Kerala High Court
Bhaskaran vs Bini on 22 June, 2026
2026:KER:51580
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 22ND DAY OF JUNE 2026 / 1ST ASHADHA, 1948
RSA NO. 263 OF 2011
AGAINST THE JUDGMENT AND DECREE DATED 20.10.2010 IN AS
NO.19 OF 2010 OF I ADDITIONAL DISTRICT COURT,
THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT AND DECREE
DATED 06.01.2010 IN OS NO.207 OF 2007 OF SUB COURT,ATTINGAL
APPELLANT/1ST RESPONDENT/1ST DEFENDANT:
BHASKARAN,
S/O. PADMANABHAN, RESIDING AT BEENA BHAVAN,
VAVARA AMBALAM, MANJAMALA WARD, KEEZHTHONNAKKAL
VILLAGE, THIRUVANANTHAPURAM TALUK.
BY ADV SRI.B.KRISHNA MANI
RESPONDENTS/APPELLANT/PLAINTIFF/2ND RESPONDENT/2ND
DEFENDANT:
1 BINI ,
W/O. ANILKUMAR, ANIL BHAVAN, THIRUVELOOR,
ANDOORKONMA POST, POTHENCODE, PIN - 695 584.
2 BIJI,
D/O.BHASKARAN, PUTHUVAL PUTHENVEEDU,
KATTAYIKONAM, KATTAYIKONAM P.O,
THIRUVANANTHAPURAM - 695 584.
BY ADVS.
SRI.J.JAYAKUMAR-R1
SRI.S.JIJI-R1
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
22.06.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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EASWARAN S., J.
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R.S.A.No.263 of 2011
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Dated this the 22nd day of June, 2026
JUDGMENT
The 1st defendant in a suit for declaration of title, setting
aside two documents and permanent prohibitory injunction, has
come up in the present appeal.
2. Essentially, the dispute is between a father and his
daughter. The father in his old age is forced to contest the case
against his own daughter, since the daughter is bent upon
litigating the matter and is not prepared to yield to the wishes of
her father.
3. The plaint schedule property was originally the subject
matter of a settlement deed on 04.10.1996 in favour of the 1 st
respondent/plaintiff. The daughter was married off on 12.12.1996.
On 04.12.1997, the appellant finding that the gift was not
accepted, proceeded to cancel the gift and executed two different
settlement deeds by which the the plaint schedule property was
equally distributed in favour of the plaintiff and the 2 nd defendant,
who is his other daughter. The plaintiff contends that she has not
accepted the gift. But the appellant contends that there is a clear
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admission on the part of the daughter that the property was
mutated and patta was obtained and tax was being remitted. The
plaintiff filed the suit stating that, notwithstanding the execution of
subsequent settlement deeds by her father in her favour and her
sister’s favour, she is entitled to get the entire property, since there
is unilateral cancellation of the gift deed.
4. What was contended before the trial court is that the
father had executed the settlement deed just prior to the plaintiff’s
marriage and that, immediately after the marriage, the settlement
deed was shown to her husband, who instructed her to hand over
the same to the father for safe custody and that, he had no right,
title and interest over the property at the time when the
subsequent settlement deeds were executed. On behalf of the
plaintiff, Exts.A1 to A5 documents were produced and, plaintiff and
her husband were examined as PW1 and PW2. On behalf of the
defendants, Exts.B1 to B10 documents were produced and DW1 to
DW5 were examined. Exts.C1 and C1(a) are the report and plan
submitted by the Advocate Commissioner.
5. The trial court, on appreciation of the oral and
documentary evidence, came to the conclusion that the gift was
not accepted by the plaintiff and thus, it has not become complete.
Accordingly, the suit was dismissed. Aggrieved, the plaintiff
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preferred A.S.No.19/2020 before the Additional District Court-I,
Thiruvananthapuram, which was allowed by reversing the
judgment of the trial court and the suit stood decreed. Hence, the
present appeal.
6. On 16.03.2011, this Court admitted the appeal on the
following substantial question of law:
“When evidence of PW1, the donee under Exhibit A1 and that of
her husband as PW2 do not establish acceptance of Exhibit A1 gift
deed, whether finding of the first appellate court that Exhibit A1
was accepted and therefore, Exhibit A2 cancellation deed is no
valid is sustainable ?”
7. Heard, Adv.N.V.Sandhya – learned counsel appearing for
the appellant and Adv.J.Jayakumar – learned counsel appearing for
the 1st respondent. None appears for the 2nd respondent.
8. Adv.N.V.Sandhya – learned counsel appearing for the
appellant, contended that the first appellate court erred
egregiously in reversing the judgment of the trial court, especially
when PW1 had clearly deposed in cross-examination that she had
never come into possession of the settlement deed, Ext.A1, nor had
she effected mutation in respect of the property, caused her name
to be entered in the transfer registry, or paid land tax. But the first
appellate court erred in holding that, since the plaintiff had
knowledge about the execution of the gift deed, there is a
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presumption regarding the acceptance of the gift deed. She
further pointed out that, the act of the plaintiff in accepting the
subsequent settlement deeds and also effecting mutation in the
respective names of the plaintiff as well as the 2 nd defendant is a
clear indication that the subsequent settlement deeds have been
given effect to and the parties have accepted it. Thus, it is pointed
out that the appreciation of evidence by the first appellate court is
perverse and precisely the reason why this Court framed the
substantial question of law as above.
9. Per contra, Adv.J.Jayakumar – learned counsel for the 1st
respondent/plaintiff, supported the findings of the first appellate
court and contended that the delivery of property is not a sine qua
non for acceptance of the gift deed. In support of his contention,
he relied on the decision of the Hon’ble Supreme Court in
Ranikuntla Rajamma v. Sarwanamma [2014 (3) KLT 469
(SC)] and also the decision of a Single Bench of this Court in
Narayani Bhanumathi v. Lelitha Bhai [1973 KLT 961]. The
learned counsel, placing reliance on the decision of this Court in
W.P.(C)No.1370/2009, i.e. Bini Anilkumar v. Bhaskaran [2009
(3) KLT 753], asserts before this Court that, when an application
for interim injunction was rejected, and the matter was taken
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before this Court, this Court has prima facie found that the gift
deed stood accepted and therefore, reversed the findings and
granted injunction as prayed for, to remain in force till the disposal
of the suit. That be so, the parties are governed by the findings
rendered by this Court in the earlier writ petition, as W.P.
(C)No.1370/2009. Thus, it is pointed out that the subsequent act
of the appellant in cancelling the gift deed is without any authority
of law, since he was divested of right, title and interest over the
property on execution of Ext.A1. He further points out that, the 1 st
respondent is continuing to cultivate the rubber plant and also
enjoying usufructs of the property, which shows that the property
stands delivered to her without any doubt. The unilateral act of
the father in paying the tax and also mutating the property in his
own name is of no consequences.
10. I have considered the rival submissions raised across
the Bar and have perused the judgments rendered by the courts
below and also the records of the case.
11. Section 122 of the Transfer of Property Act defines gift
as under:
“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.
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Acceptance when to be made.–Such acceptance must be
made during the lifetime of the donor and while he is till
capable of giving, If the donee dies before acceptance, the gift
is void.”
Section 122 provides when the gift will come into force.
Acceptance of the gift is a primary requirement to effect the gift.
If the donee does not accept the gift, and the acceptance does not
become complete, no valid gift exists in the eye of law.
12. It is true that the delivery of the property is not a sine
qua non for inferring a valid acceptance of the gift, but so also, a
mere non-acceptance of the delivery of the property cannot lead to
a conclusion that the gift was not accepted. It is the duty of the
person asserting a right under the gift deed to prove that he or
she has accepted the gift. It is also possible to infer the acceptance
from the facts and circumstances of the case.
13. In Baby Ammal v. Rajan Asari [(1997) 2 SCC 636],
the Supreme Court held that to constitute a valid gift, there must
be proof regarding delivery of property and acceptance of gift and
in its absence, the possession, if any, can at best be construed as
licence to remain in possession jointly with the owner.
14. In Illoth Valappil Ambunhi (Dead) By Legal
Representatives v. Kunhambu Karanavan [(2020) 18 SCC
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317], the Supreme Court considered whether the gift stands
accepted if there is a stipulation in the deed regarding the delivery
of possession of the property. It was held that such a stipulation
would lead to an assumption that gift stands accepted.
15. When this court examines the case based on the above
principles, it is clear that the plaintiff who was examined as PW1
had no case that she had accepted delivery of the property by
receiving the gift deed in hand. But, on the contrary, the evidence
is that, even immediately after the execution, the gift deed
remained in possession of the father, who is the appellant herein.
Moreover, she also admits that the father continued to be the
holder of the property and no change was made in the transfer of
registry, thereby indicating the fact that the property was not
mutated in her favour. Still further, the reading of the gift deed
does not indicate that the delivery of the property was given under
it, thereby giving a strong indication that the gift was not accepted
by the donee.
16. The most clinging evidence adduced by the 1 st
defendant – father is that, after the execution of the subsequent
settlement deeds in the year 2007, the respective shares allotted to
the plaintiff and her sister 2 nd defendant were mutated in their
name and the tax was remitted. Though the learned counsel for
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the plaintiff asserted that the plaintiff did not accept the
subsequent gift deed and that the payment of tax was by the father
unilaterally, it does not appear to this Court to be a convincing
reason. Admittedly, the evidence on record clearly indicates that
the plaintiff has accepted the subsequent gift. The plaintiff
thereafter resiled from the same and instituted the suit against her
own father.
17. Moreover, the evidence of PW2, the husband of the
plaintiff, also shows that, after their marriage, they were never in
possession of the gift deed. Admittedly, the marriage of the
plaintiff with PW2, her husband, was on 12.12.1996. Till 2007,
even after the lapse of 11 years, why the plaintiff did not demand
the settlement deed back from her father is not explained in the
plaint. True that, in paragraph 2 of the plaint, she has asserted
that she has accepted the gift. But the mere assertion will not
suffice inasmuch as the existence must be proved through
convincing evidence.
18. Yet another aspect to be noted is that Ext.A2, which is
the cancellation deed, is a registered document executed in the
year 1997. Therefore, even if the cancellation is found to be
unilateral inasmuch as the earlier gift has not been accepted, it is
possible to sustain the cancellation deed. Moreover, the
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contention of the plaintiff that she did not have knowledge about
the execution of cancellation deed is not acceptable under law.
Going by Section 3 of the Transfer of Property Act 1882, the
registered document operates as a constructive notice on the
plaintiff.
19. In Dharmrao Sharanappa Shabadi v. Syeda Arifa
Parveen [(2026) 3 SCC 460], the Supreme Court considered
the impact of Section 3 of the Transfer of Property Act, 1882
and held that execution of a registered sale deed operates as a
constructive notice.
20. When the principle of constructive notice is applied,
it is imperative for this Court to find that the suit filed in the
year 2007 questioning the cancellation deed executed in the
year 1997 is beyond the prescribed period of limitation.
However, to get over this impasse, the plaintiff contended that
she had no knowledge about the cancellation deed. This is
where the principles of constructive notice apply.
21. Next, it is to be considered whether this Court could
hold that the suit is barred by limitation despite no issues being
framed. In Nagaraj (dead) through Lrs. and another v.
Rajmani and others [2025 SCC OnLine SC 762], it was held
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as follows
“20. Limitation, as we generally know is a mixed question of fact
and law. However, there is no hard and fast rule that every
question of limitation is to be treated as a mixed question of fact
and law. In cases, where the action is initiated after several years
after the right to sue accrued, without any pleadings to explain the
reasons for delay or as to when the fraud was discovered, the
question of limitation is to be treated as a question of law. A
recourse may be had to Order VI Rules 4 and 10 CPC, which
mandates that specific particulars would have to be given in the
pleadings. Once such a plea is raised in the pleadings, then the
burden lies on the person to prove that the delay was due to any
plausible reason and it is always well within the knowledge of the
other party to contend and prove that the opposite party had prior
knowledge about the disputed fact and that his right to sue or
defend had also accrued by that date. Even in the absence of
specific pleadings regarding the limitation in the plaint or a plea of
defense, there is a bounden duty on every civil Court to ascertain
as to whether the lis has been initiated within the time prescribed
under law, even if the parties to the lis had not raised any
objections. This right flows from the mandate of Section 3 of the
Limitation Act, 1963. A useful reference may be had to the
judgment of this Court on this aspect, in V.M. Salgaocar and
Bros. v. Board of Trustees of Port of Mormugao, wherein, it
was held as follows:
“20. The mandate of Section 3 of the Limitation Act is that it is
the duty of the court to dismiss any suit instituted after the
prescribed period of limitation irrespective of the fact that
limitation has not been set up as a defence. If a suit is ex facie
barred by the law of limitation, a court has no choice but to
dismiss the same even if the defendant intentionally has not
raised the plea of limitation.
21. This Court in Manindra Land & Building Corpn. Ltd. v.
Bhutnath Banerjee [(1964) 3 SCR 495 : AIR 1964 SC 1336]
held (AIR para 9):
“Section 3 of the Limitation Act enjoins a court to
dismiss any suit instituted, appeal preferred and
application made, after the period of limitation
prescribed therefor by Schedule I irrespective of the fact
whether the opponent had set up the plea of limitation or
not. It is the duty of the court not to proceed with the
application if it is made beyond the period of limitation
prescribed. The Court had no choice and if in construing
the necessary provision of the Limitation Act or in
determining which provision of the Limitation Act
applies, the subordinate court comes to an erroneous
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decision, it is open to the court in revision to interfere
with that conclusion as that conclusion led the court to
assume or not to assume the jurisdiction to proceed with
the determination of that matter.”
In cases, where the pleadings are silent, then it becomes the duty
of the Court to ascertain from the evidence and the overall facts of
the case, as pleaded by either party, and to render a finding on
limitation where the question of limitation is to be treated as a
question of law, since the Court cannot entertain frivolous or stale
claims. It is also apropos to reiterate the settled position of law
that a question of law can be raised at any stage.”
22. When we apply the above principles to the facts of
the case, it is beyond cavil that the suit is hopelessly barred by
limitation and that be so, the first appellate court ought not to
have interfered with the well reasoned judgment of the trial
court. Coming back to the findings rendered by the first
appellate court, this Court cannot comprehend the reasons
attributed by the first appellate court for reversing the
considered judgment passed by the trial court. The first
appellate court seems to have gone on a wrong tangent and
erred egregiously in holding that, once Ext.A1 gift deed has
been executed, the father is divested of right, title and interest
over the property. It must be remembered that the divestation
of a donor of the right, title and interest in the property will
arise only on a valid acceptance of the gift. So long as the gift
remains unaccepted and that, the conditions specified under
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Section 122 of the Transfer of Property Act, 1882, is not
complete, the donor retains the right, title and interest over the
property and could very well cancel the gift, especially since the
gift has not come into effect. The bar under Section 122 of the
Transfer of Property Act against a donor from a unilateral
cancellation of the gift deed would arise only once the gift stood
unequivocally accepted and it has come into effect.
23. The conspicuous silence of the plaintiff from 1996 till
2007 in not demanding the original gift deed from the father is a
clear indication that the plea set up in the plaint is not probable.
Moreover, when the evidence of PW1 and PW2 is read
cumulatively, this Court finds it difficult to accept the plaintiff’s
plea that the gift had been accepted.
24. This Court cannot remain oblivious to the fact that
the father had decided to share his earnings equally between his
two daughters, as evidenced by the fresh settlement deed
executed in the year 2007. It must also be borne in mind that
the cancellation deed was executed in the year 1997 and
thereafter, the fresh settlement deeds were executed. That be
so, the entire edifice on which the claim in the suit is built must
necessarily fail. This Court finds that the trial court had rightly
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appreciated the evidence and had come to the conclusion that
the claim of the plaintiff must fail. The findings of the first
appellate court is certainly vitiated by perversity which cannot
be subscribed to by this Court.
25. Resultantly, the substantial question of law framed by
this Court is answered as follows:
When the evidence of PW1, the donee, under Ext.A1 and
that of her husband, PW2, does not establish the
acceptance of Ext.A1 gift, the first appellate court could
not have overturned the findings of the trial court.
Accordingly, this appeal is allowed by reversing the
judgment and decree in A.S.No.19/2010 on the files of
Additional District Court-I, Thiruvananthapuram and restoring
the judgment of the Sub Court, Attingal, in O.S.No.207/2007.
Sd/-
EASWARAN S, JUDGE
ACR
