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2018 Supreme(SC) 1086

ARUN MISHRA, INDIRA BANERJEE
S. SAROJINI AMMA – Appellant
Versus
VELAYUDHAN PILLAI SREEKUMAR – Respondent


Judgement Key Points
  • 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




























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