BALAN Vs. BABY GIRIJA

JUDGEMENT

(1.) This appeal is directed against the judgment in O.P. No. 1484/2002 of the Family Court, Thiruvananthapuram, which was filed by the wife for declaration that the revocation of gift deed is void and for injunction. Appellant is the husband and respondent is the wife in this appeal. They married as per customary rites and two children, by name Deepa Rani and Deeja Rani were born to them. The petition schedule item No. 1 owned by the appellant and item No. 2 by the respondent. While they were living together, they had given these properties (Item 1 & 2) in favour of their younger daughter, Deeja Rani by virtue of gift deed No. 863/94. As per that gift deed, the respondent has got the right to reside in the building situate in the property and to take income from that property. Both children were married and they are now residing in their husbands' house. While so, the relationship between the appellant and the respondent got strained and the appellant insisted the respondent to vacate the building by saying that she has no right to reside in the building and he cancelled the gift deed executed in favour of his daughter as per cancellation deed No. 1099/2000. According to the respondent, the gift deed came into effect and the appellant has no right to oust the respondent, as the deed was executed by the appellant and the respondent jointly. Aggrieved by the cancellation of the gift deed, the respondent filed the above case. The appellant husband resisted the suit in the court below by filing written objection and in which he contended that gift deed No. 863/1994 was executed in favour of his daughter, after retaining his right for enjoyment of the property and his right for residence in the building, which never came into effect. Moreover, Deeja Rani never took possession of the property as per the gift deed. The respondent is now making attempt to evict him from the property and building. The appellant cancelled the gift deed as per document No. 1099/2000. Deeja Rani has no possession over the property. She never mutated the property in her favour and not paid the land tax. The original gift deed Nos. 862/1994 and 863/1994, which were kept in his almirah were stolen by the respondent on 25.4.2000 and left his house taking all her belongings. After this, the building is in his possession and the respondent never resided in that building and he has no intention to sell the property. His wife, the respondent, is leading an adulterous life and no chance to re-union. She is trying to acquire his property illegally.

(2.) In the court below, both parties adduced evidence. The evidence consisted of oral testimony of PW 1 and RW 1 and Exts. A1 to A3 and Exts. B1 to B3. The learned Judge of the Family Court came to the conclusion that the property bequeathed to the minor daughter is valid and the cancellation deed No. 1099/2000 dated 12.5.2000 of S.R.O. Murukkumpuzha was set aside. The court below also granted declaration in favour of the respondent declaring the right to reside in the petition schedule item No. 1 and the appellant is restrained from obstructing the said right of the respondent and from creating any document in respect of the property. Aggrieved by that, the husband filed this appeal.

(3.) The learned counsel appearing for the appellant contended that donee is a minor and there was no acceptance of the gift deed by the minor. As per Hindu law, the father alone can accept the property of a minor, when there is no acceptance of the gift deed by the minor, there was no gift as per law. No evidence has been adduced by the respondent to prove the execution of the gift deed. Deeja Rani is a necessary party in this appeal. Without evidence regarding the acceptance of the gift deed, no relief can be granted in favour of the respondent.