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CASE NO.: Appeal (civil)  5942 of 2007

PETITIONER: Asokan

RESPONDENT: Lakshmikutty & Ors.

DATE OF JUDGMENT: 14/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  [Arising out of  SLP (Civil) No. 20754 of 2003]

S.B. SINHA, J :          1.      Leave granted. 2.      Whether an averment made in the deed of gift in regard to handing  over of possession is sufficient proof of acceptance thereof by the donee is  the question involved in this appeal which arises out of a judgment and order  dated 9.07.2002 passed by the High Court of Kerala at Ernakulam in S.A.  No. 606 of 1993.

3.      Defendant Nos. 1 and 2 are the parents of the appellant herein.  A  deed of gift was executed by Defendant No. 2  - Respondent No. 1 (mother  of the appellant) herein in favour of the appellant on or about 4.01.1984.  He  was said to have been put in possession of the properties covered by the  deed of gift.  It was a registered document.  Defendant No. 1 (father of the  appellant) (since deceased) also executed a registered deed of gift dated  17.03.1984 in his favour which was marked as Exhibit A-2 before the  learned Trial Judge; relevant averments wherein were:

\023\005The said 28 cents was divided into two equal  portions.  On the southern extreme side of the  southern 14 cents after the said division there  existed a kudikidappu (hut) of one Konnothu  George.  Three cents and the said hut was  demarcated and given to the said George.   Lakshmikutty, your mother, purchased the rights  of George over the said three cents and the hut  thereon vide registered document No. 2214 of  1980.  The said property was later gifted by her to  you vide Document No. 78 of 1984.  The 11 cents  of land, remaining after demarcating the abovesaid  three cents from the 14 cents, namely the southern  one half portion of the 28 cents that originally  belonged to me, is still in my possession and  enjoyment with all rights.  Out of my love and  affection for you and in view of the fact that you  are my son and successor the said property having  a value of Rs. 5,500/- is gifted to you for leading a  good family life.  I am hereby relinquishing all my  rights over the property.  The possession of the  property is handed over to you and you have  accepted the same\005\024   4.      Defendants, however, on the premise that the said gift was an onerous  one and the appellant did not fulfil the conditions therefor, viz., failure to  contribute a sum of Rs. 1,00,000/- at the time of marriage of his sister,  cancelled the said deeds of gift by two documents executed on 15.06.1985.

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5.      Appellant filed a suit inter alia for a declaration that he was the  absolute owner of the suit properties.  Prayer for setting aside the said two  deeds of cancellation was also made therein.

6.      Contentions of the defendants in their written statements were that:

(i)     Appellant had not been rendering any financial help to the family  although he was employed in Sultanate of Oman; (ii)    Appellant had not accepted the said gifts.

7.      Defendants in their evidence stated that the appellant had promised to  pay Rs. 1,00,000/- to them but after returning to Oman, but he changed his  mind and was not prepared to send the said sum.

8.      The learned Trial Judge decreed the said suit opining that the  ingredients of Sections 122 and 123 of the Transfer of Property Act had been  fulfilled and, thus, the same could not have been rescinded \023by the mere fact  that the donors\022 feeling towards the donee underwent a change\024.   

9.      Before the learned Trial Judge, an apprehension was expressed that in  the event a decree is passed, the appellant may evict his parents which was  refused to be gone into on the ground that such a question might arise only  in the future.          The First Appellate Court, however, reversed the said findings  opining that there had been no overt act of possession on the part of the  appellant as he had not paid any tax nor he got his name mutated in the  revenue records.  It was noticed that even the deeds of gift were produced by  the defendants.   

10.     The High Court by reason of the impugned judgment affirmed the  said view.

11.     Mr. M.P. Vinod, learned counsel appearing on behalf of the appellant,  submitted that the first Appellate Court as also the High Court committed a  serious error in arriving at the aforementioned findings insofar as they failed  to take into consideration the fact that the deeds of gift being not onerous  ones and the factum of handing over of possession of the properties which  were the subject matter of the gift, having been stated in the deeds of gift  themselves, it was not necessary for the appellant to prove that he accepted  the same.  It was furthermore urged that keeping in view the provisions of  Sections 91 and 92 of the Indian Evidence Act, no plea contrary to or  inconsistent with the recitals made in the deeds of gift is permissible to be  raised.   

12.     Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the  respondents, on the other hand, submitted:

(i)     Acceptance of gift being a condition precedent for a valid gift and  the first Appellate Court and the High Court having arrived at a  finding that the same was not accepted, the impugned judgments  should not be interfered with. (ii)    The recitals made in the deeds of gift are not conclusive and, thus,  evidence to show that the same were not correct is admissible in  evidence.  (iii)   Sections 91 and 92 of the Indian Evidence Act control only the  terms of a contract and not a recital.  Even assuming that Sections  91 and 92 of the Indian Evidence Act would be applicable, by  reason thereof, only the onus has shifted on the donor and as they  have discharged the same, the impugned judgments are  unassailable.   

13.     We have noticed the terms of the deeds of gift.  Ex facie, they are not  onerous in nature.  

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       The definition of \021gift\022 contained in Section 122 of the Transfer of  Property Act provides that the essential elements thereof are: (i)     the absence of consideration; (ii)    the donor; (iii)   the donee; (iv)    the subject matter (v)     the transfer; and (vi)    the acceptance.

14.     Gifts do not contemplate payment of any consideration or  compensation.  It is, however, beyond any doubt or dispute that in order to  constitute a valid gift acceptance thereof is essential.  We must, however,  notice that the Transfer of Property Act does not prescribe any particular  mode of acceptance.  It is the circumstances attending to the transaction  which may be relevant for determining the question.  There may be various  means to prove acceptance of a gift.  The document may be handed over to a  donee, which in a given situation may also amount to a valid acceptance.   The fact that possession had been given to the donee also raises a  presumption of acceptance.  [See Sanjukta Ray v. Bimelendu Mohanty AIR  1997 Orissa 131, Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415 and  Samrathi Devi v. Parsuram Pandey AIR 1975 Patna 140]

15.     Concept of payment of consideration in whatever form is unknown in  the case of a gift.  It should be a voluntary one.  It should not be subjected to  any undue influence.   

16.     While determining the question as to whether delivery of possession  would constitute acceptance of a gift or not, the relationship between the  parties plays an important role.  It is not a case that the appellant was not  aware of the recitals contained in deeds of gift.  The very fact that the  defendants contend that the donee was to perform certain obligations, is  itself indicative of the fact that the parties were aware thereabout.  Even a  silence may sometime indicate acceptance.  It is not necessary to prove any  overt act in respect thereof as an express acceptance is not necessary for  completing the transaction of gift.

17.     In Narayani Bhanumathi and another v. Karthyayani Lelitha Bhai  [1973 Kerala LJ 354], a learned Single Judge of the Kerala High Court  stated the law, thus:

       \023If  the earlier settlement deed was executed  on an assurance that defendants 2 and 3 will be  looked after, that pre-supposes the knowledge of  the gift by the donees and an understanding  reached between them at the time of execution of  the settlement deed which could be sufficient to  support the plea of acceptance especially when  there is no question of the donee getting possession  of properties since there as reservation of right to  enjoy the property in the doners during their life  time.         The evidence bearing on the question of  acceptance of the gift deed will have to be   appreciated  in the background of the circumstance  relating to the execution of such a deed.  There  may be cases where slightest evidence of such  acceptance would be sufficient.  There may be still  cases where the circumstances themselves  eloquently speak to such acceptance.  Normally  when a person gifts properties to another and it is  not an onerous gift, one may expect the other to  accept such a gift when once it comes to his  knowledge, since normally, any person would be  only too willing to promote his own interest.  May  be in particular cases there may be peculiar

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circumstances which may show that the donee  would not have accepted the gift.  But these are  rather the exceptions than the rule.  It is only  normal to assume than the rule.  It is only normal  to assume that the  donee would have accepted the  gift deed.  One would have to look into the  circumstances of the case in order to see whether  acceptance could be read.  Mere silence may  sometimes be indicative of acceptance provided it  is  shown  that the donee knew about  the gift.   Essentially, this is a question of fact to be  considered on the background of circumstances of  each case.\024

18.     Mr. Iyer, however, submitted that it would be open to the donors to  prove that in fact no possession had been handed over.  Strong reliance in  this behalf has been placed on S.V.S. Muhammad Yusuf Rowther and  another v. Muhammad Yusuf Rowther and other [AIR 1958 Madras 527]  and Alavi v. Aminakutty & Others [1984 KLT 61 (NOC)].

19.    In S.V.S. Muhammad Yusuf Rowther (supra), the Madras High Court  was dealing with a case of gift under the Mohammadan Law.  Therein it was  opined:

       \023In my judgment, learned counsel for the  appellants is justified in his complaint that the  courts below have wrongly thrown the onus of  proving that this requirement as to delivery of  possession had been complied with on the  contesting defendants.  It is no doubt true that  delivery of possession of gifted properties is an  essential condition of the validity of the gift and its  operative nature under the Muslim Law and it  would be for the donees to establish it.\024

20.     When a registered document is executed and the executors are aware  of the terms and nature of the document, a presumption arises in regard to  the correctness thereof.  [See Prem Singh and Ors. v. Birbal and Ors. (2006)  5 SCC 353]

       When such a presumption is raised coupled with the recitals in regard  to putting the donee in possession of the property, the onus should be on the  donor and not on the donee.

21.     In Alavi (supra), Paripoornan, J. (as His Lordship then was) held:

\023It is settled law that where the deed of gift  itself  recites that the donor has given possession of the  properties gifted to the donee, such a recital is  binding on the heirs of the donor.  It is an  admission binding on the donor and those claiming  under him.  Such a recital raised a rebuttable  presumption and is ordinarily sufficient to hold  that there was delivery of possession.  Therefore,  the burden lies on those who allege or claim the  contrary to prove affirmatively that in spite of the  recitals in the gift deed to the effect that possession  has been delivered over, in fact, the subject matter  of the gift was not delivered over to the donees.\024   

22.     Section 91 of the Indian Evidence Act covers both contract as also  grant and other types of disposal of property.  A distinction may exist in  relation to a recital and the terms of a contract but such a question does not  arise herein inasmuch as the said deeds of gift were executed out of love and  affection as well as on the ground that the donee is the son and successor of

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the donor and so as to enable him to live a good family life.    

23.     Could they now turn round and say that he was to fulfill a promise?   The answer thereto must be rendered in the negative.  It is one thing to say  that the execution of the deed is based on an aspiration or belief, but it is  another thing to say that the same constituted an onerous gift.

       What, however, was necessary is to prove undue influence so as to  bring the case within the purview of Section 16 of the Indian Contract Act. It  was not done.  The deeds of gift categorically state, as an ingredient for a  valid transaction, that the property had been handed over to the donee and he  had accepted the same. In our opinion, even assuming that the legal  presumption therefore may be raised, the same is a rebuttable one but in a  case of this nature, a heavy onus would lie on the donors.   

24.     Keeping in view the relationship of the parties and further in view of  the fact that admittedly the appellant had not been residing in India for a  long time, neither the possession of the document nor the payment of tax nor  non-mutation of the name by itself would be sufficient to show that the  execution of the deeds of gift by the defendants was not voluntary acts on  their part.  It can never be the intention of a son to drive away the parents  from the house as soon as the deeds of gift are executed.  Parents while  gifting the property to a successor out of love and affection as also with a  view to enable him to live a peaceful life, would not like to lose both the  property as also their son.

25.     Our attention has been drawn to a decision of the Privy Council in  Nawab Mirza Mohammad Sadiqu Ali Khan and others v. Nawab Fakr Jahan  Begam and another [AIR 1932 PC 13] wherein again while dealing with a  case of gift governed by Muhammadan law, it was stated:  \023The first objection being against the tenor of the  deed, the burden of proof is clearly upon those  who dispute the gift.  No possible reason is  suggested why Baqar Ali should have desired to  put a portion of this property in anyone else\022s   name except, possibly, an inherent propensity for  benami or \021ism farzi\022 transactions.  On the other  hand, the reason recited in the deed that he desired  to provide his favourite wife with an alternative  residence at Kairabad is to say the least of it,  understandable.  The portion assigned to her  contained the zenana quarters, where she  ordinarily put up when accompanying her husband  on his apparently not infrequent visits to the kothi,  and it is clear from the evidence of his other gifts  to her which are now established, that he had a  great desire to provide for her future comfort on a  generous scale.  Against this, all that can be said is  that during his life time she exercised no individual  acts of proprietorship over any portion of the  Kairabad establishment; that in her and her  husband\022s absence the serai was occupied by the  servants of the estate; that such repairs as were  necessary were done at Baqar Ali\022s expense, and  that no mutation of names was made in the  Government records.  In their Lordships\022 opinion  these facts are not sufficient to establish that the  transaction  was merely colourable.  The deed was  handed over to the donee and remained in her  possession, and their Lordships have no doubt that  Baqar Ali intended to make a genuine gift of the  property to her.\024

26.     In regard to handing over of the possession, it was held:

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       \023In the second place, the deed of gift was  handed over to the donee as soon as it was  registered.  In the case of a gift by a husband to his  wife, their Lordships do not think that Mahomedan  law requires actual vacation by the husband and an  actual taking of separate possession by the wife.   In their opinion the declaration made by the  husband, followed  by the handing over  of the  deed are amply sufficient  to establish a transfer of  possession.\024

27.     It will bear repetition to state that we are in this case concerned with  the construction of recitals made in a registered document.

28.     Mr. Iyer also relied upon a decision of Oudh High Court in Jhumman  v. Husain and others [AIR 1931 Oudh 7] to show that a declaration that  possession had been given is not conclusive.  Therein again, the court was  dealing with a case of gift under Mohammadan law.  In that case, the gift  was accepted after the death of the donor and it was in that situation that  emphasis was laid on handing over of possession as a condition of valid gift.   

29.     In Smt. Gangabai v. Smt. Chhabubai [AIR 1982 SC 20], wherein also  reliance has been placed by Mr. Iyer, it was held that the bar created under  Sections 91 and 92 of the Indian Evidence Act would operate unless it  comes within the purview of the exceptions specified therein.  Therein the  question which arose for consideration related to the nature of transaction  and not the terms of the grant.   

30.     Mr. Iyer places reliance on Tyagaraja Mudaliyar and another v.  Vedathanni [AIR 1936 PC 70] wherein again correctness or otherwise of the  nature of document itself was in question and in that view of the matter  adduction of oral evidence was not held to be a bar in terms of Section 91 of  the Indian Evidence Act.   

31.     Once a gift is complete, the same cannot be rescinded.  For any reason  whatsoever, the subsequent conduct of a donee cannot be a ground for  rescission of a valid gift.

32.     For the reasons aforementioned, the impugned judgment cannot be  sustained and, thus, judgments of the High Court as also the first Appellate  Court are set aside and that of the Trial Court restored.  The appeal is  allowed.  No costs.