http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (civil)  1036 of 2000 Appeal (civil)  4770 of 2001

PETITIONER: K.Balakrishnan                                           

RESPONDENT: K.Kamalam. & Ors                                         

DATE OF JUDGMENT: 18/12/2003

BENCH: Y.K.Sabharwal & D.M. Dharmadhikari

JUDGMENT: J U D G M E N T

K.Kamalam        Vs. K.Balakrishnan & Ors     

Dharmadhikari J.  

The only substantial question of law involved in this appeal is  whether the appellant, who was minor on the date of execution of the  gift-deed dated 24.9.1945, can be held to have legally accepted the  property in suit gifted to him and the said gift-deed was irrevocable.  The appellant shall hereinafter be described as ’the donee’ and  his deceased mother as the ’doner.’  The relevant dates and facts  leading to this appeal preferred against the impugned judgment  dated 6.8.1999 of the High Court of Kerala, passed in Second Appeal  No.67 of  1992 are thus:-

On 24.9.1945, mother Devyani-donor executed a registered  gift-deed of 1/8th share of the property inherited by her from her  maternal grandfather in favour of her minor son aged 16 years being  the present appellant (donee) and her daughter Kamalam  (respondent No.1 herein) who was aged four years.  The 1/8th share  of the property gifted is described in the schedule of gift-deed i.e.  one acre and 25 cents of property in Survey No.7481 & 7482 with  school building in Mayyanad  Cherry in the State of Kerala.  Under the  terms of the gift-deed ownership of the property, half and half, to  each of the two donees was transferred but the donor retained during  her life time the management of the school and the income from the  property. The original gift-deed is in Malyalam and rendered into  English, it reads thus :- Gift executed on 8th Kanni 1121 (24-9-1945) Mother  Devayani aged 43, Eznava daughter of Narayanan  residing at Kamolayan from CL Mandiram ,Eravipuram  Pakuthy , Mayyanad Cherry in favour of her children  (1) Balakrishnan aged 16 son of Kunju Pillai and (2)  Kamalam aged 4 residing at Kamalalayam, Mayyanad  Cherry. You are my children. In consideration of my love and  affection towards you, the under-mentioned properties  are given to you by way of gift.  Accordingly from today  you shall enjoy the paddy fields which are obtained my  mortgage by being in possession and payment of tax  and you can recover mortgage money by filing suit or  by receiving it directly after executing a release.  You  shall also transfer in your name according to law the  right in respect of the property in which Mayyanad  English School stands as also the buildings and other

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

movables therein and enjoy the same with all rights  forever.  The responsibility to sign in regard to the  above school and to receive the income will be with me  during my lifetime and after my death the above  responsibilities will vest in the first named donee.

Schedule (Other items omitted)

1/8share in 1 acre 80 cents in property in Sy. No.7481  & 7482 of the Mayyanad Cherry in which the English   school is situated, the entire school buildings and the  entire movables in the above."

On 28.3.1970, the donor executed a cancellation deed whereby  she cancelled the gift-deed dated 24.9.1945 and thereafter executed  a Will on 30.3.1970 bequeathing the same property comprising her  1/8th share in favour of her daughter, first respondent.  The donor  died on 6.11.1982.  The appellant filed the present suit OS No.145 of  1986 in the Court of Quilon  claiming declaration of his title to the  suit property on the basis of the gift-deed and a further declaration  was sought that the cancellation deed dated 28.3.1970 and the Will  dated 30.3.1970 are ineffective and void in law.

The trial court dismissed the suit holding inter alia that the  donee was a minor and no one has accepted the gift on his behalf. It,  therefore, held that the gift deed was invalid and passed no title to  the donee. It also recorded a finding that the gift deed was executed  by the donor during pendency of a suit against her for recovery of  money with intention to save it against execution of the decree   which was likely to be passed in that suit.  

The appeal preferred by the present appellant to the first  appellate court was allowed on 21.7.1992 by the District Judge,  Kollam.  The first appellate court held that a minor in law is not  disqualified from receiving the property under the gift deed and the  appellant could accept the gift  during minority.  Such acceptance  could be express or implied.  The first appellate court relied on the  oral evidence given by the parties and accepted the version of the  donor that after execution of the gift-deed and its registration, the  document was read by him and kept by his father. It was also held  that for valid acceptance of gift, delivery of possession of property  was not an essential requirement in law.

The High Court in the impugned judgment took a contrary view  and confirming the trial court judgment dismissed the suit of the  donee holding inter alia that the terms of the gift-deed do not  indicate that any property was transferred thereunder.  The High  Court held that when the donor reserved to herself the right to sign  the papers with respect to management of the school and right to  take usufruct from the property where the school is situated, there  arose no question of passing over ownership of the property to the  donees which the donees could accept.  

The High Court further  went on to hold that the entire right in   the property gifted was reserved by the donor to herself and   therefore even when the father had handed over the documents to  the plaintiff there arose no question of any acceptance of gift made in  respect of the school property.  The High Court further held that the  same legal position is in respect of property  gifted to the minor  daughter and no question of acceptance  of gift arose in respect of  that part of the property as well. The High Court has observed thus :-  

"In other words, in respect of the school properties,  Ex.A-1 has not taken effect. In respect of all the  properties of Devayani other than those found to be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

accepted in terms of Ex.A-1,  necessarily Ex.B1,  settlement-deed and Ex.A3 Will govern the matter of  succession."   

On the last finding with regard to properties other than the  school property, the respondents feel aggrieved and have preferred  the connected Civil  Appeal No.4771 of 2001 which is being decided  with this appeal.

We have heard the learned counsel appearing for the appellant  who has challenged the correctness of the judgment of the High  Court. The learned counsel appearing for the respondent has tried to  support the same.

We have critically examined the contents of the gift deed.  To  us, it appears that the donor had very clearly transferred to the  donees ownership and title in respect of  her 1/8th share in  properties.  It was open to the donor to transfer by 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 law that ownership in 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 :-   

"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)     A mere right to re-entry for breach of a condition  subsequent cannot be transferred to any one except the  owner of the property affected thereby.

(c)     ...........

(d)     All 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.

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 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.   

The second question which has been posed by the High Court  and answered against the donor is regarding acceptance of the gift  and its revocability.   

A minor in law suffers from certain specified disabilities.  A  minor is not competent to enter into a contract. Section 11 of the  Contract Act states :-  

"11. Who are competent to contract. - Every person is  competent to contract who is of the age of majority  according to the law to which he is subject, and who is of  sound mind and is not disqualified from contracting by any

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

law to which he is subject."

A minor suffers disability from entering into a contract but he is  thereby not incapable of receiving property.  The Transfer of Property  Act does not prohibit transfer of property to a minor.  Section 122 of  the Transfer of Property Act defines ’Gift’ thus :-

"122. Gift" defined. \026 "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 the donee.

Acceptance when to be made. \026 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."

[Underlining by the Court]

Section 123 of the Transfer of Property Act provides the mode  of effecting transfer by gift which reads:-

"123. Transfer how effected. \026 For the purpose of making  a gift of immovable 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."

The other relevant Section 126 specifies circumstances under  which a gift can be suspended or revoked :-

"126. When gift may be suspended or revoked. \026 The  donor and donee may agree that on the happening of any  specified 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  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."

[Underlining by the Court]

For understanding the provisions on "Gift" contained in Chapter  VII of the Transfer of Property Act, all the sections therein which are  interrelated have to be read conjointly to understand their import and  effect.            Section 127 throws light on the question of validity of transfer  of property by gift to a minor. It recognises  minor’s capacity to  accept the gift without intervention of  guardian, if it is possible, or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

through him.

"127. Onerous gifts \026 Where a gift is in the form of a single  transfer to the same person of several things of which one is,  and the others are not burdened by an obligation, the donee  can take nothing by the gift unless he accepts it fully.

Where a gift is in the form of two or more separate and  independent transfers to the same person of several things,  the donee is at liberty to accept one of them and refuse the  others, although the former may be beneficial and the latter  onerous.

Onerous gift to disqualified person. \026 A donee not  competent to contract and accepting property burdened by  any obligation is not bound by his acceptance.  But if, after  becoming competent to contract and being aware of the  obligation, he retains the property given, he becomes so  bound." [Underlining by the Court]          The last part of Section 127, underlined above, clearly indicates  that a minor donee, who can be said to be in law incompetent to  contract under Section 11 of the Contract Act is, however,   competent to accept a non onerous gift.  Acceptance of an onerous  gift, however, cannot bind the minor. If he accepts the gift during his  minority of a property burdened with obligation and on attaining  majority does not repudiate but retains it, he would be bound by the  obligation attached to it.           Section 127 clearly recognises the competence of a minor to  accept the gift.  The provision of law is clear and precedents clarify  the position. See the decisions of Judicial Commissioner in the case of  Firm of Ganeshdas Bhiwaraj vs.Suryabhan [1917 XIII Nagpur  Law Reports 18];  Munni Kunwar vs. Madan Gopal [1916  (XXXVIII) ILR Allahabad 62 at 69]; and Firm of Geneshdas  Bhiwaraj vs. Suryabhan [1917 Vol. 39 Indian Cases 46].

       The position in law, thus, under the Transfer of Property Act  read with the Indian Contract Act is that "the acquisition of property  being generally beneficial, a child can take property in any manner  whatsoever either under intestacy or by Will or by  purchase or gift or  other assurance inter vivos, except where it is clearly to his prejudice  to do so. A gift inter-vivos to a child cannot be revoked.  There is a  presumption in favour of the validity of a gift of a parent or a  grandparent to a child, if it is complete [See Halsbury’s Laws of  England Vol. 5(2) 4th Edn. Paragraphs 642 & 647].  When a gift is  made to a child, generally there is presumption of its acceptance  because express acceptance in his case is not possible and only an  implied acceptance can be excepted.   

Section 122 (quoted above and underlined) covers the case of   a minor donee being a person under legal disability. The section,  therefore, employs the expression - ’accepted by or on behalf of  donee’.   

As we have seen above, Section 127 (quoted above and  underlined in its last part) clearly indicates competence of a minor  donee to accept the gift, if he is capable of so doing.  Such  acceptance of a gift can be made by himself or on his behalf by  someone else.  

       Reverting back to the facts of this case, the mother who is one  of the  guardians of the donee, was herself the donor and the minor  was in her custody living with her in the same house.  The minor’s  father, who is the natural guardian under Section 6 of the Hindu

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

Minority and Guardianship Act, was also present and living with the  minor in the same house jointly with other members of the family.    The parties belong to an educated Kerala family.  As is apparent from  the record, the donee was 16 years of age at the time of making of  gift and as stated in the witness box, he understood and had  knowledge that her mother had gifted the property to him and his  younger sister.  According to him after the execution of the gift-deed,  the document written in Malayalam was brought to the house which  was read by the donee and he handed it over to his father. The  document has been produced in the court from the custody of the  daughter with whom the father lived at a time of filing of the suit by  the minor. A question was put to the father as to whether he had  accepted the gift on behalf of his minor son.  His reply was that the  minor son did not know about execution of the document and the son  came to know about it only when his sister, on the basis of the deed  of revocation, filed a suit against him for injunction in the year 1985.   The father has, however, not stated that he himself had no  knowledge of the execution of the gift-deed although he denies the  version of the donee that the scribe brought the gift-deed and gave it  to his wife and the wife gave it to him for safe custody.  The father’s  reply was that the gift-deed remained with the wife. Since the father  lived with the daughter and had supported her case, he naturally  denied the version of the minor of his having derived knowledge of  the gift deed, its reading by him and handing over to the father.   

       Where a gift is made in favour of a  child of the donor, who  is  the guardian of the child, the acceptance of gift can be presumed to  have been made by him or on his behalf without any overt act  signifying acceptance by the minor.  In the instant case, mother who  is the natural guardian gifted the property to her minor  son in the year 1945.  The donee  was an educated lad of  16 years  of age, capable of understanding and living jointly with the donor.   Knowledge of the execution of the gift would have been derived in  normal circumstances, by the minor, being beneficiary, sooner or  later after its execution.  Knowledge of gift deed to both the parents  as natural guardians and the donee is sufficient to indicate  acceptance of gift by the minor himself or on his behalf by the  parents.  The gift deed was revoked by the mother much after its  execution as late as in the year 1970. By that time, the donee had   become major and he never repudiated the gift.  We have examined  the terms of the gift-deed.  Non-delivery of possession of the gifted  property, non-exercise of any rights of ownership over it, and failure  by the donee, on attaining majority, in getting his name mutated in  official records are not circumstances negativing the presumption of  acceptance by the minor during his minority or on his attaining   majority. The donor had reserved to herself, under the terms of gift  deed, the right to manage, possess and enjoy the property during her  life time.  Since the possession and enjoyment of the property  including management of the school were retained by the donor  during her life time, the acceptance of the ownership of the property  gifted could be by silent acceptance.  Such acceptance is confirmed  by its non-repudiation by  his parents and by him on attaining  majority. As is the evidence on record, mother - the donor was  herself the natural guardian of the minor donee.  The father was also  a guardian and had knowledge of the gift.  He also did not repudiate  the gift on behalf of the donee. The donee himself was of 16 years of  age and could understand the nature of beneficial interest conferred  on him. He also had knowledge of the gift-deed and on attaining  majority did not repudiate it.  These are all circumstances which  reasonably give rise to an inference,  if not of express but implied  acceptance of the gift.  Where a gift is made by parent to a child,  there is a presumption of  acceptance of the gift by the donee. This  presumption of acceptance is founded on human nature.  ’A man may  be fairly presumed to assent to that to which he in all probability  would assent if the opportunity of doing so were given to him’. [See

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

Halsbury’s Laws of England 4th Edition 20 paragraph 48].

       In the case of Sundar Bai vs. Anandi Lal [AIR 1983  Allahabad 23],  the donee was a child and in the care of the donor  himself. The High Court held that in such circumstance, express  acceptance could not be insisted upon. In the case of Ponnuchami  Servai vs. Balasubramanian [AIR 1982 Madras 281], the father  himself was the donor and executed a gift deed in favour of his minor  son.  The parties continued to stay together in the said property even  after the gift.  In these circumstances it was held that the gift in  favour of the minor would be deemed to have been accepted as the  father himself was the guardian and had himself executed the gift- deed.                          There is one more relevant fact in the present case.  In the  judgment of the courts below there is a mention that under the  contents  of the deed of cancellation dated 28.3.1970, there is no  mention by the donor of the gift having not been accepted by the  donee although it is said therein that ’none of the stipulations in the  said gift have come into force.’   But she did not revoke the gift deed  by specifically mentioning in the recital of the cancellation deed that  the gift was not complete due to non-acceptance and she was  therefore, making some other arrangement for succession to her  property after her death.  

       In the case of Vannathi Valappil Janaki vs. Puthiya Purayil  Paru [AIR 1986 Kerala 110], the donors were real uncles of the  donees who were minor children. Subsequently the donors revoked  the gift on the ground that the donees were not bestowing  proper  love and affection on the donors which might endanger their future  safety.  The High Court of Allahabad on these facts inferred and came  to the conclusion that the gift deed in favour of the minor children  was definitely accepted or else there would have been mention in the  revocation deed that the revocation was necessitated because the  children no longer bestowed love and care on the donors.  The  relevant observations of the High Court deserve to be quoted:-

"When the gift of immovable property is not onerous, only  slight evidence is sufficient for establishing the fact of  acceptance by the donee.  When it is shown that the donee  had knowledge of the gift it is only normal to assume that  the donee had accepted the gift because the acceptance  would only promote his own interest.  Mere silence may  sometimes be indicative of acceptance provided it is shown  that the donee knew about the gift.  No express acceptance  is necessary for completing a gift.  Where the donors who  were the real uncles  of the donees stated in the deed of  revocation  that to allow the continued existence of the gift  would endanger their future safety as the donees were not  bestowing proper love and affection towards the donors  which was expected by the donors from the donees as a  recompense for the gift, that statement is clear indication  that the gift had been accepted by the donees."

       In the instant case,  non-mention of the fact of non acceptance  of the gift by the donee in the cancellation deed reinforces our  inference that the donor  mother herself, at the time of cancellation  of the gift, never assumed that the gift was not accepted and  therefore it is revocable.

       As seen above, in the case of a minor donee receiving a gift  from her parents, no express acceptance can be expected and is  possible, and acceptance can be implied even by mere silence or such  conduct of the minor donee and his other natural guardian as  not to  indicate any disapproval or repudiation of it.  [See Shankuntala  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

Devi vs. Amar Devi [1986 Himachal Pradesh 109]; and  Narayani Bhanumathi vs. Lalitha Bhai [1973 Kerala Law Times  961].

‘       In our considered opinion therefore, the trial court and the High  Court were  wrong in coming to the conclusion that there was no  valid acceptance of the gift by the minor donee. Consequently,  conclusion has to follow that the gift having been duly accepted in  law and thus being complete, it was irrevocable under Section 126 of  the Transfer of Property Act. Section 126 prohibits revocation of a  validly executed gift except in circumstances mentioned therein.  The  gift was executed in 1945.  It remained in force for about 25 years  during which time the donee had attained majority and had not  repudiated the same.  It was, therefore, not competent for the donor  to have cancelled the gift and executed a Will in relation to the  property.

       Consequently, Civil Appeal No.1036 of 2000 filed by the donee  succeeds and is hereby allowed.  The impugned order of the High  Court dated 6.8.1999 passed in Second Appeal No.671 of 1992 and  the judgment of the trial court dated 27.9.1989 are set aside.  Consequently, the judgment of the first appellate court dated  21.7.1992 is hereby restored.

       The connected Civil Appeal No.4770 of 2001 having been  preferred by respondent K. Kamalam only against certain findings  and observations contained in the impugned judgment of the High  Court is dismissed.  In the circumstances, parties shall bear their own  costs.