Renikuntla Rajamma by LRs v. K. Sarwanamma [Civil Appeal No. 4195 OF
2008] Full Bench
I. Facts
The plaintiff (respondent in this appeal)
sought a declaration that the revocation deed executed by the
defendant-appellant revoking a gift deed earlier executed by her, was null and
void. It is important to note that the donee defendant in the present case had
reserved to herself during life, the right to enjoy the benefits arising from
the suit property.
The Trial Court on the issue of gift
deed being marred by fraud or undue influence found that the defendant had
failed to prove such and also held that the deed was not a sham or nominal
document. The gift, according to trial Court, had been validly made and
accepted by the plaintiff, hence, irrevocable in nature. Moreover, 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, the trial Court opined.
The First Appellate Court affirmed
the view taken by the trial Court and held that the plaintiff had
satisfactorily proved the execution of a valid gift in his favour and that the
revocation of a validly made gift deed was legally impermissible.
The Second Appellate Court, i.e.,
the High Court, also declined to interfere with the judgments and orders
impugned before it and dismissed the second appeal of the appellant.
II.
Issue
The only question which was urged
on behalf of the appellant was 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 gift.
III. Relevant Provisions
§ S.
122. “Gift” defined- "Gift" is
the transfer of certain existing movable or immovable property made voluntarily
and without consideration, by one person, called the donor, to another, called
the donor, and accepted by or on behalf of the donee. Acceptance when to be
made-Such acceptance must be made during the lifetime of the donor and while he
is still capable of giving. If the donee dies before acceptance, the gift is
void.
§ S.
123. Transfer how effected – For the making of a gift of
immoveable property, the transfer must be effected by a 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, the transfer may be
effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.
§ S.
129. Saving of donations mortis causa and Muhammadan Law-
Nothing in this Chapter relates to gifts of moveable property made in
contemplation of death, or shall be deemed to affect any rule of Muhammadan law
or, save as
provided by section 123, any rule of Hindu or Buddhist law”
Post
1929 Amendment
§ S.
129 Saving of donations mortis causa and Mohammedan Law-
Nothing in this Chapter relates to gifts of moveable property made in
contemplation of death, or shall be deemed to affect any rule of Mohammedan
law.
IV. Contentions
§ IVa.
Appellant's Contention
A
conditional gift was not envisaged by the provisions of the Transfer of
Property Act, so 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. [Reiance being
placed on Naramadaben Maganlal (supra).
§ IVb.
Respondent's Contention
Placing
reliance on K. Balakrishnan (supra), it was contended that gift
which reserved a life interest for the donor could not be said to be
invalid.
V. Judgment on the Issue
The Court adopted two different ways
(Independent) to address the issue:
§
Va. Conjoint Reading of §§ 122 and 123 TPA and § 129
TPA
By doing so, the Court held that the “transfer
of possession” of the property covered by the registered instrument of
the gift duly signed by the donor and attested as required is not a sine
qua non for the making of a valid gift under the provisions of Transfer
of Property Act 1882.
The Court approved the decision of
Constitution Bench of Allahabad High Court in Lallu Singh v. Gur Narain
and Ors. [AIR 1922 All. 467], where the Court rejected the contention
that § 123 of the T.P. Act merely added one more requirement of law namely
requirement of attestation and registration of a gift deed to what was
already required by the Hindu Law, i.e., making the delivery of possession
absolutely essential for the completion of the gift.
§ 129 TPA: Both before and after 1929
Amendment
The Court held that a plain reading of the
above made it manifest that the “rules of Hindu law” and “Buddhist
Law” were to remain unaffected by Chapter VII except to the extent such
rules were in conflict with § 123 of the TPA. This clearly implied that § 123
had an overriding effect on the rules of Hindu Law pertaining to gift including
the rule that required possession of the property gifted to be given to the
donee.
Post- amendment, the Hindu uncodified law
relating to gifts apart from § 123, is now even superseded by the whole Chapter
VII.
Supplementary Reasoning
§
Vb. Division of § 123 in Two Parts
The Court noted that while the first part
dealing with immovable property mandatorily requires transfer by a registered
instrument, the second part dealing with movable property requires that gift of
movable property may be effected either by
a registered instrument signed as aforesaid or “by delivery”.
Therefore, 'delivery' is not even a
criteria in gifting a immovable property and not a mandatory criteria,
rather is an alternative in gifting a movable property.
VI.
Judgment on the Conflicting Decisions [Unclear Analysis by the Court]
It was found that there is an apparent
conflict between Naramadaben Maganlal Thakker v. Pranjivandas Maganlal
Thakker & Ors. (1997) 2 SCC 255 and K. Balakrishnan v. K.
Kamalam & Ors. (2004) 1 SCC 581, thus leading 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 Court distinguished the judgment in the
case of Naramadaben Maganlal (supra) on the facts in that case,
since it was a conditional gift and there was no recital of acceptance or any
evidence in proof of acceptance on the part of the donee. However, it is submitted that the Court in the present case
erred in not explaining why the Gift in Naramadaben case was a conditional
gift, and not in the present case as the following recitals of the deed in
Naramadaben case show that there the stipulations made on the gift deed were
same as to be addressed by the present case, i.e., enjoyment of the property by
the donor till his/her lifetime and right to receive rent. Apart from a
clear finding of acceptance by the donee in the present case, the judgment in
the Naramadaben case conflicts with the judgment in the present
case.
In that case the donor that gifted the
property stating:
"The said immovable property as
described above with the ground floor and with the 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…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 accrued from the said rooms throughout my life. I am
only entitled to receive the mesne profit of the said property till I live.
Similarly the said property shall be in my possession till I live…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."
Then, the deed was cancelled stating that:
"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 said 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 conditional gift."
The Court approved the judgment of K.
Balakrishnan (supra), where the Court held had held that there is no prohibition in law that ownership in
a property cannot be gifted without its possession and right of enjoyment.
VII.
Conclusion
The Court, while approving the dictum
that where the terms of a Statute or Ordinance are clear, then even a long and
uniform course of judicial interpretation of it may be overruled, held that (i) whenever the donor is in
absolute ownership of the property, (ii)
and transfers absolute title in the gift to
the donee, (iii) which the donee accepts, and (iv) the acceptance of which is
in the lifetime of donor, then, the mere fact of retaining the right to
use the property during the lifetime of the donor, does not affect the
transfer of ownership in the favor of the donee.
In
the effect, if the donor does not give possession of the property to the donee
till he/she is alive and even collects rents till his/her lifetime, such
stipulations do not make the gift conditional. Therefore, it is a valid gift
and consequently, the appeal was dismissed.
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