Essentials Of Gift Apply To Settlement Deeds Under Transfer Of Property Act | Plaintiff’s Title Upheld As Valid Transfer Was Completed During Donor’s Lifetime: Kerala High Court
Safiya Malik
The High Court of Kerala single Bench of Justice A. Badharudeen upheld the trial court’s decree declaring title in favour of the plaintiff over the suit property. The Court dismissed the appeal filed by the defendants and confirmed the judgment and decree passed by the Sub Court, Pathanamthitta. It held that the plaintiff had perfected her title on the basis of a registered settlement deed and directed the dismissal of all pending interlocutory applications along with costs in favour of the plaintiff.
The dispute arose from a suit filed by the plaintiff seeking declaration of title and recovery of possession over a parcel of land described in the plaint schedule. The plaintiff based her claim on a registered settlement deed, Ext.A1 (No. 3390/1986), alleging unlawful dispossession by the defendants in December 1994. The plaintiff claimed the defendants had trespassed and taken possession of the property relying on subsequent documents—Ext.A3 (partition deed) and Exts.A4 and A5 (sale deeds).
Defendants 1 and 2 contested the suit, asserting that the total property originally measured 1 acre and 44 cents, out of which 27 cents had been acquired for the Kallada Irrigation Project. They contended that the suit property was owned by one Ramachandran until his death in 1991, after which it devolved upon his legal heirs—defendants 3 and 4. Defendants 1 and 2 claimed to have acquired title from defendants 3 and 4 via Exts.A4 and A5 executed on 09.11.1994.
Defendant 3 filed a supporting written statement, claiming inheritance from Ramachandran. Although defendant 4 did not file a separate statement, his legal heirs (defendants 5 and 6) adopted the stance of defendants 1 to 3.
The trial court, after examining oral and documentary evidence—PWs 1 to 5, DWs 1 to 4, Exts.A1 to A14, Exts.B1 to B3, and court exhibits Exts.C1, C2, X1 to X3—found in favour of the plaintiff. It declared the plaintiff's title over the suit property based on Ext.A1 and decreed the suit for recovery of possession, injunction, arrears of damages (Rs.600 per annum), mesne profits (Rs.1,000 per annum from 09.11.1994 until handing over possession), and costs.
In appeal, the defendants argued that Ext.A1 was forged and that the description of the land in Ext.A1 as 4 acres 44 cents was inconsistent with the actual extent of 1 acre 44 cents. They projected themselves as bona fide purchasers relying on Exts.A4 and A5.
The plaintiff contended that the discrepancy in area did not affect the validity of Ext.A1. She submitted that item No.2 property in Ext.A1, which was undisputedly under her possession, further supported her title and possession. She also produced the original settlement deed and evidence of communication (Exts.A10 and A11) regarding the alleged encroachment.
The trial court accepted the evidence of PW1 (the plaintiff) and PW3 (the document writer of Ext.A1). The death of the attesting witnesses was undisputed, and death certificates were filed with I.A.Nos.781/2004 and 784/2004. Though the applications were dismissed, the trial court accepted the evidence of PW3 as credible.
The Court stated: “As far as Ext.A1 settlement deed is concerned, the contention raised by defendants 1 and 2 as well as defendants 3 and 4 is that the same is a concocted document… In order to prove Ext.A1, plaintiff herself mounted the box and given evidence… The original title deed… was let in by PW1… PW3-the document writer who wrote Ext.A1 also was examined.”
The Court further recorded: “Nothing extracted during cross examination of PW1 and PW3 to disbelieve their version… PW3 further given evidence that one of the attestors to Ext.A1 settlement deed expired six months back and another attestor died in the year 1993.”
The Court clarified the legal position regarding attestation and acceptance of gifts, noting that: “There is no legal mandate that one among the attesting witnesses shall be examined to prove a settlement deed or a gift deed when there is no specific denial of the execution… However, when there is specific denial… it shall be necessary to call an attesting witness.”
Referring to Asokan v. Lakshmikutty, the Court recorded: “The essential elements [of a valid gift] are: (1) the absence of consideration; (2) the donor; (3) the donee; (4) the subject-matter; (5) the transfer; and (6) the acceptance… The document may be handed over to a donee, which in a given situation may also amount to valid acceptance.”
The Court also relied on Renikuntla Rajamma v. K. Sarwanamma, noting: “A conjoint reading of Sections 122 and 123 of the Act makes it abundantly clear that ‘transfer of possession’ of the property… is not a sine qua non for the making of a valid gift under the provisions of Transfer of Property Act, 1882.”
Regarding the defendants’ claim as bona fide purchasers, the Court recorded: “If an encumbrance certificate was obtained in this case, the encumbrance in the form of Ext.A1 settlement deed could very well be found… They had purchased the property after having knowledge regarding the encumbrance… they could not be held as bona fide purchasers in any manner.”
The Court concluded the matter by dismissing the appeal and ordered that the plaintiff is entitled to recover her costs in the appeal from the respondents.
It further directed that all pending interlocutory applications shall stand dismissed and all interim orders shall stand vacated. Additionally, the Court ordered the Registry to forward a copy of the judgment to the jurisdictional court for information and further steps.
Advocates Representing the Parties
For the Petitioners: A.A. Mohammed Nazir, Denizen Komath, S. Santhosh Kumar
For the Respondents: Shri M.V.S. Nampoothiry for R1
Case Title: Abraham & Others v. Ajitha Jayakumar & Others
Neutral Citation: 2025:KER:28702
Case Number: RFA No. 491 of 2005
Bench: Justice A. Badharudeen
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