For a gift to be valid under Hindu law and the Transfer of Property Act, acceptance must occur during the donor's lifetime, a presumption can be rebutted by evidence to the contrary.

JUDGMENT

Hariprasad, J.

The substantial questions of law raised in this appeal are the following:

“(i) Whether the learned Single Judge is right in holding that Ext.A1 document of gift has not come into effect;

(ii) Whether the learned Single Judge is right in holding that Ext.A1 gift was not accepted by the donees;

(iii) Whether the view of the learned Single Judge on the nature and effect of the gift is in consonance with the principles of Hindu Law of gift and the provisions in Section 123 of the Transfer of Property Act;

(iv) Whether delivery of the gift deed to one of the donees, who is the guardian of other AFA No.60 of 1994 2 donees, and the recitals in the gift deed as also the evidence in the case, do not prove that the gift had taken effect.”

2. Original appellant was the 2nd plaintiff in O.S.No.18 of 1981 before the Sub Court, Kozhikode. The suit is one for partition of the plaint schedule property. Sole appellant died pending this appeal and therefore, the appellants 2 to 8 are impleaded as the legal representatives.

3. The suit was filed by two female children of deceased Kuttikkattil Imbichikandan and deceased Mundichi. They had another daughter by name Unniperi. She died long before the suit. Their only son Arumughan was the defendant in the suit.

4. Plaint schedule property belonged in jenm to Penthrayil Kannan Kammal. It was demised on kanom right in favour of Kuttikkattil Imbichikandan, father of the plaintiffs and defendant, as per a registered document No.1802 of 1907 (Ext.B38). Imbichikandan gifted all his rights over the plaint schedule property in favour of the plaintiffs, Unniperi and their mother Mundichi. Unniperi died as a child. The gift deed is marked as Ext.A1. As per the recitals in Ext.A1, the plaint schedule property gifted by Imbichikandan was intended to be enjoyed by the plaintiffs as well as their mother Mundichi. Mundichi died on 30.01.1980. Defendant Arumughan was the posthumous son of Imbichikandan. Unniperi's right in AFA No.60 of 1994 3 the property, on her death, devolved on the plaintiffs, defendant and their mother Mundichi. Mundichi's right over the plaint schedule property was gifted in favour of the defendant as per Ext.B2. The plaintiffs and defendant were enjoying the plaint schedule property and they were sharing the usufructs therefrom till the death of Mundichi. Thereafter the defendant started taking the usufructs exclusively. Therefore, the plaintiffs demanded partition by sending a lawyer notice (Ext.A3). Ext.A4 is the reply notice caused to be sent by the defendant raising false contentions. Thereafter, Ext.A5 notice was again sent by the plaintiffs correcting mistakes and rectifying the deficiencies in Ext.A3. As the defendant was not amenable for partition, the suit was filed.

5. The defendant filed a written statement contending that the suit is not maintainable. Devolution of interest shown in the plaint is incorrect. Plaintiffs have no right over the property for claiming a partition. Ext.A1 gift deed had not come into effect. Nothing transpired in terms of Ext.A1. Ext.A1 is only a sham document. It did not confer any right on the plaintiffs or on deceased sister Unniperi. After the death of Imbichikandan, the property devolved on the defendant and on his mother as guardian of the defendant. Thereafter the defendant and Mundichi renewed the kanom right in the year 1941 as per Ext.B1. Mundichi gifted all her rights over the property in favour of the defendant as per Ext.A2. Thenceforth, the AFA No.60 of 1994 4 defendant is the sole owner of the property. If at all there was any right devolved on the plaintiffs by virtue of Ext.A1, it was terminated by execution of Ext.B1.

6. Imbichikandan died in the year 1920. Unniperi died at the age of five. Plaintiffs were married away long before 1941. By operation of the customary law, the plaintiffs acquired no right over the property after their marriage and it exclusively belonged to the defendant and his mother. Since she had executed