The court affirmed that a Gift Deed is valid upon acceptance, requiring only slight evidence, and the burden of proof lies on the party contesting possession.

J U D G M E N T

Sathish Ninan, J.

The original petition filed by the wife against the husband, for declaration of title over the plaint schedule property under Ext.A1 Gift Deed, and for declaration that Ext.B1 Cancellation Deed is null and void, was decreed by the Family Court. The husband is in appeal. For the sake of convenience, the parties are hereinafter referred to as “the husband” and “the wife”.

2. On 18.02.2010, the husband executed Ext.A1 Gift Deed in respect of the plaint schedule property in favour of the wife. The parties fell apart. On 20.12.2010, the husband executed Ext.B1 Cancellation Deed purporting to cancel Ext.A1 gift. Thereupon the wife has filed the present Original Petition seeking declaration of her title under Ext.A1 Gift Deed and contending that Ext.B1 cancellation deed is null and void.

3. In the written statement filed by the husband it was contended that Ext.A1 was not accepted or acted upon. It was contended that Ext.A1 was executed for the purpose of availing a Bank loan. A counter claim was also raised seeking a declaration that Ext.A1 is a sham document.

4. On the materials, the Family Court held that Ext.A1 gift is a valid document and that it was accepted by the donee-the wife. It was held that the gift having taken effect, Ext.B1 cancellation executed subsequently is of no avail.

5. We have heard learned counsel Sri.P.B.

Subramoniam on behalf of the appellant-husband and learned Senior Counsel Sri.T.Krishnanunni on behalf of the respondent-wife.

6. The point that arises for determination in this appeal are: -

(i) Is the finding of the Family Court that Ext.A1 gift has taken effect, supported by the evidence on record?

(ii) Is the frame of the suit bad for non-incorporation of a prayer for recovery of possession?

7. Law is well settled that, with regard to acceptance of gift only very slight evidence is necessary. Even the mere knowledge of the donee of a gift in his favour, is sufficient to find acceptance of the gift, since a man would only be too eager to promote his own interests (See: K.Balakrishnan v. K. Kamalam (2004) 1 SCC 581, Asokan v. Lakshmikutty and Others (2007) 13 SCC 210), Sulekha Devi v. Ajith Kumar 2015 SCC OnLine Ker 27053, Kuttian Padmini v. Nelliyullaparambath Mathu & Ors. (2014) 1 KLT (SN 82) 58, Bini Anilkumar v. Bhaskaran 2009(3) KLT 753, Narayani Bhanumathi and Ors. v. Karthyayani Lelitha Bhai 1973 KLT 961).

8. Ext.A1 is the original Gift Deed. It has been produced by the wife from her custody. The husband does not have a case that the wife was unaware of the gift. In the light of the law as noticed above, it could only be held that Ext.A1 gift was accepted by the donee-wife.

There is no serious attempt by the appellant to contend to the contrary.

9. The main argument of the learned counsel for the appellant is that, the wife having failed to prove her possession over the property, was bound to sue for recovery of possession. In the light of the proviso to Section 34 of the Specific Relief Act , a mere suit for declaration could not be maintained. The learned counsel relied on the judgments inVenkataraja v. Vidyane Doureradjaperumal [(2014) 14 Supreme Court Cases 502], Arulmigu Chokkanatha Swamy Koil Trust v. Chandran [AIR 2017 SC(W) 1034], to support his contention. The learned Senior Counsel for the respondent-wife would on the other hand contend that, it is the specific case of the wife that pursuant to the gift she is in possession of the property. The husband who contended to the contrary ought to have proved otherwise.

10. Ext.A1 acknowledges handing over of the possession of the property to the donee. It recites thus:-

The recitals are unambiguous regarding handing over of possession. Therefore, the presumption is that possession was handed over to the donee. Of course, it is a rebuttable presumption and it is for the person who contends otherwise to prove that the recital is not correct and that possession has not been handed over. The burden is on such person who alleges