IMPORTANT POINT
The main legal point established in the judgment is the significance of acceptance in the transfer of property through a gift, as well as the legal position regarding the revocation of a gift deed.

JUDGMENT :

K. BABU, J.

1. This regular second appeal is directed against the judgment dated 03.12.2002 in A.S. No. 70 of 1999 passed by the Subordinate Judge's Court, Thalassery. The appeal suit arose from O.S. No. 623 of 1996 on the file of the Munsiff’s Court, Kannur.

2. The appellants are the defendants in the suit. The respondents are the plaintiffs.

3. The plaintiffs instituted the original suit for a permanent prohibitory injunction and declaration in respect of the plaint schedule property. The trial court dismissed the suit.

4. The plaintiffs challenged the decree and judgment before the first appellate court (Subordinate Judge's Court, Thalassery). The first appellate court allowed the appeal and decreed the suit, declaring the title and possession of plaintiff No. 1 over the plaint schedule property and granting a consequential injunction in his favour.

Pleadings

5. Plaintiffs pleaded the following:

Plaintiff No. 2 and defendant No. 1 are the grandson and daughter respectively of one late Kunhimatha. She had owned the plaint schedule property which is 21.25 cents of land and a building therein. Kunhimatha gifted out the dwelling house and 17 cents of land to her daughter Radha, defendant No. 1. Radha did not act upon the gift, signifying its acceptance. Kunhimatha cancelled the gift she executed in favour of Radha and subsequently assigned the entire property to plaintiff No. 2. He assigned 8 cents of land to one Mr. M.V. Balan, who later reconveyed the property. Plaintiff No. 2 thereafter assigned the plaint property to plaintiff No. 1, a stranger. The defendants made an attempt to trespass upon the plaint schedule property and occupy the dwelling house therein. They claim title over the plaint schedule property. Plaintiff No. 1 is entitled to declaration of his title over the property and consequential reliefs.

6. Defendant No. 1 pleaded the following:

Defendant No. 1 is the absolute owner in possession of the plaint schedule property. Late Kunhimatha, her mother gifted 17 cents of land and the dwelling house therein in her favour on 16.09.1991. She duly accepted the gift and acted upon it during the lifetime of Kunhimatha. Kunhimatha had reserved her right to reside in the house and to take usufructs from the land during her lifetime. Plaintiff No. 2, the grandson of Kunhimatha illegally created some sham documents and attempted to misuse the same with intent to trespass upon the plaint schedule property. Kunhimatha had released her right to take usufructs from the property on 04.06.1996. Defendant No. 1 has, therefore, absolute right and possession over the property.

Evidence

7. Plaintiff No. 2 gave evidence as PW-1. PWs 2 and 3 were examined on the side of the plaintiffs and Exhibits A1 to A18 series were marked on their side. DWs 1 and 2 were examined on the side of the defendants and Exhibits B1 to B10 were marked. Exhibits C1 to C5 were marked as court exhibits. Exhibit X1 was marked as third-party exhibit.

8. The trial court decreed the suit based on the following findings:

(i) The execution of the gift deed (Exhibit B1) has been admitted by the donor and the parties to the suit

(ii) The acceptance of the gift is established based on the following circumstances:

(a) The original of the gift deed (Exhibit B1) was produced by respondent No. 1, the donee.

(b) No circumstances were brought out to hold that the donee would have declined to accept the gift.

(c) Balan, to whom plaintiff No. 2 had assigned part of the property, had reconveyed the same to him, which perhaps indicated that he came to know of the illegality of the acts of plaintiff No. 2.

(d) Kunhimatha herself has executed Exhibit B2 deed, releasing her entire rights in favour of defendant No. 1.

9. The first appellate court reversed the decree and judgment passed by the trial court based on the following findings:

(A) The production of the gift deed itself might not be sufficient to indicate the acceptance of the gift in the lifetime of the donor in the absence of eviden