The main legal point established in the judgment is the requirement for a valid gift under the Transfer of Property Act, emphasizing the elements of voluntary transfer, acceptance during the donor's lifetime, and execution by a registered document attested by two witnesses.

D. Sreedevi, J.

This appeal is directed against the decree and judgment in A.S.No.46/84 of District Court, Alappuzha, which was filed against the decree and judgment in O.S. No.62/83 of Additional Munsiff’s Court, Cherthala. The plaintiff before the trial court is the appellant.

2. The plaintiff filed the above suit for partition. According to the plaintiff, the plaint schedule properties belonged to Karthyayani Amma Kunjikutty Amma, the mother of the plaintiff and the first defendant. The second defendant is the son of her predeceased daughter Nandini Amma and the third defendant is the widow and defendants 4 and 5 are the children of her predeceased son Ramachandran Nair. Kunjikutty Amma died on 26.11.1982. On her death the properties devolved on the plaintiff and the defendants. The plaintiff and defendant 1 and 2 are entitled to 1/4 share each and others are entitled to one share jointly.

3. The first defendant resisted the suit contending that Kunjikutty Amma gifted the plaint schedule items, except item No. 3 to the first defendant under Ext. B1 gift deed. Item No. 3 was given to the plaintiff. As the first defendant is in possession and enjoyment of plaint schedule items except item No. 3, the suit for partition is not maintainable. The second defendant supporting the plaint claim claimed his share.

4. The trial court, after taking evidence, passed a preliminary decree for partition allowing the plaintiff to partition her 1/4 share over the property. Aggrieved by the said decree and judgment the first defendant has filed A.S. 46/84 before the District Court, Alappuzha. The learned District Judge set aside the finding of the trial court regarding the plaint schedule items 1 to 3 and the suit was dismissed in respect of plaint schedule items other than item No. 3. Aggrieved by the said decree and judgment, this appeal is filed by the plaintiff.

5. The substantial question of law involved in this case is the following:

Is not the finding of the court below that the plaintiff had accepted Ext. B1 gift during the life time of Kunjikutty Amma wrong in law, especially in view of the fact that due attestation of the same has not been proved?

6. The only question to be decided in this appeal is whether the court below was right in coming to the conclusion that Ext. B1 gift deed was executed and has been accepted by the donee? Admittedly, the plaint schedule properties belonged to Kunjikutty Amma as per the partition deed of the year 1969 evidenced by Ext.A1. Ext.B1 is the settlement deed alleged to have been executed by Kunjikutty Amma in favour of the plaintiff and the first defendant. S. 122 of the Transfer of Property Act defines gift. It reads as follows:

“Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.”

S.123 deals with the manner of execution of the gift deed. If the purpose is for making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. By reading Ss.122 and 123, it can be seen that in order to execute a valid gift, the following elements are to be proved: (1) It must be a voluntary transfer. (2) The gift must be accepted by the donor during the lifetime of the donee. (3) The gift must be effected by a registered document and it must be attested by two attestors. If all the above elements are fulfilled, there will be a valid gift, if not it will have no legal consequence.

7. The definite case of the plaintiff is that Ext. B1 gift deed is a fraudulent document and that it has not been accepted by the donee till the date of death of Kunjikutty Amma. The plaintiff would state that she was not aware of the gift deed till the written statement