Full Judgment Text
1
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.
th
1. This Appeal is against a Judgment dated 12
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
assignment dated 31st July, 1971 executed by Raman
Digitally signed by
NEELAM GULATI
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
th
dated 15 July, 1971 and sold the property to the
st
original appellant on 31 July, 1971. The original
appellant was given possession thereafter and he made
3
improvements to the suit property.
th
5. According to the appellants, on or about 7
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
th
life interest before 30 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