Asokan Vs. Lakshmikutty & Ors.  Insc
S.B. Sinha & Harjit Singh Bedi
[Arising out of SLP (Civil) No. 20754 of 2003]
S.B. SINHA, J :
1. Leave granted.
2. Whether an averment made in the deed of gift
in regard to handing over of possession is sufficient proof of acceptance
thereof by the donee is the question involved in this appeal which arises out
of a judgment and order dated 9.07.2002 passed by the High Court of Kerala at Ernakulam
in S.A. No. 606 of 1993.
3. Defendant Nos. 1 and 2 are the parents of the
appellant herein. A deed of gift was executed by Defendant No. 2 - Respondent
No. 1 (mother of the appellant) herein in favour of the appellant on or about
4.01.1984. He was said to have been put in possession of the properties covered
by the deed of gift. It was a registered document. Defendant No. 1 (father of
the appellant) (since deceased) also executed a registered deed of gift dated
17.03.1984 in his favour which was marked as Exhibit A-2 before the learned
Trial Judge; relevant averments wherein were:
The said 28 cents was divided into two
equal portions. On the southern extreme side of the southern 14 cents after the
said division there existed a kudikidappu (hut) of one Konnothu George. Three
cents and the said hut was demarcated and given to the said George.
Lakshmikutty, your mother, purchased the rights
of George over the said three cents and the hut thereon vide registered
document No. 2214 of 1980. The said property was later gifted by her to you
vide Document No. 78 of 1984. The 11 cents of land, remaining after demarcating
the abovesaid three cents from the 14 cents, namely the southern one half portion
of the 28 cents that originally belonged to me, is still in my possession and
enjoyment with all rights. Out of my love and affection for you and in view of
the fact that you are my son and successor the said property having a value of Rs.
5,500/- is gifted to you for leading a good family life. I am hereby
relinquishing all my rights over the property. The possession of the property
is handed over to you and you have accepted the same
4. Defendants, however, on the premise that the
said gift was an onerous one and the appellant did not fulfil the conditions therefor,
viz., failure to contribute a sum of Rs. 1,00,000/- at the time of marriage of
his sister, cancelled the said deeds of gift by two documents executed on
5. Appellant filed a suit inter alia for a
declaration that he was the absolute owner of the suit properties. Prayer for
setting aside the said two deeds of cancellation was also made therein.
6. Contentions of the defendants in their
written statements were that:
(i) Appellant had not been rendering any
financial help to the family although he was employed in Sultanate of Oman;
(ii) Appellant had not accepted the said gifts.
7. Defendants in their evidence stated that the
appellant had promised to pay Rs. 1,00,000/- to them but after returning to Oman, but he changed his
mind and was not prepared to send the said sum.
8. The learned Trial Judge decreed the said suit
opining that the ingredients of Sections 122 and 123 of the Transfer of
Property Act had been fulfilled and, thus, the same could not have been
rescinded by the mere fact that the donors feeling towards the donee
underwent a change.
9. Before the learned Trial Judge, an
apprehension was expressed that in the event a decree is passed, the appellant
may evict his parents which was refused to be gone into on the ground that such
a question might arise only in the future.
The First Appellate Court, however, reversed the
said findings opining that there had been no overt act of possession on the
part of the appellant as he had not paid any tax nor he got his name mutated in
the revenue records. It was noticed that even the deeds of gift were produced
by the defendants.
10. The High Court by reason of the impugned
judgment affirmed the said view.
11. Mr. M.P. Vinod, learned counsel appearing on
behalf of the appellant, submitted that the first Appellate Court as also the
High Court committed a serious error in arriving at the aforementioned findings
insofar as they failed to take into consideration the fact that the deeds of
gift being not onerous ones and the factum of handing over of possession of the
properties which were the subject matter of the gift, having been stated in the
deeds of gift themselves, it was not necessary for the appellant to prove that
he accepted the same. It was furthermore urged that keeping in view the
provisions of Sections 91 and 92 of the Indian Evidence Act, no plea contrary
to or inconsistent with the recitals made in the deeds of gift is permissible
to be raised.
12. Mr. T.L.V. Iyer, learned senior counsel
appearing on behalf of the respondents, on the other hand, submitted:
(i) Acceptance of gift being a condition
precedent for a valid gift and the first Appellate Court and the High Court
having arrived at a finding that the same was not accepted, the impugned
judgments should not be interfered with.
(ii) The recitals made in the deeds of gift are
not conclusive and, thus, evidence to show that the same were not correct is
admissible in evidence.
(iii) Sections 91 and 92 of the Indian Evidence
Act control only the terms of a contract and not a recital. Even assuming that
Sections 91 and 92 of the Indian Evidence Act would be applicable, by reason
thereof, only the onus has shifted on the donor and as they have discharged the
same, the impugned judgments are unassailable.
13. We have noticed the terms of the deeds of
gift. Ex facie, they are not onerous in nature.
The definition of gift contained in
Section 122 of the Transfer of Property Act provides that the essential
elements thereof are:
(i) the absence of consideration;
(ii) the donor;
(iii) the donee;
(iv) the subject matter
(v) the transfer; and
(vi) the acceptance.
14. Gifts do not contemplate payment of any
consideration or compensation. It is, however, beyond any doubt or dispute that
in order to constitute a valid gift acceptance thereof is essential. We must,
however, notice that the Transfer of Property Act does not prescribe any
particular mode of acceptance. It is the circumstances attending to the
transaction which may be relevant for determining the question. There may be
various means to prove acceptance of a gift. The document may be handed over to
a donee, which in a given situation may also amount to a valid acceptance.
The fact that possession had been given to the donee
also raises a presumption of acceptance. [See Sanjukta Ray v. Bimelendu Mohanty
AIR 1997 Orissa 131, Kamakshi Ammal v. Rajalakshmi, AIR 1995 Mad 415 and Samrathi
Devi v. Parsuram Pandey AIR 1975 Patna 140]
15. Concept of payment of consideration in
whatever form is unknown in the case of a gift. It should be a voluntary one.
It should not be subjected to any undue influence.
16. While determining the question as to whether
delivery of possession would constitute acceptance of a gift or not, the
relationship between the parties plays an important role. It is not a case that
the appellant was not aware of the recitals contained in deeds of gift. The
very fact that the defendants contend that the donee was to perform certain
obligations, is itself indicative of the fact that the parties were aware
thereabout. Even a silence may sometime indicate acceptance. It is not
necessary to prove any overt act in respect thereof as an express acceptance is
not necessary for completing the transaction of gift.
17. In Narayani Bhanumathi and another v. Karthyayani
Lelitha Bhai [1973 Kerala LJ 354], a learned Single Judge of the Kerala High
Court stated the law, thus:
If the earlier settlement deed was executed
on an assurance that defendants 2 and 3 will be looked after, that pre-supposes
the knowledge of the gift by the donees and an understanding reached between
them at the time of execution of the settlement deed which could be sufficient
to support the plea of acceptance especially when there is no question of the donee
getting possession of properties since there as reservation of right to enjoy
the property in the doners during their life time.
The evidence bearing on the question of
acceptance of the gift deed will have to be appreciated in the background of
the circumstance relating to the execution of such a deed. There may be cases
where slightest evidence of such acceptance would be sufficient. There may be
still cases where the circumstances themselves eloquently speak to such
acceptance. Normally when a person gifts properties to another and it is not an
onerous gift, one may expect the other to accept such a gift when once it comes
to his knowledge, since normally, any person would be only too willing to
promote his own interest. May be in particular cases there may be peculiar
circumstances which may show that the donee would not have accepted the gift.
But these are rather the exceptions than the rule. It is only normal to assume
than the rule. It is only normal to assume that the donee would have accepted
the gift deed. One would have to look into the circumstances of the case in
order to see whether acceptance could be read. Mere silence may sometimes be
indicative of acceptance provided it is shown that the donee knew about the
Essentially, this is a question of fact to be
considered on the background of circumstances of each case.
18. Mr. Iyer, however, submitted that it would
be open to the donors to prove that in fact no possession had been handed over.
Strong reliance in this behalf has been placed on S.V.S. Muhammad Yusuf Rowther
and another v. Muhammad Yusuf Rowther and other [AIR 1958 Madras 527] and Alavi
v. Aminakutty & Others [1984 KLT 61 (NOC)].
19. In S.V.S. Muhammad Yusuf Rowther (supra),
the Madras High Court was dealing with a case of gift under the Mohammadan Law.
Therein it was opined:
In my judgment, learned counsel for the
appellants is justified in his complaint that the courts below have wrongly
thrown the onus of proving that this requirement as to delivery of possession
had been complied with on the contesting defendants. It is no doubt true that
delivery of possession of gifted properties is an essential condition of the
validity of the gift and its operative nature under the Muslim Law and it would
be for the donees to establish it.
20. When a registered document is executed and
the executors are aware of the terms and nature of the document, a presumption
arises in regard to the correctness thereof. [See Prem Singh and Ors. v. Birbal
and Ors. (2006) 5 SCC 353] When such a presumption is raised coupled with the
recitals in regard to putting the donee in possession of the property, the onus
should be on the donor and not on the donee.
21. In Alavi (supra), Paripoornan, J. (as His
Lordship then was) held:
It is settled law that where the deed of
gift itself recites that the donor has given possession of the properties
gifted to the donee, such a recital is binding on the heirs of the donor. It is
an admission binding on the donor and those claiming under him. Such a recital
raised a rebuttable presumption and is ordinarily sufficient to hold that there
was delivery of possession. Therefore, the burden lies on those who allege or
claim the contrary to prove affirmatively that in spite of the recitals in the
gift deed to the effect that possession has been delivered over, in fact, the
subject matter of the gift was not delivered over to the donees.
22. Section 91 of the Indian Evidence Act covers
both contract as also grant and other types of disposal of property. A
distinction may exist in relation to a recital and the terms of a contract but
such a question does not arise herein inasmuch as the said deeds of gift were
executed out of love and affection as well as on the ground that the donee is
the son and successor of the donor and so as to enable him to live a good
23. Could they now turn round and say that he
was to fulfill a promise? The answer thereto must be rendered in the negative.
It is one thing to say that the execution of the deed is based on an aspiration
or belief, but it is another thing to say that the same constituted an onerous
What, however, was necessary is to prove undue
influence so as to bring the case within the purview of Section 16 of the
Indian Contract Act. It was not done. The deeds of gift categorically state, as
an ingredient for a valid transaction, that the property had been handed over
to the donee and he had accepted the same. In our opinion, even assuming that
the legal presumption therefore may be raised, the same is a rebuttable one but
in a case of this nature, a heavy onus would lie on the donors.
24. Keeping in view the relationship of the
parties and further in view of the fact that admittedly the appellant had not
been residing in India for a long time, neither the possession of the document
nor the payment of tax nor non-mutation of the name by itself would be
sufficient to show that the execution of the deeds of gift by the defendants
was not voluntary acts on their part. It can never be the intention of a son to
drive away the parents from the house as soon as the deeds of gift are
executed. Parents while gifting the property to a successor out of love and
affection as also with a view to enable him to live a peaceful life, would not
like to lose both the property as also their son.
25. Our attention has been drawn to a decision
of the Privy Council in Nawab Mirza Mohammad Sadiqu Ali Khan and others v. Nawab
Fakr Jahan Begam and another [AIR 1932 PC 13] wherein again while dealing with
a case of gift governed by Muhammadan law, it was stated:
The first objection being against the tenor
of the deed, the burden of proof is clearly upon those who dispute the gift. No
possible reason is suggested why Baqar Ali should have desired to put a portion
of this property in anyone elses name except, possibly, an inherent
propensity for benami or ism farzi transactions. On the other hand,
the reason recited in the deed that he desired to provide his favourite wife
with an alternative residence at Kairabad is to say the least of it,
understandable. The portion assigned to her contained the zenana quarters,
where she ordinarily put up when accompanying her husband on his apparently not
infrequent visits to the kothi, and it is clear from the evidence of his other
gifts to her which are now established, that he had a great desire to provide
for her future comfort on a generous scale. Against this, all that can be said
is that during his life time she exercised no individual acts of proprietorship
over any portion of the Kairabad establishment; that in her and her
husbands absence the serai was occupied by the servants of the estate;
that such repairs as were necessary were done at Baqar Alis expense, and
that no mutation of names was made in the Government records. In their
Lordships opinion these facts are not sufficient to establish that the
transaction was merely colourable. The deed was handed over to the donee and
remained in her possession, and their Lordships have no doubt that Baqar Ali
intended to make a genuine gift of the property to her. 26. In regard to
handing over of the possession, it was held:
In the second place, the deed of gift was
handed over to the donee as soon as it was registered. In the case of a gift by
a husband to his wife, their Lordships do not think that Mahomedan law requires
actual vacation by the husband and an actual taking of separate possession by
In their opinion the declaration made by the
husband, followed by the handing over of the deed are amply sufficient to
establish a transfer of possession.
27. It will bear repetition to state that we are
in this case concerned with the construction of recitals made in a registered
28. Mr. Iyer also relied upon a decision of Oudh
High Court in Jhumman v. Husain and others [AIR 1931 Oudh 7] to show that a
declaration that possession had been given is not conclusive. Therein again,
the court was dealing with a case of gift under Mohammadan law. In that case,
the gift was accepted after the death of the donor and it was in that situation
that emphasis was laid on handing over of possession as a condition of valid
29. In Smt. Gangabai v. Smt. Chhabubai [AIR 1982
SC 20], wherein also reliance has been placed by Mr. Iyer, it was held that the
bar created under Sections 91 and 92 of the Indian Evidence Act would operate
unless it comes within the purview of the exceptions specified therein. Therein
the question which arose for consideration related to the nature of transaction
and not the terms of the grant.
30. Mr. Iyer places reliance on Tyagaraja Mudaliyar
and another v. Vedathanni [AIR 1936 PC 70] wherein again correctness or
otherwise of the nature of document itself was in question and in that view of
the matter adduction of oral evidence was not held to be a bar in terms of
Section 91 of the Indian Evidence Act.
31. Once a gift is complete, the same cannot be
rescinded. For any reason whatsoever, the subsequent conduct of a donee cannot
be a ground for rescission of a valid gift.
32. For the reasons aforementioned, the impugned
judgment cannot be sustained and, thus, judgments of the High Court as also the
first Appellate Court are set aside and that of the Trial Court restored. The
appeal is allowed. No costs.