IMPORTANT POINTS
Section 3 of Transfer of Property Act gives rise a constructive notice to the beneficiaries regarding the document of transfer of immovable property in their favour. Then comes the question what is the purpose of the constructive notice incorporated under Section 3 of the Transfer of Property Act, would it not operate against a gift in the matter of 'acceptance' when the document executed and registered in accordance with the mandate under Section 17 of the Registration Act and what would be the purpose of 'deemed notice' under Section 3 of Transfer of Property Act. There cannot be any mental element exercising acceptance of a gift unless there is 'actual knowledge' perceivable by sense regarding the execution and registration of the gift.

JUDGMENT :

1. A suit for partition ended in a preliminary decree both in the Trial Court and in the First Appellate Court. The 5th defendant came up with this appeal against the said decree and judgment of both the courts below.

2. Admittedly, the property in issue originally belonged to the father of plaintiff and the defendants. According to the plaintiff, it was devolved upon them equally after the demise of father. Per contra the 5th defendant contended that, no such property was left out by the father, as it was given to him on an earlier occasion by executing Ext.B1 settlement deed. Both the courts below found that Ext.B1 document was not accepted by the 5th defendant and a preliminary decree for partition was granted with respect to the plaint schedule property as the one left out by the deceased father, against which the 5th defendant came up with this appeal.

3. The following questions came up for consideration :

(1) What actually amounts to a settlement deed and whether it would constitute a gift as defined under Section 122 of the Transfer of Property Act?

(2) Whether it is necessary to call for and examine one of the attesting witnesses to prove the due execution of a gift/a settlement deed, unless the same is denied by the person by whom it purported to have been executed?

(3) Whether the proviso to Section 68 of the Indian Evidence Act would be available to all persons who are interested in denying the execution of a document and whether the decision drawn by a single Bench of this Court in Rudrayani Devaki (Died) and others v. A. Rajeswari and others (2018 (4) KHC 134) is bad in law in view of the Division Bench decision rendered in Kannan Nambiar v. Narayani Amma and Others (1984 KHC 284)?

(4) When there is a document of alienation whether a suit for partition without seeking to set aside the same would be maintainable?

(5) Whether a gift which was accepted after the death of donor would be void in the eye of law? Is there any difference in the legal position if the donee dies before acceptance of the gift?

(6) What would be the legal position when there is a deemed notice of execution of the gift by the operation of Section 3 of the Transfer of Property Act and whether the deemed notice under Section 3 of Transfer of Property Act would amount to acceptance of a gift as mandated under Section 122 of Transfer of Property Act?

4. It is a suit for partition simplicitor without seeking to set aside Ext.B1 settlement deed, a registered deed of settlement alleged to have been executed by the father. It was submitted by the learned counsel for the respondent/plaintiff that it is not at all necessary to seek for setting aside the document or to declare their title over the property and a simple suit for partition would lie. Inter alia it was also contended that DW2, the 5th defendant while in the box had admitted that he came to know about the execution of Ext.B1gift deed after the death of the donor, his father, as such there cannot be any acceptance of the gift during the life time of the donor and the gift would stand as void by virtue of Section 122 of the Transfer of Property Act and hence there is no necessity for setting aside a void document and a mere suit for partition would stand. It was also contended that in order to prove due execution of a settlement deed, examination of one of the attesting witnesses cannot be avoided and relied on the decision rendered by a Division Bench of this Court in Kannan Nambiar v. Narayani Amma and Others (1984 KHC 284) and submitted that the decision drawn in Rudrayani Devaki (Died) and others v. A. Rajeswari and others (2018 (4) KHC 134) rendered by a Single Bench of this court did not reflect the correct legal position and hence requires reconsideration.

5. Before going into the said question, it is necessary to have some understanding with respect to what actually amounts to Ext.B1 document styled as a settlement deed and whether it would constitute a gift of immovable property as de