff.

21. Issue No. (vi) in Os 268/99 In view of the findings on issue No. (i) to (v), I hold that plaintiff in OS 268/99 is not entitled to get any of the reliefs sought for in the plaint. In the result, suit filed by the plaintiff fails and it accordingly dismissed. But I make no order as to costs.

22. Issue No. (iii) in Os 255/99 In view of the finding on issue Nos. (i) to (ii), I hold that plaintiff is entitled for the reliefs sought for in the plaint.

In the result, suit is decreed by declaring the title and possession of the plaintiff over the plaint property. Further a permanent prohibitory injunction is passed restraining D2 and his men from trespassing into the plaint property or from committing waste and mischief thereon or from creating obstruction to the peaceful use and enjoyment of the property by the plaintiff. But I make no order as to costs.”

9. The aggrieved parties then preferred two appeals before the Sub-Judge, Kottayam. In the common judgment dated 28.02.2007, the first appellate court affirmed the verdict of the trial judge rendered on 28.06.2002. The first appellate court observed that the gift deed (Ex.A/8) was acted upon by the appellant and she mutated the property in her own name. Further, she was in possession of the property and was also paying the building tax for the property. Subsequently, she executed the Ex.A/1 sale on 23.05.1997 in her husband’s favour. Accordingly, it was concluded that once the gift deed was accepted and acted upon, the donor cannot unilaterally revoke the gift deed. Therefore, it was declared that the transfer of property in favour of Chandran, the plaintiff in O.S. No. 255 of 1999, is valid and binding.

10. The two concurrent verdicts of the learned Munsiff and the Sub-Judge was the subject matter of challenge by the aggrieved parties in the respective second appeals preferred by them. The High Court under the impugned judgment (dated 20.12.2018) set aside the concurrent judgments and dismissed O.S. No. 255 of 1999 filed by Chandran.

11.1 Assailing the High Court decision, Mr. Manoj V George, learned counsel would argue that the High Court, without any compelling reason, should not have disturbed the concurrent findings of facts, in favour of the plaintiff (Chandran) in O.S. No. 255 of 1999. In any case, if any such interference is needed, the Court can do so only after perusing records of the trial court. However, in this case, there was no occasion for the High Court to peruse the trial court records.

11.2 As no substantial question of law was formulated and decided in the Second Appeals, the counsel would argue that without framing any substantial question, the judgment in the second appeal is in derogation of the requirements of Section 100 of the CPC.

11.3 In support of such contentions, Mr. George relied on Suresh Lataruji Ramteke v. Sau. Sumanbai Pandurang Petkar & Ors. reported in 2023 SCC OnLine SC 1210. In this judgment, this Court had the occasion to analyse the earlier judgments on the issue and answered the question of law as follows:

“28. The questions of law raised in the instant appeal are answered as under:

28.1 A Court sitting in second appellate jurisdiction is to frame substantial question of law at the time of admission, save and except in exceptional circumstances. Post such framing of questions the Court shall proceed to hear the parties on such questions, i.e., after giving them adequate time to meet and address them. It is only after such hearing subsequent to the framing that a second appeal shall come to be decided.

28.2 In ordinary course, the High Court in such jurisdiction does not interfere with finding of fact, however, if it does find any compelling reason to do so as regard in law, it can do but only after perusing the records of the Trial Court, on analysis of which the conclusion arrived at by such a Court is sought to be upturned. In other words, when overturning findings of fact, the Court will be required to call for the records of the Trial Court or if placed on record, peruse the same and only then question the veracity of the conclusions drawn by the Court below.”

12. In our assessment, the above contention of the appellant’s counsel on the erroneous approach of the High Court in deciding the second appeal has considerable merit. As can be seen, the Court never framed any substantial question of law and consequently, there was no occasion to give a decision on such substantial question of law which ought to have been framed in the proceedings under Section 100 of the CPC.

13. That apart, notwithstanding the concurrent findings of facts in favour of the plaintiff (Chandran) in the O.S. No. 255 of 1999 based on the material evidence on record, the High Court decided to disturb such concurrent findings of facts, without any reference to the evidence adduced by the parties.

14. The Court also glaringly failed to notice that following the settlement of the property made on 28.10.1995 (Ex.A/8) in favour of his three daughters, the appellant P.V. Ramani (as one of the donees) had acted upon the gifted property through her sale dated 23.05.1997 (Ex.A/1). Therefore, the donor after such transaction by the donee over the gifted property, could not have revoked the settlement made on 28.10.1995.

15. The aforesaid discussion persuades us to say that the High Court should not have disturbed the concurrent findings of the trial court and the appellate court which granted relief in favour of the plaintiff in the O.S. No. 255 of 1999. The impugned judgment suffers from manifold legal errors and cannot sustain legal scrutiny. It is accordingly, set aside. The appeals stand allowed with this order.

16. Pending application(s), if any, shall stand disposed of.

..................J.

(HRISHIKESH ROY)

..................J.

(PRASHANT KUMAR MISHRA)

NEW DELHI;

FEBRUARY 15, 2024.

ITEM NO.6 COURT NO.6 SECTION XI-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petitions for Special Leave to Appeal (C) No(s). 15134-15135/2019 (Arising out of impugned judgment and order dated 20-12-2018 in RSA No. 648/2009 and RSA No. 683/2009 passed by the High Court of Kerala at Ernakulam)

P.V. RAMANI Petitioner(s)

VERSUS THANKAMMA & ORS. Respondent(s)

Date : 15-02-2024 These petitions were called on for hearing today.

CORAM : HON'BLE MR. JUSTICE HRISHIKESH ROY HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA For Petitioner(s) Mr. Manoj V George, Adv.

Ms. Shilpa Liza George, Adv.

Mr. Aakarsh Kamra, AOR Mr. K M Vignesh Ram, Adv.

Ms. Chaahat Khanna, Adv.

For Respondent(s)

UPON hearing the counsel the Court made the following

O R D E R

Leave granted.

The appeals stand allowed in terms of the signed order.

Pending application(s), if any, shall stand closed.

(NITIN TALREJA) (KAMLESH RAWAT)

ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR

(Signed order is placed on the file)