Vs. K.Kamalam. & Ors  Insc 658 (18 December 2003)
& D.M. Dharmadhikari K.Kamalam K.Balakrishnan & Ors Dharmadhikari J.
Appeal (civil) 4770 of 2001
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.
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
aged 16 son of Kunju Pillai and
aged 4 residing at Kamalalayam, Mayyanad Cherry.
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 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.
(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.
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.
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.
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
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
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.
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.
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
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.
All interest in property restricted in its enjoyment to the owner personally
cannot be transferred by him.
mere right to sue [***] cannot be transferred.
(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.
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.
second question which has been posed by the High Court and answered against the
donor is regarding acceptance of the gift and its revocability.
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 :-
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 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. "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.
when to be made. Such acceptance must be made during the lifetime of the donor
and while he is still capable of giving.
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. 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.
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.
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. 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.
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.
as aforesaid, a gift cannot be revoked.
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.
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 through him.
Onerous gifts 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.
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
gift to disqualified person. 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.
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].
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.
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'.
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.
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 Minority and Guardianship Act, was also present and living with the
minor in the same house jointly with other members of the family.
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
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.
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.
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 Halsbury's Laws of England 4th Edition 20 paragraph
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.
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.
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.
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
Devi vs. Amar Devi [1986 Himachal Pradesh 109]; and Narayani Bhanumathi vs. Lalitha
Bhai [1973 Kerala Law Times 961].
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.
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
the judgment of the first appellate court dated 21.7.1992 is hereby restored.
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.