Ratnavel Pandian, J.
1. A.S. Nos. 403 of 1976 and 404 of 1976 are preferred by one Damodarm Pillai, who is the first claimant in C.R.O.P. No. 245 of 1974 and the first defendant in O.S. No. 192 of 1974, both on the file of the Court of the Subordinate Judge, Ghingleput, questioning the validity and correctness of the common judgment rendered by the Additional Subordinate Judge Ghingleput in the said G.R.O.P. No. 245 of 1974 and O.S No. 192 of 1974.A.S. No. 720 of 1977 is another appeal preferred by the above-said Damodaram Pillai against the order of the Court of the Subordinate Judge of Ghingleput made in G.R.O.P. No. 275 of 1966. Originally, an appeal as against the order in G.R.O.P. No. 275 of 1966 was filed before the District Court, Ghingleput in A.S. No. 103 of 1968. Subsequently it was transferred by the orders of this Court, to this Court for being heard along with the other connected appeals A.S. Nos. 403 and 404 of 1976, and then renumbered as A.S. No. 720 of 1977, since the subject-matter involved and the parties interested in the disputes are the same in all the proceedings.
2. O.S. No. 192 of 1974 giving rise to A.S. No. 404 of 1976, is a suit filed by the plaintiff Dhanalakshmi Ammal alias Kuttiammal, for partition and separate possession of the plaint schedule properties into two equal shares and for allotment of one such share to the plaintiff and for directing the defendants to pay a sum of Rs. 2,625 being the damages for use and occupation pertaining to the half share of the plaintiff for the period 1973-74 and to render an account of the income from the properties till delivery of possession and of costs.
3. The facts of the case in the above suit can be succinctly stated as follows : One Vembuli Pillai had two wives viz, Thayarammal and Krishnammal. Through Thayarammal, Vembuli had a son Thambu Pillai, whose son is the first defendant Damodaram Pillai. Vembuli through his second wife Krishnammal had one son, viz., Shanmugham, who died issueless in 1948 within a short period after his marriage in 1946 and two daughters Jayalakshmi Ammal and Kannammal Jayalakshmi, the first daughter of Krishnammal was given in marriage to Damodaram Pillai and she died in 1940 leaving behind her two sons, Balraj who died in 1952 and Natarajan who also died in 1957. Kannammal was given in marriage to Damodaram Pillai as his second wife and she too died in 1941 survived by her daughter Dhanalakshmi Ammal alias Kuttaimmal, the plaintiff in the suit (who was also the second claimant in G.R.O.P. No. 245 of 1974 as well as in C.R.O.P. No. 275 of 1966). The abovesaid Krishnammal, the maternal grandmother of the plaintiff, to whom the plaint schedule property originally belonged, executed a Settlement deed Exhibit B-1, dated 15th October, 1956 settling all the schedule properties in favour of her grand-children, the plaintiff and Natarajan. As per the terms and conditions of Exhibit B-1, the settlor Krishnammal had to enjoy the income from the properties till her lifetime and thereafter the settlees were to enjoy the properties absolutely. As pointed out above, Natarajan died in 1957 hardly within a year after the execution of Exhibit B-1. The settlee Krishnammal died on 6th March, 1973. Consequent upon the death of Natarajan, Damodaram Pillai succeeded to the half share of Natarajan, whilst the plaintiff was entitled to the other half share by virtue Exhibit B-1. A portion of the property, (i.e.) an extent of 74 cents comprised in S.No. 75/1-B covered by Exhibit B-1, was acquired by the Government and the compensation for the same was deposited into Court under Section 30 of the Land Acquisition Act. Damodaram Pillai contended that what was executed by Krishnammal under Exhibit B-1 was only a will and not a settlement, that Krishnammal had subsequently executed a settlement deed Exhibit B-2 dated 4th April, 1964, in his favour settling all her properties on him and cancelling or revoking Exhibit B-1, and that therefore he alone would be entitled to the entire compensation. The learned Subordinate Judge of Ghingleput held an enquiry into the matter in G.R.O.P. No. 275 of 1966, in which Krishnammal, Dhanalakshmi Ammal (the plaintiff) and Damodaram Pillai were arrayed as the first, the second and the fifth claimants respectively along with two others, and found, rejecting the contentions of Damodaram Pillai, that Exhibit B-1 was only a settlement deed and not a will and as such the plaintiff would be entitled to a half share of the compensation amount deposited in Court. According to the plaintiff, Exhibit B-2 has been created by her father by practising fraud on Krishnammal who had no disposing power over the property and who had not reserved the right of revocation in Exhibit B-1. Since the second defendant had claimed to be a lessee under the first defendant, the plaintiff has also impleaded him as a party to this action. As Damodaram Pillai was not willing to divide the properties into equal shares and to allot one such share to the plaintiff, she filed the suit.
4. The first defendant resisted the suit claim, inter alia contending that Exhibit B-1 is testamentary in character and not a settlement and that no immediate interest was created in favour of the settlees as the settlor herself continued to be in possession and enjoyment of the properties and that title to the disputed items of properties was not divested from Krishnammal and vested in the plaintiff. He would further state that Krishnammal had vested the title in this defendant pursuant to the execution of Exhibit B-2, by and under which Krishnammal had revoked Exhibit B-1 and settled the properties in his favour and handed over possession thereof. According to him, the reference made in the plaint to the order in G.R.O.P. No. 275 of 1966 is irrelevant as this defendant has preferred an appeal against that order before the District Court in A.S. No. 103 of 1968, which was then pending the District Court, Chingleput. (It is to be noted that the said A.S. No. 103 of 1968 is now transferred and has been renumbered as A.S. No. 720 of 1977 in this Court). This defendant therefore has got the right to lease the properties and hence he is not liable to pay half the income to the plaintiff or to render any account of the income.
5. The second defendant filed a separate written statement denying any knowledge of the execution of Exhibit B-1. According to him, he has become a lessee bona fide under the first defendant on executing a registered lease deed Exhibit B-5, dated 1st September, 1967 and has expended a sum of Rs. One lakh for putting up a semi-permanent theatre and is willing to pay the lease amount to whomsoever the Court directs.
6. C.R.O.P. No. 245 of 1974 is a reference under Sections 30 and 31(2) of the Land Acquisition Act, which has given rise to A.S. No. 403 of 1976. This relates to a dispute between the rival claimants Dhanalakshmi Ammal and Damodaram Pillai, viz-, the plaintiff and the first defendant in O.S. No. 192 of 1974 with respect to some of the items of properties acquired by the Government, viz 10 cents in S. No. 65, 1 acre 27 cents in S. No. 67/1, and 1 acre in S. No. 67/2 in Nandambakkam Village, Saidapet Taluk, in Award No. 1 of 1974 and with respect to Damodaram Pillai's claim of the entire compensation amount awarded. Thus, whilst Damodaram Pillai Would claim the entire compensation amount on the basis of Exhibit B-2, Dhanalakshmi Would claim a half share in the compensation amount on the basis of Exhibit B-1.
7. Since a common question of law is involved both the suit and the G.R.O.P. were jointly tried and a common judgment was rendered by the trial Judge holding that Exhibit B-1 is only a settlement and not a will that Exhibit B-2 is not valid, though true, that Damodaram Pillai had no right to lease out the entire second item of the property to the second defendant, that the plaintiff is entitled to a decree for Rs. 2,625 towards her half share in the rental income from item 2 which the first defendant was directed to pay, he having collected the same from the second defendant, and that the plaintiff was also entitled to a decree for an account of the future profits and that the second defendant should pay half of the rent to the plaintiff. On the abovesaid findings, the trial Court granted a preliminary decree in favour of the plaintiff as prayed for with costs, in O.S. No. 192 of 1974.
8. In view of the finding on Issue 1 in O.S. No. 192 of 1974, the learned Subordinate Judge gave a declaration that each of the claimants in G.R.O.P. No. 245 of 1974 is entitled to a half share in the compensation amount less the process fee.
9. A.S. No. 720 of 1977 is filed by Damodaram Pillai, the fifth claimant in C.R.O.P. No. 275 of 1966 challenging the order of the Subordinate Judge that Exhibit B-1, is a settlement and not a will and as such Dhanalakihmiammil, the second claimant therein, was entitled to a half share in the compensation deposited in Court towards the value of the acquired properties, viz., 74 cents in S. No. 75/1-B.
10. At the decision in all these three appeals has to rest only on the determination of certain common legal questions, we have decided to render a common judgment. The common questions that arise for our consideration are:
1. Whether Exhibit B-1 is a settlement or a will.
2. Even assuming that Exhibit B-1 is a settlement whether the settlee Dhanalakshmi Ammal has accepted the settlement for holding that the transaction in dispute was completed.
11. We shall first of all examine Exhibit B-1 and see whether it is a testamentary or a non-testamentary instrument. A careful scrutiny of the document would show that the settlor Krishnammal has sytled and characterised Exhibit B-1 as a settlement at several places in the body of the document and had executed the same in favour of her grand-children born through her two daughters, with a specific recital that only both the settlees are entitled to the properties but on a condition that the settlor had to enjoy the income out of the properties during her lifetime and thereafter the settlees could enjoy the properties with absolute powers of alienation. The relevant recital reads as follows:
A meticulous analysis of the above recital unfolds that the settlor had intended to vest the title to the property on the settlees in praesenti but to postpone the enjoyment of the properties by the settlees till the settlor's death, and hence she would characterise the document as a settlement.
12. It is well-settled that the nomenclature given to a particular document by the executant is not conculusive and the nature or legal character of a document has to be ascertained from the contents thereof. In construing a document, the fundamental rule is to ascertain the intention of the executant of the document from the words used and the other surrounding circumstances appearing in the case vide Ram Gopal v. Nand Lal and Ors : 1SCR766 . See also Abdulla Ahmed v. Animendra Kissan Milter : 1SCR30 . and Chinnathayi v. Kulasekara : 1SCR241 . Reference can also be made to the decision of the Supreme Court in Pandit Chunckun Jha v. Sheikh Ebabat Ali : 1SCR174 . where in it has been pointed out that while interpreting the terms of a document, the intention of the parties should betaken as the determining factor and that the said intention must be gathered from the document itself which has to be construed for finding out the legal effect of the word used by the parties. It is further pointed out that if the words are express and clear, effect must be given to litem, that any extraneous enquiry into what was thought or intended is ruled out and that if, however, there is ambiguity in the language employed, then it is permissible to look into the surrounding circumstances to determine what was intended and that each case has to be decided on its own facts and each document has to be construed on its own terms. A Division Bench of this Court, to which one of us was a party in Khivaraj Chordia v. Esso Standard Eastern Inc. : AIR1975Mad374 . while examining the principle to be followed in interpreting documents, has held that notwithstanding the restrictions and calculations imposed by operation of technical rules, a liberal construction of a written document is to be made because of the simplicity of the laity and with a view to carry out the intention of the parties and affirm the document and that the words used in written instruments ought to be made subservient, not contrary to the intention of the parties. The Supreme Court in Central Bank of India v. Hartford Fire Insurance Company : AIR1965SC1288 . has pointed out that the Court must give effect to the plain meaning of the words used in the document, however it may dislike the result, and that the plaint and categorical language used in any document cannot be radically changed by relying upon the surrounding circumstances. Thus, it is clear that the intention of the parties has to be gathered and ascertained first of all only from the language used in the instrument as understood in its plain, ordinary and popular sense, and if the Words are express, clear and unambiguous, effect should be given to them without subjecting them to any extraneous enquiry. In Ex parte Chick, In re, Meredith (1879) 9 Gh.D. 731. Brett, L. J. following the rule of construction laid down in the earlier cases, has stated that in construing instruments one must have regard, not to the presumed intention of the parties, but to the meaning of the words which they have used.
12. A Division Bench of this Court in Ramaswami Maidu v. Velappan and Ors. (1979) 2 M.L.J. has laid down the following important tests in deciding a document, as to whether it is a settlement or a will:
1. The nomenclature used by the settlor in sytling the document;
2. The express dispositive words used which touch upon the time when the vested interest is created;
3. The reservation of the power of revocation in the instrument;
4. The effect of the reservation of a life estate in favour of the executant under the instrument;
5. Registration of the document under the appropriate law.
Now, if We examine Exhibit B-1 in the light of the above authoritative enunciations of law pronounced by the Supreme Court and the various High Courts, we are of the view that all the necessary and requisite ingredients and conditions for constituting a document a settlement are satisfied in this case and therefore the settlor Krishnammal had intended to create Exhibit B-1 only as a settlement and not as a will. Exhibit B-1 is Written on stamp papers requisite to the value of the settlement deed and registered. The settlement, in unequivocal and clear, terms, had expressed her intention to vest the title in respect of the property on the settlees inpraesenti though she postponed the enjoyment to a later date. It is unambiguously stated in Exhibit B-1 in three places that both the settlees should get the properties in equal shares What the settlor had reserved for herself during her lifetime Was only the right to get the income out of the settled properties, and not the corpus. Further, there is yet another recital in Exhibit B-1' revealing the intention of the set or, reading as follows:
As pointed out in Amar Singh v. Gosai : AIR1972Guj74 .
Whether an instrument is a testamentary instrument or a non-testamentary one will depend on the two well-known tests, whether by the said instrument disposition takes effect during the lifetime of the executant of the instrument or whether it takes effect after his demise, and consequently whether it is revocable or not.
Reference can also be had to the decision in Khushalch and Bhagchand v. Trimbak Ramachandra : AIR1947Bom49 . wherein it was held as follows:
The mere reservation of a life estate does not necessarily indicate that the document is testamentary and that, therefore, the grant is revocable.
See also Ignatia Brito v. Rego : AIR1933Mad492 and Mohodeva Iyer v. Sankarasubramania Iyer : (1908)18MLJ450 . The subsequent conduct of the settlor and the settlee also reveals that there was an immediate vesting of title on the settlees and that the parties in the acquisition proceedings have acted only as per the terms of Exhibit B-1. Krishnammal, the first claimant in C.R.O.P. No. 275 of 1966 in all her statements given before the Land Acquisition Officer, marked therein as Exhibits B-3(dated 22nd January, 1961) B-4(dated 22nd February, 1961), B-5(dated 18th June, 1962), B-1(dated 17th July, 1962), B-7(dated 27th March, 1963) and A-6(dated 27th August, 1964), and in her evidence given before the learned Subordinate Judge in the said proceedings, has affirmed and reaffirmed her intention in clear terms that only her grand-daughter the plaintiff would get her properties. Krishnammal had not only expressed her intention of vesting the title on the plaintiff but also would go one step further and say in Exhibits D-3 D-4 and B-5 marked in C.R.O.P. No. 275 of 1966 that since by then Natarajan, another settlor, had passed away, the entire properties covered by Exhibit B-1 should go only to the plaintiff and Damodaram Pillai had no right or title over the properties in any manner. Though in Exhibit B-7 marked in the proceedings in C.R.O.P. No. 275 of 1966, the entire compensation has been claimed, in paragraph 9 of Exhibit B-7 she would state-as follows:
That Dhanalakshmi Ammal alias Kuttiammal, the grand daughter of the claimant by her daughter Kannammal (the second wife of Damodaram Pillai) will be entitled to one hall of the compensation amount absolutely after the life time of the claimant as per the terms and conditions of the settlement deed executed by this claimant hereinbefore referred to.
Thus, it is seen that Krishnammal, though would claim the entire compensation, would unhesitatingly recognise the right of the plaintiff to a half share in the corpus or the compensation amount, subject to the condition that she would be entitled to get the said amount after the lifetime of the settlor.
13. Exhibit A-6, the other statement given by Krishnammal before the Land Acquisition Officer in the said proceedings in C.R.O.P. No. 275 of 1966, is an important and clinching document showing that Krishnammal had completely ignored Exhibit B-2 and reiterated only what she had intended under Exhibit B-1. This statement Exhibit A-6 was given on 27th August, 1964, that is to say, four months after the execution of Exhibit B-2 dated 2nd April, 1964. In Exhibit A-6, Krishnammal would state:
If Krishnammal had really intended to revoke Exhibit B-1 and resettle the property in favour of her son-in-law Damodaram Pillai, she would not have omitted to make mention of Exhibit B-2 in this statement but would have expressed her intention that only Damodaram Pillai would get the properties. Thus, it is clearly established that the settlor, by her subsequent conduct in Exhibits B-1 and B-2, also had, intended to settle the property in favour of Dhanalakshmi Animal, by immediately vesting the title on the settlee, but postponing only the enjoyment of the property.
14. For all the above stated reasons, we unhesitatingly hold that Exhibit B-1 is only a settlement and not a will and affirm the finding of the trial Court on the first question.
15. At this juncture, it Would be relevant to mention that Mr. Govind Swaminathan, learned Counsel appearing on behalf of the appellant, in fact did not advance any serious argument challenging the finding of the trial Court that Exhibit B-1 is only a settlement, though at the same time had not completely conceded the correctness of the said finding. The main contention of Mr. Govind Swaminathan, is that the transaction has not been completed as there is no acceptable evidence showing that the settlement has been accepted by the settlee during the lifetime of the settlor, as contemplated under Section 122 of the Transfer of Property Act, Mr. Govind Swaminathan, stressing on the important condition of a gift specified in the above section, viz, the acceptance of the gift by or on behalf of the donee during the lifetime of the donor, Would urge that the said essential element has not been satisfied in the present case as there is no satisfactory and acceptable evidence on the side of the plaintiff that she or anyone on her behalf had accepted the settlement during the lifetime of Krishnammal, and therefore the impugned transaction under Exhibit B-1 cannot be said to have been completed within the meaning of Section 122 of the Transfer of Property Act. He Would also bring to our notice that the trial Court has not framed any issue on this aspect or rendered any finding as to the acceptance of the gift. According to the learned Counsel, as Krishnammal continued to be in possession of the property, there was no vesting of title in praesenti on the settlees and as Exhibit B-1 has been revoked by Exhibit B-2, it has to be held that Exhibit B-1 is no more in effect. The learned Counsel would therefore submit that in case this Court does not accept the above argument, this Court may be pleased to direct the Court below to frame an issue on this aspect and to render a finding.
16. Before launching a discussion on the legal question as to whether the transaction under Exhibit B-1 is void or not, we would like to answer the last submission made by the leaned counsel.
17. While discussing the first question formulated by us, viz., whether Exhibit B-1 is a settlement or a will we have given our reasons elaborately and held that the settlor Krishnammal had vested the title over the suit items of properties on the settlees Dhanalakshmi Ammal and Natarajan on the date of the execution of Exhibit B-1 itself that is to say in praesenti though she had reserved to herself the right of enjoying the fruits of the corpus during her lifetime and thereby postponed the right of the settlees to enjoy the properties. Therefore, there is no question of Exhibit B-1. becoming ineffective or inoperative on the ground of there being no vesting of title in praesenti on the settlees.
18. Now, we shall pass on to the important question of law raised by Mr. Govind Swaminathan. Section 122 of the Transfer of Property Act reads as follows:
Gift is the transfer of certain existing : movable 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.
Such acceptance must be made during the lifetime of the donor and while he is still-capable of giving.
If the donee dies before acceptance, the gift is void.
Sections 122 to 129, coming under Chapter VII. of the Act, under the heading 'Of Gifts' deal with various aspects of a gift, viz., regarding the effect of transfer, suspension and revocation of gift, etc. Section 122, which defines a 'gift' contemplates the acceptance of the gift by or on behalf of the donee during the lifetime of the donor, as one of the elements for holding the said transaction as a completed one. Mr. Govind Swaminathan, in support of his argument, relied on the decision in Papathi Ammal v. Doraiswamy Naicker : AIR1939Mad290 . which in turn follows the decision of the Privy Council in Kalyanasundaram Pillai v. Karuppiah Moopanar . In the above decision, it has been held that a gift of immovable property which has not been accepted by the donee is incomplete, though the deed of gift has been executed and duly registered by the donor; that the donor is entitled to revoke the gift prior to its acceptance by the donee, and that registration would not confer upon any invalid transfer a validity which is lacking in the very substance of the transaction.
19. There cannot be any controversy that acceptance of a gift by the donee is one of the essential conditions for the completion of the gift. Therefore, the question in this case is whether the settlement had been accepted by the plaintiff. Mr. Raghavan, learned Counsel appearing on behalf of the respondents, submitted that there is abundant evidence for concluding that the settlement had been accepted by the plaintiff as seen from the evidence of the plaintiff herself even in the proceedings in G.R.O.P. No. 275 of 1966 as CW.2. in December, 1977 when Krishnammal, the settlor herself was alive, and from the recitals in the various documents. Incidentally, Mr. Raghavan would point out that Damodaram Pillai, the first defendant, as appellant in A.S. No. 720 of 1977, has not taken up in the memorandum of appeal therein the ground that the said finding in G.R.O.P. No. 275 of 1966 rendered by the Subordinate Judge, Chingleput, is vitiated as there is no evidence as to the acceptance of the settlement, and would further submit that there is no issue framed on this question of acceptance, by the trial Court, presumably for the reason that the first defendant did not press this ground seriously before the trial Court, nor did he request the trial Court to frame such an issue perhaps on account of the awareness of the first defendant of the fact of the acceptance of the settlement by the plaintiff even during the lifetime of Krishnammal.
20. Though in the Memorandum of Appeal in A.S. No. 720 of 1977 no such ground has been urged, nevertheless ground No. 5 in A.S. No. 404 of 1976 is to the effect that Exhibit B-1 is not a valid document as a gift as it Was not accepted by the plaintiff or anyone on her behalf during the lifetime of Krishnammal. Whether there was any ground taken in the Memorandum of appeal or not, there cannot be any bar for the contesting party to raise a legal question during the hearing of the appeal if that legal question relates to an infirmity surrounding the transaction and going to the very root of it. Notwithstanding the fact that such aground has not been taken in A.S. No. 720 of 1977 and that no issue was also set for trial in the suit, we shall now examine the evidence and see whether Exhibit B-1 was accepted by the plaintiff or not immediately after its execution.
21. As pointed out during the narration of the facts, Natarajan, the other settlee under Exhibit B-1, died within a year. The remaining settlee was only the plaintiff who, during the execution of Exhibit B-1 should have been aged about 21 or 22 and hence under the protection of her father and grandmother Krishnammal. Therefore, it cannot be said that the failure to effect the mutation of the registers in the name of the plaintiff immediately following the execution of Exhibit B-1 would be tantamount to nor.-acceptance of the settlement by her. It is quite understandable that the plaintiff, being an unmarried woman, would not have taken steps for the mutation of the registers in her name. Now, we have to see whether, apart from the mutation of register, there is any satisfactory and acceptable evidence in proof of the acceptance of the settlement, as contemplated under Section 122 of the Transfer of Property Act.
22. Section 122 of the Transfer of Property Act, does not contemplate any particular mode of acceptance or the performance of any solemn formality for establishing acceptance. The Privy Council in Kalyanasundaram Pillai v. Karuppiah Moopanar I.L.R. (1927) Mad. 193 : 52 M.L.J. 346 : 25 L.W. 336 I. A. 89. while examining the scope of Section 122, has held at page 200, as follows:
When the instrument of gift has been handed by the donor to the donee and accepted by him, the former has done every tiling in his power to complete the donation and to make it effective.
In Mst. Anandi Devi v. Mohan Lal : AIR1932All444 it was held that under Section 122 of the Transfer of Property Act there is no presumption of acceptance operating immediately upon the gilt, whether known or unknown to the donee, that there is nothing in Section 122 to limit the acceptance to an express acceptance and that acceptance may be either express or implied, and that actual or constructive possession is undoubtedly proof of acceptance.
23. The Patna High Court in Muhamed Abdul Nayeem v. Jhonti Mahton (1917) 41 I. G. 389. has ruled thus (vide head-note):
Among Hindus gifts made subsequent to the Transfer of Property Act do not require delivery of possession if there is registration. It is essential to a Hindu gift that there should be acceptance by the donee. But acceptance may be express or implied, acceptance being presumed unless dissent is signified.
In Halsbury's Laws of England, IV Edition, Volume 20, at page 28, paragraph 47, it is stated as follows:
Express acceptance by the donee is not necessary to complete a gift. It has long been settled that the acceptance of a gift by the donee is to be presumed until his dissent is signified, even though he is not aware of the gift. This is so even where the gift is of an onerous nature or of what is called 'an owner's trust.
In Krishnamurthi v. Vinkata Ramanaiah (1958) 2 An.W.R. 343 : A.I.R. 1958 A.P. 13. the Andhra Pradesh High Court, while dealing with a similar question as to what constitutes the acceptance of a gift, has observed that the acceptance of a gift deed is not something which has necessarily to take place only after the transfer is completed or effected, and that if a near relation seeks a gift and a gift deed is drawn because of that request, it would be open to the Court to hold on the basis of that antecedent request at any rate in the light of the surrounding circumstances that the intended transfer of property was accepted. It was further observed that the law does not require that there should be proof that there was acceptance only after the deed was executed and that there can merely be cases where it would be possible to draw an inference as to the acceptance of a gift even from acts anterior to the execution of a deed of gift.
24. In Venkattaramayya v. Nagamma : AIR1932Mad272 . this Court held that where a gift is made of a house by the mother to her son and his wife, while they were both minors, and afterwords the donees and the husband's parcants, who alone could accept the gift on behalf of the minors, continued to live in the house, acceptance of the gift should be inferred unless the contrary is proved, and that the mere circumstance that the mother retained custody of the deed and kept the house in her name in the Municipal accounts and paid the taxes, does not show that she did not intend the gift to be acted upon.
25. The Kerala High Court, in Kolandivel Ammal v. Changaran and Ors. : AIR1963Ker344 . hold that where 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, there was acceptance of the gift by the donee.
26. In another decision in Narayani Bhanumathi v. Lalitha Bai 1973 K.L.I. 961. the Kerala High Court while examining the evidence required for proof of acceptance of a gift as contemplated under Section 122 of the Transfer of Property Act, has held thus:
The evidence bearing on the question of acceptance of the gift deed will have to be appreciated in the background of the circumstance relating to the execution of such a deed. There may be cases where slightest evidence of such acceptance would be sufficient. There may be still cases where the circumstances themselves eloquently speak to such acceptance. Normally, when a person gifts properties to another and it is not an onerous gift, one may expect the other to accept such a gift when once it comes to his knowledge since normally any person would be only too willing to promote his own interests. May be in particular cases there may be peculiar circumstances which may show that the donee would not have accepted the gift. But they are rather the exceptions than the rule. It is only normal to assume that the donee would have accepted the gift deed. One would have to look into the circumstances of the case in order to see whether acceptance could be read. Mere silence may sometimes be indicative of acceptance provided it is shown that the donee knew about the gift. Essentially, this is a question of fact to be considered on the background of circumstances of each case.
Thus, on a consideration of the dicta laid down by the various Courts in the cases referred to above and on our own interpretation of Section 122 of the Transfer of Property Act, we are of opinion that the acceptance of the gift may be done in several ways. As we have already stated, Section 122 does not lay down any procedure or prescribe any mode for the acceptance of a gift. The acceptance may take the form of the receiving of the original deed of settlement for the donee, the mutation of names in the public registers, the payment of taxes in the name of the donee, the receipt of rent from the tenants in possession of the property forming the subject-matter of the gift, the proclamation of the settlement transaction by the donor and an acceptance by the donee of the correctness of the said statement in token of the acceptance of the transaction, etc. The several instances referred to above by us are only enumerative and not exhaustive in character and content. In this perspective if the facts of the present case are scrutinised, we feel that there is sufficient material for arriving at the conclusion that the gift had been accepted. The plaintiff as G.W.1 has deposed before the Subordinate Judge in the enquiry in G.R.O.P. No. 275 of 1966 as follows:
I accepted the settlement.
This evidence given in the chief examination has not been challenged in her cross-examination, nor has any suggestion been made to her that she has not accepted the settlement. In her evidence, she would further state that she was living with her grandmother Krishnammal and that Krishnammal was enjoying the income of the property settled, utilising the said income for maintaining herself and the plaintiff. Damodaram Pillai, giving his evidence as G.W.1 in that proceeding, would state that Krishnammal, the first claimant therein, continued to be in enjoyment of the properties and that Damodaram Pillai was looking after the properties and that at the time of the execution of Exhibit B-1, the plaintiff was a major but not married and that she-was residing with him and Krishnammal and was married only in 1959. He would further state in the Chief Examination itself that Krishnammal, the settlor, told the Tahsildar during the land acquisition proceedings that the compensation amount Was payable to her grand-daughter, the plaintiff herein. Thus,. Damodaram Pillai himself would admit that the settlor had continued to express her intention that the compensation amount deposited in the Court should go only to the plaintiff.
27. Thus, we see that there is satisfactory evidence to show that the settlor was affirming and re-affirming her intention on all occasions that the property and the compensation amount payable in respect of the acquired property should go only to the plaintiff and that the plaintiff had accepted the settlement in her favour. The plaintiff, in her statement filed on 9th October, 1966, before the learned Subordinate Judge, Chingleput in C.R.O.P. No. 275 of 1966, has averred as follows:
The settlement deed so executed by Krishnammal was accepted by this claimant and Natarajan and they were in possession and enjoyment.
The only statement on which Damodaram Pillai relies for showing that Krishnammal herself has expressed that the plaintiff did not at all accept the settlement, is the one filed by Damodaram Pillai on 1st October, 1966, in C.R.O.P. No. 275 of 1966, which statement is purported to have been adopted by Krishnammal. In that statement it has been stated as follows:
Krishnammal having been subjected to undue influence of some interested person purported to have executed a will in respect of all the properties bequeathing them in favour of Natarajan and Dhanalakshmi on 15th October, 1956. Although it has been styled as settlement deed, it was only a will. Notwithstanding the execution of the above said instrument, Krishnammal continued to be in possession and enjoyment of all the lands. Natarajan and Dhanalakshmi did not at all accept the alleged settlement, nor did it come into operation.
The above statement is nothing but a self-serving statement of Damodaram Pillai himself. The endorsement to the effect that Krishnammal had adopted the last mentioned statement of Damodaram Pillai in its entirety has not been signed by Krishnammal, but only by the counsel, and therefore it cannot be said that Krishnammal herself had admitted the correctness of the statement with full knowledge of the allegations contained therein. We are fortified in this view by the statement given by Krishnammal herself before the Land Acquisition Officer on 27th August, 1964, marked as Exhibit A.6 in G.R.O.P. No. 275 of 1966, to the effect that after her death the entire property should go only to her grand-daughter (the plaintiff. This statement was given only after the execution of Exhibit B-2 dated 4th April, 1964 by her. If really Krishnammal had Intended by Exhibit B-2 to revoke Exhibit B-1 on the basis that the plaintiff had not accepted the settlement and as such it had not come into operation, she would not have given the above statement Exhibit B-6 before the Land Acquisition Officer.
28. As pointed out supra, Krishnammal had reiterated that the settlement Exhibit B-I was executed with the intention of immediately vesting the title on the settlees in almost all her statements given before the Land Acquisition Officer. The plaintiff, in her statement dated 27th August, 1964, before the Land Acquisition Officer, marked as Exhibit A-7 in G.R.O.P. No. 275 of 1966, has accepted the statement of her grand-mother in Exhibit A-6 dated 27th August, 1964 and consented to handover to her grandmother the compensation amount deposited in Court in respect of the land in S. No. 75/1B. In Exhibit B-5 dated 18th June, 1962, another statement given before the Land Acquisition Officer, Krishnammal had stated as follows:
In Exhibits B-3 and B.4 marked in G.R.O.P. No. 275 of 1966 also, the settlor had reiterated that as per the settlement deed Exhibit B-1, the entire property should go only to the plaintiff. Above all, the original deed of settlement Exhibit B-1 was only in the possession of the plaintiff, the settlee, and it was the plaintiff who has produced the same into the Court.
29. All the above stated facts and circumstances would unmistakably reveal that the plaintiff has accepted the gift even during the lifetime of the settlor Krishnammal. Therefore, we find that the transaction under Exhibit B-1 has been completed by the acceptance thereof by the plaintiff, the settlee, and therefore, the said document is quite operative and enforceable and consequently Exhibit B-2 is not a valid document.
30. Though the trial Court has not framed any issue on the above aspect or rendered any finding thereon, there is sufficient evidence recorded in all the proceedings on this aspect for rendering a decision on the question of acceptance of the settlement. As a matter of fact, though the first defendant in O.S. No. 192 of 1974 had raised a plea in the written statement that the settlement had not been accepted, the parties seem to have been at issue in the proceedings only on the question whether Exhibit B-1 was a settlement deed or a will, and furthermore if it was a settlement deed, it satisfied all the requirements of law, including the acceptance of it by the donee. However in view of the contentions raised by Mr. Govind Swaminathan, we have ourselves discussed the above question and come to our own conclusion instead of calling for a finding from the Court below after framing the necessary issue as pleaded by the learned Counsel for the appellant.
31. In the result, all the appeals fail and would stand dismissed, with costs in A.S. No. 404 of 1976 against the first defendant alone. The parties will bear their respective costs in the other two appeals.