S. SAROJINI AMMA versus VELAYUDHAN PILLAI SREEKUMAR on 26 October 2018

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[2018] 13 S.C.R. 554

SUPREME COURT REPORTS

[2018] 13 S.C.R.

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S. SAROJINI AMMA

v.

VELAYUDHAN PILLAI SREEKUMAR

(Civil Appeal No. 10785 of 2018)

BOCTOBER 26, 2018

[ARUN MISHRA AND INDIRA BANERJEE, JJ.]

Transfer of Property Act, 1882 – s.122 – Document styled asgift deed but executed for consideration with the executant retainingpossession and reserving her right over the property concerned –CSuch document if can be treated as instrument of gift – Appellantexecuted a purported gift deed in favour of her nephew i.e. therespondent, for consideration (partly paid) inter alia stating thereinthat the gift would take effect after the death of the appellant andher husband – Later, appellant cancelled the gift deed – CancellationDdeed executed by the appellant, whether null and void – Held: Giftmeans to transfer certain existing moveable or immoveable propertyvoluntarily and without consideration by one person called thedonor to another called the donee and accepted by or on behalf ofthe donee – A conditional gift with no recital of acceptance and noevidence in proof of acceptance, where possession remains withEthe donor as long as he is alive, does not become complete duringlifetime of the donor – Conditional gift only becomes complete oncompliance of the conditions in the deed – When a gift is incompleteand title remains with the donor, the deed of gift might be cancelled– In the instant case, admittedly, the deed of transfer was executedFfor consideration and was conditional subject to the condition thatthe donee would look after the appellant and her husband and thatthe gift would take effect after the death of the donor – There wasno completed gift of the property in question by the appellant to therespondent and the appellant was within her right in cancelling thedeed.G

Allowing the appeal, the Court

HELD: 1.1 Gift means to transfer certain existing moveableor immoveable property voluntarily and without considerationby one person called the donor to another called the donee and H

accepted by or on behalf of the donee. A conditional gift with norecital of acceptance and no evidence in proof of acceptance,where possession remains with the donor as long as he is alive,does not become complete during lifetime of the donor. When agift is incomplete and title remains with the donor the deed ofgift might be cancelled. [Paras 14, 15] [558-G-H; 559-A-C]

1.2 The conditions precedent of a gift as defined in Section122 of the Transfer of Property Act must be satisfied. A gift istransfer of property without consideration. Moreover, a conditionalgift only becomes complete on compliance of the conditions inthe deed. In the instant case, admittedly, the deed of transferwas executed for consideration and was in any case conditionalsubject to the condition that the donee would look after theappellant and her husband and subject to the condition that thegift would take effect after the death of the donor. There was nocompleted gift of the property in question by the appellant to therespondent and the appellant was within her right in cancelling the deed. [Paras 18, 19] [559-F-H; 560-A]

Naramadaben Maganlal Thakker v. PranivandasMaganlal Thakker and Others (1997) 2 SCC 255 :[1996] 5 Suppl. SCR 780 – relied on.

Reninkuntla Rajamma v. K. Sarwanamma (2014) 9 SCC445 : [2014] 8 SCR 890 – referred to.

Case Law Reference

[1996] 5 Suppl. SCR 780relied onPara 14[2014] 8 SCR 890referred toPara 15

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10785of 2018

From the Judgment and Order dated 03.04.2017 of the High Courtof Kerala at Ernakulam in R.S.A. No.757 of 2011.

V. Shekhar, Sr. Adv., Harikumar V., Anupam Mishra, PrithvirajSingh, Advs. for the Appellant.

Basava Prabhu S. Patil, Sr. Adv., M. Gireesh Kumar, Ankur S.Kulkarni, Sidhant Sinha, Advs. for the Respondent.

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AThe Judgment of the Court was delivered byINDIRA BANERJEE, J. 1. Leave granted.

2. This appeal has been filed against the judgment and order dated03.04.2017 passed by the High Court of Kerala at Ernakulam in R.S.A.No. 757/2011 whereby the High Court was pleased to allow the SecondBAppeal filed by the respondent and set aside the judgment and decreepassed by the First Appellate Court in favour of the appellant.

3. The short question involved in this appeal is whether a documentstyled as gift deed but admittedly executed for consideration, part ofwhich has been paid and the balance promised to be paid, can be treatedCas formal document or instrument of gift. Another related question iswhether a gift deed reserving the right of the donor to keep possessionand right of enjoyment and enforceable after the death of the executantis a gift or a will.

4. The appellant is a childless widow aged 74 years whose husbandexpired on 06.06.2015. The respondent is the nephew of the appellantD(brother’s son). In the expectation that the respondent will look afterthe appellant and her husband and also for some consideration, theappellant executed a purported gift deed in favour of the respondent.The gift deed clearly stated that the gift would take effect after thedeath of the appellant and her husband.

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5. According to the appellant on or about 02.06.1999, the appellantexecuted the deed of cancellation No. 1844/1999 cancelling the gift deed.After about eight months, on or about 01.02.2000, the respondent filedOriginal Suit No. 32/2000 in the Court of the learned Munsif Sasthamcottafor declaration that the cancellation deed executed by the appellant isFnull and void and also for declaration of his right over the suit propertybeing the subject matter of the purported deed of gift.

6. On or about 20.03.2000, the appellant filed Original Suit beingO.S. No. 97/2000 before the Court of the learned Munsif, Sasthamcottafor permanent injunction restraining the respondent or his men fromtrespassing or committing waste or mischief in the suit property.G

7. On 12.05.2000, the appellant and her husband filed the writtenstatement in the suit being O.S. No. 32/2000 filed by the respondent. On25.07.2000, the defendants in O. S. No. 97/2000 filed their writtenstatement contending that the registered document No. 687/2000 wasexecuted for consideration.H

8. By a judgment and order dated 11.12.2006, the learned Munsif,Sasthamcotta decreed Original Suit No. 32/2000 and O.S. No. 97/2000.

9. Being aggrieved, the appellant filed First Appeal being A.S.No. 30/2007 before the District Court Kollam. The defendants in O.S.No. 97/2000 filed their First Appeal before the District Court Kollam.By an order dated 23.09.2010, the Additional District Judge III, Kollamallowed the application being A.S. No. 30/2007 filed by the appellantand dismissed A.S. No. 77/2000 filed by the respondent in O.S.No. 97/2000.

10. The respondent filed Regular Second Appeal against thejudgment and decree in A.S. No. 30/2007. By the judgment and orderdated 03.04.2017, the High Court allowed the R.S.A. No. 757/2011 andset aside the judgment and decree in A.S. No. 30/2007.

11. On behalf of the appellant, it was contended that the documentstyled as gift deed was to come into effect only after the death of theappellant and her husband. The question was whether a document interms whereof the executant of the document retained possession andreserved her right over the property being the subject matter of thedocument could be a deed of gift or whether such a document was adocument in the nature of a will.

12. Section 122 of the Transfer of Property Act 1882 defines giftas hereunder:- “122. “Gift” defined. – “Gift” is the transfer of certainexisting moveable or immoveable property made voluntarilyand without consideration, by one person called the donor,to another, called the donee, and accepted by or on behalf ofthe donee.”

13. Some of the relevant provisions of the Transfer of PropertyAct, 1882 with regard to a gift are set out herein-below:-

123. Transfer how effected. - For the purpose of making agift of immoveable property, the transfer must be effected bya registered instrument signed by or on behalf of the donor,and attested by at least two witnesses.

For the purpose of making a gift of moveable property, thetransfer may be effected either by a registered instrumentsigned as aforesaid or by delivery.

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[2018] 13 S.C.R.

ASuch delivery may be made in the same way as goods soldmay be delivered.

124. Gift of existing and future property. – A gift comprisingboth existing and future property is void as to the latter.

125. Gift to several of whom one does not accept.-A gift of aBthing to two or more donees, of whom one does not accept it,is void as to the interest which he would have taken had heaccepted.

126. When gift may be suspended or revoked.- The donorand donee may agree that on the happening of any specifiedCevent which does not depend on the will of the donor a giftshall be suspended or revoked; but a gift which the partiesagree shall be revocable wholly or in part, at the mere will ofthe donor, is void wholly or in part, as the case may be.

A gift may also be revoked in any of the cases (save want orDfailure of consideration) in which, if it were a contract, itmight be rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affectthe rights of transferees for consideration without notice.

EIllustrations

(a) A gives a field to B, reserving to himself, with B’s assent,the right to take back the field in case B and his descendantsdie before A. B dies without descendants in A’s lifetime. A mayFtake back the field.

(b) A gives a lakh of rupees to B, reserving to himself, withB’s assent, the right to take back at pleasure Rs. 10,000 outof the lakh. The gift holds goods as to Rs. 90,000, but is voidas to Rs. 10,000, which continue to belong to A.

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14. Gift means to transfer certain existing moveable or immoveableproperty voluntarily and without consideration by one person called thedonor to another called the donee and accepted by or on behalf of thedonee as held by the Supreme Court in Naramadaben MaganlalThakker Vs. Pranivandas Maganlal Thakker and Others[1]. AsH1(1997) 2 SCC 255

further held by this Court in Naramadaben Maganlal Thakker (supra)“It would be clear that the execution of a registered gift deed, acceptanceof the gift and delivery of the property together make the gift complete.Thereafter, the donor is divested of his title and the donee becomesabsolute owner of the property.”

15. A conditional gift with no recital of acceptance and no evidencein proof of acceptance, where possession remains with the donor aslong as he is alive, does not become complete during lifetime of thedonor. When a gift is incomplete and title remains with the donor thedeed of gift might be cancelled.

16. In Reninkuntla Rajamma Vs. K. Sarwanamma[2] a Hinduwoman executed a registered gift deed of immovable property reservingto herself the right to retain possession and to receive rent of the propertyduring her lifetime. The gift was accepted by the donee but later revoked.

17. In Reninkuntla Rajamma (supra), this Court held that thefact that the donor had reserved the right to enjoy the property duringher lifetime did not affect the validity of the deed. The Court held thata gift made by registered instrument duly executed by or on behalf ofthe donor and attested by at least two witnesses is valid, if the same isaccepted by or on behalf of the donee. Such acceptance must, however,be made during the lifetime of the donor and while he is still capable ofmaking an acceptance.

18. We are in agreement with the decision of this Court inReninkuntla Rajamma (supra) that there is no provision in law thatownership in property cannot be gifted without transfer of possession ofsuch property. However, the conditions precedent of a gift as defined inSection 122 of the Transfer of Property Act must be satisfied. A gift istransfer of property without consideration. Moreover, a conditional giftonly becomes complete on compliance of the conditions in the deed.

19. In the instant case, admittedly, the deed of transfer wasexecuted for consideration and was in any case conditional subject tothe condition that the donee would look after the petitioner and her husbandand subject to the condition that the gift would take effect after thedeath of the donor. We are thus constrained to hold that there was no 2 (2014) 9 SCC 445

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Acompleted gift of the property in question by the appellant to therespondent and the appellant was within her right in cancelling the deed.The judgment and order of the High Court cannot, therefore, be sustained.

20. The appeal is allowed and the judgment and order under appealis set aside.

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Divya Pandey

Appeal allowed.

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