BINI ANILKUMAR Vs. BHASKARAN

JUDGEMENT

(1.) The Writ Petition is filed against the concurrent decision entered by two courts below on interlocutory applications moved by the rival parties in O.S.No.207/07 on the file of the Sub Court, Attingal. Plaintiff in the suit who suffered adverse orders concurrently in both the courts have preferred this writ petition impeaching the correctness of such order / judgment invoking the supervisory jurisdiction of this court vested under Art.227 of the Constitution of India.

(2.) The first respondent in the petition (the first defendant in the suit) is the father and the petitioner (plaintiff) and 2nd respondent (2nd defendant) are his two daughters. The parties are hereinafter referred to as the plaintiff and defendants for the sake of convenience. The first defendant / father admittedly executed a settlement deed in favour of the plaintiff on the eve of her marriage in respect of the plaint schedule property having an extent of one acre and 48 cents. The case of the plaintiff is that after her acceptance of that settlement deed, the first defendant surreptitiously and fraudulently executed a cancellation deed and, later, created two settlement deeds settling one half of the property in her favour and the other half in favour of her younger sister / 2nd defendant. Impeaching the cancellation deed and also settlement deeds subsequently executed by the father / 1st defendant, she filed a suit for declaration of title, possession and ancillary reliefs against the defendants. In that suit she moved two interlocutory applications, initially, one against the first defendant and later a separate application against the second defendant for interim injunction to restrain them from interfering with her possession and enjoyment over the property. The first defendant, on appearance, filed counter to such applications and also moved another I.A. for injunction against the plaintiff setting forth a case that he has exclusive possession and enjoyment of the plaint schedule property. No objection was filed by the second respondent to the I.A. moved by the plaintiff and also the first defendant. The learned Sub Judge after examining the materials produced by both sides in respect of their respective cases for the reliefs claimed in the I.A., and hearing the counsel on both sides, dismissed the two applications moved by the plaintiff and allowed the application for injunction filed by the first respondent / father. The learned Sub Judge, after appreciating the materials was of the view that prima facie there was no convincing evidence to show the acceptance of the settlement deed by the plaintiff and, further, there was reason to hold that the property continued to be in the possession and enjoyment of the first defendant even after the execution of that deed. Production of original settlement deed by the first defendant, despite its execution in favour of the plaintiff in 1996, and that no mutation was effected in respect of the property in the revenue records in the name of plaintiff was also taken into account to hold that she has no prima facie case for the discretionary relief of injunction, and that the first defendant having prima facie shown his possession and enjoyment over the property, on the materials tendered, is entitled to the injunction sought for. Aggrieved by the order passed by the learned Sub Judge, the plaintiff preferred appeals before the District Court, Trivandrum. The learned District Judge after evaluating the materials produced and hearing the counsel with reference to the order passed by the learned Sub Judge, concurred with the findings arrived by the learned Sub Judge with the result the appeals were dismissed. Impeaching the order of the learned Sub Judge and the judgment rendered by the learned District Judge in the appeals, the plaintiff has filed the Writ Petition invoking the supervisory jurisdiction of this court vested under Art.227 of the Constitution.

(3.) I heard the learned counsel on both sides. Normally when two courts below have concurrently formed an opinion or finding in an I.A. this court will be reluctant to interfere with the order / judgment passed by such courts in exercise of its supervisory jurisdiction. However, if the order / judgment reflect patent irregularity, or prima facie shown to be erroneous, as having been rendered ignoring the settled legal principles, this court is bound to interfere with such orders as found necessary to advance ends of justice. After going through the orders passed by the learned Sub Judge and also the judgment of the learned District Judge and the submissions made at the time of hearing, I find that both the courts below had lost sight of the legal principles enunciated by this court in a series of judicial pronouncements in analysing a dispute raised over the acceptance of a settlement deed or gift deed. Though the learned District Judge has referred to the decisions rendered in Narayani Bhanumathi v. Lalitha Bhai, 1973 KLT 961 , V. V.Janaki v. P. P.Paru, AIR 1986 Kerala 110 and Baby Ammal v. Rajan Asari, 1997 (1) KLT 340 (SC) I find the principles enunciated therein had been ignored in forming a conclusion that the plaintiff in the present case has not accepted the settlement deed executed in her favour by the first defendant. The material circumstances disclosed by that document that it was executed on the eve of her marriage is most relevant and crucial indicating that in the normal course of human conduct the execution of the document was brought not only to her notice but to her would be husband and also his parents as well. So long as the settlement deed is not having any onerous condition on the donee compelling her to accept that condition as well for its acceptance the circumstance surrounding the execution will be sufficient to hold that the settlement deed was accepted by the donee. True, in a case of onerous gift, the situation may be different. So, prima facie unless the contrary is shown, when the earlier settlement deed had been executed in favour of the plaintiff by her father on the eve of her marriage, it is reasonable to hold that it was accepted by the donee. Coupled with the above circumstance, it is also pointed out by the learned counsel for the petitioner / plaintiff that the second defendant in whose favour the father had executed a settlement deed three years prior to the institution of the present suit has not even filed any counter to the injunction application proceeded against her. The second defendant has not resisted the injunction application, of course, may not be material or that circumstance may not lend any assurance in holding that the plaintiff has exclusive possession or enjoyment over the suit property. Still that circumstance also required to be taken note of in appreciating the disputed questions which arose for consideration in the interlocutory application. Another material circumstance, which has vital significance but omitted to be taken note of by both the courts below is borne out by the commission report. The commission report prepared by an advocate commissioner, after local inspection, demonstrate that the whole property remains as a compact lot without any separation as a rubber plantation. The first defendant / father who claims to have cultivated the rubber trees has not produced any scrap of paper to show that the rubber trees were planted by him and, if so, whether any benefit was derived for such plantation from the Rubber Board or any other Government concern. He has produced the original settlement deed, the earlier settlement deed executed in favour of the 1st defendant daughter, and also receipts showing payment of tax even after execution of that document to show that the settlement deed was not accepted by the plaintiff. Whether the documents so produced by him would enable him to contend that there was no acceptance of the earlier settlement deed by the plaintiff is a matter to be considered in the trial of the suit. After executing a settlement deed in favour of the plaintiff whether he can revoke that deed by a cancellation deed, for which there is no enabling provision under the Registration Act, is also a matter to be considered in the trial of the suit.