Kerala High Court · 2009

V. RAMKUMAR, J.* * * * * * * * * * * * * * * * * *R.S.A. NO. 398 of 2008* * * * * * * * * * * * * * * * * * Dated: 19-01-2009JUDGMENTDefendants 1 and 3 in O.S. No. 318 of 1998 on the file of theMunsiff's Court, Changanassery are the appellants in this SecondAppeal. The said suit instituted by the first respondent herein byname Mohanan was one for declaration of title over plaint scheduleitem No.1 and for fixation of boundary and also for a perpetualinjunction consequential to the main reliefs. 2.Both the courts have granted a decree as prayed for.Hence, this Second Appeal.3.The following are the questions of law formulated in thememorandum of Second Appeal:-i)Whether the finding of the Courts below to the effect that a Gift ofimmovable property can be accepted by the sister of the mother of theminor plaintiff while the natural guardian father is alive ?ii)Is the Gift in question in this case (Ext.A1) is void due to itsacceptance by a de facto guardian other than the natural guardian of aHindu minor due to the interdict of Section 11 of Hindu Minority andGuardianship Act ? iv) Whether Section 6 and 11 of the Hindu Minority and Guardianship Act R.S.A. NO. 398 of 2008-:2:-overrides any other provisions of law in the matter of guardianship ofHindu minors and in which event, the acceptance of a Gift as contemplatedby Section 123 of the Transfer of Property Act contemplating acceptance ofgift to which, the former provisions be read into for the purpose ofconsidering the legality or otherwise of the Gift ?4.The learned counsel appearing for the appellants re-iterated the contentions of the appellants. The following are thefacts which have been concurrently found by the courts below:- 15 cents of land belonged one Sumathi who is no more.Sumathi had an elder brother by name Vijayan who is also no more.Defendants 1 and 2 are respectively the younger brother andyounger sister of Sumathi who had only one son , the plaintiff.During her lifetime, Sumathi executed a registered gift deed dated14-10-1961. Plaint schedule item No. 1 admeasuring 3.750 centswas gifted by Sumathi to her son the plaintiff who was then aminor, described as the 'D' schedule property under Ext.A1. Plaintschedule item No. 2 again admeasuring 3.750 cents was gifted bySumathi as the 'C' schedule to Ext.A1 to her younger sister the 2nddefendant. Plaint schedule item No. 3 admeasuring 3.750 cents wasgifted by Sumathi as the B schedule to Ext.A1 to her youngerbrother the first defendant. Plaint schedule item No. 4 againadmeasuring 3.750 cents was gifted by Sumathi to her elderbrother Vijayan as the A schedule under Ext.A1. Subsequently the2nd defendant sold plaint schedule item No. 2 corresponding to “C”Schedule under Ext.A1 gift deed to her elder brother the first R.S.A. NO. 398 of 2008-:3:-defendant as per Ext.A3 sale deed dated 2-11-1982. Thereafter, asper Ext.A4 sale deed dated 23-5-1994 the first defendant soldplaint schedule item No. 2 corresponding to the C schedule inExt.A1 gift deed to the 3rd defendant who is a stranger. But theproperty which was put in possession of the 3rd defendant underExt.A4 sale deed was not plaint schedule item No. 2 but the plaintschedule item No. 1 corresponding to the D schedule to Ext.A1 giftdeed. It was with regard to this property that the plaintiff filed thesuit in the year 1998 seeking declaration of title, recovery ofpossession, fixation of boundary and for consequential injunction.The suit was resisted by the appellants contending inter alia thatthe 2nd defendant who was the maternal aunt of the plaintiff and towhom plaint schedule item No. 2 was gifted under Ext.A1 gift deedas the plaint C schedule thereto had also accepted the gift ofplaint schedule item No. 1 (D schedule of Ext. A1) . gifted bySumathi to her minor son the plaintiff and that the rights of theplaintiff over the plaint schedule item No. 1 were lost by adversepossession and limitation. The said contention has been repelledby both the courts. Even according to the first defendant as perExt.A3 sale deed he only purchased the “C” schedule propertyunder Ext.A1 gift deed which corresponds to plaint schedule itemNo. 2 from the 2nd defendant to whom the said property was giftedunder Ext.A1.5.Thus after Ext.A3 sale deed the first defendant couldhave possessed only B and C schedule properties under Ext.A1 R.S.A. NO. 398 of 2008-:4:-corresponding to plaint schedule item nos. 3 and 2 respectively.Thereafter the first defendant claims to have sold the C scheduleproperty (plaiant schedule item No. 2) to the 3rd defendant as perExt.A4 sale deed dated 23-4-1994. Neither the second defendantnor the first defendant had any case that the 2nd defendant whopurportedly accepted the gift of the plaint schedule item No. 1 onbehalf of the plaintiff had transferred her possession of the sameto the first defendant. The first defendant also had no case that asper Ext.A4 sale deed, the property sold was not the 'C' scheduleunder Ext.A1 corresponding to the plaint schedule item No. 2 butwas the plaint schedule item No. 1 corresponding to the Dschedule property under Ext.A1 which was gifted to the plaintiff.Under these circumstances, the contention of the appellants thatthey had perfected their title over plaint schedule item No. 1 byadverse possession and limitation was rightly repelled by the courtsbelow . No doubt, even though under Ext.A4 sale deed dated 23-5-1994 the property which the first defendant sold to the 3rddefendant was the plaint schedule item No. 2 corresponding to the“C” schedule to Ext.A1 the property which was actually put inpossession of the 3rd defendant was the plaint schedule item No. 1corresponding to D schedule to Ext.A1 gift deed. Thus, D3 gotpossession of plaint schedule item No. 1 only in the year 1994. Ofcourse, the defendants had a case that the plaintiff was inpossession of 'C' schedule property under Ext.A1 corresponding toplaint schedule item No. 2 . But then, admittedly, the 3rd defendanthas instituted O.S. 198 of 2000 for recovery of possession of the R.S.A. NO. 398 of 2008-:5:-plaint “C” schedule property against the plaintiff. Moreover, in thepresent suit, we are not concerned about the plaint schedule itemNo. 2 corresponding to the C schedule property under Ext.A1 giftdeed. The finding that the plaintiff has title over the plaint scheduleitem No. 1 corresponding to the D schedule to Ext. A1 gift deed hasbeen rightly recorded by the courts below. Similarly, the findingthat the title of the plaintiff over plaint schedule item No. 1 is notlost by adverse possession and limitation also does not warrantinterference , particularly, in the light of the recent decision of theApex Court in P.T. Munichikkanna Reddy and Others v. Revammaand Others - 2007 (6) SCC 59 . No question of law, much less, anysubstantial question of law arises for consideration in this SecondAppeal. The questions of law formulated in the memorandum ofappeal also do not arise for consideration in this Second Appealwhich is accordingly dismissed.Dated this the 19th day of January 2009.Sd/-V. RAMKUMAR, (JUDGE)/true copy/ani.