Indira Banerjee JUDGMENT
Indira Banerjee, J.
1. Leave granted.
2. This appeal has been filed against the judgment and order dated 03.04.2017 passed by the High Court of Kerala at Ernakulam in R.S.A. No. 757/2011 whereby the High Court was pleased to allow the Second Appeal filed by the Respondent and set aside the judgment and decree passed by the First Appellate Court in favour of the Appellant.
3. The short question involved in this appeal is whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift. Another related question is whether a gift deed reserving the right of the donor to keep possession and right of enjoyment and enforceable after the death of the executant is a gift or a will.
4. The Appellant is a childless widow aged 74 years whose husband expired on 06.06.2015. The Respondent is the nephew of the Appellant (brother's son). In the expectation that the Respondent will look after the Appellant and her husband and also for some consideration, the Appellant executed a purported gift deed in favour of the Respondent. The gift deed clearly stated that the gift would take effect after the death of the Appellant and her husband.
5. According to the Appellant on or about 02.06.1999, the Appellant executed the deed of cancellation No. 1844/1999 cancelling the gift deed. After about eight months, on or about 01.02.2000, the Respondent filed Original Suit No. 32/2000 in the Court of the learned Munsif Sasthamcotta for declaration that the cancellation deed executed by the Appellant is null and void and also for declaration of his right over the suit property being the subject matter of the purported deed of gift.
6. On or about 20.03.2000, the Appellant filed Original Suit being O.S. No. 97/2000 before the Court of the learned Munsif, Sasthamcotta for permanent injunction restraining the Respondent or his men from trespassing or committing waste or mischief in the suit property.
7. On 12.05.2000, the Appellant and her husband filed the written statement in the suit being O.S. No. 32/2000 filed by the Respondent. On 25.07.2000, the Defendants in O.S. No. 97/2000 filed their written statement contending that the registered document No. 687/2000 was executed for consideration.
8. By a judgment and order dated 11.12.2006, the learned Munsif, Sasthamcotta decreed Original Suit No. 32/2000 and O.S. No. 97/2000.
9. Being aggrieved, the Appellant filed First Appeal being A.S. No. 30/2007 before the District Court Kollam. The Defendants in O.S. No. 97/2000 filed their First Appeal before the District Court Kollam. By an order dated 23.09.2010, the Additional District Judge III, Kollam allowed the application being A.S. No. 30/2007 filed by the Appellant and dismissed A.S. No. 77/2000 filed by the Respondent in O.S. No. 97/2000.
10. The Respondent filed Regular Second Appeal against the judgment and decree in A.S. No. 30/2007. By the judgment and order dated 03.04.2017, the High Court allowed the R.S.A. No. 757/2011 and set aside the judgment and decree in A.S. No. 30/2007.
11. On behalf of the Appellant, it was contended that the document styled as gift deed was to come into effect only after the death of the Appellant and her husband. The question was whether a document in terms whereof........