Kerala High Court
Leela vs Vasu M.V on 4 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:39004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 4TH DAY OF JUNE 2025 / 14TH JYAISHTA, 1947
RFA NO. 27 OF 2019
AGAINST THE JUDGMENT DATED 07.03.2018 IN OS NO.76 OF 2014
OF SUB COURT, PERUMBAVOOR
APPELLANTS/PLAINTIFFS:
1 LEELA(DIED)
AGED 54 YEARS
W/O.R AMACHANDRAN HOUSE, NO.515,PUTHENPURACKAL
HOUSE, VAZHAKULAM, PERUMBAVOOR
2 VALSA,
AGED 51 YEARS
W/O. KUMARAN, HOUSE NO.49,PULICKAL HOUSE,
KIZHAKKAMBALAM
3 AMBIKA
AGED 47 YEARS
W/O. SALIMKUMAR, HOUSE NO.105,CHAKKUPARAMBIL
HOUSE, THIRUVAMKULAM P.O
4 RAMACHANDRAN P.V.,
AGED 59 YEARS
PUTHENPURACKAL HOUSE, KAIPPURIKKARA, MARAMBILLY
P.O., ALUVA, ERNAKULAM
2025:KER:38460
R.F.A. No.468 of 2015
-: 2 :-
5 SEENA P.R.,
AGED 36 YEARS
D/O. RAMACHANDRAN, VAZHANJATTIL HOUSE,
IRAPURAM P.O., IRAPURAM
6 SEEJAMOL P.R.,
AGED 34 YEARS
D/O. RAMCHANDRAN, THYKKUDY HOUSE, KUNNUVAZHY,
MARAMBILLY P.O., ALUVA, ERNAKULAM
BY ADV SMT.GISA SUSAN THOMAS
RESPONDENTS/DEFENDANTS:
1 VASU M.V
AGED 61 YEARS
S/O. VELAYUDHAN, MANATHUPADOM HOUSE,
PATTIMATTOM P.O., PIN-683 562
2 PAUL VARGHESE
AGED 55 YEARS
S/O. M.C.VARGHESE, MAIKKAMKUNNEL HOUSE,
VILANGU P.O., PIN-683 501
3 THOMAS VARGHESE,
AGED 60 YEARS, S/O. M.C.VARGHESE,
MAIKKAMKUNNEL HOUSE, VILANGU P.O., PIN-683 501
BY ADVS.
SRI.P.THOMAS GEEVERGHESE
SRI.TONY THOMAS (INCHIPARAMBIL)
SRI.E.S.FIROS
SMT.AMRUTHA K.P.
SMT.SRADHA MOHAN
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
04.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2025:KER:39004
C. R.
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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R.F.A.No.27 of 2019
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Dated this the 4th day of June, 2025
JUDGMENT
Sathish Ninan, J.
The suit for partition was dismissed by the trial court. The plaintiffs are in appeal.
2. Plaintiffs 1 to 3 and the 1 st defendant are the children of late Velayudhan. The 1st plaintiff died pending the suit and her legal heirs were impleaded as additional plaintiffs 4 to 6.
3. The plaint schedule property admittedly belonged to one Kakoo, who is the grandfather of the original plaintiffs and the 1 st defendant. His only son is Velayudhan, the predecessor of the parties.
4. The suit was filed on the averment that, on 2025:KER:39004 R.F.A.No.27 of 2019 -: 2 :- the death of Kakoo, the property devolved on his only son, Velayudhan, and that, on the death of Velayudhan, the property devolved on plaintiffs 1 to 3 and the 1 st defendant. Defendants 2 and 3 were impleaded as the assignees of the property under the 1 st defendant.
5. The 1st defendant claimed exclusive title over the property under Ext.B1 Gift Deed of the year 1963 executed by Kakoo in his favour. It was contended that he conveyed the property in favour of defendants 2 and 3 under Ext.B2 Sale Deed.
6. The plaintiffs amended the plaint by incorporating a prayer seeking partition of the property conveyed under Ext.B2 Sale Deed.
7. The trial court found that, by virtue of Ext.B1 Gift Deed the 1 st defendant had obtained title over the property and he was competent to convey the 2025:KER:39004 R.F.A.No.27 of 2019 -: 3 :- property to defendants 2 and 3 under Ext.B2 Sale Deed. Accordingly, the claim for partition was declined.
8. We have heard Smt.Gisa Susan Thomas, the learned counsel on behalf of the appellants and Shri.P. Thomas Geevarghese, the learned counsel appearing for the respondents.
9. The points that arise for determination are:
(i) Did the first defendant get exclusive title over the plaint schedule property under Ext.A1 Gift Deed?
(ii) Is the plaint schedule property liable to be partitioned?
(iii) Does the decree and judgment of the trial court warrant any interference?
10. The plaint schedule property is described as 1.16 acres in Sy.Nos.461/4 and 461/5 of Pattimattom Village, Kunnathunadu Taluk. Sri. Kakkoo, the grandfather of plaintiffs 1 to 3 and the 1 st defendant, was admittedly the original owner of the property. On 2025:KER:39004 R.F.A.No.27 of 2019 -: 4 :- 22.03.1963, he executed Ext.B1 Gift Deed in favour of his grandson, namely, the 1 st defendant. Item No.3 in Ext.B1 Gift Deed is 1.16 acres. It is comprised of 66 cents in Sy.No.461/4 and 50 cents in Sy. 461/5. In Ext.B1 Gift Deed, the donor reserved the right to deal with 1/4 shares out of the property during his life time. Kakoo died in 1967. If at all Kakoo had retained any rights with him under Ext.B1, it did not survive him. Ext.B1 is categoric that, on the death of Kakoo, absolute right over the entire property is to vest with the 1st defendant. Thus, the 1 st defendant became the absolute owner of the property.
11. The first defendant had every right to deal with the property. He conveyed the same to defendants 2 and 3 under Ext.B2 Sale Deed. Thus, they have become the absolute owners of the property.
2025:KER:39004 R.F.A.No.27 of 2019 -: 5 :-
12. The learned counsel for the appellants would contend that there is no evidence that the gift was accepted during the life time of the donor. The gift deed was in the year 1963 when the donee was only a minor. The donor, Kakoo, died in the year 1967. At that time also, the donee was a minor. There is no evidence to find that the gift was accepted during the life time of donor. Hence, the gift is void, it is contended. The learned counsel would also rely on the judgment of the Apex Court in Mahesh v. Sangram [AIR 2025 SC 495] to contend that acceptance is pre-requisite for a valid gift.
13. Section 11 of the Contract Act prescribes as to who is a person competent to contract. As per the Section, a minor is incompetent to contract. Then, is it possible for a minor to accept a gift in his favour? The question has been answered by the Apex Court in 2025:KER:39004 R.F.A.No.27 of 2019 -: 6 :- K.Balakrishnan v. K.Kamalam (2004 (1) SCC 581) . Therein the Apex Court referred to Section 127 of the Transfer of Property Act and held that a minor, though incompetent to enter into a contract, is competent to accept a gift which is not onerous. The Apex Court held, "Section 127 throws light on the question of validity of transfer of property by gift to a minor. It recognises minor's capacity to accept the gift without intervention of guardian, if it is possible, or through him.
"127. Onerous gifts. Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully.
Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.
Onerous gift to disqualified person. A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware 2025:KER:39004 R.F.A.No.27 of 2019 -: 7 :- of the obligation, he retains the property given, he becomes so bound."
The last part of Section 127, underlined above, clearly indicates that a minor donee, who can be said to be in law incompetent to contract under Section 11 of the Contract Act is, however, competent to accept a non onerous gift. Acceptance of an onerous gift, however, cannot bind the minor. If he accepts the gift during his minority of a property burdened with obligation and on attaining majority does not repudiate but retains it, he would be bound by the obligation attached to it.
Section 127 clearly recognises the competence of a minor to accept the gift. The provision of law is clear and precedents clarify the position. See the decisions of Judicial Commissioner in the case of Firm of Ganeshdas Bhiwaraj vs. Suryabhan [1917 XIII Nagpur Law Reports 18]: Munni Kunwar vs. Madan Gopal [1916 (XXXVIII) ILR Allahabad 62 at 69]; and Firm of Geneshdas Bhiwaraj vs. Suryahhan [1917 Vol. 39 Indian Cases 46]. The position in law, thus, under the Transfer of Property Act read with the Indian Contract Act is that "the acquisition of property being generally beneficial, a child can take property in any manner whatsoever either under intestacy or by Will or by purchase or gift or other assurance inter vivos, except where 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 a gift of a parent or a grandparent to a child, if it is complete [See Halsbury's Laws of England Vol. 5(2) 4th Edn. Paragraphs 642 & 647). When a gift is made to a child, generally there is presumption of its acceptance because express acceptance in his case is not possible and only an 2025:KER:39004 R.F.A.No.27 of 2019 -: 8 :- implied acceptance can be excepted.
Section 122 (quoted above) covers the case of a minor donee being a person under legal disability. The section, therefore, employs the expression-'accepted by or on behalf of donee'. As we have seen above, Section 127 (quoted above) clearly indicates competence of a minor donee to accept the gift, if he is capable of so doing. Such acceptance of a gift can be made by himself or on his behalf by someone else."
14. In K. Balakrishnan v. K. Kamalam (supra), the Apex Court held that regarding acceptance of a gift in favour of a child of the donor, a presumption of acceptance has to be drawn even without any overt act signifying acceptance by the minor.
15. Thus, not only that a minor is competent to accept a non-onerous gift but, there is also a presumption of acceptance. With regard to acceptance of gift, law is settled that, if the gift is non-onerous, very little evidence is sufficient and even mere 2025:KER:39004 R.F.A.No.27 of 2019 -: 9 :- knowledge of the gift is sufficient for its acceptance since a man would only be too eager to protect his own interests.
16. In the present case there was no contention for the plaintiffs with regard to the validity and acceptance of the gift. There was no challenge against the gift. At the time of execution of Ext.B1 gift, admittedly, the 1st defendant was residing with his parents. The gift is not an onerous one. There is no reason to assume that the gift was not accepted by the donee. Hence, the said argument fails.
17. The learned counsel for the appellants would raise a further argument that the sale deed is a fraudulent one. It is to be noted that there is no challenge in the suit against Ext.B2 Sale Deed. No vitiating factors are pleaded or proved. No relief is 2025:KER:39004 R.F.A.No.27 of 2019 -: 10 :- claimed seeking to set aside the sale deed. When the title over the property is vested with the 1 st defendant, such a plea may not be available for the plaintiffs as against the 1st defendant. The said contention is also bound to fail.
18. The trial court has appreciated the evidence in the right perspective and has dismissed the suit. There is no merit in the appeal.
Resultantly, the appeal fails and is dismissed. No costs.
Sd/-
SATHISH NINAN JUDGE Sd/-
P. KRISHNA KUMAR JUDGE yd