VELAYUDHAN NAIR v. MISHA NAIR and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 27TH DAY OF AUGUST 2013/5TH BHADRA, 1935** ## **RSA.No. 54 of 2007 (F)** **-----------------------** **AGAINST THE JUDGMENT IN AS 44/2001 of II ADDL.DISTRICT COURT, KOLLAM DATED 12-04-2006** **AGAINST THE JUDGMENT IN OS 1071/1996 of PRL.MUNSIFF COURT, KOLLAM DATED 22-12-2000** ## **APPELLANT(S)/APPELLANT/APPELLANT/DEFENDANT::** **--------------------------------------------------------------------------------------** **VELAYUDHAN NAIR,S/O. GOPINATHAN PILLAI AGED 44 YEARS, NOW RESIDING AT VIJAYA BHAVAN (PALLIYAZHIKOM), NJARACKAL CHERRY, THRIKKADAVOOR PERINAD, KOLLAM.** **BY ADVS.SRI.SHABU SREEDHARAN SRI.AVANEESH KOYIKKARA SRI.TONY THOMAS (INCHIPARAMBIL)** ## **RESPONDENT(S)/RESPONDENTS/PLAINTIFFS::** **----------------------------------------------------------------------------** **1. MISHA NAIR,D/O.JAYAKUMARI PILLAI AGED 25 YEARS, RESIDING AT SIVAKRISHNA NIVAS MEDICAL COLLEGE POST, THIRUVANANTHAPURAM.** **2. JAYAKUMARI PILLAI, D/O.GOPINATHAN PILLAI AGED 43, RESIDING AT SIVAKRISHNA NIVAS MEDICAL COLLEGE POST, THIRUVANANTHAPURAM.** **3. KAMALAKUMARI PILLAI,** - **D/O. GOPINATHAN PILLAI, AGED 47, KAMALA BHAVAN NJARACKAL CHERRY, THRIKKADAVOOR, PERINAD KOLLAM.** **R2-R3 BY ADVS. SRI.R.S.KALKURA SRI.M.S.KALESH SMT.A.V.PRIYA SRI.GENS GEORGE ELAVINAMANNIL** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.S.A. No. 54 of 2007 -----------------------------------------Dated this the 27[th] day of August, 2013 ## **J U D G M E N T** The defendant in a suit for declaration of title and for consequential permanent prohibitory injunction is the appellant. The 1[st] plaintiff is the daughter of the 2[nd] plaintiff born to her through her deceased husband Mohan. Mohan died on 15.1.1983. Plaintiffs 2 and 3 are his sisters. Their suit was decreed by the trial court. The appeal filed against the same was dismissed. The Second Appeal filed by the appellant was dismissed by this court as per judgment dated 13.7.2007. The defendant filed appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court, as per judgment in Civil Appeal No. 1947/2013, set aside the judgment of this court and this court has been directed to decide the questions of law formulated in this case. ## **R.S.A. No. 54/2007** **-2-** 2. The following questions of law were formulated in this case. - (i) Whether a Deed purported to be gift deed can be validly executed with a condition that the absolute right over the property covered by the deed shall be vested with the donor and it shall be transferred to the donee only on death of the donor and in such case whether such a Deed can convey valid absolute title to the donee before the death of the donor? - (ii) Whether a Deed purported to be gift deed, got executed as a result of fraud and undue influence on the donor is sustainable in law? ## **R.S.A. No. 54/2007** **-3-** 3. Before the trial court the 2[nd] plaintiff was examined as PW1 and Exhibits A1 to A7 were marked. The defendant (appellant) got himself examined as DW1 and another witness was examined as DW2 and Exhibits B1 to B6 were also marked. 4. Ext. A2 is the gift deed dated 2.8.1986, executed by the defendant in favour of the 1[st] plaintiff. The plaint schedule property measures 25 cents. As on the date of the suit, the 1[st] plaintiff was a minor aged 16 years and was represented by her mother – the 2[nd] plaintiff. The plaint schedule property admittedly belonged to the defendant. He executed Ext.A2 – the gift deed in favour of the 1[st] plaintiff, providing right of residence to plaintiffs 2 and 3. The gift deed was executed reserving the life interest of the donor over the said property. ## **R.S.A. No. 54/2007** **-4-** 5. It was contended by the plaintiff that the gift was executed by the 2[nd] plaintiff on behalf of the 1[st] plaintiff and in token of the same, the original gift deed was handed over by the defendant to the 2[nd] plaintiff. Pursuant thereto the plaint schedule property was taken possession by the plaintiffs. It was contended that the plaintiffs and the defendant were residing together in the very same building and that mutation was effected in the name of the 1[st] plaintiff. According to the plaintiff there was divestiture of title _in praesenti_ . But the defendant executed a cancellation deed – Ext.A5 dated 16.9.1996. Plaintiffs contend that Ext.A5 – cancellation deed is invalid since the defendant had no right to revoke the gift. 6. The relevant portion of the recital in Ext.A2 reads thus: “ÉGßµÕØñáÕµµZ §KáÎáÄW ÆÞÈÎÞÏß ØVAÞV µøÕᢠÉFÞÏJá ÈßµáÄßÏᢠÈßæa çÉøßW **-5-** ## **R.S.A. No. 54/2007** µâGß ÄàVJᢠçÉøáÎÞùß ÉGÏ¢ É߿ߺîᢠçÕI çÆÙmBZ æºÏñᢠæµGß¿¢ ©ÉçÏÞ·æM¿ßJßÏᢠ®æa µÞÜçÖ×¢ ÎáÄW Èà ØVÕîÞÕµÞÖοAß èµÕÖ¢ ÕºîÈáÍÕߺîᢠ®çKÏíAᢠØVÕîØbÞÄdLcÎÞÏß È¿KáæµÞUáKÄßÈá ¾ÞX ÉâVHÎÞÏß ØNÄߺîßøßAáKá.åÉGßµÕØñáÕßÜáU ¥ÈáÍÕ¢ ÎáÝáÕÈᢠ®æa ¼àÕßĵÞÜ¢ Õæø ®ÈßÏíAá ÉâVHÎÞÏß ®¿áJÈáÍÕßAáKÄßÈᢠÉGßµÕØñáÕßÜáU æµGß¿JßW ¾ÞÈᢠ®æa ØçÙÞÆøßµ{ÞÏ µÎܵáÎÞøß ÉßUÏᢠÈßæa ÎÞÄÞÕÞÏ ¼ÏµáÎÞøß ÉßUÏᢠ§çMÞZ ÄÞÎØߺîáÕøáKÄáçÉÞæÜ Äá¿VKá ¾B{âæ¿ ¼àÕßĵܢ Õæø ØVÕîØbÞÄdLcÎÞÏß ÄÞÎØßAáKÄßÈᢠ¥ÕµÞÖÎáUÄᢠ®æa µÞÜçÖ×¢ ÉGßµÕØñáÕßW ®ÈßAáU ¥ÈáÍÕÞÕµÞÖÕᢠÄÞÎØÞÕµÞÖÕᢠ¿ß µÎܵáÎøß ÉßUÏáç¿Ïᢠ¼ÏµáÎÞøß ÉßUÏáç¿ÏᢠµÞÜçÖ×¢ ¿ß æµGß¿JßW ¥ÕVAáU ÄÞÎØÞÕµÞÖÕᢠÈßÈAáÄæK ÉâVHÎÞÏß ¥¿A¢ ØßÆíÇßAáKÄᢠ” ¦µáKá. Therefore, it can be seen that the plaint schedule properties were given to the donee on the date of the gift deed itself and the donee was permitted to effect mutation ## **R.S.A. No. 54/2007** **-6-** and to pay the land tax and the tax payable to the Panchayath and also to effect improvements in the property and also to use the building situated in the property. The second part is to the effect that after the death of the donor, the donee will possess and enjoy the property absolutely, for which, the donor had given consent absolutely. The further recital is to the effect that during the life time of the donor he alone has the right to take income from the property and that in the house situated in the property, the donor and his sister – Kamalakumari Pillai and the donee's mother – Jayakumari Pillai will continue to reside during their life time having right of residence therein. It is also recited that after the death of the donor, the right of enjoyment of the property and the right of residence reserved with the donor will also pass on to the donee. It was recited that after the death of Kamalakumari Pillai and Jayakumari Pillai, mentioned above, their right of residence ## **R.S.A. No. 54/2007** **-7-** in the house situated in that property will also vest absolutely in the donee. 7. It is vehemently argued by the learned counsel for the appellant that there was no divestiture of title of the property mentioned in Ext.A2 in favour of the 1[st] plaintiff. It is argued that the recital in Ext.A2 would only indicate that the right to enjoy the property and the right to reside in the building situated therein will remain with the defendant during his life time and also during the life time of his wife and sisters – Jayakumari Pillai and Kamalakumari Pillai and that the 1[st] plaintiff was to get the rights with the full freedom only after the death of the defendant – the executant of Ext.A2. Therefore, according to the appellant, the title to the property was retained with the executant himself and so it cannot be said that there was divestiture of title. It is further argued that the cumulative effect of the ## **R.S.A. No. 54/2007** **-8-** recitals in Ext.A2 that the right of residence in the house situated in the property was retained with the executant and the right to take income from the property was also retained by him would make it indubitably clear that possession of the property was also retained by the executant himself and if so, it cannot be said that the 1[st] plaintiff was put in possession of the property. Therefore, it is vehemently argued by the learned counsel for the appellant that Ext.A2 can never be treated as a gift deed. According to the appellant, the recitals do reveal the characteristics of a Will and not a gift. 8. The crucial question for consideration is whether there was divestiture of title over the property shown in Ext.A2 _in praesenti_ or whether title was to pass on to the donee only on the death of the executant. In this connection, the learned counsel for the respondents would ## **R.S.A. No. 54/2007** **-9-** submit that the 1[st] part of the recitals in Ext.A2, which have been extracted above would clearly show that the plaint schedule property was given possession to the donee on the date of execution of the document itself and that the property was given as gift. The other recital was to the effect that mutation of the property was to be effected and the tax payable to the Government and Panchayat was to be paid by the donee. These aspects would clearly show that the donee was given possession of the property. The right of residence and the right to take income from the property was retained with the donor himself but that is permissible in the case of a gift. 9. Ext.A5 is the cancellation deed dated 16-09-1996 i.e. cancellation deed was executed after 10 years of Ext. A2. The learned counsel for the respondent would submit that on going through Ext.A5 it can be seen that Ext.A2 was ## **R.S.A. No. 54/2007** **-10-** intended as a gift deed. The recitals in Ext.A5 would show the reason for executing the gift deed at that point of time. It was stated therein that he had love and affection towards his sister's daughter the donee Nisha Nair and that he had absolute faith and belief that there would be love and affection for the donee towards the donor, the executant of Ext.A5. But after the gift deed was obtained there was change in the attitude of the donee but, however, he somehow or other managed to suffer the same but when it was felt that the attitude of the donee towards him was intolerable and she had no love and affection towards her uncle (the donor) he thought of executing the cancellation deed. Of course, it was thereafter stated in Ext.A5 that the gift deed had not come into force and not acted upon. But it can only be seen that gift deed was actually executed by the defendant/appellant in favour of his niece/the plaintiff out of his love and affection towards the donee. ## **R.S.A. No. 54/2007** **-11-** The contention that Ext. A5 is to be treated as a Will is found to be totally unacceptable. The subsequent event namely that the donee did not reciprocate the love and affection he expected of from the donee and so he thought of executing the cancellation deed cannot be a reason to sustain the plea raised by the appellant that the gift deed was not accepted or acted upon. 10. The gift is not an onerous one and so the presumption should be that the gift was accepted. At the time of execution of Ext.A2 the donee was the minor and so it would be sufficient if the gift was accepted by her mother who is the sister of the doner. Ext.A4 is the land tax receipt dated 23-08-1996 which would show that the entire land revenue for 10 years was paid by the donee as on that date. The learned counsel for the appellant would submit that had Ext. A2 been treated and was accepted as a gift **-12-** ## **R.S.A. No. 54/2007** then certainly to evidence acceptance of the same the donee or her guardian would have paid the land revenue immediately after Ext.A2 but the fact that the land revenue was not paid for nearly 10 years would clearly show that the gift was not accepted. But it is also worthwhile to note that the donor also did not pay the land revenue for the period subsequent to Ext.A2 dated 2-8-1986. Though some receipts are seen produced, those receipts would show that it does not pertain to the property covered by Ext.A2. On going through the receipts it is clear that the donor was in possession of other items of properties also. The payment of the land revenue is not in respect of the property covered by Ext.A2, the extent of which is 25 cents. It is pointed out by the learned counsel for the appellants that the appellant had paid the building tax in respect of the building situated in the plaint schedule property. Since the right of residence was given to plaintiffs 3 and 4 and since ## **R.S.A. No. 54/2007** **-13-** the right to take income was retained with the donor, the fact that the building tax was paid by the person in possession or occupation of the house will not prove that the gift was not accepted or acted upon by the donee. The fact that the original gift deed itself was produced by the plaintiff would show that it was received and accepted by the mother of the donee in token of acceptance of the gift. 11. Ext.A6, a letter admittedly sent by the appellant to his mother has also been relied upon by the plaintiff in support of his plea that the gift was accepted and acted upon. A reading of Ext. A6 letter would show that a document was executed earlier by the donor. This letter is dated 13-08-1994. It was stated that the donor/appellant was at Nagpur and that he will leave Nagpur and reside in a rented house there and that he will not disturb his mother or other persons. It is true that a perusal of the letter would ## **R.S.A. No. 54/2007** **-14-** show that the appellant was not taken care of by his mother and other near relatives. That may be a reason to show sympathy towards the donor- the uncle of the respondent who parted with his property measuring 25 cents of land and a building situated thereon in favour of his niece who did not reciprocate showing love and affection towards the donor. But that may not be a reason to say that the gift was not accepted nor can it be said that Ext.A2 is not a gift. The recital in Ext.A2 would clearly show that there was divestiture of title _in preasenti._ The fact that the right of residence was reserved in favour of plaintiffs 3 and 4, the sisters of the donor and the further reservation made in favour of the donor himself to take income from the property during his life time are not inconsistent with a gift. There is no case for the appellant that there is any revocation clause in Ext.A2. The absence of such a clause would demolish the case of the appellant that Ext.A2 is only ## **R.S.A. No. 54/2007** **-15-** a Will. The irrevocability which can be gathered or discerned from Ext.A2 would scuttle the plea raised by the appellant that Ext.A2 is only a Will. A reading of Ext.A2 would make it manifestly clear that the document in question is a gift and not a Will. If as a matter of fact that Ext.A2 was only a Will, there was no necessity to execute a document like Ext.A5. 12. The learned counsel for the appellant has argued with vehemence that Ext.A2 would show that the grantee gets absolute right only on the death of plaintiffs 3 and 4 to whom the right of residence was given and on the death of the donor and so there was no vesting of title in the donee. I cannot accede to that submission. But for the fact that the right of residence as well as the right to take income was reserved with the donor and the two other persons mentioned earlier, in all other respects there was ## **R.S.A. No. 54/2007** **-16-** divestiture of title in favour of the donee. What can be gathered from Ext.A2 is that on the happening of the two events namely; that on the death of Kamalakumari Pillai and Jayakumari Pillai and also on the death of the donor, the donee would get those rights also. That does not mean that there was no vesting of title in the donee. There was vesting of title in favour of the donee as on the date of Ext.A2 itself since the first operative part of Ext.A2 would make it indubitably clear that from the date of Ext.A2 itself, the donee was given right over the property . In other words, on the happening of the events namely; the death of the two sisters and the death of the donor their limited rights also would pass on to the donee and thus the donee's right would be absolute. That does not mean that it is a contingent gift. ## **R.S.A. No. 54/2007** **-17-** 13. The decision in **Rev. Fr. M.S. Poulose - 1995 Suppl. 2 SCC 294** has absolutely no application to the facts of this case since in that case the executants had reserved the right to alienate the property and, therefore, it was found that the executants had not divested themselves of the title to the property completely . Therefore, the argument vehemently advanced by the learned counsel for the appellants relying on that decisions is found to be devoid of any merit. 14. The decision in **A Sreenivasa Pai and Another v. Saraswathi Ammal - (1985) 4 SCC 85** is also not applicable to the facts of this case. In that case there was a bequest of land to a widow followed by gift of the same to her son absolutely after her life time. On a proper interpretation of those documents, it was held that even though the bequest to the widow appears to be in absolute ## **R.S.A. No. 54/2007** **-18-** terms, she got only life interest and her son got interest in remainder. This decision has also been relied upon by the learned counsel for the appellant in support of his submission that in construing a document, the fundamental rule to be adopted is to ascertain the intention from the words employed in it. The surrounding circumstances may be considered for the purpose of ascertaining the intended meaning of those words, specially when there is some ambiguity in the words used in the document. This decision is of no help to resolve the dispute in this case. The recitals in Ext.A2 are so certain and clear that it speaks of a gift deed as per which there was divestiture of title _in praesenti._ The argument to the contrary advanced by the learned counsel for the appellant is found to be unmerited. 15. The decision in **Baby Ammal v. Rajan Asari - (1997) 2 SCC 636** has been very much relied upon by the ## **R.S.A. No. 54/2007** **-19-** learned counsel for the appellant. But the facts dealt with therein are entirely different. In that case the relevant portion of the document was : _“All the right to enjoy the property and the right to reside in the building will remain with me during my lifetime and Rajan Asari will derive the said rights with full freedom after my lifetime”._ It was held by the Apex Court that a reading of the above would indicate that the executant had retained title to the property during her life time as full owner with all rights. Section 122 of the Transfer of Property Act defines gift executed in the manner indicated thereunder divesting the title to and possession of the donor in the property and vesting the same in the donee under Sec. 123. 16. There is no dispute regarding the fact that there must be proof of delivery and acceptance of possession of the gifted property. Here acceptance of gift was proved by ## **R.S.A. No. 54/2007** **-20-** accepting the original gift deed. The donee produced that original deed. Though land revenue was paid about 10 years after the date of Ext.A2, the evidence and circumstances would show that the owner did not pay land revenue during the relevant time. So far as the case on hand is concerned, though the appellant had retained with him the right to take income from the property and also reserved the right of residence in favour of the two sisters, a reading of the remaining part of the document would make it clear that there was divestiture of title. 17. The decision in **Narmadaben Mangalal Thakker v. Pranjivandas Maganlal Thakker and Others - (1997) 2 SCC 255** has also been referred to here. That judgment was pressed into service by the learned counsel for the appellant in support of his submission that a document has to be read as a whole harmoniously giving ## **R.S.A. No. 54/2007** **-21-** effect to all the clauses contained in the document which manifest the intention of the person who executed the document. 18. The learned counsel for the appellant would submit that the subsequent cancellation of the gift deed clearly indicates the intention of the donor that the gift was not complete. 19. It is trite law that when the gift is not onerous only slight evidence is sufficient to prove its acceptance. If a proper gift was made, if the donee does not comply with the directions that would not entitle the donor to cancel the gift. Even the handing over of the gift deed would indicate acceptance of gift by the donee. In **Balakrishnan v. Kamalam - 2004 (1) KLT 623** the Supreme Court observed that non delivery of possession, non-acceptance of any right of ownership over it and failure ## **R.S.A. No. 54/2007** **-22-** by the donee on attaining majority in getting his name mutated are not circumstances negativing the presumption of acceptance by the minor-donee. In the aforesaid case, it was a gift of property by the mother to the minor son. The fact that the donor retained possession of the property for the purpose of taking income from the said property and the further fact that the right of residence was provided to plaintiffs 3 and 4 are not inconsistent with a case of gift nor can it be said that the gift is a conditional one. See also the decisions of this Court in **Vannathivalappil Janaki and Others v. Puthiyapurayil Paru AIR 1986 Kerala 110; Asokan v. Lakshmikutty - 2008 (1) KLT 54 and C. Vijayalekshmi v. K.Gopalakrishna Menon - 2010 (4) ILR Kerala 485** . 20. **Narmadaben Manganlal Thakker v. Pranjivandas Manganlal Thakker and Others** - ( **1997) 2 SCC 255** has also been relied upon by the learned **-23-** ## **R.S.A. No. 54/2007** counsel for the appellant. That was a case where it could be seen from the recitals of the gift deed that Motilal Gopalji the donor gifted the property to the respondent therein. It was found to be a conditional gift. There was no recital regarding acceptance nor was there any evidence in proof of acceptance. It was also found that the donor had specifically stated that the property would remain in his possession till he was alive and thereafter the gifted property would become the property of the respondent therein. The donor was entitled to collect mesne profits in respect of the existing rooms throughout his life. Thus, it was found that the gift deed conferred only limited right upon the respondent-donee and the gift was to become operative after the death of the donor and he was entitled to have the right to transfer the property absolutely by way of gift. That was a clear case where there was no divestiture of title to the donee _in praesenti, w_ hereas the title and **-24-** ## **R.S.A. No. 54/2007** possession continued to be with the donor. The facts stated therein are entirely different from the facts of this case. 21. The learned counsel has also relied upon the Supreme Court decision in **Mathai Samuel v. Eapen Eapen - 2012 (4) KLT 743 (SC)** in support of his submission that the words which are used in a document have to be understood in its normal and natural meaning with reference to the language employed therein. The primary rule of construction of a document is to find the intention of the executants, which must be found in the words used in the document. It was held in that decision that in the case of a Will, the crucial circumstance is the existence of a provision disposing or distributing the property of the testator to take effect on his death. On the other hand, in the case of a gift, the provision becomes operative immediately and a transfer _in praesenti_ is **-25-** ## **R.S.A. No. 54/2007** intended and comes into effect. So far as the case on hand is concerned, there is no clause entitling the executant to revoke the deed. The interest in the property was intended to pass on to the donee _in praesenti_ but reserved certain rights with the donor which is not inconsistent with a gift. It was held in the aforesaid decision that the only reliable test for the purpose of finding out whether the document constitutes a Will or a gift is to find out as to what exactly is the disposition which the document has made, whether it has transferred any interest _in praesenti_ in favour of the settlees or it intended to transfer interest in favour of the settlees only on the death of the settlors. So far as Ext.A2 is concerned, it is indubitably clear that there was divestiture of title _in praesenti_ though the right to take income from the property and the right of residence in favour of the plaintiffs 3 and 4 were reserved in Ext.A 2. In the aforesaid decision itself it was made clear that ## **R.S.A. No. 54/2007** **-26-** subsequent events or conduct of parties after the execution of the document shall not be taken into consideration in interpreting a document especially when there is no ambiguity in the language of the document . But the court may refer to those events also only to reinforce the fact that there is no ambiguity in the language employed in the document. The decision in **Mathai Samuel (Supra)** cannot helps the appellant to contend that Ext.A2 is not a gift deed or was not accepted or acted upon. 22. The decision of the Apex Court in **Asokan** v. **Lakshmikutty and Others** [2008 (1) KHC 193] has also been relied upon by the learned counsel for the respondents in support of his submission that gift being not onerous and the deed having registered and as the gift was accepted by the mother on behalf of the minor, the gift is complete and so, subsequent conduct of the donee cannot be a ground for **-27-** ## **R.S.A. No. 54/2007** revocation of the gift. It was held in that decision :- _“We must, however, notice that the Transfer of Property Act does not prescribe any particular mode of acceptance. It is the circumstances attending to the transaction which may be relevant for determining the question. There may be various means to prove acceptance of a gift. The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance.”_ 23. In this case, the original gift deed was handed over to the mother of the minor in token of acceptance of gift by the mother. Hence, there can be no difficulty to hold that the gift was accepted and acted upon by the donee. It was also held by this Court in **Sankaran Poulu and Others** v. **Sundari Vijayamma and Another** [2013 (3) KHC 93] : **-28-** ## **R.S.A. No. 54/2007** _“It is trite law that there can be a gift in favour of a minor and the minor himself/herself can also accept the gift especially a non-onerous gift, and even if the minor was not accepting the gift, his/her parents can accept the gift on behalf of the minor. If the donor himself is the parent of the minor, the possession of the property by the parent on behalf of the minor would be sufficient to hold that the gift was accepted. Admittedly, it is not an onerous gift and as such the contention that the gift was not accepted by the donee, cannot be accepted.”_ 24. It is also the settled position of law that if the right to take usufructs is reserved with the donor it is open to the donor even to lease out the property to others for taking income so as to get the income therefrom during the life time of the donor. Therefore, if in such a case the donor leases out the gifted property that is not an indication **-29-** ## **R.S.A. No. 54/2007** to hold that there was no divestiture of title by the donor in favour of the donee. Such reservations are common in settlement/gift deeds and does not affect or cut down the right and title transferred in favour of the donee. The handing over of the original gift deed to the mother of the minor-donee and the payment of land revenue before the cancellation of the gift deed are sufficient to prove that there was acceptance of the gift . 25. To crown it all there is sufficient indications in Ext.A5, the cancellation deed itself and also in Ext.A6 letter sent by the donor appellant to his mother. Therefore, the contention that the gift was not accepted is also devoid of any merit. 26. I have no hesitation to hold that Ext.A2 is a gift deed executed by the appellant in favour of the respondent herein. I have also no hesitation to hold that when the gift **-30-** ## **R.S.A. No. 54/2007** was executed since the respondent was a minor the gift was accepted on her behalf by her mother. Ext.A2 gift is not an onerous one. There is evidence to show the acceptance of the same. Therefore, Ext.A5 cancellation deed is invalid and non est. The courts below have rightly held in favour of the respondent. All the substantial questions of law raised by the appellant are answered against him. In the result, this R.S.A. is dismissed. The parties are directed to suffer their respective costs. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj/ani/jvt