P.K.MURALI Vs. P.K.VASANTHA

JUDGEMENT

(1.) Aggrieved by the decree and judgment of the First Appellate Court (Sub Court, Koyilandi) in A.S.No.26/1998, in reversing the decree and judgment of the Trial Court (Munsiff's Court, Koyilandi) in O.S.No.274/1996, the defeated defendants came up with this appeal.

(2.) The question came up for consideration is whether the First Appellate Court omitted to consider the relevancy of possession continued with the donor of the gift and acquisition of jenmom right over the property subsequent to the gift by the donor and non-acceptance of gift on account of minority of beneficiaries.

(3.) The defendants are the children born to one Chandukutty in his second marriage after the death of first wife. The plaintiffs are the children born to him, in his first wedlock. Their mother passed away on 05/03/1962. After the death of mother, their father executed Ext.A2 gift dated 01/11/1965 in favour of the minor children. He entered into a second marriage and the defendants are the children born in the second wedlock. The suit was one for recovery of possession of 3 items of properties, covered by Ext.A2 gift deed. The item No.1 property was earlier purchased in the name of minors. The dispute is pertaining to item No.2 and 3 properties and according to the defendant the gift in so far as the item No.2 and 3 properties are concerned, had not come into effect and nobody has accepted the gift for and on behalf of the minors. But, the donor, the father was possessing and enjoying the property and used to pay the land tax over the property. Hence, the defendants advanced a case of sham document, which was found as against by the Trial Court. But, in appeal, the said issue was not properly considered but the decree was reversed finding that Ext.A2 gift is a valid one and there is acceptance of the gift. Aggrieved by the said decree and judgment, the defendants came up with this appeal.