Kerala High Court
Kanhirakottil Mani vs Unknown
Bench: P.R.Ramachandra Menon, A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
TUESDAY,THE 14TH DAY OF FEBRUARY 2017/25TH MAGHA, 1938
AFA.No. 60 of 1994 ( )
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AGAINST THE JUDGMENT AND DECREE DATED 17.03.1994 IN AS NO. 101/1984 of HIGH
COURT OF KERALA
AGAINST THE JUDGMENT AND DECREE DATED 18.10.1983 IN OS NO.18/1981 of II
ADDITONAL SUB COURT, KOZHIKODE
APPELLANT/2ND APPELLANT (2ND PLAINTIFF):
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KANHIRAKOTTIL MANI, (*) DIED
D/O.IMBICHIKANDAN,
RESIDING ATTHAZHEKKODE AMSOM, KATCHERI DESOM,
KOZHIKODE TALUK, KOZHIKODE DISTRICT.
APPELLANTS 2 TO 8 IMPLEADED:
2ND APPELLANT K.BALAKRISHNAN, RESIDING AT THAZHEKKODE AMSOM,
KATCHERI DESOM,KOZHIKODE TALUK, KOZHIKODE DISTRICT
3RD APPELLANT K.SOUMINI OF -DO- -DO-
4TH APPELLANT K.VILASINI OF -DO- -DO-
5TH APPELLANT K.PADMINI OF -DO- -DO-
6TH APPELLANT K.RADHA OF -DO- -DO-
7TH APPELLANT K.LALITHA OF -DO- -DO-
8TH APPELLANT K.VINOD OF -DO- -DO-
(*)APPELLANTS 2 TO 8 IMPLEAED AS LEGAL REPRESENTATIVES OF THE DECEASED
APPELLANT AS PER ORDER DATED 3-8-2006 IN IA 1327/06.
BYADVS.SRI.P.G.RAJAGOPALAN
SRI.K.P.BALASUBRAMANYAN
RESPONDENTS/RESPONDENTS 2 TO 10 AND ADDL. APPELLANTS 3 TO 7
(LRS OF THE DEFENDANT AND LRS OF 1ST PLAINTIFF):
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*1. MADHAVI (DIED)
WIDOW OF ARUMUGHAN, CHAYAMPURATH HOUSE,
P.O.MUKKOM, KOZHIKODE DISTRICT.
AFA NO.60 OF 1994 2
*RESPONDENTS 2 TO 9 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE
DECEASED 1`ST RESPONDENT VIDE ORDER DTD. 31.1.07 ON MEMO DT.22.1.07, CF 916/07.
2. ASOKAN, S/O.LATEARUMUGHAN, OF DO. DO.
3. DEVAYANI, D/O.LATE ARUMUGHAN, OF DO. DO.
4. NANDINI, OF DO. DO.
5. VASANTHAKUMARI, OF DO. DO.
6. VALSALA, OF DO. DO.
7. SUSEELA, OF DO. DO.
8. SARALA, OF DO. DO.
9. RAMESAN, S/O.LATE ARUMUGHAN, OF DO. DO.
**10. KANHIRAKOTTIL KUNHAN (DECEASED)
S/O.LATE KANHIRAKOTTIL UNNIATHA,
KACHERI, P.O.MUKKOM, KOZHIKODE DISTRICT.
(ADDL.RESPONDENTS 15 TO 19 IMPLEADED AS LEGAL REPS. OF R10)
***11. DO. APPU, OF DO. DO. (DECEASED)
(ADDL.RESPONDENTS 2O TO 23 IMPLEADED AS LEGAL REPS. OF R11)
12. DO.AMMUTTY,W/O.APPUTTY,KOZHISSERI HOUSE,
P.O.NAYARKUZHI, KOZHIKODE DISTRICT.
13. DO.KARTHIYAYINI, W/O.MADHAVAN, VAPPOLATH HOUSE,
P.O.CHELAVOOR, KOZHIKODE DISTRICT.
14. DO. DEVAKI, W/O.RAGHAVAN, CHENNAPOYIL HOUSE,
P.O.NAYARKUZHI, KOZHIKODE DISTRICT.
ADDL.RESPONDENTS 15 TO 19 IMPLEADED
R15. K.JAYARAJAN, S/O.LATE KANHIRAKOTTIL KUNHAN,
AGED 40 YEARS, KANHIRAKOTTIL HOUSE, P.O.MUKKOM,
CALICUT.
R16. K.KOMALARAJAN, AGED 36 YEARS, -DO-
R17. K.PUSHPA, AGED 34 YEARS, W/O.SASIDHARAN,
KUDILUMVATTITHIL HOUSE, P.O.ARIKKAPOYIL,
KOZHIKODE.
R18. K.SHEENA, AGED 32 YEARS, W/O.P.JAYARAJAN,
PANTHALINGAL HOUSE, P.O.KUNNAMANGALAM,
KOZHIKODE.
R19. K.REEJA, AGED 30 YEARS, W/O.T.BABU, THADATHIL HOUSE,
KUNNAMANGALAM, KOZHIKODE.
AFA NO.60 OF 1994 3
**ADDL.RESPONDENTS R15 TO R19 ARE IMPLEADED AS THE LEGAL HEIRS OF THE
DECEASED 10TH RESPONDENT AS PER ORDER DATED 23.8.2005 IN IA 2467/05.
ADDL.RESPONDENTS 20 TO 23 IMPLEADED
R20. K.DEEPA, AGED 32 YEARS, W/O.K.SURENDRAN,
KAYYATHICHALIL HOUSE, P.O.KUNNAMANGALAM,
KOZHIKODE.
R21. K.BEENA, W/O.T.SANTHOSH, AGED 30 YEARS, THIPPILIKKATHOUSE,
P.O.KUTHIRAVATTOM, KOZHIKODE.
R22. K.NISHA, W/O.C.JAYARAJAN, AGED 28 YEARS, CHOORAKAT
THODIKAYIL HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE.
R23. K.SHOBHIK, AGED 26 YEARS, ERIKKANCHERY HOUSE,
P.O.MUKKOM, KOZHIKODE.
***ADDL. RESPONDENTS R20 TO R23 ARE IMPLEADED AS THE LEGAL HEIRS OF THE
DECEASED 11TH RESPONDENT AS PER ORDER DATED 23.8.2005 IN IA 2458/05.
ADDL.R15 TO R23 BY ADV. SRI.AVM.SALAHUDEEN
R1 TO R14 - BYADVS. SRI. T.SETHUMADHAVAN
SRI K . MOHANAKANNAN
THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON
25.01.2017, THE COURT ON 14-02-2017 DELIVERED THE FOLLOWING:
"C.R."
P.R.RAMACHANDRA MENON & A.HARIPRASAD, JJ.
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A.F.A.No.60 of 1994
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Dated this the 14th day of February, 2017
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 Ext.A2 in favour of the defendant, he became the absolute owner. The defendant had not shared profits with the plaintiffs at any point of time and they have no right to make a claim. The suit is liable to be dismissed.
7. Heard the learned counsel for the appellants and the contesting respondents.
8. The sole defendant died during the currency of the proceedings. Pending appeal, the first respondent Madhavi (widow of the defendant) died. Respondents 2 to 9 are her legal representatives. Subsequently, respondents 10 and 11 also died. Additional respondents 15 to 19 have been impleaded as the legal representatives of the deceased 10th respondent. Additional respondents 20 to 23 are the legal representatives of the deceased 11th respondent.
9. This appeal has a long drawn history. Trial court dismissed the AFA No.60 of 1994 5 suit finding that the original plaintiffs had no right, title or interest in the property for claiming a partition. The matter was taken in appeal as A.S.No.101 of 1984 before this Court and a learned Single Judge heard and disposed of the appeal on 29.05.1990, by setting aside dismissal of the suit. The suit claim was allowed in appeal. This judgment was challenged before a Division Bench of this Court in A.F.A.No.69 of 1990. Division Bench set aside the judgment in A.S.No.101 of 1984 and remanded the appeal for a fresh consideration by a single Judge. This was done only on the ground that the 1st appellant in appeal had died on 11.04.1989 during the pendency of the appeal and it was disposed of without noticing this fact. The Division Bench, on noticing that legal representatives of the 1st appellant had not been impleaded in the appeal, thought it proper to set aside the judgment on that sole ground. After remand, another learned Single Judge heard the matter and dismissed the appeal by a judgment dated 17.03.1994, confirming the dismissal of the suit by the trial court. Hence this second round of appeal against the first appeal.
10. Cardinal controversy revolves around Ext.A1. Stated precisely, true construction of Ext.A1 is the quintessential issue arising for adjudication.
11. Execution of Ext.A1 is not in dispute at all. Imbichikandan, the AFA No.60 of 1994 6 predecessor-in-title of the parties, executed Ext.A1 on 04.12.1919. Parties to Ext.A1 were residing in Kozhikode Taluk. They belonged to Hindu Thiyya community. Imbichikandan gifted the property scheduled to Ext.A1 in favour of the plaintiffs, their deceased sister Unniperi and mother Mundichi. Admittedly the defendant (Arumughan) was not born at the time when Ext.A1 was executed.
12. The property shown in Ext.A1 devolved on Imbichikandan on kanom right by virtue of Ext.B38. Imbichikandan's intention to create a gift in favour of the donees could be seen from the recitals in Ext.A1. It is clearly mentioned that possession had been handed over by Imbichikandan to the donees and they were authorised to obtain renewal of the kanom right. In Ext.A1 it is stated that the plaintiffs, who were minors at that time, could alienate the property on attaining majority. On a reading of Ext.A1, it can be seen that the terms required for creating a valid gift have been recited in the document.
13. Primary question is whether the gift was accepted by the donees during life time of the donor? In this context, it is relevant to remember that Imbichikandan died before birth of the defendant. It is therefore clear that Imbichikandan must have died in 1920.
14. For understanding the real issues, we have to consider the provision of law in the Transfer of Property Act, 1882 (in short, the "Act"). AFA No.60 of 1994 7 Section 122 of the Act defines the expression "gift". The provision is extracted hereunder:
"122. "Gift" defined.- "Gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.-
Such acceptance must be made during the lifetime of the donor and while he is still capable of giving."
15. On a perusal of Ext.A1, it can be seen that all the formalities required to complete a gift have been complied with in this case. Only vexed question of fact and law surviving is whether the gift was accepted during life time of the donor and while he was still capable of giving?
16. Learned counsel for the appellants contended that the factum of delivery of possession of the property to the donees, mentioned in Ext.A1, raises a presumption of acceptance. Acceptance of a gift could be proved in very many ways. In a given case, handing over a document evidencing the gift may amount to acceptance. In another case, if the donee himself obtained the original gift deed from the Registrar's Office, it could be treated as acceptance. It is also argued that when there is a recital in the document showing that the donees were put in possession of AFA No.60 of 1994 8 the property, the burden shifts to the challenger to prove otherwise.
17. Per contra, the learned counsel for the contesting respondents contended that except producing a certified copy of Ext.A1 gift, the plaintiffs have not produced any scrap of paper or reliable evidence to show that Ext.A1 gift deed had ever come into effect. According to the contesting respondents, subsequent events established by unimpeachable evidence would show that Ext.A1 was never acted upon. In order to buttress this contention, learned counsel for the respondents relied on Exts.B1 and B3 to B37.
18. Ext.B1 is a kanadharam executed on 04.01.1941. Recitals in Ext.B1 would show that originally the property was outstanding with Imbichikandan as per Ext.B38. It is also mentioned in Ext.B1 that after his death, the property devolved on Arumughan (defendant) and his mother Mundichi. Ext.B1 is the renewal of kanom right, which later matured into a tenancy right entitled to get fixity of tenure under the Kerala Land Reforms Act, 1963. Ext.B1 clearly shows the demise in favour of the defendant and Mundichi. By this document, Mundichi had gifted her entire rights over the property in favour of her son Arumughan (defendant). Besides, the defendant had produced documents to show that from 1941 onwards, he possessed the property in his independent right. Exts.B3 to B12 are the receipts obtained by Mundichi and the defendant for paying rent to the land AFA No.60 of 1994 9 owner. Ext.B3 receipt is dated 01.12.1941 and Ext.B12 receipt is dated 09.06.1962. Other rent receipts relate to a continuous period between Exts.B3 and B12.
19. Exts.B13 to B35 are the basic tax receipts evidencing payment of revenue by the defendant continuously from 1960 to 1981, ie., upto the date of suit.
20. Exts.B36 and B37 are the rent receipts issued by the land owner to Mundichi, as guardian of the defendant, on 14.11.1927 and 17.11.1929.
21. Learned counsel for the appellants placed reliance on Asokan v. Lakshmikutty ((2007) 13 SCC 210) to argue that from the recitals in Ext.A1 itself acceptance of gift can be presumed. Further, it is contended that normally when a person gifts property to another and it is not an onerous gift, one may expect the other to accept such gift when it comes to his knowledge, because normally any person would be too willing to promote his own interest.
22. In Asokan's case the legal propositions in this regard were extensively considered by the Supreme Court. In paragraph 14, the following law is laid down:
"Gifts do not contemplate payment of any consideration or compensation. It is, however, AFA No.60 of 1994 10 beyond any doubt or dispute that in order to constitute a valid gift acceptance thereof is essential. 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. The fact that possession had been given to the donee also raises a presumption of acceptance."
23. Learned counsel for the appellants relying on the above decision contended that once a gift is complete, the same cannot be rescinded. According to him, Ext.B1 has no legal effect on the concluded gift evidenced by Ext.A1.
24. Well settled proposition is that evidence bearing on the question of acceptance of a gift will have to be appreciated in the background of the circumstances relating to the execution of the gift deed. It is also clear from precedents that where there is slightest evidence of such acceptance, it would be sufficient. There may be cases where the circumstances themselves eloquently speak about the acceptance. However, if the facts and circumstances established by evidence in a given AFA No.60 of 1994 11 case run contrary to the presumption of acceptance of a gift, the onus shifts back to the person asserting that the gift had been accepted during life time of the donor and while he was capable of giving. In otherwords, the recitals in a gift deed that the donor has given possession of the properties to the donee and the latter has accepted the gift will create only a rebuttable presumption. If the facts and circumstances proved in a given case are inconsistent with the presumption of acceptance, then the donee becomes obliged to establish that the gift had been accepted during life time of the donor and while he was capable of giving. We are of the definite view that the presumption drawable from the recitals in a document in favour of acceptance of gift cannot be regarded as an irrebuttable presumption or a conclusive proof. The legal concepts like conclusive proof and irrebuttable presumption on one hand and rebuttable presumption on the other are well known and clearly distinct. A party challenging a gift deed is free to let in evidence under Proviso (1) to Section 92 of the Evidence Act, 1872 to establish that the gift was not accepted during life time of the donor. Whether a gift in a given case had been accepted as provided under Section 122 of the Act is therefore a question of fact to be decided with reference to the facts and circumstances established in each case. This principle is unassailable.
25. In this case, the plaintiffs could produce only a registered copy AFA No.60 of 1994 12 of Ext.A1 to show that Imbichikandan had made a gift of the property to them during their minority. 2nd plaintiff testified as PW1. Admittedly she was a minor at the time of execution of Ext.A1 and therefore, she was incompetent to prove the transaction. Likewise, the defendant, who testified as DW1, was a posthumous child of Imbichikandan and therefore, his testimony regarding Ext.A1 also cannot be counted.
26. Learned counsel for the appellants strongly contended that there are candid admissions by the defendant in cross examination that he was unaware of the transaction evidenced by Ext.A1 and that after death of Imbichikandan, Mundichi had taken usufructs from the property for and on behalf of the legal heirs of Imbichikandan. Learned counsel for the appellants contended that these admissions by DW1, coupled with the recitals in Ext.A1, would show that the gift had been completed in all respects.
27. We shall the examine merit of the contention regarding admission first. Principle that an admission by itself cannot confer title to a property is well settled. Section 17 of the Evidence Act defines "admission" and Section 18 of the said Act deals with admission by party to proceeding or his agent. Section 21 of the Evidence Act speaks about proof of admissions against persons making them, and by or on their behalf. Section 58 of the Evidence Act says that an admitted fact need not be AFA No.60 of 1994 13 proved. Although an admission is the best piece of evidence against the person making it, he can rebut the same. It is fundamental that admissions can be explained and proved to be erroneous.
28. Supreme Court in Ambika Prasad Thakur v. Ram Ekbal Rai (AIR 1966 SC 605) has considered inter alia the effect of admission by a party in respect of title. It is held that title cannot pass by a mere admission. Principle that an admission by itself cannot confer title to property has been laid down by this Court also.
29. In view of the above principles, we are of the opinion that merely because DW1 had admitted that his mother enjoyed the property for and on behalf of the plaintiffs as well, it will not create any title on the plaintiffs or their successors-in-interest, if they actually had none.
30. In order to accept the plaintiffs' case that Ext.A1 gift was accepted during the life time of Imbichikandan, there is no evidence - either oral or documentary, except the recitals in Ext.A1. On the contrary, to show that the gift was not acted upon, the defendant had produced Exts.B1 and B3 to B37. Continuous payment of rent by the defendant to the erstwhile land owner and payment of basic tax in his individual capacity are circumstances against the probability that Ext.A1 gift had come into effect. It is all the more important to note that in 1941 as per Ext.B1, the kanom right of Imbichikandan had been renewed in the names of Mundichi and AFA No.60 of 1994 14 defendant. Thereafter Mundichi gifted all her rights in favour of the defendant as per Ext.B2. All these documents speak in abundance against the theory of acceptance of the gift by the plaintiffs and Mundichi during life time of the donor. The documents mentioned above clearly rebut the presumption drawable from the recitals in Ext.A1 that the gift had been accepted during the life time of Imbichikandan.
31. Learned Single Judge relied on Ext.A3 lawyer notice to find that the plaintiffs claimed only a share in the property left behind by Mundichi. It was also noticed that the plaintiffs had not put forward any claim for property based on Ext.A1 gift deed. Learned Single Judge took the view that had the plaintiffs been aware of their rights under Ext.A1 at the time of sending Ext.A3 lawyer notice, they would have certainly traced their title to the property covered by the gift deed. This was found to be a circumstance against the plaintiffs' case.
32. Learned counsel for the appellants contended that the learned Single Judge omitted to consider the fact that on understanding the mistake, the plaintiffs caused to issue Ext.A5 notice rectifying it and claiming partition in respect of the property covered by Ext.A1. We are of the view that mere omission to indicate the property covered by Ext.A1 in Ext.A3 may not be a fatal circumstance by itself. But that is a probability against the case of the plaintiffs that they had been considering Ext.A1 AFA No.60 of 1994 15 property as a co-ownership property. Therefore, we are of the view that the learned Single Judge was correct, in the light of the overwhelming evidence, in holding that Ext.A1 was not accepted as required by law.
33. Another aspect to be noticed in this case is the relevance of law which prevailed at the time of execution of Ext.A1 among Thiyyas of Kozhikode Taluk. Decision rendered by a Full Bench of this Court in Rohini v. Sethumadhavan (1978 KLT 470) has unequivocally declared that the law applicable to Thiyyas of Calicut (Kozhikode) was essentially customary law. The burden is on the party setting up any particular rule of custom to prove the same. In the absence of proof of custom, the Hindu Mitakshara Law will be presumed to be applied as customary law.
34. This principle has been re-stated by a learned Single Judge of this Court in Padmakshy and others v. Madhavi and others (2009 (3) KHC 702). Referring to all the decisions on the point, the learned Single Judge has held that Hindu Thiyyas of South Malabar are governed by customary law. When the parties set up no specific custom in derogation of any of the rules of Hindu Law, the presumption is that parties are governed by the principles of Hindu Mitakshara Law, which will be treated as the customary law applicable to such parties.
35. It is clear therefore that Imbichikandan, his wife and their progenies were governed by customary law. According to the pristine AFA No.60 of 1994 16 Hindu Law, female children of a Hindu had only right of maintenance and marriage expenses out of the property of their male ancestor. Considering the social and legal situation prevailed in 1919, we can only presume that Imbichikandan must have created Ext.A1 to avoid devolution of property in favour of reversioners. It is to be remembered that at the time of Ext.A1 Hindu Women's Right to Property Act, 1937 had not come into force. Therefore, Imbichikandan's intention to gift over the property to his wife and female children by creating a document could be well understood, especially when we notice that he had no male issue at the time of execution of Ext.A1. Still we cannot approve the plaintiffs' case regarding the acceptance of Ext.A1 gift in accordance with law without any reliable evidence. If propounders of the gift had adduced reliable evidence, the court could have analysed the preponderance of probabilities. Here, we have only one set of documents indicating the probability against the theory of acceptance of Ext.A1 by the donees as required by law. Reckoning the facts and circumstances, we are of the view that mere recitals in Ext.A1 gift that the donor had divested himself from enjoyment of the property, will not be sufficient to hold in favour of the plaintiffs, in the light of overwhelming evidence to show that immediately after execution of Ext.A1, Mundichi and the defendant dealt with the property as if it belonged to them exclusively. The presumption arising from the recitals in Ext.A1 that the gift had been AFA No.60 of 1994 17 accepted by the donees has been effectively rebutted by adducing legally acceptable evidence. Therefore, the learned Single Judge is right in holding that the plaintiffs have not established their right to claim partition. All the questions of law, therefore, are decided against the appellants.
In the result, we confirm the finding of the learned Single Judge and dismiss the appeal. There is no order as to costs.
All pending interlocutory applications will stand dismissed.
P.R.RAMACHANDRA MENON, JUDGE.
A. HARIPRASAD, JUDGE.
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