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REPORTABLE

THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL   APPEAL NO. 10785  OF 2018 (Arising out of SLP (C) No. 35515 of 2017)

S. SAROJINI AMMA    …Appellant  

VERSUS

VELAYUDHAN PILLAI SREEKUMAR        …Respondent

J U D G M E N T

Indira Banerjee, J.

Leave granted.

2. This appeal has been filed against the judgment and order

dated  03.04.2017  passed  by  the  High  Court  of  Kerala  at

Ernakulam in R.S.A.  No. 757/2011 whereby the High Court was

pleased to allow the Second Appeal filed by the respondent and

set aside the judgment and decree passed by the First Appellate

Court in favour of the appellant.  

3. The  short  question  involved  in  this  appeal  is  whether  a

document  styled  as  gift  deed  but  admittedly  executed  for

consideration,  part  of  which  has  been  paid  and  the  balance

promised  to  be  paid,  can  be  treated  as  formal  document  or

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instrument of gift.  Another related question is whether a gift deed

reserving the right of the donor to keep possession and right of

enjoyment and enforceable after the death of the executant is a

gift or a will.  

4. The  appellant  is  a  childless  widow aged  74  years  whose

husband expired on 06.06.2015. The respondent is the nephew of

the  appellant  (brother’s  son).   In  the  expectation  that  the

respondent will look after the appellant and her husband and also

for some consideration, the appellant executed a purported gift

deed in favour of the respondent. The gift deed clearly stated that

the gift would take effect after the death of the appellant and her

husband.   

5. According  to  the  appellant  on  or  about  02.06.1999,  the

appellant  executed  the  deed  of  cancellation  No.  1844/1999

cancelling the gift deed.  After about eight months, on or about

01.02.2000, the respondent filed Original Suit No. 32/2000 in the

Court of the learned Munsif Sasthamcotta for declaration that the

cancellation deed executed by the appellant is null and void and

also for declaration of his right over the suit property being the

subject matter of the purported deed of gift.   

6. On  or  about  20.03.2000,  the  appellant  filed  Original  Suit

being O.S. No. 97/2000 before the Court of the learned Munsif,

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Sasthamcotta for permanent injunction restraining the respondent

or his men from trespassing or committing waste or mischief in

the suit property.  

7. On  12.05.2000,  the  appellant  and  her  husband  filed  the

written statement in the suit being O.S. No. 32/2000 filed by the

respondent. On 25.07.2000, the defendants in O. S. No. 97/2000

filed  their  written  statement  contending  that  the  registered

document No. 687/2000 was executed for consideration.  

8. By  a  judgment  and  order  dated  11.12.2006,  the  learned

Munsif, Sasthamcotta decreed Original Suit No. 32/2000 and O.S.

No. 97/2000.  

9. Being aggrieved, the appellant filed First Appeal being A.S.

No. 30/2007 before the District Court Kollam.  The defendants in

O.S. No. 97/2000 filed their First Appeal before the District Court

Kollam.  By  an  order  dated  23.09.2010,  the  Additional  District

Judge III, Kollam allowed the application being A.S. No. 30/2007

filed by the appellant and dismissed A.S. No. 77/2000 filed by the

respondent in O.S. No. 97/2000.

10. The  respondent  filed  Regular  Second  Appeal  against  the

judgment and decree in A.S. No. 30/2007.  By the judgment and

order  dated 03.04.2017,  the High Court  allowed the R.S.A.  No.

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757/2011  and  set  aside  the  judgment  and  decree  in  A.S.  No.

30/2007.

11. On  behalf  of  the  appellant,  it  was  contended  that  the

document styled as gift deed was to come into effect only after

the death of the appellant and her husband.  The question was

whether  a  document  in  terms  whereof  the  executant  of  the

document retained possession and reserved her  right  over  the

property being the subject matter of the document could be a

deed of gift or whether such a document was a document in the

nature of a will.   

12. Section 122 of the Transfer of Property Act 1882 defines gift

as hereunder:-  

“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.”  

13. Some of the relevant provisions of the Transfer of Property

Act, 1882 with regard to a gift are set out herein-below:-  

123. Transfer how effected. -  For the purpose of making a gift of  immoveable  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

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aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.

124. Gift of existing and future property.  – A gift comprising both existing and future property is void as to the latter.

125. Gift to several of whom one does not accept.-A gift of a thing to two or more donees, of whom one does not accept it, is void  as  to  the  interest  which  he  would  have  taken  had  he accepted.

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. 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.

Illustrations (a) A gives a field to B, reserving to himself, with B's assent, the right  to  take  back  the  field  in  case  B and  his  descendants  die before A. B dies without descendants in A's lifetime. A may take back the field. (b) A gives a lakh of rupees to B, reserving to himself,  with B's assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A.

14. Gift  means  to  transfer  certain  existing  moveable  or

immoveable  property  voluntarily  and  without  consideration  by

one  person  called  the  donor  to  another  called  the  donee  and

accepted by or on behalf of the donee as held by the Supreme

Court in  Naramadaben Maganlal Thakker Vs. Pranivandas

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Maganlal Thakker and Others1.  As further held by this Court

in  Naramadaben Maganlal Thakker (supra) “It would 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 absolute owner of the property.”  

15. A  conditional  gift  with  no  recital  of  acceptance  and  no

evidence in proof of acceptance, where possession remains with

the  donor  as  long  as  he  is  alive,  does  not  become  complete

during lifetime of the donor.   When a gift is incomplete and title

remains with the donor the deed of gift might be cancelled.   

16. In Reninkuntla Rajamma Vs. K. Sarwanamma2  a Hindu

woman executed a registered gift  deed of  immovable property

reserving to herself the right to retain possession and to receive

rent of the property during her lifetime.  The gift was accepted by

the donee but later revoked.   

17. In Reninkuntla Rajamma (supra), this Court held that the

fact that the donor had reserved the right to enjoy the property

during her lifetime did not affect the validity of the deed.   The

Court  held  that  a  gift  made  by  registered  instrument  duly

1 (1997) 2 SCC 255 2 (2014) 9 SCC 445

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executed by or on behalf of the donor and attested by at least two

witnesses is valid, if the same is accepted by or on behalf of the

donee.   Such  acceptance  must,  however,  be  made during  the

lifetime of the donor and while he is still  capable of making an

acceptance.    

18. We  are  in  agreement  with  the  decision  of  this  Court  in

Reninkuntla Rajamma (supra) that there is no provision in law

that ownership in property cannot be gifted without transfer of

possession of such property.  However, the conditions precedent

of a gift as defined in Section 122 of the Transfer of Property Act

must  be  satisfied.  A  gift  is  transfer  of  property  without

consideration. Moreover,  a  conditional  gift  only  becomes

complete on compliance of the conditions in the deed.   

19. In  the instant  case,  admittedly,  the  deed  of  transfer  was

executed  for  consideration  and  was  in  any  case  conditional

subject  to  the  condition  that  the  donee  would  look  after  the

petitioner and her husband and subject to the condition that the

gift would take effect after the death of the donor.  We are thus

constrained  to  hold  that  there  was  no  completed  gift  of  the

property in question by the appellant to the respondent and the

appellant  was  within  her  right  in  cancelling  the  deed.   The

judgment  and  order  of  the  High  Court  cannot,  therefore,  be

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sustained.   

20. The appeal  is  allowed and the judgment and order under

appeal is set aside.  

.................................J.  (ARUN MISHRA)

.................................J. (INDIRA BANERJEE)

OCTOBER 26, 2018 NEW DELHI.