Sec.122 and 123 of T.P. Act – whether there is any conflict in two earlier decisions Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker & Ors. (1997) 2 SCC 255 and K. Balakrishnan v. K. Kamalam & Ors. (2004) 1 SCC 581 – Apex court held – No – held that the former judgment – clearly rests on the facts of that case. If the gift was conditional and there was no acceptance of the donee it could not operate as a gift. Absolute transfer of ownership in the gifted property in favour of the donee was absent in that case which led this Court to hold
that the gift was conditional and had to become operative only after the death of the donee. The judgment is in that view clearly distinguishable and cannot be read to be an authority for the proposition that delivery of possession is an essential requirement for making a valid gift. – and further held thatIn the case at hand as already noticed by us, the execution of registered gift deed and its attestation by two witnesses is not in dispute. It has also been concurrently held by all the three courts below that the donee had accepted the gift. The recitals in the gift deed also prove transfer of absolute title in the gifted property from the donor to the donee. What is retained is only the right to use the property during the lifetime of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor.
and further held thatThe High Court was in that view perfectly justified in refusing to interfere with the decree passed in favour of the donee. This appeal accordingly fails and is hereby dismissed but in the circumstances without any orders as to costs.=
An apparent conflict between two earlier decisions rendered by this
one in Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker
& Ors. (1997) 2 SCC 255
(“7. 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 lifetime…..”)
the other in K. Balakrishnan v. K. Kamalam & Ors. (2004) 1 SCC 581
(“10. We have critically examined the contents of the gift deed. To us, it
appears that the donor had very clearly transferred to the donees ownership
and title in respect of her 1/8th share in properties. It was open to the
donor to transfer by gift title and ownership in the property and at the
same time reserve its possession and enjoyment to herself during her
lifetime. There is no prohibition in law that ownership in a property
cannot be gifted without its possession and right of enjoyment. Under
Section 6 of the Transfer of Property Act “property of any kind may be
transferred” except those mentioned in clauses (a) to (i). Section 6 in
relevant part reads thus:
“6. What may be transferred.—Property of any kind may be transferred,
except as otherwise provided by this Act or by any other law for the time
being in force.
(a) * * *
(b) A mere right to re-entry for breach of a condition subsequent cannot be
transferred to anyone except the owner of the property affected thereby.
(c) * * *
(d) An interest in property restricted in its enjoyment to the owner
personally cannot be transferred by him.
(e) A mere right to sue cannot be transferred.”
11. Clause (d) of Section 6 is not attracted on the terms of the gift deed
herein because it was not a property, the enjoyment of which was restricted
to the owner personally. She was absolute owner of the property gifted and
it was not restricted in its enjoyment to herself. She had inherited it
from her maternal father as a full owner. The High Court was, therefore,
apparently wrong in coming to the conclusion that the gift deed was
ineffectual merely because the donor had reserved to herself the possession
and enjoyment of the property gifted.”)
has led to this reference to a larger bench for an
authoritative pronouncement as to the true and correct interpretation of Sections 122 and 123 of The Transfer of Property Act, 1882.=
The plaintiff-respondent in this appeal filed O.S. No.979 of 1989 for
a declaration to the effect that revocation deed dated 5th March, 1986
executed by the defendant-appellant purporting to revoke a gift deed
earlier executed by her was null and void.
The plaintiff’s case as set out
in the plaint was that the gift deed executed by the defendant-appellant
was valid in the eyes of law and had been accepted by the plaintiff when
the donee-defendant had reserved to herself during for life, the right to
enjoy the benefits arising from the suit property.=
the gift deed executed in favour of the
plaintiff was vitiated by fraud, mis-representation and undue influence.
Trial court findings
The Trial Court found that the defendant
had failed to prove that the gift deed set up by the plaintiff was vitiated
by fraud or undue influence or that it was a sham or nominal document.
The gift, according to trial Court, had been validly made and accepted by the
plaintiff, hence, irrevocable in nature.
It was also held that since the
donor had taken no steps to assail the gift made by her for more than 12
years, the same was voluntary in nature and free from any undue influence,
mis-representation or suspicion.
The fact that the donor had reserved the
right to enjoy the property during her life time did not affect the
validity of the deed, opined the trial Court.
Fist appellant court
The defendant’s case that she had apprehended grabbing of the
property by Sankaraiah forcing her to make a sham gift deed was held not
especially when Sankaraiah had died three years prior to the
execution of the revocation deed by the defendant.
If the gift deed was
executed by the donor to save the property from the covetous eyes of
Sankaraiah, as alleged by the defendant,
there was no reason why the
defendant should have waited for three years after the death of Sankaraiah before revoking the same reasoned the Court.
The first Appellate Court
also affirmed the finding of the trial Court that the donee had accepted the gift made in his favour.
The High Court,
however, declined to interfere with the judgments and orders
impugned before it and dismissed the second appeal of the appellant
that the case set up by the defendant that the gift was vitiated by undue
influence or fraud had been thoroughly disproved at the trial.
Before the Apex court
whether retention of possession of the gifted
property for enjoyment by the donor during her life time and the right to
receive the rents of the property in any way affected the validity of the
That a gift deed was indeed executed by the donor in favour of the
donee and that the donee had accepted the gift was not challenged and the
finding to that effect has not been assailed even before us.
A conditional gift was not
envisaged by the provisions of the Transfer of Property Act, argued the
learned counsel of the appellant.
Inasmuch as the gift deed failed to
transfer, title, possession and the right to deal with the property in
absolute terms in favour of the donee the same was no gift in the eyes of
law, contended learned counsel for the appellant.
Reliance in support of
that submission was placed by the learned counsel upon the decision of this
in Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker and Ors. (1997) 2 SCC 255.
On behalf of the respondents it was per contra argued that the
validity of the gift having been upheld by the Courts below, the only
question that remains to be examined was whether a gift which reserved a
life interest for the donor could be said to be invalid. That question was,
according to the learned counsel, squarely answered in favour of the
respondents by the decisions of this Court
in K. Balakrishnan v. K. Kamalam & Ors. (2004) 1 SCC 581.
Naramadaben Maganlal Thakker v. Pranjivandas Maganlal Thakker and Ors. (1997) 2 SCC 255.
The above decision clearly rests on the facts of that case. If the
gift was conditional and there was no acceptance of the donee it could not
operate as a gift. Absolute transfer of ownership in the gifted property in
favour of the donee was absent in that case which led this Court to hold
that the gift was conditional and had to become operative only after the
death of the donee. The judgment is in that view clearly distinguishable
and cannot be read to be an authority for the proposition that delivery of
possession is an essential requirement for making a valid gift.
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41773
T.S. THAKUR, V. GOPALA GOWDA, C. NAGAPPAN