Vs. Rajan Asari  INSC 1543 (2 December 1996)
O R D
have learned counsel on both sides.
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.
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
recitals in the deed do indicate thus:
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.
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
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 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
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.