"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.
CASE NO.:
Appeal (civil) 1036 of 2000
Appeal (civil) 4770 of 2001
PETITIONER:
K.Balakrishnan
RESPONDENT:
K.Kamalam. & Ors
DATE OF JUDGMENT: 18/12/2003
BENCH:
Y.K.Sabharwal & D.M. Dharmadhikari
Citation;AIR2004SC1257,2004(5)ALLMR(SC)551,2004(2)MhLJ852(SC),(2004)1SCC581
The 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.
The 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
(1) Balakrishnan aged 16 son of Kunju Pillai and (2)
Kamalam aged 4 residing at Kamalalayam, Mayyanad
Cherry.
You 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.
Schedule (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.
The 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.
The 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.
The 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 accept.
The 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.
We 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.
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 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 any one except the
owner of the property affected thereby.
(c) ...........
(d) All 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.
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.
The second question which has been posed by the High Court
and answered against the donor is regarding acceptance of the gift
and its revocability.
A 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 :-
"11. 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.
Acceptance when to be made. Such acceptance must
be made during the lifetime of the donor and while he is
still capable of giving.
If the 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.
For 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.
Such 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.
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."
[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.
Section 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.
"127. 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.
Where 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
onerous.
Onerous 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.
Section 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].
The 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.
Section 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'.
As we 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.
Reverting 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.
The 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 1985.
The 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.
Where 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.
Knowledge 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 48].
In the 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.
There 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.
In the 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.
As 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].
` In 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.
Consequently, 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 aside.
Consequently, the judgment of the first appellate court dated
21.7.1992 is hereby restored.
The 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.
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