Mode of setting aside an excuted deed
prabhakar singh
(Querist) 22 August 2011
This query is : Resolved
CAN A VENDOR SET ASIDE HIS EXECUTED REGISTERED SALE DEED BY SIMPLY EXECUTING AND REGISTERING CANCELLATION DEED ON A SUBSEQUENT DATE ON HIS OWN WITHOUT ANY SUIT AND DECREE OF COURT?????
Devajyoti Barman
(Expert) 22 August 2011
I do not think so. Once the sale is complete in lieu of consideration or not the seller needs a decree of declaration to get the deed declared as null and void.
prabhakar singh
(Querist) 22 August 2011
AGREED!
Do you agree that same procedure would be required to get cancelled a GIFT deed too OR that in case of gift DONOR can cancel it next day by a subsequent deed on his own with out
any suit or decree.
ajay sethi
(Expert) 22 August 2011
gift deed made unconditionally cannot be cancelled by executing cancellation deed .i am presuming gift deed was duly registered
ajay sethi
(Expert) 22 August 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 492 of 2001(A)
1. MANIRAJAN PILLAI
... Petitioner
Vs
1. K.K.KARUNAKAKRAN PILLAI
... Respondent
Judgement
J U D G M E N T
The defendants in O.S.No.223 of 1993 on the file of the
Munsiff Court, Thiruvalla are the appellants. Pending the
appeal, the respondent/plaintiff had passed away and his legal
heirs have been brought in as additional 2nd and 3rd respondents.
2. The above suit was one for declaration of title,
possession and injunction. Initially, the suit was filed as one for
injunction alone, but, later, amended seeking the declaratory
relief as well. There are two items of properties in the suit, both
of which are claimed by the plaintiff under Ext.A1 gift deed
executed by his maternal aunt Kunjulakshmi Amma. The
defendants/appellants are the children of the other two sisters
and brother of the aforesaid Kunjulakshmi Amma. Alleging
interference, and threat of trespass, from the defendants over his
possession and enjoyment of the properties, the plaintiff laid the
S.A.NO.492/2001 2
suit for injunction, and, later, amended the plaint for declaration
also, as his title was challenged by the defendants impeaching
Ext.A1 gift. The defendants filed a joint written statement, in
which they contended that Ext.A1 gift has not come into effect
and it was the product of fraud and misrepresentation. The
original gift deed always remained under the custody of the
executant Kunjulakshmi Amma, who, later, realising the fraud
and misrepresentation made, cancelled the gift. She also
executed another gift deed in favour of her sisters and brother,
reserving her life interest over the property. After the death of
Kunjulakshmi Amma, the donees under the subsequent
document are in possession and enjoyment of the properties, was
the case of the defendants, resisting the claim canvassed by the
plaintiff for declaration and injunction set up in the suit.
3. On the materials placed, which consisted of PWs.1 to 3
and Exts.A1 to A5 series for the plaintiff and DWs.1 to 3 and
Exts.B1 to B4 for the defendants, the claim of the plaintiff
canvassed under Ext.A1 gift deed was upheld by the trial court
holding that such gift had come into effect on its execution by
S.A.NO.492/2001 3
Kunjulakshmi Amma and acceptance by the donee, plaintiff.
The challenges raised impeaching its validity and also the rival
claim of title and possession by the defendants by way of
subsequent gift deed from Kunjulakshmi Amma, revoking the
previous deed were turned down. Suit was decreed declaring
the title and possession of the plaintiff over the suit property,
granting him perpetual prohibitory injunction as well restraining
the defendants from trespassing and interfering with his
possession and enjoyment. Challenge against the decision of the
trial court by the appellants was turned down by the lower
appellate court, dismissing their appeal. Concurrent decision so
rendered by the two courts below that the plaintiff has obtained
title and possession over the suit property under Ext.A1 gift deed
and also the decree of injunction passed against the defendants,
is assailed by them in this Second appeal.
4. Notice on admission given, the respondent/plaintiff
entered appearance; and, later, on his demise, his legal
representatives brought in as additional respondents appeared.
S.A.NO.492/2001 4
5. I heard the counsel on both sides. The main thrust of
challenge pressed into service by the learned counsel for the
appellants to assail the concurrent decision rendered by the two
courts below is that the contention of the defendants that Ext.A1
gift is vitiated by various reasons, has not been analysed and
appreciated by the courts below according to the legal principles
applicable to the case. In the given facts of the case, where the
executant Kunjulakshmi Amma was shown to be pretty aged, 84
years old, and she, admittedly, after being hit by a scooter,
was undergoing continuous treatment with intermittent
hospitalisation, fraud and undue influence imputed in the
execution of Ext.A1 gift deed, at the instance of the plaintiff,
should have been analysed by the courts taking a different
approach shifting the burden on the donee/the plaintiff to
establish that the document was not the product of undue
influence or fraud as imputed, is the submission of the counsel.
Reliance is placed on M. Kunka Kurup and Another v.
Lakshmikutty Amma and others (1984 KLJ 786) to contend
that this was a case where a fresh appraisal and consideration by
the court below following the different approach canvassed is
S.A.NO.492/2001 5
necessary to render justice, and the finding entered that Ext.A1
is not vitiated by undue influence or fraud as held by the courts
below cannot be sustained. It is further argued by the counsel
that the materials tendered in the case, and more particularly,
Ext.A1 gift deed itself, on the face of it, disclose that there was a
fraud on registration in execution of that document as it had
been registered in a Sub registry not having jurisdiction over the
suit property. That material circumstance itself is sufficient to
render the document as void, but the courts below have brushed
aside that legal infirmity cutting at the root of Ext.A1 deed,
according to the counsel. Per contra, the learned counsel
appearing for the respondents submitted that there is no merit in
the challenges raised to impeach the concurrent decision
rendered by the courts below that Ext.A1 gift has come into
effect and the plaintiff has obtained title and possession over the
property. Adverting to Ext.B2 cancellation deed executed by the
donor, Kunjulakshmi Amma, it is submitted by the counsel, that
even she had no case that any fraud or misrepresentation or
undue influence was practised on her in the execution of Ext.A1
gift deed in favour of the plaintiff. Revocation of Ext.A1 gift deed
S.A.NO.492/2001 6
by the executant after that gift came into effect, according to the
counsel, has been rightly and correctly found to be of no
consequence by the courts below as the donor was incompetent
to revoke the gift previously made where such right has not been
reserved. Reliance is placed on Gopalakrishnan v. Rajamma
(2006 (4) KLT 377) by the counsel to contend that after the
acceptance of Ext.A1 gift deed by the plaintiff revocation of such
gift, if at all permissible, was only by way of instituting a suit
before the civil court. Challenge set up by the defendants that in
the execution of Ext.A1 gift deed there is fraud on registration as
the registration was done in a different Sub registry, which is
imputed as not having jurisdiction over the suit properties, is
also having no merit for the reason that no such case had been
pleaded or proved in the case. Further more, it is submitted that
Ext.B3 gift was registered at the same Sub registry where Ext.A1
was registered, and that circumstance is sufficient to indicate
that there was fraud on registration in execution of Ext.A1 deed,
is devoid of any merit. Reliance is also placed on Geetha
Viswanathan and Others v. Sasidharan (2010 4 KHC 553)
to contend that the question whether parties intended to commit
S.A.NO.492/2001 7
a fraud on the law of registration is a question of fact, and it has
to be pleaded and proved, and no such plea had been raised in
the written statement filed by the defendants in the present case,
and so much so, that plea now canvassed to impeach the
concurrent decision of the courts below is meritless as not
entertainable.
6. Perusing the records of the case with reference to the
submissions made by the counsel on both sides, I find there is no
merit in the submissions made by the learned counsel for the
appellant that the courts below had erred in adjudicating the
question whether Ext.A1 gift is vitiated by undue influence,
fraud, misrepresentation etc. It is only in a case where the facts
presented by the materials patently indicate that the transaction
covered by the document impeached, is unconscionable or shown
to be 'non-est factum' the alternate method of approach
indicated in M. Kunka Kurup's case (cited supra) by the learned
counsel for the appellants can be resorted to. Where the
transaction appear on the face of it or the evidence adduced
reveal that it is unconscionable, and also the person in whose
S.A.NO.492/2001 8
favour the instrument had been created was in a position to
dominate the will of the executant, the alternate method of
approaching the question whether the deed is vitiated by fraud
or misrepresentation or undue influence shifting the burden on
the person who is shown to be in a position to dominate the will
of the executant emerge for consideration. Merely because the
executant is shown to be pretty old and was undergoing
intermittent hospitalisation during the period of the execution of
the document challenged, consequent to injury suffered in a
motor accident, and she was still with the plaintiff, on such
circumstances alone, it is not possible to hold that when a
challenge is raised impeaching the instrument as vitiated by
fraud, misrepresentation and undue influence, the burden shifts
upon the donee/the plaintiff to prove that it is free from such
vitiating factors. The trial court has taken note that the evidence
of the plaintiff, as PW1, that the executant Kunjulakshmi Amma
was a law graduate remained uncontroverted. His case that the
executant Kunjulakshmi Amma was capable of taking care of
herself at the time when she executed Ext.A1 gift deed, it is
seen, was corroborated a large extent by PW2, a doctor who
S.A.NO.492/2001 9
attended on her. Then also, it is noticed that two years later
when Kunjulakshmi Amma executed Ext.B2 cancellation deed
revoking Ext.A1 gift deed, she had no case that the previous gift
in favour of the plaintiff was the product of fraud,
misrepresentation or undue influence. On the other hand, the
statement in Ext.B2 would show that the cancellation was made
asserting that Ext.A1 gift has not come into effect since the
conditions imposed thereunder and also the objects for which
she executed that instrument had not been fulfilled. When the
executant Kunjulakshmi Amma had no case even when she
executed Ext.B2 cancellation deed for the purpose of revoking
Ext.A1 gift deed that there was any fraud, misrepresentation or
undue influence over her in executing Ext.A1 gift in favour of the
plaintiff, it goes without saying that it is not open to the
defendants to set up such a challenge to impeach Ext.A1 gift
deed. The decision rendered in M. Kunka Kurup's case (cited
supra) has no application to the facts of the case. Nothing more
need be stated over the validity of the Ext.B2 cancellation deed
revoking Ext.A1 gift deed and execution of Ext.B3 gift deed in
favour of the defendants by Kunjulakshmi Amma, than what is
S.A.NO.492/2001 10
discussed by the courts below and the finding entered on that
question concurrently. The evidence let in the case clearly
demonstrate Ext.A1 gift deed has come into effect and the
plaintiff, after effecting mutation of the property in his name, is
in possession and enjoyment of the same. He could produce only
a certified copy of the gift Ext.A1 and the original of that gift was
produced by the defendants does not in any way indicate that
there was no acceptance of the gift. The contents of Ext.A1 gift
deed would also indicate that after such gift coming into effect,
the donor Kunjulakshmi Amma had no right to revoke that
instrument. Ext.B2 cancellation deed and the subsequent gift
deed executed by her in favour of others including the
defendants have no validity when there was divesting of her title
under Ext.A1 gift deed in favour of the plaintiff. So far as the
challenge raised that there was a fraud on registration in the
execution of Ext.A1 gift deed as it had been registered at a
different Sub registry not having jurisdiction over the properties
covered by the instrument, it is seen that no such plea had been
raised in the joint written statement filed by the defendants. The
revocation deed Ext.B2 and subsequent gift deed Ext.B3, both of
S.A.NO.492/2001 11
them are seen registered in the same Sub registry office where
Ext.A1 was registered, as rightly contended by the learned
counsel for the respondent, is more than sufficient to discard the
challenge raised over the fraud on registration which was not
even pleaded in the statement filed by the defendants.
The appeal does not involve any question of law leave alone
any substantial question of law, and as such, it is not
entertainable. Appeal is dismissed directing both sides to suffer
their respective costs.
S.S.SATHEESACHANDRAN
JUDGE
prp
S.A.NO.492/2001 12
prabhakar singh
(Querist) 22 August 2011
But then i need one more view,if a donor after registering a gift deed to day tomorrow prefers to cancel it by registering an other deed of cancellation,which in our opinion,he is not capable of,then whether it is necessary in law for donee to sue donor to set aside such a cancellation deed????????
ajay sethi
(Expert) 22 August 2011
well once gift deed executed unconditionally and donee placed in posession if tomorrow donor executes cancellation deed it would be advisable for donee to move court to set aside cancellation deed .
prabhakar singh
(Querist) 23 August 2011
Here i disagree with you,why should we ask a donee to move to get cancellation decree of a void ab initio deed executed without capacity and right and more particularly where donor obliged in law to move to court for a desired
cancellation devised his own illegal way of cancellation and allowed the limitation to pass for his relief while donee is in constructive possession ,have let the property receiving rent paying taxes unless there is some imminent danger or threat to his possession,even in such a circumstance a suit of injunction or coupled with declaration can at most be advised.
