M. Madhavan Nair, J.
1. This appeal is by the 2nd defendant in a suit for declaration of title and for redemption.
2. P. W. 4 1ms mortgaged the plaint schedule property to the 1st defendant under Exhibit P-2, dated March 23, 1955, and thereafter assigned his equity of redemption to the plaintiff under Ext. P-1 dated June 23, 1955. This suit has been instituted on January 13, 1956, impleading the 2nd defendant also on the allegation that the 1st defendant has collusively surrendered the mortgaged property to him. The 2nd defendant denied P. W. 4 and the plaintiff to have any right to or possession of the property, and contended it to have originally belonged to Niravath tarwad, who in 1082 M. E. (1907) mortgaged it to Raman Kesavan and subsequently partitioned the equity of redemption under Ext. d-J among its members out of whom Lakshmi Amma who got 12 cents of the property sold it to the aforesaid Raman Kesavan who under Ext. D-2 dated 3-4-1116 (November 1940) gifted all his interests in the property to his brother's daughter Narayani the had no issue and Narayani was living with him as his foster-daughter) and her husband Narayanan Kesavan, who assigned to the 2nd defendant under Exts. D-3 and D-4 and that the 2nd defendant himself had purchased as per Ext. D-l dated 19-3-1118 (1943) the equity of redemption in the remainder of the property from Krishnan Nair who obtained it under the aforesaid partition of the Niravath tarwad and thus claimed to be in possession of the property independently of the suit mortgage and the 1st defendant. In his replication the plaintiff admitted the tide of the Niravath tarwad and pleaded that Raman Kesavaii had gifted his rights to his wife Kochupennu as per Ext. P-3 dated 11-2-1116 (September 1940) and that Kochu-pennn had sold that property to P. W. 4under Ext. P-4 dated 15-3-1118, therefore the plaintiff's purchase under Ext. P-l is valid. The Munsif held title to the properly with the plaintiff but Ext. P-2 mortgage not to have come to effect, and the 2nd defendant to have been long in adverse possession and dismissed the suit. On appeal, the Subordinate Judge held the plaintiff to have title under Ext. P-l and the mortgage Ext. P-2 valid and effective and therefore decreed the suit in terms of the plaint. Hence this second appeal,
3. It was conceded by counsel on both sides that Raman Kesavan had a mortgage of 1082 (1907) from the Niravath tarwad and had also purchased equity of redemption from Lakshmi Amma. But the plaintiff's claim of Raman Xesavan's purchase of the equity of redemption over the entire suit property is disputed by the 2nd defendant. The conveyance of Lakshmi Amma in favour of Raman Kesavan is not produced in this case. As such the purchase of equity of redemption by Raman Kesavan can only be found to the extent it is conceded by both sides, and has to he negatived to the extent it is disputed by one of the parties. It then follows that Raman Kesavan had a mortgage right in the whole property and the equity of redemption in respect of 12 cents. He had executed two gifts, Exts. P-3 dated 11-2-1116 in favour of his wife, and Ext. D-2 dated 3-4-1116 in favour of his foster-daughter and her husband. Needless fo say tbat if the first gift was valid the second was void; but if Ext. P-3 was invalid and Ext. D-2 was valid the title to the property is only with the 2nd defendant and the plaintiff has to be non-suited. The question therefore is whether it was the gift under Ext. P-3 or that under Ext. D-2 that is valid in law,
4. That both Exts. P-3 and D-2 are the acts of Raman Kesavan and do bear his signature and have been duly registered is not in dispute. The Sub-Registrar's endorsements show that Ext. P-3 has been presented for registration and got back from the sub-registry by Raman Kesavan himself. A gift to be valid must have been accepted by the donee 'during the lifetime of the donor and while he is still capable of giving'. Under Mithakshara the acceptance of a gift, particularly if it concerned immovable property, should he express.
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But under the Transfer of Property Act acceptance may be express or implied. (Vide Mulla, 5th Edn., pages 774-76). Acceptance, being thus an essential factor of validity of a gift, has to be proved or made out by the person relying on it. The plaintiff has therefore to show that Ext. P-3 has been accepted by Kochupennu, the donee thereunder. He points out Ext. P-4, the sale deed executed by her in favour of P. W. 4 on 15-3-1118, which recites that the gift deed has been given by her to P. W. 4. Thatrecital spells clearly an acceptance, but it was, as the very document shows, after death of Raman Kesavan. Acceptance to be effective has to be shown to have been made before death of the donor. Probably, when the donor had made two inconsistent gifts of the same properly, the proof by the donee under the first gift ought to be of acceptance even before acceptance of the later gift by the donee thereunder. However that complication does not arise here.
Counsel for plaintiff has only the recital in Ext. P-4 of delivery of the gift deed to P. W. 4 to show acceptance of Ext. P-3. When it is remembered that even if Raman Kesavan had deliberately kept Ext. P-3 with himself, it must on his death pass to the possession of Kochupennu, his widow, her possession of the deed of gift after his death would not prove that she had been given the deed before his death. Counsel read Ambika Prasad Thakur v. Ram Ekbal Rai, AIR 1966 SC 60,3, Para 15, to show that when a cer-tain state of affairs has been proved an inference of its continuity backwards may sometimes be drawn. The proposition cannot be challenged. But a state or things that is possible in either event cannot prove either. Whether Raman Kesavan gave or did not give Ext. P-3 to Kochupennu, she would have had possession of it after his death. Her possession or production of the deed after death of Raman Kesavan cannot therefore prove retrospectively that she had possession of the deed before the death of Raman Kesavan. The necessity for proof of that fact (of a valid acceptance of Ext. P-3) assumes much importance here as Raman Kesavan is seen to have executed a second gift of the same property in favour of his foster-daughter and her husband within two months of Ext. P-3. If it is not proved or made out circumstantially the gift under Ext. P-3 has to be held to have failed.
Counsel read Lakshmi Amma v. Kunji Pillai, AIR 1954 Trav-Co, 348 and Gangadhara Iver v. Kulathu Iyer, 1951 Ker LT 479 = (AIR 1952 Trav-Co. 47), to show that an acceptance of gift need not be express but may be implied. Nobody quarrels with that proposition. The question is only whether any circumstance has been made out in this case to show an implied acceptance of the gift. The delivery of the deed at the time of execution of Ext. P-4 is not such a circumstance as the possession of the deed found on 15-3-1118 cannot be presumed to have existed from the date of its registration in the particular circumstances of this case where the donee was the wife of the donor who had executed a later gift of the same property to his foster-daughter and her husband and all of them four were living together at the relevant time.
5. Counsel contended that the 1st defendant had been in possession of the property under the mortgage executed by P. W. 4 and therefore, P. W. 4 and his predecessors-in-interest including the doneeunder Ext. P-3 must be found to have had possession of the property and therefore the gift Ext. P-3 to nave come to effect. But 1st defendant's possession is not conceded in this case. The 2nd defendant has, in his written statement, denied P. W. 4 and his mortgagee the 1st defendant to have ever had possession of the property.
[His Lordship then discussed the evidence and continued as follows :--] It is obvious that the plaintiff has failed to prove that the 1st defendant has made a surrender of the property to the 2nd defendant. Admittedly on the date of the suit the property has been in the possession of the 2nd defendant. In the circumstances the plaintiff had to be held to have failed to prove that Kochupennu had accepted the gift Ext. P-3 at any time before the death of Raman Kesavan, the donor. Ext. P-3 must therefore be held not to have come to effect. On the other hand, Ext. D-2 has been presented for registration by one of the donees thereunder and got back by him. As the man who presented was the husband of the other donee it may he easily presumed that he acted for his wife as well in that act. It then follows that the donees under Ext. D-2 have accepted the gift to them, and that that gift had come to operation vesting title in the defendants' predecessors-in-interest and therefore in the 2nd defendant under his purchases.
6. In the result, the decree of the Courtbelow has to be set aside and the secondappeal allowed and the suit dismissed. Theappellant is entitled to his costs in thisSecond Appeal. Decree accordingly.