No Need To Give Evidence Of Gift Deed’s Execution Once It Is Admitted By Parties & Donor: Kerala HC
The Kerala High Court observed that there is no need of giving evidence of the execution of the gift deed once there is an admission of the gift by the parties and the donor himself/herself.
The Court observed thus in a regular second appeal preferred against the judgment of the First Appellate Court in an original suit for a permanent prohibitory injunction and declaration regarding a property.
A Single Bench of Justice K. Babu held, “The learned counsel for the plaintiffs has also raised a contention that defendant No.1 had not proved the execution of the gift as provided in Section 68 of the Evidence Act. The parties admitted execution of Exhibit B1 gift. The donor also admitted the execution of the gift as per Exhibits A9 and A10. Once there is an admission of the gift by the parties in the proceedings and the donor herself, I do not think that the defendants had to give evidence in proof of the execution of the gift deed, which never had been a disputed question anywhere during the proceedings.”
Advocate R. Parthasarathy represented the appellants while Senior Advocate S. Venkatasubramonia Iyer and Advocate V.R. Kesavakaimal represented the respondents.
In this case, the plaintiffs (respondents) instituted an original suit for a permanent prohibitory injunction and declaration in respect of the plaint schedule property and the Trial Court dismissed the same. The plaintiffs challenged the decree and judgment before the First Appellate Court (Subordinate Judge’s Court, Thalassery) and it allowed the appeal. It decreed the suit, declaring the title and possession of plaintiff no. 1 over the property and granting a consequential injunction in his favour. Being aggrieved, the defendants (appellants) were before the High Court.
The High Court after hearing the arguments of the counsel noted, “In Suresh Babu S.R. and Others v. Beena and Another [2022 (2) KHC 628], a Single Bench of this Court held that in the absence of any right for revocation of the deed in the deed itself, unilateral execution of the cancellation deed to cancel the gift deed is bad in law and is legally unsustainable.”
The Court also noted that no particular mode is prescribed under the law as to the requirement needed to prove acceptance and there may be various means to prove acceptance of a gift. It added that the document may be handed over to the donee, which in a given situation also amounts to a valid acceptance and the fact that the mutation was not effected immediately after the execution of the gift deed in favour of defendant no.1 does not have much significance.
“Therefore, the findings recorded by the first appellate court on the question of acceptance suffer from the vice of perversity. I am of the considered view that the first appellate court has not drawn necessary inferences and presumptions based on the pleadings and evidence”, it said.
Accordingly, the Court allowed the regular second appeal and set aside the impugned judgment and decree.
Cause Title- Kakkoth Radha & Ors. v. Bathakkathalakkal Batlak Musthaffa (Neutral Citation: 2024:KER:42300)
Appearance:
Appellants: Advocate R. Parthasarathy
Respondents: Senior Advocate S. Venkatasubramonia Iyer, Advocates V.R. Kesavakaimal and M.A. Bindu.
