BAVA Vs. ABDULKHADER

JUDGEMENT

(1.) This appeal arises against the Judgment and Decree delivered by the Sub Judge, Palghat in A. S. No. 144 of 1984. The 2nd plaintiff is the appellant. The suit was originally filed by one Beevi Umma for recovery of possession of the suit property on the following grounds. She purchased the suit property by a registered sale deed in the year 1983. Ever since the sale, she had been residing in the suit property. The respondent defendant is her sister's son and he was employed as a driver in the Government service at Attappadi till 1981. At one time the respondent obtained the left thumb impression of Beevi Umma in certain papers making her believe that he would make arrangement for her widow pension and then those papers had been converted into Ext. A - 1 gift deed by playing fraud. The gift deed was not executed by her volition. After Ext. A - 1 was obtained by fraud she was necked out of the house by the respondent. Therefore she was forced to file the suit for recovery of possession. Pending the suit, she, the first plaintiff, died. Therefore, the 2nd plaintiff the present appellant who is the brother of the first plaintiff was brought on record. The suit was resisted by the respondent on the following grounds. The first plaintiff was residing with her brother Bava the 2nd plaintiff. It was Bava who made the first plaintiff to file the suit. The defendant respondent used to reside at his place of work at Attappadi and sometimes he used to reside in the suit property with the deceased first plaintiff as he has married the daughter of the first plaintiff's husband's first wife's daughter. The respondent had also obtained the purchase certificate from Ottapalam Land Tribunal. He never obtained the left thumb impression of the deceased plaintiff in any paper and converted the same into Ext. A - 1 gift deed. The gift deed was executed by her own Will.

(2.) The trial Munsiff, Palghat in O. S. No. 177/82 on recording the evidence of both sides decreed the suit. As against the Judgment and Decree of the trial Munsiff, A. S. No. 144 of 1984 was filed by the present respondent before the Sub Judge, Palghat. The appeal was allowed by the first appellate court on the ground that the suit was not maintainable. As pointed out above, now the appellant has come up questioning the Judgment and I Decree of the first appellate court. Now the only point that was urged before this Court is whether Ext. A - 1 is a valid document. To make Ext. A - 1 gift deed dated 8th February 1979 valid, the initial burden lies on the donee to prove that there was a declaration by the donor owner of the property, that there was acceptance by the donee the beneficiary, and that there was delivery of possession of the property at the time of the execution of the gift deed. No doubt, it is a principle laid down by this Court in the decision reported in Alavi and others v. Aminakutty Umma and others 1985 KLJ 22 that when there is a recital in the gift deed that there was delivery of possession at the time of the execution of the same it is an admission binding on the legal representatives of the donor with regard to the delivery of possession. No doubt, such admission is subject to the rebuttable presumption. That is to say, the donor or his legal representatives can establish by rebuttable evidence that such admission is not true, namely, that possession did not pass at the time of the execution of the gift deed. In the instant case before me, no doubt, there is a recital in Ext. A - 1 that possession of the property passed on to the donee at the time of the execution. But a reading of the evidence of the respondent as D. W. 1 would clearly go to show that he came to the property only in the month of August 1981 and that he was not present at the time of the execution of Ext. A - 1 gift deed. It is also his definite version that he obtained Ext. A - 1 gift deed some months later on. No other witness was examined on his side in support of his case that Ext. A - 1 was executed by the deceased plaintiff on her own volition. In other words, to establish the execution of Ext. A - 1 and delivery of possession on the date of execution of Ext. A - 1, practically, no witness was examined on the side of the respondent. Therefore, it can be rightly said at this stage that the respondent has not discharged the initial burden of proving that there was a declaration by the donor that there was acceptance by him in respect of the gift deed and that the possession of the property was delivered to him. In spite of the above fact that the initial burden was not discharged by the respondent even if I consider the recital in Ext. A - 1 that possession was delivered, such recital has been rightly rebutted by the appellant as pointed out above by the positive evidence of respondent himself as D.W. 1. Therefore the principle laid down by this Court in the above citation will not render any assistance to him. Yet another submission of the learned Counsel appearing for the respondent would be that the purchase certificate was issued to the respondent by the Land Tribunal, Ottapalam in the year 1979. No doubt, that certificate was not produced and marked in the Courts below. The finding of the Tribunal as argued by the learned Counsel appearing for the respondent would be that the respondent has got leasehold right basing on the recitals in Ext. A - 1 and he further submitted that when the purchase certificate has been issued to the respondent on the basis of Ext. A - 1 gift deed, that becomes a valid document of title and such document cannot be questioned by the Civil Court on account of the principles laid down by this Court in the decision reported in Govindan Gopalan v. Raman Gopalan 1978 KLT 315 (FB) and by the Supreme Court in Mod. Serajuddin v. State of Orissa AIR 1975 SC 1564 at 1573. No doubt, the principles laid down in the above decisions are with regard to the tenancy right conferred on the tenants under the Kerala Land Reforms Act. The Tribunal in the above Act, no doubt, has got the jurisdiction to decide as to who is the tenant of property concerned. But the Tribunal has no jurisdiction to decide whether a gift deed is valid or not and such jurisdiction lies only with the Civil Court. Therefore the finding, if any, by the Tribunal whether Ext. A - 1 is valid or not, goes beyond the jurisdiction of the Kerala Land Reforms Act. Even in the above said two decisions, this Court as well as the apex Court have given the verdict only to the extent that the purchase certificate issued in respect of the tenancy right cannot be questioned in the Civil Court. But such right of issuing the purchase certificate should not be on the basis of considering the gift deed. Therefore, I feel, the decisions in the above said two citations may not be useful in the case of the respondent. In short, the findings of the first appellate court with regard to Ext. A - 1 gift deed are erroneous because as I have discussed above practically there is no reliable and acceptable evidence on the side of the respondent that there was delivery of possession on the date of the gift deed. Regarding Exts. B - 1 to B - 13 it can be rightly said that the respondent had been residing in the suit property along with the deceased plaintiff prior to the date of Ext. A - 1, that he had also applied for the mutation of the property in his name as per Ext. A - 1 and some communications had also been sent to him by the Palghat Municipality and that he had applied for water connection and that he had also paid the tax. So all these expenses will not make Ext. A - 1 a valid document in the absence of the legal and reliable proof as per law. On account of the foregoing reasons I am of the view that the conclusion of the first appellate court holding that Ext. A - 1 is a valid document is erroneous and it is liable to be set aside. On the other hand, it is the case of the appellant that taking advantage of the close relationship with the deceased plaintiff and the respondent, the respondent obtained her signature or thumb impression in some papers making her believe that he was obtaining that for her widow pension and that it was converted into Ext. A - 1. gift deed. In fact, the above case of the plaintiff - appellant and the circumstances of the case discussed above in detail, are more probable and acceptable. In my Judgment I hold that Ext. A - 1 is not a valid document.