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POSSESSION DELIVERED- Once a gift is complete, the same cannot be rescinded.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.

This is the gift table that my sister made.

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Appeal (civil) 5942 of 2007


Lakshmikutty & Ors.

DATE OF JUDGMENT: 14/12/2007

S.B. Sinha & Harjit Singh Bedi

J U D G M E N T 
[Arising out of SLP (Civil) No. 20754 of 2003]


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 abovesaid 
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, but 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 arriving at the aforementioned findings insofar as they failed 
to take into consideration the fact that the deeds of gift being not onerous 
ones and the factum of handing over of possession of the properties which 
were the subject matter of the gift, having been stated in the deeds of gift 
themselves, it was not necessary for the appellant to prove that he accepted 
the same. It was furthermore urged that keeping in view the provisions of 
Sections 91 and 92 of the Indian Evidence Act, no plea contrary to or 
inconsistent with the recitals made in the deeds of gift is permissible to be 

12. Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the 
respondents, on the other hand, submitted:

(i) Acceptance of gift being a condition precedent for a valid gift and 
the first Appellate Court and the High Court having arrived at a 
finding that the same was not accepted, the impugned judgments 
should not be interfered with.
(ii) The recitals made in the deeds of gift are not conclusive and, thus, 
evidence to show that the same were not correct is admissible in 
(iii) Sections 91 and 92 of the Indian Evidence Act control only the 
terms of a contract and not a recital. Even assuming that Sections 
91 and 92 of the Indian Evidence Act would be applicable, by 
reason thereof, only the onus has shifted on the donor and as they 
have discharged the same, the impugned judgments are 

13. We have noticed the terms of the deeds of gift. Ex facie, they are not 
onerous in nature. 

 The definition of gift contained in Section 122 of the Transfer of 
Property Act provides that the essential elements thereof are:
(i) the absence of consideration;
(ii) the donor;
(iii) the donee;
(iv) the subject matter
(v) the transfer; and
(vi) the acceptance.

14. Gifts do not contemplate payment of any consideration or 
compensation. It is, however, beyond any doubt or dispute that in order to 
constitute a valid gift acceptance thereof is essential. We must, however, 
notice that the Transfer of Property 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. [See Sanjukta Ray v. Bimelendu Mohanty AIR 
1997 Orissa 131, Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415 and 
Samrathi Devi v. Parsuram Pandey AIR 1975 Patna 140]

15. 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. 

16. 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.

17. In Narayani Bhanumathi and another v. Karthyayani Lelitha Bhai 
[1973 Kerala LJ 354], a learned Single Judge of the Kerala High Court 
stated the law, thus:

 If the earlier settlement deed was executed 
on an assurance that defendants 2 and 3 will be 
looked after, that pre-supposes the knowledge of 
the gift by the donees and an understanding 
reached between them at the time of execution of 
the settlement deed which could be sufficient to 
support the plea of acceptance especially when 
there is no question of the donee getting possession 
of properties since there as reservation of right to 
enjoy the property in the doners during their life 
 The evidence bearing on the question of 
acceptance of the gift deed will have to be 
appreciated in the background of the circumstance 
relating to the execution of such a deed. There 
may be cases where slightest evidence of such 
acceptance would be sufficient. There may be still 
cases where the circumstances themselves 
eloquently speak to such acceptance. Normally 
when a person gifts properties to another and it is 
not an onerous gift, one may expect the other to 
accept such a gift when once it comes to his 
knowledge, since normally, any person would be 
only too willing to promote his own interest. May 
be in particular cases there may be peculiar 
circumstances which may show that the donee 
would not have accepted the gift. But these are 
rather the exceptions than the rule. It is only 
normal to assume than the rule. It is only normal 
to assume that the donee would have accepted the 
gift deed. One would have to look into the 
circumstances of the case in order to see whether 
acceptance could be read. Mere silence may 
sometimes be indicative of acceptance provided it 
is shown that the donee knew about the gift. 
Essentially, this is a question of fact to be 
considered on the background of circumstances of 
each case.

18. Mr. Iyer, however, submitted that it would be open to the donors to 
prove that in fact no possession had been handed over. Strong reliance in 
this behalf has been placed on S.V.S. Muhammad Yusuf Rowther and 
another v. Muhammad Yusuf Rowther and other [AIR 1958 Madras 527] 
and Alavi v. Aminakutty & Others [1984 KLT 61 (NOC)].

 19. In S.V.S. Muhammad Yusuf Rowther (supra), the Madras High Court 
was dealing with a case of gift under the Mohammadan Law. Therein it was 

 In my judgment, learned counsel for the 
appellants is justified in his complaint that the 
courts below have wrongly thrown the onus of 
proving that this requirement as to delivery of 
possession had been complied with on the 
contesting defendants. It is no doubt true that 
delivery of possession of gifted properties is an 
essential condition of the validity of the gift and its 
operative nature under the Muslim Law and it 
would be for the donees to establish it.

20. When a registered document is executed and the executors are aware 
of the terms and nature of the document, a presumption arises in regard to 
the correctness thereof. [See Prem Singh and Ors. v. Birbal and Ors. (2006) 
5 SCC 353]

 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.

21. In Alavi (supra), Paripoornan, J. (as His Lordship then was) held:

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 
contrary to prove affirmatively that in spite of the 
recitals in the gift deed to the effect that possession 
has been delivered over, in fact, the subject matter 
of the gift was not delivered over to the donees. 

22. Section 91 of the Indian Evidence Act covers both contract as also 
grant and other types of disposal of property. A distinction may exist in 
relation to a recital and the terms of a contract but such a question does not 
arise herein inasmuch as the said deeds of gift were executed out of love and 
affection as well as on the ground that the donee is the son and successor of 
the donor and so as to enable him to live a good family life. 

23. Could they now turn round and say that he was to fulfill a promise? 
The answer thereto must be rendered in the negative. It is one thing to say 
that the execution of the deed is based on an aspiration or belief, but it is 
another thing to say that the same constituted an onerous gift.

 What, however, was necessary is to prove undue influence so as to 
bring the case within the purview of Section 16 of the Indian Contract Act. It 
was not done. The deeds of gift categorically state, as an ingredient for a 
valid transaction, that the property had been handed over to the donee and he 
had accepted the same. In our opinion, even assuming that the legal 
presumption therefore may be raised, the same is a rebuttable one but in a 
case of this nature, a heavy onus would lie on the donors. 

24. Keeping in view the relationship of the parties and further in view of 
the fact that admittedly the appellant had not been residing in India for a 
long time, neither the possession of the document nor the payment of tax nor 
non-mutation of the name by itself would be sufficient to show that the 
execution of the deeds of gift by the defendants was not voluntary acts on 
their part. It can never be the intention of a son to drive away the parents 
from the house as soon as the deeds of gift are executed. Parents while 
gifting the property to a successor out of love and affection as also with a 
view to enable him to live a peaceful life, would not like to lose both the 
property as also their son.

25. Our attention has been drawn to a decision of the Privy Council in 
Nawab Mirza Mohammad Sadiqu Ali Khan and others v. Nawab Fakr Jahan 
Begam and another [AIR 1932 PC 13] wherein again while dealing with a 
case of gift governed by Muhammadan law, it was stated:
 The first objection being against the tenor of the 
deed, the burden of proof is clearly upon those 
who dispute the gift. No possible reason is 
suggested why Baqar Ali should have desired to 
put a portion of this property in anyone elses 
name except, possibly, an inherent propensity for 
benami or ism farzi transactions. On the other 
hand, the reason recited in the deed that he desired 
to provide his favourite wife with an alternative 
residence at Kairabad is to say the least of it, 
understandable. The portion assigned to her 
contained the zenana quarters, where she 
ordinarily put up when accompanying her husband 
on his apparently not infrequent visits to the kothi, 
and it is clear from the evidence of his other gifts 
to her which are now established, that he had a 
great desire to provide for her future comfort on a 
generous scale. Against this, all that can be said is 
that during his life time she exercised no individual 
acts of proprietorship over any portion of the 
Kairabad establishment; that in her and her 
husbands absence the serai was occupied by the 
servants of the estate; that such repairs as were 
necessary were done at Baqar Alis expense, and 
that no mutation of names was made in the 
Government records. In their Lordships opinion 
these facts are not sufficient to establish that the 
transaction was merely colourable. The deed was 
handed over to the donee and remained in her 
possession, and their Lordships have no doubt that 
Baqar Ali intended to make a genuine gift of the 
property to her.

26. In regard to handing over of the possession, it was held:

 In the second place, the deed of gift was 
handed over to the donee as soon as it was 
registered. In the case of a gift by a husband to his 
wife, their Lordships do not think that Mahomedan 
law requires actual vacation by the husband and an 
actual taking of separate possession by the wife. 
In their opinion the declaration made by the 
husband, followed by the handing over of the 
deed are amply sufficient to establish a transfer of 

27. It will bear repetition to state that we are in this case concerned with 
the construction of recitals made in a registered document.

28. Mr. Iyer also relied upon a decision of Oudh High Court in Jhumman 
v. Husain and others [AIR 1931 Oudh 7] to show that a declaration that 
possession had been given is not conclusive. Therein again, the court was 
dealing with a case of gift under Mohammadan law. In that case, the gift 
was accepted after the death of the donor and it was in that situation that 
emphasis was laid on handing over of possession as a condition of valid gift. 

29. In Smt. Gangabai v. Smt. Chhabubai [AIR 1982 SC 20], wherein also 
reliance has been placed by Mr. Iyer, it was held that the bar created under 
Sections 91 and 92 of the Indian Evidence Act would operate unless it 
comes within the purview of the exceptions specified therein. Therein the 
question which arose for consideration related to the nature of transaction 
and not the terms of the grant. 

30. Mr. Iyer places reliance on Tyagaraja Mudaliyar and another v. 
Vedathanni [AIR 1936 PC 70] wherein again correctness or otherwise of the 
nature of document itself was in question and in that view of the matter 
adduction of oral evidence was not held to be a bar in terms of Section 91 of 
the Indian Evidence Act. 

31. 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.

32. For the reasons aforementioned, the impugned judgment cannot be 
sustained and, thus, judgments of the High Court as also the first Appellate 
Court are set aside and that of the Trial Court restored. The appeal is 
allowed. No costs.

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