Donor's Acknowledgement In Gift Deed Of Property's Delivery To Donee Is Sufficient Proof Of Gift's Acceptance: Kerala High Court

The Court also observed that the Transfer of Property Act does not mention any one mode of acceptance.

Justice K. Babu observed:

“It is trite that no particular mode is prescribed under the law as to the requirement needed to prove acceptance. There may be various means to prove acceptance of a gift.”

The Court also contemplated whether delivery of property is a necessary element of acceptance of gift of immovable property.

The Court held that it is an accepted view that Section 123 of Transfer of Property Act supersedes any rule of Hindu Law if any, which requires the delivery of possession as an essential condition for completion of a gift. Section 123 of the Act says that a gift of immovable property is effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Section 129 of the Act before the Amendment of 1929 mentions that nothing in the Act dealing with the gift of moveable property in contemplation of death would affect any rule of Buddhist, Muhammadan or Hindu law. However, this did not apply to Section 123. After the 1929 amendment, this immunity was restricted to just Muhammadan rules. Thus, the whole provisions related to gift in the Act supersedes the Hindu rules.

The Court examined the provision of Section 123. The Section lays down that the gift of moveable property can be effected through either a registered instrument or delivery of the property. The gift of immovable property can be effected only by a registered instrument. The Court observed that since 'delivery of possession' is not mentioned in case of immovable property, it is not an essential requisite in such gifts.

“Such transfer in case of immovable property no doubt requires a registered instrument but the provision does not make delivery of possession of the immovable property gifted as an additional requirement for the gift to be valid and effective. If the intention of the legislature was to make delivery of possession of the property gifted also as a condition precedent for a valid gift, the provision could and indeed would have specifically said so. Absence of any such requirement can only lead us to the conclusion that delivery of possession is not an essential prerequisite for the making of a valid gift in the case of immovable property.”

The original case was that late Kunhimatha gifted 17 cents of land and a dwelling house in favour of her daughter, the 1^st defendant in the original proceedings. Kunhimatha reserved her right to reside in the house and take usufructs from the land during her lifetime. The petitioners in the original case alleged that the 1^st defendant did not accept the gift. Kunhimatha, cancelled the gift and gave the same properties to her grandson, 2^nd petitioner. He later assigned the property to a stranger, the 1^st petitioner. Kunhimatha's daughter claimed title over the property. She argued that she had accepted the gift. She also alleged that the grandson of Kunhimatha had illegally created some sham documents.

The Court noted that, in the gift deed and in the release deed where Kunhimatha released her entire right over the property to her daughter, it was mentioned that the possession of the property is delivered to the donee. This is sufficient to establish acceptance of the gift.

"The recitals in Exhibit B1 gift deed and Exhibit B2 release deed, two registered documents wherein the donor specifically acknowledged that the donee accepted the gift and possession of the property was delivered to the donee, are sufficient to establish acceptance," the Court observed.

The Court held that since the first gift is valid, the subsequent unilateral cancellation of the gift, even if there was any, does not have any legal validity.

The High Court quashed the judgment of the Subordinate Judge declaring title of the property in favour of the original plaintiffs.

Counsel for Appellants: Advocate R. Parthasarathy

Counsel for Respondents: Advocates M. A. Bindu, V. R. Kesava Kaimal, S. Venkatasubramonia Iyer

Citation: 2024 LiveLaw(Ker) 375

Case No: RSA No. 421/ 2003

Case Title: Kakkoth Radha and Others v Bathakkathalakkal Batlak Musthafa and Another

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