S. SAROJINI AMMAversusVELAYUDHAN PILLAI SREEKUMAR

554                      [2018]REPORTS
               SUPREME COURT   13 S.C.R. 554               [2018] 13 S.C.R.


A                            S. SAROJINI AMMA
                                        v.
                   VELAYUDHAN PILLAI SREEKUMAR
                        (Civil Appeal No. 10785 of 2018)
B                             OCTOBER 26, 2018
             [ARUN MISHRA AND INDIRA BANERJEE, JJ.]
             Transfer of Property Act, 1882 – s.122 – Document styled as
      gift deed but executed for consideration with the executant retaining
      possession and reserving her right over the property concerned –
C
      Such document if can be treated as instrument of gift – Appellant
      executed a purported gift deed in favour of her nephew i.e. the
      respondent, for consideration (partly paid) inter alia stating therein
      that the gift would take effect after the death of the appellant and
      her husband – Later, appellant cancelled the gift deed – Cancellation
D     deed executed by the appellant, whether null and void – Held: Gift
      means to transfer certain existing moveable or immoveable property
      voluntarily and without consideration by one person called the
      donor to another called the donee and accepted by or on behalf of
      the donee – A conditional gift with no recital of acceptance and no
      evidence in proof of acceptance, where possession remains with
E
      the donor as long as he is alive, does not become complete during
      lifetime of the donor – Conditional gift only becomes complete on
      compliance of the conditions in the deed – When a gift is incomplete
      and title remains with the donor, the deed of gift might be cancelled
      – In the instant case, admittedly, the deed of transfer was executed
F     for consideration and was conditional subject to the condition that
      the donee would look after the appellant and her husband and that
      the gift would take effect after the death of the donor – There was
      no completed gift of the property in question by the appellant to the
      respondent and the appellant was within her right in cancelling the
      deed.
G
            Allowing the appeal, the Court
           HELD: 1.1 Gift means to transfer certain existing moveable
      or immoveable property voluntarily and without consideration
      by one person called the donor to another called the donee and
H
                                       554
S. SAROJINI AMMA v. VELAYUDHAN PILLAI SREEKUMAR                        555


accepted by or on behalf of the donee. A conditional gift with no      A
recital 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 a
gift is incomplete and title remains with the donor the deed of
gift might be cancelled. [Paras 14, 15] [558-G-H; 559-A-C]
                                                                       B
      1.2 The conditions precedent of a gift as defined in Section
122 of the Transfer of Property Act must be satisfied. A gift is
transfer of property without consideration. Moreover, a conditional
gift only becomes complete on compliance of the conditions in
the deed. In the instant case, admittedly, the deed of transfer
was executed for consideration and was in any case conditional         C
subject to the condition that the donee would look after the
appellant and her husband and subject to the condition that the
gift would take effect after the death of the donor. There was no
completed gift of the property in question by the appellant to the
respondent and the appellant was within her right in cancelling        D
the deed. [Paras 18, 19] [559-F-H; 560-A]
      Naramadaben Maganlal Thakker v. Pranivandas
      Maganlal Thakker and Others (1997) 2 SCC 255 :
      [1996] 5 Suppl. SCR 780 – relied on.
      Reninkuntla Rajamma v. K. Sarwanamma (2014) 9 SCC                E
      445 : [2014] 8 SCR 890 – referred to.
                         Case Law Reference
      [1996] 5 Suppl. SCR 780          relied on      Para 14
      [2014] 8 SCR 890                 referred to    Para 15          F
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10785
of 2018
      From the Judgment and Order dated 03.04.2017 of the High Court
of Kerala at Ernakulam in R.S.A. No.757 of 2011.
                                                                       G
      V. Shekhar, Sr. Adv., Harikumar V., Anupam Mishra, Prithviraj
Singh, Advs. for the Appellant.
     Basava Prabhu S. Patil, Sr. Adv., M. Gireesh Kumar, Ankur S.
Kulkarni, Sidhant Sinha, Advs. for the Respondent.
                                                                       H
556            SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A           The Judgment of the Court was delivered by
            INDIRA BANERJEE, J. 1. Leave granted.
            2. This appeal has been filed against the judgment and order dated
      03.04.2017 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 Second
B     Appeal filed by the respondent and set aside the judgment and decree
      passed by the First Appellate Court in favour of the appellant.
              3. The short question involved in this appeal is whether a document
      styled as gift deed but admittedly executed for consideration, part of
      which has been paid and the balance promised to be paid, can be treated
C     as formal document or instrument of gift. Another related question is
      whether a gift deed reserving the right of the donor to keep possession
      and right of enjoyment and enforceable after the death of the executant
      is a gift or a will.
              4. The appellant is a childless widow aged 74 years whose husband
      expired on 06.06.2015. The respondent is the nephew of the appellant
D
      (brother’s son). In the expectation that the respondent will look after
      the appellant and her husband and also for some consideration, the
      appellant executed a purported gift deed in favour of the respondent.
      The gift deed clearly stated that the gift would take effect after the
      death of the appellant and her husband.
E             5. According to the appellant on or about 02.06.1999, the appellant
      executed the deed of cancellation No. 1844/1999 cancelling the gift deed.
      After about eight months, on or about 01.02.2000, the respondent filed
      Original Suit No. 32/2000 in the Court of the learned Munsif Sasthamcotta
      for declaration that the cancellation deed executed by the appellant is
F     null and void and also for declaration of his right over the suit property
      being the subject matter of the purported deed of gift.
            6. On or about 20.03.2000, the appellant filed Original Suit being
      O.S. No. 97/2000 before the Court of the learned Munsif, Sasthamcotta
      for permanent injunction restraining the respondent or his men from
      trespassing or committing waste or mischief in the suit property.
G
            7. On 12.05.2000, the appellant and her husband filed the written
      statement in the suit being O.S. No. 32/2000 filed by the respondent. On
      25.07.2000, the defendants in O. S. No. 97/2000 filed their written
      statement contending that the registered document No. 687/2000 was
      executed for consideration.
H
S. SAROJINI AMMA v. VELAYUDHAN PILLAI SREEKUMAR                             557
               [INDIRA BANERJEE, J.]

      8. By a judgment and order dated 11.12.2006, the learned Munsif,      A
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, Kollam     B
allowed the application being A.S. No. 30/2007 filed by the appellant
and dismissed A.S. No. 77/2000 filed by the respondent in O.S.
No. 97/2000.
       10. The respondent filed Regular Second Appeal against the
judgment and decree in A.S. No. 30/2007. By the judgment and order          C
dated 03.04.2017, the High Court allowed the R.S.A. No. 757/2011 and
set aside the judgment and decree in A.S. No. 30/2007.
       11. On behalf of the appellant, it was contended that the document
styled as gift deed was to come into effect only after the death of the
appellant and her husband. The question was whether a document in           D
terms whereof the executant of the document retained possession and
reserved her right over the property being the subject matter of the
document could be a deed of gift or whether such a document was a
document in the nature of a will.
      12. Section 122 of the Transfer of Property Act 1882 defines gift     E
as hereunder:-
      “122. “Gift” defined. – “Gift” is the transfer of certain
      existing moveable or immoveable property made voluntarily
      and without consideration, by one person called the donor,
      to another, called the donee, and accepted by or on behalf of         F
      the donee.”
      13. Some of the relevant provisions of the Transfer of Property
Act, 1882 with regard to a gift are set out herein-below:-
      123. Transfer how effected. - For the purpose of making a
      gift of immoveable property, the transfer must be effected by         G
      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.                                   H
558                SUPREME COURT REPORTS                      [2018] 13 S.C.R.


A               Such delivery may be made in the same way as goods sold
                may be delivered.
                124. Gift of existing and future property. – A gift comprising
                both existing and future property is void as to the latter.
                125. Gift to several of whom one does not accept.-A gift of a
B               thing to two or more donees, of whom one does not accept it,
                is void as to the interest which he would have taken had he
                accepted.
                126. When gift may be suspended or revoked.- The donor
                and donee may agree that on the happening of any specified
C               event which does not depend on the will of the donor a gift
                shall be suspended or revoked; but a gift which the parties
                agree shall be revocable wholly or in part, at the mere will of
                the 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 or
D               failure of consideration) in which, if it were a contract, it
                might be rescinded.
                Save as aforesaid, a gift cannot be revoked.
                Nothing contained in this section shall be deemed to affect
                the rights of transferees for consideration without notice.
E
                Illustrations
                (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 descendants
                die before A. B dies without descendants in A’s lifetime. A may
F               take back the field.
                (b) A gives a lakh of rupees to B, reserving to himself, with
                B’s assent, the right to take back at pleasure Rs. 10,000 out
                of the lakh. The gift holds goods as to Rs. 90,000, but is void
                as to Rs. 10,000, which continue to belong to A.
G           14. Gift means to transfer certain existing moveable or immoveable
      property voluntarily and without consideration by one person called the
      donor to another called the donee and accepted by or on behalf of the
      donee as held by the Supreme Court in Naramadaben Maganlal
      Thakker Vs. Pranivandas Maganlal Thakker and Others1. As
      1
H         (1997) 2 SCC 255
    S. SAROJINI AMMA v. VELAYUDHAN PILLAI SREEKUMAR                             559
                   [INDIRA BANERJEE, J.]

further held by this Court in Naramadaben Maganlal Thakker (supra)              A
“It would 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
absolute owner of the property.”

      15. A conditional gift with no recital of acceptance and no evidence      B
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 a gift is incomplete and title remains with the donor the
deed of gift might be cancelled.

       16. In Reninkuntla Rajamma Vs. K. Sarwanamma2 a Hindu                    C
woman executed a registered gift deed of immovable property reserving
to herself the right to retain possession and to receive rent of the property
during her lifetime. The gift was accepted by the donee but later revoked.
       17. In Reninkuntla Rajamma (supra), this Court held that the
                                                                                D
fact that the donor had reserved the right to enjoy the property during
her lifetime did not affect the validity of the deed. The Court held that
a gift made by registered instrument duly executed 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. Such acceptance must, however,
be made during the lifetime of the donor and while he is still capable of       E
making an acceptance.

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

       19. In the instant case, admittedly, the deed of transfer was
executed for consideration and was in any case conditional subject to           G
the condition that the donee would look after the petitioner and her husband
and subject to the condition that the gift would take effect after the
death of the donor. We are thus constrained to hold that there was no

2
    (2014) 9 SCC 445                                                            H
560            SUPREME COURT REPORTS                        [2018] 13 S.C.R.


A     completed gift of the property in question by the appellant to the
      respondent 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 appeal
      is set aside.
B

      Divya Pandey                                                Appeal allowed.




C




D




E




F




G




H