The main legal point established in the judgment is that a gift deed, once accepted and acted upon by the donees, cannot be revoked by the donor in a capricious manner, and the transfer by gift is binding on the donor and donee.

M.M. Pareed Pillay, J.

1. O. S.273 of 1978 was filed by the appellant in S. A. 582 of 1987 for declaration of title and possession over the plaint schedule properties and also for injunction on the allegation that though he executed a gift deed in favour of the 5th defendant and his brother Sreedharan on 13-6-1960 it was intended only as a benami transaction and has not come into effect. First defendant is the wife of Sreedharan and defendants 2 to 4 are his children. 5th defendant is the sister of the appellant. Appellant revoked Ext. A1 gift deed by a cancellation deed dated 3-11-1978. Contention of the plaintiff was negatived by the Trial Court and the lower appellate Court and the Courts held that he is not entitled to get any declaration and injunction sought in the suit.

2. O. S.34 of 1979 was filed by the legal heirs of Sreedharan, brother of the appellant for partition to get their one half right in the properties. That suit was decreed by the Trial Court and it has been confirmed by the lower appellate Court.

3. The position of the parties as they stood in O.S. 273 of 1978 is followed in the discussion hereunder. Plaintiff mainly contended that though he executed Ext. A1 gift deed in favour of his brother Sreedharan and sister Janaki Gouri (5th defendant) the same was not accepted by the donees and as the gift deed was not acted upon he continued to be in possession of the properties and that the defendants do not have any manner of right in it. Plaintiff further contended that he executed the gift deed only to save the properties from his deserted wife who was bent upon instituting some suits against him. 5th defendant filed written statement supporting the plaintiff. As against the contention of the plaintiff, defendants 1 to 4 maintained that their predecessor Sreedharan and 5th defendant obtained possession of the properties and on Sreedharan's death on 10-2-1978 they as his legal heirs obtained right in the properties and that the 5th defendant has colluded with the plaintiff to defeat their rights

4. Learned counsel for the plaintiff pointed out that the Courts below failed to consider the evidence that the gift deed was not accepted by Sreedharan and 5th defendant and as the 5th defendant herself has taken up the stand that Ext. A1 gift deed was not acted upon plaintiff's suit ought to have been decreed and suit filed by defendants 1 to 4 ought to have been dismissed. Counsel submitted that in view of the lack of evidence of the acceptance of the gift it can never be held that possession of the properties passed on to the donees and so there cannot be any presumptive proof for Ext. A1 to have been acted upon and accepted by the donees.

5. Admittedly Ext. A1 was executed on 13-6-1960. In Ext. A1 it is stated that plaintiff's brother Sreedharan and the 5th defendant helped him financially. Specific mention is made in Ext. A1 with regard to the possession given to the donees. It is also mentioned that the prior documents with regard to the properties were handed over to the donees. Plaintiff's right to challenge the gift deed is expressly barred as per recitals in Ext. A1. Ext. A2 cancellation deed was executed more than 18 years after Ext. A1. Recitals in Ext. A2 cancellation deed do not agree with the averments in the plaint.

6. Contention of the plaintiff that possession of the properties did not pass on to the donees was not accepted by the Courts below. Ext. A8 (j) dated 25-10-1961 discloses that though the patta of the properties stands in the name of the plaintiff tax was paid by the 5th defendant and others. This document is immediately after Ext. A1. Ext. A8 (b) dated 2-3-1978 reveals that patta stands in the name of the 5th defendant and others and tax was paid by them. While Ext. A1 mentions patta numbers of properties as 2475, 2514 and 5259, Ext. A8 (b) mentions new patta cumbers as 3340, 1382 and 5831. This is conclusive evidence to hold that mutation was effected pursuant to Ext. A1 in favour of th