1. Defendant 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. Appellant 2 to 6 (defendants 2 to 6) are their children. First appellant had another daughter by name Vijajayalekshmi, 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.

4. The trial court on examining the contentions and evidence let in on both sides, decreed the suit declaring that the respondent has got title over the property and he is entitled to recover the same from the appellants. Questioning the judgment delivered by the trial court, an appeal was filed in A.S. No. 18 of 1995 before the Prl. Sub Judge, Trivandrum, who confirming the judgment and decree delivered by the trial court, dismissed the appeal. Hence this appeal.

5. The point arising for decision is whether Ext. A3 (Ext. B2) gift deed has taken effect and acted upon.

6. Learned counsel appearing for the appellants submitted that the gift cannot be acted upon since it is not in accordance with the provisions contained in Section 122 and 123 of the Transfer of Property Act, which read as follows as well as the settled proposition of law.

"122. "Gift" defined - "Gift" is the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

123. Transfer how effect - For the purpose of making a gift of immovable property, the transfer must be effected by the registered instrument signed by or on behalf of the donor, and attested by at least two witnesses."

As per the above two Sections, the gift deed must be signed by at least two witnesses. Acceptance is main criterion. The argument advanced on the side of the respondent would be that Ext. A3 document was produced by the donee for registration and that is sufficient to conclude that there was acceptance by the donee. No doubt, this argument was disputed by the appellants on the ground that it was not at all accepted by the donee and even after the gift deed, possession continued in the hands of the appellants. On the other hand, the argument of the learned counsel for the respondent would be legal possession was passed to the donee on the date of registration of the document. And the physical possession was entrusted to the 3rd appellant for meaning the property and therefore his physical possession is only on behalf of the respondent's mother and after her demise possession continued on behalf of the respondent. Yet another contention raised by the appellants would be that gift deed was not established as required by Section 68 of the Indian Evidence Act, which reads as follows:

"68. Proof of execution of document required by law be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless sits execution by the person by whom it purports to have been executed is specifically denied."

7. Admittedly appellants 5 and 6 were minors at the time of gift. Therefore, the contention on the side of the appellants, particularly 5 and 6, would be that gift was not executed for the welfare of the minors and the first appellant, their mother, did not get sanction of the court and as far as these appellants 5 and 6 are concerned, the gift is void. For this submission of the appellants, the argument advanced on the side of the respondent would be that since the gift was accepted and legal possession was passed to the donee on the date of the gift, the minor appellants 5 and 6, ought to have field a suit within three years after attaining majority to cancel the gift deed in respect of their shares. However, they did not do so. Therefore, now they cannot question the gift deed.

8. In view of the above submissions of both sides, the settled proposition of law can be looked into. This Court in Ashia Beevi v. Kochu Pillai (1958 KLT 37) has laid down the following principle.

"The declaration in the gift deed that possession was given is by itself sufficient to prove delivery of possession. The exception to the rule regarding delivery of possession in the case of a gift by the father or guardian to his child or ward as the case may be cannot apply to this case as the donor was only the mother of the donees. The onus is on the donees to prove that possession was given."

This Court in N. Janaki Amma v. K. Gopalakurup and Ors. (1969 KLR 355) had the occasion to rule that acceptance must be express or implied and inferred from the facts and circumstances and conduct of the parties. It is a pure question of fact. In V.V. Janaki v. P.P. Paru (AIR 1986 Kerala 110) this Court has held that when a gift of immovable property has been accepted by the donees and they are in possession of the property the fact that after making the gift the donors felt that it was a folly or imprudence or want of foresight on their part to have executed the deed of gift will not clothe them with power of revocation of the gift. This Court in Picha Gangadharan v. Pachi Kamalakshy (1993 (2) KLJ 974) held that when there is evidence to show that donees have accepted the gift and mutation in the revenue records has been effected, the donor cannot revoke it. The Madras High Court in Kamalakshy Amal v. Rajalakshmi (AIR 1995 Madras 415) has held that acceptance by donee by a specific recital in the deed that possession is given, presumption of acceptance arises.

9. From the above statutory and settled proposition of law I will examine the evidence. On the side of the respondent, that the gift was accepted by taking delivery of possession on the date of execution of the same, there is no independent evidence. Only the father of the respondent, who represented the respondent in the proceedings, has been examined. None of the witnesses to the document., Ext. A3, either attestors or scribe has been examined that the gift was accepted by delivery of possession that day. Therefor,e by mere production of the document by the donee or the presence of the donee in the Sub Registry Office, I do not think that it is after to conclude that there was acceptance of the gift. Yet another contention on behalf of the respondent that possession was taken by the donee and however it was entrusted to the 3rd appellant to manage the property is not supported by any legal and reliable evidence. If the third appellant has been managing it, he ought to have given the income from the property to the respondent. It is also an important aspect. Ext. A2 is a tax receipt in the name of the donee dated 30.8.1990, in the year of the suit. Prior to Ext. A2, the payment of tax as seen in Ext. B5 series was in the name of Divakaran, from the year 1980. Therefor,e the mutation effected in the name of the donee is not sufficient to conclude that there was acceptance of the gift. The principles stated above are so clear that it is the duty of the donee to prove that gift was accepted expressly, impliedly or by circumstance. Delivery of the property plays an important role in acceptance and according to the respondent as noticed above, possession was taken by the donee. But that could not be believable in view of the above circumstances. Yet another important fact in this case is Ext. B4. Ext. B4 is a petition filed in BRC NO. 5 of 1970 before the Prl. Munsiff's Court, Trivandrum for recovery of the suit property in which the order of eviction was passed on 23.3.1982. Exts. B4 completely demolishes the case of the respondent that possession was taken by the donee on the date of registration of the gift deed and thereafter the third appellant was put in possession by the donee. In this context the principle laid down by this Court in Kalandiyil Ammad v. Changaran (AIR 1963 Kerala 344) does not extend any help to the case of the respondent. There this Court has held thus:

"The recitals in a deed of gift clearly showed that the property was then outstanding with tenants and what remained with the donor was only the right to collect rent from them; and that right to collect rent was transferred to and accepted by the donee under the terms of the gift"

As notice above, there is no reference in the gift Ext. A3 that the building in the property was outstanding on a lease and that the donee or on her behalf third appellant was entrusted with the right of collecting the rent and they accepted the same. Further, no reliable evidence was let in on the side of the respondent that the third appellant was in possession of the property on behalf of the donee.

10. The next contention on the side of the appellants is that when sanction of the court is not obtained for executing the gift on behalf of the minors, that transaction can be avoided and ultimately, the gift deed become invalid in so far as the minors' share is concerned. In this context Section 8(2) and (3) of the Hindu Minority and Guardianship Act, 1956 which reads as follows, can be looked into.

"8(2). The natural guardian shall not, without the previous permission of the court,-

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor, or

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of Sub-section (1) or Sub-section (2), is voidable at the instance of the minor or any person claiming under him.".

The principle laid down by this Curt in Sreedharan v. Prasanna (1996 (2) KLT 784 (SC)) with reference to Section 8 of the Hindu Minority and Guardianship Act is thus:

"It would be obvious that since the mandatory requirement of sanction from the Court for alienating the property of the minor, as required under Section 8 of the Hindu Minority and Guardianship Act, had not been obtained, the contract of sale of the extent of the half share of the minors is void and it does not bind the minor"

In yet another decision reported in Santha v. Cheerukutty (1972 KLT 1051) it is held as follows:

"When a transaction has been entered into by a person with limited powers and the law states that it is voidable at the instance of another, that other can avoid the transaction or affirm it, and the aid of the process of court is unnecessary. However, in certain transaction, which may be thus rendered void or invalid by the act of an individual, the assistance of the court may be required where, for instance, possession is with the alienee, and in such cases the party cannot come at his own leisure but must seek the aid of the Court within the period prescribed by the law of limitation for actions.

No sanction of the court was taken for the alienation in the present case by the mother acting as the guardian of the minor, and, therefore, there is a plain violation of Section 8(2) of the Act. Consequently, Section 8(3) is attracted and the disposal of the property even though by a natural guardian, becomes voidable at the instance of the minor. When a minor is entitled to avoid a transfer effected by his guardian on the ground of absence of permission of the Court, it becomes a nullity on his unilateral act. He can merely avoid it by his conduct, and there is no need to file a suit for avoiding the transfer. The alienation is voidable at the minor's instance rather he can treat it as void without the assistance of the Court."

11. As per the above judgments of the Supreme Court and this Court, it is so clear that when sanction is not obtained from the Court, documents become void. However, when property was delivered to the donee, the transaction become voidable and the minors can challenge the same within a period of three years after they attain majority. In the instant case on hand, as I have held on footing of the evidence available on record, there was no delivery of possession to the donee. Therefore, minor appellants can avoid the gift and it is void so far as their shares are concerned. I have also held above that the gift deed is not established by acceptance. When the gift deed is not established, needless to say, the mother of the respondent becomes joint owner of the suit property since they are governed by Marumakkathayam law. The materials on record would go to show that the parties are governed by Marumakkathayam law. In this connection Section 17 of the Hindu Succession Act, which reads as follows, can be looked into.

"17. Special provisions respecting persons governed by "Marumakkathayam and Aliyasantana" laws.- The provisions of Sections 8, 9, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the Marumakkathayam law or Aliyasantana law if this Act had not been passed as, if-

(i) for Sub-clauses (c) and (d) of Section 8; the following had been substituted, namely:-

"(c) thirdly, if there is no heir of any of the two classes, then upon his relatives whether agnates or cognates"

(ii) for clauses (a) to (e) of Sub-section (2) of Section 15, the following had been substituted, namely-

(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the mother;

(b) secondly, upon the father and the husband;

(c) thirdly, upon the heirs of the mother;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the husband".

(iii) clause (iii) of Sub-section (2) of Section 14 had been omitted.

(iv) Section 23 had been omitted."

If there is no gift under Ext. A3 (Ext. B2) the property has been left intestate by Divakaran and in that case as per the above Section 17 the mother of the respondent is entitled to a share. When that be so, there present suit for declaration of title and recovery of possession is not a proper one and as rightly contended by the learned counsel for the appellants, a suit for partition will lie.

12. One more submission would be that an application in I.A. No. 2993 of 1993 was filed before the lower appellate court for amendment of the written statement that the first appellant is entitled half right by virtue of Section 17 of the Hindu Succession act. That application, it appears, was dismissed as seen in the judgment of the lower appellate court and regarding the amendment of the written statement some decisions were referred to. In view of my findings above that the gift deed is not established and it is not acted upon, there is no necessity now to have a discussion over the dismissal of the application which was filed for amendment of the written statement when the first appellant is entitled to a share in the share of the donee. All other points argued by both sides with reference to non-joinder of the father of the respondent who is representing the respondent in the proceedings needs no discussion in this appeal. In short, I make it clear that the gift was not accepted and acted upon and it has not come into force. Therefor,e nothing could be claimed by the respondent on the basis of the gift. Hence the suit for the reliefs sought for is not maintainable. However, a comprehensive suit can be filed.

13. In the result, the appeal is allowed by setting aside the judgment delivered by the lower appellate court and consequently, the suit is dismissed. It is left open to the parties to file a suit for partition and other reliefs, if they choose.