Case Note & Summary
The Supreme Court considered an appeal by special leave against a judgment of the Division Bench of the Kerala High Court dated March 17, 1995 in Second Appeal No. 358 of 1994. The appellant, Baby Ammal, was the admitted owner of property bearing Survey No. 1960/6 in Chettivilakam Village, Trivandrum District. She had filed a suit for possession and a declaration that the respondent, Rajan Asari, was a licensee in respect of the property. The trial court decreed the suit on November 3, 1981, and the first appellate court dismissed the appeal on July 22, 1993. However, the High Court in second appeal reversed the decrees, holding that the appellant had executed a gift deed on October 11, 1966 under Exhibit A-1 and that the respondent had become the owner and remained in possession. The Supreme Court examined the recitals in the deed, which stated that all rights to enjoy the property and reside in the building would remain with the appellant during her lifetime, and that the respondent would derive those rights with full freedom after her lifetime. The Court reasoned that under Section 122 of the Transfer of Property Act, 1882, a gift must divest the donor of title and possession and vest them in the donee, and under Section 123, delivery and acceptance of possession must be proved. The recitals showed that the appellant retained title and possession as full owner during her lifetime, and there was no acceptance of possession by the respondent. Consequently, the instrument could not be construed as a gift deed; at best, it was a licence in favour of the respondent to remain in possession jointly with the appellant. The Court held that the High Court was not right in concluding that Exhibit A-1 was a gift deed and that the appellant had no title. Accordingly, the Supreme Court allowed the appeal, set aside the High Court's judgment and order, confirmed the trial court and first appellate court decrees, confirmed the decree for mesne profits granted by the High Court to that extent, and granted the respondent six months' time to vacate the premises. No order as to costs was made.
Headnote
A) Transfer of Property - Gift - Essential Requirements - Transfer of Property Act, 1882, Sections 122, 123 - The instrument Ex.A-1 dated 11.10.1966 reserved to the appellant the right to enjoy the property and reside in the building during her lifetime, with full rights to the respondent only after her lifetime; no delivery or acceptance of possession by the respondent was established - For a valid gift, the donor must divest title and possession and vest them in the donee, and acceptance of possession by the donee is necessary; here both title and possession remained with the appellant - The Supreme Court held that Ex.A-1 could not be construed as a gift deed; at best it was a licence in favour of the respondent to remain in possession jointly with the appellant. Held that the High Court erred in reversing the concurrent findings, and the appeal was allowed with restoration of the trial court and first appellate court decrees, while confirming the mesne profits decree and granting six months' time to vacate (Paras Not mentioned).
Issue of Consideration
Whether Ex.A-1 dated 11.10.1966 constituted a valid gift deed under Sections 122 and 123 of the Transfer of Property Act, 1882 when the executant retained title and possession during her lifetime and there was no acceptance of possession by the intended donee, or whether it was at best a licence.
Final Decision
Appeal allowed; High Court judgment and order set aside; judgments and decrees of the trial court and first appellate court confirmed; decree of mesne profits granted by the High Court confirmed; respondent granted six months' time to vacate; no order as to costs.
Law Points
- Gift under Transfer of Property Act
- 1882 requires divesting of title and possession by donor and vesting in donee
- delivery and acceptance of possession are essential
- retention of title and possession during donor's lifetime and no acceptance by donee mean no gift
- instrument is at best a licence for joint possession
