SEENA V v. ROHINI

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SATHISH NINAN

&

THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN THURSDAY, THE 20TH DAY OF MARCH 2025 / 29TH PHALGUNA, 1946 MAT.APPEAL NO. 1097 OF 2014 AGAINST THE DECREE AND JUDGMENT DATED 29.10.2014 IN OP NO.1099 OF 2013 OF FAMILY COURT, MAVELIKKARA (TRANSFERRED FROM THE FAMILY COURT, ALAPPUZHA AS O.P.NO.151/2012)

APPELLANT/PETITIONER:

SEENA V

W/O. THE LATE PREMKUMAR, KAVILETHU HOUSE, VENMONEY EAST MURI, VENMONEY VILLAGE, VENMONEY P.O., 689509, CHENGANNUR TALUK, ALAPPUZHA DISTRICT, PRESENTLY RESIDING AT INDHU BHAVANAM, PALLICKAL EAST MURI, THEKKEKARA P.O., 690107, MAVELIKARA TALUK.

BY ADVS.

SRI.MOHAN JACOB GEORGE

SMT.NIGI GEORGE

SMT.P.V.PARVATHY P-41

SMT.REENA THOMAS

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RESPONDENTS/RESPONDENTS 2 TO 5:

1 ROHINI

AGED 58 YEARS

W/O. N.RAVEENDRAN, KAVILETHU HOUSE, VENMONEY EAST MURI, VENMONEY VILLAGE, VENMONEY P.O., 689509, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.

2 RANI

AGED 35 YEARS

W/O.BIJU, MANI BHAVAN, KARAZHMA MURI,

CHENNITHALA VILLAGE, CHERUKOLE, MAVELIKARA- 690104.

3 BIJU

AGED 38 YEARS

S/O. VISWANATHAN, MANI BHAVAN, KARAZHMA MURI, CHENNITHALA VILLAGE, CHERUKOLE, MAVELIKARA- 690104.

4 RAJI

AGED 35 YEARS

W/O. MADHU, KAVILETHU HOUSE, VENMONEY EAST MURI, VENMONEY VILLAGE, VENMONEY P.O., 689509,CHENGANNUR TALUK, ALAPPUZHA DISTRICT.

BY ADVS.

SRI.S.ARAVIND

SRI.K.JANARDHANA SHENOY

SRI.R.ROHITH

SRI.K.SASIKUMAR

THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON 20.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN & SHOBA ANNAMMA EAPEN, JJ.

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Mat.Appeal No.1097 of 2014

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Dated this the 20th day of March, 2025

JUDGMENT

Sathish Ninan, J.

The original petition filed by the wife before the Family Court, seeking a declaration that Ext.A5=Ext.B2 Cancellation Deed, cancelling Ext.A4=Ext.B1 Settlement Deed, is null and void, for declaration of her half right over the property, and for recovery of gold ornaments, money and movables, was decreed in part.

Challenging that part of the decree which refused the reliefs sought, she is in appeal.

2. The marriage of the petitioner-wife with late Premkumar was on 11.05.2010. Premkumar died on 03.10.2011. The respondents in the original petition,

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who are the respondents in this appeal, are the in-laws of the petitioner-wife.

3. According to the petitioner, after her marriage with Premkumar, there was “Adukalakanal”, a customary function, on 13.05.2010. On that date, the 1 st respondent(father-in-law) was entrusted with an amount of Rs.5,00,000/- towards petitioner's share. On 11.06.2010, a further amount of Rs.3,00,000/- was entrusted with the husband towards her share. At the time of marriage, the petitioner had 20 sovereigns of gold ornaments; out of the same, 2.5 sovereigns are with her. The remaining gold ornaments and the money were misappropriated by the respondents. There is a further claim for the value of movables allegedly entrusted at the time of marriage.

4. On 20.09.2011, respondents 1 and 2, namely, the father-in-law and the mother-in-law of the

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petitioner, executed Ext.A4=Ext.B1 Settlement Deed in favour of their son, Premkumar. On 03.10.2011, Premkumar committed suicide. On 10.10.2011, respondents 1 and 2 executed Ext.A5=Ext.B2 Cancellation Deed, cancelling Ext.A4=Ext.B1 Settlement Deed. The petitioner seeks a declaration that the Cancellation Deed is null and void and a declaration of her half-right over the property.

5. The trial court granted a decree for Rs.3,00,000/- paid on 11.06.2010 and for an amount of Rs.45,000/- towards the value of movables. The other claims were disallowed against which this appeal by the petitioner-wife.

6. We have heard Shri.Mohan Jacob George, the learned counsel for the appellant and Shri.K. Sasikumar, the learned counsel for the respondents.

7. The points that arise for determination are;

i) Does the evidence on record prove the entrustment of

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Rs.5,00,000/- on 13.05.2010, to the respondents, as claimed by the petitioner?

ii) Was the Family Court right in having rejected the claim for gold ornaments, holding that there is lack of evidence to prove the entrustment of the gold ornaments with the respondent?

iii) Is the finding of the Family Court that the petitioner has failed to prove the acceptance of Ext.A4=Ext.B1 Settlement Deed sustainable on the evidence?

iv) Does the decree and judgment of the Family Court warrant interference?

8. The marriage of the petitioner with late Premkumar, was solemnised on 11.05.2010. At the time of marriage, Premkumar was employed abroad at Abu Dhabi, UAE. It is the claim of the petitioner that, after the marriage, on 13.05.2010, during the 'Adukkalakanal' function, the 1 st respondent was entrusted with Rs.5,00,000/- towards the petitioner's share. The Family Court has rejected the claim for lack of evidence. PW4 is the petitioner's uncle. He has deposed that he had handed over the amount to the 1 st respondent. To

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substantiate the payment of such amount, the petitioner relies on Exts.A16 and A20 documents. They relate to the redemption of various gold ornaments by the 1 st respondent after 13.05.2010. According to the petitioner, utilising Rs.5,00,000/-, which was gifted to her on 13.05.2010, the gold ornaments of Premkumar's sisters, which were under pledge, were redeemed under Exts.A16 to A21. A perusal of the receipts indicates that the accounts were closed on various dates. Exts.

A16 and A20 alone were closed on 14.06.2010. The other accounts were closed much later. The total amount for Exts.A16 and A20 is only Rs.85,000/-. The mere fact that the pledge under Exts.A16 to A21 were redeemed after the date of the alleged entrustment of Rs.5,00,000/- is not sufficient to establish that the said amount was indeed entrusted, as claimed by the petitioner. This is all the more so since, even according to the petitioner, an

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amount of Rs.3,00,000/- was entrusted as her share to her husband on 11.06.2010. As held by the Family Court there is no evidence to find that an amount of Rs.5,00,000/- was entrusted to the 1 st respondent on 13.05.2010. The said claim was rightly declined by the Family Court.

9. Coming to the claim for gold ornaments, according to the petitioner, at the time of marriage she had 20 sovereigns of gold ornaments, out of which she has only 2.5 sovereigns with her. The remaining is claimed to have been misappropriated by the respondents.

The ornaments were sold and utilised for the renovation of the residential house and also to redeem the pledges of gold ornaments, is the case. The fact that at the time of marriage, the petitioner had 20 sovereigns of gold ornaments with her, is evidenced by the entry in Ext.A6 marriage register maintained by SNDP. The

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register was proved through the Secretary of SNDP, who was examined as PW2. Therefore, the fact that at the time of marriage, the petitioner had 20 sovereigns of gold ornaments, has been proved.

10. According to the petitioner, the respondents had pledged, sold, and misappropriated her gold ornaments. In the objections filed by the respondents, the contention is that the petitioner herself had pledged and redeemed her ornaments. The learned counsel for the appellant would submit that the 2 nd respondent, as RW1, has admitted that the 1 st respondent had pledged the gold ornaments of the petitioner but had claimed that it was for and on behalf of the petitioner. The relevant deposition reads thus;

" ഹ ർജ  ക ക യ ട  സ

ർണ ഭരണ ങ ള ൽ 3 സ

ർണ വ ള ക ൾ 1 ആ 

എ ത ർ ക ക  ട വ ൺ മണ  Service Coperative Bank Ltd. ൽ പ ണ യ  ട വ ച ട ട ! ന . ആ യ ത ന $ട % Receipt ന $ട % certified copy ആ ണ $.

20/05/2010 ട & Exbt.A17 document എ ന  26/05/11 ട & Exbt. A18 document എ ന  പ %യ ന . രസ ’ത $ ഇ ത ണ $. ട മർഷ പ $ ഉള ത ട ക ! $ സ ’ന

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ത ട ന യ ണ $ എ ത ർ ക ക ട യ ട - ! $ പ ണ യ  ട വ പ ച ത $. സ ’ന ത ട ന അ ത $ ത രച $ എ  - ക യ  ട / യ1 .”

Evidently, what RW1 has referred to is only 3 bangles.

PW1 deposed that after the death of her husband, she has redeemed 2 sovereigns of gold ornaments from a financier. The deposition reads thus, “Q. chief സ ത 2വ ങ $മ3& ത ൽ വ വ ര- ന സ ർണ ഭരണ ങ ൾ പ ണ യ  വ ച ത ല6? A. ഭർത വ  ഭർത വ ന $ട % അ ച ന  ക 3 പ ണ യ  വ ച . Q.

ഏ ത $ സ പ ന ത & ണ $ പ ണ യ  വ ച ത $?A. എ വ ട യ ട ണ ന $ എ ന - %യ 6. Q. അ ത ട ക ! $ പ ണ യ  ട വ ച ത ന $ട % ലരഖ ക ൾ ഒ ന  ഹ ജ ര- ൻ സ ധ - ല6?A. ഇ 6.Q. പ ണ യ  ട വ ച ഏ ട ത ങ &  ഉര പ  ന ങ ൾ ത രട ക ട യ  ത ട ല! ?A. ല?പ ക മ%ന $ട % മരണ ല@ ഷ  അ ലന ഷ ച $ 2 പ വ ൻ എ  ത ട ! $.Q. എ വ ട  ന ന യ ര ന ?A.

ആ റ ട വ ള മ ൽ ഫ D ന ൻ സ ലയ ഴF$, ട വ ൺ മണ  2 പ വ ൻ ത രട ക എ  ത .Q. ബ -  എ വ ട യ ട ണ ന $ അ ലന ഷ ലച ?A. ഇ 6. ത ര- .

അ വ ട  2 പ വ ൻ മ?ത ലമ ഉള 3.”

If RW1 had pledged her ornaments, the same could be redeemed only by him and not by the petitioner. It indicates that the petitioner had also pledged her ornaments. Further, after 13.05.2010, there had been only two pledges under Ext.A17 and A18 and they were only very small quantities and amounts. Hence, merely

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referring to RW1’s deposition as above, it could not be found that the ornaments of the petitioner were pledged by the 1 st respondent. Therefore, we agree with the Family Court in having negatived the claim.

11. Now, we proceed to deal with Ext.A4=Ext.B1 Settlement Deed and its cancellation under Ext.A5=Ext.B2 Cancellation Deed. The Settlement Deed was executed by respondents 1 and 2 in favour of their son, Premkumar on 20.09.2011. Premkumar committed suicide on 03.10.2011.

Respondents 1 and 2 executed the Cancellation Deed on 10.10.2011. According to the petitioner, the cancellation of the settlement, which had already taken effect, is null and void; hence, at the time of Premkumar's death, the property belonged to him. As a legal heir, the petitioner is entitled to half share over the same.

12. The Family Court held that the petitioner

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failed to prove that the gift was accepted by Premkumar during his life time. The document was executed on 20.09.2011, and Premkumar died on 03.10.2011. In terms of Section 122 of the Transfer of Property Act, a gift needs to be accepted by the donee during his life time.

If the donee dies before acceptance, the gift is void.

There being no evidence to prove the acceptance of the gift by Premkumar, the gift is void and could have been validly revoked by the donor. Hence, the Cancellation Deed is valid, held by the Family Court.

13. Law is well settled that, with regard to acceptance of gift, very little evidence is sufficient, since a man would only be too eager and willing to promote his own interests. Even mere knowledge of the gift would be sufficient to constitute acceptance of the gift [See: Narayani Bhanumathi & Anr. v. Karthyayani Lelitha Bhai ( 1973 KLJ 354), K. Balakrishnan v. K. Kamalam And Others ( 2004 (1) SCC 581) , Asokan v.

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Lakshmikutty and Ors (2007 (13) SCC 210), Bini Anilkumar v. Bhaskaran (2009 (3)

KLT 753), Parameswaran & Ors. v. Lekshaman & Ors. ( 2013 (1) KLT 487) , Sulekha Devi v. Ajith Kumar ( 2015 SCC OnLine Ker 27053), K. Cherunni v. K. Nalini (2017 SCC OnLine Ker 32010) ]. The original of the Settlement Deed is marked as Ext.B1. A perusal of the same shows that the stamp paper for the same was purchased by Premkumar.

It is not disputed that Premkumar, his wife (petitioner), and respondents 1 and 2, were living together in the same house. Ext.A15 is the final report with regard to the suicide of Premkumar. It is recorded therein that there were some disputes in the family leading to the execution of the Settlement Deed. In the circumstances, there is no point in contending that Premkumar was unaware of the gift or that the gift was not accepted by him. The circumstances as above are sufficient enough to find that the gift was accepted by Premkumar. We are unable to agree with the finding of

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the Family Court to the contrary.

14. Before this Court, the only argument of the respondents with regard to Ext.A4=Ext.B1 is that no right in praesenti has been created thereunder. The property was to vest with the donee only after the death of the executants (respondents 1 and 2). No right in praesenti having been created in the document, it is within the right of the executants to cancel the same, it is argued. The learned counsel relied on the judgment of the Apex Court in Kokilambal v. Raman [2005 (11) SCC 234] to contend that a Settlement Deed with a clause reserving she right to enjoy the property during the lifetime of the executant does not create a right in praesenti.

15. On a reading of the Settlement Deed, we are unable to accept the argument. The recitals in the document in unambiguous terms affirm transfer of title and possession of the property under the document, from

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the date of execution of the document. All that has been reserved in favour of the executants is the right to reside in the building and to take income from the property during their lifetime. Therefore, there is no merit in the contention that under the document there has been no transfer of right in praesenti. The judgment in Kokilambal (supra) was on the recitals in the document in that case wherein there was no vesting of rights in praesenti. Therein the Apex Court referred to its earlier judgment in Namburi Basava Subrahmanyam v. Alapati Hymavathi and others, [1996 (9) SCC 388] which acknowledged creation of a right in prasenti when life interest was reserved. It is held, “It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on the settlor’ s demise”.

The document was held to be a settlement deed and not a Will.

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16. In the present case, there has been creation of rights in praesenti under Ext. A4=B1 Settlement Deed. The contention to the contrary is only to be repelled and we do so. Ext.A4=B1 Settlement Deed having been accepted by Premkumar during his lifetime, it could not have been cancelled under Ext.A5=Ext.B2. Such Cancellation Deed cannot affect the title of the donee over the property and is of no consequence.

17. The title having vested with Premkumar under the Settlement Deed, on his death, the petitioner-wife inherits one-half share as a legal heir. The petitioner's claim is for such share, which is liable to be granted. The findings of the Family Court with regard to the settlement deed and its cancellation are hereby set aside.

Resultantly, the appeal is allowed in part. The decree and judgment of the Family Court, insofar as it

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relates to Ext.A4=Ext.B1 Settlement Deed and its cancellation, are set aside. The petitioner’s title and possession over one-half of the petition schedule property is declared. In all other respects, the decree and judgment of the Family Court will stand affirmed.

Sd/-

SATHISH NINAN

JUDGE

Sd/-

SHOBA ANNAMMA EAPEN

JUDGE

yd