Under Section 123 of the Transfer of Property Act, 1882, a gift of immovable property is complete even without the delivery of possession provided the gift is accepted by or on behalf of the donee.

1. On 23-9-1960, Partap Singh gifted part of his agricultural land in favour of Balwant Singh, his daughter s son, by a registered deed Exhibit P. 1. Partap Singh died on 2-6-1969, and after his death, Balwant Singh applied for sanction of mutation in his favour with regard to the gifted land. The mutation was entered but it was not finally sanctioned because the natural heirs disputed the validity of the gift. Thereafter, on 17-12-1971, Balwant Singh filed the present suit to seek possession of the land which was gifted to him as the same was taken possession of by the sons and grandsons of Partap Singh in the plaintiffs absence as he was serving in the Army. Since the sons and grandsons of Partap Singh contested the suit and pleaded that the gift was not valid, one of the pleas raised was that the gift deed was not acted upon inasmuch as possession of the gifted land had not been given to the donee. The validity of the gift was also challenged under custom but during the pendency of the suit the right to challenge any alienation was taken away with retrospective effect with the result that only one point survived for consideration of the Courts below that whether there was a completed gift or not. Both the Courts below held that it was not proved that the possession of the gifted land was delivered to the donee, nor it was proved that the gift was accepted by or on behalf of the donee. Consequently, the suit was dismissed. This is second appeal by the plaintiff.

2. After hearing the learned counsel for the parties, I am of the view that the Courts below erred in law in coming to the conclusion that the gift was not accepted by the donee or his mother on his behalf. At this stage it would be worthwhile to notice that the gift in question was made at a time when Sec.123, T. P. Act, (hereinafter called the Act) was in force as it was made applicable in the year 1957 to the territory where, the gifted land is situate. Prior thereto, such gifts could be made only under the Customary Law, i.e., on the basis of para 60 contained in the Rattigan s Digest which is the general custom or under special custom, i.e., Riwaj-i-Am of a particular place which may be applicable to the contesting parties. Under the custom, the gift could be made orally but to make it valid it was necessary that the possession of the property should be delivered to the donee. Without delivery of possession, the gift remained inoperative. After Sec.123 of the Act has been made applicable, the fundamental change came about that the gift would be complete even without the delivery of possession provided the gift is accepted by or on behalf of the donee. See Sec.122 of the Act in this behalf. Even a reading of Sec.123 of the Act shows that for making a gift of immovable property, the transfer must be effected by a registered document, signed on behalf of the donor and attested by the least two witnesses. Under Sec.123 of the Act no ingredient has been laid either for the delivery of possession or for acceptance of the gift. Since the gift is defined in Sec.122 of the Act, reference has to be made to the definition of gift contained in Sec.122 and, therefore, even if the gift is made by a registered document the same has to be accepted by or on behalf of the donee to make it complete, failing which the gift will be bad. A reading of the second part of Sec.123 of the Act shows that for making a gift of movable property, the transfer should be effected either by a registered instrument or by delivery of possession. Therefore, delivery of possession in case of movable property is necessary if it is not made by a registered instrument. Otherwise, even the gift of movable property would be valid if made by a registered document and the gift is accepted by or on behalf of the donee. In this background of the law, the facts brought on the record would be appreciated for the determination of the controversy between the parties.

3. The registered gift deed was execut