//
you're reading...
legal issues

Revocation of the gift deed – whether the gift in question had become complete under Section 123 of the TP Act? It is seen from the recitals of the gift deed that Motilal Gopalji gifted the property to the respondent. In other words, It was a conditional gift. There is no recital of acceptance nor is there any evidence in proof of acceptance. Similarly, he had specifically stated that the property would remain in his possession till he was alive. Thereafter, the gifted property would become his property and he was entitled to collect mesne profits in respect of the existing rooms throughout his life. The gift deed conferred only limited right upon the respondent-donee. The gift was to become operative after the death of the donor and he was to be entitled to have the right to transfer the property absolutely by way of gift or he would be entitled to collect the mesne profits. It would thus be seen that the donor had executed a conditional gift deed and retained the possession and enjoyment of the property during his life time. The recitals in the cancellation deed is consistent with the recitals in the gift deed. He had expressly stated that the respondent had cheated him and he had not fulfilled the conditions subject to which there was an oral understanding between them. Consequently, he mentioned that the conditional gift given to him was cancelled. He also mentioned that the possession and enjoyment remained with him during his life time. He stated, “I have to execute immediately this deed of cancelling the conditional gift deed between us. Therefore I hereby cancel the conditional gift deed 15-5-65 of Rs.9000/- in words rupees nine thousand presented at the Serial no. 2153 on 15-5-65 in the office of the Sub-Registrar Baroda for registration. Therefore, the said conditional gift deed dated 15-5-65 is hereby cancelled and meaningless. The property under the conditional gift has not been and is not to be transferred in your name.: Thus he expressly made it clear that he did not hand over the possession to the respondent nor did the gift become complete during the life time of the donor. Thus the gift had become ineffective and inoperative. It was duly cancelled. The question then is: whether the appellant would get the right to the property? It is not in dispute that after the cancellation deed dated June 9, 1965 came to be executed, duly putting an end to the conditional gift deed dated May 15, 1965, he executed his last will on May 17, 1965, and died two days thereafter.

A 1636 Indian deed for Rhode Island signed by ...

Image via Wikipedia

PETITIONER:
NARAMADABEN MAGANLAL THAKKER

 Vs.

RESPONDENT:
PRANJIVANDAS MAGANLAL THAKKER & ORS.

DATE OF JUDGMENT: 10/09/1996

BENCH:
K. RAMASWAMY, FAIZAN UDDIN, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:
 O R D E R
 This appeal by special leave arises from the judgment
of the Division Bench of the Gujarat High Court made in FA
No. 421/74 on September 13, 1979. The admitted facts are
that one Motilal Gopalji was the owner of the properties
bearing Revenue Survey No. 172/8 situated in Pratapnagar
area of the city of Baroda. The property consists of 15
rooms of the chawl and an open land surrounding the same.
The appellant is the sister of the first respondent. Motilal
Gopalji had executed gift deed, Ex.111 dated May 15, 1965 in
favour of the respondent. Thereafter, he had executed
another deed, Ex. 198 dated June 9, 1965, cancelling the
said gift. He executed a will in favour of the appellant and
another brother of the appellant on May 17, 1966. Motilal
Gopalji died two days thereafter, i.e., May 19, 1966.
Consequently, the respondent laid a suit in the Court of the
Civil Judge, Senior Division in Baroda for declaration of
his title to the properties and injunction restraining the
appellant and her brother from collecting the rents. The
trail court decreed the suit. On appeal, it was confirmed.
Thus this appeal by special leave.
 Shri R.P. Bhatt, learned senior counsel appearing for
the appellant, contended that a reading of the recitals of
the gift deed and the cancellation deed do clearly indicate
the intention of the donor and the donee, namely, the gift
was not complete. It was a conditional one. He reserved
life interest in the property and had not handed over the
possession of the property; nor had the donee accepted the
gift, thereby, the gift was incomplete. The gift which was
duly cancelled became inoperative during the life time of
the donor. The donor had cancelled it within one month of
the gift. Subsequently, he had executed a will in favour of
the appellant and her brother. Thereby, the courts below
were wrong in construing that the gift became operative and
by operation of gift deed dated May 15, 1965 the donor
Motilal Gopalji was devoid of power to cancel the gift deed.
It is contended by Shri Dholakia, learned senior counsel for
the respondent, that the view taken by the High Court is
correct in law. It is stated that Motilal Gopalji had
delivered symbolic possession to the respondent. What he
preserved was only right to collect rent for his maintenance
and thereafter he had no power to cancel it. The recitals in
the cancellation deed are not material. Only the recitals in
the gift deed have to be considered. On their own face value
they do indicate that Motilal Gopalji had divested himself
totally of the right, title and interest in the property,
the subject matter of the gift over. Consequently, he had no
power to cancel the gift and the will executed by Motilal
Gopalji was inoperative. We find no force ib the contention
for the respondent.
 It is now well settled legal position that a documents
has to be read harmoniously as a whole giving effect to all
the clauses contained in the document which manifest the
intention of the persons who execute the document. The
material part of the gift deed reads as under:
 "The said immovable property as
 described above with the ground
 floor and with ways to pass and
 with the water disposal and with
 all other concerned rights, titles
 is gifted to you and the possession
 whereof is handed over to you under
 the following conditions to be
 observed by you and your heirs and
 legal representatives as long as
 the Sun and the Moon shine.
 Therefore, now I or my heirs or
 legal representatives have no right
 on the said property. You and your
 heirs and your heirs and legal
 representatives have become the
 exclusive owners of the same. You
 and your heirs and legal
 representatives are entitled to
 enjoy, to transfer or to use the
 said property as you like under the
 conditions mentioned in this deed.
 Except myself, there is nobody`s
 right, title, interest or share on
 the said property: I have not
 mortgaged the same by any document.
 Yet however anybody comes forward
 to claim the fight, I shall remove
 the same.
 The said property is gifted to you
 on such conditions that and you are
 made owners by the gift deed of the
 said property on such conditions
 that there are 15 rooms on the said
 property at present. I am rightful
 to receive the rents and the mesne
 profit whatsoever accused from the
 said rooms throughout my life. I am
 only entitled to receive the mesne
 profit of the said, property till I
 live. Therefore, I the executant,
 shall be entitled to let out the
 said buildings (rooms), to receive
 the rent amount to make all the
 other arrangement throughout my
 life. Similarly the said property
 shall be in my possession till I
 live. Therefore, I have gifted this
 property to you by reserving
 permanently my rights to collect
 the mesne profit of the existing
 rooms throughout my life. And by
 this gift deed the limited
 ownership right will be conferred
 to you till I live. After my death
 you are entitled to transfer the
 said property. I shall not give in
 any way my right to anybody to
 collect the mesne profit. You may
 get transferred the said property
 in your name in support of this
 deed. This gift deed is executed to
 you under the aforesaid
 conditions."
 The material part of the cancellation deed reads as
under:-
 "I have, on 15-5-65, executed a
 conditional gift deed of Rs.
 9,000/- in words Rupees nine
 thousand in favour of you. The said
 deed has been presented in the
 office of the Sub Registrar, Baroda
 at Serial no. 2153 of the book no.
 1 and it registered on 15-5-65. The
 description of the property
 mentioned in the said deed is as
 under."
 "I executed to you a conditional
 gift deed of the said property from
 sky to earth. You had promised me
 to fulfill the oral conditions
 between us. But immediately after
 making the gift accordingly, you
 denied to fulfill the conditions.
 The possession of the gifted
 property is not handed over to you.
 So in fact you have not accepted
 the conditional gift of the
 property and I am also not willing
 to act according to the mentioned
 in the possession shall be kept
 with me. And so accordingly my
 possession is beginning and it is
 permanent. You are not ready to act
 according to our conditions.
 Therefore, I have to execute
 immediately this deed of cancelling
 the conditional gift deed between
 us. Therefore, I hereby cancel the
 conditional gift deed dated 15-5-
 665 of Rs.9,000/- in words rupees
 nine thousand presented at the
 serial no. 2153 on 15-5-65 in the
 office of the Sub- Registrar Baroda
 for registration. Therefore, the
 said conditional gift deed dated
 15-5-65 is hereby cancelled and
 meaningless. The property under the
 conditional gift has not been and
 is not to be transferred in your
 name. I will be at present and
 permanently remain in my name."
 Section 122 of the Transfer of property Act [for short,
the "TP Act"] defines 'gift' to mean the transfer of certain
existing movable or immovable property made voluntarily and
without consideration, by one person, called the donor, to
another, called the donee, and accepted by or on behalf of
the donee.
 Acceptance by or on behalf of the donee must be made
during the life time of the donor and while he is still
capable of giving.
 It would thus be clear that the execution of a
registered gift deed, acceptance of the gift and delivery of
the property, together make the gift complete. Thereafter,
the donor is divested of his title and the donee becomes the
absolute owner of the property. The question is: whether the
gift in question had become complete under Section 123 of
the TP Act? It is seen from the recitals of the gift deed
that Motilal Gopalji gifted the property to the respondent.
In other words, It was a conditional gift. There is no
recital of acceptance nor is there any evidence in proof of
acceptance. Similarly, he had specifically stated that the
property would remain in his possession till he was alive.
Thereafter, the gifted property would become his property
and he was entitled to collect mesne profits in respect of
the existing rooms throughout his life. The gift deed
conferred only limited right upon the respondent-donee. The
gift was to become operative after the death of the donor
and he was to be entitled to have the right to transfer the
property absolutely by way of gift or he would be entitled
to collect the mesne profits. It would thus be seen that the
donor had executed a conditional gift deed and retained the
possession and enjoyment of the property during his life
time. The recitals in the cancellation deed is consistent
with the recitals in the gift deed. He had expressly stated
that the respondent had cheated him and he had not fulfilled
the conditions subject to which there was an oral
understanding between them. Consequently, he mentioned that
the conditional gift given to him was cancelled. He also
mentioned that the possession and enjoyment remained with
him during his life time. He stated, "I have to execute
immediately this deed of cancelling the conditional gift
deed between us. Therefore I hereby cancel the conditional
gift deed 15-5-65 of Rs.9000/- in words rupees nine thousand
presented at the Serial no. 2153 on 15-5-65 in the office of
the Sub-Registrar Baroda for registration. Therefore, the
said conditional gift deed dated 15-5-65 is hereby cancelled
and meaningless. The property under the conditional gift has
not been and is not to be transferred in your name.: Thus he
expressly made it clear that he did not hand over the
possession to the respondent nor did the gift become
complete during the life time of the donor. Thus the gift
had become ineffective and inoperative. It was duly
cancelled. The question then is: whether the appellant would
get the right to the property? It is not in dispute that
after the cancellation deed dated June 9, 1965 came to be
executed, duly putting an end to the conditional gift deed
dated May 15, 1965, he executed his last will on May 17,
1965, and died two days thereafter.
 The appeal is accordingly allowed. The judgements and
decrees of the trial Court and the appellate court stand set
aside. Consequently, the suit stands dismissed. No costs.

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,881,342 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers

Follow advocatemmmohan on WordPress.com
%d bloggers like this: