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KERALA HIGH COURT
N.K. Balakrishnan, J.
Parameswaran —Appellant
versus
Lekshaman —Respondent
R.S.A. No. 261 of 2005
Decided on 7.1.2013
Counsel for the Parties:
For the Appellant:Mr. K. S. Bharathan, Advocate.
For the Respondents:Mr. P. K. Muhammed, Advocate.
IMPORTANT POINT
Donor/executant of gift deed has no right to unilaterally cancel the document.
Headnote:(i) Transfer of Property Act, 1882—Section 123—Gift—Ingredients—Gift is a gratuitous transfer and as such terms depicting mutuality or reciprocity cannot be present in a gift deed—There is no clause or stipulation in deed entitling settlor to revoke deed—Mutuality and reciprocity can only be a condition that can be found in a Will and not in a settlement or gift deed as per which there would be complete divestiture of title in favour of donee. (Para 9)
(ii) Transfer of Property Act, 1882—Section 123—Gift—Revocation of—When it is proved that there was a valid gift and it was accepted by donee/plaintiff it cannot be unilaterally revoked by donor/settlor incorporating a self serving recital that gift was not accepted, for, donor does not thereafter desire to have gift deed to be valid and operative—Where donor of immovable property has handed over to donee property’s title deed and when original gift deed also was taken by donee, there is evidence of acceptance and as such it has to be held that gift is complete leaving no power of revocation with donor—Lower appellate court went wrong in holding that donor had reserved right of possession and enjoyment of property—What was reserved was only right of residence—There was actually parting of possession and divestiture of right in favour of donee—Finding that there was no complete divestiture of title is unsustainable—Impugned judgment set aside and judgment of Trial Court restored. (Paras 15 and 17)
Result: Second Appeal allowed.
N. K. Balakrishnan, J.—The substantial question of law involved in this Second Appeal is:
Whether the gift in favour of the plaintiff was accepted and completed and if so, whether the Revocation Deed executed by Kali is valid?
2. Ex.A2 is the gift deed/settlement deed dated 23.7.1990. It was admittedly executed by plaintiff smother Kali in favour of the plaintiff pertaining to the plaint schedule property admeasuring 6 cents with a residential house situated therein. Ex.A5 is the cancellation deed dated 10.4.1996 executed by Kali mentioned above, who at that time was aged 84 years. The plaintiff filed a suit to set aside Ex.A5. The Trial Court decreed the suit holding that Ex.A2 gift deed had taken effect and so Ext.A5 cancellation deed is invalid and inoperative.
3. The first defendant who is the brother of the plaintiff and the second defendant who is the nephew of the plaintiff challenged the judgment and decree of the Trial Court. The appellate court reversed the decree and judgment of the Trial Court and held that Ex.A5 cancellation deed is valid: Hence the suit was dismissed.
4. The construction of two documents Exs.A2 and A5 would to a great extent resolve the dispute. Since the execution of Ex.A2 was practically admitted by Kali, as admitted in Ex.A5, the question to be considered is whether Ex.A2 is a gift deed/settlement deed or is it a Will. The translation of the relevant portion of Ex.A2 reads as:
“Since you are depending on me and because of my special love and affection towards you, and for your livelihood (sic), I intend and desire to settle this property in your favour and as per this document. I have given possession of the property to you, But, in the house situated in the said property, I will have right of residence alongwith you and you shall not interfere with my right of residence. With these terms, I have with my full volition decided and given possession of the property to you absolutely and hereafter you shall possess property, effect mutation, pay the tax and posses the house alongwith me till my death and thereafter by you only with absolute right of alienation.”
5. It is also mentioned in Ex.A2 that at the time of execution of Ex.A2 prior title deed/partition deed as per which the settlor had obtained right was handed over to the settlee. The learned counsel for the appellants submits that the recitals in Ex.A5 cancellation deed would show that the execution of the documents was practically admitted. It is stated that “on or from the date of Ex.A5, she intended or desired that plaintiff should not be in possession of the property. Even if it is accepted that it is only an improper Malayalam usage adopted in the document, still it can be seen that Ex.A2 contains recitals that the possession was given to the settlee and that she also parted with her absolute right over the property in favour of the plaintiff subject to her right of residence in the house situated in the property. It is so manifest that it can never be construed otherwise. Since the right of residence alone was retained by the settlor and there was divestiture of title to the property in favour of the settlee, the contention that Ex.A2 is to be construed only as a Will cannot be accepted at all. The fact that right of residence was reserved in favour of the executant/settlor is not a reason to hold that the document was to take effect only on the death of the donor/settlor.
6. It was held by this Court in Alavi v. Aminakutty & Ors., 1984 KLT SN 61: (C. No. 103): 1985 KLJ 22 thus:
“It is settled law that where the deed of gift itself recites that the donor has given possession of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrar
