KALI NAICKER Vs. JAGANATHAN

JUDGEMENT

(1.) By consent the Second Appeal has been taken up for disposal. The Defendants 2 to 4, who have lost before the Courts below are the Appellants herein. At the time of admitting the Second Appeal the following substantial questions of law have been framed:

(2.) The Suit has been filed by the Plaintiffs, seeking partition and separate possession of 2/3rd share in the suit property based upon Ex. A1-Settlement Deed executed by their grandfather. The Defendant No. 1 is the brother of the Plaintiffs.

(3.) In the Written Statement filed by the Defendants 2 to 4, who have purchased half share of the suit property by registered Sale Deed under Ex. B1 stated that the Gift Deed executed by the grandfather of the Plaintiffs and 1st Defendant under Ex. A1 has not been given effect to as there is no evidence of acceptance. The donor of the gift, namely the grandfather of the Plaintiffs and the 1st Defendant cancelled the Gift Deed within 20 days from the date on which the Gift Deed has been executed in the name of the Plaintiffs and 1st Defendant in which the Second Plaintiff and the 1st Defendant were represented by their mother, as they were minors. In pursuant to the Cancellation Deed, under Ex. B3, another Gift Deed has been executed in favour of the mother of the Plaintiffs. Thereafter, she has mortgaged the property which has been redeemed by the Appellants. The Appellants have also paid the decree amount in the Suit filed for recovery against the mother of the Plaintiffs. Therefore, the Appellants contended that they have purchased the property for value as Ex. A1 has not been given effect to. The Courts below making reliance upon Section 126 of the Transfer of Property Act decreed the Suit as prayed for by holding that after execution of Ex. A1, the donor did not have the legal right to cancel the same. Challenging the said decision rendered by the Courts below, the present Second Appeal has been filed.