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2007 Supreme(Ori) 876
2008 (I) OLR (SC) — 166
S.B. SINHA AND HARJIT SINGH BEDI, JJ
Asokan... Petitioner
Versus
Lakshmikutty & Ors.... Respondents
Civil Appeal No. 5942 of 2007
[Arising out of SLP (Civil) No. 20754 of 2003]
Decided on 14th December, 2007.
Headnote:1. TRANSFER OF PROPERTY ACT, 1882 - Secs. 122 and 123 - Deed of gift - Handing over possession of the property - Gifts do not contemplate payment of any consideration or compensation - In order to constitute a valid gift acceptance thereof is essential - The Act does not prescribe any particular mode of acceptance - It is the circumstances attending to the transaction which may be relevant for determining the question - There may be various means to prove acceptance of a gift - The document may be handed over to a donee, which in a given situation may also amount to a valid acceptance - The fact that possession had been given to the donee also raises a presumption of acceptance.
While determining the question as to whether delivery of possession would constitute acceptance of a gift or not, the relationship between the parties plays an important role. It is not a case that the appellant was not aware of the recitals contained in deeds of gift. The very fact that the defendants contend that the donee was to perform certain obligations, is itself indicative of the fact that the parties were aware thereabout. Even a silence may sometime indicate acceptance. It is not necessary to prove any overt act in respect thereof as an express acceptance is not necessary for completing the transaction of gift.(Paras - 14 and 16)
2. GIFT - Registered document - When a registered document is executed and the executors are aware of terms and nature of the document, a presumption arises in regard to the correctness thereof - When such a presumption is raised coupled with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and not on the donee. (Para - 20)
3. TRANSFER OF PROPERTY ACT, 1882 - Sec. 122 - Gift - Essential elements of :
(i)the absence of consideration;
(ii)the donor;
(iii)the donee;
(iv)the subject matter
(v)the transfer; and
(vi)the acceptance. (Para - 13)
4. GIFT - Registered - Rescind - Once a gift is complete, the same cannot be rescinded - For any reason, the subsequent conduct of a donee cannot be a ground for rescission of a valid gift.
(Para - 31)
5. GIFT - Payment of consideration - Concept of payment of consideration in whatever form is unknown in the case of a gift - It should be a voluntary one - It should not be subjected to any undue influence. (Para - 15)
6. EVIDENCE ACT, 1872 - Secs. 91 and 92 - Gift deed - Registered document - Mention of handing over of possession of the property - Acceptance - Once a gift is complete, the same cannot be rescinded - For any reason whatsoever the subsequent conduct of a donee cannot be a ground for rescission of a valid gift. (Para - 31)
JUDGMENT
S.B. SINHA, J : — 1. Leave granted.
2. Whether an averment made in the deed of gift in regard to handing over of possession is sufficient proof of acceptance thereof by the donee is the question involved in this appeal which arises out of a judgment and order dated 9.07.2002 passed by the High Court of Kerala at Ernakulam in S.A. No. 606 of 1993.
3. Defendant Nos. 1 and 2 are the parents of the appellant herein. A deed of gift was executed by Defendant No. 2 - Respondent No. 1 (mother of the appellant) herein in favour of the appellant on or about 4.01.1984. He was said to have been put in possession of the properties covered by the deed of gift. It was a registered document. Defendant No. 1 (father of the appellant) (since deceased) also executed a registered deed of gift dated 17.03.1984 in his favour which was marked as Exhibit A-2 before the learned Trial Judge; relevant averments wherein were:
"The said 28 cents was divided into two equal portions. On the southern extreme side of the southern 14 cents after the said division there existed a kudikidappu (hut) of one Konnothu George. Three cents and the said hut was demarcated and given to the said George. Lakshmikutty, your mother, purchased the rights of George over the said three cents and the hut thereon vide registered document No. 2214 of 1980. The said property was later gifted by her to you vide Document No. 78 of 1984. The 11 cents of land, remaining after demarcating the above said three cents from the 14 cents, namely the southern one half portion of the 28 cents that originally belonged to me, is still in my possession and enjoyment with all rights. Out of my love and affection for you and in view of the fact that you are my son and successor the said property having a value of Rs. 5,500/- is gifted to you for leading a good family life. I am hereby relinquishing all my rights over the property. The possession of the property is handed over to you and you have accepted the same."
4. Defendants, however, on the premise that the said gift was an onerous one and the appellant did not fulfil the conditions therefor, viz., failure to contribute a sum of Rs. 1,00,000/- at the time of marriage of his sister, cancelled the said deeds of gift by two documents executed on 15.06.1985.
5. Appellant filed a suit inter alia for a declaration that he was the absolute owner of the suit properties. Prayer for setting aside the said two deeds of cancellation was also made therein.
6. Contentions of the defendants in their written statements were that:
(i) Appellant had not been rendering any financial help to the family although he was employed in Sultanate of Oman;
(ii) Appellant had not accepted the said gifts.
7. Defendants in their evidence stated that the appellant had promised to pay Rs. 1,00,000/- to them but after returning to Oman, he changed his mind and was not prepared to send the said sum.
8. The learned Trial Judge decreed the said suit opining that the ingredients of Sections 122 and 123 of the Transfer of Property Act had been fulfilled and, thus, the same could not have been rescinded by the mere fact that the donors feeling towards the donee underwent a change.
9. Before the learned Trial Judge, an apprehension was expressed that in the event a decree is passed, the appellant may evict his parents which was refused to be gone into on the ground that such a question might arise only in the future.
The First Appellate Court, however, reversed the said findings opining that there had been no overt act of possession on the part of the appellant as he had not paid any tax nor he got his name mutated in the revenue records. It was noticed that even the deeds of gift were produced by the defendants.
10. The High Court by reason of the impugned judgment affirmed the said view.
11. Mr. M.P. Vinod, learned counsel appearing on behalf of the appellant, submitted that the first Appellate Court as also the High Court committed a serious error in ar
