Kerala High Court
Radhamani Amma vs Vimala Kumari on 25 June, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN
THURSDAY, THE 3RD DAY OF AUGUST 2017/12TH SRAVANA, 1939
RSA.No.1148 of 2005 ( )
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(AGAINST THE JUDGMENT & DECREE
IN AS 14/2001 of SUB COURT, PALA DATED 25-06-2005)
&
(AGAINST THE JUDGMENT & DECREE
IN OS 104/1998 of MUNSIFF COURT, PALA DATED 31-10-2000)
APPELLANTS IN R.S.A./APPELLANTS A.S./PLAINTIFFS IN O.S.:
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1. RADHAMANI AMMA, W/O.RAMACHANDRAN NAIR,
AGED 70, KALARICKAL HOUSE,
PANTHATHALA KARA, MEENACHIL VILLAGE.
2. SURESH KUMAR, S/O.RAMACHANDRAN NAIR,
AGED 43, KALARICKAL HOUSE,
PANTHATHALA KARA, MEENACHIL VILLAGE.
BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.HARISH R. MENON
SRI.P.B.KRISHNAN
SRI.R.SURAJ KUMAR
SRI.K.JAYAKUMAR (SR.)
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
RESPONDENTIN R.S.A./DEFENDANT IN A.S./DEFENDANT IN O.S.:
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VIMALA KUMARI, D/O.MADHAVI AMMA,
AGED 49, ALANTHATHUNDATHIL HOUSE,
ILEMPAZHANOOR KARA, KADACKKAL VILLAGE,
KOTTARAKKARA TALUK,, KOLLAM DISTRICT.
BY ADV. SRI.RAJEEV V.KURUP
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ss
K. RAMAKRISHNAN, J. [C.R.]
.......................................
R.S.A.No.1148 of 2005
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Dated this the 3rd day of August, 2017.
JUDGMENT
The plaintiffs in OS.No.104/1998 on the file of the Munsiff Court, Pala are the appellants herein. The suit is one filed by the plaintiffs for declaration of title of the first plaintiff over the plaint schedule property and possession over the same and prohibitory injunction restraining the defendant from alienating the property or interfering with the peaceful possession and enjoyment of the property by the plaintiffs with following allegations:
The plaint schedule property along with other properties was in the joint possession of the first plaintiff, defendant, their brother Sreedharan Nair and mother Madaviamma. As per Ext.A1 partition deed No.1712/1956 of Sub Registrar's Office Meenachil, they partitioned the property and eastern 19 cents of plaint schedule property was set apart to Sreedharan Nair and western 19 cents to the defendant. In 1960, Sreedharan Nair assigned his right in the property allotted to him as per Ext.A1 partition deed to their father Parameswaran Nair as per Sale Deed No.2374/1960 and he has been in possession of the property even after the said partition deed. On 12.12.1962 Parameswaran Nair executed Ext.A2 settlement deed No.3470/1962 of Sub Registrar's Office, Meenachil in respect of 19 cents of property obtained by R.S.A.No.1148 of 2005 2 him from Sreedharan Nair as per Sale deed No.2374/1960 in favour of the defendant. But it had not come into effect and the same has no legal sanctity and it was ab initio void. As per the said document, the defendant did not get any right. Till the death of Parameswaran Nair, their father, he was in possession and enjoyment of the same. He died in the year 1990. In the year 1971, their father Prameswaran Nair and the defendant together put the plaint schedule property in the possession of the first plaintiff and this arrangement was made because the first plaintiff was given only a meager share of the entire property.
Thereafter the first plaintiff has been in possession and enjoyment of the plaint schedule property as her own property. There was a house in the plaint schedule property in which the first plaintiff was residing and later it was demolished. She had made cultivation in the property. There were rubber trees planted by her after cutting and removing the old trees in the property and these were known to the defendant and she never objected to the same. The second plaintiff is the son of the first plaintiff and they are together in joint possession of the plaint schedule property.
2. The defendant is residing in Kollam district. She used to visit plaintiffs once in two or three years. During January 1998, the first plaintiff requested the defendant to transfer her nominal right in the property to the first plaintiff, but she R.S.A.No.1148 of 2005 3 demanded Rs.15,000/- as consideration for which the first plaintiff was not amenable. The right if any of the defendant has been lost on account of adverse possession and limitation and so she is entitled to get declaration of her right, ownership and possession over the plaint schedule property and also for prohibitory injunction restraining the defendant from trespassing into the plaint schedule property or committing any act of waste. Hence the suit.
3. The defendant entered appearance and filed written statement contending as follows:
The suit is not maintainable. The settlement deed No.3470/1962 executed by her father Parameswaran Nair in her favour in respect of 19 cents is valid and she had accepted the settlement and she has been in possession of the property. The remaining 19 cents was allotted to her as per the partition deed and she has been in possession and enjoyment of the same. As per the partition deed, right to take income from the property and right of residence in the house was reserved in favour of their mother Madhaviamma and as per the settlement deed, their father was given the right to take income during his life time and after his death by the mother till her death and they have been taking income from the property as per the terms of the partition deed and settlement deed. The mutation was effected in favour of the defendant. She used to visit the plaint schedule property and R.S.A.No.1148 of 2005 4 entrust amount for payment of tax to the first plaintiff, who is her eldest sister and she was remitting tax for the property on her behalf. During 1998 when the defendant went to the property for tapping the rubber trees planted by her, the second plaintiff obstructed the same. Till 1998 she was taking income from the property and there was no occasion for her to entrust the property to the first plaintiff as claimed by her. The allegation that she was allotted only meagre share in the property and that prompted the father to give the plaint schedule property along with the defendant to her is not correct. The plaint schedule property was never entrusted to the first plaintiff. She was never in possession and enjoyment of the same adverse to the interest of the defendant as claimed by her. The plaintiffs are not entitled to get declaration of ownership and possession and also injunction as prayed for. There was no valid cause of action for them to file the suit and she prayed for dismissal of the suit.
4. On the basis of the pleadings, following issues were framed by the trial court for consideration:
i. Whether the settlement deed No.3470/1962 is valid? ii. Whether the plaintiffs are entitled to declaration of the right of ownership over the plaint schedule property?
iii. Whether the plaintiffs are entitled to injunction order as prayed for?
iv. Relief and costs?
R.S.A.No.1148 of 2005 5
5. In order to prove the case of the plaintiffs, PWs 1 and 2 were examined and Exts.A1 to A3 were marked on their side. The defendant was examined as Dw1 and Exts.B1 and C1 were marked on her side. After considering the evidence on record, the trial court found that the settlement deed executed by Parameswaran Nair in favour of the defendant in respect of 19 cents of land is valid and it was accepted by the defendant and it has come into force and the recital regarding right of revocation in favour of the donor is not valid as there was no mutual agreement between the settlor and settlee in respect of the same as the settlee was a minor at that time and entrustment of the property by the defendant and their father with the first plaintiff during 1971 is not established by the plaintiffs and there is no evidence to show that the right of the defendant if any is lost by adverse possession and there is no evidence to show that the plaintiffs are in possession of the property as claimed by them and as such, they are not entitled to get declaration and injunction as prayed for and dismissed the suit.
6. Dissatisfied with the same, the defendant filed AS.No.14/2001 before Sub Court, Pala and the learned Sub Judge, after hearing both sides and considering the legal aspects, by the impugned judgment, dismissed the appeal confirming the decree and judgment passed by the trial court dismissing the suit. R.S.A.No.1148 of 2005 6 Aggrieved by the same, the present second appeal has been filed by the appellants/dissatisfied plaintiffs before the court below.
7. While admitting the second appeal, substantial questions of law raised as C, F and G in the Memorandum of Second Appeal had been accepted by this Court and the same has been formulated as the substantial questions of law arose for consideration which reads as follows:
i. Is not the settlement deed invalid on account of the two life estates created thereunder and retention of possession by the Donor?
ii. Can Section 126 of the Transfer of Property Act be invoked by a stranger to the disputed gift?
iii. Is Section 126 of the Transfer of Property Act applicable to the case if a minor donee?
8. Heard Sri. S.V. Balakrishna Iyer, learned senior counsel appearing for the appellants and Sri.Rajeev V. Kurup, learned counsel appearing for the respondent.
9. Learned senior counsel appearing for the appellants submitted that the courts below have not properly appreciated the evidence and the legal principles arose on the facts of the case. There is no evidence adduced on the side of the defendant to prove that she had accepted the settlement in respect of 19 cents of land covered by Ext.A2 settlement deed and mutation was effected. Ext.A3 series and Ext.B1 will only go to show that only after the death of the father that tax has been paid. That shows that R.S.A.No.1148 of 2005 7 mutation was not effected and the settlement deed has not come into effect and the settler himself was in possession of the property. Further no right in presenti was given to the settlee and the right of enjoyment was postponed creating successive life interest in favour of the father and mother and as such, settlement is not valid. He had also argued that the settler had reserved the right to revoke the gift unconditionally and as per section 126 of the Transfer of Property Act, such gift is void and no right had flown from the settlement deed in favour of the defendant. This aspect has not been properly considered and understood by the courts below. He had also argued that the fact that the plaintiffs were in possession of the property along with the parents and the defendant is residing at Kollam and she never interfered with the right of possession of the plaintiffs since 1971 is not disputed and as such, the courts below ought to have held that the right if any of the defendant is lost by adverse possession and limitation and they are entitled to get declaration and injunction as prayed for and decree the suit.
10. On the other hand, learned counsel appearing for the respondent argued that the settler during his life time had not challenged the settlement deed and he had not filed any suit for revocation of the same. Further a reading of the settlement deed will go to show that the right of the property has been vested in the R.S.A.No.1148 of 2005 8 settlee and thereafter any condition imposed against the interest of the settlee and enjoyment of the property is not valid and it is void to that extent. So the right of revocation if any retained by the settler after divesting his right in the property is void and has no legal effect. Further the plaintiffs have failed to prove the enturstment of the property as claimed by them by the defendant and her father and no ingredients of adverse possession has been pleaded or proved. The documents produced by the plaintiffs themselves will go to show that tax of the property has been paid in the name of the defendant and that shows that the property was mutated and the settlement deed has come into effect and the settlement is valid. Being a minor, any condition imposed prejudicial to her interest is not valid and is void and on that ground also the condition in the settlement deed has no effect as regards the right of the defendant and these aspects were properly considered by the courts below and rightly held that the plaintiffs are not entitled to get any relief and dismissed the suit and the appeal respectively. There is no substantial question of law arises for consideration and the concurrent findings of the court below on facts do not call for any interference.
11. It is an admitted fact that the plaint schedule property along with other properties originally belonged to the first plaintiff, the defendant, their brother deceased Sreedharan Nair and mother R.S.A.No.1148 of 2005 9 Madhaviamma and they partitioned the property and the eastern 19 cents was alloted to the share of Sreedharan Nair and western 19 cents was alloted to the share of the defendant.
12. It is also not in dispute that father Parameswaran Nair obtained the property allotted to the share of Sreedharan by a sale deed of the year 1960 and he executed Ext.A2 settlement deed in favour of the defendant in respect of the property obtained by him from his son Sreedharan Nair. It is also not in dispute that in Ext.A2, there is a condition that during the life time of father, he will have the right to take income and after his death mother will have the right to take income and there is also a clause in the settlement deed that the settlor reserved his right to revoke this settlement at any time.
13. The case of the plaintiffs in the plaint were three fold:
i. That though a settlement deed was executed by the father, it was not accepted by the settlee and she did not derive any right and it is a sham document and not come into force.
ii. That the document by itself is void ab initio. iii. That the entire plaint schedule property was entrusted to first plaintiff by her father and the defendant in 1971 and she has been in possession and enjoyment of the same and thereby the right of the defendant if any is lost by adverse possession. On these basis she prayed for a declaration that she is the owner of the property and for injunction.
14. As regards the first contention is concerned that at the R.S.A.No.1148 of 2005 10 time when the settlement deed was executed, the settlee/ defendant was a minor. So there is no question of any immediate acceptance of the gift by the settlee arises. Further by virtue of Ext.A2 document, the right of the settler has been divested in favour of the settlee but the enjoyment alone is postponed as life interest has been created to take income during the life time of the father and mother. It is settled law that in the case of a minor, there is no question of any direct acceptance and there is always a presumption that the donee accepted the gift.
15. In the decision reported in Balakrishnan v. Kamalam [2004 (1) KLT 623 (SC)], the Apex court has held that, "The acquisition of the property being generally beneficial, the child can take the property in any manner whatsoever either under intestacy or by will or by purchase or gift or other assurance inter vivos, except when it is clearly to his prejudice to do so. A gift inter vivos to a child cannot be revoked. There is a presumption in favour of the validity of the gift of a parent or a grant parent to a child if it is complete (see Halsbery's Laws of England Vol.5 (2) 4th Edition Paragraph 642 and 647). When a gift is made to a child, generally there is a presumption of its acceptance because except acceptance in his case is not possible and only implied acceptance can be expected. Whether gift is made in favour of the child of the donor, who is the guardian of the child, the acceptance of the gift can be presumed to have been made by him or on his behalf without any overt act signifying acceptance by the minor. Nondelivery of the possession of the gifted property, non-exercising of any right of ownership over it and failure by the donee on attaining majority in getting his R.S.A.No.1148 of 2005 11 name mutated in official records are not circumstances negativing the presumption or acceptance by the minor during his minority or on his attaining majority. In case of a minor donee, receiving a gift from her parents, no express acceptance can be expected and is possible and acceptance can be implied even by mere silence or such conduct of the minor donee or other natural guardian as not indicate any disapproval or reputation of it."
16. In the decision reported in Kokilambal and Others v. N.Raman (AIR 2005 (SC) 2468), it has been held that, "In a family settlement, the deed creating limited interest of enjoyment of rental income and vesting the property of the settlor to the settlee only on the death of the former, then the settlee being not absolute owner, on his death during the life time of the settlor, his brother cannot succeed to his property in question and on the other hand, settlor can revoke settlement and issue a fresh settlement."
17. In the decision reported in Kamaruddin Saheb v. K.T.Palaniappa Nadar and others (2007) 3 MLJ 226), it has been held that, "When there is no stipulation that on happening of a stipulated event, gift could be revoked and in the absence of any time limit given for the object of the gift to be achieved and the absence of the application of Section 126 of T.P. Act, the conduct of the plaintiff revoking the settlment deed by a recovaction deed was not valid in law."
18. In the decision reported in Sankaran Poulu and Others v. Sundari Vijayamma and Another (2012 (3) KHC 93), it has been held that, R.S.A.No.1148 of 2005 12 "There can be a gift in favour of a minor and the minor herself/himself can also accept the gift, especially on a non onerous gift, 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."
19. In the decision reported in Rasheeda v. Nazeer (2011 (3) KLT 218), it has been held that, "A suit for declaration by a donor or assignor that the document executed by him is not valid or is vitiated by undue influence, fraud or coercion could be continued to be prosecuted or could be filed by his legal representatives after his death and the right to institute such suit is not personal to the donor or assignor and on the death of the plaintiff in such cases, the suit will not abate and cause of action will survive to his legal representatives to continue the suit."
20. In the decision reported in Thakur Reghunath Ji. Maharaj and Another v. Ramesh Chandra (AIR 2001 (SC) 2340), it has been held that, "An unconditional gift deed and an agreement between the donor and donee executed on the same day, prescribing conditions in the agreement executed later would be attached to the gift as gift deed and agreement form part of one transaction. That was a case where a gift deed was executed to construct a college on the gifted land within a stipulated time and the donee was unable to construct the college within that time and it was held that the gift was made with a condition of performance of certain things and non performance of the same would entitle the donor to revoke the same."
R.S.A.No.1148 of 2005 13
21. In the decision reported in Tokha v. Smt.Biru and others (AIR 2003 Himachal Pradesh 107) it has been held that, "When a gift of immovable property by donor was made in lieu of services and maintenances to be provided to her by the donee and with a stipulation that this is violated, the gift can be revoked, then the condition in the gift deed is valid and failure to comply with the same will entitle the donor to revoke the gift, but if such condition is not made as a condition for revoking the gift in the document itself, then gift cannot be revoked for non compliance of the same. Further in that case though she filed a suit for revoking the gift on the ground that it is a revocable one, she did not enter the witness box to support her case and examined only a power of attorney, it was held that such non appearance will draw an adverse inference aginst the donor and the donor is not entitled to get revocation of such gift deed. Further in that case when a gift was made by the donor with a stipulation for services and providing maintenance without a clause for revocation, but after three months of the gift deed when an agreement was executed with a default clause giving right to the donor to revoke the gift, it was held that the deed of gift and agreement would not form part of the same transaction and cannot be read together and given effect to."
22. In the decision reported in Meri Daisy Rani and Others v. Anthonimuthu (2015 (4) KHC 157), the Kerala High Court had considered the difference between the settlement and will and held that, "In a settlement deed, the properties are transferred voluntarily, gratuitously and absolutely conferring immediate rights over the property to the donee and the transfer is in present which comes into effect then and there. But in the R.S.A.No.1148 of 2005 14 case of a will, its character is ambulatory and without fixed effect. The entire document has to be read as a whole to ascertain the real intention of the executant regarding the time at which the transfer has to take place and to determine whether it is a will or settlement deed. It is further held in the same decision that there is no specific form for the acceptance of a settlement/gift and the acceptance of the gift may be implied or express. The acceptance need not be taken through actual physical possession always. Handing over of the original gift deed itself could be relied on as a proof of the acceptance in appropriate cases. Further in the same decision, it has been held that, a third party to the gift deed cannot make a challenge against the acceptance of th gift."
23. In the decision reported in P. Balakrishnan Nambeesan and Others v. A.P. Meenakshyamma and Others (2014 (2) KHC 23), it has been held that, "When a certified copy of the gift deed was produced and accepted in evidence without any objection, a party cannot content that it has been received in evidence without a foundation laid for its acceptance as secondary evidence. Any such objection should have been raised when the document was tendered. The third party cannot challenge the validity of the gift deed, such a challenge can be canvassed only by the donor or those who claim under him and not by a third party. When the donor is not even a party to the suit, it is pointless to impeach the validity of the gift deed."
24. In the decision reported in Renikuntla Rajamma (Died) By LRs. v. K. Sarwanamma (2014 (3) KLT 469), it has been held that, "Transfer in the case of immovable property no doubt requires a registered instrument, but the provision does not R.S.A.No.1148 of 2005 15 make delivery of possession of immovable property gifted as an additional requirement for the gift to be valued and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could indeed would have specifically said so. Absence of such requirement can only lead us to the conclusion that the delivery of possession is not an essential pre-requisite for making of a valid gift in the case of immovable property."
25. In the same decision, it has been further held that:
"In a gift deed there was transaction of absolute right in the gifted property from the donor to the donee and if the donor has only retained the right to use the property during the life time of the donor does not in any way affect the transfer of ownership in favour of the donee by the donor."
26. In the same decision the apex court has considered the decisions reported in Naramadaben Manganlal Thakker v. Pranjivandas Manganlal Thakker & Ors. [(1997) 2 SCC 255] and K.Balakrishnan v. K.Kamalam and Others [2004 (1) KLT 623 (SC)], which were referred to a larger bench for consideration and the larger bench in the decision has considered that the dictum laid down in Naramadaben Manganlal Thakker v. Pranjivandas Manganlal Thakker & Ors. [(1997) 2 SCC 255], cannot be lead to be as an authority for the proposition that delivery of possession is an essential requirement for making a valid gift and further held that, "If the gift was conditional and there was no acceptance of the donee, it could not operate as a gift. Absolute transfer of R.S.A.No.1148 of 2005 16 ownership in a gifted property in favour of the donee was absent in that case, which lead to this court to hold that gift was conditional and had to become operative only after death of the donee. The judgment in that view clearly distinguishable and cannot be read to be an authority for the proposition that delivery of possession is an essential requirement for making a valid gift".
27. In the decision reported in State v. Narayani Parvathi [1954 KLT 234], it has been held that, " A direction in a gift deed that the donee should maintain the donor till his death will not make the gift a conditional one if the terms of the gift deed show that there has been an absolute transfer of the property in favour of the donee and such a direction will be regarded only as an expression of pious wish on the part of the donor".
28. In the decision reported in Gangadhara Iyer Ganapathi Subramania Iyer v. Kulathu Iyer Sankara Iyer [1951 KLT 479], it has been held, "Where in a gift deed after the operative portion of the deed, it was stated that the donar would appropriate the yield from the properties and the donee was to render services to the donor and to meet the funeral expenses of the donor, it was held that when there is an out and out transfer followed by a direction to the donees to maintain the donors, the latter direction is only a pious wish. On the other hand, if the gift deed starts with a statement that it is made with the object of providing for the maintenance of the donors and this statement is followed by the operative clause, there can be no doubt that the gift is subject to liability to maintain the donors. In this case the directions are after the operative portion. This will not give any right to the donor to revoke the gift if the R.S.A.No.1148 of 2005 17 conditions were not observed".
29. It is further held in the same decision that, "The whole interest of the property was intended to be vested in the donee immediately and the donor reserved for herself no power of disposal over it. The only right that was reserved to her was to enjoy the profits thereof. When once the gift becomes complete, it cannot be revoked unless there is an express reservation in that behalf in the deed of gift itself".
30. In the decision reported in Sehdev Singh Verma v. J.P.S. Verma and Another [2016 KHC 2108], it has been held that:
"When there was no specific condition or stipulation in the gift deed that the gift would be revoked in case the deceased plaintiff does not reside in the front (drawing) room of the suit property and in such cases merely because there was violation in that condition, it would not give a right for the donor to revoke the gift on that ground unless there is a specific power of revocation has been made in the documents itself for non compliance of the same".
31. From the above decisions, it is clear that in the case of a minor, there is always a presumption of acceptance of gift. Further in the case of minor, the donor has no right to revoke the gift except on the grounds provided under Section 126 of the Transfer of property Act, namely vitiating circumstances. Further if there are conditions imposed and if there is no revocation clause to revoke the gift on failure to perform the condition, then merely because the R.S.A.No.1148 of 2005 18 conditions are not fulfilled is not a ground to revoke the gift. It is also not necessary that delivery of possession is always necessary to validate the gift of immovable property under the Transfer of property Act. It is also clear from the dictums that a 3rd party to the document is not entitled to challenge the conditions in the gift or the terms of the gift and the donor or the persons claiming under him alone are entitled to challenge the same and if suit has been filed by the donor to revoke the gift on the ground of fraud or other vitiating circumstances, on his death, his legal representatives can proceed with the case as the cause of action will survive to the legal heirs as such right is not personal right to the donor alone.
32. In this case, the first contention raised by the appellant in the plaint was that the gift has not been accepted by the minor and the donor has retained his right to enjoy the property till his death and also to the death of his wife and as such there is no diverting of right in presenti in favour of the donee. But in view of the dictum laid down in the decisions discussed above, in the case of minor if the donor is none other than the natural guardian of the donee, then there is always a presumption of acceptance of the gift by the minor. Further in this case the evidence of PW1 it is clear that mutation was effected and tax is being paid in the name of the respondent. Ext.A3 series produced by her will go to show that mutation was effected in respect of the plaint schedule property in R.S.A.No.1148 of 2005 19 favour of the defendant and tax is paid in her name. The defendant had a case that the 1st plaintiff being her elder sister, she used to entrust money to her to pay the tax for the property and she was paying the tax in her name and that appears to be probable as well in the circumstances of the case and in view of the evidence of DW1 on this aspect. Though PW1 had stated that she was having the revenue receipts prior to Ext.A3 series, she did not produce the same, which will go to show that even during the life time of the father, mutation was effected in the name of the minor and tax was being paid in her name and that was the reason why she did not produce the same and adverse inference can be drawn against her for non production of the same.
33. The case of the defendant is more probable that she did not interfere with the management of the property as, as per the terms of the settlement during the life time of the father and mother, they were having right to take income.
34. Merely because PW1 along with her family was residing in the house in the property with her parents will not be sufficient to come to the conclusion that she was managing the property. She had not produced any document to show that she had exerted any overt act in respect of maintenance of the property as claimed by her by adducing proper evidence. The evidence of PW2 is not sufficient to prove this fact. It was admitted by her after the R.S.A.No.1148 of 2005 20 destruction of the building in the property, she is not residing in that property, but she is residing at some other place. So all these things will go to show that the settlement deed was accepted by the defendant and mutation was effected and it has come into effect even during the life time of the donor.
35. The other contention was that the defendant and their father had entrusted the properties to her and she has been in possession of the same since 1971 onwards. Except her interested oral testimony, there is no other acceptable evidence adduced on her part to prove this fact. Even she had admitted that she wanted the defendant to execute a document in her favour regarding her nominal right, which when denied resulted in filing the suit. That shows that she was accepting the right and tittle of the defendant over the plaint schedule property and she had never exercised any right in the property adverse to the interest of the defendant to her knowledge, so as to claim right by way of adverse possession and limitation. Further the ingredients to claim right by adverse possession have neither been pleaded nor had it been established by adducing evidence as well. So the courts below were perfectly justified in coming to the conclusion that the plaintiff had failed to prove that the settlement was not accepted by the settlor and it is a sham document and it has not come into effect and she has perfected title by adverse possession and as such she is not entitled R.S.A.No.1148 of 2005 21 to get declaration and injunction as prayed for.
36. As regards the 3rd contention is concerned, let me consider the provision in the Transfer of Property Act in this aspect. Section 126 of Transfer of Property Act deals with revocation or suspension of gift by the donor which reads as follows:
"126. When gift may be suspended or revoked.- The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice".
ILLUSTRATIONS
(a) A gives a field to B, reserving to himself, with B's assent,the right to take back the field in case B and his descendants die before A.B dies without descendants in A'sl lifetime. A may take back the field.
(b) A gives a lakh of rupees to B, reserving to himself with B's assent, the right to take back at pleasure Rs.10,000 out of the lakh. The gift holds good as to Rs.90,000/-, but is void as to Rs.10,000/- which continue to belong to A".
37. Counsel for the appellants submitted that in the settlement deed, right of revocation was reserved in the settler and as such the settlement is void in view of second part of Section 126 of the Transfer of Property Act, which says "but a gift which the R.S.A.No.1148 of 2005 22 parties agreed shall be revocable wholly or in part at the mere will of the donor is void wholly or in part as the case may be". Explanation (b) to this Section explains this position, which says, "A gives a lakh of rupees to B, reserving to himself with B's assent, the right to take back at pleasure Rs.10,000 out of the lakh. The gift holds good as to Rs.90,000/-, but is void as to Rs.10,000/- which continue to belong to A".
Here also it is clear from the provision and also the explanation that such a revocation can be possible only with the consensus of both the donor and donee. If such consensus is not possible, then it cannot be said that second part of Section 126 will be applicable.
38. In this case, defendant was a minor at the time when Ext.A2 settlement deed was executed. So she was incompetent to give any consent or assent at the time when the settlement was made. A contract can be entered into in favour of minor which is beneficial to him or her and not to his/her detriment. If there is any clause detriment to him/her it will not bind him/her and he/she is not bound by the same as well. So even if there is any clause in the settlement deed to the effect that the donor has right of revocation that cannot be said to be with the assent or consent or in agreement with the donee so as to make applicable the second part of Section 126 of Transfer of property Act to revoke the gift as the donee was a minor at the relevant time and she had no competency R.S.A.No.1148 of 2005 23 to give consent or assent to that effect. Further during the life time of the donor, he has not taken any steps to revoke the settlement. Further it is inferable from the evidence as discussed above that mutation was effected in the name of the defendant even during the life time of the settler and that shows that the settler had no intention to revoke the same so as to make the clause workable during his life time but he had intended to give the property to the defendant but only wanted to create life interest to take income during his life time and also life time of his wife and nothing more. So under such circumstances, there is no merit in the submission made by the senior counsel appearing for the appellant that since there was a clause reserving right of revocation, it cannot be treated as a gift in view of Section 126 of the Transfer of Property Act in view of the discussions made above. Further if it is mentioned as a condition for doing certain things as well, merely because certain rights have been reserved to the donor during his life time and enjoyment of the property alone but divesting his right in favour of the donee, then imposing such condition alone will not make the gift invalid as contended by the counsel for the appellant. So the courts below on facts and on legal aspect, after appreciation of evidence rightly came to the conclusion that the gift is valid and it was accepted by the defendant and the plaintiffs had failed to prove their case and rightly dismissed the suit which was confirmed R.S.A.No.1148 of 2005 24 by the first appellate court and this court do not find any reason to interfere with the concurrent findings of the courts below on this aspect. The question of law raised has been answered accordingly, and there is no merit in the appeal and it is liable to be dismissed.
In the result, the second appeal fails and the same is hereby dismissed. Considering the relationship between the parties, parties are directed to bear their respective costs in the second appeal. The interim order if any granted is hereby vacated and all interim applications pending are dismissed.
Sd/-
K.RAMAKRISHNAN, JUDGE cl/ss/rmm/02.08.2017