## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN**
**FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932**
**RSA.No. 625 of 2003()**
**--------------------AS.474/1990 of III ADDL. DISTRICT COURT, TRIVANDRUM OS.115/1986 of PRL.MUNSIFF COURT,NEDUMANGAD**
**....................**
## **APPELLANTS/DEFENDANTS/RESPONDENTS(S):**
**--------------------**
**1.SASIDHARAN, S/O.KRISHNAN, PULIMOOTTU VEEDU, NEAR KARAKULAM PANCHAYATH OFFICE, KARAKULAM MURI, KARAKULAM VILLAGE.**
## **2.RADHESWARI, DO. DO.**
**BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SRI.M.P.MADHAVANKUTTY**
**RESPONDENT(S)/APPELLANT/ADDL.RESPONDENTS/PLAINTIFF/ RESPONDENTS:**
**---------------**
**1.JANAKY PADMAKSHY, KIZHAKKUMKARA KUZHIVILAKATHU VEEDU, IRINCHAYAM, VETTAMPALLY MURI, ANAD VILLAGE.**
**2.VASANTHA,D/O.RAJAMMA, MEEMOODU, PARAYIL VEEDU, IRINCHAYAM P.O., NEDUMANGAD. (DELETED)**
**3.SURENDRAN, DO. DO.**
## **4.RETNAKARAN, DO. DO.**
**5.THULASEEDHARAN, DO. DO. (DELETED)**
**6.KAVIRAJ, DO. DO.**
## **7.GIRIJA KUMARI, DO. DO.**
**8.VIJAYAMMA,D/O.JANAKI, KEDANGUVILAKATHU VEEDU, THITTAYATHU KONAM, NANNATTUKAVU, POTHENCODE P.O., NEDUMANGAD.**
## **R.S.A.NO.625/2003**
## **9. SIVANANDAN,S/O.KRISHNAN,**
**KUZHIVILAKATHU VEEDU, IRINCHAYAM P.O., NEDUMANGAD.**
## **10.SUJATHA,D/O.JANAKY, DO. DO.**
## **11.VISALAKSHY, D/O.JANAKY, DO. (DIED)**
## **12.SIVARAJAN, S/O.KRISHNAN, DO. DO.**
**13.MURALEEDHARAN,S/O.KRISHNAN, KUZHIVILAKATHU VEEDU, IRINCHAYAM P.O., NEDUMANGAD.**
**THE NAME OF THE 5TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 17.6.2010 IN I.A.NO.1341/2010.**
**THE NAMES OF THE RESPONDENTS 2 AND 11 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 20.9.2010 IN I.A.NO.2392/2010.**
**ADV. SRI.K.R.NANDAKUMAR FOR R1**
**SRI.B.RAJEEV KOYICKAL FOR R1**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **ORDER IN I.A.NO.449/2003 IN R.S.A.NO.625/2003**
**DISMISSED.**
**19.11.2010**
**SD/- S.S.SATHEESACHANDRAN, JUDGE**
**//TRUE COPY//**
**P.A. TO JUDGE**
## **S.S.SATHEESACHANDRAN, J. ------------------------------R.S.A.NO.625 OF 2003 ----------------------------------Dated this the 19[th] day of November, 2010**
## **J U D G M E N T**
Defendants 1 and 2 are the appellants. The 1[st] respondent/plaintiff filed a suit for injunction which was later amended seeking declaration of her title over the suit property, having an extent of 33 cents. She claimed title and possession over that property under Ext.A1 gift deed executed in her favour by her mother, who was later impleaded in the suit as additional 3[rd] defendant. Pending the first appeal, the 3[rd] defendant had passed away and her legal heirs have been recorded. Claim of the plaintiff over the suit property was resisted by the appellants/defendants 1 and 2 contending that Ext.A1 gift has not come into effect. They further contended that the additional 3[rd] defendant, the mother had revoked that gift under Ext.B1 deed in 1985. On the same day of the registration of Ext.B1 revocation deed, the additional 3[rd] defendant had executed a sale
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deed in respect of that property in favour of the 2[nd] defendant, wife of the 1[st] defendant, and thereby, she has become the title holder with possession of the property, was the challenge set up by the defendants to resist the suit claim. In view of the rival title claimed over the suit property by the above defendants, the plaintiff amended the suit seeking a decree for declaration of her title as well. The trial court, on the materials placed and also examining the circumstances presented, non-suited the plaintiff mainly for the reason that she had not carried out the mutation over the suit property in her favour after Ext.A1 deed. That was considered as a material circumstance by the trial court to conclude that the gift has not been accepted, and not taken effect. Challenging the dismissal of the suit, plaintiff preferred an appeal. The lower appellate court, after re-appreciating the materials and taking note that 40 days after the execution of Ext.A1 gift deed in favour of the plaintiff in respect of 10 cents covered by the first item under that deed having an extent of 43 cents, the additional 3[rd] defendant, the executant of Ext.A1, and the plaintiff, both of them together, executed a gift deed in
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favour of one Vasantha, grand daughter of the 3[rd] defendant, whose mother Rajamma had predeceased her. Ext.A3 gift deed executed in favour of Vasantha as aforesaid, which disclosed that the plaintiff had knowledge of the gift executed by the 3[rd] defendant in her favour, it was held by the lower appellate court, was sufficient to prove that there was acceptance of Ext.A1 gift. In that view of the matter, reversing the dismissal of the suit rendered by the trial court, the lower appellate court granted a decree declaring the title of the plaintiff and also passed an injunction against defendants 1 and 2 from interfering with her possession and enjoyment over the suit property. Feeling aggrieved, the defendants 1 and 2 have preferred this appeal.
2. I heard the learned counsel for the appellants. The lower appellate court egregiously erred in interfering with the decree of dismissal rendered by the trial court and the reliance placed on Ext.A3 gift deed executed jointly by the plaintiff and additional 3[rd] defendant to conclude that there was acceptance of the gift, was not proper and correct where the other materials
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tendered in the case indicated that the 3[rd] defendant even after executing Ext.A1 gift deed continued to exercise her right over the suit property as its absolute owner, is the submission of the learned counsel for the appellants. It is further contended that Ext.B1 revocation deed and also Ext.B2 sale deed clearly demonstrate that Ext.A1 gift deed has not come into effect as contended by the defendants.
3. Perusing the materials tendered in the case, I find the lower appellate court was fully justified in placing reliance on Ext.A3 gift deed executed jointly by the plaintiff and additional 3[rd] defendant to reach a conclusion that there was acceptance of Ext.A1 gift deed by the plaintiff. Ext.A1 gift deed dealt with three items of properties, having extent 43 cents, 14 cents and 17 cents. Suit property forms part of 43 cents, of which, 10 cents had been later gifted in favour of Vasantha, the daughter of Rajamma, who predeceased the additional 3[rd] defendant. That gift deed was jointly executed by the plaintiff and the additional 3[rd] defendant, speaks eloquently that Ext.A1 gift deed had been
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accepted by the plaintiff. So far as the other two items covered by Ext.A1 gift deed, relating to the 14 cents and 17 cents, even the defendants have no challenge to the title of the plaintiff is another material circumstance indicating in unmistakable terms that their challenge that Ext.A1 gift deed has not come into effect deserve to be taken note of only for its rejection. In fact, in the case of a gift, so long as it is not an onerous gift, even knowledge of the gift by the donee is itself sufficient to hold that he/she had accepted the gift, the benefit of which has been given in her favour. In **Narayani Bhanumathi v. Lelitha Bhai (1973 KLT 961),** it has been held that it is only normal to assume that the donee, in whose favour a gift was made, would have accepted that benefit very well by having knowledge of that gift since normally, any person would be only too willing to promote his own interests. Mere silence may sometimes be indicative of acceptance, provided, the donee knew of the gift. That being the settled position of law with respect to the acceptance of a gift, the conclusion formed by the lower appellate court placing reliance on Ext.A3 gift deed to hold that
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## **R.S.A.NO.625/2003**
the plaintiff has accepted Ext.A1 gift deed, is unassailable.
There is no merit in the appeal, and it is dismissed.
## **S.S.SATHEESACHANDRAN JUDGE**
prp
## **S.S.SATHEESACHANDRAN, J.**
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**R.S.A.NO.625 OF 2003**
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**J U D G M E N T**
**19[th] day of November, 2010**
**R.S.A.NO.625/2003 8**
