The central legal point established in the judgment is the requirement of acceptance for a valid gift under the Transfer of Property Act, and the significance of possession and enjoyment of the gifted property in determining the validity of the gift.

1. By consent the Second Appeal has been taken up for disposal.

2. The Defendants 2 to 4, who have lost before the Courts below are the Appellants herein. At the time of admitting the Second Appeal the following substantial questions of law have been framed:

“(1) Whether the Suit for partition without seeking declaration to set aside the instruments Exs.B3 & B10 is maintainable in law?

(2) Whether the suit is barred by limitation under Article 59 of the Limitation Act, when the Respondents have not challenged Exs. B3 & B18 within 3 years of their execution ?

(3) Whether Ex.A1 can be considered as a valid Gift Deed as per Section 122 of the Transfer of Property Act?”

3. The Suit has been filed by the Plaintiffs, seeking partition and separate possession of 2/3rd share in the suit property based upon Ex.A-1 Settlement Deed executed by their grandfather. The Defendant No.1 is the brother of the Plaintiffs.

4. In the Written Statement filed by the Defendants 2 to 4, who have purchased half share of the suit property by registered Sale Deed under Ex.B1 stated that the Gift Deed executed by the grandfather of the Plaintiffs and 1st Defendant under Ex.A1 has not been given effect to as there is no evidence of acceptance. The donor of the gift, namely the grandfather of the Plaintiffs and 1st Defendant cancelled the Gift Deed within 20 days from the date on which the Gift Deed has been executed in the name of the Plaintiffs and 1st Defendant in which the Second Plaintiff and the 1st Defendant were represented by their mother, as they were minors. In pursuant to the Cancellation Deed, under Ex,B3, another Gift Deed has been executed in favour of the mother of the Plaintiffs. Thereafter, she has mortgaged the property which has been redeemed by the Appellants. The Appellants have also paid the decree amount in the suit filed for recovery against the mother of the Plaintiffs. Therefore, the Appellants contended that they have purchased the property for value as Ex.A1 has not been given effect to. The Courts below making reliance upon Section 126 of the Transfer of Property Act decreed the Suit as prayed for by holding that after execution of Ex.A1, the donor did not have the legal right to cancel the same. Challenging the said decision rendered by the Courts below, the present Second Appeal has been filed.

5. The learned Counsel for the Appellants submitted that the Courts below have misconstrued the provisions under Section 126 of the Transfer of Property Act, which is not applicable to the case on hand and what is applicable is Section 122 & Section 123 of the Transfer of Property Act. Admittedly, there is no material on record to show that the gift has been accepted by the Plaintiffs and the 1st Defendant. The 2nd Plaintiff and the 1st Defendant were minors, when the Gift Deed was executed and they were represented by their mother. Thereafter, the cancellation was passed by giving cogent reason followed by another Gift Deed in favour of the mother of the Plaintiffs and 1st Defendant. Absolutely, there is no evidence to show the acceptance by her on behalf of the Plaintiffs and the 1st Defendant. It is also to be seen that the Second Plaintiff and 1st Defendant being the minors, the mother is the best person to say whether the gift has been given effect to or not. In such a case, the subsequent Gift Deed executed in favour of the mother of the Plaintiffs and 1st Defendant is enough to prove the fact that the gift has not been given effect to. In view of the findings given by the Courts below regarding possession, the Courts below ought to have dismissed the Suit. The Suit filed claiming possession has no basis. The Plaintiffs while relying upon the Gift Deed, will have to establish that the same has been given effect to by acceptance.

6. The learned Counsel for the Appellants made reliance upon the following the judgments:

(1) Anandi Devi v. Mohan Lal, AIR 1932 All. 444;

(2) Papathi Ammal v. Doraiswamy Naicker, 1935 (48) LW