ILLOTH VALAPPIL AMBUNHI (D) BY LRS v. KUNHAMBU KARANAVAN

Suit – Cancellation of gift deed and deed of transfer – Declaration for – One ‘R’ executed a deed of gift in favour of the respondents – The deed of gift stated that possession was delivered – ‘R’ later cancelled the gift by a deed of cancellation and sold the property to the original appellants – According to the appellants, the possession of the suit property was given to them and long after the original appellant had purchased the suit property, the respondents filed a suit for declaration that deed of cancellation and the deed of transfer were invalid, null and void – Respondents claimed that they were the owners of the suit property by virtue of the deed of gift – Trial court held that gift deed executed had not taken effect, as it was not accepted and deed of cancellation as well as the sale to the appellant were held to be valid and suit was dismissed – This was affirmed by the First Appellate Court as well – However, the High Court set aside the concurrent decisions of the Trial court and the First Appellate Court and allowed the respondents to recover possession of the suit property – On appeal, held: The proposition of law that when a 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 doneee, is unexceptionable – The High Court rightly held that 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, laid on the party who asserted so – The High Court also rightly declined to accept the findings of the courts below that the deed of gift was not 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 donor in terms 670 ILLOTH VALAPPIL AMBUNHI (D) BY LRS. v. KUNHAMBU KARANAVAN 671 of the deed of gift – Further the donor had no authority to revoke the deed of gift – Hence, the subsequent documents were in themselves without authority and null and void – The second appeal was rightly allowed by the High Court. Code of Civil Procedure 1908 – s.100 – Error in framing a question of law – Held: 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. Dismissing the appeal, the Court HELD: 1. 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 on the party who asserted so. In view of this Court, the law has correctly been appreciated and enunciated by the High Court. [Para 21] [677-G]

#2. The High Court took note of the recital of the gift deed to the effect that respondent acting on behalf of the donee was to enjoy the property from the date of the gift, which was strong evidence of transfer of possession. As noted by the High Court, there is no dispute that respondent and the donor ‘R’ were trustees of the (donee) at the time of execution of deed of gift. The fact that nothing was done by ‘R’ or any other trustee of the donee to repudiate the gift in itself shows that the deed of gift was duly accepted by the donee. [Paras 22 and 25] [677-H; 678-A-D-E]

#3. 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 A B C D E F G H 672 SUPREME COURT REPORTS [2019] 13 S.C.R. A of law regarding the possession of an idol in the eye of law and the relevant recitals in Exh. A1 (deed of gift). [Para 26] [678-F]

#4. 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 donor in terms of the deed of gift. The High Court, therefore arrived at the conclusion that ‘R’ 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. [Para 27] [678-G-H; 679-A]

#5. 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 donee and hence Article 59 had no application. [Para 31] [679-F-G] Sir Chunilal V. Mehta and Sons v. The Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314 : [1962] Suppl. SCR 549 – followed. Gurnam Singh (D) by LRs. and Other v. Lehna Singh (D) by LRs. (2019) 7 SCC 641 – relied on. S. Sarojini Amma v. Velayudhan Pillai Sreekumar (2018) SCC Online SC 2200 – distinguished.