Chitambaresh, J.
The court below has by the impugned judgment granted a preliminary decree for partition in regard to item Nos. 1 to 11 of the plaint 'A' schedule property. The court below has however disallowed partition in regard to item Nos.12 to 15 of the plaint 'A' schedule as well as the plaint 'B' and 'C' schedule property. The plaintiff has come up in appeal challenging the preliminary decree in so far as it relates to the items of property disallowed.
2. Item Nos.1 to 15 of the plaint 'A' schedule property belonged to the common ancestor by name Appu. The plaint 'C' schedule lorry allegedly belonged to him and the plaint 'B' schedule property belonged to his wife Meenakshi. Appu had 7 children including defendant No.1 whose children are the plaintiff and defendant Nos.2 and 3. Appu executed Exts.A1 and A2 gift deeds in regard to item Nos.1 to 11 of the plaint 'A' schedule property. The donee was AS.950/1998 2 defendant No.1 who is his son and the court below has upheld the due execution of the gift deeds. The court below has found that item Nos.1 to 11 of the plaint 'A' schedule property is partible. The plaintiff as well as defendant Nos.1, 2 and 3 have been each found entitled to 1 out of 4 shares. The partibility of item Nos.1 to 11 of the plaint 'A' schedule property is not in serious dispute in this appeal.
3. Appu executed Ext.A3 gift deed dated 28.5.1981 in favour of defendant No.1 in regard to item Nos.12 to 14 of the plaint 'A' schedule. Appu executed Ext.A4 sale deed dated 6.8.1981 to defendant No.1 in regard to item No.15 of the plaint 'A' schedule. Appu later executed Ext.B1 deed dated 6.8.1981 purporting to cancel Ext.A3 gift deed. Appu also executed Ext.B2 deed dated 6.8.1981 purporting to cancel Ext.A4 sale deed. The court below held that Ext.A3 gift deed and Ext.A4 sale deed have not been acted upon by the donee and the transferee. It is on that premise has the preliminary decree been passed disallowing partition in regard to item Nos.12 to 15.
AS.950/1998 3
4.Very little evidence is required to show that a gift deed is acted upon except when the same is burdensome or onerous. Ext.A3 gift deed in the instant case was by Appu in favour of his dependant son and is only a settlement deed. The gift deed itself contains a recital that possession of the property has been delivered over to the donee. A presumption is drawn in favour of the donee which has not been rebutted by others who contend to the contra. The decision in Alavi v. Aminakutty and others [1984 KLT SN Case No.103] is on the point. There is nothing on evidence to show that the title continued with the donor despite the execution of Ext.A3 gift deed.
5. The validity of Ext.A4 sale deed executed by Appu in favour of defendant No.1 cannot be upset by Ext.B2 cancellation deed. Such a cancellation deed has no legal efficacy [See Asokan v. Lakshmikutty (2008 (1) KLT 54 (SC)]. The title was validly conveyed by Appu to defendant No.1 in regard to item No.15 of the plaint 'A' schedule property. The contesting defendants in fact do not challenge Ext.A4 sale deed and instead AS.950/1998 4 bank on Ext.B2 cancellation deed. Exts.A3 gift deed and A4 sale deed conferred title on defendant No.1 in regard to item Nos.12 to 15. Defendant No.1 has subsequently executed Ext.A5 sale deed dated 20.9.1984 in regard to item No.15 property. The sale is in favour of defendant Nos.2 and 3 over which the plaintiff has evidently no share. The court below erred in disallowing partition in regard to item Nos.12 to 14 of the plaint 'A' schedule property.
6. The share over the plaint 'B' schedule property was disallowed on the premise that defendant No.1 was alive. The plaintiff would get a share only on the death of defendant No.1 who is the son of Meenakshi to whom the property belonged. It now transpires that defendant No.1 died on 26.2.1998 leaving behind his heirs. His heirs are none other than the plaintiff and defendant Nos.2 and 3 each entitling to one-third share. All the children of Appu who died in the year 1983 get one-seventh share each in regard to the plaint 'B' schedule property. The one-seventh share of defendant No.1 would devolve on the plaintiff AS.950/1998 5 and defendant Nos.2 and 3 equally. The variation of share consequent on the death of defendant No.1 has been brought out by the appellant. I.A.No.2187/2010 filed to amend the memorandum of appeal accordingly is hereby allowed. However the partible title in regard to the plaint 'C' schedule lorry which allegedly belonged to Appu has not been proved. Neither the registration certificate of the vehicle nor its availability is established. The preliminary decree in so far as it refuses partition in regard to the plaint 'C' schedule property calls for no interference.
7. Defendant No.22 claims title over item No.15 of the plaint 'A' schedule property on the strength of Ext.B5 sale deed dated 7.3.1990. All the legal heirs of Appu except defendant No.1 have joined the sale deed as assignors. It is the case of defendant No.22 that the right of the assignors should flow to him under Ext.B5 sale deed. But Appu even during his life time had executed Ext.A4 sale deed in regard to item No.15 property. Defendant No.1 who is the assignee therein has since executed Ext.A5 sale AS.950/1998 6 deed to defendant Nos. 2 and 3. Therefore there was nothing left with Appu for devolution to his legal heirs in regard to item No.15 property. Ext.B5 sale deed relied on by defendant No.22 does not convey any valid title over item No.15 property.
Resultantly the impugned preliminary decree is modified allowing the Appeal Suit with costs and the shares are allotted as under:
i) The plaintiff as well as defendant Nos.2 and 3 are each entitled to 1/3 share over item Nos.1 to 14 of the plaint 'A' schedule property.
ii) The plaintiff has no share over item No.15 of the plaint 'A' schedule property which belongs to defendant Nos.2 and 3 only.
iii) The plaintiff as well as defendant Nos.2 and 3 are each entitled to 1/21 shares over the plaint 'B' schedule property.
iv) The plaint 'C' schedule property is not partible and the decree of the court below in other respects is confirmed.
v) The plaintiff is entitled to the share of AS.950/1998 7 mesne profits in regard to item No.1 to 14 of the plaint 'A' schedule property.
vi) The quantum of mesne profits as well as the liability are left open to be decided in the final decree proceedings.
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V.CHITAMBARESH, Judge.
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ANIL K.NARENDRAN, Judge.
nj/8.11.2016 //TRUE COPY// P.S. TO JUDGE.