KOSHI MATHAI Vs. MALATHI

JUDGEMENT

(1.) THE short question arising for decision in second appeal relates to the extent of the right, which Koshy took under a gift deed ext. D-3, executed in his favour and in favour of his wife Achi and of their children, defendants 1 to 4 and deceased Pappi who were then unborn. THE dispositive words in Ext. D-3 were; THEse are sufficient to imply a gift in favour of their unborn children. If, as contended for the 4th defendant-appellant, the disposition in favour of the children was valid, Koshy took only an 1/ 7th share; if as contended for the respondents, the disposition in favour of unborn persons is void, Koshy's share is 1/2. THE question for decision is whether a disposition by way of gift in favour of unborn persons is void or not. It was answered in favour of the respondents by the courts below.

(2.) S. 122 of the Transfer of Property Act provides that a gift to be valid has to be accepted by the donee or on his behalf. Where there are more than one donee, the acceptance must be by all of them or on their behalf. This condition is impossible of compliance in the case of unborn donees. Moreover, being a 'transfer' it has to be only in favour of living persons. If a donee dies before acceptance, the gift is void. In Sivasubramania pillai Thiruvadinatha Pillai v. Kaliani Amma Savithrikutty Amma 1957 KLT. 765 the question was whether a gift by the husband in favour of his wife and children including those born after the date of the gift was valid. In the case of the after-born children the Division Bench observed: "the answer would depend on the point of time when the children acquire shares in such properties. If they obtained shares at the time when the gift is made it is clear that after-born children will not be entitled to shares. The property would in such a case vest in the children as soon as the gift is made and such properties cannot be divested by the birth of other children later. . . The plaintiffs who were born after the properties were acquired are not therefore entitled to shares therein, even if the properties be treated as a gift from their father. " Though the question arose in that case under S. 41 of the travancore Nair Act, 1100, the analogy is fairly clear. Korulla Geevarghese v. Krishnan Nair Raghavan Nair AIR. 1953 Travancore-Cochin 89 relied on, did not decide the point as to the validity or the legality of a gift in favour of donees unborn at the time it took effect, and so is no authority for the decision of the present case. S. 13 and 20 of the Transfer of Property Act have no relevance, as they provide for the creation of an interest on a transfer of property, for the benefit of a person not in existence on the date of the transfer. I therefore agree with the lower courts in holding, that Ext. D-3 was not valid so far as defendants 1 to 4 and Pappi were concerned, and therefore koshy took a half share under it. The second appeal is dismissed with costs. Dismissed.