Thottathil B.Radhakrishnan,J:
These appeals are filed against a common judgment rendered by a learned Single Judge deciding two connected appeals filed under Section 96 of the Code of Civil Procedure. These appeals are under Section 5(ii) of the Kerala High Court Act. Such an appeal has to be considered on yardsticks akin to those that would apply to a Second Appeal under Section 100 of the Code of Civil Procedure.
2. Moidutty, a merchant, appears to have developed intimacy with Savithri. Moidutty had a wife while he grew familiar with Savithri. Kunhumarakkar is Moidutty's son through that woman. With passage of time and cohabitation, Moidutty purchased a parcel of land in Palakkad District, on which a house was put up, stated to AFA.Nos. 47 & 50 of 1999
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be by Savithri utilizing funds available to her by running a tailoring school and from funds received from Moidutty. It appears that after some time the relationship between Moidutty and Savithri started loosing its charm and Moidutty recoiled back to his earlier matrimonial home. Savithri took the stand that Moidutty had made an oral gift of the aforesaid parcel and it is acting on that gift that she holds exclusive title to that piece.
3. The aforesaid controversies led to two suits; one by Savithri seeking declaration of her title to the said property and for a decree of perpetual injunction against Moidutty and his son Kunhumarakkar. Moidutty's son Kunhumarakkar filed the other suit seeking recovery of possession from Savithri, impleading Moidutty also as a defendant.
4. The moot question at trial revolved around the oral gift by Moidutty as pleaded by Savithri and the assertion of Moidutty's son Kunhumarakkar that he has title to the property. The trial Court accepted the case of Kunhumarakkar and refused relief to Savithri.
AFA.Nos. 47 & 50 of 1999
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5. The learned Single Judge on a reappreciation of the entire evidence on record came to the conclusion that the oral gift by Moidutty pleaded by Savithri has been established by cogent evidence and with no contra evidence coming from Moidutty, the learned Single Judge held that Moidutty's son Kunhumarakkar did not have any shred of legal right to sustain the plea of recovery of possession from Savithri.
6. Hearing these appeals on their merits, we thought it proper to probe a little further beyond any strict parameters of substantial questions of law. On reading the evidence, we see that we cannot but agree with the learned Single Judge that the appreciation of evidence categorically points in favour of the plea of Savithri that Moidutty had made an oral gift in her favour and the legal evidence on record sustains that plea. It is apposite in this context to note that Moidutty's son Kunhumarakkar had set up in his written statement the plea that Savithri was the wife of one "Dasan". However, at trial he came out with the stand that this "Dasan" is none other than his father Moidutty.The son, Kunhumarakkar,though denied the AFA.Nos. 47 & 50 of 1999
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oral gift, went to the extent of saying that from 1976 to 1985 his father was living as a Hindu after conversion to Hinduism and that it was thus that he cohabited with Savithri. Pausing here, we may recall that Moidutty, the hero of the drama, never tendered evidence. What is being considered is the intricate human relationship between Savithri and Moidutty which is the backdrop of the oral gift by Moidutty to Savithri as set up by her. Cohabitation of Moidutty with Savithri is proved beyond doubt. The fact that she is in possession and is residing in the parcel in question is a fact admitted. The suit of Kunhumarakkar is for recovery of possession from her. The contra story that is attempted to be set up is that there was an oral lease by Moidutty to Savithri. For this again, Moidutty had not given any evidence. On the totality of the facts and circumstances, the preponderance of probabilities weigh heavily in favour of Savithri's version as against the stand taken by Kunhumarakkar and the stock silence of Moidutty.
7. On the appreciation of evidence and on the totality of the facts and circumstances, we also see that an AFA.Nos. 47 & 50 of 1999
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independent witness has spoken of the relationship and the gift and also a photograph. In law, it makes no difference whether the donee under an oral gift governed by the Mahomedan Law is a non-Mahomedan.
8. Obviously in the light of what we have discussed above, the plea of Savithri stands and we find no ground to interfere with the judgment of the learned Single Judge in the two appeals. Any consequential settlement by Moidutty in favour of Kunhumarakkar or otherwise ignoring the aforesaid situation of oral gift in favour of Savithri also goes.
For the aforesaid reasons, these appeals fail. They are accordingly dismissed. No costs.
Sd/-
Thottathil B.Radhakrishnan Judge Sd/-
K.Vinod Chandran Judge.
vku/260512.
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