RENIKUNTLA RAJAMMA (D) BY LRS.versusK. SARWANAMMA

                         [2014] 8 S.C.R. 890


A              RENIKUNTLA RAJAMMA (D) BY LRS.
                                   v.
                          K. SARWANAMMA
                   (Civil Appeal No.4195 of 2008)
                            JULY 17, 2014
B
            [T.S. THAKUR, V. GOPALA GOWDA AND
                      C. NAGAPPAN, JJ.]
                     .
        Transfer of Property Act, 1882 - ss. 122 and 123 -
C Interpretation of - Gift reserving life interest for the donor -
  Validity - 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 - Held: A conjoint reading of ss. 122 and
D 123 of the Act makes it abundantly clear that "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 the Act ~ s. 123 having overriding
E 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 - Language employed in s. 129 before its
  amendment clear enough to give s.123 an overriding effect
  vis-a-vis rules of Hindu Law - If the intention of thfr legislature
F was to make delivery of possession of the property gifted also
  as a condition precedent for a valid gift, the provision could
  and indeed would have specifically said so - Absence of any
  such requirement can only lead to the conclusion that delivery
  of possession is not an essential prerequisite for the making
G of a valid gift in the case of immovable property - On facts,
  the recitals in the gift deed proved transfer of absolute title in
  the gifted property from the donor to the donee - What was
  retained was only the right to use the property during the
  lifetime of the donor which did not in any way affect the transfer
H                                 890
     RENIKUNTLA RAJAMMA (0) BY LRS. v. K.              891
               SARWANAMMA

of ownership in favour of the donee by the donor - High Court A
justified in refusing to interfere with the decree passed in
favour of the donee.

     The true and correct interpretation of Sections 122
and 123 of The Transfer of Property Act, 1882 was in issue 8
in the present appeal.

     The question which arose for consideration before
this Court 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 C
any way affected the validity of the gift.

    The appellant contended that a conditional gift was
not envisaged by the provisions of the Transfer of
Property Act; and inasmuch as on facts, the gift deed in       o
question 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.

    Per contra, on behalf of the respondents it was
contended that transfer of possession was a condition E
under the Hindu Law for a valid gift which Rule of Hindu
Law stood superseded by Section 123 of The Transfer of
Property Act.

    Dismissing the appeal, the Court                           F
     HELD:1.1. Chapter VII of the Transfer of Property Act,
1882 deals with gifts generally and, inter alia, provides for
the mode of making gifts. Section 122 of the Act defines
'gift' as a transfer of certain existing movable or G
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. In order to constitute a valid gift, acceptance must,
according to this provision, be made during the life time
                                                               H
    892      SUPREME COURT REPORTS            [2014] 8 S.C.R.


A   of the donor and while he is still capable of giving. It
    stipulates that a gift is void if the donee dies before
    acceptance. Section 123 regulates mode of making a' gift
    and, inter alia, provides that a gift of immovable property
    must be effected by a registered instrument signed by or
B   on behalf of the donor and attested by at least two
    witnesses. In the case of movable property, transfer either
    by a registered instrument signed as aforesaid or by
    delivery is valid under Section 123. [Paras 9, 10) [899-H;
    900-A-C]
c        1.2. Se~tion 123 leaves no manner of doubt that a gift
    of immovable property can be made by a registered
    instrument singed by or on behalf of the donor and
    attested by at least two witnesses. When read with
    Section 122 of the Act, a gift made by a registered
D   instrument duly signed by or on behalf of the donor and
    attested by at least two witnesses is valid, if the same is
    accepted by or on behalf of the donee. That such
    acceptance must be given during the life time of the
    donor and while he is still capable of giving is evident
E   from a plain reading of Section 122 of the Act. A conjoint
    reading of Sections 122 and 123 of the Act makes it
    abundantly clear that "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
F   a sine qua non for the making of a valid gift under the
    provisions of Transfe.r of Property Act, 1882. [Para 11]
    [900-H; 901-A-C]
       2.1. Judicial pronouncements as to the true and
G correct interpretation of Section 123 of the T.P. Act have
  for a fairly long period lleld that Section 123 of the Act
  supersed~s the rule of Hindu Law if there was any
  making delivery of possession an essential condition for
  the completion of a valid gift. A full bench comprising five
H Hon'ble Judges of the High Court of Allahabad in Lallu
     RENIKUNTLA RAJAMMA (0) BY LRS. v. K.            893
               SARWANAMMA

 Singh referred to several such decisions in which the A
 provisions of Section 123 have been interpreted to be
 overruling the Hindu Law requirement of delivery of
 possession as a condition for making of a valid gift. The
.High Court repelled in no uncertain terms the contention
 that Section 123 of the T.P. Act merely added one more B
 requirement of law namely attestation and registration of
 a gift deed to what was already enjoined by the Hindu
 Law and that Section 123 did not mean that where there
 was a registered instrument duly signed and attested,
 other requirements of Hindu Law stood dispensed with. c
 The logic for the above view flowed from the language
 of Section 129 of the T.P. Act which as on the date of the
 decision rendered by the High Court of Allahabad used
 the words "save as provided by Section 123 of the Act".
 A plain reading of Section 129 of the T.P. Act, before its 0
 amendment in the year 1929, made it manifest that the
 "rules of Hindu law" and "Buddhist Law" were to remain
 unaffected by Chapter VII ex,cept to the extent such rules
 were in conflict with Section 123 of the Transfer of
 Property Act. This clearly implied that Section 123 had an E
 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 dpnee. The language
 employed in Section 129 before its amendment was clear
 enough to give Section 123 an overriding effect vis-a-vis
 rules of Hindu Law. Section 129 was amended by Act No.. F
 20 of 1929 whereby the words "or, save as provided by
 Section 123, any rule of Hindu or Buddhist Law" have
 been deleted. [Paras 11 and 13] [901-C-F; 903-B-E]

    2.2. The law today protects only rules of              G
Muhammadan Law from the rigors of Chapter VII relating
to gifts. This implies that the provisions of Hindu Law
and Buddhist Law saved under Section 129 (which
saving did not extend to saving such rules from the
provisions of Section 123 of the T.P. Act) prior to its    H
    894     SUPREME COURT REPORTS             . [2014) 8 S.C.R.


A amendment are no longer saved from the overriding effect
  of Chapter VII. The amendment has made the position
  more explicit by bringing ali other rules of Hindu and
  Buddhist Law also under the Chapter VII and removing
  the protection earlier available to such rules from the
s operation of Chapter VII. Clearly Section 123 supersedes
  the rules of Hindu Law insofar as such rules required
  delivery of possession to the donee. [Para 14) [9003-G-
  H; 904-A-B]

      La/lu Singh v. Gur Narain and Ors. AIR 1922 All. 467;
C Revappa v. Madhava Rao AIR 1960 Mysore 97; Tirath Singh
  v. Manmohan AIR 1981 Punjab and Haryana 174 -
  approved

      Bhagwan Prasad & Anr. v. Harisingh AIR 1925 Nagpur
D 199 - referred to.

         3. The matter can be viewed from yet another angle.
    Section 123 of the T.P. Act is in two parts. The first part
    deals with gifts of immovable property while the second
E   part deals with gifts of movable property. Insofar as the
    gifts of immovable property are concerned, Section 123
    makes transfer by a registered instrument mandatory.
    This is evident from the use of word "transfer must be
    effected" used by Parliament in so far as immovable
    property is concerned. In contradiction to that
F   requirement the second part of Section 123 dealing with
    gifts of movable property, simply requires that gift of
    movable property may be effected either by a registered
    instrument signed as aforesaid or "by delivery". The
    difference in the two provisions lies in the fact that in so
G   far as the transfer of movable property by way of gift is
    concerned the same can be effected by a registered
    instrument or by delivery. Such transfer in the case of
    immovable property no doubt requires a registered
    instrument but the provision does not make delivery of
H   possession of the immovable property gifted as an
     RENIKUNTLA RAJAMMA (D) BY LRS. v. K.                 895
               SARWANAMMA

additional requirement for the gift to be valid and               A
effective. If the intention of the legislature was to make
delivery of possession of the property gifted also as a
condition precedent for a valid gift, the provision could
and indeed would have specifically said so. Absence of
any such requirement can only lead to the conclusion              B
that delivery of possession is not an essential
prerequisite for the making of a valid gift in the case of
immovable property. [Para 15] [904-C-H]

    4.1. There is indeed no provision in law that
ownership in property cannot be gifted without transfer           C
of possession of such property. Section 123 does not
make the delivery of possession of the gifted property
essential for validity of a gift. [Para 18] [905-8]

      4.2. In the case at hand, the execution of registered       D
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         E
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.
The High Court was in that view perfectly justified in
refusing to interfere with the decree passed in favour of         F
the donee. [Paras 19, 20] [905-C-F]

    Naramadaben Magan/al Thakker v. Pranjivandas
Magan/al Thakker & Ors. 1996 (5) Suppl. SCR 780: (1997)
2 sec 255 - distinguished.
                                                                  G
    K. Balakrishnan v. K. Kama/am & Ors. 2003 (6) Suppl.
SCR 1097: (2004) 1 SCC 581 - affirmed.
                     Case Law Reference:
   1996 (5) Suppl. SCR 780          Distinguished Para 1          H
         896       SUPREME COURT REPORTS                [2014] 8 S.C.R.


A          2003 (6) Suppl. SCR 1097            Affirmed          Para 1
           AIR 1925 Nagpur 199                 Referred to       Para 8
           AIR 1960 Mysore 97                  Approved          Para 8

·s         AIR 1981 Punjab                     174Approved       Para 8
           and Haryana
           AIR 1922 All. 467                   Approved          Para 11

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
C 4195 of 2008.

              From the Judgment and Order dated 09.03.2006 in
         Second Appeal No. 809 of 2003 of the High Court of
         Judicature, Andhra Pradesh at Hyderabad.

D              Nitin S. Tambwekar, S.B. Sai, K. Rajeev for the Appellants.

             Venkateswara Rao Anurnolu, Prabhakar Parnam, J.N.
         Singh for the Respondent.

               The Judgment of the Court was delilvered by
E
        T.S. THAKUR, J. 1. An apparent conflict between two
  earlier decisions ren_dered by this Court one in Naramadaben
  Magan/al Thakker v. Pranjivandas Magan/al Thakker & Ors.
  (1997) 2 SCC"255 and the other in K. Balakrishnan v. K.
F Kama/am & Ors. (2004) 1 SCC 581 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. Before we deal with the precise
  area in which the two decisions take divergent views, we may
G briefly set out the fictual matrix in which the controversy arises.

       2. 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
     1



H null and void. The plaintiffs case as set out in the plaint was
      RENIKUNTLA RAJAMMA (D) BY LRS. v. K.                     897
         SARWANAMMA [T.S. THAKUR, J.]

that the gift deed executed by the defendant-appellant was valid       A
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
purported revocation of the gift in favour of the plaintiff-
respondent in terms of the revocation deed was, on that basis,         B
assailed and a declaration about its being invalid and void ab
initio prayed for.

      3. The suit was contested by the defendant-appellant
herein on several grounds including the ground that the gift
deed executed in favour of the plaintiff was vitiated by fraud, C
mis-representation and undue influence. The parties led
evidence and went through the trial with the trial Court eventually
holding that the deed purporting to revoke the gift in favour of
the plaintiff was null and void. The Trial Court found that the
defendant had failed to prove that the gift deed set up by the D
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 E
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.                                                              F

     4. In the first appeal preferred against the said judgment
and decree, the first Additional District Judge, Warangal
affirmed the view taken by the trial Court and held that the
plaintiff had satisfactorily proved the execution of a valid gift in   G
his favour and that the revocation of a validly made gift deed
was legally impermissible. The First Appellate Court also held
that the gift deed was not a sham document, as alleged by the
defendant and that its purported cancellation/revocation was
totally ineffective. The defendant's case that she had
                                                                       H
    898      SUPREME COURT REPORTS                [2014) 8 S.C.R.


A   apprehended grabbing of the property by Sankaraiah forcing
    her to make a sham gift deed was held not established
    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
B   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
c   accepted the gift made in his favour. The appeal filed by the
    defendant (appellant herein) was on those findings dismissed.

          5. Concurrent findings of facts recorded by the Courts
    below did not deter the appellants from preferring Civil Second
    Appeal No.809 of 2003 in which the appellants made an
D   attempt to assail the said findings. The High Court, however,
    declined to interfere with the judgments and orders impugned
    before it and dismissed the second appeal of the appellant
    holding that the case set up by the defendant that the gift was
    vitiated by undue influence or fraud had been thoroughly
E   disproved at the trial. The present appeal is the last ditch
    attempt by the defendants to assail the findings recorded
    against them.

        6. When the special leave petition came up for preliminary
F hearing before a Division bench of this Court, 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. That
G 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. So also the challenge to the gift on the ground
  of fraud, misrepresentation and undue influence, having been
H repelled by the Courts below, the gift stands proved in all
      RENIKUNTLA RAJAMMA (D) BY LRS. v. K.                     899
         SARWANAMMA [T.S. THAKUR, J.]

material respects. All that was contended on behalf of the             A
appellant was that since the donor had retained to herself the
right to use the property and to receive rents during her life time,
such a reservation or retention rendered the gift invalid. A
conditional gift was not envisaged by the provisions of the
Transfer of Property Act, argued the learned counsel of the            B
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        c
upon the decision of this Court in Naramadaben Magan/al
Thakker v. Pranjivandas Magan/al Thakker and Ors. (1997)
2 sec 255.

     7. On behalf of the respondents it was per contra argued
that the validity of the gift having been upheld by the Courts         0
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. Ba/akrishnan          E
v. K. Kama/am & Ors. (2004) 1 SCC 581.

     8. Reliance was also placed by the learned counsel upon
Bhagwan Prasad & Anr. v. Harisingh AIR 1925 Nagpur 199,
Revappa v. Madhava Rao AIR 1960 Mysore 97 and Tirath                   F
Singh v. Manmohan AIR .1981 Punj. & Haryana 174 in
support of the submission that transfer of possession was a
condition under the Hindu Law for a valid gift which Rule of
Hindu Law stood superseded b¥ Section 123 of The Transfer
of Property Act.
                                                                       G
     9. Chapter VII of the Transfer of Property Act, 1882 deals
with gifts generally and, inter alia, provides for the mode of
making gifts. Section 122 of the Act defines 'gift' as a transfer
of certain existing movable or immovable property made
voluntarily and without consideration by one person called the         H
    900       SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A   donor to another called the donee and aceepted by or on behalf
    of the donee. In order to constitute a valid gift, acceptance must,
    according to this provision, be made during the life time of the
    donor and while he is still capable of giving. It stipulates that a
    gift is void if the donee dies before acceptance.
B
       10. Section 123 regulates mode of making a gift and, inter
  alia, provides that a gift of immovable property must be
  effected by a registered instrument signed by or on behalf of
  the donor and attested by at least two witnesses. In the case
C of movable property, transfer either by a registered instrument
  signed as aforesaid or by delivery is valid under Section 123.
  Section 123 may at this stage be gainfully extracted:

          "123. Transfer how effected - For the making of a gift
          of immoveable property, the transfer must be effected by
D         a registered instrument signed by or on behalf of the
          donor, and attested by at least two witne~ses.

          For the purpose of making a gift of moveable property,
          the transfer may be effected either by a registered
E         instrument signed as aforesaid or by delivery.

          Such delivery may be made in the same way as goods
          sold may be delivered."

        11. Sections 124 to 129 which are the remaining
F provisions that comprise Chapter VII deal with matters like gift
  of existing and future property, gift made to several persons of
  whom one does not accept, suspension and revocation of a
  gift, and onerous gifts including effect of non-acceptance by the
  donee of any obligation arising thereunder. These provisions
G do not concern us for the present. All that is important for the
  disposal of the case at hand is a careful reading of Section
  123 (supra) which leaves no manner of doubt that a gift of
  immovable property can be made by a registered instrument
  singed by or on behalf of the donor and attested by at least two
H witnesses. When read with Section 122 of the Act, a gift made
      RENIKUNTLA RAJAMMA (D) BY LRS. v. K.                  901
         SARWANAMMA [T.S. THAKUR, J.]

by a registered instrument duly signed by or on behalf of the A
donor and attested by at least two witnesses is valid, if the
same is accepted by or on behalf of the donee. That such
cu;ceptance must be given during the life time of the donor and
while he is still capable of giving is evident from a plain reading
of Section 122 of the Act. A conjoint reading of Sections 122 B
and 123 of the Act makes it abundantly clear that "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. Judicial c
pronouncements as to the true and correct interpretation of
Section 123 of the T.P. Act have for a fairly long period held
that Section 123 of the Act supersed~s the rule of Hindu Law
if there was any making delivery of possession an essential
condition for the completion of a valid gift. A full bench
                                                                    0
comprising five Hon'ble Judges of the High Court of Allahabad
has in Lallu Singh v. Gur Narain and Ors. AIR 1922 All. 467
referred to several such decisions in which the provisions of
Section 123 have been interpreted to be overruling the Hindu
Law requirement of delivery of possession as a condition for
making of a valid gift. This is evident from the following passage E
from the above decision where the High Court repelled in no
uncertain terms the contention that Section 123 of the T.P. Act
r:nerely added one more requirement of law namely attestation
and registration of a gift deed to what was already enjoined by
the Hindu Law and that Section 123 did not mean that where F
there was a registered instrument duly signed and attested,
other requirements of Hindu Law stood dispensed with:

    · "7. Dr. Katju, on behalf of the appellant, has strongly
      contended that by Section 123 it was merely intended to G
     add one more requirement of law, namely, that of
     attestation and registration, to those enjoined by the
      Hindu Law, and that the Section did not mean that where
      there was a registered document duly signed and
      attested, all the other requirements of Hindu Law were H
    902       SUPREME COURT REPORTS                [2014] 8 s:c.R.


A         dispensed with. Section 123 has, however, been
          interpreted by all the High Courts continuously for a vary
          long period in the way first indicated, and there is now a
          uniform consensus of opinion that the effect of Section
          123 is to supersede the rule of Hindu Law, if there was
B         any, for making the delivery of possession absolutely
          essential for the completion of the gift. We may only refer
          to a few cases for the sake of reference, Dharmodas v.
          Nistarini Dasi (1887) 14 Cal. 446, Ballbhadra v. Bhowani
          (1907) 34 Cal. 853, Alabi Koya v. Mussa Koya (1901)
c         24 Mad. 513, Mudhav Rao Moreshvar v. Kashi Bai
          (1909) 34 Bom. 287, Manbhari v. Naunidh (1881) 4 All.
          40, Balmakund v. Bhagwandas (1894) 16 Ali. 185, and
          Phulchand v. Lakkhu (1903) 25 All. 358. Where the terms
                               •                       I
          of a Statute or Ordinance are clear, then even a long and
D         uniform course of judicial interpretation of it may be
          overruled, if it is contrary to the clear meaning of the
          enactment but where such is not the case, then it is our
          duty to accept the interpretation so often and so long put
          upon the Statute by the Courts, and not to disturb those
          decisions, vide the remarks of their Lordships decisions,
E
          of the Privy Council in the case of Tricomdas Cooverji
          Bhoja v. Sri Sri Gopinath Thakur AIR 1916 P.C. 182. We
          are, therefore, clearly of opinion that it must now be
          accepted that the provisions of Section 123 do away with
          the necessity for the delivery of possession, even if it was
F         required by the strict Hindu Law."

       12. The logic for the above view flowed from the language
  of Section 129 of the T.P. Act which as on the date of the
  decision rendered by the High Court of Allahabad used the
G words "save as provided by Section 123 of the Acr. Section
  129 of the T.P. Act was, before its amendment in the year 1929,
  as under:

          "129. Saving of donations mortis causa and.
          Muhammadan Law.-Nothing in this Chapter relates to
H
      RENIKUNTLA RAJAMMA (D) BY LRS. v. K.                   903
         SARWANAMMA [T.S. THAKUR, J.]

     gifts of moveable property made in contemplation of A
     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".

     13. A plain reading of the above made it manifest that the 8
"rules of Hindu law" and "Buddhist Law" were to remain
unaffected by Chapter VII except to the extent such rules were
in conflict with Section 123 of the Transfer of Property Act. This
clearly implied that Section 123 had an overriding effect on the
rules of Hindu Law pertaining to gift including the rule that C
required possession of the property gifted to be given to the
donee. The decisions of the High Courts referred to in the
passage extracted above have consistently taken the view that
Section 123 supersedes the rules of Hindu law which may have
required delivery of possession as an essential condition for
the completion of a gift. The correctness of that statement of D
law cannot be questioned. The language employed in Section
129 before its amendment was clear enough to give Section
123 an overriding effect vis-a-vis rules of Hindu Law. Section
129 was amended by Act No. 20 of 1929 whereby the words
"or, save as provided by Section 123, any rule of Hindu or E
Buddhist Law" have been deleted. Section 129 of the T.P. Act
today reads as under:

     "129. Saving of donations mortis causa and
     Muhammadan Law - Nothing in this Chapter relates to             F
     gifts of moveable property made in contemplation of
     death, or shall be deemed to affect any rule of
     Muhammadan law."

        14. The above leaves no doubt that the law today protects
  only rules of Muhammadan Law from the rigors of Chapter VII        G
  relating to gifts. This implies that the provisions of Hindu Law
  and Buddhist Law saved under Section 129 (which saving did
  not extend to saving such rules from the provisions of Section
  123 of the T.P. Act) prior to its amendment are no longer saved
, from the overriding effect of Chapter VII. The amendment has       H
    904      SUPREME COURT REPORTS                [2014} 8 S.C.R.


A   made the position more explicit by bringing all other rules of
    Hindu and Buddhist Law also under the Chapter VII and
    removing the protection earlier available to such rules from the
    operation of Chapter VII. Decisions of the High Court of Mysore
    in Revappa v. Madhava Rao and Anr. AIR 1960 Mysore 97
B   and High Court of Punjab and Haryana in Tirath v. Manmohan
    Singh and Ors. AIR 1981 Punjab and Haryana 174, in our
    opinion, correctly take the view that Section 123 supersedes
    the rules of Hindu Law insofar as such rules required delivery
    of possession to the donee.
c      15. The matter can be viewed from yet another angle.
  Section 123 of the T.P. Act is in two parts. The first part deals
  with gifts of immovable property while the second part deals
  with gifts of movable property. Insofar as the gifts of immovable
  property are concerned, Section 123 makes transfer by a
D registered instrument mandatory. This is evident from the use
  of word "transfer must be effected" used by Parliament in so
  far as immovable property is concerned. In contradiction to that
  requirement the second part of Section 123 dealing· with gifts
  of movable property, simply requires that gift of movable
E property may be effected either by a registered instrument
  signed as aforesaid or "by delivery". The difference in the two
  provisions lies in the fact that in so far as the transfer of
  movable property by way of gift is concerned the same can be
  effected by a registered instrument or by delivery. Such transfer
F in the case of immovablei. property no doubt requires Cl
  registered instrument but the provision does not niake delivery·
  of possession of the irnmovable property gifted as an additional
  requirementfor the gift to be valid and effective. If the intention
  of the legislature was to make delivery of possession of the
G property gifted also as a condition precedent for a valid gift,
  the provision could and indeed would have specifically said so.
  Absence of any such requirement can only lead us .to the
  conclusion that delivery of possession is no~ an essential
  prerequisite, for the making of a valid gift in the case of
H immovable property.
      RENIKUNTLA RAJAMMA {D) BY LRS. v. K.                      905
        . SARWANAMMA [T.S. THAKUR, J.]

      16. That brings us to the decisions of this Court which have      A
led to this reference. In K. Balakrishnan's case {supra) the
donor executed a gift deed of a specified share of the property
inherited by her from her maternal grandfather in favour of her
minor son who was the donee-appellant before the Court and
her four year old daughter. The property gifted included a school       B
building. T.he gift deed stipulated that the responsibility to sign
in regard to the said school and the right to income would be
with the donor during her lifetime and thereafter would be vested
in the donee. After the execution of the gift deed the donor
cancelled the same and made a will bequeathing the property             c
in favour of her daughter whereupon the donee-appellant filed
a suit for declaration of his title to the suit property on the basis
of the gift and a further declaration for annulment of the
cancellation deed and the will executed by the donor. The Trial
Court dismissed the suit while the First Appellate Court                0
decreed the same. The High Court restored the view taken by
the Trial Court and held that when the donor had reserved to
herself the right to sign the papers with respect to management
of the school and the right to take usufruct from the property
where the school was situated, no property was transferred
under the deed. In appeal before this Court, the view taken by          E
the High Court was reversed and that taken by the First
Appellate Court restored. This Court held:

     "10. We ha've critically examined the contents of the gift
     deed. To us, it appears that the donor had very clearly            F
     transferred to the donees ownership and title in respect
     of her 1/Bth share in properties. It was open to the donor
     to transfer bv 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         G
     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:                        H
    906         SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A         "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         (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)   *                       *                  *
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."

D         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
E         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."
F                                                 (emphasis supplied)

        17. We are in respectful agreement with the statement of
  law contained in the above passage. There is indeed no
  provision in law that ownership in property cannot be gifted
G without transfer of possession of such property. As noticed
  earlier, Section 123 does not make the delivery of possession
  of the gifted property essential for validity of a gift. It is true that
  the attention of this Court does not appear to have been drawn
  to the earlier decision rendered in Naramadaben Magan/al
H Thakker (supra) where this Court had on a reading of the recital
       RENIKUNTLA RAJAMMA (D) BY LRS. v. K.                   907
          SARWANAMMA [T.S. THAKUR, J.]
 of the gift deed and the cancellation deed held that the gift was    A
. not complete. This Court had in that case found that the donee
  had not accepted the gift thereby making the gift incomplete.
 This Court, further, held that the donor cancelled the gift within
 a month of the gift and subsequently executed a Will in favour
  of the appellant on a proper construction of the deed and the       B
 deed cancelling the same this Court held that the gift in favour
 of the donee was conditional and that there was no acceptance
  of the same by the donee. The gift deed conferred limited right
  upon the ctonee and was to become operative after the death
  of the donee. This is evident from the following passage from       c
 the· said judgment:

     "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 D
     absolute owner of the properly. The question is whether
     the gift in question had become complete under Section
     123 of the TP Act? It is seen frcm the recitals of the gift
     deed that Motilal Gopalji gifted the· property to the
     respondent. In other words, it was a conditional gift. There E.,.
     is no recital of acceptance nor is there any evidence in
     proof of acceptance. Similarly, he had specifically stated
     that the properly would remain in his possession till he
     was alive. Thereafter, the gifted properly would become
     his properly and he was entitled to collect mesne profits F
     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 p~operly absolutely by way G
     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 properly during his lifetime ..... "
                                                                      H
    908       SUPREME COURT REPORTS                 (2014] 8 S.C.R.


A        18. 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 fayour of the donee was
   absent in that case which led this Court to hold that the gift was
B conditional and had to become operative only afte; the death
   of the donee. The judgment is in that view clearly
   distinguishable and cannot be read to be an authority for the
   propositi"on that delivery of possession is ao essential
   requirement for making a valid gift.
c          19. In 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
D   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.

E        20. The 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.
    Bibhuti Bhushan Bose                             Apppeal dismissed.