CHERUKAT VIJAYALAKSHMI Vs. CHERUKAT GOPALAKRISHNA MENON

JUDGEMENT

(1.) The second appeal is filed by the Defendant in O.S. No. 38/1990 of the Additional Munsiffs Court, Kozhikode challenging the concurrent decision rendered by the court below granting a decree in favour of the Respondent/Plaintiff cancelling Ext.A-2 gift deed in favour of the Plaintiff/Appellant. Plaintiff/Respondent, in his suit, over and above seeking cancellation of Ext. A-2 settlement deed executed by him in favour of the Defendant sought for a decree of perpetual prohibitory injunction as well against the Defendant to restrain her from trespassing upon or interfering with his possession and enjoyment over the plaint property. Though the trial court had granted a decree of injunction as well, the lower appellate court, in the appeal preferred by the Appellant, taking note that she is residing in the building comprised in the schedule property, and further, by virtue of Ext.B-1 settlement deed executed by her mother, she is a co-owner of the property vacated that decree of injunction. However, the decree granted in favour of the Plaintiff/Respondent cancelling Ext. A-2 settlement deed in favour of the Appellant/Defendant was confirmed by the lower appellate court also dismissing the appeal of the Appellant challenging that part of the decree. Concurrent decision by the two courts granting the Plaintiff the decree cancelling Ext.A-2 settlement deed is challenged in this appeal.

(2.) Plaintiff is the maternal uncle of the Defendant. Some of the undisputed facts involved in the case show that the property inclusive of the plaint property belonged to one Ramunni Menon, the maternal uncle of Plaintiff. The Defendant is admittedly a physically challenged lady who is a spinster, aged 36 years at the time when Ext. A-2 settlement deed was executed in her favour. She is the daughter of Lakshmikurty Amma, the sister of the Plaintiff. Ramunni Menon, maternal uncle of the Plaintiff and also Lakshmikutty Amma, executed Ext. A-1 Will in favour of six persons, the children of his sister, bequeathing in their favour equally the properties covered by that Will. One among the legatees under the Will namely Unnikrishna Menon died issueless as a bachelor. His rights under the Will also devolved upon the other legatees, Plaintiff, Lakshmikutty Amma and her two sisters, namely Janakikutty Amma and Narayanikutty Amma and Ravunnikutty Menon (P.W.2). The Will came into effect on the death of Unnikrishna Menon. But, admittedly the properties covered by the Will remained as undivided with the legatees enjoying them as tenants in common. Plaintiff who obtained 1/5 right over the property under the bequest covered by Ext. A-1 Will and also later as a legal heir ofhis brother Unnikrishna Menon, executed Ext. A-2 deed settling his share in the property in favour of the Defendant. However, two years later, under ExtA-3 registered deed, he cancelled Ext. A-2 settlement deed.

(3.) Suit was instituted against the Defendant for a decree to cancel Ext. A-2 gift deed contending that it has not come into effect, and for injunction against trespass as indicated earlier. The Defendant resisted the suit contending that the gift accepted by her is not liable to be cancelled or revoked. The original of the gift deed, according to the Defendant, was handed over to her soon after its registration. But, later, surreptitiously it was taken away by the Plaintiff who also was an occupant of the residential building with her, situate in the plaint property when he had left that house after picking up a quarrel with some of the inmates. After execution of Ext.A-2 settlement deed in her favour, the Defendant contended, the Plaintiff has no subsisting title, right or interest over the property.