RAJAMMA Vs. BISWAJITH

JUDGEMENT

(1.) Defendants are the appellants.

(2.) Respondent, represented by his father Sivarajan, as plaintiff filed a suit in O.S.No.2675 of 1990 before the Additional Munsiff's Court, Trivandrum for a declaration of title, recovery of possession, etc., on the following grounds: Plaint schedule property measuring 20 cents originally belonged to one Divakaran, his grand father. First appellant is his grand mother, wife of Divakaran. Appellants 2 to 6 (defendants 2 to 6) are their children. First appellant had another daughter by name Vijayalekshmi, who was the mother of the respondent. At the time of marriage of Vijayalekshmi, appellants 5 and 6 were minors. All the appellants executed Ext. A3 (Ext. B2) gift deed dated 4.11.1978 in favour of Vijayalekshmi in respect of the suit property. In the said gift deed the minors were (appellants 5 and 6) represented by their mother, first appellant. After the death of Vijayalekshmi on 14.10.1979, the appellants executed Ext. A1 (Ext. B3) cancellation deed on 26.5.1987. On the date of the gift deed possession was given to the mother of the respondent, Vijayalekshmi and she accepted the gift deed. In pursuance of the gift deed tax was paid in the name of her mother and mutation was also effected in her favour. Therefore, the respondent is entitled to the declaration of title and to set aside the cancellation deed as void and to recover the property from the appellants. In fact the third appellant was in possession of the property as per the request of respondent's mother. Lawful possession is throughout with the respondent and before then it was in the possession of his mother.

(3.) Suit was resisted by the appellants on various grounds, particularly, the gift deed was not accepted by the donee and first appellant could not gift the share of the minor appellants 5 and 6 then. Possession was not delivered to Vijayalekshmi, mother of the respondent. Property has been in the continuous possession of the appellants. However, cancellation deed was executed and it has taken effect. Thus there is no cause of action to file the suit. Therefore the suit may be dismissed.