http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: BABY AMMAL

       Vs.

RESPONDENT: RAJAN ASARI

DATE OF JUDGMENT:       02/12/1996

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      We have learned counsel on both sides.      This appeal  by special  leave arises from the judgment of the  Division Bench  of the  Kerala High  Court, made  on March 17, 1995 in Second Appeal No. 358/94.      The appellant  is admittedly  the owner of the property bearing  Survey   No.1960/6  in   Chettivilakam  Village  of Trivandrum District.  The appellant  had filed  a  suit  for possession  and   declaration  that   the  respondent  is  a licensee. The  trial Court  decreed the  suit on November 3, 1981 and  the appeal  was dismissed on July 22, 1993. In the second appeal,  the High  Court  has  reversed  the  finding holding that  the appellant  had executed  the gift  deed on October 11, 1966 under Ex.A-1 and, therefore, the respondent had become  the donee and remained in possession as owner of the property. Accordingly, the suit cannot be decreed. Thus, this appeal by special leave.      The  recitals   in  the   deed   do      indicate thus:      "All  the   right  to   enjoy   the      property and the right to reside in      the building  will remain  with  me      during my life time and Rajan Asari      will derive  the said  rights  with      full freedom after my life time."      A  reading   of  the  above  would  indicate  that  the appellant had  retained the  title to  the enjoyment  of the property during her life time as full owner with all rights. Section 122  of the  Transfer of  Property Act  defines gift executive in  the manner  indicated thereunder divesting the title to  and possession  of the  donor in  the property and vesting the  same in the donee under Section 123. These must be proof  of delivery  and acception  of possession  of  the gifted property. In this case, both the title and possession is respect  of the  property remained  with  the  plaintiff. There is  no acceptance  of possession  by the respondent in the light  of above recital. As a consequence, the appellant remained to  be the  owner during her life time. Under these circumstances, It  cannot be  construed to be a gift deed in favor of  the respondents.  At best,  it  would  be  only  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

licence in  favour of the respondent to remain in possession jointly with  the appellant.  Therefore, the  High Court was not right  in concluding that Ex.A-1 is a gift deed and that the appellant  has no  title to the property for declaration as he had parted with possession.      The appeal  is accordingly  allowed. The  judgment  and order of  the High  Court stand  set aside  and that  of the trial Court  and the  appellate Court  stand confirmed.  The decree of  manse profits  granted by  the High Court to that extent stands  confirmed. Six  months’ time  from  today  is granted to the respondent to vacate the premises. No costs.