1. The substantial question of law involved in this Second Appeal is:

Whether the gift in favour of the Plaintiff was accepted and completed and if so, Whether the Revocation Deed executed by Kali is valid?

2. Ext.A2 is the gift deed/settlement deed dated 23.07.1990. It was admittedly executed by plaintiff’s mother Kali in favour of the plaintiff pertaining to the plaint schedule property admeasuring 6 cents with a residential house situated therein. Ext.A5 is the cancellation deed dated 10.04.1996 executed by Kali mentioned above, who at that time was aged 84 years. The plaintiff filed a suit to set aside Ext.A5. The trial court decreed the suit holding that Ext.A2 gift deed had taken effect and so Ext.A5 cancellation deed in invalid and inoperative.

3. The first defendant who is the brother of the plaintiff and the second defendant who is the nephew of the plaintiff challenged the judgment and decree of the trial court. The appellate court reversed the decree and judgment of the trial court and held that Ext.A5 cancellation deed is valid. Hence the suit was dismissed.

4. The construction of two documents Exts.A2 and A5 would to a great extent resolve the dispute. Since the execution of Ext. A2 was practically admitted by Kali, as admitted in Ext.A5, the question to be considered is whether Ext. A2 is a gift deed/ settlement deed or is it a will. The translation of the relevant portion of Ext. A2 reads as:

“Since you are depending on me and because of my special love and affection towards you, and for your livelihood, I intend and desire to settle this property in your favour and as per this document, I have given possession of the property to you. But in the house situated in the said property, I will have right of residence along with you and you shall not interfere with my right of residence. With these terms, I have with my full volition decided and given possession of the property to you absolutely and hereafter you shall possess property, effect mutation, pay the tax and possess the house along with me till my death and thereafter by you only with absolute of alienation.”

5. It is also mentioned in Ext.A2 that at the time of execution of Ext.A2 prior title deed/ partition deed as per which the settler had obtained tight was handed over to the settlee. The learned counsel for the appellants submits that the recitals in Ext.A5 cancellation deed would show that the execution of the documents was practically admitted. It is stated that “on or from the date of Ext. A5,” she intended or desired that plaintiff should not be in possession of the property. Even if it is accepted that it is only an improper Malayalam usage adopted in the document, still it can be seen that Ext. A2 contains recitals that the possession was given to the settlee and that she also parted with her absolute right over the property in favour of the plaintiff subject to her right of residence in the house situated in the property. It is so manifest that it can never be construed otherwise. Since the right of residence alone was retained by the settlor and there was divestiture of title to the property in favour of the settlee, the contention that Ext. A2 is to be construed only as a will cannot be accepted at all. The fact that right of residence was reserved in favour of the executed/settler is not a reason to hold that the document was to take effect only on the death of the donor/settler.

6. It was held by this court in Alvi V. Aminakutty and others- 1985 KLJ 22 thus:

“it is settled law that where the deed of gift itself recited that the donor has given possession of the properties gifted to the done, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively tha