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SUPREME COURT OF INDIA
ARUN MISHRA, INDIRA BANERJEE, JJ.
S. SAROJINI AMMA – Appellant
VERSUS
VELAYUDHAN PILLAI SREEKUMAR – Respondent
CIVIL APPEAL NO. 10785 OF 2018 (Arising out of SLP (C) No. 35515 of 2017)
Decided On : 26-10-2018
(1997) 2 SCC 255; (2014) 9 SCC 445 – Relied upon
Facts of the case:
The question involved in this appeal is whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift. Another related question is whether a gift deed reserving the right of the donor to keep possession and right of enjoyment and enforceable after the death of the executant is a gift or a will.
Finding of the Court:
The Gift deed being conditional and incomplete could be cancelled by the doner.
Result: Appeal allowed.
A gift is defined as the voluntary transfer of existing movable or immovable property without consideration from donor to donee, accepted by or on behalf of the donee. (!) [1000623690011]
For immovable property, a gift requires a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. (!) [1000623690012]
For movable property, a gift may be effected by registered instrument or delivery. (!) [1000623690012]
A gift of future property is void. (!) [1000623690012]
A gift to multiple donees is void as to the share of a non-accepting donee. (!) [1000623690012]
Gifts may be suspended or revoked upon specified events not dependent on the donor's will, but revocable at the donor's mere will are void to that extent. (!) [1000623690012]
Gifts may be revoked in cases akin to contract rescission, excluding want or failure of consideration, and otherwise cannot be revoked except affecting transferees for consideration without notice. (!) (!) [1000623690012]
A conditional gift without acceptance recital or proof, where donor retains possession during lifetime, remains incomplete, allowing donor to retain title and cancel the deed. [1000623690014]
Reservation of donor's right to enjoy property during lifetime does not invalidate a gift if registered, executed, attested, and accepted during donor's lifetime while capable. [1000623690016]
Ownership can be gifted without immediate possession transfer, provided Section 122 conditions are met: voluntary, without consideration, and accepted. [1000623690017]
A deed executed for consideration, conditional on donee caring for donor, and effective only post-donor death, constitutes an incomplete gift revocable by donor. [1000623690018]
In factual scenario, donor (childless widow) executed deed expecting care and partial consideration, retained possession and enjoyment until death, later cancelled it; trial court decreed for donee, first appellate reversed for donor, high court reversed again, but Supreme Court allowed donor's appeal. [1000623690003][1000623690004][1000623690007][1000623690008][1000623690009][1000623690018] (!) (!) (!)
Document reserving donor's possession/enjoyment and post-death effect resembles will, not completed gift. [1000623690002][1000623690010]
JUDGMENT
Indira Banerjee, J.
Leave granted.
2. This appeal has been filed against the judgment and order dated 03.04.2017 passed by the High Court of Kerala at Ernakulam in R.S.A. No. 757/2011 whereby the High Court was pleased to allow the Second Appeal filed by the respondent and set aside the judgment and decree passed by the First Appellate Court in favour of the appellant.
3. The short question involved in this appeal is whether a document styled as gift deed but admittedly executed for consideration, part of which has been paid and the balance promised to be paid, can be treated as formal document or instrument of gift. Another related question is whether a gift deed reserving the right of the donor to keep possession and right of enjoyment and enforceable after the death of the executant is a gift or a will.
4. The appellant is a childless widow aged 74 years whose husband expired on 06.06.2015. The respondent is the nephew of the appellant (brother’s son). In the expectation that the respondent will look after the appellant and her husband and also for some consideration, the appellant executed a purported gift deed in favour of the respondent. The gift deed clearly stated that the gift would take effect after the death of the appellant and her husband.
5. According to the appellant on or about 02.06.1999, the appellant executed the deed of cancellation No. 1844/1999 cancelling the gift deed. After about eight months, on or about 01.02.2000, the respondent filed Original Suit No. 32/2000 in the Court of the learned Munsif Sasthamcotta for declaration that the cancellation deed executed by the appellant is null and void and also for declaration of his right over the suit property being the subject matter of the purported deed of gift.
6. On or about 20.03.2000, the appellant filed Original Suit being O.S. No. 97/2000 before the Court of the learned Munsif, Sasthamcotta for permanent injunction restraining the respondent or his men from trespassing or committing waste or mischief in the suit property.
7. On 12.05.2000, the appellant and her husband filed the written statement in the suit being O.S. No. 32/2000 filed by the respondent. On 25.07.2000, the defendants in O. S. No. 97/2000 filed their written statement contending that the registered document No. 687/2000 was executed for consideration.
8. By a judgment and order dated 11.12.2006, the learned Munsif, Sasthamcotta decreed Original Suit No. 32/2000 and O.S. No. 97/2000.
9. Being aggrieved, the appellant filed First Appeal being A.S. No. 30/2007 before the District Court Kollam. The defendants in O.S. No. 97/2000 filed their First Appeal before the District Court Kollam. By an order dated 23.09.2010, the Additional District Judge III, Kollam allowed the application being A.S. No. 30/2007 filed by the appellant and dismissed A.S. No. 77/2000 filed by the respondent in O.S. No. 97/2000.
10. The respondent filed Regular Second Appeal against the judgment and decree in A.S. No. 30/2007. By the judgment and order dated 03.04.2017, the High Court allowed the R.S.A. No. 757/2011 and set aside the judgment and decree in A.S. No. 30/2007.
11. On behalf of the appellant, it was contended that the document styled as gift deed was to come into effect only after the death of the appellant and her husband. The question was whether a document in terms whereof the executant of the document retained possession and reserved her right over the property being the subject matter of the document could be a deed of gift or whether such a document was a document in the nature of a will.
12. Section 122 of the Transfer of Property Act 1882 defines gift as hereunder:-
“122. “Gift” defined. – “Gift” is the transfer of certain existing moveable or immoveable 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.”
13. Some of the relevant provisions of the Transfer of Property Act, 1882 with
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