Leela vs Vasu M.V
2025 Latest Caselaw 1220 Ker

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.
             = = = = = = = = = = = = = = = = = =
                     R.F.A.No.27 of 2019
             = = = = = = = = = = = = = = = = = =
            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

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

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

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

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

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

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

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

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

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