ILLOTH VALAPPIL AMBUNHI (D) BY LRS. versus KUNHAMBU KARANAVAN

Citation: [2019] 13 S.C.R. 670 · Decided: 19-09-2019 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Dismissed

Judgment (excerpt)

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SUPREME COURT REPORTS
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ILLOTH VALAPPIL AMBUNHI (D) BY LRS.
v.
KUNHAMBU KARANAVAN
(Civil Appeal No. 1429 of 2011)
SEPTEMBER 19, 2019
[INDIRA BANERJEE AND SANJIV KHANNA, JJ.]
Suit – Cancellation of gift deed and deed of transfer –
Declaration for – One ‘R’ executed a deed of gift in favour of  the
respondents – The deed of gift stated that possession was delivered
– ‘R’ later cancelled the gift by a deed of cancellation and sold
the property to the original appellants – According to the
appellants, the possession of the suit property was given to them
and long after the original appellant had purchased the suit
property, the respondents filed a suit for declaration that deed of
cancellation and the deed of transfer were invalid, null and void
– Respondents claimed that they were the owners of the suit
property by virtue of the deed of gift – Trial court held that gift
deed executed had not taken effect, as it was not accepted and
deed of cancellation as well as the sale to the appellant were held
to be valid and suit was dismissed – This was affirmed by the First
Appellate Court as well – However, the High Court set aside the
concurrent decisions of the Trial court and the First Appellate Court
and allowed the respondents to recover possession of the suit
property – On appeal, held: The proposition of law that when a
document of transfer by gift records delivery of possession, a
presumption of acceptance would arise, in the absence of overt
repudiation of the gift, by and/or on behalf of the doneee, is
unexceptionable – The High Court rightly held that when the deed
itself said that the possession of the property was given to the
donee, the burden of proving, that the said recital was not correct,
laid on the party who asserted so – The High Court also rightly
declined to accept the findings of the courts below that the deed
of gift was not accepted during the lifetime of the donor, in the
absence of any evidence of non acceptance of the same – The deed
of gift did not provide for reversion of the suit property to the
donor in case of failure to pay maintenance to the donor in terms
   [2019] 13 S.C.R. 670
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of the deed of gift – Further the donor had no authority to revoke
the deed of gift – Hence, the subsequent documents were in
themselves without authority and null and void – The second
appeal was rightly allowed by the High Court.
Code of Civil Procedure 1908 – s.100 – Error in framing a
question of law – Held: A mere error in framing a question of law
would not render a judgment in second appeal liable to be set
aside, if it is found that a substantial question of law existed and
such substantial question of law has in fact been answered by the
High Court.
Dismissing the appeal, the Court
HELD: 1. The proposition of law that when the document
of transfer by gift records delivery of possession, a presumption
of acceptance would arise, in the absence of overt repudiation
of the gift, by and/or on behalf of the donee, is unexceptionable.
As held by the High Court, when the deed itself said that the
possession of the property was given to the donee, the burden
of proving, that the said recital was not correct, lay on the party
who asserted so. In view of this Court, the law has correctly
been appreciated and enunciated by the High Court. [Para 21]
[677-G]
2.  The High Court took note of the recital of the gift deed
to the effect that respondent acting on behalf of the donee was
to enjoy the property from the date of the gift, which was strong
evidence of transfer of possession. As noted by the High Court,
there is no dispute that respondent and the donor ‘R’ were
trustees of the (donee) at the time of execution of deed of gift.
The fact that nothing was done by ‘R’ or any other trustee of
the donee to repudiate the gift in itself shows that the deed of
gift was duly accepted by the donee. [Paras 22 and 25] [677-H;
678-A-D-E]
3.   The High Court rightly held that the Courts below had
proceeded on the wrong assumption that even in spite of the
recitals in Exh. A1, being the deed of gift and the admitted facts
of the case, the burden of proof was on the respondents to show
that the gift had been accepted. The findings of the Trial Courts
and the First Appellate Court were based on a wrong assumption
ILLOTH VALAPPIL AMBUNHI (D) BY LRS. v.
KUNHAMBU KARANAVAN
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[2019] 13 S.C.R.
of law regarding the possession of an idol in the

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