2015 Supreme(Mad) 2552

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. MALA, J.
Beryl Dhinakaran – Appellant
Vs.
D.Albert – Respondent
A.S.No.711 of 2008
Decided On : 29.07.2015

Headnote:

Indian Evidence Act – Sections 68 and 69 – Partition – Plaintiff and the defendants 2 to 4 and 7 are the children of late S.M.Deivasigamani. – The first defendant is the widow of late Dr.S.M.Deivasigamani. – The said late Dr.S.M.Deivasigamani married one Mrs.Alice and the plaintiff and defendants 2 and 7 were born through her. – She died in the year 1942. – Thereafter, on the advice of the maternal grandmother of the children, the said late Dr.S.M.Deivasigamani married the first defendant as his second wife and defendants 3 and 4 were born through her. – The said Dr.S.M.Deivasigamani was a Doctor by Profession and was employed as Health Officer and later was promoted as District Health Officer. – The first defendant gave step motherly treatment to the children born through the first wife, namely, Mrs.Alice and they were not given proper education. – Per contra, the defendants 3 and 4, who were born through the first defendant were given better education. – The said late Dr.S.M.Deivasigamani purchased item No.1 of A Schedule properties with the financial assistance of contribution of funds from plaintiffs maternal side and by disposal of jewels of Mrs.Alice. – Thereafter, with the due share of income from family properties given by the father of late Dr.S.M.Deivasigamani, he constructed the building in item No.1 of A Schedule properties. – Later, he purchased item No.2 of A Schedule properties out of his share from the family property and shops were built up. During his lifetime, some shops were sold and two shops were still available. – During the period of service, the said late Dr.S.M.Deivasigamani developed illicit intimacy with one Kanchana @ Ammani, who worked as Personal Assistant to him in the Office. – The 7th defendant as a young boy questioned the activities of his father and prevented his father from giving away the properties to her. – As the said Dr.S.M.Deivasigamani become old, he want to give the properties to all his children. – He was already affected by eye sight due to cataract in both eyes. He died intestate on 12.11.1994. – when the 7th defendant requested for equitable distribution of the estate among the heirs but the defendants 1, 3 and 4 were evading and did not give proper reply. Hence, the plaintiff issued lawyers notice dated 12.01.1995 demanding partition of all properties. – The second defendant sent a reply on 03.02.1995 containing false allegations. – The plaintiff sent a rejoinder dated 15.02.1995 setting out the true facts. – The defendants 1 to 4 made a claim as if that item No.1 of A Schedule properties was settled in favour of the third defendant under three settlement deeds. – Further, the defendants 1, 2 and 4 collusively with the object of defeating the plaintiffs right, brought about two sale deeds and sold the item No.2 of A Schedule properties as if they were the only legal heirs of the said Dr.S.M.Deivasigamani. – The defendants 5 and 6 are the purchasers of item No.2 of A Schedule properties. – Hence, the plaintiff filed the suit for partition and pray for the decree. – At the time of filing the suit, the 7th defendant joined the plaintiff and filed the suit. – Subsequently he was transposed as 7th defendant. – Held, Court is in respectful agreement with the statement of law contained in the above passage. – There is indeed no provision in law that ownership in property cannot be gifted without transfer of possession of such property. – As noticed earlier, Section 123 does not make the delivery of possession of the gifted property essential for validity of a gift. – It is true that the attention of this Court does not appear to have been drawn to the earlier decision rendered in Naramadaben Maganlal Thakker (supra) where this Court had on a reading of the recital of the gift deed and the cancellation deed held that the gift was not complete. – This Court had in that case found that the done had not accepted the gift thereby making the gift incomplete. – This Court, further, held that the donor cancelled the gift within a month of the gift and subsequently executed a Will in favour of the appellant on a proper construction of the deed and the deed cancelling the same this Court held that the gift in favour of the done was conditional and that there was no acceptance of the same by the done. – The gift deed conferred limited right upon the done and was to become operative after the death of the done. – First Appeal Partly Allowed.