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PETITIONER: NARAMADABEN MAGANLAL THAKKER

       Vs.

RESPONDENT: PRANJIVANDAS MAGANLAL THAKKER & ORS.

DATE OF JUDGMENT:       10/09/1996

BENCH: K. RAMASWAMY, FAIZAN UDDIN, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the  Division Bench  of the Gujarat High Court made in FA No. 421/74  on September  13, 1979.  The admitted  facts are that one  Motilal Gopalji  was the  owner of  the properties bearing Revenue  Survey No.  172/8 situated  in  Pratapnagar area of  the city  of Baroda.  The property  consists of  15 rooms of  the chawl  and an  open land surrounding the same. The appellant is the sister of the first respondent. Motilal Gopalji had executed gift deed, Ex.111 dated May 15, 1965 in favour  of  the  respondent.  Thereafter,  he  had  executed another deed,  Ex. 198  dated June  9, 1965,  cancelling the said gift. He executed a will in favour of the appellant and another brother  of the  appellant on  May 17, 1966. Motilal Gopalji died  two  days  thereafter,  i.e.,  May  19,  1966. Consequently, the respondent laid a suit in the Court of the Civil Judge,  Senior Division  in Baroda  for declaration of his title  to the  properties and injunction restraining the appellant and  her brother  from collecting  the rents.  The trail court  decreed the  suit. On appeal, it was confirmed. Thus this appeal by special leave.      Shri R.P.  Bhatt, learned  senior counsel appearing for the appellant,  contended that  a reading of the recitals of the gift  deed and the cancellation deed do clearly indicate the intention  of the  donor and the donee, namely, the gift was not  complete. It  was a  conditional one.  He  reserved life interest  in the  property and  had not handed over the possession of  the property;  nor had the donee accepted the gift, thereby,  the gift  was incomplete. The gift which was duly cancelled  became inoperative  during the  life time of the donor.  The donor  had cancelled  it within one month of the gift.  Subsequently, he had executed a will in favour of the appellant  and her  brother. Thereby,  the courts  below were wrong  in construing that the gift became operative and by operation  of gift  deed dated  May 15,  1965  the  donor Motilal Gopalji was devoid of power to cancel the gift deed. It is contended by Shri Dholakia, learned senior counsel for the respondent,  that the  view taken  by the  High Court is correct in  law. It  is  stated  that  Motilal  Gopalji  had delivered symbolic  possession to  the respondent.  What  he

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preserved was only right to collect rent for his maintenance and thereafter he had no power to cancel it. The recitals in the cancellation deed are not material. Only the recitals in the gift deed have to be considered. On their own face value they do  indicate that  Motilal Gopalji had divested himself totally of  the right,  title and  interest in the property, the subject matter of the gift over. Consequently, he had no power to  cancel the  gift and  the will executed by Motilal Gopalji was  inoperative. We find no force ib the contention for the respondent.      It is  now well settled legal position that a documents has to  be read harmoniously as a whole giving effect to all the clauses  contained in  the document  which manifest  the intention of  the persons  who  execute  the  document.  The material part of the gift deed reads as under:      "The  said  immovable  property  as      described  above  with  the  ground      floor and  with ways  to  pass  and      with the  water disposal  and  with      all other  concerned rights, titles      is gifted to you and the possession      whereof is handed over to you under      the  following   conditions  to  be      observed by  you and your heirs and      legal representatives  as  long  as      the  Sun   and  the   Moon   shine.      Therefore, now  I or  my  heirs  or      legal representatives have no right      on the  said property. You and your      heirs  and  your  heirs  and  legal      representatives  have   become  the      exclusive owners  of the  same. You      and   your    heirs    and    legal      representatives  are   entitled  to      enjoy, to  transfer or  to use  the      said property as you like under the      conditions mentioned  in this deed.      Except myself,  there  is  nobody‘s      right, title,  interest or share on      the  said   property:  I  have  not      mortgaged the same by any document.      Yet however  anybody comes  forward      to claim  the fight, I shall remove      the same.      The said  property is gifted to you      on such conditions that and you are      made owners by the gift deed of the      said property  on  such  conditions      that there are 15 rooms on the said      property at  present. I am rightful      to receive  the rents and the mesne      profit whatsoever  accused from the      said rooms throughout my life. I am      only entitled  to receive the mesne      profit of the said, property till I      live. Therefore,  I the  executant,      shall be  entitled to  let out  the      said buildings  (rooms), to receive      the rent  amount to  make  all  the      other  arrangement   throughout  my      life. Similarly  the said  property      shall be  in my  possession till  I      live. Therefore, I have gifted this      property  to   you   by   reserving      permanently my  rights  to  collect

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    the mesne  profit of  the  existing      rooms throughout  my life.  And  by      this   gift    deed   the   limited      ownership right  will be  conferred      to you  till I live. After my death      you are  entitled to  transfer  the      said property.  I shall not give in      any way  my  right  to  anybody  to      collect the  mesne profit.  You may      get transferred  the said  property      in your  name in  support  of  this      deed. This gift deed is executed to      you     under     the     aforesaid      conditions."      The material  part of  the cancellation  deed reads  as under:-      "I have,  on  15-5-65,  executed  a      conditional  gift   deed   of   Rs.      9,000/-  in   words   Rupees   nine      thousand in favour of you. The said      deed  has  been  presented  in  the      office of the Sub Registrar, Baroda      at Serial  no. 2153 of the book no.      1 and it registered on 15-5-65. The      description   of    the    property      mentioned in  the said  deed is  as      under."      "I executed  to you  a  conditional      gift deed of the said property from      sky to  earth. You  had promised me      to  fulfill   the  oral  conditions      between us.  But immediately  after      making the  gift  accordingly,  you      denied to  fulfill the  conditions.      The  possession   of   the   gifted      property is not handed over to you.      So in  fact you  have not  accepted      the   conditional   gift   of   the      property and  I am also not willing      to act  according to  the mentioned      in the  possession  shall  be  kept      with  me.  And  so  accordingly  my      possession is  beginning and  it is      permanent. You are not ready to act      according   to    our   conditions.      Therefore,  I   have   to   execute      immediately this deed of cancelling      the conditional  gift deed  between      us. Therefore,  I hereby cancel the      conditional gift  deed dated  15-5-      665 of  Rs.9,000/- in  words rupees      nine  thousand   presented  at  the      serial no.  2153 on  15-5-65 in the      office of the Sub- Registrar Baroda      for  registration.  Therefore,  the      said   conditional gift  deed dated      15-5-65  is  hereby  cancelled  and      meaningless. The property under the      conditional gift  has not  been and      is not  to be  transferred in  your      name. I  will  be  at  present  and      permanently remain in my name."      Section 122 of the Transfer of property Act [for short, the "TP Act"] defines ’gift’ to mean the transfer of certain existing movable  or immovable property made voluntarily and

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without consideration,  by one  person, called the donor, to another, called  the donee,  and accepted by or on behalf of the donee.      Acceptance by  or on  behalf of  the donee must be made during the  life time  of the  donor and  while he  is still capable of giving.      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 absolute owner of the property. The question is: whether the gift in  question had  become complete  under Section 123 of the TP  Act? It  is seen  from the recitals of the gift deed that Motilal  Gopalji gifted the property to the respondent. In other  words, It  was a  conditional gift.  There  is  no recital of  acceptance nor is there any evidence in proof of acceptance. Similarly,  he had  specifically stated that the property would  remain in  his possession till he was alive. Thereafter, the  gifted property  would become  his property and he  was entitled  to collect mesne profits 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 property absolutely  by way  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 property  during his  life time. The  recitals in  the cancellation  deed is consistent with the  recitals in the gift deed. He had expressly stated that the respondent had cheated him and he had not fulfilled the  conditions   subject  to   which  there   was  an  oral understanding between  them. Consequently, he mentioned that the conditional  gift given  to him  was cancelled.  He also mentioned that  the possession  and enjoyment  remained with him during  his life  time. He  stated, "I  have to  execute immediately this  deed of  cancelling the  conditional  gift deed between  us. Therefore  I hereby cancel the conditional gift deed 15-5-65 of Rs.9000/- in words rupees nine thousand presented at the Serial no. 2153 on 15-5-65 in the office of the Sub-Registrar  Baroda for  registration. Therefore,  the said conditional gift deed dated 15-5-65 is hereby cancelled and meaningless. The property under the conditional gift has not been and is not to be transferred in your name.: Thus he expressly made  it clear  that he  did  not  hand  over  the possession  to  the  respondent  nor  did  the  gift  become complete during  the life  time of  the donor. Thus the gift had  become   ineffective  and   inoperative.  It  was  duly cancelled. The question then is: whether the appellant would get the  right to  the property?  It is  not in dispute that after the  cancellation deed  dated June  9, 1965 came to be executed, duly  putting an  end to the conditional gift deed dated May  15, 1965,  he executed  his last  will on May 17, 1965, and died two days thereafter.      The appeal is accordingly allowed. The judgements and decrees of the trial Court and the appellate court stand set aside. Consequently, the suit stands dismissed. No costs.