1. The true character of a document described, stamped and registered as a settlement deed is what this court is mainly called upon to decide. Is it a gift or a will ?

2. The suit was for declaration of title to and recovery of possession of plaint schedule item No.1 and for partition of plaint schedule items 2 to 5. The trial court granted the prayer for partition of items 2 to 5, the correctness of which is not challenged in this appeal; only the decree granting declaration of title to and recovery of possession of item No.1 is questioned by the 4th defendant, who claims title to it and who is in its possession.

3. Plaint schedule item No.1, which has an extent of 60 cents, along with some other properties belonged to one Narayanan and his wife, Bhargavi Amma. Defendants 1 and 2 are their son and daughter. They had another son, Vishvambaran, who predeceased them. The 1st plaintiff is his widow. Plaintiffs 2 and 3 and the 3rd defendant are their children. In 1985 Narayanan and Bhargavi Amma (hereinafter called settlors) executed and registered Ext.A1 deed which is described as a settlement deed. The properties described in A and B schedules in the document were allotted to the 1st and 2nd defendants. The property described in 'C' schedule was allotted to plaintiffs 2 and 3 and the 3rd defendant (hereinafter called minor donees) who were minors at that time. This property is the plaint schedule item No.1.

4. It is alleged that the plaintiffs "learnt that defendants 1 and 2 have created some documents with respect to plaint schedule properties" and they "have inducted the 4th defendant into plaint schedule item No.1", which is the cause of action pleaded in the plaint.

5. In the written statement of the 4th defendant certain facts are disclosed. In 1986 the settlors executed Ext.B10 deed by which they purported to cancel Ext.A1 settlement deed. In 1988 Bhargavi Amma, one of the settlors and to whom plaint schedule item No.1 belonged, sold 30 cents out of the 60 cents to the husband of the 2nd defendant by sale deed No.3165 of 1988, who along with the 2nd defendant sold it to the 4th defendant by Ext.B9 sale deed of 1990. After the death of Bhargavi Amma on 31.12.1989 the other settlor, Narayanan, and the 1st defendant sold the remaining extent of 30 cents to the 4th defendant by Ext.B8 sale deed of 1991. The 4th defendant thus claims title to the plaint schedule item No.1.

6. In the replication the plaintiffs assert that since the settlement had come into effect, the cancellation deed executed by the donors, and the sale deeds executed in favour of the husband of the 2nd defendant and in favour of the 4th defendant are void.

7. When Ext.A1 settlement deed was executed, the minor donees along with their mother were residing at a distant place. Neither the minor donees, nor their mother, the 1st plaintiff, got custody of the deed. Mutation was not effected in favour of the minor donees, nor did they get actual possession of the property, nor were they entitled to take income. (The evidence of the 1st plaintiff who was examined as PW1 that she took income from the property after the execution of Ext.A1 settlement deed is false).

8. Relying on the decisions of the Supreme Court in K. Balakrishnan vs. K. Kamalam (AIR 2004 SC 1257) and Asokan Vs. Lakshmikutty (2007 (13) SCC 210) the learned Sub Judge held that since the donees were minors at the relevant time, there is a presumption of acceptance of gift by them. He also took notice of the fact that in the witness box the 1st defendant (DW1) claimed to have taken possession of the property allotted to him and got mutation effected in his favour, and of the testimony of DW2 that the 2nd defendant also had taken possession of the property allotted to her by Ext.A1 settlement deed.

9. Though in the course of the proceedings in the trial court defendants 5 to 7 were impleaded, no consequential amendment was made in the plaint. It has come to the notice of this Court that this h