19 September 2019
Supreme Court


Case number: C.A. No.-001429-001429 / 2011
Diary number: 12609 / 2009






ILLOTH VALAPPIL AMBUNHI (D) BY LRS.             Appellant(s)


KUNHAMBU KARANAVAN                            Respondent(s)



1. This  Appeal  is  against  a  Judgment  dated  12th

March, 2009 in Second Appeal No. 229 of 1996 passed

by a Single Bench of the Kerala High Court, whereby

the High Court has set aside the concurrent decisions

of the Trial Court and the First Appellate Court and

declared  that  the  suit  property  belongs  to  the

Chuzhali Bhagavathi Dharmadeva Bhandaram (hereinafter

referred to as ‘the Bhandaram’).

2. The High Court further declared that the deed of

assignment dated 31st July, 1971 executed by Raman

Aithan Ashari in favour of the appellant in respect

of  the  suit  property  was  null  and  void  and  not



binding  on  the  respondents  and  allowed  the

respondents  to  recover  possession  of  the  suit

property for and on behalf of the  the Bhandaram.

3. The facts giving rise to this Appeal are very

briefly enumerated hereinafter:

Raman  Aithan  Ashari,  hereinafter  referred  to  as

Raman, executed a deed of gift of the said property

in  favour  of  the  Bhandaram.   According  to  the

appellants,  though  the  deed  of  gift  stated  that

possession had been delivered, there was no evidence

of acceptance of the gift or of the Bhandaram being

in possession.  No presumption of acceptance of the

gift  could  arise  on  the  basis  of  the  recital  of

delivery of possession in the deed of gift as the

donee was only an inanimate body and there was no

evidence of any person accepting the gift or entering

into possession on its behalf.

4. The  appellants  contend  that  the  gift  did  not

take effect and Raman continued in possession, paying

rent and revenue for the property in his name.  He

later cancelled the gift by a deed of cancellation

dated 15th July, 1971 and sold the property to the

original appellant on 31st July, 1971.  The original

appellant was given possession thereafter and he made



improvements to the suit property.  

5. According  to  the  appellants,  on  or  about  7th

December, 1981, long after the original appellant had

purchased  the  suit  property,  the  respondents  being

the family members of Raman, and members of Kizhakke

Veethil Tarwad filed the instant suit for declaration

that  the  Deed  of  Cancellation  and  the  deed  of

transfer were invalid, null and void.

6. It was the case of the respondents that they

were owners of the Bhandaram which had come to own

the  suit  property  by  virtue  of  the  deed  of  gift.

Upon execution of the deed of gift Raman had divested

himself of title to the suit property and hence was

incompetent to execute any further deed, transferring

the  suit  property  to  the  appellants  herein  and/or

their  predecessor  in  interest  being  the  original


7. The appellants contend that the appellants are

bonafide purchasers for value. They resisted the suit

contending that the gift had not taken effect, as the

same had not been accepted, and therefore Raman was

perfectly  justified  in  cancelling  the  gift  and

selling the property to the appellant.   

8. On behalf of the appellants, it is argued that



the Trial Court went into detailed analysis of the

evidence, and came to the conclusion that the gift

executed by Raman had not taken effect, as it had not

been accepted.  Accordingly the deed of cancellation

as well as the sale to the appellant were held to be

valid and the suit was dismissed.  The findings of

the Trial Court were affirmed by the First Appellate


9. It is true, as rightly argued by learned senior

counsel appearing on behalf of the appellant, that

the High Court does not, in Second Appeal, embark

upon re-analysis of evidence and interfere with the

concurrent findings of facts.  It is well settled

that the  condition precedent for interference under

Section  100  of  the  CPC  is  the  existence  of  a

substantial question of law.

10. What constitutes substantial question of law has

been settled by innumerable decisions of this Court.

Reference  may  be  made  to  the  Constitution  Bench

decision in  Sir Chunilal V. Mehta and Sons VS.  The

Century Spinning and Manufacturing Co. Ltd. Reported

in AIR 1962 SC 1314.  

11. In  Chunilal  (Supra),  a  Constitution  Bench  of

this Court held that the proper test for determining



whether  a  question  of  law  raised  in  the  case  is

substantial would be, whether it is of general public

importance or whether it directly and substantially

affects the rights of the parties, and if so, whether

it is an open question in the sense that it has not

finally  been  settled  by  this  Court  or  the  Privy

Council or the Federal Court, or is not free from

difficulty,  or  calls  for  discussion  of  alternative

views.  If the question is settled by the highest

Court,  or  the  general  principle  to  be  applied  in

determining the question are well settled and there

is  mere  question  of  applying  those  principles,  or

that the plea raised is palpably absurd, the question

would not be a substantial question of law.  In the

aforesaid  case,  the  construction  of  the  Managing

agency agreement was not only found to be a question

of law, but also neither simple, nor free from doubt

and  accordingly  the  High  Court  was  held  to  be  in

error  in  refusing  to  grant  the  appellant  a

certificate  that  the  appeal  involved  a  substantial

question of law.

12. Learned  senior  counsel  appearing  for  the

Respondent has cited a very recent judgment of this

Court in Gurnam Singh (D) by LRs. and Other vs. Lehna



Singh (D) by LRs.  reported in 2019(7) SCC 641, where

this Court re-affirmed that the jurisdiction of the

High Court to entertain a Second Appeal under Section

100 of the CPC after the 1976 amendment is confined

to a substantial question of law. Thus existence of a

“substantial question of law”  is a sine qua non for

the exercise of  jurisdiction under Section 100 of

the CPC.  

13. In Gurnam Singh’s case (supra) this Court held

that in a Second Appeal under Section 100 of the CPC,

the High Court cannot substitute its own opinion for

that of the First Appellate Court, unless it finds

that  the  conclusions  drawn  by  the  Court  were

erroneous being :

(1.) contrary to the mandatory provisions of the

applicable law; or

(2) contrary to the law as pronounced by this

Court; or

(3)  based  on  inadmissible  evidence  or  no


14. It  is  now   well  settled  that  perversity  in

arriving  at  a  factual  finding  gives  rise  to  a

substantial question of law, attracting intervention

of the High Court under Section 100 of the CPC.

15. Learned  senior  counsel  appearing  for  the

appellants referred to the substantial questions of



law framed by the High Court, and in particular, the

first question which reads as under:

Whether  Exh.  A1  -gift  deed  having  been

accepted  on  behalf  of  the  donee  could  be

revoked by the donor unilaterally?

16. Counsel submitted that the questions have been

framed on the patently erroneous premises that the

gift had been accepted, on behalf of the donee when,

in fact, both the Trial Court and the Appellate Court

had  concurred  in  their  finding  that  the  gift  had

never been accepted.

17. The  other  questions,  i.e.  whether  the

cancellation deed being Ex.P11 was contrary to the

provisions of Section 126 of the Transfer of Property

Act, 1882,  or whether the relief of declaration in

respect of the documents being Exh. P11 was barred by

limitation, or whether the appellant had perfected

title under Section 27 of the Limitation Act, cannot

be said to be substantial questions of law, but are

questions of fact, as argued by Counsel.

18. The first question may not have properly been

framed.  Perhaps  the  question  should  have  read-

whether the finding of the Trial Court with regard to

non  acceptance  of  the  deed  of  gift,  confirmed  in



appeal, was vitiated by perversity and if it was so

vitiated,  whether  the  unilateral  revocation  of  the

deed, by the donor, can be sustained in law.  

19. A careful reading of the judgment of the High

Court under Appeal makes it absolutely  clear that

those are the questions which have, in effect and

substance, been addressed.  In our view, a mere error

in  framing  a  question  of  law  would  not  render  a

judgment in  Second Appeal liable to be set aside, if

it  is  found  that  a  substantial  question  of  law

existed and such substantial question of law has in

fact been answered by the High Court as in this case.

20. The High Court rightly took note of the recital

of  the  deed  of  gift  which  showed  delivery  of

possession to the donee.  The recital of the deed

gift is as under:

“As described above, I hereby give possession

of the under mentioned properties as gift for

the expenses of the aforesaid Daiva Bhandram

which belongs to over Tarward and in which I

also have ownership rights.

Therefore from today onwards yourself and in

our absence those in our Tarwad who follow

the rites of Chuzhali Ayathan etc. shall have

possession  of  the  properties  given  in  the

schedule below and shall meet the expenses of

the Dharmadaivam from the income from time to



time pay taxes and give me Rs.24/-towards my

life  interest  before  30th of  Kumbham  every

year from 1131 (M.E.). The said amount shall

be  given  to  me  till  my  death  and  obtain

receipt for the same.  I will have no other

rights  on  the  property  mentioned  in  the

schedule except the aforesaid life interest.”

The High Court further held :-:

“8.  In the decisions relied on by the learned

counsel for the respondent it has been held that

there  cannot  be  a  presumption  regarding

acceptance of the gift, be it not onerous and

that there must be some evidence to show that

the gift was accepted during the life time of

the donor but, what is stated in those decision

is  concerning  the  presumption  as  to  the

acceptance of the gift.  But when the document

itself  recited  that  the  possession  of  the

property  was  given  to  the  donee,  then,  a

presumption of acceptance of gift would arise in

favour of the donee.”

21. The proposition of law that when the document of

transfer by gift records delivery of possession, a

presumption of acceptance would arise, in the absence

of overt repudiation of the gift, by and/or on behalf

of the donee, is unexceptionable. As held by the High

Court, when the deed itself said that the possession

of the property was given to the donee, the burden of

proving, that the said recital was not correct, lay



on the party who asserted so.  In our view, the law

has correctly been appreciated and enunciated by the

High Court.

22. The High Court took note of the recital to the

effect  that   Karnavan  (Malingan  Chuzhali  Ashari)

acting on behalf of the Bhandaram was to enjoy the

property from the date of the gift, which was strong

evidence of transfer of possession.  

23. The High Court rightly found that there was no

direction  in  the  gift  deed  which  made  the  gift

onerous as understood in Section 127 of the Transfer

of Property Act.  In all fairness to the appellants,

this has not even been argued before the High court.

The gift not being onerous, there was no reason why

Malingan Chuzhali Ashari should not have accepted the

gift on behalf of the Bhandaram.

24. The High Court held:

“It is indisputable that an idol is to be

treated  as  a  minor  for  all  legal  purposes.

Hence, the acceptance of the gift as per Ext. A1

could be by any person on behalf of the donee.

It is not disputed that Malingan Chuzhali Ashari

was the Karnavan of the Tharawad during the time

of Ext.A1 and that along with Malingan Chuzhali

Ashari, the donor (Raman Aithan Ashari) was also

a trustee of the Bhandaram.”



25. As noted by the High Court, there is no dispute

that  Malingan  Chuzhali  Ashari  and  the  donor  Raman

were trustees of the Bhandaram (donee) at the time of

execution of deed of gift.  The fact that nothing was

done by Raman or any other trustee of the Bhandaram

to repudiate the gift in itself shows that the deed

of gift was duly accepted by the Bhandaran.

26.  The High Court rightly held that the Courts

below had proceeded on the wrong assumption that even

in spite of the recitals in Exh. A1, being the deed

of  gift  and  the  admitted  facts  of  the  case,  the

burden of proof was on the respondents to show that

the  gift  had  been  accepted.   The  findings  of  the

Trial Courts and the First Appellate Court were based

on a wrong assumption of law regarding the possession

of  an  idol  in  the  eye  of  law  and  the  relevant

recitals in Exh. A1 (deed of gift).

27. The High Court rightly declined to accept the

findings of the Courts below that the deed of gift

had  not  been  accepted  during  the  lifetime  of  the

donor,  in  the  absence  of  any  evidence  of  non

acceptance  of  the  same.  The  deed  of  gift  did  not

provide for reversion of the suit property to the

donor in case of failure to pay maintenance to the



donor in terms of the deed of gift. The High Court,

therefore arrived at the conclusion that Raman was

not competent to execute the deed of cancellation or

the deed of transfer, as he had ceased to be the

owner of the suit property.

28. In  Md. Noorul Hoda vs.  Bibi Raifunnisa & Ors.

reported in (1996 (7) SCC 767), this Court held that

Article 59 of the Limitation Act would be applicable

if a person affected is a party to a decree or an

instrument  or  a  contract  which  was  questioned  by

initiation of a suit.  Article 59 would apply to set

aside the decrees, instruments or contracts between

the parties  inter se.  However, in the case of a

person claiming title through a party to the decree

or  instrument  or  contract  who  seeks  to  avoid  the

instrument,  contract  or  decree  by  a  specific

declaration, the starting point of limitation under

Article  59  would  be  the  date  of  knowledge  of  the

fraud  and/or  illegality  which  renders  the  decree

and/or instrument and/or other document void.

29. In Prem Singh & Ors. vs. Birbal & Ors. Reported

in  2006  (5)  SCC  353,  cited  on  behalf  of  the

appellant, this Court held that when a document is

valid, no question arises of its cancellation; when a



document  is  void,  initiating  a  decree  for  setting

aside, the same would not be necessary as the same is

nonest in the eye of law as it would be a nullity.

30. In Prem Singh & Ors. (supra) this Court further

held that Article 59 of the Limitation Act deals only

when  relief  is  claimed  on  the  ground  of  fraud,

coercion, undue influence, mistake, etc. to avoid a

voidable transaction.  Article 59 is attracted where

fraud, coercion, undue influence, mistake etc. have

to  be  proved.   It  would  not  apply  to  instruments

which are presumptively invalid.

31. The High Court held, and rightly, that Article

59  of  the  Limitation  Act  deals  with  suits  for

cancellation  for  setting  aside  an  instrument  or

decree or for rescission of a contract and prescribes

a period of three years commencing from the time when

the  fact  entitling  the  plaintiff  to  have  the

instrument or decree cancelled or set aside or the

contract rescinded is first known to him.  So far as

Exh.  A1  being  the  deed  of  gift  is  concerned,  the

donor had no authority to revoke the same.  Hence,

the subsequent documents were in themselves without

authority and null and void.  The declaration was

only incidental to the title and possession of the



donee and hence Article 59 had no application.

32. In  S.  Sarojini  Amma vs.  Velayudhan  Pillai

Sreekumar  (2018 SCC Online SC 2200) this Court found

on  facts  that  the  gift  was  conditional  and  the

conditions had not been complied with.  Furthermore

on facts it was found that the gift in the aforesaid

case was to take effect at a subsequent date.  The

Judgment is distinguishable on facts.

33. In our view, the Second Appeal has rightly been

allowed by the High Court.  The Appeal is therefore


34. Needless to mention that the Appellant will be

entitled  to  initiate  such  proceedings  as  the

Appellant  may  be  advised,  against  the  vendor  for

damage and recovery of the consideration paid to him.


.............................J.  (INDIRA BANERJEE)

.............................J.  (SANJIV KHANNA)