Whether the court can infer acceptance of a gift of immovable property from mutation entries?

 The word acceptance is defined as "is the receipt of a thing offered by another with an intention to retain it, as acceptance of a gift." (See Ramanatha P. Aiyar: The Law Lexicon, 2nd Edn., page 19).

26. The aforesaid fact can be ascertained from the surrounding circumstances such as taking into possession the property by the donee or by being in the possession of the gift deed itself. The only requirement stipulated here is that, the acceptance of the gift must be effectuated within the lifetime of the donor itself.

27. Hence, being an act of receiving willingly, acceptance can be inferred by the implied conduct of the donee. The aforesaid position has been reiterated by this Court in the case of Asokan v. Lakshmikutty, MANU/SC/0104/2008 : (2007) 13 SCC 210

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.

(emphasis supplied)

28. In the present case, the gift deed itself contained certain recitals as mentioned below:

...Out of the aforesaid land in all the khasra's 1/2 part means 50 percent I am giving you in gift being my younger son with my pleasure. My elder son Shri Babu Singh has no objection to this gift ... From today you are the owner of the half of the land gifted to you and you will have possession hereafter. You have the complete right over the aforesaid land for cultivation from today onward. Now you get the gifted land mutated in your name... These lands have not been sold or under Will or under the gift earlier. Further I state that the aforesaid land is free from any debt liability... The registration of the aforesaid gift has been done by me in my sound physical and mental health with consent without any undue coercion and pressure from anyone. I have gifted the aforesaid land with my sweet will and wish...

These recitals clearly indicate that donor intended to part with ownership and possession immediately after the execution of the gift deed.

29. In order to show acceptance, the counsel for the Appellant drew our attention to the mutation records. The Mutation entry in the Revenue Record of Gram Sedriya, District Pali dated 28.10.1968 clearly reflects that half portion of Appellant's land was bestowed as a gift by the Appellant to his son through a registered instrument of gift dated 19.12.1963.

30. Furthermore, the statement dated 31.08.1984, rendered by the Appellant-donor before the Court of Additional District Magistrate indicates that the donee was already a major at the time of the execution of the gift deed. He further stated that after execution of the gift deed the donee started cultivating on the same.

31. The aforesaid statement of the Appellant-donor is completely supported by the statement made by the donee on 15.12.1988 before the Court of Additional District Magistrate. Therein, the donee clearly stated that, as he did not get along with his step-mother, he started living separately and the land was transferred to him by virtue of gift deed was under his possession and he was cultivating the same.

32. Therefore, the abovementioned circumstances clearly indicate that there was an acceptance of the gift by the donee during the lifetime of the donor. Not only the gift deed in itself contained recitals about transfer of possession, but also the mutation records and the statements of the both the donor and donee indicate that, there has been an acceptance of the gift by conduct.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5650 of 2010

Decided On: 08.12.2020

Daulat Singh (D) thr. L.Rs. Vs. The State of Rajasthan and Ors.

Hon'ble Judges/Coram:

N.V. Ramana, S. Abdul Nazeer and Surya Kant, JJ.

Citation: MANU/SC/0926/2020

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Whether donor can impose condition in gift deed that donee shall not have right to alienate gifted property?

 Learned counsel for the respondents has rightly placed reliance on the judgment of Allahabad High Court in Smt. Brij Devi vs. Shiva Nanda Prasad and others, AIR 1939 Allahabad 221, wherein the High Court had occasion to consider Sections 10 and 126 of the Transfer of Property Act. In the above case also gift deed came into consideration which contained a condition that “The donee or his successors will have no right to transfer or mortgage”. The Division Bench of the High Court had laid down:

“Now the law of conditions in regard to the transfer of property is contained in Ch. 2 of the T.P. Act. No condition therefore, in our judgment, imposed upon a donee can be valid if it is inconsonant with the provisions of Section 10 of the Act. 

This Court has already taken the view that condition restraining donee from alienation of gift, cannot be imposed and such a condition is void under Section 10 of the Act, 1882. I respectfully agree with the aforesaid view taken in Brij Devi (supra).

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1209 OF 2020

SRIDHAR Vs N. REVANNA 

ASHOK BHUSHAN, J.

Dated:February 11, 2020.

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Whether gift deed can registered after death of donor?

14. Section 122 of the Transfer of Property Act, 1882 defines “Gift” in the following words:—

“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.

Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.”

15. If the deed of gift satisfies the requirement of Section 122 of the Transfer of Property Act read with Section 17 of the Registration Act, there is no scope to say that the said deed of gift is invalid. During the trial of the suit the deed of gift in question was marked as exhibit-“Ga”. It is found from the said exhibit that it was executed on 5th January, 1994. The recital of the deed states that the donees were grand-sons (sons of one of the daughters) of the donor. It is not disputed that before her death the donor used to reside in the house of the donees. They used to look after the donor during her old age. Precisely due to such reason, Jagomaya Dasi transferred the suit property in favour of the appellants by executing a deed of gift on 5th January, 1994. Section 123 of the Transfer of Property Act stipulates that a deed of immovable property can be made only for transferring the right, title and interest by the donor to the donee by a registered instrument signed by or on behalf of the donor and must be attested by at least two witnesses. The pre-existing right, title and interest of donor thereby stand divested in the donee only when the gift deed is duly registered and thereafter the donor would lose title to the property, provided the donee had accepted the property gifted over under the instrument.

18. The respondents have raised serious doubt over the authenticity of the said deed of gift because of the fact that it was registered after the death of the donor. However, well established is the law that it is not necessary for the validity of a deed of gift that it should be registered by the donor himself. In Bhabotosh v. Soleiman reported in 33 Cal 584, a Hindu man executed a deed of gift in favour of his wife and died, and the deed was subsequently registered at the instance of the widow-donee. Validity of the deed of gift was challenged on the ground that it was registered subsequent to the death of the donor. This Court held that subsequent registration of a deed of gift after the death of the donor at the instance of the donee did not offend the provisions of Section 123 of the Transfer of Property Act. The post-mortem registration of a deed of gift by the legal representative of the donor has the same effect as its registration by the donor himself during his lifetime.

In the High Court of Calcutta

(Before Bibek Chaudhuri, J.)

Dinabandhu Mondal  v. Laxmi Rani Mondal 

SA 596 of 2008

Decided on June 17, 2019, 

Citation: 2019 SCC OnLine Cal 1118 : AIR 2019 Cal 232

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Whether conditional gifts of immovable property can be cancelled by donor?

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

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.

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

sustained.
REPORTABLE
THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10785 OF 2018

S. SAROJINI AMMA Vs  VELAYUDHAN PILLAI SREEKUMAR 

Dated:OCTOBER 26, 2018
Indira Banerjee, J.
Citation: (2019) 11 SCC 391.

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Whether valid gift deed can be executed even if possession of gifted property is not given to donee?

We 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 a 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 force.

(a)* * *

(b) A mere right to re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby.

(c)* * *

(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

(e) A mere right to sue cannot be transferred.

11. Clause (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. The 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.

(Emphasis supplied)

17. We are in respectful agreement with the statement of law contained in the above passage. There is indeed no provision in law that ownership in property cannot be gifted without transfer of possession of such property. As noticed earlier, Section 123 does not make the delivery of possession of the gifted property essential for validity of a gift.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4195 of 2008

Decided On: 17.07.2014

Renikuntla Rajamma Vs. K. Sarwanamma

Hon'ble Judges/Coram:

T.S. Thakur, V. Gopala Gowda and C. Nagappan, JJ.

Citation: AIR 2014 SC 2906

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Whether Oral gift by Muslim donor to Hindu donee is valid?

 There appears tome to be no doubt that the rules of Muhammadan Law should be applied to test the validity of a gift made by a Muhammadan, whether the gift be made to a Hindu or to another Muhammadan, as a principle of equity, justice and good conscience under Section 37, Bengal, Agra and Assam Civil Courts Act. Under the rules of Muhammadan Law, a Muhammadan is entitled to make a gift to any donee irrespective of age, sex or creed; and he may make that gift by an oral transaction which is completed by delivery of possession of the property. It is conceded on behalf of the appellants that the rule of Muhammadan Law would apply if the gift were from one Muhammadan to another, but it is argued that this case should be regarded as governed by the provisions of Section 123 in Ch. VII, Transfer of Property Act, because the donee was a Hindu. But Section 129 of the Act expressly provides that nothing in Oh. VII shall be deemed to affect any rule of Muhammadan Law, and since under the rules of Muhammadan Law a person governed by that law may make a valid gift to a Hindu by an oral transaction which is perfected by delivery of possession, to apply the provisions of Section 123 to render invalid a gift made in this manner would have the effect of making the section abrogate a rule of Muhammadan Law, in spite of the express provisions of Section 129. I agree, therefore, that the oral gift to the Hindu donee should be treated as valid, from which it follows that the title of the plaintiff's vendor had passed before the plaintiff's purchase, and his suit must be dismissed.

Patna High Court

Musammat Tabera vs Ajodhya Prasad And Anr. on 29 May, 1929

Equivalent citations: 123 Ind Cas 401

Bench: Wort, James

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